19-001928TTS Broward County School Board vs. Brenda Joyce Fischer Status: Closed Recommended Order on Tuesday, January 21, 2020.

Summary: Petitioner proved, by the preponderance of the evidence, that Respondent committed misconduct in office and violated school board policy. Recommend three-day suspension without pay.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BROWARD COUNTY SCHOOL BOARD ,

Petitioner ,

vs. Case No. 19 - 1928TTS

BRENDA JOYCE FISCHER ,

Respondent .

/

RECOMMENDED ORDER

A hearing was conducted in this case pursuant to sections

120.569 and 120.57(1), Florida Statutes (2019) ,

1/ before Cathy M.

Sellers, an Administrative Law Judge ( " ALJ " ) of the Division of

Administrative Hearings ( " DOAH " ), on October 7, 2019, in Pompano

Beach, Florida.

APPEARANCES

For Petitioner: Elizabeth W. Neiberger, Esquire

Bryant Miller Olive, P.A.

One Southeast Third Avenue, Suite 2200

Miami, Florida 33131

For Respondent: Robert F. McKee, Esquire

Rob ert F. McKee, P.A.

Post Office Box 75638

Tampa, Florida 33605

STATEMENT OF THE ISSUE

The issue in this case is whether just cause exists for

Petitioner, Broward County School Board, to suspend Respondent,

Brenda Joyce Fischer, from her employment as a teacher for three

days without pay.

PRELIMINARY STATEMENT

On or about March 19, 2019, Petitioner served an

Administrative Complaint on Respondent, notifying her that the

Superintendent of Broward County Schools was reco mmending that

Petitioner take action to suspend her for three days without pay,

and setting forth the factual and legal grounds for that proposed

action. On April 9, 2019, Petitioner approved the

Superintendent's recommendation to suspend Respondent for t hree

days without pay. Respondent timely requested an administrative

hearing challenging the proposed action, and the matter was

referred to DOAH for assignment of an ALJ to conduct a hearing

pursuant to sections 120.569 and 120.57(1).

The final heari ng initially was scheduled for July 30

and 31, 2019 , but , at Petitioner's request, was rescheduled for

October 7 and 8, 2019. The final hearing was held on October 7,

2019.

Petitioner presented the testimony of Jimmy Arrojo;

Derek Gordon; students T .P., D.M., A.P., A.F., J.B., and I.T.

Petitioner's Exhibits 1 through 12, 14 through 17, 21 , 22, and 24

through 30 were admitted into evidence without objection.

Petitioner's Exhibit 13 was admitted into evidence over

objection. Respondent testified on her own behalf and did not

tender any exhibits for admission into evidence.

The one — volume Transcript of the final hearing was filed at

DOAH on O ctober 25, 2019. The deadline for filing proposed

recommended orders initially was set for November 4, 2019 , but at

Petitioner's request, was first extended to November 25, 2019,

and then to December 11, 2019. The parties timely filed their

Proposed Recommended Orders on December 11, 2019. Both Proposed

Recommended Orders have been duly considered in preparin g this

Recommended Order.

FINDING S OF FACT

I. The Parties

1. Petitioner, Broward County School Board, is charged with

the duty to operate, control, and supervise free public schools

in Broward County pursuant to article IX, section 4(b) of the

Florida Constitution and section 1012.33, Florida Statutes. 2/

2. Respondent has been employed as a teacher with

Petitioner since 1992, and has been employed as an art teacher at

Western High School ("Western") since 2009.

II. Evidence Adduced at the Final Heari ng

3. During the 2018 — 20 19 school year, Respondent was

assigned to teach Creative Photography I, an elective course , at

Western . The 2018 — 20 19 school year was the first year this

course was taught at Western.

4. In May 2018, Respondent requested that textbooks be

ordered for the Creative Photography I course. As of the first

few weeks of the 2018 — 20 19 school year, the textbooks for the

course had not yet arrived. Respondent testified, credibly, that

she did not have access to any textbooks from whic h to plan her

instruction during the time she was waiting on the arrival of the

textbooks.

5. D uring the planning period before the first week of

school, Respondent contacted photography teachers at other

schools in the Broward County Public School Distr ict ("District")

to obtain materials to use until her textbooks arrived. For a

variety of reasons, much of the material she received from other

teachers was not suitable for her course .

