13-004418TTS Broward County School Board vs. Brenda Fischer Status: Closed Recommended Order on Tuesday, June 3, 2014.

Summary: Petitioner failed to demonstrate that Respondent used inappropriate language or aggressively grabbed a student. Recommend dismissal of complaint.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BROWARD COUNTY SCHOOL BOARD,

Petitioner,

vs. Case No. 13 - 4418TTS

BRENDA FISCHER,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a final heari ng was held in this case

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

Division of Administrative Hearings, on April 15, 2014, by video

teleconference at sites in Tallahassee and Lauderdale Lakes,

Florida.

APPEARANCES

For Petitioner: Adrian J. Alvarez, Esquire

Haliczer, Pettis, and Schwamm, P.A.

One Financial Plaza, Seventh Floor

100 Southeast Third Avenue

Fort Lauderdale, Florida 33394

For Respondent: Robert F. McKee, Es quire

Kelly & McKee, P.A.

Suite 301

1718 East Seventh Avenue

Tampa, Florida 33605

STATEMENT OF THE ISSUE

Whether just cause exists to suspend Respondent from her

employment with the Br oward County School Board.

PRELIMINARY STATEMENT

At its regularly scheduled meeting on November 5, 2013,

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

Board") voted to suspend Respondent without pay for five

workdays.

Respondent timely requested a formal administrative hearing

to contest Petitioner's action, and, on November 18, 2013, the

matter was referred to the Division of Administrative Hearings

("DOAH") for further proceedings. Petitioner's Administrative

Complaint, which was forw arded to DOAH on the same date, alleges

that Respondent is guilty of insubordination and/or misconduct

in office, and, as such, just cause exists to suspend her from

employment.

As noted above, the final hearing was held on April 15,

2014, during which Petitioner presented the testimony of six

witnesses (N.S., T.C., Carol Fischer, Denise Jones, Derek

Gordon, and Jimmy Arrojo) and introduced 11 exhibits, numbered

1 - 3, 5, 6, 8, 9, 9a, 9b, 9c, and 10. Respondent testified on

her own behalf, but did not int roduce any exhibits into

evidence.

The final hearing T ranscript was filed on May 15, 2014.

Both parties timely filed proposed recommended orders, which the

undersigned has considered in the preparation of this

Recommended Order.

Unless otherwise indi cated, all rule and statutory

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

alleged misconduct.

FINDING S OF FACT

I. Background

1. Petitioner is the entity charged with the duty to

operate, control, and supervise the public schools within

Br oward County, Florida.

2. At all times relevant to this proceeding, Respondent

was employed as an art teacher at Western High School ("Western

High").

3. Respondent's career with the School Board, which spans

some 21 years, has not proceeded entirely without incident: on

January 31, 1997, Respondent uttered profanity in the presence

of her students, which resulted in the issuance of a written

reprimand that directed her to "cease and desist from

inappropriate remarks"; several months later, Respondent 's

further use of colorful language led to a second written

reprimand; and, in August 2009, Respondent agreed to serve a

three - day suspension "for inappropriate language." The School

Board now seeks to suspend Respondent for five days based upon

an allega tion that, on August 16, 2013, she used profanity and

"aggressively grabbed" a female student's arm during an episode

in Western High's parking lot. The facts relating to the

instant charges are recounted below.

II. Instant Allegation s

4. On the morning of August 16, 2013 ÏÏ the final weekday

before the start of the 2013 - 2014 school year ÏÏ Respondent

arrived at Western High's campus to place the finishing touches

on her classroom. On several occasions throughout the day, one

of Wester n High's assistant principals announced that the

school's parking lot would be locked at 5:30 p.m.

5. The final such warning, which was made at 5:15 p.m.,

prompted Respondent to exit the building approximately five

minutes later. As she headed toward h er vehicle, Respondent

(accompanied by her mother, Carol Fischer, herself a longtime

educator) noticed several groups of students decorating parking

spaces in the school lot. As explained during the final

hearing, the students' presence was not unusual, f or incoming

seniors at Western High were authorized, pursuant to a school

fundraiser, to "purchase" a parking space and adorn it as each

saw fit.

6. Mindful that the school gate would soon be locked,

Respondent walked toward the groups and, from a distanc e of

approximately 50 yards, loudly directed them to pack up their

belongings and leave the campus. Each of the groups complied,

save for one, which prompted Respondent to approach the

stragglers and repeatedly announce ÏÏ with diminishing volume as

she ma de her way closer ÏÏ that they needed to go home.

7. Suffice it to say that these importunings had no

discernable effect on the group's activities; as a result,

Respondent continued toward the parking spot where the students

were working. Now in their im mediate vicinity, Respondent

informed the group (which included two female students, N.S. and

T.C., both of whom were incoming seniors at Western High) that

they had two minutes to gather their possessions and leave the

campus.

