12-003644TTS Broward County School Board vs. Bruce Weinberg Status: Closed Recommended Order on Thursday, June 6, 2013.

Summary: Respondent's isolated outburst did not constitute insubordination or misconduct in office. Recommend dismissal of administrative complaint.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BROWARD COUNTY SCHOOL BOARD ,

Petitioner,

vs . Case No. 12 - 3644 TTS

BRUCE WEINBERG ,

Respondent.

__ _______________________________/

RECOMMENDED ORDER

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

before Edward T. Bauer, an Administrative Law Judge of the

Division of Administrative Hearings, on March 18, 2013, by video

teleconference at sites in Tallahassee and Lauderdale Lakes,

Florida.

APPEARANCES

For Petitioner: Brian M. Engle , Esquire

Debo rah Klauber, Esquire

Haliczer, Pettis, and Schwamm, P.A.

One Financial Plaza, Seventh Floor

100 Southeast Third Avenue

Fort Lauderdale, Florida 33394

F or Respondent: Robert T. McKee , Esquire

Kel ly & McKee, P.A.

1718 East Seventh Avenue, Suite 301

Tampa, Florida 33605

STATEMENT OF THE ISSUE

Whether just cause exists to suspend Respondent from his

employment with the Broward County School Board .

PRELIMINARY STATEMENT

At it s regularly scheduled meeting on November 7 , 2012,

Petitioner Broward County School Board ("Petitioner" or "School

Board") voted to suspend Respondent without pay for three

workdays.

Respondent timely requested a formal administrative hearing

to contest Peti tioner's action, and, on November 9 , 2012 , the

matter was referred to the Division of Administrative Hearings

("DOAH") for further proc eedings. Petitioner filed an

Administrative Complaint ("Complaint") the same day, wherein it

alleges that Respondent is guilty of insubordination and/or

misconduct in office, and, as such, just cause exists to suspend

him from employment.

As noted above, the final hearing was held on March 18,

2013, during which Petitioner presented the testimony of three

witnesses ( Bri an Faso, Cornelia Hoff, and Pamela Carroll) and

introduced 20 exhibits, numbered 1 - 10 and 12 - 21. Respondent

testified on his own behalf and introduced five exhibits,

numbered 1 - 3 and 6 - 7.

The final hearing tr anscript was filed on April 26 , 2013 .

Sub sequen tly, and at the Petitioner's unopposed request , the

undersigned extended the deadline for the filing of proposed

recommended orders to May 17 , 2013. Both parties timely filed

proposed recommended orders, which the undersigned has

considered in the p reparation of this Recommended Order.

Unless otherwise indicated, all rule and statutory

references are to the versions in effect at the time of the

alleged misconduct.

FINDINGS OF FACT

I . Background

1. Petitioner is the entity charged with the duty to

operate, control, and supervise the public schools within

Broward County, Florida.

2. At all times relevant to the instant pro ceeding,

Respondent was assigned to Miramar High Sch oo l ("Miramar") ,

where he serves as a drama teacher and, until March 6, 201 2 ,

sponsored the school's drama club .

3. Respondent's career with t he School Board, which spans

some 25 years, has not been entirely without incident: on

November 3, 2010, one of Miramar's assistant principals issued a

written directive to Respondent that instructed him, among other

things, to "speak in a calm, respectful, and professional tone

at all times"; some 15 months later, on February 10, 2012,

Respondent was issued a written reprimand, which was based upon

an allegation that he had engaged in unprofes sional behavior

during a meeting . As detailed below, the School Board now seeks

to suspend Respondent for three days, alleging that, during a

meeting with two administrators on March 8, 2012, Respondent

once again behaved unprofessionally . 1 /

II . Instant Allegations

4. The relevant facts are largely undisputed. On March 6,

2012, Respondent was advised by a member of Miramar's

administration that the drama club would not be permitted to

travel to the state thespian competition. The circums tances

surrounding the cancellation of the trip, although not relevant

to this proceeding, frustrated and disappointed Respondent, who

immediately resig ned as the drama club sponsor by submitting a

letter to Brian Faso (Miramar's principal). The letter, w hich

was dated March 6, 2012, provided, in relevant part:

Effective immediately, I am resigning my

position as Drama Club and Thespian Sponsor.

