12-002083TTS Broward County School Board vs. Christopher Marshall Status: Closed Recommended Order on Wednesday, August 28, 2013.

Summary: Petitioner proved, by a preponderance of the evidence, that Respondent was guilty of gross insubordination.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BROWARD COUNTY SCHOOL BOARD ,

Petitioner ,

vs. Case No. 12 - 2083TTS

CHRISTOPHER MARSHALL ,

Respondent .

/

RECOMMENDED ORDER

Pursuant to notice, a heari ng was conducted in this case

pursuant to sections 120.569 and 120.57(1), Florida Statutes, 1/

before Jessica E. Varn, a duly - designated administrative law

judge of the Division of Administrative Hearings (DOAH). The

hear ing was held on May 1, 2013 , by vid eo teleconference at sites

in Lauderdale Lakes and Tallahassee, Florida.

APPEARANCES

For Petitioner: Paul Gibbs, Esquire

Law Offices of Carmen Rodriguez, P.A.

Suite 411

15715 South Dixie Hi ghway

Palmetto Bay, Florida 33157

For Respondent: Mark F. Kelly, Esquire

Kelly and McKee, P.A.

Suite 301

1718 East Seventh Avenue

Post Office Box 75 638

Tampa, Florida 33675 - 0638

STATEMENT OF THE ISSUE

Whether just cause exists to suspend Respondent without pay

for a total of ten days, based on two separate incidents.

PRELIMINARY STATEMENT

On May 30, 2012, Broward County School Board (School Board)

notified Mr. Marshall of its intent to suspend him without pay

for three work days. Mr. Marshall timely requested an

administrative hearing, and the School Board referred the matter

to DOAH on June 14, 2012. The hearing was original ly scheduled

for August 31, 2012. Based upon three requests from the parties,

the hearing was rescheduled for October 15, 2012, then for

November 9, 2012, and then for December 19, 2012. The case was

then placed in abeyance by a joint request from the pa rties,

pending the School Board ' s pursuit of additional allegations

against Mr. Marshall.

On February 19, 2013 , the School Board sought leave to file

an Amended Administrative Complaint, which was granted without

objection. The A mended Administrative Comp laint sought to impose

a seven - day suspension, in addition to the three - day suspension,

based on allegations of gross insubordination, misconduct in

office, and willful neglect of duty. The hearing was once again

rescheduled for May 1 and 2, 2013 .

The Amended Administrative Complaint charged

Mr. Marshall with violations of Florida Admi nistrative

Code Rule 6A - 5.056(2)(e), alleging that Mr. Marshall ' s acts

constitute misconduct in office through " behavior that reduces

the teacher ' s ability or his or he r colleagues ' ability to

perform duties " ; rule 6A - 5.056(2)(b) , alleging miscon duc t in

office through violations of the Principles of Professional

Conduct for the E d ucation Profession in Florida as adopted in

rule 6B - 1.006; rule 6A - 5.056(2)(a), alleging mis conduct in office

through violations of the Code of Ethics of the Education

Profession in Florida as adopted in rule 6B - 1.001 ;

rule 6B - 4.009(4) and rule 6A - 056(4) , 2/ alleging that Mr.

Marsh all ' s actions constitute gross insubordination; and 6A -

5.065(5), a lleging willful neglect of duty.

At the hearing, the School Board presented the testimony of

Shawn Aycock, Arnita Williams, and Todd LaPace . Pe titioner ' s

Exhibits 1 - 29 were admitted into evidence pursuant to stipulation

of the parties. Respondent testifi ed on his own behalf, and

presented the testimony of K.L. Respondent also introduced the

deposition testimony of M.D . , and Respondent ' s E xhibits 1 - 6 were

admitted into evidence pursuant to stipulation of the parties .

The one - volume Transcript was filed wi th DOAH on

May 31, 2013 . Respondent filed an Unopposed M otion for Extension

of T ime to S ubmit Proposed Recommended O rders, which was granted.