6. According to Respondent, Christine Malin, who taught a

photog raphy course at another public high school in the District ,

assisted her by providing materials . M uch of what Malin provided

was not suitable because Respondent's class did not have access

to cameras for student use.

7. Malin also told Respondent abo ut two videos on

photography that she had found on the internet, and that Malin's

description of the content of the videos sounded suitable for

Respondent's course. Respondent testified that Malin told her

that she had reviewed the videos. However, w hen asked whether

Malin told her the videos were appropriate to show to a high

school class, Respondent acknowledged that "[s]he didn't say

anything about that."

8. Respondent previewed one video in its entirety . She

testified that "when it came to the se cond one, I did not preview

it as closely as I did the first one because the first one I

said, okay, this isn't bad. " According to Respondent, she

previewed the second video after school in the evening while she

was working on school paperwork. She testi fied "[s]o I was doing

that along with listening to the video and watching the video and

I was doing some other stuff."

9. Respondent showed the videos to her first period class

on August 23, 2018. One of the videos contained a total of 11

images of n ude men and women on seven slides. Two of the images ,

shown twice during the video, depict ed the models in sexually

suggestive poses with their genitalia clearly visible . One of

the six image s depicted a nude male , which, while not depicting

genitalia, w as accompanied by a n audio narrative referencing a

dominant sexual partner .

10 . The first nude images were shown in the interval from

3:02 to 3:13 in the video. Additional nude, sexually explicit

images appeared in the interval from 3:14 to 3:21 and 3 :21 to

3:36 in the video. All of these images were again shown in the

interval from 3:36 to 3:43 in the video . The last nude images

appeared in the interval from 5:08 to 6:25 in the video,

accompanied by the sexually explicit narrative. The images

compr ised approximately two minutes of the nearly 13 — minute long

video.

11 . Respondent testified that she did not realize that the

video contained nude images until she saw the first nude image,

at which point she tried to turn the projector off. According to

Respondent, she was "fumbling," but did eventually stop the

projection of the nude images , albeit not before the students saw

the additional nude images .

12 . Respondent also showed the video to her second period

class. According to Respondent, as soon as she saw the first

nude image, she shut the projector lens off and fast — f orwarded

past the other images, so that the students onl y saw one nude

image .

13 . According to Respondent, she was able to use the

portions of the video that did not contain nude images for

instructional purposes in her first and second period classes.

14 . Six students in Respondent's class testified about what

they saw in the video shown in Respondent's class that day. The

students who testified were 15 — and 16 — years — ol d at the time of

the incident. All six students who testified also had provided

handwritten statements to Western assistant principal

Derek Gordon as part of Petitioner's investigation into the

incident.

15 . Four of the six students who testified we re in

Respondent's first period class . They each testified to the

effect that they had viewed all of the nude images in the video.

Some of the se students , either in testimony or in their written

statements, characterized the images as "inappropriate" or

"disturbing . "

16 . Two of the students who testified were in Respondent's

second period class. They testified to the effect that they had

seen more than one nude image and had heard sexually explicit

audio narrative accompanying the last nude image in th e video .

One of these students, in a written statement provided during the

investigation, characterized the images as "inappropriate."

17 . Respondent acknowledged that she did not obtain prior

approval from the principal of Western or his designee , he r

department head, before showing the video to her class.

18 . She also acknowledged that she had previewed the video

only three days, at most, before she showed it to her classes ,

and that she had not watched the entire video because she was

multitaskin g .

19. When questioned about when she prepared her lesson plan

for August 23, 2018, she responded: "I wound up doing it that

Monday, Tuesday, Wednesday because I was told I was getting my

textbooks, they didn't come in and I know I needed an assignmen t.

. . . I didn't plan for two weeks because I was expecting to get

the textbooks in so we could use the textbooks."

20 . She acknowledged that it was her responsibility to

thoroughly preview the video before she showed it to the

students, and that she ha d not vetted it to the extent she should

have before she showed it in her classes.

21 . After her second period class on August 23, 2018,

Respondent r eported to Derek Gordon that she had shown a video

containing nude images in her first and second period classes.

2 2 . Gordon initiated the investigation that culminated in

Petitioner proposing to suspend Respondent for three days without

pay. Respondent's timely challenge to that proposed action is

the subject of this proceeding.

