15-003546TTS Broward County School Board vs. Sherry Abram Status: Closed Recommended Order on Wednesday, January 27, 2016.

Summary: Petitioner proved, by a preponderance of the evidence, that Respondent committed misconduct in office and gross insubordination, in violation of rule 6A-5.056. Recommend upholding three-day suspension without pay.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BROWARD COUNTY SCHOOL BOARD,

Petitioner,

vs.

Case No. 1 5 - 3546

SHERRY ABRAM ,

Respondent.

/

RECOMMENDED ORDER

A hearing was conducted in this case pu rsuant to sections

120.569 and 120.57(1), Florida Statutes (201 5 ), before Cathy M.

Sellers, an Administrative Law Judge of the Division of

Administrative Hearings ( " DOAH " ), on September 24, 2015 , by

webcast at sites in Fort Lauderdale and Tallahassee, Flor ida.

APPEARANCES

For Petitioner: Adrian Alvarez, Esquire

Haliczer, Pettis, & Schwamm, P.A.

One Financial Plaza, Seventh Floor

100 Southeast Third Avenue

Fort Lauderdale, Florida 33394

For Respondent: Robert F. McKee, Esquire

Robert F. McKee, P.A.

1718 East Seventh Avenue, Suite 301

Tampa, Florida 33605

STATEMENT OF THE ISSUE

The issue in this case is whether just cause exists,

pursuant to section 1012.33, Florida Statutes (2012) , for

P e titioner to suspend Respondent from her duties as a teacher ,

without pay, for three days .

PRELIMINARY STATEMENT

On or about December 6, 201 2 , Petitioner , Broward County

School Board, took action against Respondent , Sherry Abram, to

suspend her from her duties as a teacher , without pay, for three

days. Respondent timely requ ested an administrative hearing,

and the matter was referred to DOAH to conduct a hearing

pursuant to sections 120.569 and 120.57(1). Th e case was

assigned Case No. 1 3 - 1971. At the final hearing, the parties

represented that they had reached a conceptual settlement, so

the case was closed .

However, when the parties were unable to finalize the

settlement, this proceeding was opened and assigned Case

No. 15 - 3546 . The final hea ring initially was scheduled for

August 31, 2015, but due to the approach of Tropical Storm

Erika, was continued until September 24, 2015.

The final hearing was held on September 24, 2015.

Petitioner presented the testimony of Lori Mc Conaughey, Monic a

Soifer, Glendo r Williams, and Claudia Dean by deposition .

Petitioner ' s Exhibits 1, 2, 6 through 9, 11A, 12, 15, 16,

19 through 21, 24, and 25 were admitted into evidence without

objection . Respondent testified on her own behalf and presented

the testi mony of Latoucha Jackson - Bush, Suzanne O ' Neill, and

Edith Stafford. Respondent ' s Exhibits 1, 2, 4 through 6, and 9

were admitted into evidence without objection, and Respondent ' s

Exhibits 3 , 7, and 8 were admitted over objection.

The two - volume Transcri pt was filed on October 15, 2015.

Pursuant to motions for extension of time, the parties were

given until November 30, 2015, to file thei r proposed

recommended orders . The parties ' proposed recommended o rders

were timely filed and duly considered in prep aring this

Recommended Order.

FINDINGS OF FACT

I. The Parties

1. Petitioner is a duly - constituted school board charged

with the duty to operate, control, and supervise all free public

schools i n the School District of Broward County, Florida,

pursuant to Article IX, section 4(b) , Florida Constitution, and

section 1001.32, Florida Statutes.

2. During the 2012 - 2013 school year , R espondent was

employed as a teacher in the Head Start Program ( " Head Start " )

at Quiet Waters Elementary School ( " Quiet Waters " ) in Broward

County, Florida , pursuant to a professional services contract.