Both parties then filed proposed recommended o rders, which were

considered in the preparation of this Recommend ed Order.

FINDING S OF FACT

1. Mr. Marshall has been a teacher in Broward County for

approximately 20 years.

2. At all times pertinent to the instant case, Mr. Marshall

was employed as a math teacher at McArthur High School. Prior to

working at McArthu r High School he had taught math at Hollywood

Hills High School, and then at Flanagan High School.

3. During his tenure at Hollywood Hills High School,

Mr. Marshall was placed on a Performance Development Plan (PDP) ,

which required Mr. Marshall to remedi ate and reteach math lessons

in an e ffort to obtain 70 percent comprehension in his classes.

4. During his tenure at Flanagan High School, Mr. Marshall

was once again placed on a PDP, which included the same

requirements as the previous PDP at Hollywood H ills.

5. Mr. Marshall was next transferred to McArthur High

School for the 2007 - 2008 school year. Because Mr. Marshall had

not completed the second PDP while at Flanagan High School , he

was placed on a PDP and 90 - day probationary period to start his

tenu re at McArthur High School . He successfully completed the

PDP.

6. During the fall of 2010, Mr. Marshall complained about

Mr. Jose Gonzalez, the a ssist ant p rincipal who supervised the

math department at the time. Mr. Marshall was then permitted to

choos e which assistant p rincipal would supervise him. He chose

Shawn Aycock, who at the time worked as the assistant p rincipal

for the language arts department.

7. On November 5, 2010, Ms. Aycock observed Mr. Marshall in

his classroom. Ms. Aycock noticed the following deficiencies:

Mr. Marshall did not have the students start an activity as soon

as the students entered the room, he had the students perform a

task that had no educational value and was not tied to the day ' s

activity, he gave inappropriate resp onses to students ' questions,

the students were confused with the lesson, he did not provide

proper feedback to the students, he did not provide complete

answers to student questions, he used vo cabulary that was beyond

the students ' ability , he gave the st udents a sample problem but

did not work through the problem with the students, and he made

no attempt to re - teach the lesson or remediate in any way.

8. On Novem ber 16, 2012, Ms. Aycock met with Mr. Marshall

to discuss the observation. Mr. Marshall was c onfrontational,

denied that the observation of hers was accurate, and accused

Ms. Aycock of lying. Ms. Aycock had observed many teachers

before she observed Mr. Marshall, but had never seen the need to

write up notes after a meeting with a teacher . But after her

meeting with Mr. Marshall, she did . Since then, she has no t seen

the need to write notes arising from a meeting with any other

teacher.

9. During the meeting, Mr. Marshall indicated that he would

not water down his instruction for any student, and that he would

have no problem with observations that were done ethically and

did not consist of lies that were made by unqualified

individuals.

10 . On November 19, 2010, Ms. Aycock provided Mr. Marshall

with a memo detailing her concerns and ex pectat ions:

Concerns:

Ư Students were asked upon entering the

class to copy the day ' s objective.

Ư Students did not understand all of

the math vocabulary used to explain the

lesson.

Ư A student seeking further explanation

on a problem was told, " If you didn ' t get

it not to wo rry. It will not be on the

quiz. "

Ư Students were referred back to their

notes when they questioned the lesson.

Ư Only two math problems were worked

during a half an hour review.

Expectations:

Ư All student activities should be of

value and tied to t he day ' s activity.

Ư Teacher will use math vocabulary

consistent with student ability level

and explain lessons in multiple ways.

Ư Insinuating that lessons are learned

only for a test is inappropriate. All

student questions will be answered and

explain ed in full.

Ư During a review a minimum of five

review problems will be worked per

concept.

Additionally, we discussed the importance of

you checking your email. I am directing you

to check your email prior to the conclusion

of first period and again pr ior to the

conclusion of fourth p eriod. It is important

for you to know and understand that these are

the same issues that you have had in previous

years. Your pr evious Performance D evelopment

Plans (PDPs) have addressed these same

concerns. You have re ceived hours upon hours

of assistance in these areas. My expectation

is that you will follow the directives listed

above immediately. If you feel you need

assistance, please see me.

