11-003339TTS Manatee County School Board vs. Michele Gabriele Status: Closed Recommended Order on Thursday, December 8, 2011.

Summary: Petitioner established just cause to suspend Respondent and return her to an annual contract.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MANATEE COUNTY SCHOOL BOARD , )

)

Petitioner , )

)

vs. ) Case No. 11 - 3339TTS

)

MICHELE GABRIELE , )

)

Respondent . )

)

RECOMMENDED ORDER

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

on October 6, 2011, in Bradenton, Florida, before Administrative

Law Judge Lynne A. Quimby - Pennock of the Division of

Administrative Hearings (Division).

APPEARANCES

For Petitioner: Erin G. Jackson, Esquire

Chris Bentley, Esquire

Thompson, Sizemore, and Gonzalez, P.A.

Post Office Box 639

201 North Franklin Street, Suite 1600

Tampa, Florida 33 602

For Respondent: Melissa C. Mihok, Esquire

Kelly and McKee, P.A.

1718 East Seventh Avenue, Suite 301

Post Office Box 75638

Tampa, Florida 33675 - 0638

STATEM ENT OF THE ISSUE

The issue in this case is whether Petitioner has just cause

to suspend Respondent for 15 days without pay and return her to

an annual contract.

PRELIMINARY STATEMENT

By letter dated June 3, 2011, Tim McGonegal, as

superintendent of the M anatee County School District (School

District ) , notified Respondent, Michele Gabriele (Ms. Gabriele) ,

that he intended to recommend to the Manatee County School Board

(School Board) her suspension without pay for a period of

15 days from employment and he r return to an annual contract for

employment as a teacher for the reasons set forth in an

Administrative Complaint (AC) served with the letter. The AC

alleged that Ms. Gabriele engaged in misconduct and gross

insubordination in violation of several cited statutes, rules or

School Board policies by: failing to make reasonable efforts to

protect students from conditions harmful to learning and/or

harmful to the student's mental and/or physical health and/or

safety; failing to ensure that students were not intentionally

exposed to unnecessary embarrassment or disparagement; and/or

exhibiting gross insubordination or willful neglect of duties

through the intentional refusal to obey a direct order,

reasonable in nature, and given by a person in authority. The

AC asserted that these alleged violations provided just cause to

discipline Ms. Gabriele.

Ms. Gabriele timely requested an administrative hearing to

contest the allegations in the AC. On July 6, 2011, the case

was forwarded to the Division for assignment of an

Administrative Law Judge to conduct the hearing.

Pursuant to s ection 1012.33(6)(a)2., Florida Statutes

(2011) , 1/ the parties were entitled to proceed to final hearing

within 60 days after Ms. Gabriele's request for an

administrative hearing was rece ived. The parties jointly waived

the 60 - day hearing provision, and the final hearing was

scheduled for October 6 and 7, 2011. Only one day, October 6,

2011, was necessary to conduct the hearing.

Prior to the final hearing, the School Board filed a motion

to amend the AC through the addition of an allegation that , on

at least two occasions during the school year, Ms. Gabriele

confronted students regarding complaints made to the school

principal. On September 29, 2011, a telephonic hearing was

conducted wi th both parties represented. An Order was entered

granting the motion to amend the AC (now known as AAC) and

specifically allowing Ms. Gabrielle to have three students and

their parents testify at the hearing.

Both parties executed a Joint Pre - hearing Sti pulation in

which they stipulated to certain facts. To the extent relevant,

those facts have been incorporated into this Recommended Order

at paragraphs 1 through 8 below.

At the final hearing, the parties jointly offered the

following students' testimoni es via deposition: B.G., D.M.,

D.R., E.R. , and C.W. The School Board presented the testimony

of Joshua Bennett, Barbara Twinem, Debra Horne, and parent, E.B.

The School Board offered the following students' testimony via

deposition: G.A., A.B., J.D., a nd B.J. Petitioner 's Exhibits 1

through 3 and 7 through 17 were received into evidence.