I appreciate the opportunity to work with

some of the very talented students at

Miramar High.

5. N otwithsta nding the seemingly unambiguous nature of the

foregoing correspondence, Mr. Faso was uncertain if Respondent

also intended to resign his teaching position. As a result,

Mr. Faso instructed Cornelia Hoff, Miramar's intern principal,

to meet with Responden t to discuss the issue.

6. Thereafter, on March 8, 2012, Ms. Hof f met with

Respondent in the principal's conference room. Ms. Hoff was

seated at the head of the conference table, with Respondent

positioned two chairs away to her left. Pamela Carroll, one of

Miramar's assistant principals and the only other person in

attendance, was seated opposite Respondent .

7. At the outset of the meeting, Ms. Hoff inquired of

Respondent concerning his intentions ÏÏ namely, whether he desired

to remain in his positi on as drama teacher. Respondent did not

immediately answer, attempting instead, unsuccessfully, to

discuss the canceled trip that prompted his March 6 letter .

After some back and forth, Ms. Hoff advised Respondent that,

pursuant to Miramar's "best practi ces," the position of drama

teacher is "tied " to service as the drama club sponsor. 2 /

Reasonably interpreting this remark as an insinuation that his

employment could be in jeopardy, Respondent sat upright 3 / in his

cha i r and stated, in a louder - than - normal speaking voice (but

not a yell) , 4 / that he would "sue everyone in the room" if the

canceled trip "came back to haunt" him. Predictably, Ms. Hoff

adjourned the meeting a few moments later .

8. Although Respondent's behavior during the meeting of

March 8 was no doubt regrettable, there is no evidence that the

isolated, intemperate remark has impaired his effectiveness as a

School Board employee. Further, and in light of the

circumstances under which the comment was made (i.e., in direct

response to a rema rk that led Respondent to question the

security of his employment), there is insuffic ient evidence that

Respondent intentionally disregarded the standing directiv e that

he speak calmly and professionally at all times.

III . Ultimate Findings

9 . It is determined , as a matter of ultimate fact, that

Respondent is not guilty of misconduct in office .

10. It is determined, as a matter of ultimate fact, that

Respondent is not guilty of insubordination.

CONCLUSIONS OF LAW

I . Jurisdiction

11 . The Divi sion of Administrative Hearings has

jurisdiction over the subject matter and parties to this case

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

II . The Burden and Standard of Proof

12 . A district school board employee against whom a

dis ciplinary proceeding has been initiated must be given written

notice of the specific charges prior to the hearing. Although

the notice "need not be set forth with the technical nicety or

formal exactness required of pleadings in court," it should

"specify the [statute,] rule, [regulation, policy, or collective

bargaining provision] the [school board] alleges has been

violated and the conduct which occasioned [said] violation."

Jacker v. Sch. Bd. of Dade C nty. , 426 So. 2d 1149, 1151 (Fla. 3d

DCA 1983)(Jorg enson, J. , concurring).

13 . Once the school board, in its notice of specific

charges, has delineated the offenses alleged to justify

termination, those are the only grounds upon which dismissal may

be predicated. See Cottrill v. Dep't of Ins . , 685 So. 2 d 1371,

1372 (Fla. 1st DCA 1996); Klein v. Dep't of Bus. & Prof'l Reg. ,

625 So. 2d 1237, 1238 - 39 (Fla. 2d DCA 1993); De lk v. Dep't of

Prof'l Reg . , 595 So. 2 d 966, 967 (Fla. 5th DCA 1992).