2 3 . According to Gor don and Western P rincipal Jimmy Arrojo,

many parents contacted the school regarding the incident, some of

whom want ed their children removed from Respondent's class.

Arrojo testified that the incident also was widely reported in

the news.

2 4 . Following this incident, and apart from serving her

three — day suspension, Respondent taught the Creative Photography

I course at Western for the remainder of the 2018 — 2019 school

year.

25. Respondent currently is serving as a teacher

facilitator for an online cla ss at Western . S he is not teaching

the Creative Photography I course at Western for the 2019 — 2020

school year.

School Board Policy and Faculty Handbook Requirements

26 . Petitioner and the administration at Western each have

adopted relevant stand ards and requirements governing the use of

audiovisual materials in classroom instruction.

2 7 . Specifically, s chool b oard p olicy 6100, titled

"Audiovisual Materials Use Policy," requires audiovisual

materials to be previewed "in their entirety" before b eing shown

to students by the teacher using the material to ensure that the

language, theme, level of violence, and content are consistent

with the maturity level of the students who will be viewing the

material.

28. The policy adopts the Motion Pictur e Association of

America 's ("MPAA") ratings as the guid ance standards for

determining whether audiovisual materials are age - appropriate .

The MPAA rating rule for the PG — 13 category states , in pertinent

part: " [m] ore than brief nudity will require at lea st a PG — 13

rating, but such nudity in a PG — 13 rated motion picture generally

will not be sexually oriented." By contrast, the MPAA rating

rule for R — 17 states , in pertinent part : [a]n R — rated motion

picture may contain adult themes, adult activity, . . .

sexually — oriented nudity, or . . . other elements, so that

parents are counseled to take this rating very seriously.

Children under 17 are not allowed to attend R — rated motion

pictures unaccompanied by a parent or adult guardian."

29 . Additionally, t he Western High School Faculty & Staff

Handbook for the 2018 — 2019 school year (" Faculty Handbook")

includes several provisions relevant to the charges at issue in

this proceeding.

30 . Specifically, the section of the Faculty Handbook

titled "Movies" sta tes, in pertinent part, that "[a]ll

instructional resources, including audiovisual materials, must:

be consistent with School Board of Broward County policies [,]

[and] [r]eflect the best teaching practices based on age —

appropriateness and instructional re levance, meant to support

instruction[,] not replace it." Additionally, t he Faculty

Handbook requires faculty who intend to use audiovisual materials

for class instruction to "[c]omplete a Movie Request Form of

corresponding assignment [and] [s]ubmit Req uest Form to

department chair for approval ."

31 . The Faculty Handbook also states that each teacher is

required to keep his/her lesson plans one week in advance, and

specifies the components that each lesson plan must contain. The

purpose of this requir ement is to ensure that each lesson is

prepared a sufficient time in advance so that classroom

instruction is organized and effective. The Faculty Handbook

does not contain , and Arrojo confirmed the absence of, an

exemption to th e lesson plan preparation requirement for

situations when a textbook on order has not arrived by the time

the course begins.

3 2 . T o this point, the Florida Department of Education has

ratified the Curriculum Planning and Learning Management System

("CPALMS"), which is the " State of Florida's official source for

standards information and course descriptions. " CPALMS provides

"an online toolbox of information, vetted resources, and

interactive tools to help educators effectively implement

teaching standards. " As Arrojo explained, CPALMS is the " go — to

site" for every course that is offered. For the Creative

Photography I course, there are 460 vetted and approved course —

specific resources that are available to teachers on the CPALMS

website for use as instructional material. 3/

Re spondent's History of Prior Disciplin e

33 . Respondent previously has been subjected to

disciplin ary action while employed by Petitioner .

34 . S pecifically, Respondent's disciplinary history

consists of the following : a written reprimand in February 199 7

for using inappropriate language in class; a written reprimand in

April 1997 for making inappropriate comments in class; a three —

day suspension in 2009 for using inappropriate language in class;

a verbal reprimand in 2014 for intentionally exposing a stu dent

to unnecessary embarrassment and disparagement; a written

reprimand in November 2017 for inappropriately touching and

yelling at students ; and a written reprimand issued by the State

of Florida Education Practices Commission in October 2018 for

failur e to make reasonable effort to protect a student from

conditions harmful to learning and/or the student's mental and/or

physical health and safety.

