10-000628TTS Broward County School Board vs. Paul Kushch Status: Closed Recommended Order on Friday, October 1, 2010.

Summary: Petitioner demonstrated that Respondent committed misconduct in office and gross insubordination. Recommend penalty of six-month suspension and enrollment in professional skills enhancement programs.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BROWARD COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 10 - 0628

)

PAUL KUSHCH, )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case

on May 25, 2010, by video teleconference with connecting sites

in Lauderdale Lakes and Tallahassee, Florida, before

Errol H. Powell, an Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Eugene K. Pettis, Esquire

Debra Potter Klauber, Esquire

Haliczer Pettis & Schwamm, P.A.

One Financial Plaza, Seventh Floor

100 Southeast Third Avenue

Fort Lauderdale, Florida 33394

For Respondent: Steve Rossi , Esquire

Travis Stock, Esquire

Law Offices of Steve Rossi, P.A.

533 Northeast Third Avenue, Suite 2

Fort Lauderdale, Florida 33301

STATEMENT OF THE ISSUE

The issue for determination is whether Respondent should be

suspended , with or without pay , and terminated from employment

with Petiti oner for the offenses set forth in the Administrative

Complaint .

PRELIMINARY STATEMENT

On January 8, 2010, the Broward County School Board (School

Board ) iss ued an Administrative Complaint (AC) against Paul

Kushch , a n instructional employee, for incompetence

(inefficiency), immorality, misconduct in office, and gross

insubordination , violating Section 1012.33(1)(a), (4)(c), and

(6)(b), Florida Statutes, a nd Florida Administrative Code Rules

6B - 1.001, 6B - 1.006, and 6B - 4.009 . On February 2, 2010, the

School Board approved the AC and the recommendation from the

Superintendent of Schools for the termination of Mr. Kushch's

employment . Mr. Kushch challenged t he School Board's action and

the allegations in the AC and requested a hearing. On

February 9, 2010 , this matter was referred to the Division of

Administrative Hearings.

The parties waived the 60 - day hearing requirement set forth

in Section 1012.33(3)(f)( 4), Florida Statutes. Prior to

hearing, a Joint Pre - Hearing Stipulation was filed, which

included, among other things, stipulated facts. At hearing, the

School Board presented the testimony of three witnesse s and

entered 37 exhibits (Petitioner's Exhibit s n umbered 1 through

37 ) into evidence. Mr. Kushch testified in his own behalf and

entered four exhibits (Respondent's Exhibits numbered 1 through

4) into evidence.

A transcript of the hearing was ordered. At the request of

the parties, the time for fili ng post - hearing submissions was

set for more than ten days following the filing of the

transcript. The Transcript, consisting of one volume, was filed

on June 23 , 2010. Subsequently, t he parties jointly requested

and were granted an extension of time to file their post - hearing

submissions. The parties timely filed their post - hearing

submissions, which were considered in the preparation of this

Recommended Order.

FINDINGS OF FACT

1. Mr. Kushch has b e en employed with the Schoo l Board

since around Septembe r 1999.

2. No dispute exists that, at all times material hereto,

Mr. Kushch was an instructional employee with the School Board.

3 . In September 1999, upon employment with the School

Board, Mr. Kushch signed an acknowledgment that he had read The

Code of Ethics of the Education Profession and The Principles of

Professional Conduct for the Education Profession in Florida;

that he accepted the obligation and responsibility placed upon

him; and that he recognized his rights as a member of the

educ ation pro fession in Florida .

4 . For the 2008 - 2009 school year, Mr. Kushch was employed

as a science teacher at Coconut Creek High School.

5 . Before coming to Coconut Creek, Mr. Kushch 's teaching

experience was a s a teacher in middle school ; he had not taught

in a hig h school setting. In middle school, he saw himself as

not using tradition al methods in teaching, but as providing an

atmosphere for students to learn ; and he carried this teaching

philosophy with him to high school at Coconut Creek .

6. In the fall of 2008, Coconut Creek's football team ,

which was 99 percent African American, was in the play - offs. In

October 2008, Mr. Kushch , who is white, was allowed by the

team's coach to give a motivat ional speech; h e had previously

given motivationa l speeches to t he players . However, during h is

speech, Mr. Kushch used racially discriminatory words and

profanity , including "nigger" and "fucked in the ass." The

football coach and some of the players complained to Coconut

Creek's administration.

