legalanswerbooks.com douglas g. griffin, esq dismissal of teachers for unsatisfactory performance

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Douglas G. Griffin, ESQ

DISMISSAL OF TEACHERS FOR

UNSATISFACTORY PERFORMANCE

Section § 1012.33 Fla. Stat.

Section § 1012.33 Fla. Stat. provides:

(1). . . . All [psc] contracts, . . ., shall contain provisions for dismissal during the term of the contract only for just cause. Just cause includes, but is not limited to, the following instances, as defined by rule of the State Board of Education: immorality, misconduct in office, incompetency, two consecutive annual performance evaluation ratings of unsatisfactory under s. 1012.34, two annual performance evaluation ratings of unsatisfactory within a 3-year period under s. 1012.34, three consecutive annual performance evaluation ratings of needs improvement or a combination of needs improvement and unsatisfactory under s. 1012.34, gross insubordination, willful neglect of duty, or being convicted or found guilty of, or entering a plea of guilty to, regardless of adjudication of guilt, any crime involving moral turpitude.

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A performance evaluation must be conducted for each employee atleast once a year. The evaluation criteria must include:

1. At least one-third of a performance evaluation must be based upon data and indicators of student performance .2. At least one-third of the performance evaluation must be based upon instructional practice. . . . 3. The remainder of a performance evaluation may include, but is not limited to, professional and job responsibilities as recommended adopted by the State Board of Education or identified by the district school board and, for instructional personnel, peer reviews, objectively reliable survey information fromstudents and parents based on teaching practices that are consistentlyassociated with higher student achievement, and other valid and reliablemeasures of instructional practice.




(4) NOTIFICATION OF UNSATISFACTORY PERFORMANCE. — If an employee who holds a professional service contract as provided in s. 1012.33 is not performing his or her duties in a satisfactory manner, the evaluator shall notify the employee in writing of such determination. The notice must describe such unsatisfactory performance and include notice of the following procedural requirements:

(a) Upon delivery of a notice of unsatisfactory performance, the evaluator must confer with the employee who holds a professional service contract, make recommendations with respect to specific areas of unsatisfactory performance, and provide assistance in helping to correct deficiencies within a prescribed period of time.




(b)1. The employee who holds a professional service contract shall be placed on performance probation and governed by the provisions of this section for 90 calendar days following the receipt of the notice of unsatisfactory performance to demonstrate corrective action. . . . At any time during the 90 calendar days, the employee who holds a professional service contract may request a transfer to another appropriate position with a different supervising administrator; however, if a transfer is granted pursuant to ss. 1012.27(1) and 1012.28(6), it does not extend the period for correcting performance deficiencies.


SAMPLE PDP




Within 14 days after the close of the 90 calendar days, the evaluatormust evaluate whether the performance deficiencies have been corrected andforward a recommendation to the district school superintendent. Within 14days after receiving the evaluator’s recommendation, the district schoolsuperintendent must notify the employee who holds a professional servicecontract in writing whether the performance deficiencies have beensatisfactorily corrected and whether the district school superintendent willrecommend that the district school board continue or terminate his or heremployment contract.




(1). . . . All [psc] contracts, . . ., shall contain provisions for dismissal during the term of the contract only for just cause. Just cause includes, but is not limited to, the following instances, as defined by rule of the State Board of Education: immorality, misconduct in office, incompetency, two consecutive annual performance evaluation ratings of unsatisfactory under s. 1012.34, two annual performance evaluation ratings of unsatisfactory within a 3-year period under s. 1012.34, three consecutive annual performance evaluation ratings of needs improvement or a combination of needs improvement and unsatisfactory under s. 1012.34, gross insubordination, willful neglect of duty, or being convicted or found guilty of, or entering a plea of guilty to, regardless of adjudication of guilt, any crime involving moral turpitude.


Rule 6A-5.056, F.A.C.

Rule 6A-5.056, F.A.C. provides:

(3) “Incompetency” means the inability, failure or lack of fitness to discharge the required duty as a result of inefficiency or incapacity.

(a) “Inefficiency” means one or more of the following:

1. Failure to perform duties prescribed by law;

2. Failure to communicate appropriately with and relate to students;

3. Failure to communicate appropriately with and relate to colleagues, administrators, subordinates, or parents;

4. Disorganization of his or her classroom to such an extent that the health, safety or welfare of the students is diminished; or

5. Excessive absences or tardiness.

Rule 6A-5.056, F.A.C.