11. Next, Ms. Aycock requested that Principal LaPace, who

had an exte nsive math background, observe Mr. Marshall. He did

so on January 7, 2011. Mr. LaP ace ' s extensive notes regarding

the observation detail Mr. Marshall ' s failure to have a proper

lesson plan, hi s scattered presentation manner, and his

ineffective managemen t of the classroom . Mr. LaPace prepared a

memo detailing his concerns and expectations:

Concerns:

Ư Students were not given clear

directions causing confusion among the

students.

Ư The lesson was not sequential.

Ư The objective on the board did not

match the lesson being taught.

Ư Modeling sample problems were

ineffective.

Expectations:

Ư Always give clear and concise

directions to students.

Ư Plan and deliver lessons so that are

presented in sequential order.

Ư The lesson presented in class will

align with the objective posted for the

day.

Ư During a lesson a minimum of three

sample problems w ill be worked per

concept.

It is important for you to know and

understand that these are the same issues

that you have had in previous years. Your

previous Performance Development Plans (PDPs)

have addressed these same concerns. You have

received adequa te assistance in these areas.

My expectation is that you will follow the

directives listed above starting immediately.

12. When Mr. LaPace met with Mr. Marshall regarding his

observation, Mr. Marshall disagreed with Mr. La Pace ' s

observations, but did n ot indicate why he did. Mr. Marshall also

declined all types of support from other staff members.

13. The administration asked Mr. Marshall to provide

documentation of remediation and retesting of students if he had

over 35% of his students earning Ds or F s. The documentation

needed to be specific information regarding times that

Mr. Marshall sat down with students in small group settings, or

phone logs regarding communication with parents, or any type of

specific information regarding steps that Mr. Marshall was taking

to rai se the level of success of his students.

14. Mr. Marshall was never observed remediating or

re - teaching, despite the fact that all teachers were asked to

allot the final 30 minutes of a class to these activities.

15. On Februar y 17, 2011, Ms. Aycock, Mr. Gonzalez , and Mr.

Marshall met for a Pre - Disciplinary Meeting. Mr. Marshall was

given a verbal reprimand for insubordination. In the memorandum

which documented the verbal reprimand, Ms. Aycock directed

Mr. Marshall to:

1. R educe the number of students in your

class receiving D ' s [sic] and F ' s [sic] to at

or below thirty - five percent through

re - teaching and remediating of those

students.

2. Check your school email throughout the

day, a minimum of twice per day.

3. Follow all directives given by and with

proper authority.

Failure or refusal to follow the above

directives will result in further

disciplinary action.

16. On September 20, 2011, Ms. Aycock again met with

Mr. Marshall to discuss concerns and expectations, an d also to

conduct a Pre - Disciplinary Meeting, wherein Mr. Marshall was

issued a second verbal reprimand for insubordination.

17. On September 22, 2011, Ms. Aycock wrote a memorandum

detailing the conversation during the meeting, and reminding

Mr. Marsh all that from June 2010 through September 2011, he had

attended seven meetings regarding the high percentage of students

in his classes that were receiving Ds and Fs. At each meeting,

he had been directed to reduce the number of students receiving

Ds and Fs to at or below 35 percent , through remediation and

re - teaching. Because Mr. Marshall had failed to comply with

these directives, and had failed to provide a reason why he

should not be disciplined, he was issued the second verbal

reprimand. He was al so directed to:

1. Reduce the number of students in your

class receiving Ds and Fs to at or below

thirty - five percent through re - teaching and

remediation of those students.

2. Follow all directives given by and with

proper authority.

18. Stemming from the same meeting, Ms. Aycock documented

her concerns and expectations:

Concerns:

Ư You are receiving a large number of

student and parental complaints in

relation to your teaching practices.

