15-001741TTS Palm Beach County School Board vs. Libby Stroud Status: Closed Recommended Order on Thursday, December 31, 2015.

Summary: School Board proved by clear and convincing evidence pursuant to CBA that just cause exists to suspend and terminate Respondent's employment as a teacher for misconduct, incompetency, gross insubordination, and willful neglect of duty.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PALM BEACH COUNTY SCHOOL BOARD,

Petitioner,

vs. Case No. 15 - 1741TTS

LIBBY STROUD,

Respondent.

_______________________________/

RECOMMENDED O RDER

This case came before Administrative Law Judge Darren A.

Schwartz of the Division of Administrative Hearings for final

hearing on August 17 through 18, 2015 , and September 24, 2015, in

West Palm Beach, Florida .

APPEARANCES

For Petitioner: Jean Marie Middleton, Esquire

School District of Palm Beach County

Office of General Counsel

Suite C - 323

3300 Forest Hill Boulevard

West Palm Beach, Florida 33416

For Respondent: Nicholas Anthony Caggia, Esquire

Law Office of Thomas L. Johnson, P.A.

Suite 309

510 Vonderburg Drive

Brandon, Florida 33511

STATEMENT OF THE ISSUE

Whether just cause exists for Petitioner to suspend

Respondent without pay and terminate her employment as a teacher.

PRELIMINARY STATEMENT

By letter dated February 9, 2015, Petitioner , Palm Beach

County School B oard (ÐSchool BoardÑ) , notified Respondent , Libby

Stroud (ÐStroudÑ), of the School BoardÓs intent to suspend her

for 15 days without pay and terminate her employment. On

March 4, 2015, at its scheduled meeting, the School Board took

action to suspend Res pondent for 15 days without pay and

terminate her employ ment as a teacher.

On March 10, 2015, Respondent timely requested an

administrative hearing. Subsequently, the School Board referred

the matter to the Division of Administrative Hearings (ÐDOAHÑ) t o

assign an Administrative Law Judge to conduct the final hearing.

The final hearing was initially set for July 13 through 14,

2015. On June 23, 2015, the School Board filed an unopposed

request for a continuance. On June 29, 2015, the undersigned

enter ed an Order resetting the final hearing for August 17

through 18, 2015.

The final hearing commenced as scheduled on August 17

and 18, 2015, and concluded on September 24, 2015, with both

parties present. At the hearing, the School Board presented the

t estimony of Deneen Wellings, Yevola Falana, Respondent, Carissa

Battle, Robert Pinkos, Vincent Caracciolo, Juanice Brown , and

Kiwana Alexander - Prophete. The School BoardÓs Exhibits 5, 10,

15, 26, 29, 31 , 32, 34 through 38, 40, 43 through 51, 54, 56, 59

th rough 67, 69, 70 , 72, 74, 77, 79, 81, 84 through 86, and 89

were received into evidence . Respondent testified on her own

behalf and presen ted the additional testimony of Lilia Perez,

Linda Loomis, Lorenzo Odom, and Kevin McCabe . RespondentÓs

Exhibits 2, 4 through 6, 12, 14, 19, 28, 30, 40, and 49 were

received into evidence.

At hearing, the parties stipulated to the filing of proposed

recommended orders 30 days after the filing of the final hearing

Transcript. The five - volume final hearing T ranscript w as filed

at DOAH on October 27, 2015. The parties timely filed proposed

recommended orders, which were given consideration in the

preparation of this Recommended Order. 1/

On August 6 , 2015, the parties filed their Joint Pre - Hearing

Stipulation, in which they stipulated to certain facts. These

facts have been incorporated into this Recommended Order as

indicated below.

Unless otherwise indicated, all rule and statutory

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

alleged violations.

FIND ING S OF FACT

1. The School Board is a duly - constituted school board

charged with the duty to operate, control, and supervise the

public schools within Palm Beach County, Florida.

2. At all times material to this case, Respondent was

employed by the Sch ool Board as a reading/social studies teacher

at Carver Middle School (ÐCarverÑ) , a Title I public school in

Palm Beach County, Florida. Respondent was initially hired by

the School Board as a teacher in 1993.

3. At all times material to this case, Res pondentÓs

employment with the School Board was governed by Florida law, the

School BoardÓs policies, and the collective bargaining agreement

between the School Board and the Palm Beach County Classroom

Teachers Association.

