15-004993TTS Broward County School Board vs. Bruce Weinberg Status: Closed Recommended Order on Wednesday, April 13, 2016.

Summary: School Board proved by a preponderance of the evidence that just cause exists to terminate Respondent's employment as a teacher for misconduct, incompetency, gross insubordination, and violation of School Board policy.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BROWARD COUNTY SCHOOL BOARD,

Petitioner,

vs. Case No. 15 - 4993TTS

BRUCE WEINBERG,

Respondent.

_______________________________/

RECOMMENDED ORDER

This case came before Administrat ive Law Judge Darren A.

Schwartz of the Division of Administrative Hearings for final

hearing on January 12, 2016 , in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Tria Lawton - Russell, Esquire

Broward County School Board

14th Floor

6 00 Southeast Third Avenue

Fort Lauderdale, Florida 33301

For Respondent: Robert F. McKee, Esquire

Kelly & McKee

Suite 301

1718 East Seventh Avenue

Tampa, Florida 33605

STATEMENT OF THE ISSUE

Whether just cause exists for Petitioner to terminate

RespondentÓs employment as a teacher.

PRELIMINARY STATEMENT

By letter dated August 1 2 , 2015, Petitioner, Broward County

School Board (ÐSc hool BoardÑ), notified Respondent, Bruce

Weinberg (ÐRespondentÑ), of the School BoardÓs intent to suspend

without pay and terminate his employment. On August 14, 2015,

Respondent timely requested an administrative hearing. On

Sep tember 1, 2015, at its sc heduled meeting, the School Board

took action to suspend without pay and terminate Respondent Ós

employment as a teacher . Subsequently, the School Board referred

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

assign an Administrative Law Judge to conduct the final hearing.

The final hearing was initially set for December 2 and 3,

2015. On November 20, 2015, the School Board filed a motion to

continue the final hearing. On November 20, 2015, Respondent

filed a memorandum of law in oppos ition to the motion. On

November 23, 2015, the undersigned held a telephonic hearing on

the motion, with counsel for both parties present. On

December 2, 2015, the undersigned entered an Order granting the

motion, resetting the final hearing for January 12 and 13, 2016.

The Administrative Complaint contains certain factual

allegations, and based on those factual allegations, the School

Board charged Respondent with the following six counts:

(1) Misconduct in Office; (2) Incompetency; (3) Immorality;

(4) Gross Insubordination; (5) Willful Neglect of Duty; and

(6) Violation of School Board Policy 4008.

The final hearing commenced as scheduled on January 12,

2016, with both parties present. At the hearing, the School

Board presented the testimony of K .C., D.J., T.M., M.J., R.H.,

S.D., Cornelia Hoff, Brian Faso, Rhonda Stephanik, and

Shoni Lewis - Thompson. The School BoardÓs Exhibits 1 through 10

were received into evidence. Respondent testified on his own

behalf. RespondentÓs Exhibits 8 and 9 were r eceived into

evidence.

At hearing, the parties agreed to file their proposed

recommended orders within 30 days after the filing of the final

hearing transcript at DOAH. The two - volume final hearing

Transcript was filed at DOAH on February 22, 2016. On M arch 17,

2016, Respondent filed an unopposed motion to extend the deadline

until April 6, 2016, in which to file proposed recommended

orders. On March 18, 2016, the undersigned entered an Order

granting the motion. The parties timely filed proposed

recom mended orders, which were given consideration in the

preparation of this Recommended Order. On January 4, 2016, 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.

FINDING 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 Broward County, Florida.

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

employed by the School Board as a drama teacher at Mir a mar High

School (ÐMir a marÑ), pursuant to a Profe ssional Services Contract,

issued in accordance with section 1012.33(3)(a), Florida

Statutes.

3. At all times material to this case, RespondentÓs

employment with the School Board was governed by Florida law and

the School BoardÓs policies.