III. Findings of Ultimate Fact

35 . As discussed in greater detail below, Respondent has

been charged in this case with misconduct in office,

incompetency, and willful neglect of duty under Florida

Administrative Code Rule 6A — 5.056, and with v iolating Broward

County School Board policies 6100 and 4008 . 4/

36 . Whether a charged offense constitute s a violatio n of

applicable rules and policies is a question of ultimate fact to

be determined by the trier of fact in the context of each alleged

violation. McKinney v. Castor , 667 So. 2d 387, 389 (Fla. 1st DCA

1995) (whether particular conduct constitutes a violatio n of a

statute, rule, or policy is a factual question); Langston v.

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

conduct, as found, constitutes a violation of statutes, rules,

and policies is a question of ultimate fact) ; Holmes v.

Turling ton , 480 So. 2d 150, 153 (Fla. 1st DCA 1985)(whether there

was a deviation from the standard of conduct is not a conclusion

of law, but is instead an ultimate fact) .

Misconduct in Office under Rule 6A — 5.05 6 (2)

37 . Based on the foregoing findings, it is found, as a

matter of ultimate fact, that Respondent engaged in conduct

constituting misconduct in office, as defined in rule 6A — 5.05 6 .

38 . Respondent's conduct violated several provisions of

Florida Administrative Code R ule 6A — 10.081, the Principles o f

Professional Conduct for the Education Profession in Florida,

which has been incorporated into rule 6A — 5.056(2).

39 . Specifically, in failing to adequately prepare her

lesson plans a week in advance and failing to preview the video

in its entirety, Re spondent failed to exercise best professional

judgment, as required by rule 6A — 10.081(1)(b).

40 . As a result of her failure to exercise best

professional judgment, she exposed the 15 — and 16 — year — old

students in her classes to images that they found "in appropriate"

and "disturbing." In doing so, she failed to make a reasonable

effort to protect her students from conditions harmful to

learning and their mental health, in violation of rule

6A — 10.081(2)(a)1.

41 . Furthermore, even after Respondent beca me aware during

her first period class that the video contained nud ity and

sexually explicit images, she nonetheless continued to show it ,

thereby exposing the students to additional nud e , sexually

explicit images and narrative that they otherwise would no t have

seen or heard . In doing so, she intentionally exposed the

students in her first period class to unnecessary embarrassment,

in violation of rule 6A — 10.081(2)(a)5.

4 2 . Respondent's failure to exercise best professional

judgment was further compound ed whe n, after learning of the

images and narrative , she nonetheless chose to show the video to

her second period class. Although she testified that she skipped

over almost all of the nude content , the students ' testimony

established that , at minimum, the y were exposed to the first two

nude images at 3:02 in the video and the last image , with its

sexually explicit narrative, starting at 5:08 in the video. In

choosing to show the video despite being aware of its contents,

Respondent i ntentionally exposed t he students in her second

period class to unnecessary embarrassment, in violation of rule

6A — 10.081(2)(a)5.

4 3 . Respondent's conduct also negatively affected the

confidence and respect of her students' parents , in violation of

rule 6A — 10.081(1)(c) , which establishes a standard to achieve and

sustain the highest degree of ethical conduct. To this point,

Arrojo and Gordon both testified, credibly, that they had

received numerous calls from parents, requesting that their

children be removed from Respondent' s class.

4 4 . For the reasons discussed below, it is also found, as a

matter of ultimate fact, that Respondent engaged in conduct that

violated school board policies 6100 and 4008 ; thus, she violated

rule 6A — 5.056(2)(c).

4 5 . For the reasons discussed i n detail above , it is found,

as a matter of ultimate fact, that Respondent engaged in conduct

that disrupted her students' learning environment, in violation

of rule 6A — 5.056( 2 )(d).

4 6 . Respondent's conduct also reduced her ability to

effectively perform her teaching duties, in violation of rule

6A — 5.056(2)(e). Specifically , as a result of Respondent's

conduct, many parents requested to have their children removed

from her class. This significant consequence evidence s that

Respondent's ability to effec tively perform her teaching duties

was reduced during the 2018 — 2019 school year .