II. Evidence Adduced at the Hearing

3. Head Start is a federally - funded program that provides

comprehensive early childhood education, health, and nutrition

services to low - in come children. In order for the school system

to qualify , or continue to qualify , for Head Start funding, the

Head Start Performance Standards must be met. Noncompliance

with these standards may cause the school system to los e funding

for the program.

4. At the beginning of the 2012 - 2013 school year, a

schedule of deadlines titled " Head Start (HS) Program 2012 - 2013

Due Dates " ( " HS Schedule " ) for various assessments conducted as

part of Head Start was distributed to each Head Start teacher,

including R espondent . Additionally, the HS Schedule was covered

at an in - service workshop conducted for Head Start teachers.

The HS Schedule provided a description of the assessment tasks

and information due and the date on which each was due.

5 . The HS Schedul e established an October 3, 201 2 ,

deadline to complete the 45 - day screening assessments for

students who were enrolled in Head Start as of August 20, 2012.

6 . It is undisputed tha t Respondent failed to meet the

October 3, 2012, deadline for completing t he 45 - day screening

assessment s for the students in her class.

7 . P ursuant to approved leave, Respondent missed

approximately eight days of work between September 27, 2012, and

October 8, 2012, due to illness of herself and a family member.

8. At th e beginning of the school year, Respondent's

classroom was not equipped with a functional computer. On or

about September 14, 2012, the Head Start program provided a

desktop computer to Respondent so that she could enter the

information required by the pr ogram into the Head Start program

computer database.

9 . On October 23, 2012, Claudia Dean, the Head Start

Coordinator for Broward County Public Schools , notified

Respondent by electronic mail ("email") that her Head Start

classroom was out of compliance with the Head Start program

standards because she had missed the October 3, 2012, deadline

for completing the 45 - day assessments, in violation of Head

Start Performance Standard 1304.20(b)(1). Dean informed

Respondent that all of the 45 - day assessment in formation had to

be entered into the computer database no later than " Friday,

October 23, 2012 . " 1/

10 . It is undisputed that Respondent did not enter this

information by Friday, October 26, 2012, so she also failed to

meet this deadline.

1 1 . As par t of her October 23, 2012, email correspondence

with Respondent , Dean reminded Respondent of the Head Start

program's imp ending Fall Checkpoint deadline of October 26,

2012, for completing Teaching Strategies GOLD © ( " TSG " ) Assessment

Portfolios for her stu dents.

1 2 . Additionally, o n October 25, 2012, the supervisor of

the preschool curriculum for Broward County Public Schools sent

a reminder email to all Head Start teachers, including

Respondent, regarding the October 26, 2012, Fall Checkpoint

deadline and the requirement to have all TSG Assessment

Portfolios information entered into the computer database by

that date .

1 3 . It is undisputed that Respondent did not enter the TSG

Assessment Portfolios information for her students by the

Friday, October 26 , 2012, deadline.

14. On or about October 30, 2012, Respondent received a

laptop computer for her use in entering the required information

into the Head Start program computer database. 2/

15 . As of November 2, 2012, Respondent still had not

entered t he information for the Head Start program that was due

on October 3 and October 26, 2012 , into the computer database .

1 6 . On November 2, 2012, McConaughey conducted a meeting

with Respondent and other Head Start team members, specifically,

Claudia Dean; William Hartner, a ssistant p rincipal at Quiet

Waters; Monica Soifer, teacher specialist for the Head Start

program at Quiet Waters; Glendor Williams, social worker for the

Head Start program; Ed Peddell, Broward Teachers Union

representative for Quiet Wate rs; and Deputy Debra Bridgman,

school resource officer at Quiet Waters. This meeting was

prompted by email communication from Respondent to McConaughey,

Soifer, Dean, and others, regarding Respondent's inability to

work with Soifer , a nd requesting that an other teacher specialist

for Head Start be assigned to Quiet Waters. 3 / McConaughey

conducted the meeting specifically to address these issues so

that the Head Start team could more smoothly work together.