Ms. Gabriele testified on her own behalf. Ms. Gabriele provided

the following students' testimony via deposition: N.A., S.M.,

and J.A. Respondent's Exhibits 1 throu gh 14 were received into

evidence.

The Transcript was filed on October 20, 2011. By agreement

of the parties, their respective p roposed r ecommended o rders

(PROs) were due ten days after the T ranscript was filed. Prior

to October 30 , 2011 , the parties fil ed a joint motion for an

extension of time in which to file their respective PROs. The

motion was granted. Both parties timely filed their PROs , and

each has been considered in the preparation of this Recommended

Order.

FINDINGS OF FACT

1. Ms. Gabriele has been employed by the School Board

since October 13, 1997. As a member of the School Board's

instructional staff, Ms. Gabriele's employment was subject to

section 1012.33, which provides that her employment will not be

suspended or terminated except f or just cause.

2. During the 2010 - 2011 school year, Ms. Gabriele was a

teacher at Bashaw Elementary School (Bashaw).

3. As a teacher, Ms. Gabriele was required to abide by all

Florida Statutes which pertain to teachers, the Code of Ethics

and the Princip les of Conduct of the Education Profession in

Florida, and the Policies and Procedures Manual of the School

Board.

4. On February 17, 2011, an Office of Professional

Standards (OPS) file was opened regarding Ms. Gabriele based

upon allegations that , on Fe bruary 9, 2011, Ms. Gabriele asked a

teacher's aide, Brenda Twinem (Ms. Twinem), in the presence of

students, " Can I kill a kid today? " , and , on February 16, 2011,

Ms. Gabriele called a female student to the front of the

classroom and yelled at her in the presence of other students

and a parent.

5. On April 18, 2011, another OPS file was opened

regarding Ms. Gabriele based upon an allegation that she made

intentional contact with a witness (Ms. Twinem) who was involved

in a recent OPS investigation into th e alleged misconduct of

Ms. Gabriele.

6. On April 19, 2011, the School Board notified

Ms. Gabriele of its intent to place her on paid administrative

leave pending the OPS investigation.

7. On June 3, 2011, the superintendent notified

Ms. Gabriele of his intent to recommend the suspension of her

employment for 15 days without pay, the dates of which to be

determined by her principal, and a return to annual contract

status.

8. The June 2011 AC notified Ms. Gabriele of the School

Board's intent to suspend her employment and set forth the basis

of the superintendent 's recommendation for suspension. In the

AC, the School Board charged that Ms. Gabriele had engaged in

actions which constituted just cause under Section 6.11 of the

Policies and Procedures Manua l of the School Board . These

actions included: immorality, misconduct in office, corporal

punishment, excessive force, and violation of Florida

Administrative Code Rules 6B - 1.006(3)(a) and 6B - 1.006(3)(e).

9. Joshua Bennett (Principal Bennett) became the principal

of Bashaw in September 2010. Among his many other duties during

the 2010 - 2011 school year, Principal Bennett was responsible for

the supervision of the Bashaw teachers, including Ms. Gabriele,

who was a fifth - grade teacher.

10. Ms. Gabriele's class size fluctuated from 18 to

22 students during the 2010 - 2011 school year. It was noted

that , during the math instruction period , there were changes in

the number of students in her classroom, and it changed when

Principal Bennett moved a student out of her class.

11. Principal Bennett received some parent complaints and

concerns regarding Ms. Gabriele shortly after he became Bashaw's

principal. Based on these complaints, Principal Bennett

collected information from the parents and decided to have an

informal conversation with Ms. Gabriele. He also determined to

walk through her classroom more frequently during the school

year. Further, Principal Bennett recommended to Ms. Gabriele

that she take so me behavior management classes.

12. Ms. Gabriele ha d the services of a paraprofessional

(a/k/a a teacher's aide), Ms. Twinem , for a specific amount of

time (40 to 50 minutes) during a particular day each week.

While working for Ms. Gabriele as a paraprofessional, Ms. Twinem

would check off homework, sort papers, grade papers, or work

with groups of students as she was directed.

