19-003381TTS Broward County School Board vs. Dagoberto Magana-Velasquez Status: Closed Recommended Order on Wednesday, May 5, 2021.

Summary: Just cause demonstrated, by preponderance of the evidence, to terminate teacher's employment.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

B ROWARD C OUNTY S CHOOL B OARD ,

Petitioner ,

vs. Case Nos. 19 - 3380TTS

19 - 3381TTS

D AGOBERTO M AGANA - V ELASQUEZ ,

Respondent .

/

R ECOMMENDED O RDER

Pursuant to notice, a hearing was conducted in th e s e case s pursuant to

sections 120.569 and 120.57(1), Florida Statutes (2020), 1 by Cathy M. Sellers,

an Administrative Law Judge ("ALJ") of the Division of Administr ative

Hearings ("DOAH") , on August 18, 2020, by Zoom Conference.

A PPEARANCES

For Petitioner: Denise Marie Heekin, Esquire

Ranjiv Sondhi, Esquire

Bryant Miller Olive, P.A.

Suite 2 2 00

One Southeast Third Avenue

Miami, F lorida 33131

For Respondent: Robert F. McKee, Esquire

Katherine A. Heffner, Esquire

Robert F. McKee, P.A.

Suite 301

1718 East Seventh Avenue

Tampa, Florida 33605

1 All references to chapter 120, Florida Statutes, are to the 2020 codification.

S TATEMENT OF T HE I SSUE S

(1) W hether just cause ex ists, pursuant to section 1012.33, Florida

Statutes , 2 for Petitioner to suspend Respondent from his employment as a

teacher for ten days without pay in Case No. 19 - 3380 ; and (2) whether just

cause exists, pursuant to section 1012.33, for Petitioner to term inate

Respondent's employment as a teacher in Case No. 19 - 3381 .

P RELIMINARY S TATEMENT

By Administrative Complaint dated February 14, 2019 ("February

Administrative Complaint") , Petitioner, Broward County School Board,

notified Respondent, Dagoberto Maga na - Velasquez, that it was seeking to

suspend him from his employment as a teacher with Broward County Public

Schools ("District") for ten days without pay , for alleged violations of statute,

Department of Education ("DOE") rules, and School Board policies .

Respondent timely requested an administrative hearing pursuant to sections

120.569 and 120.57(1), challenging his suspension.

By Administrative Complaint dated May 16, 2019 ("May Administrative

Complaint"), Petitioner notified Respondent that it was see king to terminate

his employment as a teacher with the District for alleged violations of

statute, DOE rules, and School Board policies . Respondent timely requested

an administrative hearing pursuant to sections 120.569 and 120.57(1),

challenging his termi nation .

By letter s dated June 20, 2019, Petitioner referred both proceedings to

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

2 All references to chapter 1012 are to the 2017, 2018 , and 2019 codifications, as applicable,

based on when the conduct at issue is alleged to have occurred. Notably, no provisions of

chapter 1012 pertinent to this proceeding were amended between 2017 and 2019; thus,

during the timeframes pertinent to this p roceeding, all pertinent provisions of chapter 1012

contained the same language.

sections 120.569 and 120.57(1). The matter initiated by the February

Administrative Complaint was assigned Cas e No. 19 - 3380 , and t he matter

initiated by the May Administrative Complaint was assigned Case No. 19 -

3381. Pursuant to motion, the matters were consolidated for purposes of

conducting the final hearing and issuing a recommended order, and the 60 -

day hearin g period set forth in section 1012.3 3 (6)(a)2. was extended.

The final hearing initially was scheduled for December 10 through 12,

2019 , in person , at a location in Broward County, Florida . Pursuant to

motion, the final hearing subsequently was reschedul ed to February 11

through 13, 2020 ; February 18 through 20, 2020 ; M ay 27 through 29, 2020 ;

and August 18 through 20, 2020. Due to the Covid - 19 pandemic, t he final

hearing was conducted by Zoom Conference on August 18, 2020 .

