final until disposition of timely filed motion for rehearing.
from the State of Florida, Division of Administrative
Hearings; Robert E. Meale, Administrative Judge; L.T. Case
F. Kelly of Mark F. Kelly, P.A., Tampa, for appellant.
Charles T. Whitelock of Charles T. Whitelock, P.A., Fort
Lauderdale, for appellee.
Steven Yerks, a teacher who was discharged primarily for
failing to correct alleged performance deficiencies, appeals
a final administrative order in which the Broward County
School Board rejected certain factual findings of the
Administrative Law Judge ("ALJ") and rejected the
ALJ's recommendation that appellant be reinstated. We
dispute arises out of appellant's performance as a
mathematics teacher at Boyd Anderson High School during the
2013-14 school year. At all relevant times, the School Board
used a performance evaluation system known as iObservation,
which is based on the methods of Dr. Robert Marzano.
iObservation form consists of 60 strategies or criteria
listed in four domains-classroom strategies, planning and
preparation, reflecting on teaching, and professionalism.
Observers score the criteria in the domains by issuing the
following "datamarks" to indicate the teacher's
level of performance-innovating (4 points), applying (3
points), developing (2.5 points), beginning (2 points), and
not using (1 point).
February 2014, appellant was placed on a Performance
Development Plan. There were 18 observations of
appellant's classroom performance during the school year.
Most of the observations were conducted by either the
principal or the assistant principal. Over 100
"datamarks" concerning appellant's teaching
performance were entered into the iObservation system during
the observations. Appellant's final score was
2014, the Broward County Superintendent of Schools filed an
Administrative Complaint recommending that appellant be
terminated from his employment with the school district. The
case proceeded to a formal administrative hearing.
three-day hearing, the ALJ heard testimony from 16 witnesses
and admitted multiple exhibits into evidence, including the
102 datamarks recorded in the performance evaluation system.
Several of the Superintendent's witnesses testified about
appellant's alleged misconduct, but the ALJ found that
much of this testimony was not credible.
principal and assistant principal testified that
appellant's classroom performance was unsatisfactory
based on their observations. No other witness conducted, or
was credentialed to conduct, an observation of
appellant's teaching under the Marzano method.
did, however, present the testimony of a liaison between the
Teachers Union and the school district, who testified that
she had concerns about the procedural fairness of the
observations of appellant's teaching. Although she was
not a credentialed Marzano observer, she received training
concerning the Marzano method and testified that some of the
datamarks appellant received were contradictory to that
training. For example, appellant received multiple "not
using" datamarks that failed to contain any feedback on
how to improve. Likewise, for one observation, there was
evidence that appellant had posted a learning goal, but
appellant still received a "not using" datamark,
which was contradictory to the Marzano evaluation system.
who was also trained in the Marzano method but was not a
credentialed observer, testified in his own defense and
criticized how the observations were scored.
issued a lengthy recommended order, finding that the
Superintendent failed to prove any of the charges against
appellant. The main focus of the recommended order was on
whether the Superintendent proved the allegations regarding
appellant's failure to correct performance deficiencies.
On this issue, the ALJ found that the observations conducted
by the principal and assistant principal "were tainted
by incompetence, carelessness, and confirmation bias."
discarded or revised various datamarks on the following
grounds: (1) the observers misapplied criteria requirements;
(2) the observers disproportionately observed certain
criteria; and (3) certain datamarks were not proven by the
greater weight of the evidence.
to the dissent's suggestion that the ALJ's decision
was based on nothing more than a conclusory impression that
the observations were tainted, the ALJ undertook a
painstaking review of each observation and discussed his
findings at length in a 129-page order. ...