13. In February 2011, Ms. Twinem approached Ms. Gabriele

to provide her information. There were several students engaged

in conversations in close proximity to Ms. Gabriele as she sat

at her desk. According to Ms. Twinem, Ms. Twinem was standing

beside Ms. Gabriele's desk when Ms. Gabriele looked at her and ,

in a frustrated tone , stated , " Can I kill a kid? " (Gabriele's

Statement). Ms. Twinem was speechless because she thought it

was inappropriate for Ms. Gabriele to make that statement in

front of students. Ms. Twinem told Principal Bennett of

Gabriele's Statement shortly thereafter. Ms. Twinem wrote her

own account of Gabriele's Statement. Ms. Twinem's account

contained her th ought that Ms. Gabriele was joking, but she

(Ms. Twinem) did not " know how it [ Gabriele's Statement ] was

interpreted by the students. " Clearly, at that time , Ms. Twinem

had concerns about what the students thought of Gabriele's

Statement.

14. Ms. Gabriel e admitted to making Gabriele's Statement.

At hearing, she testified that , at the time she made the

statement, the students were working with their partners , and it

was loud in the classroom. After a student had asked her the

same question several times, Ms. Gabriele made Gabriele's

Statement. Although Ms. Gabriele testified that she was not

frustrated, mad or upset when she made the statement, that she

just made the statement " off - the - cuff kind of thing, " this is

not credible. According to Ms. Gabriele , the student's question

involved a long - standing classroom practice of the students

placing their completed assignments in a pink bin. If the

student was indeed asking or questioning this long - standing

practice, it would be natural for some type of frust ration or

exasperation to be expected. Ms. Gabriele conceded that , even

if Gabriele's Statement had been made in jest or in a joking

manner, it was inappropriate.

15. Also in February 2011, Principal Bennett had a

specific complaint involving a parent's (E.B.) observation

during a visit to Ms. Gabriele' s classroom.

16. With Ms. Gabriele's knowledge that she was in the

classroom, E.B. had come to pick up her student and to search

for some misplaced homework in the classroom. E.B. observed a

female studen t (later identified by the initials N.A.) go to the

front of the classroom where Ms. Gabriele was yelling at her.

E.B. described Ms. Gabriele's actions as " . . . really reaming

the kid, . . . And she just didn't seem like she was letting

up, and the chil d was just very distraught. " E.B. observed N.A.

to be " really teary eyed . . . Not in a full cry, but looked

like she would break down. " E.B. thought Ms. Gabriele's

behavior was " pretty harsh , " loud in a real demanding way , and

fierce. E.B testified th at , had Ms. Gabriele been yelling at

E.B.'s student, she " probably would have yanked her in the hall

and had a few words. "

17. E.B. was appalled at Ms. Gabriele's behavior and

reported her observation to Principal Bennett. As a result of

her conversation with Principal Bennett, E.B. followed up with a

letter to the principal detailing what she had witnessed in

Ms. Gabriele's classroom, as well as other observations she had

while chaperoning a school field trip with Ms. Gabriele's class.

E.B. requested to be kept informed of what action was being

taken and volunteered to be in the classroom when her scheduled

permitted.

18. Shortly thereafter , an OPS investigation was opened

regarding Ms. Gabriele. Debra Horne (Ms. Horne) is a specialist

in the OPS. Ms. Horne conducted an investigation of E.B.'s

classroom observation and Gabriele's Statement by interviewing

Ms. Twinem ; 11 students from Ms. Gabriele's class, including

N.A. ; and Ms. Gabriele. Ms. Twinem and the students' statements

were taken on February 18, 2011, making them almost

contemporaneo us with the events.

19. During the OPS interviews with the 11 students, all 11

stated that Ms. Gabriele yells at the students, and one student

said her yelling was " extreme. " Five of the students stated

Ms. Gabri ele embarrassed them or other students by her actions ;

four stated Ms. Gabriele called students different names, such

as " toads, " " toadettes, " " hillbilly, " or " baby " ; and three said

she made them cry or other students cry. During her OPS

interview , N.A. s tated that Ms. Gabriele had made her cry and

that it embarrassed her a lot. N.A. further stated that

Ms. Gabriele yelled at her and other students a lot. 2/

20. During Ms. Twinem's OPS interview regarding Gabriele's

Statement, she described Ms. Gabriele a s being frustrated and

using a frustrated tone when it was spoken. At the hearing

Ms. Twinem also testified that she thought Gabriele's Statement

was made " out of frustration, " but that it was " inappropriate "

nonetheless.