Petitioner presented the test imony of Breanna Henry and John Murray at

the final hearing . T he deposition testimony of Nicole Voliton, Maria Formoso,

Alicia Carl, Tamekia Thompson, Richard Cohen, Tevin Fuller, Whitney

Malcolm, Dorcas Alou, Itzell Angeles, Julian Cardentey, Justus Betti s, Dejah

Jean c harles, Amaya Mason, Breanna Westbrook, Malik Cooper, Nyesha

Dixon, Breanna Dwyer, Darius Gaskin, and J'Niya Harrell was admitted into

evidence in lieu of testimony at the final h earing. 3 , 4 Petitioner's Exhibits 1

3 Due to the Covid - 19 pandemic and related logistics in securing witnesses' presence to

testify in person at the final hearing, it is determined, pursuant to Florida Rule of Civil

Procedure 1.330(3), that exceptional circumstances existed justifying the use of these

witnesses' deposition testimony in lieu of their in - person testimony at the final hearing. See

Dinter v. Brewer , 420 So. 2d 932, 934 n.1 (Fla. 3d DCA 1982)(rule 1 .330 allows the use of

depositions taken and offered into evidence under certain circumstances, described in the

rule , "as though the witness were then present and testifying," and, thus, eliminates any

hearsay objection based on the deponent's absence fro m the court).

4 The evidence in these cases, including references to "evidence presented at the final

hearing , " includes the deposition testimony admitted into evidence in these proceedings. All

student witnesses were over 18 years of age at the time this Recommended Order was

prepared; accordingly, their names, rather than their initials, have been used to identify

them.

through 9 and 12 through 71 were admitted into evidence . 5 Petitioner

withdrew Petitioner's Exhibits 54 and 59 after they were admitted into

evidence .

Respondent did not present any testimony at the final hearing. The

deposition testimony of Respondent and Murray was admitted into evidence

in lieu of testimony at the final hearing , 6 and Respondent's Exhibit 1 was

admitted into evidence without objection .

P ursuant to the parties' agreement, the record was held open after the

final hearing was concluded in order to enable preparati on and filing of the

deposition transcripts admitted in lieu of testimony at the final hearing , and

to enable Petitioner to seek enforcement of deposition subpoenas for , and

depose, three witnesses.

The one - volume Transcript of the final hearing was fil ed at DOAH on

September 17, 2020, and the deposition transcripts were filed at DOAH on

September 3, 10, 16, 17, October 30, and November 30, 2020. 7 The record was

closed on November 30, 202 0 .

Pursuant to the parties' agreement, the deadline for filing p roposed

recommended orders initially was set for 30 days after the last deposition

transcript was filed Ð i.e., December 30, 2020 . The deadline for filing proposed

recommended orders subsequently was extended four times, with a final

filing deadline of Febru ary 12, 2021.

5 Petitioner's Exhibits 8, 9, 12, 18 through 31, 34, 35, 49, 51, 53, 58, and 65 through 68 were

admitted into evidence over objection.

6 See note 3 above.

7 The Transcript and depositions, not including the indices, court reporter certificates, or

deposition exhibits, totaled approximately 1178 pages of testimony.

The parties timely filed their P roposed R ecommended O rders on

February 12, 2021. The undersigned has given due consideration to both

P roposed R ecommended O rders in preparing this Recommended Order.

F INDINGS OF F ACT

I. The Parties

1 . Petit ioner is the entity charged with operating, controlling, and

supervising all district public schools in Broward County, Florida, pursuant

to article IX, section 4(b) of the Florida Constitution, and section 1012.33.

2 . Respondent is employed by the Distric t as a mathematics teacher at

Miramar High School ("MHS") pursuant to a professional services contract

issued in accordance with section 1012.33(3)(a ) . He holds a professional

educator's certificate in mathematics for 6th through 12th grades.

3. Responden t was employed by the District in 2007, and has been a

teacher at MHS since the 2007 - 2008 school year, with the exception of most

of the 2015 - 2016 school year, during which he was administratively

reassigned with pay pending the outcome of a personnel inve stigation. He

returned to teaching at MHS for the 2016 - 2017 school year, and was a

teacher at MHS during the 2018 - 2019 school year , when the conduct giving

rise to these proceedings is alleged to have occurred.