14 . In an administrative proceeding to suspend or dismiss

a member of the instructional staff, the school board, as the

charging party, bears the burden of proving, by a preponderance

of the evidence, each e lement of the charged offense. McNeill

v. Pinellas Cnty. Sch. Bd. , 678 So. 2d 476, 477 (Fla. 2d DCA

1996); Sublett v. Sumter Cnty. Sch. Bd. , 664 So. 2d 1178, 1179

(Fla. 5th DCA 1995). The preponderance of the evidence standard

requires proof by "the greater weight of the evidence" or

evidence that "more likely than not" tends t o prove a certain

proposition. Gross v. Lyons , 763 So. 2d 276, 280 n.1 (Fla.

2000); see also Williams v. Eau Claire 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").

15 . The instructional staff member's guilt or innocence is

a question of ultimate fact to be decided in the context of each

alleged violation. McKinney v. Castor , 667 So. 2d 387, 389

(Fla. 1st DCA 1995); Langston v. Jamerson , 653 So. 2d 489, 491

(Fla. 1st DCA 1995).

III. The Charges Against Respondent

16 . Pursuant to section 1012.33(6)(a), Fl orida Statutes ,

Petitioner is authorized to suspend or dismiss a member of its

instructional staff for "just cause," which is defined , in

relevant part, as follows:

Just cause includes, but is not limited to,

the following instances, as defined by rule

of the State Bo a rd of E ducation:

immorality, misconduct in office ,

incompetency, two consecutive annual

performance evaluation ratings of

unsatisfactory under s. 1012.34 . . .

gross insubordination , willful neglect of

duty, or being convicted or found guilty of,

or ent ering a plea to, regardless of

adjudication of guilt, any crime involving

moral turpitude.

§ 1012.33(1)(a), Fla. Stat. (emphasis added).

17. In th e Complaint, Petitioner asserts that Respondent

is guilty of gross insubordination and/or misconduct in o ffice

a nd that, as a consequence, just cause exists to impose a

suspension . Each offense is discussed separately below,

beginning with the charge of misconduct in office.

A. Misconduct in Office

18. At the time of Respondent's alleged misbehavior, the

offense of misconduct in office was defined by the State Board

of Education as a:

[V] iolation of the Code of Ethics of the

Education Profession as adopted in Rule

6B - 1.001, F.A.C., and the Principles of

Professional Conduct for the Education

Professio n 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 .

F la. Admin. Code R. 6B - 4.009(3) (emphasis added) . 5 /

19. In turn, the Code of Ethics of the Education

Profession (ado pted in Florida Administrative Code Rule

6B - 1.001) and the Principles of Professional Conduct for the

Education Profession in Florida (adopted in Florida

Administrative Code Rule 6B - 1.006), 6 / provide in pertinent part

as follows:

6B - 1.001 Code of Ethics of the Education

Profession in Florida

(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 ther efore

strive for professional growth and will seek

to exercise the best professional judgment

and integrity.

(3) Aware of the importance of maintaining

th e 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.

* * *

6B - 1.006 Principles of Professional Conduct

for the Education Profession in Florida.

* * *

(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 hos tile, intimidating,

abusive, offensive, or oppressive

environment; and, further, shall make

reasonable effort to assure that each

individual is protected from such harassment

or discrimination. . . .

20 . " As shown by a careful reading of r ule 6B - 4.009, the

offense of misconduct in office con sists of three elements:

(1) A serious violation of a specific rule that (2) causes (3)

an impairment of the employee's effectiveness in the school

system." Broward Cnty. Sch. Bd. v. Sapp , Case No. 01 - 3803, 2002

Fl a. Div. Adm. Hear. LEXIS 1574 , * 18 - 19 (Fla. DOAH Sept. 24 ,

2002; BCSB Dec. 10, 2002 ) . For ease of reference, the second

and third elements can be conflated into one component:

"resulting ineffectiveness." Id.