4. Kiwana Alexander - Prophete, the principal of Carver , was

authorized to issue directives to her employees, including

Respondent.

The 2013 - 2014 School Year

5. On April 24, 2014, Principal Alexander - Prophete held a

conference with Respondent to address concerns regarding

studentsÓ gr ades because an overwhelming number of students were

failing RespondentÓs class .

6. Th is conference occurred after report cards for the

third nine - week grading period had been sent home to the parents

of RespondentÓs students . Out of 106 students, 72 s tudents

received an F grade; 17 students received a D grade; 11 students

received a C grade; three st udents received a B grade; and one

student received an A grade.

7 . Respondent failed to demonstrate that the students

earned the se grades ; she failed t o provide samples of studentsÓ

graded work; and she failed to notify parents of the studentsÓ

failing grades prior to issuance of the report cards .

8 . Principal Alexander - Prophete issued Respondent a

conference memorandum on April 30, 2014, specifically directing

Respondent to , among other things :

Maintain a student portfolio which was

established for all teachers at the beginning

of the school year. Have each student write

name on folder and then place all their

tests, work, notes/letters home to pare nts in

the folder. This would be the documentation

used for pare nt conferences, progress report s

and report card grades .

Maintain a telephone log and maintain copies

of letters sent home to parents.

* * *

Maintain a Grade Quick documenting a m inimum

of at least two grades per week.

9 . Respondent was advised in the April 30, 201 4 , conference

memorandum that failure to follow the directives is

insubordination , which could subject her to discipline , including

termination.

10 . On May 12, 2014 , Respondent received specific written

directives regarding communications, grades, portfolios, and

recordkeeping.

11. These directives were specifically detailed to improve

RespondentÓs overall job performance and optimize the level of

education to her students . The directives were specifically

targeted to Respondent for her to correctly measure and track

student growth, accurately maintain records of assignments,

compute grades in a fair and understandable manner, and

communicate effectively with stud ents, staff, and parents.

Specific ally, Respondent was directed as follows with regard to

student portfolios :

Properly maintaining student portfolios is

the strategic centerpiece of your improvement

plan. Therefore, you are directed to

maintain an up t o date student portfolio for

each student assigned to you. You are

directed to have a folder for each student

where any and all work will be saved. This

folder will be known as the studentÓs

portfolio. Any and all assignments that will

be used in the ca lculation of the final

report card grade will be memorialized in the

studentsÓ portfolios. At the end of each

semester portfolios will be housed in a

secure classroom locat ion or an area to be

designated by the schoolÓs administration.

Students will begi n a new portfolio at the

start of each semester. You are specifically

directed to have:

• Students print their first and last names on

folders on the outside of each folder.

• Students attach to the outside of the folders

a teacher prepared rubric display ing how

report grades will be calculated. As an

example:

Chapter Quizzes 15%

Unit Exams 25%

Final Exam 20%

Projects and Presentations 15%

Homework 15%

Class Participation 10%

• Folders organized on classroom shelves by

period and then divided by ge nder.

• Students pick up and return their folders to

and from the designated area as they enter

and exit the classroom each day.

• All documents in the folder include the

studentÓs name, period, date, and the

category of the assignment (i.e. chapter

quiz, hw).

• All student work, assessments, exams,

quizzes, home work graded, entered into

Grade Quick into the appropriate assessment

category, returned to students, and placed

into their portfolios no more than three (3)

student school days from the day the stud ent

submitted it to you.

• Documents in the student portfolios match the

grades r egistered by you in GradeQuick.

• Portfolios available for students, parents,

and administrative personnel on the day of

the request.

12. With regard to student grades, the directives

specifically a dvised Respondent of the importance of grading

students in Ð quantifiable, definitive , and well - documented Ñ

methods. Respondent was specifically directed to:

• Record daily each studentÓs classroom

participation in GradeQuick usin g the 1 - 4

rubric similar to the conduct grade. For an

absent student do not record a grade. Use

the average of the daily grades to determine

the classroom participation grade for the

semester.

• Enter no less than two (2) grades into

GradeQuick each week , exclusive of the daily

class participation grade.

• Provide each student with a hardcopy rubric

explaining how grades will be determined for

a student project or presentation at th e time

the assignment is given.