II. The Administrative Complaints

A. Februa ry Administrative Complaint

4 . The February Administrative Complaint , which giv es rise to Case No.

19 - 3380 , alleges that during the 2017 - 2018 school year and the first semester

of the 2018 - 2019 school year, Respondent engaged in conduct that violat e d

speci fied statutes, DOE rules, and School Board policies .

5 . Pursuant to the February Administrative Complaint, Petitioner seeks

to suspend Respondent from his employment as a teacher for ten days

without pay.

6 . Specifically, the February Administrative Comp laint alleges that after

previously having been disciplined for making racially insensitive and

inappropriate comments to students, Respondent continued to use

embarrassing or disparaging language toward students . A s a result, a c ease

and d esist l etter was issued to Respondent on or about March 23, 2017 ,

directing him to cease engaging in such conduct . The A dministrative

C omplaint alleges that Respondent continued to use racially insensitive,

embarrassing , and disparaging language toward students Ð specifical ly, that

he referred to an African - American male student as "boy."

7 . The February Administrative Complaint also alleges that Respondent

threatened to remove students who talked from his class ; graded students

based on their behavior , rather than thei r wo rk product; and failed to grade

student work in a timely manner. As a result of this alleged conduct,

Respondent received a m eeting s ummary memorandum on or about

December 7, 2017.

8 . The February Administrative Complaint alleges that Respondent still

fail ed to contact the parents of student s who were failing and engaged in

unfair grading practices, resulting in issuance of another m eeting s ummary

memorandum to him on or about April 27, 2018.

9 . The February Administrative Complaint alleges that in the f irst

semester of the 2018 - 2019 school year , during a Code Red Drill, Respondent

is alleged to have engaged in racially insensitive conduct by disparately

disciplining African - American students for engaging in the same type of

conduct in which w hite and His panic students engaged , without any

disciplin ary consequences. The A dministrative C omplaint also alleges that

during the Code Red Drill, Respondent was so disengaged from his students

that he did not know one of his student's name and , consequently , wrote a

disciplinary referral for the wrong student.

1 0 . The February Administrative Complaint alleges that Respondent

engaged in conduct demeaning to students. Specifically, it is alleged that

Respondent did not respond to student questions regarding how to do

problems; embarrassed a student by saying he did not understand fifth grade

math; and wrote "1 1" on the board to mock students in his class. He also

allegedly reduced a student's class participation grade for talking.

1 1 . The February Admini strative Complaint alleges that Respondent

spoke to a "black girl who is Jamaican in Creole because he assume s she is

Haitian."

1 2 . The February Administrative Complaint alleges that Respondent

embarrassed and degraded a student by saying he did not under stand the

classwork "because it's not fifth grade math."

1 3 . The February Administrative Complaint also alleges that Respondent

demeaned students by saying " 'slick stuff,' such as 'math is simple and we are

used to [second] or [fifth] grade math .' "

1 4 . T he February Administrative Complaint alleges that Respondent

lowered the grade of a student for talking, and told her that she and several

other students were "on his 'watch list' " of students who would have their

grades lowered for talking.

1 5 . The Febru ary Administrative Complaint further alleges that when

that student asked about Respondent's grading practices, he responded "you

ask too much questions," causing the whole class to laugh.

1 6 . The February Administrative Complaint alleges that on or about

October 1 0, 2018, during the administration of the P reliminary Scholastic

Aptitude Test ("PSAT") , Respondent did not follow proper testing protocol .

Specifically, it is alleged that Respondent did not pick up the testing

materials on time, started the tes t late , and did not read all of the directions

to the students . It is also alleged that he did not collect book bags and cell

phones and place them at the front of the roo m, and that a cell phone rang

during the test. Additionally, he is alleged to have al lowed students to talk

loudly during the test.

1 7 . The February Administrative Complaint alleges that Respondent took

points off of a student's grade for talking.