7. Mr. Kushch wrote a letter of apology to the football

coach for the remarks that he had made .

8 . On October 30, 2008, the Intern /Assistant Principal,

Missy Jones, held a meeting with M r. Kushch regarding the

racially discriminatory words and profanity that he had used

dur ing his speech. Additionally, among other things, Ms. Jones

discussed with him what was expected of him in th e future

regarding his behavior:

[T]o speak professionally at all times on

campus and at any school - related activities.

[T]o be respectful of all students and

strive to make them feel accepted and

comfortable.

[T]o limit all classroom discussions to the

curriculum assigned.

9. At the hearing, Mr. Kushch admit ted to using the

racially discriminatory words and profanity duri ng his speech

and that the y were inappropriate.

10. No further incidents , involving racially

discriminatory words or profanity, occurred.

11. L ater, in the 2008 - 2009 school year, Mr. Kushch was

involved in several other incidents.

12 . In the spring of 2009, a talent show , sch eduled for

April 15, 2009, was being organized at Coconut Creek. The

coordinator of the talent show was Larry James, a teacher.

Mr. James encouraged both students and faculty to participate.

All participants were required to audition before they w ere

ac cepted in the talent show and Mr. James was conduc ting all

auditions. A notice, regarding the audition requirement, was

sent through Coconut Creek's email system.

13 . Mr. Kushch planned to participate in the talent show

and had arranged a dance skit and rap song on science . Due to

miscommunication, he did not audition and was, therefore,

excluded from the talent show.

14 . Mr. Kushch was upset that he was excluded. He sent

numerous emails to Mr. James regarding his exclusion from the

talent show. Mr. James did not respond to the numerous emails.

15 . A lso , after the talent show, around April 28, 2009,

Mr. Kushch confronted Mr. James after school at cheerleader

practice and in the presence of students regarding his exclusion

from the talent show. Mr. K ushch became angry a nd aggressive

towards Mr. James, who removed himself f rom the situation ,

fearful that the situation m ight escalate . Mr. James sou ght out

administration in the main office and located Ms. Jones, who

calmed him (Mr. James) down.

16. Add itionally , in April 2009, Coconut Creek's Security

Specialist, Christine Ferguson, observed Mr. Kushch in the

guidance office engaging in inappropriate behavior.

Ms. Ferguson was at the door to the guidance secretary's office

when she heard loud voices co ming from the guidance counselor's

cubicle. She observed Mr. Kushch and another male, who was a

parent, yelling loudly at one another. Also , another staff

person and a student were in the cubicle . Ms. Ferguson was

compelled to ask Mr. Kushch to leave the guidance office, and he

did.

17. At hearing, Mr. Kushch admitted that he was "speaking

loudly" in the guidance office.

18 . Ms. Jones considered Mr. Kushch's behavior and conduct

with his co - workers to be adversarial and confrontational.

Concerned wi th his behavior and conduct, she decided to refer

him to the School Board's Employee Assistance Program (EAP),

which is designed to assist employees.

19 . On May 8, 2009, Ms. Jones held a meeting with

Mr. Kushch and discussed with him, among other things, his

adversarial and confrontational behavior and conduct with his

co - workers. She also discussed with Mr. Kushch the need for him

to follow the curriculum in that he was deviating from the

biology lesson plan, e.g ., he engaged the students in a research

a ssignment designed to determine why Coconut Creek was

designated an "F" school. At that time, Ms. Jones referred

Mr. Kushch to the EAP, with both of them signing the referral.

During the discussion, at no time did Mr. Kushch appear to be

upset or confron tational. At the end of the meeting, the two of

them shook hands, and Ms. Jones directed Mr. Kushch to return to

his classroom in that the school's bell had rung , and Mr. Kushch

complied.

20 . However, when Mr. Kushch returned to his classroom,

his behav ior in the classroom upset his students. One of the

st udents believed that Mr. Kushch state d that he was going to

blow - up the school ; the student reported it to Ms. Ferguson.

