15-003022TTS Broward County School Board vs. Elaine Jaffe Status: Closed Recommended Order on Monday, April 11, 2016.

Summary: The evidence was insufficient to prove Petitioner's allegations that Respondent failed to implement an IEP, made offensive comments to a parent, and/or did not collect data for an RtI; thus, just cause for suspension without pay was not shown.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BROWARD COUNTY SCHOOL BOARD,

Petitioner,

vs. Case No. 15 - 3022TTS

ELAINE JAFFE,

Respondent.

_______________________________/

RECOMMENDED ORDER

This case came before Administrative Law Judge John G.

Van Laningham for final hearing by video teleconference at

sites in Tallahassee and Lauderdale Lakes, Florida, on

September 8 , 20 1 5 ; the hearing reconven ed on November 16 , 2015 ,

and concluded the following day, on Novembe r 17 th .

APPEARANCES

For Petitioner: Tria Lawton - Russell , Esquire

School Board of Broward County

600 Southeast Third Avenue

Fort Lauderdale, Florida 33 3 01

For Respondent: Robert F. McKee , Esquire

Robert F. McKee , P.A.

1718 Eas t Seventh Avenue, Suite 301

Post Office Box 75638

Tampa , Florida 33 6 05

STATEMENT OF THE ISSU ES

The issues in this case are w hether Respondent, a teacher,

failed to implement a student's Individual Educational Plan ,

made offensive comments to the same student's parent, and/or did

not collect data to measure another student's response to

interventions for purposes of determining eligibility for

Exceptional Student Education services, as Petitioner alleges;

and, if so, whether just cause exists to suspend Respondent

without pay for five days.

PRELIMINARY STATEMENT

At its regular meeting on May 19 , 201 5 , Petitioner Broward

County School Board voted to approve the superintendent's

recommendation that Respondent Elaine Jaf fe be suspended for

five days, without pay , from her job as a teacher. The reasons

for t his action were spelled out in an Administrative Complaint

that had been issued on or around April 23 , 201 5 , in which

M s . Jaffe was accused of having failed to fulfill her

obligations towards two of her students, and of having spoken

rudely to one of the students ' mother s .

M s. Jaffe timely requested a formal administrative hearing

to contest Petitioner's intended action. On May 27 , 201 5 , the

matter was referred to t he Division of Administrative Hearings

("DOAH") for further proceedings.

At the final hearing, which took place on September 8,

November 16, and November 17 , 20 1 5 , Petitioner called the

following witnesses: Mr. M.N., Ms. P . F., Ms. M.P., Colleen

Forde, D onna Schwartz, Katelynn Breighner, Michal Waskowiak,

Tameka King, Ronald Adam, Cory Smith, Susan Leon - Leigh, and

Susan Cooper. Petitioner's Exhibits 1 through 1 8 were received

in evidence without objection . M s. Jaffe testified on h er own

behalf and called Gary Itzkowitz and Jaclyn Merchant as

additional witnesses.

T he four - volume final hearing transcript was filed on

January 11, 2016 . Each party timely filed a Proposed

Recommended Order on the deadline , which had been extended to

February 25 , 20 1 6 , at Petitioner's request .

Unless otherwise indicated, citations to the official

statute law of the state of Florida refer to Florida Statutes

2015, except that all references to statutes or rules defining

disciplinable offenses or prescr ibing penalties for committing

such offenses are to the versions that were in effect at the

time of the alleged wrongful acts.

FINDINGS OF FACT

1. The Broward County School Board ("School Board"),

Petitioner in this case, is the constitutional entity auth orized

to operate, control, and supervise the Broward County Public

School System.

2. At all relevant times , Respondent Elaine Jaffe

(" J affe ") was employed as a reading teacher at Coral Springs

High , a public school in Broward County .

3. The events at issue involve two students, C.N. and N.P.

Although the School Board alleges, in brief and broadly

speaking, that Jaffe failed to fulfill obligations towards each

of these students, there is no factual overlap between the

situations of C.N. a nd N.P. ÏÏ each student is the subject of a

separate occurrence or occurrences. Further, the alleged

wrongdoing in reference to C.N. took place (if at all) during

the 2013 - 14 school year, while the disputed events concerning

N.P. transpired the following ye ar, 2014 - 15.