1 7 . At the meeting, Respondent claimed that he r email was

being delayed so that she was not timely rec eiving it, and that

it was being deleted from her computer. S he contended that she

was deliberately being sabotaged. 4 / She further claimed that

because she had not timely received a laptop computer , she was

unable her to enter the required information .

1 8 . At the meeting, Respondent represented that on

November 5, 2012, she could enter all of the information due for

the October 3 and October 26, 2012, assessments, and she

requested that Head Start pay for a substitute teacher to cover

her classes on that da y so that she could complet e those tasks.

1 9 . With the specific understanding that Respondent would

spend the school day on November 5, 2012, completing the entry

of the overdue information, De an approve d the use of Head Start

funds to pay for a substitute teacher to cover Respondent's

classes that day. Thus, Respondent was approved for "TDA" on

November 5, 2012 ÏÏ meaning that she received temporary duty

authorization for that school day specifi cally to enabl e her to

enter the overdue information into the Head Start computer

database.

20 . However, Respondent did not log into the Head Start

computer database until approximately 2:00 p.m. the afternoon of

November 5, 2012, and then only for a short period of time, even

though she had been approved for TDA for that entire school day.

21. It is undisputed that Respondent did not complete the

entry of the overdue information into the Head Start computer

databas e on November 5, 2012 .

22 . To the extent Respondent entered some of the

information into the Head Start database that day , the

information either was incomplete or substantially inaccurate.

23. On the evening of November 5, 2012, Dean notified

Respondent of these deficiencies and th e need to expeditiously

address them, and again informed Respondent that her classroom

remained out of compliance with Head Start program performance

standards.

2 4 . As of the morning of November 9, 2012, Respondent

still had not correctly entered all of the overdue information,

and her classroom remained out of compliance with the Head Start

program performance standards.

2 5 . By then , Dean had notified Respondent at least twice

that her classroom remained out of com pliance with Head Start

performance standards.

2 6 . On November 9, 2012, McConaughey issued a written

reprimand to Respondent due to her failure to complete entry of

the information that was due on October 3 and October 26, 2012 .

In pertinent part, t he written reprimand stated:

You have fa iled to meet the performance

standards required of your position as a

Headstart [sic] teacher. Specifically, you

have consistently failed to adhere to

Headstart [sic] Performance Standard

1304.02(b)(1), which requires that all

developmental, sensory, and behavioral

screenings be completed within 45 days of a

child's entry into the program. Your poor

performance adversely impacts Quiet Waters

Elementary School and is contrary to the

efficient and effective operation of the

Headstart [sic] program at Quiet Waters

Elementary School by failing to support the

School Board of Broward County, Florida [,]

in its goals of achieving the highest

potential level for each of its students and

meeting each student's achievement needs.

Your failure to adhere to federal guidelines

of the Headstart [sic] program is a serious

breach of conduct that cannot be tolera ted.

Therefore, I am issuing y ou this written

reprimand that is consistent with School

Board Policy 4.9 and past practices of the

School Board of Broward County, Florida.

Please be advised that further failure on

your part to perform to the standards

established for the effective and productive

performance of your duties as a Headstart

[sic] [t]eacher will result in further

disciplinary action, up to and incl uding

termination of your employment.

2 7 . A s of November 14, 2012, Re spondent still had not

completely entered all of the required information into the Head

Start computer database. At that time, Dean again notified

Respondent that her classroom rema ined out of compliance with

the Head Start Performance Standards.

2 8 . On November 20, 2012, Dean notified McConaughey that

Respond ent still had not completed entry of the overdue

information into the Head Start computer database.