Additionally, some of the students reported to Ms. Ferguson that

Mr. Kushch tol d the students to get "your asses inside [the

classroom]" and "your asses are mine"; referred to a student as

a "git," which is a gangster in training ; and referenced

students acting "as babies . . . sucking on their momma's tits . "

Also, s ome of the stude nts reported that they became upset and

angry and left the classroom.

21. At hearing, Mr. Kushch admitted using the phrases

"your asses inside [the classroom]"; "your asses are mine";

"git"; and "as babies . . . sucking on their momma's tits."

Furthermor e, he admitted that his use of the phrases and his

behavior with the students were inappropriate, could be

perceived as unprofessional , and were unprofessional.

22. At hearing, Mr. Kushch denied stating that was going

to blow - up the school. The more conv incing evidence is that he

did not make the statement.

2 3 . Having been notified of the alleged behavior and

conduct of Mr. Kushch, Ms. Jones immediately requested an

investigation of Mr. Kushch by the Special Investigative Unit

(SIU) of the Professional S tandard s Committee (PSC) for creating

a hostile environment and inappropriate behavior . Additional ly,

she wanted and requested his removal from the classroom.

24 . By Notice of Investigation dated May 8, 2009, Joe

Melita, the Executive Director of PSC and SIU, notified

Mr. Kushch , among other things, about the investigation being

conducted by the SIU.

25 . Further, by letter dated May 8, 2009, Mr. Melita

notified Mr. Kushch, among other things, that he was placed on

administrative leave and reassigned to M aterials Logistics.

26 . After the investigation, the PSC found probable cause

that Mr. Kushch had engaged in misconduct and created an

offensive or hostile work environment and recommended

termination of Mr. Kushch from his employment.

27 . A pre - discipli nary conference was subsequently held

with Mr. Kushch.

28 . After the pre - disciplinary conference, the

Superintendent recommended the suspension, without pay, of

Mr. Kushch pending a final determination by the School Board on

his termination from employmen t.

29 . On February 2, the School Board approved the

termination of Mr. Kushch's employment with it. Mr. Kushch

timely challenged the School Board's action.

30 . No criminal charges were brought against Mr. Kushch

regarding the incident at Coconut Creek o n May 8, 2009.

31 . No prior disciplinary action has been taken against

Mr. Kushch.

CONCLUSIONS OF LAW

32 . The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and the

parties thereto pursuant to Sections 120 .569 and 1 20.57(1),

Florida Statutes (2010 ).

33 . No dispute exists that the School Board has the burden

of proof to show by a prepo nderance of the evidence that

Mr. Kushch should be terminated. McNeil v. Pinellas County

School Board , 678 So. 2d 476 (Fla. 2d DCA 1996); Dileo v. School

Board of Dade County , 569 So. 2d 883 (Fla. 3d DCA 1990).

34 . Section 1012.01, Florida Statutes (2009 ), provides in

pertinent part:

(2) INSTRUCTIONAL PERSONNEL. --

"Instructional personnel" means any K - 12

staff member whose fu nction includes the

provision of direct instructional services

to students. Instructional personnel also

includes K - 12 personnel whose functions

provide direct support in the learning

process of students. Included in the

classification of instructional p ersonnel

are the f ollowing K - 12 personnel:

(a) Classroom teachers. -- C lassroom teachers

are staff members assigned the professional

activity of instructing students in courses

in classroom situations, including basic

instruction, exceptional student educa tion,

career education, and adult education,

including substitute teachers.

35. As an instructional employee, Mr. Kushch is charged

with incompetence (inefficiency), immorality, misconduct in

office, and gross insubordination, violating Section

1012.33(1 )(a), (4)(c), and (6)(b), Florida Statutes, and Florida

Administrative Code Rules 6B - 1.001, 6B - 1.006, and 6B - 4.009.

36 . Section 1012.33, Florida Statutes (2009 ), t itled

" Contracts with instructional staff, supe rvisors, and school

principals," provides in pertinent part:

(1) (a) Each person employed as a member of

the instructional staff in any district

school system shall be properly certified

pursuant to s. 1012.56 or s. 1012.57 or

employed pursuant to s. 1012.39 and shall be

entitled to and shall receive a written

contract as specified in this section. All

such contracts, except continuing contracts

as specified in subsection (4), shall

contain provisions for dismissal during the

term of the contract only for just cause.