• Have at least one higher order question

( BloomÓs Taxonomy) requiring students to

respond in a short essay format (5 - 12

sentences) for all unit and final exams.

Examples: Compare & Contr a st . . ., or I f

you were ____, would you have made the same

decision to ____? Why?

• Grade all quizzes, tests , exams, projects,

presentations, and any other similar type

assessment as percentage, no t a letter grade.

• Write short praise comments or words of

encouragement on 50% of each studentÓs

homework assignments, quizzes, tests, exams.

Examples: Way to go! , YouÓre improving !, I

know you can do better . . . . [ 2/ ]

13 . In order to improve RespondentÓs communication and

recordkeeping with parents, Respondent was also specifically

directed to:

• Maintain a parent contact log book with first

and last names of mothers, fathers, and legal

guardians with their telephone numbers (home,

work, and cell), and email address for each

student assigned to you. The log will be

maintained by instructional periods and

alphabetized by the last name of students.

Allow for o ne complete page for each

parent/student entry so that as the school

year progresses there will be ample room for

notes resulting from your parent contacts.

You may use computer software rather

paper/pen to maintain the log.

• Write the date, the method o f communication

(i.e. in - person conference, phone, email),

the name of the person you contacted, the

salient points made by you and the parent(s)

for each parent contact. Should a parent be

unavailable, record the date/time and method

of attempted contact .

• Make verbal contact (phone or in person) with

at least one parent of the each student

assigned to you within fifteen (15) days of

the first day of a new school year.

• Notify parents whose child has a grade

average of a D or F, no less than fifteen

(15 ) days prior to the conclusion of a

semester.

• Notify parents whose child has a less than

satisfactory behavior grade no less than

twenty (20) days prior to the conclusion of a

semester.

• Have an in - person parent - teacher - student

conference for any studen ts experienc ing

severe behavioral issues or repeated patterns

of unacceptable conduct within ten (10) days

of you determining that such a problem

exists.

• Have an in - person parent - teacher - student

conference for any students receiving a

failing semester gr ade within ten (10) days

of the issuance of the report card.

• Not to contact parents when you are scheduled

to teach students.

• Have your parent contact log available to the

schoolÓs administration on the day of

request.

14. The May 12, 2014, directive s were effective

immediately , as well as for the 2014 - 2015 school year.

15 . Respondent was specifically advised that failure to

adhere to the directives will constitute insubordination and

subject her to disciplinary action , including termination .

1 6 . Respondent refused to sign and acknowledge her receipt

of these directives.

1 7 . However, Respondent received the written directives on

May 12, 2014 .

2014 - 2015 School Year

18 . On August 21, 2014, Respondent attended a

pre - determination meeting wi th Principal Alexander - Prophet e and

Robert Pinkos, the Schoo l BoardÓs h uman resources m anager.

Respondent refused to participate in the meeting.

19 . On August 21, 2014, Principal Alexander - Prophet e

delivered to Respondent a memorandum of the meeting, re minding

Respondent of the May 12, 2014, directives . Respondent was

specifically directed to deliver to Principal

Alexander - Prophet e Ós office her current parent contact log,

student portfolios, and records of grades by the close of the

school day on Septe mber 4, 2014. Respondent was further advised

that if she needed assistance delivering the material to

Principal Alexander - Prophet e Ós office, she should contact

Principal Alexander - Prophet e by the close of the school day on

September 3, 2014, so that th e p rincipal can make the necessary

arrangements.

2 0 . Again, Respondent refused to sign and acknowledge her

receipt of this memorandum.

21 . However, Respondent received the memorandum on

August 21, 2014 .

2 2 . On September 5, 2014, Respondent attended a

pre - determination meeting with Principal Alexander - Prophete and

Mr. Pinkos . During the meeting, Principal Alexander - Prophet e

found Respondent was insubordinate for failing to adhere to prior

directives by failing to maintain student portfolios,

recordkeep ing, and grades as directed. Again, Respondent refused

to participate in the meeting and f ailed to sign and acknowledge

receipt of the September 9, 2014, memorandum memorializing the

meeting.

2 3 . However, Respondent received the September 9, 2014,

me morandum.