Ư Students are not being graded in a

fair and co nsistent manner.

Ư The department grading policy is not

being followed.

Ư Meaningful assignments are not being

given to students.

Ư Students are not receiving corrective

and immediate feedback as it relates to

their assignments.

Expectations:

Ư You will model lessons for students.

Ư You will differentiate instruction to

meet the needs of all the students.

Ư You will develop and implement

rubrics so students have clear

expectations of class participation and

effort requirements.

Ư All assig nments will correlate to the

standards as tested by the Geometry EOC.

Ư Students will receive corrective

feedback within seventy - two hours.

It is important for you to know and

understand that these are the same issues

that you have had in previous years. Your

previous Performance Development Plans (PDPs)

have addressed these same concerns. You have

received adequate assistance in these areas.

My expectation is that you will follow the

directives listed above starting immediately.

19. Around December 2011, Ms. Aycock was promoted to the

position of Principal for a middle school, and Ms. Arnita

Williams became Mr. Marshall ' s supervising Assistant Principal.

20. Ms. Williams and Ms. Aycock once again conducted a

classroom observation of Mr. Marshall, an d Ms. Williams

documented her concerns and expectations as follows:

Concerns:

Ư Students were not given clear

directions causing confusion among the

students.

Ư The lesson was not sequential.

Ư You did not address students '

questions and concerns.

Ư Mo deling sample problems was

ineffective.

Ư You did not provide and use the

correct mathematical vocabulary.

Expectations:

Ư Always give clear and concise

directions to students and check for

understanding.

Ư Plan and deliver lessons so they are

presente d in sequential order.

Ư Students ' questions and concerns need

to be addressed.

Ư Mathematical vocabulary on student ' s

level should be used.

In previous memos additional directives were

given. Below were the following

expectations:

Ư You will develop and implement rubrics

so students have clear expectations of

class participation and effort.

Ư Provide a copy of your participation

r ubric to Ms. Aycock by the close of

business on Friday, September 26, 2011.

Ư Differentiate instruction every day

the la st 30 minutes of class t he [sic]

meet the needs of ask [sic] your

students.

Ư Student will receive corrective

feedback within seventy - two hours on all

graded work.

Ư Reduce the number of students

receiving Ds and Fs to at or below

thirty - five percent thr ough re - teaching

and remediation of those students.

Ư Daily indicate in your lesson plans

interventions and strategies used to

differentiate instruction.

Ư A minimum of two grades each week

must be entered into pinnacle per

student.

Ư Vocabulary used in class must be

consistent with student ' s ability.

Ư Check your school email throughout

the day, a minimum of twice daily

(before and after school).

Ư During a lesson a minimum of three

sample problems will be worked per

concept.

Ư Follow all directives given by and

with proper authority.

You have been given the above directions

numerous times in the past. It is my

expectation that all directives will be

implemented immediately.

21. On December 12, 2011, Ms. Williams issued a written

reprimand for fai ling to meet the performance standards required

of his position as a math teacher. As grounds for the written

reprimand, Ms. Williams focused on Mr. Marshall ' s repeated

failure to reduce the number of students receiving Ds and Fs to

at or below 35 percent through remediation and re - teaching, and

his failure to follow all other directives give n by and with

proper authority .

22. School administration consistently directed

Mr. Marshall to remediate and re - teach daily; he advised the

administration that he w ould do so on one particular day of the

week. The administration denied that request.

23. As a result of Mr. Marshall ' s non - compliance, students

were moved from Mr. Marshall ' s class to other classes, which

resulted in a disparate amount of students in ot her classes.

While most math teachers had from 30 - 35 students in their

classes, Mr. Marshall ' s class was reduced to about 17 students.

24. On January 5, 2012, Ms. Williams conducted a

pre - disciplinary meeting with Mr. Marshall, for failure to

provide da ily re - teaching and remediation for students the last

30 minutes of class, as he had been instructed to do numerous

times. He was informed by letter that he was being recommended

to the School Board for a three - day suspension.