Just cause includes, but is not l imited to,

the following instances, as defined by rule

of the State Board of Education: immorality,

misconduct in office, incompetency, 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.

* * *

(4) (a) An employee who had continuing

contrac t status prior to July 1, 1984

. . . .

* * *

(c) Any member of the district

administrative or supervisory staff and a ny

member of the instructional staff, including

any school principal, who is under

continuing contract may be suspended or

dismissed at any time during the school

year; however, the charges against him or

her must be based on immorality, misconduct

in offi ce, incompetency, gross

insubordination, willful neglect of duty,

drunkenness, or being convicted or found

guilty of, or entering a plea of guilty to,

regardless of adjudication of guilt, any

crime involving moral turpitude, as these

terms are defined by r ule of the State Board

of Education. Whenever such charges are

made against an employee of the district

school board, the district school board may

suspend such person without pay; but, if the

charges are not sustained, he or she shall

be immediately rein stated, and his or her

back salary shall be paid. In cases of

suspension by the district school board or

by the district school superintendent, the

district school board shall determine upon

the evidence submitted whether the charges

have been sustained a nd, if the charges are

sustained, shall determine either to dismiss

the employee or fix the terms under which he

or she may be reinstated. If such charges

are sustained by a majority vote of the full

membership of the district school board and

the employe e is discharged, his or her

contract of employment shall be canceled.

Any decision adverse to the employee may be

appealed by the employee pursuant to s.

120.68, provided the appeal is filed within

30 days after the decision of the district

school board.

* * *

(6) (a) 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). The district school boa rd

must notify the employee in writing whenever

charges are made against the employee and

may suspend such person without pay; but, if

the charges are not sustained, the employee

shall be immediately reinstated, and his or

her back salary shall be paid. I f the

employee wishes to contest the charges, the

employee must, within 15 days after receipt

of the written notice, submit a written

request for a hearing. Such hearing shall be

conducted at the district school board's

election in accordance with one of t he

following p rocedures:

1. A direct hearing conducted by the

district school board within 60 days after

receipt of the written appeal. The hearing

shall be conducted in accordance with the

provisions of ss. 120.569 and 120.57. A

majority vote of the m embership of the

district school board shall be required to

sustain the district school superintendent's

recommendation. The determination of the

district school board shall be final as to

the sufficiency or insufficiency of the

grounds for termi nation of employment; or

2. A hearing conducted by an administrative

law judge assigned by the Division of

Administrative Hearings of the Department of

Management Services. The hearing shall be

conducted within 60 days after receipt of

the written appeal in acco rdance with

chapter 120. The recommendation of the

administrative law judge shall be made to

the district school board. A majority vote

of the membership of the district school

board shall be required to sustain or change

the administrative law judge's

r ecommendation. The determination of the

district school board shall be final as to

the sufficiency or insufficiency of the

grounds for termination of employment.

Any such decision adverse to the employee

may be appealed by the employee pursuant to

s. 120 .68, provided such appeal is filed

within 30 days after the decision of the

district school board.

(b) Any member of the district

administrative or supervisory staff,

including any principal but excluding an

employee specified in subsection (4), may be

suspended or dismissed at any time during

the term of the contract; however, the

charges against him or her must be based on

immorality, misconduct in office,

incompetency, gross insubordination, willful

neglect of duty, drunkenness, or being

convicted or found guilty of, or entering a

plea of guilty, regardless of adjudication

of guilt, any crime involving moral

turpitude, as these terms are defined by

rule of the State Board of Education.

Whenever such charges are made against an

employee of the distric t school board, the

district school board may suspend the

employee without pay; but, if the charges

are not sustained, he or she shall be

immediately reinstated, and his or her back

salary shall be paid. In cases of

suspension by the district school board or

by the district school superintendent, the

district school board shall determine upon

the evidence submitted whether the charges

have been sustained and, if the charges are

sustained, shall determine either to dismiss

the employee or fix the terms unde r which he

or she may be reinstated. If such charges

are sustained by a majority vote of the full

membership of the district school board and

the employee is discharged, his or her

contract of employment shall be canceled.

Any decision adverse to the emp loyee may be

appealed by him or her pursuant to s.

120.68 , provided such appeal is filed within

30 days after the decision of the district

school board.