2 4 . On September 12, 2014, Principal Alexander - Prophete

issued to Respondent a written notation of a verbal reprimand for

neglect of duty and insubordination for failing to adhere to

directives regarding the following: insufficient work in stu dent

portfolios; no submissi on of lesson plans for the 2014 - 2015

school year; multiple class periods with no recorded grades; and

insufficient contact with parents. Again, Respondent refused to

sign and acknowledge receipt of the September 12, 2014, writt en

notation of a verbal reprimand.

2 5 . However, Respondent received the written notation of a

verbal reprimand on September 12, 2014 .

2 6 . On September 18, 2014, Principal Alexander - Prophete

specifically directed that Respondent meet with her on Tuesda y,

September 23, 2014, at 9:45 a.m. , in the principalÓs office and

to bring with her to the meeting the following: Ðstudent

portfolios, telephone logs of parent contact, and your GradeQuick

grade print out for all class periods.Ñ Again, Respondent

refuse d to sign and acknowledge receipt of the September 18,

2014, memorandum containing this directive.

2 7 . However, Respondent received the September 18, 2014,

memorandum.

2 8 . Respondent did not provide any records for review on

September 23, 2014, as di rected .

29 . On October 3, 2014, Respondent attended a

pre - determination meeting with Principal Alexander - Prophete and

Mr. Pinkos . During this meeting , Respondent was found to be

grossly insubordinate and negligent for her repeated failure to

adhere to prior administrative directives by failing to provide a

parent contact log, student portfolios, and grades as directed.

3 0 . On October 14, 2014, Principal Alexander - Prophet e

issued to Respondent a written reprimand for dereliction of duty

and gross insu bordination for failing to have her student

portfolios, grades, and parent contact log available for

administrative review on September 23, 2014 , as directed.

3 1 . Notably, the documents reviewed by Principal

Alexander - Prophet e during the October 3, 201 4, meeting

demonstrated that RespondentÓs student portfolios did not contain

any student work , and there was no rubric to show how grades

would be determined. Grades in Grade Quick had not been entered

on an ongoing basi s, and g rades that had only recently been

entered in Grade Quick could not be authenticated because there

were no assessments or student work in the portfolios. There was

no daily record of student conduct grades , and t he parent log was

noncompliant .

3 2 . Respondent was advise d in the writ ten reprimand that

failure to adhere to the directives would result in further

disciplinary action, including up to termination.

3 3 . Again, Respondent refused to sign and acknowledge

receipt of the written reprimand.

3 4 . However, Respondent received the written reprimand on

October 14, 2014 .

3 5 . On October 24, 2014, Carissa Battle, a vice - principal

at Carver, sent an email to Respondent reminding Respondent that

her lesson plans were due October 7, 2014, and that this was the

Ðsecond and final notic e that your plans have not been submitted

for Administrative Review.Ñ Respondent was directed to submit

her lesson plans by 4:10 p.m. , on October 27, 2014.

3 6 . On October 27, 2014, Principal Alexander - Prophet e sent

Respondent a memorandum directing Resp ondent to meet with her on

Monday , November 3, 2014, at 10:30 a.m., in the principalÓs

conference room . The purpose of the meeting was to review

RespondentÓs recordkeeping and her adherence to the prior

directives. In the memorandum, Respondent was direc ted to bring

with her the following: student portfolios, telephone logs of

parent contact, and her GradeQuick grade print out for all class

periods. Respondent was informed that failure to attend this

meeting will be considered insubordination and may re sult in

disciplinary action.

37 . Again, Respondent refused to sign and acknowledge

receipt of the memorandum.

38 . However, Respondent received the memorandum.

39 . Respondent failed to attend the meeting scheduled for

Monday , November 3, 2014, at 10:3 0 a.m., and she failed to have

the requested records available in the principalÓs conference

room as directed.

4 0 . When Respondent failed to attend the meeting scheduled

for 10:30 a.m., Principal Alexander - Prophete and Mr. Pinkos went

to RespondentÓs cla ssroom at approximately 11:00 a.m., during

RespondentÓs scheduled break from teaching . At that time,

Principal Alexander - Prophete and Mr. Pinkos reviewed RespondentÓs

student portfolios, lesson plans, grades, and parent contact

logs . There were no studen ts in the classroom.