1 8 . The February Administrative Complaint alleges that Respondent

refused to allow student s who had missed class due to a band trip to make up

their class work.

19 . The February Administrative Complaint alleges that Respondent

made demeaning comments about students' writing ; used the word "horrible"

to describe their work , which made them feel "dumb or stupid"; was

"disres pectful and sarcastic " ; and deducted students' class participation

points for talking or asking for a pencil or paper.

2 0 . The February Administrative Complaint alleges that Respondent

talked to students in a demeaning manner about being "slow" and told

students he thought the Chinese were smarter than Americans.

B. May Administrative Complaint

2 1 . T he May Administrative Complaint , which gives rise to Case No.

19 - 3381 , alleges that in the second semester of the 2018 - 2019 scho ol year ,

Respondent continued to engage in conduct that violated specified statutes,

DOE rules, and School Board policies.

2 2 . Specifically, the May Administrative Complaint alleges that in

February 2019, Respondent threatened to put tape over students' m ouths for

talking ; disparaged students through racially insensitive treatment and

comments ; and made insulting and offensive comments to students regarding

their mental health and ethnicity .

2 3 . The May Administrative Complaint also alleges that Respondent

wrote a "red list" of students' names on the board who were disruptive or

talking and continued to engage in inappropriate grading practices, such as

lowering students' grades as a means of discipline for behavior issues .

2 4 . The May Administrative Compla int also alleges that Respondent

continued his practice s of not contact ing parents of failing students; not

writ ing referrals to deal with disciplinary matters; and failing to create a

discipline plan for dealing with behavior issues in his classroom, as d irected.

2 5 . In addition, the May Administrative Complaint alleges that

Respondent claim ed that during the past four years, Respondent's students

were manipulated by an assistant principal , Ms. Hoff , to write false

statements against him, notwithstanding that Hoff had not been employed at

MHS for the previous two years.

2 6 . Pursuant to the May Administrative Complaint, Petitioner seeks to

terminate Respondent's employment as a teacher.

III. Stipulated Facts Regarding Disciplinary Corrective Action Histor y

27 . The parties stipulated to the following facts regarding Respondent's

history of disciplinary corrective actions while employed as a teacher with the

District. 8

2 8 . On or about February 13, 2013, Respondent received a v erbal

r eprimand for failing to meet the performance standards required of his

8 Petitioner's Corrective Action Policy, Policy 4.9, section I(b), stat es:

The types of corrective action may include, but are not limited

to the following employment actions: verbal reprimands,

written reprimands, suspension without pay, demotion, or

termination of employment. There are other types of actions

to encourage and support the improvement of employee

performance, conduct or attendance that are not considered

disciplinary in nature. These actions may include, but are not

limited to: coaching, counseling, meeting summaries, and

additional training.

Policy 4.9, Co rrective Action.

Respondent cannot be subjected to discipline in these proceedings for previous violations of

statutes, rules, or policies for which he has already been disciplined. See Dep't of Bus. &

Prof'l Reg. , Case No. 11 - 4156 (Fla. DOAH Dec. 19, 20 11; Fla. DBPR Oct. 2, 2012)(multiple

administrative punishments cannot be imposed for a particular incident of misconduct).

However, under Policy 4.9, section III, the history of disciplinary corrective actions is

relevant to determining the appropriate pe nalty, if any, to be imposed in these proceedings,

and history of disciplinary and non - disciplinary corrective actions is relevant to determining

whether Respondent subsequently engaged in conduct constituting gross insubordination, as

charged in these pro ceedings.

position , by failing to follow School Board policy and procedures and engaging

in un professional conduct.

2 9 . On or about May 30, 2013, Respondent received a w ritten r eprimand

for not following proper proced ures , and being insubordinate by failing to

follow such procedures after numerous directives. Specifically, he failed to

contact the parents of students who had been habitually truant or were

failing his class ; arrived late to work several times ; lied abou t parking in the

student parking lot ; and left students unsupervised on multiple occasions.