(emphasis added)

37. The School Board failed to establish that Mr. Kushch

was under a continuing cont ract and, therefore, Section

1012.33(4)(c), Florida Statutes, is not applicable. Hence, the

School Board failed to demonstrate a violation of Section

1012.33(4)(c), Florida Statutes.

38 . Because Mr. Kushch is not a member of the

administrative or supervi sory staff, S ection 1012.33(6)(b),

Florida Statutes, is not ap plicable. Hence, the School Board

failed to demonstrate a violation of Section 1012.33(6)(b),

Florida Statutes.

39 . Florida Administrative Code Rule 6B - 1.001, titled

"Code of Ethics of the Edu cation Profession in Florida,"

provides :

(1) The educator values the worth and

dignity of every person, the pursuit of

truth, devotion to excellence, acquisition

of knowledge, and the nurture of democratic

citizenship. Essential to the achievement

of the se standards are the freedom to learn

and to teach and the guarantee of equal

opportunity for all.

(2) The educator's primary professional

concern will always be for the student and

for the development of the student's

potential. The educator will there fore

strive for professional growth and will seek

to exercise the best profes sional judgment

and integrity.

(3) Aware of the importance of maintaining

the respect and confidence of one's

colleagues, of students, of parents, and of

other members of the co mmunity, the educator

strives to achieve and sustain the highest

degree of ethical conduct.

40 . Florida Administrative Code Rule 6B - 1.006 , titled

"Principles of Professional Conduct for the Education Profession

in Florida," provides in pertinent part:

( 1) The following disciplinary rule shall

constitute the Principles of Professional

Conduct for the Ed ucation Profession in

Florida.

(2) Violation of any of these principles

shall subject the individual to revocation

or suspension of the individual educa tor's

certificate, or the other penalties as

provided by law.

(3) Obligation to the student requires that

the individual:

(a) Shall make reasonable effort to protect

the student from conditions harmful to

learning and/or to the student's mental and/

or physical health and/or safety.

* * *

(e) Shall not intentionally expose a

student to unnecessary e mbarrassment or

disparagement.

* * *

(g) Shall not harass or discriminate

against any student on the basis of race,

color, religion, sex, age, national or

ethnic origin, political beliefs, marital

status, handicapping condition, sexual

orientation, or social and family background

and shall make reasonable effort to assure

that each student is protected from

harassment or discrimination.

* * *

(5) Obligation to the profession of

education requires that the individual:

* * *

(d) Shall not engage in harassment or

discriminatory conduct which unreasonably

interferes with an individual's performance

of professional or work responsibilities or

with the orderly processes of education or

which creates a hostile, intimidating,

abusive, offensive, or oppressive

environment; and, further, shall make

reasonable effort to assure that each

individual is protected from such harassment

or discriminati on.

41. Florida Administrative Code Rule 6B - 4.009 , titled

"Criteria for Suspension and Dismissal," provides in pertinent

part:

(1) Incompetency is defined as inability or

lack of fitness to discharge the required

duty as a result of inefficiency or

inca pacity. Since incompetency is a

relative term, an authoritative decision in

an individual case may be made on the basis

of testimony by members of a panel of expert

witnesses appropriately appointed from the

teaching profession by the Commissioner of

Educ ation. Such judgment shall be based on

a preponderance of evidence showing the

existence of one (1) or more of the

following:

(a) Inefficiency: (1) repeated failure to

perform duties prescribed by law . . . ; (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; or (3) repeated failure on the

part of an administrator or supervisor to

communicate with and relate to teachers

und er his or her supervision to such an

extent that the educational program for

which he or she is responsible is seriously

impaired.

(2) Immorality is defined as conduct that

is inconsistent with the standards of public

conscience and good morals. It is conduct

sufficiently notorious to bring the

individual concerned or the education

profession into public disgrace or

disrespect and impair the individual's

service in the community.

(3) Misconduct in office is defined as a

violation of the Code of Ethic s 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 effecti veness in th e

school system.

(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.

42. The School Board failed to esta blish that Mr. Kushch

was incompetent as to inefficiency. The evidence failed to

demonstrate that Mr. Kushch repeatedly failed to perform duties

prescribed by law or repeatedly failed to communicate with and

relate to the children in the classroom, to suc h an extent that

the students were deprived of minimum educational experience .