4 1 . There was insufficient work in RespondentÓs student

portfolios. The portfolios were folders with student names

written on the outside. The portfolios were divided by

instructional periods. In each of the first - period portfoli os,

there were two papers: Ð a T/F Chapter 1 Quiz answer sheet on

notebook paper dated September 8, 2014, and a Section 1 Quiz

[ dated ] September 10, 2014. Ñ There were no other documents in

the first - period student portfolios. An examination of the

studen t portfolios for RespondentÓs other classes showed that

they were all empty.

4 2 . No lesson plans had been received from Respondent for

any period of time during the 2014 - 2015 school year. Respondent

pointed to an envelope and provided Mr. Pinkos with a document

inside the envelope titled ÐCarver Middle School [ - ] School wide

Positive Behavior Matrix/Single School Culture Lesson Plans

2014 - 2015 School Year.Ñ Respondent indicated that this document

cons titu t es her lesson plans. However, this document is not a

teacherÓs lesson plan , but rather a published lesson guide not

prepared by a teacher. The collective bargaining agreement

specifies a teacherÓs lesson plan format. Respondent failed to

produce any l esson plans for the 2014 - 2015 school year , and sh e

had no lesson plans for the 2014 - 2015 school year .

43 . There was insufficient contact with parents.

Respondent produced the identical parent contact log that

Principal Alexander - Prophet e previously reviewed . There were no

new entries on the log prov ided by Respondent on November 3,

2015.

44 . Principal Alexander - Prophet e told Respondent she would

continue the discussion of RespondentÓs recordkeeping in her

office. However, Respondent refused to continue the meeting in

the principalÓs office .

45 . Principal Alexander - Prophet e returned to her office and

reviewed RespondentÓs student grades from GradeQuick. There were

no recorded grades for multiple class periods. Moreover, a

review of grades posted for certain class periods revealed an

insufficien t number of grades for RespondentÓs students .

46 . At this point in the second marking period, all

students should have received a minimum of four grades recorded

as teachers are required to record two grades per week per

student. Respondent failed to reg ister any grades for most of

her students, and for the few scant grades that she recorded,

they could not be supported.

47 . Teachers were directed by the schoolÓs administration

to have their grades submitted by October 20, 2014, for the first

grading per iod report card. Respondent failed to submit any

grades for her students , and after attempts to have her do so,

the schoolÓs administration formulated grades for RespondentÓs

students that were posted on the first grading period report

card.

4 8 . The pe rsuasive and credible evidence adduced at hearing

clearly and convincingly establishes that Respondent is guilty of

misconduct in office in violation of Florida Administrative Code

Rule 6A - 5.056(2) .

49 . Maintaining student portfolios, submitting lesson

plans, recording grades, and maintaining sufficient contact with

parents are essential functions of RespondentÓs job as a teacher.

5 0 . By failing to comply with the specific directives

regarding maintaining student portfolios , submitting lesson

plans , r ecording grades , and maintaining sufficient contact with

parents , Respondent violated Florida Administrative Code R ule

6A - 10.081 and School Board Policy 0 .01 2 . c . by engaging in

conduct which failed to make reasonable effort to pro tect her

students from c onditions harmful to learning . Respondent

violated rule s 6A - 5.056(2)(d) and ( e ) by engaging in conduct

which disrupted the studentsÓ learning environment and reduced

RespondentÓs ability to effectively perform duties. Respondent

violated School Board Pol icy 1.013 (1) by failing to carry out her

assigned duties in accordance with state rules and school board

policy. Respondent violated School Boar d Policy 1.013(4) by

failing in her recordkeeping . Respondent violated School Board

Policy 2.34 by failing to faithfully and accurately keep the

records she was specifically directed to keep . Finally,

Respondent violated School Board Policy 3.10(6) by failing to

carry out her responsibilities in accordance with reasonable

directives from her supervisor that did n ot pose an immediate

serious hazard to health and sa f ety or clearly violate

established law or policy.

5 1 . The persuasive and credible evidence adduced at hearing

clearly and convincingly establishes that Respondent is guilty of

incompetence in violati on of r ule 6A - 5.056( 3 ).

5 2 . By failing to comply with the specific directives

identified above, Respondent failed to discharge her required

dut ies as a teacher as a result of inefficiency. Respondent was

inefficient by failing to perform duties prescribe d by law , and

by fail ing to communicate appropriately with and relate to

students, administrators, or parents .