2 9 . On December 6, 2012, McConaughey prepared a letter

formally notifying Respondent that she was recommending that

Respondent be suspended for three days without pay. The stated

grounds for the recommendation were as follows:

You have failed to meet the performance

standa rds of your position as a Head Start

Teacher. Specifically, you have

consistently failed to adhere to Head Start

Performance Standard 1304.02(b)(1), which

requires that all developmental, sensory,

and behavioral screenings be completed

within 45 days of a child's entry to the

program. Your poor performance adversely

impacts Quiet Waters Elementary School and

is contrary to the efficient and effective

operation of the Head Start program at Quiet

Waters Elementary School by failing to

support the School Boa rd of Broward County,

Florida[,] in its goals of achieving the

highest potential level for each of its

students and meeting each student's

achievement needs.

30 . On February 5, 2013, Petitioner took action to suspend

Respondent from her teaching dutie s , without pay, for three

days. Respondent served her suspension on May 14 through 16,

2013.

3 1 . Respondent acknowledges that she did not meet the

October 3, 2012, or October 26, 2012, deadlines for entry of the

required information into the Head Star t computer database . Sh e

also acknowledges that she did not complete entry of the overdue

information on November 5, 2012 , as she had committed to do .

H owever, she maintains that extenuating circumstances prevented

her from meeting these deadlines.

3 2 . Specifically, she claims that she did not have access

to a functional computer that would enable her to do her work

until mid - September, and that shortly thereafter she had taken

medical leave, so she did not have time to complete the required

tasks. S he asserts that she should have gotten an extension of

the October 3 and October 26, 2012, deadlines.

33. She also claims that she did not receive email

regarding the Head Start program because someone was

"sabotaging" her computer by deleting her email .

3 4 . She further claims that on November 5, 2012, she

attempted to access the Head Start computer database from

several remote locations in Broward County in order to enter the

overdue information , but she had difficulty access ing the

database so was un able to complete entry of the information that

day.

3 5 . The credible evidence shows that as of mid - Septe mber

2012, Respondent had access to a functioning des ktop computer in

her classroom. Thus, she had ample time to at least make

substantial progress toward completing entry of the assessments

information due on October 3, 2012 ; in any event, this does not

explain or excuse her failure to meet the October 26, 2012, TSG

assessments deadline. Further, even if the desktop computer in

Respondent's classro om did not function properly, the credible

evidence establishes that she had access to other computers at

Quiet Waters on which to perform her work.

3 6 . Respondent did not present credible, persuasive

evidence supporting her assertion that her email and work were

being sabotaged.

3 7 . The evidence shows that Respondent did , in effect,

receive extensions of the October 3 and October 26, 2012,

deadlines to complete entry of the information due on those

dates. E ven after Respondent committed to enter the information

on November 5, 2012, and then failed to do so, 5 / McConaughey

still did not reprimand her until November 9, 2012 ( the end of

that school week ) ÏÏ and then only after Respondent repeatedly had

been reminded th at week that she needed to expediti ously

c omplete th ose task s .

3 8 . Further, even after she received a written reprimand

that fully informed her of the reasons why she was being

disciplined and notified her of the consequences of her

continued failure to meet the Head Start performance s tandards,

Respondent still had not complete d entry of the overdue

information as of late November 201 2.

III. Findings of Ultimate Fact

3 9 . Based on the foregoing, it is determined that

Respondent engaged in misconduct in office, as defined in

Florida Administrative Code R ule 6A - 5.056 (2), and gross

insubordination, as defined in r ule 6A - 5.056(4) . 6/

A. Misconduct in Office

40 . Respondent's conduct in failing to complete the

required Head Start tasks well after the applicable deadlines

reduced her a bility to effectively perform her duties as a Head

Start teacher, and had the potential to disrupt the student

learning environment by jeopardizing the continued funding of

the Head Start program at Quiet Waters due to noncompliance.

4 1 . Respondent 's o ngoing failure to complete the required

tasks evidence that she did not exercise the best professional

judgment and that she did not make the students her primary

professional concern, in violation of Florida Administrative

Code R ule 6B - 1.001.