2010 - 2011 Scho ol Year

4. On November 3, 2010 , the vice - principal of Mir a mar held

a n informal conference with Respondent due to concerns regarding

RespondentÓs personal interactions with students and staff , at

which time Respondent was directed to : 1) Ðnot meet with an other

teacherÓs students during his or her class timeÑ; 2) Ðspeak in a

calm, respectful and professional tone at all timesÑ ; and

3) Ðalways represent Mir a mar High School in a positive and

professional manner.Ñ

2011 - 2012 School Year

5. On February 10, 2012 , the vice - principal of Mir a mar

issued a written reprimand to Respondent because of RespondentÓs

alleged Ðinsubordination during a previous meeting.Ñ According

to the written reprimand, Respondent exhibited conduct during a

meeting that Ðwas unbecomi ng of a professional.Ñ

2012 - 2013 School Year

6. By the end of the 2012 - 2013 school year, Respondent no

longer had any desire to teach drama , and he had requested to be

transferred to another school. In an email dated May 30, 2015,

Respondent stated:

I think it would be best if we parted ways.

I think the drama program deserves a fresh

start and a teacher with a passion and drive

to take the students to the next level. If,

for some reason, I do return to Mir a mar, I

would like to teach 9th grade Engli sh .

2013 - 2014 School Year

7 . Respondent was unsuccessful in his efforts to obtain a

transfer to another school .

8. On September 6, 2013, Respondent wrote to the School

Board request ing unpaid leave under the Family and Medical Leave

Act . In his explanation for requesting leave, Respondent

alleged: ÐMir a mar High is a hostile and harassing environment

and it is effecting [sic] my mental and physical well being.Ñ

Respondent provided the School Board with documentation from a

health care provider i n support of his request for unpaid medical

leave .

9. The School Board granted RespondentÓs request for Family

and Medical Leave, and Respondent was on unpaid medical leave

from September 6, 2013, until December 4, 2013.

10 . The proposed discipline i s based upon conduct occurring

on Monday, February 24, 2014, during RespondentÓs second - period

Drama II class.

11. On Friday, February 21, 2014, Respondent was absent

from work . RespondentÓs son , who was a substitute teacher at

Mir a mar, taught Respond entÓs second - period Drama II class in

RespondentÓs absence .

1 2 . RespondentÓs Drama II class was an elective class.

There were 31 students in the class. Some of the students were

serious about the class and hard - working, while others were not.

1 3 . On Friday, February 21, 2014, the students were

supposed to be preparing for an upcoming school play performance

called ÐThe Mask.Ñ The Mask was an original collaboration by the

students . A pproximately six weeks had been spent preparing for

the play. Howe ver, as of February 21, 2014, the play was not

performance - ready and a lot of work still needed to be done .

1 4 . The students should have utilized the time during their

class on Friday , February 21, 2014, to prepare for the play.

However, beca use there was a substitute teacher, some students

wasted their time and were rude and disrespectful to RespondentÓs

son.

1 5 . Respondent was very upset when he found out that some

of the students were rude and disrespectful to his son.

1 6 . On Monday, F ebruary 24, 2014, sh ortly after

RespondentÓs second - period Drama II class began, Respondent gave

five of the students a pass to go to another class (history or

debate) . These students had minor part s in the play, and t hey

were given assignments to work on independently in either the

history or debate class.

17. After these five students left the classroom,

Respondent Ðtook the stage . Ñ The stage is located above and in

front of the students Ó desks . After waiting a few moments,

Respondent proceeded to b erate t he class in a loud , angry , and

pr o fane tirade , stating :

You disrespected my son. How dare you. How

dare you. I will give every single person in

this class an ÐF ,Ñ and you all just go screw

yourselves. You donÓt deserve me. You donÓt

deserve me . What are you going to do?

[STUDENT] IÓm going to stay - -

Sit your ass down and shut up. Not a single

sound. You laugh, you make a noise, youÓre

out; you understand me? I am sick of this

class and I am sick of this school. You want

a play, show m e a goddamn play.

1 8 . RespondentÓs tirade was captured on audio and video by

one of the drama students in the class. A copy of the

audio - visual recording of the incident was received into evidence

at the hearing as the School BoardÓs Exhibit 2.

1 9 . RespondentÓs verbal tirade directed at the class was

inappropriate , verbally abusive , and disparaging. Respondent

could certainly have projected authority and addressed the

studentsÓ behavior toward his son without resort ing to the

abusive , prof ane, and disparaging tirade.