8. During the ensuing inte raction, T.C. began to argue

with Respondent and, to make matters worse, acted as if she

intended to continue painting. Her patience understandably

waning, Respondent reached toward T.C. and, in a non - violent

fashion, placed her hand on the student's uppe r arm. This brief

physical contact, intended to secure T.C.'s complete attention

and gesture her in the direction of the exit, was instantly met

with a vocal objection. Respondent immediately reacted by

stepping backwards, 1/ at which point the group bega n to gather up

the painting materials. T.C. and the other students departed

the parking lot a short time later.

9. Contrary to the c omplaint's allegations, the credible

evidence demonstrates that, although Respondent addressed the

students with an eleva ted voice (but only as she approached from

a distance), she at no point used profanity or any other

inappropriate language. 2/ Further, the record is pellucid that

Respondent's momentary, gesturing contact with T.C. was

completely innocuous and in no way c onstituted an " aggressive

grab." 3/ Indeed, T.C. acknowledged during her final hearing

testimony that Respondent plainly intended no harm. 4/

10. Finally, and with respect to the charge of

insubordination, there has been no showing that Respondent's

beha vior ran afoul of any direct order. Although the School

Board attempted to prove the existence of a "no touching

whatsoever" rule, the testimony on that point was internally

contradictory and ultimately unpersuasive. In any event, and as

discussed shortl y, a general policy ÏÏ i.e., one applicable to all

employees ÏÏ does not constitute a direct order for the purpose of

sustaining an insubordination charge.

III. Ultimate Findings

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

Respondent is not gu ilty of misconduct in office.

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

Respondent is not guilty of insubordination.

CONCLUSIONS OF LAW

I. Jurisdiction

13. The Division of Administrative Hearings has

jurisdiction over the subject matt er and parties to this case

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

II. The Burden and Standard of Proof

14. A district school board employee against whom a

disciplinary proceeding has been initiated must be given written

notice o f 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 pr ovision] the [school board] alleges has been

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

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

DCA 1983)(Jorgenson, J., concurring).

15. Once the school board, in its notice of s pecific

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. 2d 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).

16. 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 ele ment of the charged offense. McNeill

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

1996). The preponderance of the evidence standard requires

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

"more likely than not" tends to pr ove 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").

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

a questi on 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).

III. The Charges Against Respondent

18. Pursuant to section 1012.33(6)(a), Florida Statutes,

Petitioner is authori zed 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 Board of Education:

immor ality, 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 entering a plea to, regard less of

a djudication of guilt, any c rime involving

moral turpitude.

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

19. In its c omplaint, the School Board asserts that

Respondent is guilty of gross insubordination and/or misconduct

in office and 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

20. Pursuant to Florida Administrative Code Rule 6A -

5.056(2), the offens e of "misconduct in office" is defined to

include one or more of the following:

(a) A violation of the Code of Ethics of

the Education Profession in Florida as

adopted in [Rule 6A - 10.080], F.A.C.;

(b) A violation of the Principles of

Professional Conduc t for the Education

Profession in Florida as adopted in [Rule

6A - 10.081], F.A.C.;

(c) A violation of the adopted school board

rules;

(d) Behavior that disrupts the student's

learning environment; or

(e) Behavior that reduces the teacher's

ability or his or her colleagues' ability to

effectively perform duties.

(emphasis added).

21. In the Pre - Hearing Stipulation of the Parties, 5/ the

School Board expressly limited its theory of misconduct in

office to three violations: Florida Administrative Code Rule

6A - 10.080(2), a provision of the Code of Ethics providing that

an educator's "primary professional concern will always be for

the student," and that an educator "will seek to exercise the

best professional judgment and integrity"; Florida

Administrati ve Code Rule 6A - 10.081(3)(a), a provision of the

Principles of Professional Conduct that requires an educator to

"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; and rule 6A - 10.081(3)(f), which

prohibits an educator from intentionally violating a student's

legal rights.

22. Each of the School Board's charges is predicated upon

its contention that, during the incident in question, Respondent

used profa nity and/or grabbed T.C. "aggressively." However, as

detailed in the Findings of Fact, the credible evidence

demonstrates that Respondent at no point utilized foul language

during her interaction with the students. Further, the physical

contact in questi on amounted to nothing more than a momentary,

innocuous guiding motion ÏÏ behavior that violates neither the

Code of Ethics nor the Principles of Professional Conduct. See,

e.g. , St. Lucie Cnty. Sch. Bd. v. Woodcock , Case No. 12 - 2755TTS,

2013 Fla. Div. Adm. Hear. LEXIS 30 (Fla. DOAH Jan. 24,

2013)(concluding that educator's attempt to motion a student

toward a walkway by placing her hand on the child's back did not

violate School Board Policy 6.301(2), a provision that required

instructors to abide by the Co de of Ethics and the Principles of

Professional Conduct).