21 . In its Proposed Recommended Order, Pe titioner contends

that Respondent's behavior during the meeting of March 8, 2012,

was inconsistent with the high degree of ethical conduc t

demanded by rule 6B - 1.001(3), and, further, that it created a

"hostile, intimidating, abusive, offensive, or oppress ive

environment, " contrary to rule 6B - 1.006(5)(d) of the Principles

of Professional Conduct.

22 . Even assuming Petitioner is correct in this regard,

the charge of misconduct in office fails for several reasons.

First, Petitioner's Complaint did not spe cifically plead

subsection (3) of rule 6B - 1.001, nor did it allege that

Respondent was in violation of subsection (5)(d) of rule

6B - 1.006 ; instead, the Complaint cites rules 6B - 1.001 and

6B - 1.006 generally, accompanied by a blanket allegation that

Respon dent is guilty of "misconduct in office." Such loose

pleading is insufficient to provide Respondent with adequate

notice of the spec ific rule provisions at issue. See Manatee

Cnty. Sch. Bd. v. Daniels - Youmans , Case No. 11 - 1078, 2011 Fla.

Div. Adm. Hear . LEXIS 232, *28 (Fla. DOAH Aug. 22, 2011; MCSB

Oct. 31, 2011) ( " Although . . . the Administrative Complaint

charges [misconduct in office], there is no citation to a

specific provision of the Code of Ethics allegedly violated by

Respondent. Therefore, this charge was not sufficiently pled to

be the basis for disciplinary action."). What is more , and

accepting for argument's sake that the pleading deficiency can

be brushed aside, the record is devoid of evidence that

Respondent's conduct was so serious that it impaired his

effectiveness as an employee. See MacMillan v. Nassau Cnty.

Sch. Bd. , 629 So. 2d 226, 230 (Fla. 1st DCA 1993)( holding

evidence insufficient to establish misconduct in office; "We

reiterate that Rule 6B - 4.009(3) defines misconduct in offic e as

a violation of the Code of Ethics and the Prin ciples of

Professional Conduct which is so serious as to impair the

individual's effectiveness in the school system . . . . Other

than the Superintendent's conclusory remarks, we find no

evidence demonstra ting a loss of effectiveness in the school

system."). 7 / For these reasons, Respondent is not guilty of

misconduct in office.

B. Gross Insubordination

23 . As noted previously , Petitioner alleges also that

Respondent is guilty of gross insubordi nation, which is defined

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.

Fla. Admin. Code R. 6B - 4.009 (4) (emphasis added) . 8 /

24 . During the final hearing in this matter, it was

stipulated that, at the time of the alleged misconduct,

Respondent was under a direct, proper, and reasonable order to

spea k calmly and professionally at all times. All that nee d be

addressed, then, is whether Petitioner has demonstrated a

"constant or continuing intentional refusal to obey." Id.

25 . Respondent ass erts, and the undersigned agrees , that

Petitioner has failed to prove that the behavior at issue ÏÏ i.e.,

Respond ent stating loudly that he would "sue everyone in the

room " if the canceled trip "came back to haunt him" ÏÏ represents

an intentional act of disobedience. See Forehand v. Sch. Bd. of

Gulf Cnty. , 600 So. 2d 1187, 11 93 (Fla. 1st DCA 1992)( holding

that the in tent element of gross insubordination requires proof

that the educa tor deliberately violated the directive at issue).

The remark, although impertinently phrased ("I will file a

grievance if . . . " would have been preferable), was made in the

spur of the m oment and only in response to Ms. Hoff's statement

that service as the drama sponsor was "tied" to the position of

drama teacher, a comment that led Respondent to believe,

reasonably, that his job was at risk. Under the circumstances,

Respondent's remark was nothing more than a reflexive and

hyperbol ic expression of his willingness to pro tect h is legal

rights should his employment be improvidently jeopardized ÏÏ an

act that cannot be fairl y characterized as a deliberate

violation of the standing directive .