B. Gross Insubordination

4 2 . Respondent's failure to comply with Dean's and

McConaughey's repeated requests and directives regarding entry

of the overdue information into the Head Start database

constitute d gross insubordination. Respondent's ongoing conduct

ove r a period of weeks evidences her intentional refusal to obey

direct orders , reasonable in nature, from McConaughey and Dean ,

both of whom possessed the authority to issue such directives to

Respondent.

43. Based on the foregoing, it is determined that just

cause exists to suspend Respondent from her teaching duties for

three days without pay.

CONCLUSIONS OF LAW

44 . DOAH has jurisdiction over the parties to, and subject

matter of, this proceeding pursuant to sections 120.569 and

120.57(1).

45 . In th is proceeding, Petitioner seeks to suspend

Respond ent from her teaching duties for just cause under section

1012.33 ÏÏ specifically, on the basis of misconduct in office and

insubordination as defined in r ule 6A - 5.056.

46 . Respondent is an i nstructional em ployee, as that term

is defined in section 1012.01(2). Petitioner has the authority

to suspend and terminate instructional employees pursuant to

sections 1012.22(1)(f) and 1012.33(1)(a) and (6)(a).

47 . To do so, Petitioner must prove, by a preponderan ce of

the evidence, that Respondent committed the alleged violations,

and that such violations constitute a basis for suspension and

termination. McNeil v. Pinellas Cnty. Sch. Bd. , 678 So. 2d 476,

477 (Fla. 2d DCA 1996); Dileo v. Sch. Bd. of Dade Cnty. , 5 69 So.

2d 883 (Fla. 3d DCA 1990).

48 . W hether Respondent committed the charged violations 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. 19 85); McKinney v. Castor ,

667 So. 2d 387, 389 (Fla. 1st DCA 1995); Langston v. Jamerson ,

653 So. 2d 489, 491 (Fla. 1st DCA 1995).

49 . Section 1012.33 provides in relevant part:

(1)(a) Each person employed as a member of

the instructional staff in any district

school system shall be properly certified

pursuant to s. 1012.56 or s. 1012.57 or

employed pursuant to s. 1012.39 and shall be

entitled to and shall receive a written

contract as specified in this section. All

such contracts, except continuing c ontracts

as specified in subsection (4), shall

contain provisions for dismissal during the

term of the contract only for just cause.

Just cause includes, but is not limited to,

the following instances, as defined by rule

of the State Board of Education: . . .

misconduct in office, . . . [and] gross

insubordination.

50 . Rule 6A - 5. 056 7 / defines the grounds enumerated in

section 1012.33 (1)(a) for finding just cause. This rule

provides in pertinent part:

" Just cause " means cause that is legally

sufficient . Each of the charges upon which

just cause for a dismissal action against

specified school personnel may be pursued

are set forth in Sections 1012.33 and

1012.335, F.S. In fulfillment of these

laws, the basis for each such charge is

hereby defined:

* * *

(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 - 1.08 1 , F.A.C.;

(b) A violation of the Principles of

Professional Conduct for the Education

Profession in Florida as adopted in Rule 6 B -

1.006 , 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 h er colleagues ' ability to

effectively perform duties.

* * *

(4) " Gross insubordination " means the

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.

51 . Rule 6B - 1.001, the Code of Ethics of the Education

Profession in Florida, provides in pertinent part : "(2) [t] he

educatorÓs primary professional concern will always be for the

student and for the de velopment of the studentÓs potential. The

educator will therefore strive for professional growth and will

seek to exercise the best professional judgment and integrity. "

52. Based on the foregoing Findings of Fact, it is

concluded that Respondent engage d in misconduct in office, as

defined in rule 6A - 5.056(2), and gross insubordination, as

defined in rule 6A - 5.056(4).

53. Accordingly, it is concluded that just cause, pursuant

to section 1012.33(1)(a), exists to suspend Respondent from her

teaching duti es , without pay, for three days.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that Petitioner, Broward County School

Board, enter a final order upholding Respondent ' s suspension

from her teaching duties , without pay, for three days on the

basis of just cause under section 1012.33, Florida Statutes.