23. Finally, and with respect to the purported violation

of rule 6A - 10.081(3)(f), the record is devoid of evidence that

Respondent acted with the intent to violate T.C.'s legal rights.

See Bro ward Cnty. Sch. Bd. v. Finnk , Case No. 12 - 3278TTS, 2013

Fla. Div. Adm. Hear. LEXIS 358, *13 (Fla. DOAH June 18, 2013;

BCSB Sept. 20, 2013)(dismissing charge of violating a student's

legal rights where the evidence failed to establish that the

educator acte d with the necessary intent); Smith v. Mays , Case

No. 11 - 743PL, 2011 Fla. Div. Adm. Hear. LEXIS 170, *21 (Fla.

DOAH June 28, 2011; DOE Oct. 21, 2011)("Even if a violation of

[the student's] legal rights did occur, Petitioner failed to

prove that Respondent acted with the necessary intent").

24. For the reasons elucidated above, Respondent is not

guilty of misconduct in office.

B. Gross Insubordination

25. As noted previously, Petitioner alleges also that

Respondent is guilty of gross insubordinat ion, which is defined

as:

[T]he intentional refusal to obey a direct

order , reasonable in nature, and given by

and with proper authority; misfeasance, or

malfeasance as to involve failure in the

performance of the required duties.

Fla. Admin. Code R. 6A - 5.056(4)(emphasis added).

26. As reflected by the foregoing language, gross

insubordination can be demonstrated in one of two ways: with

proof that the educator intentionally refused to obey a direct,

reasonable, properly - issued order; or with evidenc e that the

educator committed misfeasance or malfeasance through the

failure to perform his or her required duties. Only the first

of these two avenues is potentially applicable here, for there

is no allegation that Respondent has failed to carry out her

professional duties.

27. Turning to the merits, the School Board has failed to

demonstrate that Respondent intentionally refused to obey any

direct order. To be sure, Respondent was under a proper

directive (issued in 1997 as part of a written reprim and) to

refrain from making inappropriate remarks; however, and as

detailed previously, Respondent did not use profanity or any

other foul language during her interaction with the students.

28. Nor has it been shown that the momentary, benign

touching of T.C. violated a direct order. Although the School

Board attempted to establish the existence of a general "no

touching" policy, the testimony on that point has not been

credited. Even assuming the existence of such a rule, it is

well settled that, for th e purpose of sustaining an

insubordination charge, a general policy does not constitute a

direct order. Broward Cnty. Sch. Bd. v. Von Hagen , Case

No . 11 - 567, 2011 Fla. Div. Adm. Hear. LEXIS 156, *12 (Fla.

DOAH June 21, 2011; BCSB Aug. 16, 2011)(dismissin g charge of

gross insubordination; "The general policy directed to all

employees is not a direct order to Respondent"); see also

Miami - Dade Cnty. Sch. Bd. v. Anderson , Case No. 13 - 2414TTS,

2013 Fla. Div. Adm. Hear. LEXIS 861, *26 (Fla. DOAH Dec. 30,

2013; MDCPS Feb. 12, 2014)("Admonishing a teacher to comply

with all [school board] rules is not tantamount to a direct

order . . . ."). The charge of insubordination must therefore

be dismissed.

RECOMMENDATION

Based on the foregoing F indings of F act and C o nclusions of

Law, it is

RECOMMENDED that the Broward County School Board enter a

final order: exonerating Respondent of all charges brought

against her in this proceeding; and awarding Respondent any lost

pay and benefits she experienced as a result of t he five - day

suspension.

D ONE AND ENTERED this 3rd day of June , 2014 , in

Tallahassee, Leon County, Florida.

S

EDWARD T. BAUER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalach ee 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 3rd day of June, 2014.

ENDNOTE S

1/ Hr'g Tr. 15:10 - 12.

2/ Hr'g Tr. 22:1 - 4; 106:12 - 20.

3/ Hr'g Tr. 19:19 - 20; 108:5 - 14.

4/ Hr'g Tr. 37:24 - 38:1.

5/ See Pre - Hearing Stipulation of the Parties, p. 1.

COPIES FURNISHED:

Adrian J. Alvarez, Esquire

Haliczer, Pettis, and Schwamm, P.A.

One Financial Plaza, Seventh Flo or

100 Southeast Third Avenue

Fort Lauderdale, Florida 33394

Robert F. McKee, Esquire

Kelly & McKee, P.A.

Suite 301

1718 East Seventh Avenue

Tampa, Florida 33605

Pam Stewart, Commissioner 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

Tallahassee, Florida 32399 - 0400

Robert Runcie, Superintendent

Broward Count y 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 r ecommended order must be filed with the agency that

will issue the final order in this case.