21. Ms. Gabriele's OPS interview occurred on March 17,

2011. Ms. Horne conducted the OPS interview and followed her

standard procedures in telling Ms. Gabriele the substance of the

investigation. Aside from being told what her rights and duties

were regarding the investigation, Ms. Gab riele was also reminded

of the School Board policy regarding her cooperation with the

investigation and her responsibility to not interfere with it or

communicate with any witnesses to the investigation.

Ms. Gabriele's interview included questions about E. B.'s letter,

including E.B.'s classroom observations , and Gabriele's

Statement.

22. Ms. Gabriele confirmed she was aware that E.B.'s

letter was sent " downtown. " Ms. Gabriele maintained that she

thought the only issue in the initial investigation was E.B. 's

letter. This position is thwarted when one reviews her OPS

interview wherein Ms. Gabriele was questioned about both E.B.'s

letter and Gabriele's Statement. Although during the OPS

interview Ms. Gabriele stated she did n o t remember the incident

with N. A. crying, she did admit that if E.B.'s recollection of

the incident with N.A. was correct that she, Ms. Gabriele, could

" have handled it differently " by calling the student off to the

side to discuss the issue. Also, during the OPS interview,

Ms. Gabriel e admitted that Gabriele's Statement was

inappropriate when made to a coworke r in the presence of

students.

23. Ms. Gabriele received a copy of the School Board's

initial OPS investigative report in April 2011. Within that

report, and through Ms. Gabriel e's testimony , she acknowledged

receipt of that investigative file , 3/ which included all the

information obtained during the initial OPS investigation,

including her own interview regarding E.B.'s letter and

Gabriele' s Statement.

24. In Section III of the initial OPS investigative report

(for E.B.'s letter and Gabriele's Statement) and through her

hearing testimony, Ms. Horne detailed her standard routine with

respect to the description given to each witness at the start of

his/her interview. Further, Ms. Horne advised School Board

employees of their obligation to cooperate with the

investigation as well as the School Board's Policy 6.13. 4/

Ms. Gabriele testified that she was aware of the policies.

25. On Monday morning, April 18, 2011, when Ms. Twinem

re ported to Ms. Gabriele's classroom to sort papers and check

homework , she was subjected to questions by Ms. Gabriele

regarding whether or not Ms. Twinem had, in fact, reported

Gabriele's Statement to Principal Bennett. Ms. Gabriele

testified she found out that Ms. Twinem was upset or bothered by

Gabriele's Statement during one of her meetings with Principal

Bennett. However, neither her testimony nor Principal Bennett's

testimony reflected upon any meeting between those two on that

Monday morning or the w eek prior for Ms. Gabriele to make that

connection. Further, as Ms. Gabriele testified, she " obviously "

knew that Ms. Twinem was the person who reported Gabriele's

Statement, as she was the only other adult in the classroom at

the time it was uttered.

26. Ms. Twinem testified that she felt like " a deer in the

headlights " when Ms. Gabriele asked her about reporting

Gabriele's Statement. Ms. Twinem admitted to Ms. Gabriele that

she had reported Gabriele's Statement to the principal " a long

time ago. " Ms. Twinem testified she was " anxious and nervous

and like just didn't feel good " when Ms. Gabriele confronted

her. Ms. Twinem reported this first encounter to Principal

Bennett because she thought it should not have occurred .

27. Later that same morning, Ms . Gabriele came into

Ms. Twinem's office and told Ms. Twinem that she shouldn't tell

anyone about their prior conversation because Ms. Gabriele could

get in trouble. Ms. Twinem reported this second e ncounter to

Principal Bennett.