4. C.N. was an eleventh grade student in 2013 - 14 who

received Exceptional Student Education ("ESE") services pursuant

to an Individual Educational Plan ("IEP " ). Jaffe had taught

C.N. the previous year (2012 - 13) , when C.N had been in Jaffe's

reading class for special education students. For 2013 - 14, C.N.

was placed in a less restrictive , albeit remedial, reading

class, which included students from the general population.

Unhappy with her assigned teacher, however, C.N. (or her

parents) requested that C.N. be transferred to Jaffe's class

(Jaffe taught the same course), which was done.

5. The fact that C.N. voluntarily transferred to Jaffe's

class is significant for two r easons. First, it gives ri se to

the reasonable inference ÏÏ confirme d by Jaffe's credible

testimony ÏÏ that Jaffe was aware, in 2013 - 14, of the

supplementary aids and services ("accommodations") prescribed in

C.N.'s IEP , with which her teachers were to provid e her , having

afforded the same (or substantially similar) accommodations to

C.N. the previous year . Second, from the voluntary transfer the

undersigned reasonably infers that neither C.N. nor her parents

had concerns about Jaffe's alleged inability, fail ure, or

refusal to implement C.N.'s accommodations; more than that ,

since they requested that C.N. be moved into Jaffe's class, the

reasonable inference, hereby drawn, is that C.N. and her parents

were satisfied with Jaffe's instructional performance in

2012 - 13 , including the provision of accommodations .

6. In its Administrative Comp laint, the School Board

alleges that Jaffe failed to provide C.N. the following three

acco mmodations (as described in C.N.'s IEP):

Flexible Setting - Small group for testing

Flexible Presentation - Oral presentation of

test prompts (if allowable)

Flexible Scheduling/Timing - Add'l time for

task (Total time = twice the allotted time)

This alleged default , according to the School Board, was

"demonstrated by [Jaffe's] failure to se nd C.N. " to the Support

Room , i.e., a separate classroom where special education

students can take tests or complete other assignments in a small

group under the supervision of an ESE teacher who serves as the

s upport c oordinator.

7. C.N. did not report to the Support Room from Jaffe's

class at any time during the 2013 - 14 school year. This fact

means little, however, in light of other circumstances. C.N.

went to the Support Room 13 times in 2013 - 14 at the instance of

a teacher . Ten of those referrals were from C.N.'s American

History class, which means that one teacher (Watson) accounted

for 77 percent of C.N.'s trips to the Support Room. C.N.'s

s cience teacher (Eyerman) sent her for support twice in November

2013 , and a geometry te acher (Myers) sent C.N. to the Support

Room once, in March 2014. Like Jaffe, C.N.'s English teacher

(Merchant), American Sign Language teacher (Nesser), and an other

geometry teacher (Barr) did not account for any documented

visit s by C.N. to the Support Room during the 2013 - 14 school

year.

8. Jaffe's utilization of the Support Room vis - à - vis C.N. ,

in short, was no different, or p ractically indistinguishable ,

from that of all the rest of C.N.'s teachers except one (who

might have o verutilized this resource for all the record shows) .

That being the case, the undersigned rejects the School Board's

contention that Jaffe's "failure" to send C.N. for support

constitutes persuasive proof that she failed to implement C.N.'s

IEP.

9. There is, moreover, no persuasive evidence in the

record to support the charge that Jaffe otherwise ignored C.N.'s

accommodations. On the contrary, Jaffe testified credibly that

she read aloud test "prompts" or directions as appropriate , and

tha t she always offered C.N. ad ditional time to complete a task

or test , which C.N. regularly declined.

10. Finally, there is no persuasive evidence demonstrating

that Jaffe ever failed to provide an accommodation to C.N. on a

particular occasion when such an accommodation was requested or

required under the circumstances .

11. In sum, the School Board presented in sufficient

evidence in support of its allegations that Jaffe failed to

implement C.N.'s IEP.