53. The persuasive and credible evidence adduced at hearing

clearly and convincingly establishes that Respondent is guilty of

gross insubord ination in violation of rule 6A - 5.056(4) by

intentionally refusing to obey a direct order, reasonable in

nature, and given by and with proper authority.

54. By failing to comply with the specific directives

detailed above, Respondent intentionally refus ed a direct order,

reasonable in nature, and given by and with proper authority.

55. The persuasive and credible evidence adduced at hearing

clearly and convincingly establishes that Respondent is guilty of

willful neglect of duty in violation of rule 6A - 5.056(5) by

intentionally refusing to carry out required duties.

56. By failing to comply with the specific directives

detailed above, Respondent intentionally refused to carry out

required duties.

5 7 . RespondentÓs failure to comply with the specific

directives detailed above was clearly flagrant and purposeful.

Respondent was capable of performing each of the required tasks

specified in the directives , yet she intentionally chose to

ignore the m .

58. Respondent refused to acknowledge her receipt o f

directives and was warned on multiple occasions that her failure

to comply with the directives could result in disciplinary

action, including her termination. Rather than adhere to the

directives, however, Respondent made a conscious decision to

ignore them and not comply .

CONCLUSIONS OF LAW

5 9 . DOAH has jurisdiction of the subject matter of and

the parties to this proceeding pursuant to sections 120.569

and 120.57(1), Florida Statutes.

60 . Respondent is an instructional employee, as that term

is defined in section 1012.01(2), Florida Statutes (201 5 ).

Petitioner has the authority to suspend and terminate

instructional employees pursuant to sections 1012.22(1)(f),

1012.33(1)(a), and 1012.33(6)(a).

61 . Ordinarily, t he School Board would be req uired to

prove, by a preponderance of the evidence , that Respondent

committed the violations alleged in the Petition , and that such

violations constitute Ðjust causeÑ for suspension and dismissal.

§ 1012.33(1)(a) and (6), Fla. Stat.; Dileo v. Sch. Bd. o f D ade

Cnty . , 569 So. 2d 883, 884 (Fla. 3d DCA 1990) . However, pursuant

to Article II, Section M of the Collective Bargaining Agreement

between the School Board and the Palm Beach Classroom Teachers

Association, the violations must be proven by clear and

con vincing evidence. Moreover, because the School Board seeks to

skip a step of progressive discipline and proceed directly with

the termination of RespondentÓs employment , the violations must

be shown to be Ð clearly flagrant and purposeful Ñ in order to

just ify the penalty of termination. 3/

62 . The "clear and convincing evidence" standard requires

that the evidence be found credible, the facts to which the

witnesses testify must be distinctly remembered, the testimony

must be precise and explicit, and the wi tnesses must be lacking

in confusion as to the facts in issue. The evidence must be of

such weight that it produces in the mind of the trier of fact a

firm belief or conviction, without hesitancy, as to the truth of

the allegations sought to be establishe d. In re Davey , 645 So.

2d 398, 404 (Fla. 1994); Slomowitz v. Walker , 429 So. 2d 797, 800

(Fla. 4th DCA 1983).

6 3 . Whether Respondent committed the charged offenses is a

question of ultimate fact to be determined by the trier of fact

in the context of each alleged violation. Holmes v. Turlington ,

480 So. 2d 150, 153 (Fla. 1985); McKinney v. Castor , 667 So. 2d

387, 389 (Fla. 1st DCA 1995); McMillian v. Nassau Cnty. Sch. Bd. ,

629 So. 2d 226, 228 (Fla. 1st DCA 1993).

6 4 . Sections 1012.33(1)(a) and (6) provide in pertinent

part that instructional staff may be terminated during the

term of their employment contract only for Ðjust cause.Ñ

£ 1012.33(1)(a) and (6), Fla. Stat. ÐJust causeÑ is defined in

section 1012.33(1)(a) to include Ðmisconduct in offi ce , Ñ

Ðincompetency,Ñ Ðgross insubordination , Ñ and Ðwillful neglect of

duty.Ñ

6 5 . Section 1001.02(1), Florida Statutes, grants the State

Board of Education authority to adopt rules pursuant to

s ections 120.536(1) and 120.54 to implement provisions of l aw

conferring duties upon it.