20. The persuasive and credible evidence adduced at hearing

establishes that Respondent is guilty of misconduct in office in

violation of Florida Administrative Code Rule 6A - 5.056.

21. Through the verbal tirade d irected at his students,

Respondent violated Florida Administrative Code Rules 6A -

10.081(3)(a) and (e) by failing to make reasonable effort to

protect his students from conditions harmful to learning and

intentionally exposing his students to unnecessary e mbarrassment

or disparagement. Respondent also violated rules 6A - 5.056(2)(d)

and (e) by engaging in conduct which disrupted the studentsÓ

learning environment and reduced RespondentÓs ability to

effectively perform his duties.

22. The persuasive a nd credible evidence adduced at hearing

establishes that Respondent is guilty of incompetence in

violation of rule 6A - 5.056(3).

2 3. Through the verbal tirade directed at his students,

Respondent failed to discharge his required duties as a teacher

a s a result of inefficiency. Respondent was inefficient by

fail ing to communicate appropriately with and relate to students.

24. The persuasive and credible evidence adduced at hearing

establishes that Respondent violated School Board Policy 4008.

Through the verbal tirade of his students, Respondent failed to

treat his students with kindness and consideration . In addition,

Policy 4008 requires compliance with the Principles of

Professional Conduct of the Education Profession in Florida.

2 5 . The persuasive and credible evidence adduced at hearing

establishes that Respondent is guilty of gross insubordination in

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

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

a uthority.

2 6 . By failing to comply with the specific directive

detailed above Ð to speak in a calm, respectful and professional

tone at all times,Ñ Respondent intentionally refused a direct

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

authori ty.

27. At hearing, Respondent acknowledged that his language

and use of profanity toward his students in the classroom on

February 24, 2014, was inappropriate. At hearing, Respondent

conceded that Ð[u]nf ortunately, I lost my cool. Ñ

28. Res pondent was remorseful of his verbal tirade at the

hearing.

2 9 . The persuasive and credible evidence adduced at hearing

fails to establish that Respondent is guilty of i mmorality in

violation of rule 6A - 5.056(1) as alleged in the Administrative

Comp laint .

30 . The persuasive and credible evidence adduced at hearing

fails to establish that Respondent is guilty of willful n eg lect

of d uty as alleged in the Administrative Complaint . 1/

CONCLUSIONS OF LAW

31 . DOAH has jurisdiction of the subject ma tter and

the parties to this proceeding pursuant to sections 120.569

and 120.57(1), Florida Statutes.

32 . Respondent is an instructional employee, as that term

is defined in section 1012.01(2), Florida Statutes. The School

Board has the authority to s uspend and terminate instructional

employees pursuant to sections 1012.22(1)(f), 1012.33(1)(a), and

1012.33(6)(a).

33 . The School Board has the burden of proving, by a

preponderance of the evidence, that Respondent committed the

violations alleged in th e Administrative Complaint and that such

violations constitute Ðjust causeÑ for dismissal.

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

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

34 . The preponderance of the evidence standard r equires

proof by Ðthe greater weight of the evidenceÑ or evidence that

Ðmore likely than notÑ tends to prove a certain proposition.

Gross v. Lyons , 763 So. 2d 276, 280 n.1 (Fla. 2000). The

preponderance of the evidence standard is less stringent than the

standard of clear and convincing evidence applicable to loss of a

license or certification. Cisneros v. Sch. Bd. o f Miami - Dade

Cnty. , 990 So. 2d 1179 (Fla. 3d DCA 2008).

3 5 . Whether Respondent committed the charged offenses is a

question of ultimate f act 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).

3 6 . 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 de fined in

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

Ðincompetency,Ñ Ðgross insubordination , Ñ Ð willful neglect of

duty, Ñ and Ð immorality. Ñ

3 7 . Section 1001.02(1), Florida Statutes, grants the State

Board of Education authority to adopt r ules pursuant to

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

conferring duties upon it.

3 8 . Consistent with this rulemaking authority, the State

Board of Education has defined Ðmisconduct in officeÑ in

rule 6A - 5.056(2), which provides :

(2) ÐMisconduct in OfficeÑ 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 6B - 1.001, F.A.C.;

(b) A violation of the Principles of

Professional Conduct for th e 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.