30 . On November 8, 2016, Respondent received a v erbal r eprimand for not

providing accommodations to his exceptional student education ("ESE")

students ; not taking attendance ; not grading studentsÔ work or grading

studentsÔ work in accurately ; and failing to provid e feedback to students.

3 1 . On February 7, 2017, Respondent received a five - day suspension for

making racially insensitive and inappropriate comments to st udents. This

five - day suspension resulted from a p ersonnel i nvestigation by the District

police department into allegations that Respondent made racist and racially

insensitive remarks to students. The request for the investigation was made

on or about Oct ober 16, 2015. Respondent was administratively reassigned

out of the classroom on November 6, 2015, and was not released from

administrative reassignment until August 15, 2016. Respondent originally

challenged the five - day suspension in Case No. 17 - 1179TTS , but later

withdrew his challenge , and t he case was closed on May 19, 2017. The

Commission er of Education ("COE") also filed an a dministrative c omplaint

with the Education Practices Commission , based on Respondent making

racially, ethnically , and/or socio economically - driven disparaging comments

toward students. Respondent entered into a settlement agreement with the

COE under which he received a written reprimand ; was fined and p laced on

probation for one year ; and was assessed costs for monitoring his pro bation.

T he written reprimand was placed in his District personnel file.

3 2 . On or about October 27, 2017, Respondent received a l etter of

r eprimand from the District's p rofessional s tandards c ommittee for unfair

grading practices ; making embarrassing re marks to students ; fail ing to

provide feedback to students ; grading inaccuracies ; refus ing to accept work ;

grading student behavior rather than student work product ; fail ing to contact

parents ; fail ing to follow a discipline plan ; fail ing to grade student work in a

timely manner ; entering incorrect grades ; fail ing to provide ESE

accommodations to students entitled to receive such accommodations ; and

making disparaging remarks about colleagues. This l etter of r eprimand

resulted from a p ersonnel i nvestigation conducted by the District p olice

d epartment regarding numerous allegations against Respondent . These

allegations included, but were not limited to, unfair grading practices ;

making embarrassing remarks to students ; failing to provide feedback to

students ; lowering grades based on behavior ; failing to contact parents ;

grading and attendance inaccuracies ; providing fake lesson plans to his

a ssistant p rincipal ; and making remark s to a student that a fellow math

teacher did not know what she was doing. The req uest for the investigation

was made on or about November 21, 2016. Respondent did not challenge the

l etter of r eprimand.

IV. Stipulated Facts Regarding Non - Disciplinary Corrective Action History

3 3 . The parties stipulated to the following facts regarding Respondent's

history of non - disciplinary corrective actions while he was employed as a

teacher with the District .

3 4 . On or about July 16, 2011, Respondent received a c oncerns and

e xpectations m emorandum for failing to follow and adhere to School Board

an d school polic ies , procedures , and regulations; failing to maintain accurate

student records and follow the D istrict grading system; and not fulfilling his

responsibility as a professional educator in a timely manner , with integrity.

3 5 . On or about Octob er 20, 2011, Respondent received a nother c oncerns

and e xpectations m emorandum for failing to follow and adhere to School

Board and school polic ies , procedures and regulations; failing to maintain

accurate student records a nd follow the D istrict grading sys tem; and not

fulfilling his responsibility as a professional educator in a timely manner ,

with integrity.

3 6 . On or about October 31, 2012, Respondent received a nother c oncerns

and e xpectations m emorandum for failing to follow the D istrictÔs grading

syste m.

3 7 . On or about January 7, 2013, Respondent received a nother c oncerns

and e xpectations m emorandum for failing to follow and adhere to School

Board and school polic ies , procedures and regulations; failing to maintain

accurate student records of students and failing to follow the D istrict grading

system; and not fulfilling his responsibility as a professional educator in a

timely manner , with integrity.

3 8 . On January 23, 2015, Respondent received a m eeting s ummary

regarding grading criteria ; students no t learning in, and failing , his class ;

and making students feel disparaged or embarrassed. He was directed to

ensure t hat students understand his grading criteria for classwork and

homework ; u se strategies to help students with new knowledge ; use

strategie s to help students practice and deepen the new knowledge in all

lessons and activities ; and not intentionally expose student s to unnecessary

embarrassment or disparagement.