28. Still , later that sa me day when Ms. Twinem was in her

office, Ms. Gabriele stood at the door and said that Ms. Twinem

had gotten her (Ms. Gabriele) in trouble, because she had

reported the second contact to the principal. Ms. Twinem

reported this third contact to Principal B ennett.

29. Principal Bennett testified that , after Ms. Twinem

reported the first contact by Ms. Gabriele , he conferred with

the OPS personnel as to what he should do. Based on direction

from OPS, Principal Bennett hastily attempted to arrange a

meeting with Ms. Gabriele to give her a verbal directive about

contacting any witnesses involved with the investigation.

Before the meeting could occur, Ms. Twinem reported that

Ms. Gabriele had contacted her again.

30. Prior to the third encounter, Principal Be nnett issued

a verbal directive to Ms. Gabriele about contacting any

witnesses involved in the investigation. His directive included

an admonishment " to cease and desist talking to the other

employees about the OPS matter. " Principal Bennett recounted

th at he t old Ms. Gabriele that she was " not to talk to any other

employees about the open investigation. "

31. Ms. Gabriele admitted she spoke with Ms. Twinem three

times on April 18 , 2011 . Ms. Gabriele claimed that she did not

understand who she could or c ould not talk to with respect to

the investigation and that she only wanted to apologize for

making Ms. Twinem upset about Gabriele's Statement .

Ms. Gabriele admitted she knew it was Ms. Twinem who reported

Gabriele's Statement to the principal. In the ev ent

Ms. Gabriele had questions about who she could or could not talk

to, she had the opportunity to ask either Principal Bennett or

Ms. Horne. Such dialogue apparently did not occur.

CONCLUSIONS OF LAW

32. The Division has jurisdiction over the parties a nd the

subject matter of this proceeding. §§ 120.569, 120.57(1), &

1012.34(3)(d), Fla . Stat .

33. In this proceeding, the School Board seeks to

discipline Ms. Gabriele's employment by instituting a 15 - day

suspension without pay and return ing Ms. Gabriele to an annual

contract. The School Board bears the burden of proof, and the

standard of proof is by a preponderance of the evidence.

§ 120.57(1)(j) , Fla. Stat. ; McNeill v. Pinellas Cnty. Sch. Bd. ,

678 So. 2d 476, 477 (Fla. 2d DCA 1996); Dileo v. Sch. Bd. of

Dade Cnty. , 569 So. 2d 883 (Fla. 3d DCA 1990).

34. A " preponderance of the evidence " is the " greater

weight of the evidence, " or evidence that more likely than not

tends to prove a certain proposition. Gross v. Lyons , 763 So.

2d 276, 280 n.1 (Fla. 20 00).

35. Section 1012 .01(2)(a) provides:

As used in this chapter, the following terms

have the following meanings:

* * *

(2) INSTRUCTIONAL PERSONNEL. --

" Instructional personnel " means any K - 12

staff member whose function 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 personnel

are the following K - 12 personnel:

(a) Classroom teachers. -- Classroom teachers

are staff members assigned the professional

activity of instructing students in courses

in classroom situations, including basic

instruction, exceptional student education,

career education, and adu lt education,

including substitute teachers.

36. Section 1012.27(5) provides:

The district school superintendent is

responsible for directing the work of the

personnel, subject to the requirements of

this chapter, and in addition the district

school supe rintendent shall perform the

following:

* * *

(5) SUSPENSION AND DISMISSAL. -- Suspend

members of the instructional staff and other

school employees during emergencies for a

period extending to and including the day of

the next regular or special meeting of the

district school board and notify the

district school board immediately of such

suspension. When authorized to do so, serve

notice on the suspended member of the

instructional staff of charges made against

him or her and of the date of hear ing.

Recommend employees for dismissal under the

terms prescribed herein.