Incompetency under Rule 6A — 5.056(3)

4 7 . It is also found, as a matter of ultimate fact, that

Respondent's conduct constitutes incompetency due to

inefficiency, in violation of rule 6A — 5.056 (3)(a). Specifically,

in showing the video to her classes, Respondent violated school

board policies and State Board of Education rules, and, thus,

failed to perform her teaching duties as prescribed by law . By

showing the video containi ng content that was not appropriate for

her students to see and hear, she also failed to communicate

appropriately with her students. Further , as a direct result of

her disorganization in failing to adequately and timely prepare

her l esson plans for Augus t 23, 2018, including completely

previewing both videos that she intended to show that day , the

welfare of her students was diminished.

4 8 . The undersigned finds , as a matter of ultimate fact,

that Respondent's conduct does not constitute incompetency du e to

incapacity. Although Respondent was not adequately prepared for

her August 23, 2018, class, and , as a result, showed a video that

was age — inappropriate for her students, the evidence does not

establish that she lacked adequate command of her area of

specialization. To the contrary, the evidence establishes that

she taught the Creative Photography I course for the entire 2018 —

2019 school year, and that , apart from her three — day suspen sion ,

incurred no further disciplinary action due to lack of

prepara tion or use of inappropriate instructional materials.

Willful Neglect of Duty under Rule 6A — 5.056(5)

49 . It is found, as a matter of ultimate fact, that

Respondent's conduct constitutes willful neglect of duty , in

violation of rule 6A — 5.056(5). As d iscussed above, once

Respondent became aware , during her first period class, of the

nude and sexually explicit images in the video, she nonetheless

chose to continue showing the video to her first period class,

thereby recklessly 5/ exposing the students to additional nude

images and sexually explicit c ontent.

Violation of School Board Polic y 6100

5 0 . It is found, as a matter of ultimate fact, that

Respondent's conduct violated school board polic y 6100.

5 1 . Specifically, by showing the video in her cl asses,

that audiovisual materials selected for student instruction be

age — appropriate. The evidence definitively establishes that the

nude and sexually explicit images and narrative were no t age —

appropriate for the students enrolled in the class . The students

who testified at the final hearing were 15 — and 16 — years — old .

Pursuant to the MPAA ratings, which have been incorporated into

school board policy 6100 , audiovisual materials depictin g

sexually — oriented nudity —— such as that depicted in multiple

images in the video —— would warrant an R — rating, indicating that

they are i nappropriate for viewing by children younger than 17

years old.

5 2 . Respondent's conduct also violated policy 6100(2) (b) .

S he did not personally preview the video depicting the nude

images that she showed in her class on August 23, 2018 , and the

video was neither part of Western's school audiovisual collection

nor reviewed or recommended in professional literature .

5 3 . Additionally, Respondent's conduct violated p olicy

6100(3)(a) , because she did not obtain prior approval from Arrojo

or her department head before showing the video containing the

nude images to her classes.

5 4 . Respondent's conduct also violated poli cy 6100(3)(c) ,

because she did not preview, in its entirety, the video

containing the nude images before she showed it to her students.

Consequently, she did not pay due attention to assure that

content was consistent with the maturity level of the studen ts in

her class.

Violation of School Board Policy 4008

5 5 . It is found, as a matter of ultimate fact, that

Respondent's conduct violated school board policy 4008.

5 6 . Specifically, as discussed above, Respondent's conduct

violated several provisions o f rule 6A — 10.081, and, thus,

violated policy 4008(B)(1).

5 7 . Respondent also violated policy 4008(B)(1) by failing

to effectively use the materials provided by the District or

State in her class instruction on A ugust 23, 2018. Although she

could have chosen from the 460 units of material available on the

CPALMS website —— all of which were State — approved for use in

Creative Photography I —— she instead chose to show a video that

that she had not previewed, that was not part of Western's

audiovisual collect ion, and that had not been approved for

instructional use by Arrojo or his designee. In doing so, she

failed to employ sound teaching practices and methods.

5 8 . Respondent violated the directive in policy 4008(B)(3)

to infuse responsibility in the clas sroom , by failing to

a dequately prepare for her class, and , consequently , showing

nude, s exually explicit images that were inappropriate for her

students to view.

59 . Because it is determined that Respondent violated

provisions of rule s 6A — 5.056 and 6A — 10.081, and school board

policy 6100, it is found that she also violated school board

policy 4008(B)(8).