3 9 . On October 14, 2016, Respondent received a s ummary m emorandum

for his use of e mbarrassing language towards students ; failure to contact

parents or write referrals for behavior issues ; and concern s about his failure

to provide daily remediation. Respondent was advised that he was expected

to create and maintain a positive and pleasan t learning environment in the

classroom ; use effective instructional strategies and feedback techniques that

do not embarrass students ; create and follow a discipline plan for his

classroom ; contact parents when students are failing ; write referrals for

r eferable acts ; and remediate and teach students daily . Respondent was

informed that his failure to correct these issues may result in disciplinary

action.

40 . On or about March 23, 2017, Respondent was issued a c ease and d esist

l etter for his continued us e of embarrassing and disparaging language toward

students.

4 1 . On or about December 7, 2017, Respondent received a m eeting

s ummary for his use of embarrassing and condescending language towards

the students, by referring to an African - American male stude nt as " boy " ;

threatening to remove students from his class if they misbehaved during a

formal observation ; grading students on their behavior rather than their

work product ; and failing to grade student work in a timely manner. He was

directed to refrain f rom using condescending language that makes students

feel inferior in math ; l earn his studentsÔ names and refer to them by name ;

c reate and follow a discipline plan for his classroom without remov ing

students unless they have completely disrupted the teach ing and learning

process in the c lassroom ; e nter grades in a timely manner and refrain from

deduct ing participation p oints from students ' grades for talking ; and c ontact

parents and write referrals for student misbehavior.

4 2 . On or about April 27, 2018, Respondent received a m eeting s ummary

memorandum for fail ing to contact parents of students who had D ' s or F ' s in

his classes, and for ke eping inaccurate grades .

V. Findings of Fact Based on Evidence Adduced at Final Hearing

43 . Based on the preponderan ce of the competent substantial evidence;

t he following Findings of Fact are made regarding the conduct charged in the

February Administrative Complaint and the May Administrative Complaint .

A. February Administrative Complaint

44 . The February Administ rative Complaint charges Respondent with

having engaged in conduct during the first semester of the 2018 - 2019 school

year that is alleged to violate statutes, DOE rules, and School Board policies.

45 . By way of background, Tevin Fuller and Julian Cardenty were

students in Respondent's financial algebra class in the 201 7 - 201 8 school year.

Both credibly testified that during a class in the 201 7 - 201 8 school year ,

Respondent called Fuller , who is African - American, "boy " and "bad boy." Both

Fuller and Cardenty were offended by Respondent's use of the word "boy" in

referring to Fuller, and considered it a racially demeaning remark. The y

reported Respondent's conduct to Assistant Principal J.P. Murray.

46 . Fuller credibly testified that as a result of Respondent ' s disrespectful

conduct toward him, he avoided attending Respondent's class.

47 . A s discussed above, in December 2017, as a result, Respondent

previously had been issued a s ummary m emorandum Ð a non - disciplinary

corrective action Ð which instructed him to, among other things, cease using

racially demeaning terms toward African - American students , and cease using

condescending language that made students feel inferior regarding their

mathematical ability.

48 . T he credible, consistent evidence establishe s tha t during the first

semester of the 2018 - 2019 school year, Respondent continued to ma k e

racially insensitive and demeaning comments , and engage in conduct

directed toward students in his class es that they found embarrassing and

offensive .

49 . Specificall y , s everal students testified, credibly, that on one occasion

during the 2018 - 2019 school year , after Respondent gave an unannounced

quiz to his financial algebra class , he stated that he would not grade the quiz

papers because he could " see the F's on the ir foreheads , " or words to that

effect. The credible evidence establishe s that the students considered this

remark as demeaning to their ability and intelligence, and they were

offended. This testimony corroborated several written statements, admitted

into evidence, which were provided by students at or about the time this

incident took place .