6 6 . Consistent with this rulemaking authority, the State

Board of Education has defined Ðmisconduct in officeÑ in

rule 6A - 5.056(2), effective July 8, 2012, which provides:

(2) ÐMisconduct in OfficeÑ means one or more

o f the following:

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

Education Profession in Florida as adopted in

Rule 6B - 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 studentÓs

learning environment; or

(e) Behavior that reduces the teacherÓs

ability or his or her colleaguesÓ ability to

effectively perform duties .

6 7 . Rule 6 A - 10.080 , titled ÐCode of Ethics of the Education

Profession in Florida,Ñ provides:

(1) The educator values the worth and

dignity of every person, the pursuit of

truth, devotion to excellence, acquisition of

knowledge, and the nurture of democratic

citizenship. Essential to the achievement of

these standards are the freedom to learn and

to teach and the guarantee of equal

opportunity for all.

(2) The educatorÓs primary professional

concern will always be for the student and

for th e development of the studentÓs

potential. The educator will therefore

strive for professional growth and will seek

to exercise the best professional judgment

and integrity.

(3) Aware of the importance of maintaining

the respect and confidence of oneÓs

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.

6 8 . While rule 6A - 5.056(2)(a) provides that violation of

the Code of Ethics rule constitut es Ðmisconduct,Ñ it has been

frequently noted that the precepts set forth in the above - cited

ÐCode of EthicsÑ are Ðso general and so obviously aspirational as

to be of little practical use in defining normative behavior.Ñ

Miami - Dade Cnty . Sch . B d . v. Lantz , Case No. 12 - 3970 (Fla. DOAH

July 29, 2014). 4 /

6 9 . Rule 6A - 5.056(2)(b) incorporates by reference rule

6A - 10.081 , which is titled: ÐPrinciples of Professional Conduct

for the Education Profession in Florida.Ñ Rule 6A - 10.081(3) (a)

p rovides, in pert inent 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 studentÓs mental

and/or physical health and/or safety.

70 . Schoo l Board Policy 0.01 is a ÐruleÑ within the meaning

of rule 6A - 5.056(2)(c). School Board Policy 0.01 2 . c . provides,

in pertinent part:

2. In fulfilling his obligations to the

student, the educator - -

* * *

c . Shall make reasonable effort to protect

the student from conditions harmful to

learning or to health and safety .

71 . School Board Policy 1.013 is a ÐruleÑ within the

meaning of rule 6A - 5.056(2)(c). School Board Policy 1.013

provides, in pertinent part:

1 . It shall be the respo nsibility of the

personnel employed by the district school

board to carry out their assigned duties in

accordance with federal laws, rules, state

statutes, state board of education rules,

school board policy, superintendentÓs

administrative directives and local school

and area rules.

* * *

4 . Teachers

It shall be the duty of the teacher to

provide instruction, leadership, classroom

management and guidance to pupils through

democratic experiences that promote growth

and development both as ind ividuals and as

members of society. Pursuant to § 231.09,

Fla. Stat., teachers shall perform duties

prescribed by the school board policies

relating, but not limited, to helping

students master challenging standards and

meet all state and local requiremen ts for

achievement; teaching efficiently and

faithfully; using prescribed materials and

methods, including technology - based

instruction; recordkeeping; and fulfilling

the terms of any contract, unless released

from the contract by the school board.

72 . School Board Policy 2.34 is a ÐruleÑ within the meaning

of rule 6A - 5.056(2)(c). School Board Policy 2.34 provides that:

All Board employees shall faithfully and

accurately keep such records as may be

required by law, State Board regulations,

School Board policy or their supervisor.

Such records shall include pupil attendance,

property inventory, funds and other types of

information . Reports of such records shall

be submitted on forms prescribed for such

purposes and at designated intervals or

dates .

73. School Board Policy 3.10(6) is a ÐruleÑ within the

meaning of rule 6A - 5.056(2)(c). School Board Policy 3.10(6)

provides , in pertinent part:

The District requires its employees to carry

out their responsibilities in accordance to

. . . reas onable directives from their

supervisors that do not pose an immediate

serious hazard to health and safety or

clearly violate cle arly established law or

policy.