37. Section 1012.22 provides , in pertinent part:

The district school board shall:

(1) Designate positions to be filled,

prescribe qualifications for those

positions, and provid e for the appointment,

compensation, promotion, suspension, and

dismissal of employees as follows, subject

to the requirements of this chapter:

* * *

(f) Suspension, dismissal, and return to

annual contract status. -- The district school

board sha ll suspend, dismiss, or return to

annual contract members of the instructional

staff and other school employees; however,

no administrative assistant, supervisor,

principal, teacher, or other member of the

instructional staff may be discharged,

removed, or returned to annual contract

except as provided in this chapter.

38. Section 1012.33 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 sh all 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 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.

* * *

(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 board

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, t he employee

shall be immediately reinstated, and his or

her back salary shall be paid. If 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 hear ing shall

be conducted at the district school board's

election in accordance with one of the

following procedures:

1. A direct hearing conducted by the

district school board within 60 days after

receipt of the written appeal. The hearing

shall be conduc ted in accordance with the

provisions of ss. 120.569 and 120.57 . A

majority vote of the membership 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 termination of employment; or

2. A hearing conducted by an administrative

law judge assigned by the Division of

Administrative Hearings of the Departme nt of

Management Services. The hearing shall be

conducted within 60 days after receipt of

the written appeal in accordance with

chapter 120. The recommendation of the

administrative law judge shall be made to

the district school board. A majority vote

o f the membership of the district school

board shall be required to sustain or change

the administrative law judge's

recommendation. The determination of the

district school board shall be final as to

the sufficiency or insufficiency of the

grounds for ter mination 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.

39. Section 1012.40 provides , in pertinent part:

(2)(c) In the event a district school

superintendent seeks termination of an

employee, the district schoo l board may

suspend the employee with or without pay.

The employee shall receive written notice

and shall have the opportunity to formally

appeal the termination. The appeals process

shall be determined by the appropriate

collective bargaining process or b y district

school board rule in the event there is no

collective bargaining agreement.

40. School Board Policy 6.11(1) provides:

Any employee of the School Board may be

temporarily suspended, with or without pay,

or permanently terminated from employmen t,

for just cause including, but not limited

to, immorality, misconduct in office,

incompetence, gross insubordination, willful

neglect of duty, drunkenness, or conviction

of crime involving moral turpitude,

violation of the Policies and Procedures

Manual of the School District of Manatee

County, violation of any applicable Florida

Statute, violation of the Code of Ethics and

the Principles of Professional Conduct of

the Education Profession in Florida.

41. Rule 6B - 1.006 provides , in pertinent part:

(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 intent ionally expose a

student to unnecessary embarrassment or

disparagement.

42. Florida Administrative Code Rule 6B - 4.009 provides , in

pertinent part:

The basis for charges upon which dismissal

action against instructional personnel may

be pursued are set fo rth in Section 231.36,

Florida Statutes. The basis for each of

such charges is hereby defined:

* * *

(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 t he 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.

(4) Gross insubordination or willful

neglect of dutie s is defined as a constant

or continuing intentional refusal to obey a

direct order, reasonable in nature, and

given by and with proper authority.

43. Gross insubordination is " a constant or continuing

intentional refusal to obey a direct order, reasonab le in

nature, and given by and with proper authority. " Dolega v. Sch.

Bd. of Miami - Dade Cnty . , 840 So. 2 d 445, 446 (Fla. 3d DCA 2003).

44. Rule 6B - 1.001 provides:

(1) The educator values the worth and

dignity of every person, the pursuit of

truth, devot ion to excellence, acquisition

of knowledge, and the nurture of democratic

citizenship. Essential to the achievement

of these standards are the freedom to learn

and to teach and the guarantee of equal

opportunity for all.

(2) The educator's primary prof essional

concern will always be for the student and

for the development of the student's

potential. The educator will therefore

strive for professional growth and will seek

to exercise the best professional judgment

and integrity.

(3) Aware of the impor tance of maintaining

the respect and confidence of one's

colleagues, of students, of parents, and of

other members of the community, the educator

strives to achieve and sustain the highest

degree of ethical conduct. ( e mphasis

added) .

45. School Board Po licy 6.13 provides , in pertinent part:

Policy

The Office of Professional Standards shall

conduct investigations into alleged employee

misconduct or other matters concerning the

school district and make recommendations as

to the disposition of such complai nts or

matters and report legally sufficient

complaints to the Education Practices

Commission.