CONCLUSIONS OF LAW

6 0 . DOAH has jurisdiction over the parties to, and subject

matter of, this proceeding. §§ 120.569, 120.57(1), Fla. Stat.

6 1 . Th is is a disciplinary proceeding in which Petitioner

seeks to suspend Respondent from her employment as a teacher for

three days, without pay.

6 2 . Respondent is an "instructional employee," as defined

in section 1012.01(2).

6 3 . Section 1012.33(6)(a) sta tes, in pertinent part , that

" any member of the instructional staff may be suspended or

dismissed at any time during the term of the contract for just

cause as provided in paragraph (1)(a). " " J ust cause " is " cause

that is legally sufficient. " Fla. Admin. Code R . 6A — 5.056.

Pursuant to section 1012.33(1)(a), just cause includes misconduct

in office, incompetency, and willful neglect of duty.

6 4 . To suspend Respondent from her employment as a teacher ,

Petitioner must prove that she committed the alleged conduct ;

that the conduct violates the rules and policies cited in the

Administrative Complaint and/or stipulated in the pre — hearing

stipulation ; and that the violation of these rules and policies

constitutes just cause to suspend her.

6 5 . The standard of proof applicable to this proceeding is

a preponderance, or greater weight, of the evidence. McNeil v.

Pinellas Cty. Sch. Bd. , 678 So. 2d 476, 477 (Fla. 2d DCA 1996);

Dileo v. Sch. Bd. of Dade Cty. , 569 So. 2d 883 (Fla. 3d DCA

1990).

6 6 . Petitioner ha s charged Respondent with misconduct in

office. I n pertinent part, rule 6A — 5.056(2), defines m isconduct

in office as :

* * *

(b) A violation of the Principles of

Professional Conduct for the Education

Profession in Florida as adopted in Rule 6A -

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

(c) A violation of the adopted school board

rules;

(d) Behavior that disrupts the student’s

learning environment; o r

( e) Behavior that reduces the teacher’s

ability or his or her colleagues’ ability to

effectively perform duti es.

6 7 . Based on the foregoing F indings of F act, it is

concluded that Respondent committed misconduct in office,

pursuant to rule 6A — 5.056(2).

6 8 . Petitioner also charged Respondent with incompetency

under rule 6A — 5.056(3). " Incompetency " is defined as " the

inability, failure or lack of fitness to discharge the required

duty as a result of inefficiency or incapacity. "

69 . " I nefficiency " is defined , in pertinent part, in rule

6A — 5.056(3)(a) to mean one or more of the following:

" 1. [f] ailure to perform duties prescribed by law; 2. [f] ailure

to communicate appropriately with and relate to students; . . .

4. [d] isorganization of his or her classroom to such an extent

that the health, safety or welfare of the students is

diminished [.] "

7 0 . Bas ed on the foregoing F indings of F act, it is

concluded that Respondent's conduct constituted incompetency due

to inefficiency, pursuant to rule 6A — 5.0 5 6 (3)(a).

7 1 . "Incapacity" is defined in rule 6A — 5.056(3)(b) as

constituting one or more of the followin g: "1. Lack of

emotional stability; 2. Lack of adequate physical ability;

3. Lack of general educational background; or 4. Lack of

adequate command of his or her area of specialization."

7 2 . B ased on the foregoing Findings of F act, it is

concluded that Respondent's conduct did not constitute

incompetency due to incapacity.

7 3 . Petitioner also charged Respondent with " w illful

neglect of duty , " which, pursuant to rule 6A — 5.056(5), means

" intentional or reckless failure to carry out required duties . "

7 4 . Based on the foregoing F indings of F act, it is

concluded that Respondent engaged in willful neglect of duty, in

violation of rule 6A — 5.056(5).

7 5 . Petitioner also charged Respondent with violating

polic y 6100 , Petitioner's a udiovisual m aterials u se p olicy . This

policy states, in pertinent part:

1. Requirements

All instructional resources, including

audiovisual materials, must:

* * *

d. reflect the best teaching practices based

on age appropriateness and instructional

relevance.

2. Selection of Audiovisual Materials

a. Audiovisual materials selected for

student instruction and classroom use must be

age appropriate and relevant to the specific

instructional goal. When available, the MPAA

(Motion Picture Association of

America) rat ings should be used to guide

decisions about audience appropriateness.

b. Audiovisual materials in the school

collection and those selected for use from

outside the school collection must be

s elected based on personal preview, reviews

or recommendations from professional

literature, or have been recommended for use

by the District.