50 . T wo students, Malik Cooper and Nyesha Dixon, credibly testifie d that

they witnessed Respondent belittle and mock a student, Jordan Lee, when he

asked for assista nce on a class assignment in Respondent's financial algebra

class. Specifically, they saw and heard Respondent comment to Lee that he

(Lee) did not understand the lesson because he could " only understand fifth

grade math, " or words to that effect. Dixon an d Cooper both credibly testified

that the whole class laughed at Respondent's comment to Lee . Dixon

testified, credibly, that Lee appeared shocked and embarrassed by

Respondent's comment. Although Petitioner did not present Lee's testimony

at t he final hea ring , Lee provided a written statement that was admitted into

evidence , describing this incident . An email from Lee's mother to Murray

regarding this incident corroborate s Dixon's and Cooper's testimony and

Lee's reaction to Respondent's insulting comment to him.

51 . Two students , Breanna Dwyer and Malik Cooper , credibly testified

that on one occasion, Respondent told his students that the Chinese were

smarter and learned faster than Americans, a comment that the students

interpreted as belittling their in telligence.

52 . Two students , Dorcas Alao and Nyesha Dixon, testified , credibly, to

the effect that Respondent singled out Haitian students and made remarks to

them , which those students found offensive. Specifically, they testified that

Respondent would attempt to speak to Haitian students in Creole, that the

students told him they found his behavior offensive, and that Respondent

would "just laugh . "

53 . Several students credibly testified , in more general terms , that

Respondent frequently spoke down to them, treated them in a condescending

manner, made rude remarks to them, and was disrespectful toward them,

and that his conduct and remarks were insulting and made them feel as if

they were ignorant and unintelligent.

54 . Additionally, one student , Whi tney Malcolm, testified, credibly, that in

response to her asking a question about a syntax error on a calculator,

Respondent yelled at her loudly enough for the entire class to hear . Malcolm

testified, credibly, that she was embarrassed by the incident.

55 . The credible evidence establishes that Respondent continued to lower

students' academic course grades as a means o f addressing behavioral issues,

notwithstanding that he had been issued a m eeting s ummary on April 27,

2018, direct ing him not to do so.

56 . Specifically, s everal students testified, credibly, that Respondent kept

a "watch list" of students for whom he deducted points off their academic

course grade for behavioral issues, such as talking in class.

57 . Murray credibly testified, and the MHS Faculty Handbook for the

201 8 - 201 9 school year expressly states, that student misbehavior cannot be

reflected in the academic course grade, and, instead, is to be addressed in the

conduct grade. Murray testified that he counseled Respondent numerous

ti mes on this issue and directed him to cease deducting points from students'

academic course grades for behavior issues. The evidence regarding

Respondent's history of disciplinary and non - disciplinary corrective actions

bears out that he repeatedly ha s bee n directed not to lower students'

academic course grades as a means of dealing with classroom behavioral

issues.

58 . The competent substantial evidence also establishes that Respondent

did not follow proper testing protocol when administering the PSAT to his

homeroom students on October 10, 2018. Specifically, notwithstanding that

all teachers, including Respondent, who were administering the PSAT had

been given training and provided written instructions regarding picking up

the exams, reading the instruc tions to the students, and administering the

exams, Respondent did not timely pick up the exams on the day it was

administered. The exams for his homeroom students had to be delivered to

the room in which he was to administer the exam, and as a consequence , he

was late starting the exam administration.

59 . The credible evidence establishes that Respondent instruct ed the

students to turn off their cell phones , place them in their book bag s, and put

their book bag s away . However, he did not collect students ' book bag s or

require students to place their book bag s at the front of the room, as

expressly required by the exam proctor reminders document and the

PSAT/NMBQT Coordinator Manual, both of which previously had been

provided to the teachers , including Res pondent, who were administering the

PSAT . As a result of Respondent's failure to follow exam protocol, the

students kept their book bag s next to , or under , their desks, in violation of

that protocol.

60 . A cell phone rang during one of the testing sessio n s . The persuasive

evidence establishes that Respondent had instructed students to silence their

cell phones and put them away; thus, the cell phone ringing during a testing

session was the result of a student failing to follow instructions, rather than

Re spondent failing to provide such instructions.