25. On October 10, 2012, ap proximately nine weeks into the

next school year, Ms. Williams sent Mr. Marshall a memorandum

that stated:

Due to the large number of complaints,

schedule changes, high failure rate and

conferences, you are hereby directed to

provide the following document ation for each

of the 93 students (Juniors) who presently

have a grade of F in your class at interims

by October 15, 2012. Please provide copies

to Ms. Williams and Ms. DiPaolo by 2:45 p.m.

Ư Interventions and strategies for each

student

Ư Parent phone contact log

26. On that same date, Mr. Marshall responded to this

request by giving Ms. Williams a document that read as follows:

MATHEMATICAL RUBRIC

Tests/Quizzes

1) Correct Problems ------ - 10pts.

2) Completely Wrong -------- 0pts.

3) Total is 100%

Please note that the total number of

questions can affect the outcome.

27. Since the reply by Mr. Marshall was completely lacking

i n usefulness and did not supply the information requested by

Ms. Williams, she attempted once again to solicit the proper

information from Mr. Marshall by sending an e - mail to him on

October 15, 2012, at 6:03 a.m., giving him a second notice that

the deadline for production of the requested information was that

same day.

28. Mr. Marshall never complied with the directive to

provide information on each student who was failing his class.

He never asked for more time to collect the information, and

despite that fact that he admitted it would have been easy to

retrieve his phone log and submit it, he never did so .

29. Ms. Williams met with Mr. Marshall, informing him that

he would be recommended to the School Board for a seven - day

suspension.

30. The greater weight of the evidence established that

Mr. Marshall is gui lty of gr oss insubordination for his conduct

before and after July 2012.

CONCLUSIONS OF LAW

3 1 . DOAH has jurisdiction over the subject matter of this

proceeding and of the parties hereto pursuant to chapter 120 ,

Florida Statutes.

32. District school boar ds have the authority to operate,

control, and supervise all free public schools in their

respective districts and may exercise any power except as

expressly prohibited by the State Constitution or general law.

§ 1001.32(2), Fla. Stat.

33. Such authorit y extends to personnel matters and

includes the power to suspend and dismiss employees.

See §§ 1001.42(5), 1012.22(1)(f), and 1012.23(1).

34. At all times mat erial to the instant case, the school

b oards had the right, under section 1012.33(6)(a), to sus pend or

dismiss, for " just cause, " classroom teachers and other

instructional personnel having professional service contracts.

35. " Just cause " has been defined to include, but not be

limited to, immorality, misconduct in office, incompetency, gross

insub ordination, 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.

§ 1012.33(1)(a).

36. " Gross insubordination " has been defined in Flor ida

Administrative Code Rule 6B - 4.009(4) as follows:

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.

37. Petitioner has the burden of proving the material

allegations by a preponderance of the evidence. McNeill v.

Pinellas Cnty. Sch. Bd. , 678 So. 2d 476, 477 (Fla. 2d DCA 1996);

Allen v. Sch. Bd. of Dade Cnty. , 571 So. 2d 568, 569 (Fla. 3d DCA

1990).

38. The preponderance of the evidence standard requires

proof by " 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. 2000); see also

Williams v. Eau C laire Pub. Sch. , 397 F.3d 441, 446 (6th Cir.

2005) (holding trial court properly defined the preponderance of

the evidence standard as " such evidence as, when considered and

compared with that opposed to it, has more convincing force and

produces . . . [a ] belief that what is sought to be proved is

more likely true than not true " ).

39. As to the three - day suspension which predates the

change in the Florida Administrative Code effective July 2012,

the preponderance of evidence establishes a constant or

con tinuing intentional refusal by Mr. Marshall to obey a direct

order, reasonable in nature, and given by and with proper

authority. He was reasonably directed numerous times to re - teach

and remediate during his daily lessons, and he refused to comply.