12. The School Board also alleges that Jaffe made

d isparaging comments about C.N. to C.N.'s mother (P.F.) during

the course of an IEP meeting on April 11, 2014. There is no

dispute that Jaffe attended the meeting in question, and that

Jaffe was excused from the meeting before it concluded because

she need ed to get back to her classroom. When Jaffe left, P.F.

followed her out of the room, and the two spoke briefly and in

private. Each gives a different, and conflicting, account of

what was said.

13. Based entirely on P.F.'s version of the event, the

Scho ol Board alleges that Jaffe told P.F. that C.N. is "not

college material" and her plans to attend college "were

ridiculous and a complete waste of time." Allegedly, Jaffe

further recommended to P.F. that C.N. concentrate on learning a

"skill" for which sh e might get paid.

14. Jaffe denied having made these remarks . H er testimony

in this regard is corroborated by additional persuasive evidence

demonstr ating that P.F. was not visibly upset when she returned

to the meeting following her one - on - one conversation with Jaffe ,

and that she did not say anything to the other participants

about Jaffe's allegedly offensive comments. Indeed, P.F. first

complained about the alleged remarks more than a month after the

IEP meeting , contacting the assistant pri ncipal in late May 2014

to lambaste Jaffe. P.F.'s email to the administrator following

their telephone c onversation included such intemperate opinions

as: "[A] higher level of thinking . . . is beyond [Jaffe's]

intellectual capacity."

15. The undersigne d discounts the accuracy of P.F.'s

recollect ion of her private conversation with Jaffe ÏÏ her memory

is likely corrupted by personal animus ÏÏ and finds that Jaffe did

not make the alleged remarks attributed to her in the

Administrative Complaint . Rather, based on the evidence

presented, it is likely that during the IEP meeting Jaffe

expres sed the view , which she evidently held, that pursuing a

college degree might not be in C.N.'s best interests .

Expressing such an opinion during an IEP meeting involving a

high school student seems neither remarkable nor objectionable ,

so long as it is tactfully and respectfully offered . Obviously,

the student is free to disagree and pursue whatev er course of

action or study is both desirable and available to him or her.

16. At bottom, the School Board presented insufficient

evidence in support of its allegations that Jaffe made offensive

remarks about C.N. to C.N.'s mother.

17. As mentioned above, t he other student whom Jaffe

allegedly underserved is named N.P. After his sophomore year,

N.P.'s mother decided that N.P. would benefit from ESE services ,

which she resolved to secure . T o that end, she brought her son

to a private psychologist for an evaluation in the summer of

2014 . The report of that study (dated June 9, 2014) was

presented to Coral Springs High for consideration at the start

of the next school year. Then a junior , N.P. was a student in

Jaffe's reading class during 2014 - 15.

18. The administration referred N.P. to a Child Study

Team to evaluate h is eligibility for ESE services. On

September 2, 2014, the guidance counselor sent an email to

N.P.'s teachers asking them to begin providing N.P. with

"Tier 1" and "Tier 2" interventions and collecting data from

such interventions pursuant to the response to interventions

("RtI") procedure used in determining ESE eligibility.

19. On September 4, 2014, the guidance counselor informed

N.P.'s teachers by e mail that the RtI process was being

accelerated and that, accordingly, they were each immediately to

commence a "Tier 3" intervention with the student. Tier 3

interventions are more involved than Tier 2 interventions, which

latter are a n intermediate step up from the Tier 1 interventions

commonly provided to all students . A Tier 3 intervention ,

therefore, at least generally speaking, require s the teacher to

spend more time on, and devote more attention to, the subject

student than otherwise would be the case .

20. The guidance counselor gave N.P.'s teachers notice of

yet another change of plans regarding the RtI in an email dated

September 12, 2014, which stated: "Many of you are expressing

that you don't see any issues/concerns with [N.P.] and that's

fine. Because of this, Mrs. Forde (the ESE specialist) would

like you to now log ONLY Tier 1 interventions " into the

electronic database.