Hence, the School Board failed to demonstrate by a preponderance

of the evidence that Mr. Kushch violated Section 1012.33(1)(a),

Florida Statutes , and Florida Administrative Co de Rule 6B -

4.009(1)(a) . 1

43. The School Board failed to establish that Mr. Kushch 's

conduct constituted immorality. Furthermore, the School Board

did not argue in its post - hearing submission that his conduct

constituted immorality. Hence, the School fai led to demonstrate

by a preponderance of the evidence that Mr. Kushch violated

Section 1012. 33(1)(a), Florida Statutes, and Florida

Administrative Code Rule 6B - 4.009(2).

44. The School Board established that Mr. Kushch committed

misconduct in office , so s erious as to impair his effectiveness

in the school system . The evidence demonstrated that he

violated Florida Administrative Code Rules 6B - 1.001 and 6B -

1.006, regarding the students, to the extent that his conduct

impaired his effectiveness in the school system . Fla. Admin.

Code R. 6B - 1.001 and 6B - 1.006(3)(a), (e), and (g). Hence, the

School Board demonstrated by a preponderance of the evidence

that Mr. Kushch committed misconduct in office, so serious as to

impair his effectiveness in the school system , violating Section

1012.33(1)(a), Florida Statutes, and Florida Admini strative Code

Rules 6B - 1.001, 6B - 1.006, and 6B - 4.009(3).

45. The School Board established that Mr. Kushch commi tted

gross insubordination. Insubordination has been characterized

as Ð g enerally . . . persistent, willful or overt defiance of

authority . . . . Inherent in a finding of insubordination,

however, is a finding that the orders given were within the

authority of the person giving them. Ñ McAllister v. Florida

Career Service Com mission , 383 So. 2d 940, 941 (Fla. 1st DCA

1980), citing Muldrow v. Board of Public Instruction of Duval

County , 189 So. 2d 414, 415 (Fla. 1st DCA 1966).

46. The evidence demonstrates that Ms. Jones had the

proper authority to give Mr. Kushch a direct ord er. On

October 30, 2008, Ms. Jones directed Mr. Kushch to engage in

appropriate, respectful, and professional behavior at all times

and to limit his classroom discussions to the assigned

curriculum. The evidence demonstrates that the directive was

reason able. Further, the evidence demonstrates that he

nevertheless continued to engage in behavior that was

inappropriate, disrespectful, and unprofessional toward students

and co - workers and that he continued to give his students

assignments that were not on the assigned curriculum. Hence,

the School Board demonstrated by a preponderance of the evidence

that Mr. Kushch committed gross insubordination, violating

Section 1012.33(1)(a), Florida Statutes, and Florida

Administrative Code Rule 6B - 4.009(4).

47. The School Board's Policy 4.9, titled "Disciplinary

Guidelines," provides in pertinent part:

I. Disciplinary Guidelines

(a) It is the intent of the School Board to

treat all employees on a fair and equitable

basis in the administration of disciplinary

me asures.

(b) Discipline is a corrective rather than

a punitive measure. In dealing with

deficiencies in employee work performance or

conduct, progressive discipline shall be

administered, except in situations where

immediate steps must be taken to ensure

student/staff safety. Progressive

discipline may include, but is not limited

to, informal discussion, oral warning,

written warning, written reprimand,

enrollment in professional skills

enhancement programs, suspension without

pay, demotion, change in co ntract status or

termination of employment.

(c) There are certain acts of misconduct,

however, which are so offensive as to render

an employee as no longer employable. The

only appropriate disciplinary measure in

these cases (See Section II, Category A) is

termination of the employment . . . .

(d) The severity of the misconduct in each

case, together with relevant circumstances

(III (c)), will determine what step in the

range of progressive discipline is followed.

A more severe discipline measure will be

used when it is in the best interest of the

students or the community . . . .

(e) The District expects each employee,

instructional and non - instructional, to be

in conformance, both in and out of the work

place, with all laws . . . State Board

Rules, all School Board policies, rules, and

regulations.