Acco rdingly, Mr. Marshall is guilty of gross insubordination or

willful neglect of duties.

40. Turning to the conduct that occurred after July 2012,

Mr. Marshall is charged with gross insubordination, willful

neglect of duties, and misconduct in office.

41. Misconduct in office is defined in Florida

Administrative Code Rule 6A - 5.056 (2) , as follows:

(2) " Misconduct in Office " means one or more

of the following:

(a) A violation of the Code of Ethics of the

Education Profession in Florida as adopted in

Rule 6 B - 1.001, F.A.C.;

(b) A violation of the Principles of

Professional Conduct for the Education

Profession in Florida as adopted in Rule 6B -

1.006, F.A.C.;

(c) A violation of the adopted school board

rules;

(d) Behavior that disrupts the student ' s

learni ng environment; or

(e) Behavior that reduces the teacher ' s

ability or his or her colleagues ' ability to

effectively perform duties.

42. The Code of Ethics of the Education Profession in

Florida, found in Florida Administrative Code 6B - 1.001, reads as

follows:

(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

these 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 therefore

strive for professional gr owth and will seek

to exercise the best professional 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 community, the educator

strives t o achieve and sustain the highest

degree of ethical conduct.

43. The Principles of Professional Conduct for the

Education Profession in Florida, found in Florida Administrative

Code Rule 6B - 1.006, states :

(3) Obligation to the student requires that

th e 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.

(b) Shall not unreasonably restrain a

student from independent action in purs uit of

learning.

(c) Shall not unreasonably deny a student

access to diverse points of view.

(d) Shall not intentionally suppress or

distort subject matter relevant to a

student ' s academic program.

(e) Shall not intentionally expose a student

to unne cessary embarrassment or

disparagement.

(f) Shall not intentionally violate or deny

a student ' s legal rights.

(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.

(h) Shall not exploit a relationship with a

student for personal gain or advantage.

(i) Shall keep in confidence personally

identifiable information obtained in the

course of professional service, unless

disclosure serves professional purposes or is

required by law.

(4) Obligation to the public requires that

the individual:

(a) Shall take reasonable precautions to

distinguish between personal views and those

of any educational institution or

organization with which the individual is

affiliated.

(b) Shall not intentionally distort or

misrepr esent facts concerning an educational

matter in direct or indirect public

expression.

(c) Shall not use institutional privileges

for personal gain or advantage.

(d) Shall accept no gratuity, gift, or favor

that might influence professional judgment.

( e) Shall offer no gratuity, gift, or favor

to obtain special advantages.

(5) Obligation to the profession of

education requires that the individual:

(a) Shall maintain honesty in all

professional dealings.

(b) Shall not on the basis of race, color,

religion, sex, age, national or ethnic

origin, political beliefs, marital status,

handicapping condition if otherwise

qualified, or social and family background

deny to a colleague professional benefits or

advantages or participation in any

professional or ganization.

(c) Shall not interfere with a colleague ' s

exercise of political or civil rights and

responsibilities.

( d) Shall not engage in harassment or

discriminatory conduct which unreasonably

interferes with an individual ' s performance

of profession al 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 discrimination.

(e) Shall not make malicious or

intentionally false statements about a

colleague.

(f) Shall not use coercive means or promise

special treatment to influence professional

judgments of colleagues.

(g) Shall not misrepre sent one ' s own

professional qualifications.

(h) Shall not submit fraudulent information

on any document in connection with

professional activities.

( i) Shall not make any fraudulent statement

or fail to disclose a material fact in one ' s

own or another ' s application for a

professional position.

(j) Shall not withhold information regarding

a position from an applicant or misrepresent

an assignment or conditions of employment.

(k) Shall provide upon the request of the

certificated individual a written statement

of specific reason for recommendations that

lead to the denial of increments, significant

changes in employment, or termination of

employment.