26 . Further, and even assuming that Respondent acted with

the requisite intent, there is no evidence of a "constant or

continuing" refusal to obey the directive. Fla. Admin. Code R.

6B - 4.009(4)("Gross insubordination . . . is defined as a

constant or con tinuing intentional refusal to obey a direct

order, reasonable in nature . . . ."). Altho ugh "constant or

continuing" is not defined by statute or rule, guidance is

provided by Rutan v. Pasco County School Board , 435 So. 2d 399,

400 (F la. 2d DCA 1983) , wh ere the court held:

Rule [6B - state s that "[g]ross

insubordination . . . is defined as a

constant or continuing intentional refusal

to obey a direct order, reasonable in

nature, and given by and with proper

authority." This administrative rule

in dicates that to be guilty of gross

insubordination . . . the teacher must

intentionally refuse to obey a reasonable,

direct order, and this refusal must be done

in a constant and continuous manner.

Constant is defined as: "1. Continually

recurring ; persi stent . 2. Unchanging in

natur e, value or extent; invariable. . . ."

The American Heritage Dictionary of the

English Language 2 84 (New College Edition,

1979). Continuous means: "1. Extending or

prolonged without interruption or cessation

. . . ." Id. , at 288 - 89. We do not believe

that Rutan's conduct fits within these

definitions. (e mphasis added).

27 . As in Rutan , there is no evidence that Respondent

violated the directive " persist ently" or "without interruptio n."

Indeed, the episode of March 8, 2012, represents the only

instance of alleged misbehavior that Petitioner has pursued in

this matter ÏÏ conduct that, standing alone, is insufficient to

satisfy rule 6B - 4.009(4) . 9 / See Smith v. Sch. Bd. of Leon Cnty. ,

405 So. 2d 183 , 185 (Fla. 1st DCA 1981 )( "[Appellant's] actions

did not meet the definition of 'gross insubordination' since

they were an isolated outburst and could not have been deemed

'constant or continuing.'"). For these reasons, the charge of

misconduct in office fails.

RECOMMENDAT ION

Based on the foregoing findings of fact and conclusions of

Law, it is

RECOMMENDED that the Broward County School Board enter a

final order : exonerating Respondent of all charges brought

against him in this proceeding ; and awarding Respondent any lost

pay and benefits he experienced as a result of the three - day

suspension.

DONE AND ENTERED this 6 th day of June , 2013 , in

Ta llahassee, Leon County, Florida.

S

EDWARD T. BAUER

Administrative Law Judge

Division o f Administrative Hearings

The DeSoto Building

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 6 th day of June , 2013 .

ENDNOTE S

1 / The Complaint also alleges that, on March 28, 2012,

Respondent behaved unprofessionally during a meeting with a

different school administrator. However, Petitioner abandoned

this allegation during the f inal hearing. See Final Hearing

Transcript, p. 69.

2 / See Final Hearing Transcript, p. 97, lines 17 - 20;

Petitioner's Exhibit 21C, p. 14, lines 6 - 9.

3 / At no point did Respondent invade the personal space of

either Ms. Hoff or Ms. Carroll. See F inal Hearing Transcript,

pp. 82 - 83.

4 / See Final Hearing Transcript, p. 75, lines 9 - 10.

5 / On July 8, 2012, rule 6B - 4.009 was substantially revised and

renumbered as Florida Administrative Code Rule 6A - 5.056.

However, as rule 6A - 5.056 was not in ef fect on the date of

Respondent's alleged misconduct (i.e., March 8, 2012), rule 6B -

4.009 controls in this proceeding. See Miami - Dade Cnty. Sch.