3. Procedures and Best Practices for Use of

Audiovisual Materials

The usage of audiovisual materials from

inside or outside the school collection must:

a. meet principal or designee approval prior

to use with students;

* * *

c. be previewed in their entirety prior to

being shown to students by the teacher using

the resource, with special attention paid to

assuring that language, theme, violence, and

content are consistent with the maturity

level of the students who will be viewing the

material[.]

7 6 . Based on the foregoing Findings of F act, it is

concluded that Respondent violated school board policy 6100.

7 7 . Petitioner also charged Respondent with violatin g

School Board Policy 4008. This policy states, in pertinent part:

Responsibilities and Duties ( Principals and

Instructional Personnel )

* * *

B. Duties of Instructional Personnel

The members of instructional staff shall

perform the following f unctions:

1. Comply with the Code of Ethics and the

Principles of Professional Conduct of

the Education Profession in Florida.

2. Teach efficiently and effectively using

the books and materials required by the

District or the State following the

prescr ibed courses of study and employ sound

teaching practices and methods.

3. Infuse in the classroom, the District’s

adopted Character Education Traits of

Respect, Honesty, Kindness, Self - control,

Tolerance, Cooperation, Responsibility and

Citizenship.

* * *

8. Conform to all rules and regulations that

may be prescribed by the State Board and by

the School Board.

7 8 . Based on the foregoing Findings of F act, it is

concluded that Respondent violated school board policy 4008.

79 . School b oard p olicy 4.9, titled "Corrective Action,"

prescribes the types of discipline appropriate to be imposed for

specified offenses.

8 0 . Policy 4.9, section (I)(d) , establishes Petitioner's

progressive discipline policy. That provision states, in

pertinent part, that "[i]n most cases, the District follows a

progressive corrective action process consistent with the "Just

Cause" standard designed to give employees the opportunity to

correct the undesirable performance , [or] conduct . . .. A more

severe correc tive measure will be used when there is evidence

that students . . . was (sic) negatively impacted."

8 1 . Policy 4.9, section II, establishes the range of

disciplinary ou tcomes for specified offenses. Under this

section, the following are identified as " Category B offenses, " 6 /

for which the recommended range of discipline is " R eprimand /

Dismissal " : "m) [a]ny violation of the Code of Ethics of the

Education Professional in the State of Rule — State Board of

Education Administrative Rule; . . . r)[f]ailure to comply with

School Board policy, state law, or appropriate contractual

agreements."

8 2 . Policy 4.9, section III (c) , titled "Other

Considerations," sets forth the circumstances that may be

considered in determining the appropriate penalty within a

Ca tegory B offense range. These circumstances include, but are

not limited to:

1. The severity of the offense

2. Degree of student involvement

3. Impact on students, educational process

and/or community

4. The number of repetitions of the offenses

an d length of time between offenses

5. The length of time since the misconduct

6. Employment history

7. The actual damage, physical or otherwise,

caused by the misconduct

8. The deterrent effect of the discipline

imposed

9. Any effort of rehabilit ation by the

employee

10. The actual knowledge of the employee

pertaining to the misconduct

11. Attempts by the employee to correct or

stop the misconduct

12. Related misconduct by the employee in

other employment including findings of guilt

or innoc ence, discipline imposed and

discipline served

13. Actual negligence of the employee

pertaining to any misconduct

14. Pecuniary benefit or self - gain to the

employee realized by the misconduct

15. Degree of physical and mental harm to a

student, co - wo rker or member of the public

16. Length of employment

17. Whether the misconduct was motivated by

unlawful discrimination

18. Any relevant mitigating or aggravating

factors under the circumstance

19. Employee’s evaluation

20. Adherence to Self - Re porting Policy

8 3 . Here, the factors warranting a three — day suspension of

Respondent include : the severity of the offense s ; the impact of

Respondent's conduct on students, the education process, and the

community; Respondent's prior disciplinary histor y; the need to

deter future similar conduct; Respondent's failure to take

adequate action to correct the violation after becoming aware

that the video contained inappropriate conduct; and her decision

to show the video a second time whi le knowing that the video

contained age — inappropriate content . Although Respondent did

self — report her offense, she did so only after she had twice

shown it to her classes , even while knowing of its inappropriate

content.