21. Nearly three months later, on December 8, the ESE

s pecialist, Coleen Forde, emailed Jaffe to complain that "ther e

is no data [on N.P.] for a Tier 3 intervention" and to assert

that "[n]ot having this data will prevent him from being

eligible for ESE." Ms. Forde advised Jaffe as follows:

Being in an intensive class [such as yours]

is a Tier 2 intervention and doing smaller

groups in class is a Tier 3 intervention.

What you do in that small group can be

monitored and data can be collected and

graphed.

22. Jaffe replied later that day to Ms. Forde's email,

writing in relevant part:

On September 12, [2014,] we received an

email that addressed the lack of

issues/concerns regarding [N.P.]'s behavior

and academic work. We were instructed that

since we did not have issues with [N.P.],

"Mrs. Forde would like you to now log ONLY

Tier 1 int erventions on [the database]. " I

did this.

Your email today is a bit confusing. Tier 3

interventions were written, not inputted

into [the computer] due to malfunctions of

the [database] program. Both [the guidance

counselor] and I have tried to input d ata

into Tier 3 but it did not work, and then we

were told to only put in information for

Tier 1.

* * *

I believe I have done all that I have been

asked to do. Please let me know if you need

other information.

Ms. Forde did not reply.

23. Almost two more months passed. Jaffe received an

email notifying her that a meeting of the Child Study Team , of

which Jaffe was a member, would be held on February 2, 2015, to

determine whether N.P. was eligible to receive ESE services.

Jaffe was not ins tructed to bring any materials to this meeting.

24. The meeting was held as scheduled. In its

Administrative Complaint the School Board alleges that "because

Ms. Jaffe had failed to collect Tier 3 data, the team was unable

to find [N.P.] eligible for E SE and had to reschedule."

Allegedly " [a]s a result, N.P.'s ESE eligibility determination

had to be postponed for another month."

25. The School Board failed to prove that Jaffe was

solely, or even largely, responsible for the ensuing one - month

delay in N.P.'s being deemed eligible for ESE services. (He

would be approved at a meeting on March 2, 2014, after Jaffe

collected Tier 3 data ÏÏ the only one of N.P.'s teachers to do

so.) While it is true that Jaffe did not bring Tier 3 data to

the February 2nd me eting, the facts are that no one else did

either, and that Jaffe had not been directed to bring such

information. Moreover, the evidence fails persuasively to

establish that Jaffe was ever clearly directed t o resume

collecting Tier 3 data after being told unambiguously on

September 12, 2014, to "log ONLY Tier 1 interventions."

(M s. Forde's December 8th email contained only an implied (not

express) directive to implement Tier 3 interventions ÏÏ one which

conflicted , at that, with the emphatic command of the

S eptember 12th email. Ms. Forde's failure to timely co ntradict

Jaffe's assertion ÏÏ that, as of December 8, 2014, she (Jaffe) had

"done all that I have been asked to do " ÏÏ increased the

ambiguity.)

26. In conclusion, the School Board presented insufficient

evidence in support of its allegations that Jaffe failed to

carry out her duties respecting the RtI process as it pertained

to N.P .

Determinations of Ultimate Fact

2 7 . The greater weight of the eviden ce fails to establish

that Jaffe is guilty of the offense of misconduct in office,

which is defined in Florida Administrative Code Rule 6A -

5.056(2). 1 /

28. The greater weight of the evidence fails to establish

that Jaffe is guilty of incompetency, 2 / which when proved affords

just cause for suspension or dismissal from employment.

29. The evidence does not support a determination that

Jaffe violated School Board Rule 4008(B), which essentially

directs teachers and other employees to obey all applicable

statutes, rules, and policies.

30. The greater weight of the evidence fails to establish

that Jaffe is guilty of gross insubordination . 3 /

31. The evidence does not support a finding that Jaffe

"intentional [ly] or reckless [ly] fail [ e d] to carry out required

duties , " which if proved constitutes a disciplinable offense

under rule 6A - 5.056(5) (defining "willful neglect of duty").

CONCLUSIONS OF LAW

3 2 . DOAH has personal and subject matter jurisdiction in

this proceeding pursuant to s ections 1012.33(6)(a)2., 120.569,

and 120.57(1), Florida Statutes.