(l) Shall not assist entry into or

continuance in the profession of any person

known to be unqualified in accordance with

these Principles of Professional Conduct for

the Education Profession in Florida and other

applicable Florida Statutes and State Board

of Education Rules.

(m) Shall self - report within forty - eight

(48) hours to appropriate authorities (as

determined by district) any arrests/charges

involving the abuse of a child or the sale

and/or possession of a controlled substance.

Such notice shall not be considered an

admission of guilt nor shall such notice be

admissible for any purpose in any proceeding,

civil or criminal, administrative or

judicial, investigatory or adjudicatory. In

addition, shall self - report any conviction,

finding of guilt, withh olding of

adjudication, commitment to a pretrial

diversion program, or entering of a plea of

guilty or Nolo Contendre for any criminal

offense other than a minor traffic violation

within forty - eight (48) hours after the final

judgment. When handling sealed and expunged

records disclosed under this rule, school

districts shall comply with the

confidentiality provisions of Sections

943.0585(4)(c) and 943.059(4)(c), Florida

Statutes.

(n) Shall report to appropriate authorities

any known allegation of a viola tion of the

Florida School Code or State Board of

Education Rules as defined in Section

231.28(1), Florida Statutes.

(o) Shall seek no reprisal against any

individual who has reported any allegation of

a violation of the Florida School Code or

State Boar d of Education Rules as defined in

Section 231.28(1), Florida Statutes.

(p) Shall comply with the conditions of an

order of the Education Practices Commission

imposing probation, imposing a fine, or

restricting the authorized scope of practice.

(q) Sha ll, as the supervising administrator,

cooperate with the Education Practices

Commission in monitoring the probation of a

subordinate.

44. Willful neglect of duty, as defined in Florida

Administrative Code Rule 6B - 5.056(5), is an " intentional or

reckless failure to carry out required duties. "

45. Gross insubordination is defined in Florida

Administrative Code Rule 6B - 5.056(4 ) as follows :

the intentional refusal to obey a direct

order, reasonable in nature, and given by and

with proper authority; misfeas ance, or

malfeasance as to involve failure in the

performance of the required duties.

46. The preponderance of the evidence established that

Mr. Marshall is guilty of gross insubordination because he was

given a reasonable order, that is, to compile inf ormation for his

supervisor regarding the failing students in his class, and he

intentionally refused to comply with that order. The evidence as

to the conduct that occurred after July 2012, however, does not

support the charges of willful neglect of duty or misconduct in

office.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Broward County School Board issue

a final order suspending Mr. Marshall with out pay for a total of

ten days, based on hi s co nduct before and after July 2012 .

DONE AND ENTERED this 28 th day of August , 2013 , in

Tallahassee, Leon County, Florida.

S

JESSICA E. VARN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Buil ding

1230 Apalachee Parkway

Tallahassee, Florida 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 28 th day of August , 2013 .

ENDNOTE S

1/ All citations to the Florida Statutes are to the 2012 version.

2/ Rule 6B - 4.009 was renumbered (rule 6A - 056(4)) a nd amended

effective July 2012. The actions giving rise to the three - day

suspension occurred prior to July 2012, but because the actions

that gave rise to the te n - day suspension occurred after that

date, Mr. Marshall was charged with a violation of both rules.

COPIES FURNISHED:

Paul Gibbs , Esquire

Law Offices of

Carmen Rodriguez, P.A.

Suite 411

15715 South Dixie Highway

Palmetto Bay, Florida 33157

Mark F. Kelly, Esquire

Kelly and McKee, P.A.

Suite 301

1718 East Seven th Avenue

Post Office Box 75638

Tampa, Florida 33675 - 0638

Pam Stewart, Commissioner of Education

Department of Education

Suite 1514

Turlington Building

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Matthew Carson, General Counsel

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Robert Runcie, Superintendent

Broward County School Board

600 Southeast Third Avenue

Fort Lauderdale, Florida 33301

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 tha t

will issue the Final Order in this case.