8 4 . Based on the foregoing, it is determined that just

cause exists, as required by section 1012.33(1)(a) and (6), to

suspend Respondent from her employment as a teacher for three

days, without pay.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that Pet itioner, Broward County School

Board, enter a final order determining that just cause exists to

suspend Respondent, Brenda Joyce Fischer, from her employment as

a teacher for three days, without pay.

DONE AND ENTERED this 21st day of January , 2020 , in

Tal lahassee, Leon County, Florida.

CATHY M. SELLERS

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.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 21st day of January , 2020 .

ENDNOTES

1/ All references to sections 120.569 and 120.57 are to the 2019

version of Florida Statutes.

2/ chapter 1012, Florida Statutes, are to the All references to

2018 version, which was in effect at the time of Respondent's

conduct that is alleged to have violated specified statutes,

rules, and policies in this case.

3/ ected for the Arrojo testified that the textbook Respondent sel

Creative Photography I course also was used at another school in

the Broward County School District, so was available to be

borrowed on a single copy basis for Respondent's use while waiting

for the arrival of the class set of books. This pr actice is not

mentioned in the Faculty Handbook and the evidence does not show

that this practice has been formally adopted as a school board

policy.

4/ The rules and policies about which these findings of ultimate

fact are made are set forth in pertine nt part in the Conclusions

of Law.

5 / The term "recklessly" is not defined in chapter 1012 or

implementing rules. Black's Law Dictionary defines "reckless" as

"characterized by the creation of a substantial and unjustifiable

risk of harm to others and by a conscious . . . disregard for or

indifference to that risk." Black's Law Dictionary (Deluxe

Seventh Ed. 1999).

6 / Rule 6A — 10.081, which is incorporated into rule

6A — 5.065(2), states, in pertinent part:

(1) Florida educators shall be guided by t he

following ethical principles:

* * *

(b) The educator’s primary professional

concern will always be for the student and

for the development of the student’s

potential. The educator will therefore

strive for professional growth and will seek

t o exercise the best professional judgment

and integrity.

(c) Aware of the importance of maintaining

the respect and confidence of one’s

colleagues, of students, of parents, and of

other members of the community, the educator

strives to achieve and sustai n the highest

degree of ethical conduct.

(2) Florida educators shall comply with the

following disciplinary principles. Violation

of any of these principles shall subject the

individual to revocation or suspension of the

individual educator’s certificat e, or the

other penalties as provided by law.

(a) Obligation to the student requires that

the individual:

1. Shall make reasonable effort to protect

the student from conditions harmful to

learning and/or to the student’s mental

and/or physical health a nd/or safety.

* * *

5. Shall not intentionally expose a student

to unnecessary embarrassment or

disparagement.

7 / Category B offenses are "considered to be so egregious,

problematic, or harmful that the employee may be immediately

removed fro m the workplace until such time a workplace

investigation is completed." Policy 4.9, § I(d). Consideration

of the severity of the misconduct in each case, together with

pertinent relevant circumstances in section III(c), determine

what step in the range of progressive corrective action is

followed. Id.

COPIES FURNISHED:

Katherine A. Heffner, Esquire

Robert F. McKee, P.A.

Post Office Box 75638

Tampa, Florida 33605

(eServed)

Denise Marie Heekin, Esquire

Bryant Miller Olive, P.A.

Suite 2200

One Sout heast Third Avenue

Miami, Florida 33131

(eServed)

Ranjiv Sondhi, Esquire

Bryant Miller Olive, P.A.

Suite 2200

One Southeast Third Avenue

Miami, Florida 33131

(eServed)

Elizabeth W. Neiberger, Esquire

Bryant Miller Olive, P.A.

Suite 2200

One Southeast T hird Avenue

Miami, Florida 33131

(eServed)

Robert F. McKee, Esquire

Robert F. McKee, P.A.

Post Office Box 75638

Tampa, Florida 33675

(eServed)

Matthew Mears, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Robert W. Runcie, Superintendent

Broward County School Board

600 Southeast Third Avenue, Tenth Floor

Fort Lauderdale, Florida 33301 - 3125

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to subm it 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.