* * *

(3) Subjects of an Investigation:

(a) Any employee who is the subject of an

investigation shall not directly or

indirectly contact, intimidate , threaten,

harass or retaliate against any witness or

complaining person related to or associated

with the investigation, or in any way

interfere with an investigation.

* * *

(5) Conclusion of Investigation:

(a) At the conclusion of the inves tigation

and determination of appropriate action, a

copy of the contents of the investigation

file will be offered to the employee as

provided in 5B or 5C below and said contents

will become part of the employee's personnel

file and a public record 10 days after

offering or providing said copies to the

employee.

(b) The contents of the investigation file

will be numbered sequentially. The employee

will be offered a complete copy of the

investigative file and will sign for receipt

of the file or sign a wa iver of the right to

receive a copy. Signature only signifies

receipt and does not necessarily indicate

agreement with its content.

46. The statute, rules , and S chool B oard policies which

provide the grounds for the discipline of Ms. Gabriele's

employme nt are penal in nature; therefore , they must be

construed in favor of the employee. Rosario v. Burke , 605 So.

2d 523, 524 (Fla. 2d DCA 1992).

47. District school boards have the authority to " operate,

control, and supervise all free public schools in the ir respective

districts and may exercise any power except as expressly

prohibited by the State Constitution or general law. "

§ 1001.32(2), Fla. Stat., implementin g Art. IX, § 4(b), Fla.

Const.

48. The s uperintendent is authorized to suspend

instructiona l staff members and to recommend to the School Board

that an employee of the School Board be disciplined. The School

Board, in turn, has the authority to suspend or terminate School

Board employees pur suant to section 1012.22(1)(f).

49 . Pursuant to secti on 1012.01(2)(a), Ms. Gabriele is a

" classroom teacher, " who may be terminated by the School Board

pursuant to standards provided in the applicable collective

bargaining agreement. The undersigned did not receive into

evidence a copy of the applicable col lective bargaining agreement,

nor was there any testimony about it.

50 . The School Board has discretion in defining what

constitutes " just cause " for taking disciplinary action against

employees, including suspension or termination. See Dietz v. Lee

Cnty . Sch. Bd. , 647 So. 2d 217, 218 (Fla. 2d DCA 1994) (Blue, J.

concurring); See also § 1012.23(1) , Fla. Stat. (authorizing

district school boards to adopt rules governing personnel matters,

except as otherwise provided by law or the State Constitution).

51. The School Board has exercised its discretion by

promulgating School Board Policy 6.11(1) , which provides that

any employee may be disciplined for just cause, which among

other things includes but is not limited to " misconduct in

office, . . . gross insub ordination, . . . violation of the

Policies and Procedures Manual of the School District of Manatee

County, violation of any applicable Florida statute, [or]

violation of the Code of Ethics and the Principles of Professional

Conduct of the Education Profes sion in Florida. "

52. The School Board proved by a preponderance of the

evidence that Ms. Gabriele violated rule 6B - 1.006(3)(a) when she

uttered the words " Can I kill a kid? " to Ms. Twinem in the

classroom. Whether said in frustration, anger or jest, it makes

no difference, there is no place for this language in a school

setting.

53. The School Board proved by a preponderance of the

evidence that Ms. Gabriele violated rule 6B - 1.006(3)(e) when she

yelled at student N.A., in the presence of the classroom , and N.A.

cried and was embarrassed by the incident. Additionally ten other

students stated that Ms. Gabriele yells at them and/or embarrasses

them on a near daily basis. This behavior is unacceptable to a

c lassroom learning environment.

54. Ms. Gabriele 's conduct is an affront to r ule 6B -

1.001(2), in that she did not exercise the best professional

judgment or maintain her integrity with respect to N.A. and

Gabriele's Statement.

55. The School Board's next allegation is that

Ms. Gabriele violated School Board Policy 6.13, when she talked

with a witness involved with an OPS investigation and continued

to talk with a witness after being verbally advised to stop.