3 9 . 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 professio nal

concern will always be for the student and

for the 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 importanc e 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.

40 . While rule 6A - 5.056(2)(a) provide s that violation of

the Code of Ethics rule constitutes 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 no rmative behavior.Ñ

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

July 29, 2014).

41 . 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 pertinent 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.

* * *

(e) Shall not intentionally expose a student

to unnecessary embarrassment or

disparagement.

42 . Consistent with its rulemaking authority, the

State Board of Education has defined ÐincompetencyÑ 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.

43 . 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 nature, and given by and with

proper authority; misfeasance, or malfeasance

as to involve failure in the performance of

the required d uties.

44 . Consistent with its rulemaking authority, the State

Board of Education has defined ÐimmoralityÑ in rule 6A - 5.056(1),

which provides:

(1) ÐImmoralityÑ means conduct that is

inconsistent with the standards of public

conscience and good m orals. It is conduct

that brings the individual concerned or the

education profession into public disgrace or

disrespect and impairs the individualÓs

service in the community.

4 5 . Consistent with its rulemaking authority, the State

Board of Educati on has defined Ð w illful neglect of duty Ñ in rule

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

required duties.Ñ

46. School Board Policy 4008 provides, in pertinent part:

B. DUTIES OF INSTRUCTIONAL PERSONNEL

The members of inst ructional staff shall

perform the following functions:

1 . Comply with the Code of Ethics and the

Principles of Professional Conduct of the

Education Profession in Florida .

* * *

eat all students with kindness,

consideration and humanity .

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

a preponderance of the evidence that Respondent i s guilty of

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

detailed above, Respondent failed to make reasonable effort to

pro tect his students from conditions harmful to learning and

intentionally exposed his students to unnecessary embarrassment

or disparagement. Respondent also en gaged in conduct which

disrupted the studentsÓ learning environment and reduced

RespondentÓs abil ity to effectively perform his duties .

4 8 . The School Board proved by a preponderance of the

evidence that Respondent is guilty of incompetence in violation

of rule 6A - 5.056(3). As detailed above, through the verbal

tirade directed at his students, Respondent failed to discharge

his duties as a teacher as a result of inefficiency . Respondent

was inefficient by failing to c ommunicate appropriately with and

relate to students.

4 9 . The School Board proved by a preponderance of the

evidence that Respondent violated School Board Policy 4008 by

failing to treat his students with kindness and consideration and

by violating the Principles of Professional Conduct of the

Education Profession in Florida .

50. The School Board proved by a preponder ance of the

evidence that Respondent is guilty o f gross 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.

51 . The School Board failed to pr ove by a preponderance of

the evidence that Respondent is guilty of immorality in violation

of rule 6A - 5.056(1).

52 . The School Board failed to prove by a preponderance of

the evidence that Respondent is guilty of willful neglect of

duty .

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the School Board enter a final order

upholding the termination of RespondentÓs employment.

DONE AND ENTERED this 13 th day of April , 2016 , in

Tallahassee, Leon County, Florida.

S

DARREN A. SCHWARTZ

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.stat e.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1 3 th day of April , 2016 .

ENDNOTE

1/ The School BoardÓs claim that Respondent is guilty of willful

neglect of d uty is premised on the allegations contained in

paragraph 40 of the Administrative Complaint , that ÐWeinberg

failed to perform his duties as an educator and instructor by

shuttling his students into other classrooms, including a student

who was in the play, to have other teachers manage.Ñ

COPIES FURNISHED:

Tria Lawton - Russell, Esquire

Broward County School Board

14th Floor

600 Southeast Thir d Avenue

Fort Lauderdale, Florida 33301

(eServed)

Robert F. McKee, Esquire

Kelly & McKee

Suite 301

1718 East Seven th Avenue

Tampa, Florida 33605

(eServed)

Robert Runcie, S uperintendent

Broward County School Board

600 Southeast Third Avenue , Floor 10

Fort Lauderdale, Florida 33301 - 3125

Pam Stewart , Commissioner of Education

Department of Education

Turlington 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)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit wr itten 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.