DONE AND ENTERED this 27th day of J anuary, 2016 , in

Tallahassee, Leon County, Florida.

S

CATHY M. SELLERS

Administrative Law Judge

Division of Admini strative 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

t his 27th day of January, 201 6 .

E NDNOTES

1/ The email from Dean to Respondent was sent on October 23,

2012, a Tuesday. Thus, Dean's reference to "Friday, October 23,

2012" appears to be an error. In any event, as discussed below,

Respondent did not enter the information to which Dean referred

by Friday, October 26, 2012.

2 / Because two laptop computers previously had been stolen while

in her possession, Respondent was not authorized to take the

laptop computer off of school premises. The persuasive evidence

did not establish that Re spondent's inability to take the laptop

off of school premises rendered her unable to enter the required

information into the Head S tart computer database.

3 / Respondent's email, dated September 12, 2012, alleged a

variety of issues and incidents between herself and Soifer.

4 / The previous school year, two laptop computers had been

stolen while checked out to Respondent and in her possession.

The credible evidence showed that although Respondent was not

provided a laptop computer until approximately Oct ober 30, 2012,

due to lack of availability of funds to replace the laptop

computers that had been stolen while in her possession, she had

access, since mid - September 2012, to multiple desktop computers

in her classroom.

5 / Respondent's explanation as to w hy she was unable to enter

the information into the Head Start computer database on

November 5, 2012, was not credible.

6/ Respondent's contention that the Administrative Complaint is

legally insufficient lacks merit. The Administrative Complaint

alleg es facts sufficient to place Respondent on notice regarding

the conduct alleged to violate rule 6A - 5.056, and identifies the

specific provisions of rule 6A - 5.056 alleged to have been

violated ÏÏ i.e., subsections (2) and (4) of that rule. This is

sufficient to meet the standard that the administrative

complaint must be specific enough to inform the accused , with

reasonable certainty , of the nature of the charge. Seminole

Cnty. Bd. of Cnty. Comm'rs v. Long , 422 So. 2d 938, 940 (Fla.

5th DCA 1982). Although the Administrative Complaint did not

specify the provisions of rules 6B - 1.001 and 6B - 1.006 alleged to

have been violated, that shortcomi ng is immaterial in this case

because the undersigned found only that Resp ondent violated one

provision of rule 6B - 1.001 ÏÏ a very short rule ÏÏ and that she did

not violate any provisions of rule 6B - 1.006.

7 / The version of rule 6A - 5.056 applicable to this proceeding

went into effect on July 8, 2012. At that time, rules 6B - 1.001

and 6B - 1.006 were still in effect. On Janua ry 11, 2013, rule

6B - 1.001 was transferred to rule 6A - 10.080 and rule 6B - 1.006 was

transferred to rule 6A - 10.081.

COPIES FURNISHED :

Robert F. McKee, Esquire

Kelly & McKee

1718 East 7th Avenue, Suite 301

Tampa, Florida 33605

(eServed)

Eugene K. Pettis, Esquire

Haliczer, Pettis, and Schwamm, P. A.

One Financial Plaza, Seventh Floor

100 Southeast Third Avenue

Fort Lauderdale, Florida 33394

(eServed)

Matthew Mears, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaine s Street

Tallahassee, Florida 32399 - 0400

(eServed)

Pam Stewart, Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Robert Runcie, Superintendent

Broward Co unty School Board

600 Southeast Third Avenue, Floor 10

Fort Lauderdale, Florida 33301 - 3125

Adrian J. Alvarez, Esquire

Haliczer, Pettis, and Schwamm, P.A.

One Financial Plaza, Seventh Floor

100 Southeast Third Avenue

Fort Lauderdale, Florida 33394

NOT ICE 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.