During her initial OPS interview, Ms. Gabriele was informed as

to her obligations and rights wi th respect to the investigation,

including who she could or could not contact. The testimony

substantiates that Ms. Gabriele knew Ms. Twinem had reported

Gabriele's Statement to the principal when Ms. Gabriele was

interviewed by OPS. For approximately a month, Ms. Gabriele did

not approach Ms. Twinem to apologize or discuss the

investigation. After receipt of the OPS investigative report in

April, Ms. Gabriele then spoke with Ms. Twinem not once, not

twice, but three times, with the third time following a verbal

directive from her principal to stop all contact. Even giving

Ms. Gabriele the benefit of the doubt that she did not

understand who she could or could not contact regarding the

investigation, the fact that she approached Ms. Twinem twice on

the m orning of April 18 , 2011 , and again after Principal Bennett

specifically told her not to talk with any witnesses to the

investigation substantiates an intentional refusal to obey a

direct order, given by her supervisor.

56. The School Board proved that Ms . Gabriele's actions

with respect to contacting Ms. Twinem, a witness in an OPS

investigation , constituted gross insubordination. As found

above, the more credible evidence established that Ms. Gabriele

intentionally refused to comply with the principal's directive

that she refrain from talking with or approaching Ms. Twinem.

Adequate warning was provided not only by Principal Bennett, but

also Ms. Horne. Instead of waiting for the investigation to be

completed, Ms. Gabriele not once or twice, but three times ,

contacted a wi tness about the investigation.

57. The AAC also included a charge that Ms. Gabriele had

engaged in " misconduct in office. " School Board Policy 6.11

uses, but does not define " misconduct in office. " That phrase

is defined for similar purposes in r ule 6B - 4.009(3) and that

rule definition is instructive. " Misconduct in office " is

defined as a violation of the Code of Ethics of the Education

Profession or the Principles of Professional Conduct for the

Education Profession in Florida, wh ich is so serious as to

impair the individual's effect iveness in the school system.

58. The School Board proved by a preponderance of the

competent, substantial, and more credible evidence that there is

ample just cause for Ms. Gabriele' s discipline.

RECO MMENDATION

Based upon the foregoing Findings of Fact and C onclusions

of Law, it is hereby

RECOMMENDED that Manatee County School Board enter a final

order suspending Ms. Gabriele for 15 days without pay and

retur ning her to an annual contract.

DONE AND EN TERED this 8 th day of December , 2011 , in

Tallahassee, Leon County, Florida.

S

LYNNE A. QUIMBY - PENNOCK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Fl orida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 8 th d ay of December, 2011 .

ENDNOTES

1/ Unless otherwise noted all statutory references are to the

Flor ida Statutes (2011). It is noted that the events giving

rise to this disciplinary action occurred in the first half of

2011, prior to any statutory changes becoming effective.

2/ N.A.'s deposition was taken on September 16, 2011,

approximately seven mon ths after the incident. N.A.'s

recollection of events obtained during the OPS investigation

interview in February 2011 is more credible.

3/ Ms. Gabriele testified that her union representative received

the initial OPS report and provided it to her withi n a few days

of April 4, 2011. It is inconceivable that a professional,

subject to such an investigation, would fail to read the

investigative report to understand the allegations that were

being examined.

4/ The same routine is described in the second OPS investigative

report dated May 5, 2011.

COPIES FURNISHED :

Melissa C. Mihok, Esquire

Kelly and McKee, P.A.

1718 East Seventh Avenue, Suite 301

Post Office Box 75638

Tampa, Florida 33675 - 0638

Erin G. Jackson, Esquire

Chris Bentley, Esquire

Thompson, Sizemore, and Gonzalez, P.A.

Post Office Box 639

201 North Franklin Street, Suite 1600

Tampa, Florida 33602

Charles M. Deal, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Gerard Robinson, Commissioner

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Tim McGonegal, Superintendent

Manatee County School Board

215 Manatee Avenue, West

Bradenton, Florida 3420 5

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

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 O rder in this case.