3 3 . A district school board employee against whom a

disciplinary proceeding has been initiated must be gi ven written

notice of the specific charges prior to the hearing. Although

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

formal exactness required of pleadings in court," it should

"specify the [statute,] rule, [regulation, policy, or coll ective

bargaining provision] the [school board] alleges has been

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

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

DCA 1983)(Jorgenson, J. concurring).

3 4 . Once the school board, in its notice of specific

charges, has delineated the offenses alleged to justify

termination, those are the only grounds upon wh ich dismissal may

be predicated . See Lusskin v. Ag . for Health Care Admin . , 731

So. 2d 67, 69 (Fla. 4th DCA 1999); 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);

Delk v. Dep ' t of Prof ' l Reg . , 595 So. 2d 966, 967 (Fla. 5th DCA

1992); Willner v. Dep ' t of Prof ' l Reg ., B d . of Me d . , 563 So. 2d

805, 806 (Fla. 1st DCA 1990), rev. denied , 576 So. 2d 295 ( Fla.

1991).

3 5 . 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 element of the charged offense(s). See

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

DCA 1996); Sublett v. Sumter C nty . Sch . Bd. , 664 So. 2d 1178,

1179 (Fla. 5th DCA 1995); MacMillan v. Nassau Cnty . Sch . Bd. ,

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

3 6 . The instructional staff member's guilt or innocence is

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

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

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

(Fla. 1st DCA 1995).

3 7 . In its Administrative Complaint, the School Board

advanced five theories for suspending Jaffe : Misconduct in

Office (Count 2 ); Incompetency (Count 3 ); Violati on of School

Board Rule 4008(B) (Count 4 ) ; Gross Insubordination (Count 5);

and Willful Neglect of Duty (Count 6) .

3 8 . Each of the School Board's charges depends up on

allegation s that Jaffe failed to fulfill her obligations to

implement C.N.'s IEP and to participate fully in the RtI process

that was initiated to evaluate N.P.'s eligibility for ESE

services , and that she spoke rudely to C.N.'s mother . The

School Board, however, failed to prove th ese essential

allegation s of material fact by a preponderanc e of the evidence.

Thus, all of the charges against Jaffe necessarily fail, as a

matter of fact. Due to this dispositive failure of proof, it is

not necessary to render additional conclusions of law.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions

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

order exonerating Jaffe of all charges brought against h er in

this proceeding and awarding h er back salary (if she has

already served the five - day suspension) as required under

section 1012.33(6)(a) .

DONE AND ENTERED this 11th day of April , 201 6 , in

Tallahassee, Leon County, Florida.

S

___________________________________

JOHN G. VAN LANINGHAM

Administrative Law Judge

Division of Administrative Hearings

The De Soto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 11th day of April , 20 1 6 .

ENDNOTES

1 / The rule provides as follows:

(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 6A - 10.080, F.A.C.;

(b) A violation of the Princ iples of

Professional Conduct 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.

2 / Rule 6A - 5.056(3) defines "incompetency" as "the inability,

failure or lack of fitness to discharge the required duty as a

result of inefficiency or incapacity."

3 / Rule 6A - 5.056(4) defines "gross insubordination" as "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 dut ies."

COPIES FURNISHED :

Tria Lawton - Russell, Esquire

School Board of Broward County

600 Southeast Third Avenue

Fort Lauderdale, Florida 33301

(eServed)

Robert F. McKee, Esquire

Robert F. McKee, P.A.

1718 East Seventh Avenue, Suite 301

Post Office Box 75638

Tampa, Florida 33605

(eServed)

Matthew Mears, General Counsel

Department of Education

Turlington Building

325 West Gaines Street, Suite 1244

Tallahassee, Florida 32399 - 0400

(eServed)

Robert W. Runcie, Superintendent

Broward County School Boar d

600 Southeast Third Avenue, 10th Floor

Fort Lauderdale, Florida 33301 - 3125

Pam Stewart, Commissioner of Education

Department of Education

Turlington Building

325 West Gaines Street, Suite 1514

Tallahassee, Florida 32399 - 0400

(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 ca se.