II Disciplinary Action

(Category A)

Offense

* * *

(Category B)

Offense

* * *

(m) Any violation of The Code of Ethics of

the Education Professional in the State of

Florida - State Board of Ed ucation

Administrative Rule 6B - 1.00

Penalty -- Reprimand/Dismissal

* * *

(p) Insubordination, which is defined as a

continuing or intentional failure to obey a

direct order, reasonable in nature and given

by and with proper authority

Penalty -- Re primand/Dismissal

* * *

III Other Considerations

(a) Failure to include a particular act or

type of conduct in either category does not

preclude the Superintendent or the School

Board from disciplining an employee for such

omitted act or conduct i f it otherwise

constitutes just cause for disciplinary

action.

(b) This list in Category A and B is

illustrative and not meant to be exhaustive.

The Superintendent and School Board reserve

the right to impose disciplinary measures,

up to and including t ermination of

employment, for any offense, act or conduct

which constitutes just cause for

disciplinary action or which violates any

School Board rule, regulation, state or

federal law, as well as the Code of Ethics

and Principles of Professional

Conduct . . . .

(c) The following circumstances are

illustrative and not meant to be exhaustive

and may be considered when determining the

appropriate penalty within a penalty

(III[sic] Category B) range:

1. The severity of the offense

* * *

3. Impact on students, educational process

and/or community

4. The number of repetitions of the

offenses and length of time between offenses

* * *

6. Employment history

* * *

8. The deterrent effect of the discipline

imposed

9. Any effort of rehabili tation by the

employee

* * *

11. Attempts by the employee to correct or

stop the misconduct

* * *

16. Length of employment

* * *

18. Any relevant mitigating or aggravating

factors under the circumstance

48. The School Board suggests a penalty of termination.

Mr. Kushch suggests that, if he is determined to have committed

any offenses, termination is too harsh.

49. The undersigned is persuaded that termination is too

harsh a penalty under the circumstances presented in the instant

c ase. Mr. Kushch agreed to participate in the EAP, which the

undersigned considers a decision by him that he needed help with

his behavior and conduct with the students and with his co -

workers. Even though he agreed to the EAP, he did not have an

opportun ity to begin the EAP due to his conduct in the classroom

immediately after he agreed to the EAP. Also, throughout his

employment with the School Board, Mr. Kushch has had no other

disciplinary action taken against him under the disciplinary

guidelines. A dditionally, no evidence was presented that he was

unable to teach the subject matter for which he was employed.

Under the circumstances of the instant case, a penalty of

suspension without pay and enrollment in professional skills

enhancement programs is more appropriate.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Broward County School Board enter a

final ord er suspendin g Paul Kusch for six months and requiring

his enrollment in professional s kills enhancement programs .

DONE AND ENTERED this 1st day of October 2010, in

Tallahassee, Leon County, Florida.

S

__________________________________

ERROL H. POWELL

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Ap alachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1st day of October , 2010.

ENDNOTE

1/ This Administrati ve Law Judge is not persuaded by

Mr. Kushch's argument that the School Board failed to establish

that he was incompetent by way of inefficiency on the basis that

the School Board failed to present "testimony by members of a

panel of expert witnesses approp riately appointed from the

teaching profession by the Commissioner of Education." Fla.

Admin. Code R. 6B - 4.009(1)(a). Florida Administrative Code Rule

6B - 4.009(1)(a) provides that such testimony "may" be presented

in establishing "an authoritative decisi on in an individual

case." This Administrative Law Judge determines that no such

testimony is required in the instant case.

COPIES FURNISHED:

Eugene K. Pettis, Esquire

Debra Potter Klauber, Esquire

Haliczer Pettis & Schwamm, P.A.

One Financial Plaza, 7 th Floor

100 Southeast Third Avenue

Fort Lauderdale, Florida 33394

Steve Rossi, Esquire

Travis Stock, Esquire

Law Offices of Steve Rossi, P.A.

533 Northeast Third Avenue, Suite 2

Fort Lauderdale, Florida 33301

Dr. Eric J. Smith, Commissioner

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Deborah K. Kearney, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Mr. James F. Notter, Superintendent

Broward County School District

600 Southeast Third Avenue

Fort Lauderdale, Florida 33301 - 3125

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of t his recommended order. Any exceptions

to this recommended order should be filed with the agency that

will issue the final order in this case.