7 4 . Consistent with its rulemaking authority, the State

Board of Education has defined Ð incompetencyÑ in rule

6A - 5.056(3), which provides , in pertinent part :

(3) ÐIncompetencyÑ means the inability,

failure or lack of fitness to discharge the

required duty as a result of inefficiency or

incapacity.

(a) ÐInefficiencyÑ means one or more of the

following:

1. Failure to perform duties prescribed by

law;

2. Failure to communicate appropriately with

and relate to students.

3. Failure to communicate appropriately with

and relate to colleagues, administrators,

subordinates, or parents;

7 5 . Consistent with its rulemaking authority, the State

Board of Education has defined Ðgross insubordinationÑ in

rule 6A - 5.056(4), which provides:

(4) ÐGross insubordinationÑ means the

intentional refusal to obey a direct order,

reasonable in na ture, and given by and with

proper authority; misfeasance, or malfeasance

as to involve failure in the performance of

the required duties.

7 6 . Consistent with its rulemaking authority, the State

Board of Education has defined Ðwillful neglect of du tyÑ in rule

6A - 5.056(5) to mean Ðintentional or reckless failure to carry out

required duties.Ñ

7 7 . Turning to the present case, the School Board proved by

clear and convincing evidence that Respondent i s guilty of

misconduct in office in viola tion of rule 6A - 5.056(2). As

detailed above, t he School Board proved by clear and convincing

evidence that Respondent is guilty of misconduct in office, in

that she failed to make reasonable effort to protect students

from conditions harmful to learning; engaged in conduct which

disrupted the studentsÓ learning environment and reduced

RespondentÓs ability to effectively perform duties; failed to

carry out her assigned duties in accordance with state rules and

school board policy; and failed to faithfully a nd accurately keep

the records she was specifically directed to keep .

7 8 . The School Board proved by clear and convincing

evidence that the Respondent is guilty of incompetence in

violation of rule 6A - 5.056(3) . As detailed above, Respondent was

inef ficient by failing to perform duties prescribed by law, and

by failing to communicate appropriately with and relate to

students, administrators, or parents.

7 9 . The School Board proved by clear and convincing

evidence that Respondent is guilty of gr oss insubordination in

violation of rule 6A - 5.056(4) by intentionally refusing to obey a

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

authority.

80 . The School Board proved by clear and convincing

evidence that Respondent is guilt y of willful neglect of duty in

violation of rule 6A - 5.056(5) by intentionally failing to carry

out required duties.

8 1 . As detailed above, the School Board proved that

RespondentÓs failure to comply with the specific directives was

clearly fragr ant and purposeful.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Palm Beach County School Board

enter a final order upholding the suspension and terminating

RespondentÓs employment.

DONE AND ENTERED this 31st day of December , 2015 , in

Tallahassee, Leon County, Florida.

S

DARREN A. SCHWARTZ

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Flo rida 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 31st day of December , 2015 .

ENDNOTES

1/ RespondentÓs Amended Proposed Recommended Order was filed at

DO AH on November 30, 2015, and has been considered in the

preparation of this Recommended Order.

2/ The directi ves further provided, ÐSemester grades must

correspond to your entries in GradeQuick and the contents in

student portfolios.Ñ

3/ Pursuant to the Collective Bargaining A greement, there are

four steps in the disciplinary process: 1) a written notation of

a verbal reprimand; 2) a written reprimand; 3) suspension without

pay; and 4) termination of employment.

4 / The undersigned reaches the same conclusion with respect to

sections 3.02(4)(a), (c), (f), and (h) of the School BoardÓs

ÐCode of Ethics.Ñ

COPIES FURNISHED:

Nicholas Anthony Caggia, Esquire

Law Office of Thomas L. Johnson, P.A.

Suite 309

510 Vonderburg Drive

Brandon, Florida 33511

(e Served)

Jean Marie Middleton, Esquire

School District of Palm Beach County

Office of General Counsel

Suite C - 323

3300 Forest Hill Bou levard

West Palm Beach, Florida 33416

(eServed)

Pam Stewart , Commissioner of Education

Department of Education

Turlingt o n Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Matthew Mears, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Dr. Robert Avossa, Superintendent

Palm Beach County School Board

3300 Forest Hill Boulevard, Suite C - 316

West Palm Beach, Florida 33406 - 5869

(eServed)

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 Order in this case.