Bd. v. Mobley , Case No. 12 - 1852, 2013 Fla. Div. Adm. Hear. LEXIS

225, *11 n.4 (Fla. DOAH Apr. 17, 2013)("The mo st recent

amendment to rule 6A - 5.056, adopted on July 8, 2012, does not

apply to this proceeding because the conduct at issue occurred

before the amendment's effective date.").

6 / On January 11, 2013, rules 6B - 1.001 and 6B - 1.006 were

transferred to Flo rida Administrative Code Rules 6A - 10.080 and

6A - 10.081, respectively.

7 / In apparent conflict with MacMillan , the Second and Fifth

District Courts of Appeal have held that impaired effectiveness

can be inferred. Purvis v. Marion C n ty. Sch. Bd. , 766 S o. 2d

492, 498 (Fla. 5th DCA 2000)(holding impaired effectiveness

could be inferred by nature of misconduct, which included

resisting arrest and testifying falsely under oath during a

criminal trial; "[t]his is a level of misconduct which would

support the inference that Purvis' effectiveness as a teacher

has been impaired, even though no parent, student or co - worker

was called as a witness to say so"); Walker v. Highlands C n ty.

Sch. Bd. , 752 So. 2d 127, 128 (Fla. 2d DCA 2000)(holding that

teacher's miscond uct, which resulted in "loss of control" in

classroom, permitted an inference of ineffectiveness). Although

the undersigned doubts that MacMillan can be rationally

distinguished from Purvis or Walker ÏÏ particularly since the

single instance of misconduct i n Walker was less serious than

the repeated lewd comments in MacMillan ÏÏ to the extent the

decisions can be reconciled, it appears at the very least that

an inference of resulting ineffectiveness should be "used

sparingly and with great care. . . . [and] i n limited

circumstances." Miami - Dade Cnty. Sch. Bd. v. Eskridge , Case No.

10 - 9326, 2011 Fla. Div. Adm. Hear. LEXIS 62, *15 n.6 (Fla. DOAH

Apr. 6, 2011)(quoting Miami - Dade Cnty. Sch. Bd. v. Wallace , Case

No. 00 - 4392, 2001 WL 335989 (Fla. DOAH Apr. 4, 2001) ). The

undersigned concludes that the facts of the instant case do not

involve the "limited circumstances" that would permit an

inference of impaired effectiveness.

8 / As explained in endnote 5, supra , Rule 6B - 4.009, which was in

effect at the time of Respondent's misconduct, was subsequently

revised and renumbered as Florida Administrative Code Rule 6A -

5.056.

9 / In its Proposed Recommended Order, Petitioner notes that

Respondent also engaged in unprofessional behavior during a

January 2012 meeting, which resulted in the issuance of a formal

reprimand the following month. See Petitioner's PRO at p. 9, ¶

38. It is doubtful, however, that Petitioner can rely upon

behavior for which Respondent has already been punished to

establish a constant or contin uing pattern of misconduct (so as

to support the charge of insubordination). Cf. Dep't of Transp.

v. Career Serv. Comm'n , 366 So. 2d 473, 474 (Fla. 1st DCA 1979)

(holding agency lacked the authority to discipline an employee

twice for the same offense). In any event, two instances of

unprofessional conduct committed subsequent to the issuance of

the 2010 directive hardly constitute an uninterrupted or

persistent pattern of misbehavior.

COPIES FURNISHED :

Brian M. Engle, Esquire

Deborah Klauber, Esquire

Haliczer, Pettis, and Schwamm, P.A.

One Financial Plaza, Seventh Floor

100 Southeast Third Avenue

Fort Lauderdale, Florida 33394

Robert T. McKee, Esquire

Kelly & McKee, P.A.

1718 East Seventh Avenue, Suite 301

Tampa, Florida 33605

Dr. Tony Bennett, C ommissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Matthew Carson, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallaha ssee, Florida 32399 - 0400

Robert Runcie, Superintendent

Broward County School Board

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 this recommended order. Any exceptions

to this recommended order must be filed with the agency that

will issue the final order in this case.