Rule 6A-5.056, F.A.C. provides:

(3) “Incompetency” means the inability, failure or lack of fitness to discharge the required duty as a result of inefficiency or incapacity.

(b) “Incapacity” means one or more of the following:

1. Lack of emotional stability;

2. Lack of adequate physical ability;

3. Lack of general educational background; or

4. Lack of adequate command of his or her area of specialization.



(1) The primary duty of instructional personnel is to work diligently and faithfully to

help students meet or exceed annual learning goals, to meet state and local

achievement requirements, and to master the skills required to graduate from

high school prepared for postsecondary education and work. This duty applies to

instructional personnel whether they teach or function in a support role.




(2) Members of the instructional staff of the public schools shall perform duties

prescribed by rules of the district school board. The rules shall include, but are not

limited to, rules relating to a teacher's duty to help students master challenging

standards and meet all state and local requirements for achievement; teaching

efficiently and faithfully, using prescribed materials and methods, including

technology-based instruction; recordkeeping; and fulfilling the terms of any

contract, unless released from the contract by the district school board.


SAMPLE ADMINISTRATIVE COMPLAINT


DOAH ANALYSIS

District may not terminate for failure to remediate after a pdp initiated based on an unsatisfactory Instructional Practice score alone.

District must at least address the weight given to student growth scores. Probably means that, if the district wants to terminate for failure to remediate pursuant § 1012.34, safest practice is to terminate for failure to remediate after a pdp initiated based on an overall unsatisfactory score.

MIAMI-DADE COUNTY SCHOOL BOARD v. ELIZABETH KRISTAL, 2014 WL 116105 (Fla.Div.Admin.Hrgs.)


DOAH ANALYSIS


Regardless of whether district establishes failure to remediate under 1012.34, the

district may prevail if the evidence establishes that Respondent failed to perform

duties prescribed by 1012.53. Respondent's serious, repeated performance

deficiencies may prove that she did not work diligently and faithfully to, and did not

succeed in, helping her students meet or exceed the annual learning goals they were

supposed to meet as prescribed by curriculum and lesson plans. It may also establish

that she failed to work diligently and faithfully to help them meet state and local

achievement requirements.

MIAMI-DADE COUNTY SCHOOL BOARD v. ELIZABETH KRISTAL, 2014 WL 116105

(Fla.Div.Admin.Hrgs.)

DOAH ANALYSIS


Notwithstanding that district didn’t establish failure to remediate under § 1012.34:

. . . Respondent was incompetent due to inefficiency under rule 6A-5.056 because she repeatedly failed to perform duties prescribed by law; repeatedly failed to communicate with and relate to her students to such an extent that they were deprived of minimum educational experience; and was so disorganized in her classroom and in her teaching practices that the welfare of her students was diminished.

Accordingly, Petitioner proved, by a preponderance of the evidence, that just cause exists to terminate Respondent's employment pursuant to section 1012.33, Florida Statutes.

MIAMI-DADE COUNTY SCHOOL BOARD v. ELIZABETH KRISTAL, 2014 WL 116105 (Fla.Div.Admin.Hrgs.)

DOAH ANALYSIS


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Douglas G. Griffin

FAMILY AND MEDICAL LEAVE ACT

FAQ’s

Are public agencies deemed covered employers?

Public agencies are covered employers, as well as private elementary and secondary schools. All public agencies are covered by the FMLA regardless of the number of employees. They are not subject to the coverage threshold of 50 employees carried on the payroll each day for 20 or more weeks in a year.

However, employees of public agencies must meet all of the requirements of eligibility, including the requirement that the employer (e.g., State) employ 50 employees at the worksite or within 75 miles.

What non-military leaves are available under the Family and Medical Leave Act?

Are public officials sued in an individual capacity “employers” subject to individual

liability under the FMLA?

The circuits are split. The Third, Fifth and Eighth Circuits have held that individual supervisors at public agencies are subject to liability.

The Sixth and Eleventh Circuits, however, do not permit individual liability against supervisors at public agencies.

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Douglas G. Griffin

legalanswerbooks.com douglas g. griffin, esq dismissal of teachers for unsatisfactory performance

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