61 . T wo teachers, Tamekia Thompson and Richard Cohen, went to

Respondent's classroom at different times on the day the PSAT was

administered , to tell the students in his classroom to be quiet. Amaya Mason,

a student in Respondent's homeroom class who took the PSAT that day,

complained in a written statement, and subsequently testified, that students

were talking during the testing sessions, while the students were in the

process of taking the exam. Other stud ents who took the PSAT in

Respondent's homeroom class that day testified that students did not talk

during the testing sessions, but that they did talk loudly during breaks

between the testing session s . T hus, the evidence does not definitively

establish th at students were talking during the testing sessions themselves .

62 . As a result of these testing protocol irregularities, Alicia Carl, the

S tudent Assessment Specialist at MHS, contacted the College Board

regarding the testing conditions in Respondent's classroom. Ultimately, the

students' exam scores were not invalidated.

63 . The February Administrative Complaint alleges that Respondent

refused to allow two students, Dejah Jeancharles and Asia Parker, to make

up classwork they had missed, notwithstandi ng that they had excused

absences due to a band trip. However, the credible evidence established that

Respondent ultimately did allow the students to make up the missed work.

64 . The February Administrative Complaint charges Respondent with

disciplining African - American students during a Code Red Drill conducted on

or about September 6, 2018, while not subjecting white and Hispanic

students to discipline for engaging in the same conduct during the Code Red

Drill . The students' testimony regarding whether Respondent engaged in this

conduct was conflicting , and the greater weight of the competent, credible

evidence fails to establish that Respondent engaged in this behavior.

65 . The February Administrative Complaint alleges that on or about

April 27, 2018, Respondent was issued a m eeting s ummary for failing to

contact parents of failing students and engaging in unfair grading practice s.

66 . Murray testified, and Petitioner presented excerpts of Respondent's

grade book showing, that as of March 6 , 2018, app roximately 75 percent of

Respondent's students were earning either D's or F's in Respondent's classes.

Murray testified that MHS has a policy , stated in the 201 8 - 201 9 Faculty

Handbook, that teachers "shouldn't have that many D's or F's." 9

67 . Murray testi fied , and Petitioner presented evidence consisting of an

email from Murray to MHS Human Relations Specialist Nicole Voliton,

stating that he (Murray) had spoken to parents, who told him that

Respondent had not contacted them regarding their children's fail ing grades.

Murray also testified that R espondent acknowledged to him that he had not

9 However, the February Administrative Complaint does not specifically charge Respondent

with conduct related to the amount of D's and F's his students earned. Additionally, as

discussed below, the Faculty Handbook policy does not establish a ma ndatory compliance

standard regarding the amount of D's and F's given students on which disciplinary action

can be based.

contacted the parents of all students who were failing his course s . Murray's

email and his testimony regarding parents' statements made to him

constitute hearsay eviden ce that has not been shown to fall within an

exception to the hearsay rule in section 90.802, Florida Statutes, and is not

substantiated by any competent substantial evidence in the record;

according ly , the undersigned cannot assign weight to this evidence . 10

B. May Administrative Complaint

68 . The May Administrative Complaint charges Respondent with having

engaged in conduct in the second semester of the 2018 - 2019 school year that

is alleged to violate DOE rules and Petitioner's policies .

69 . The credibl e evidence establishes that Respondent continued to

engage in conduct, directed toward his students, that was demeaning and

racially insensitive.

70 . Specifically, several students submitted written statements that in

February 2019, Respondent threatened to tape students' mouths shut

because they were talking in class. Students Dorcas Alao, Breanna Henry,

and Darius Gaskin credibly testified about this incident , confirming that

Respondent had engage d in such conduct toward students in his class.

71 . Alao , who is of Nigerian heritage, testified , credibly, that Respondent

remark ed to her that if she couldn't understand something in English, he

would " say it in Yoruba ," or words to that effect . She also testified, credibly,

that Respondent told her that she had "mental issues." She was offended by

Respondent's comments and reported the incidents to Murray.

72 . The credible evidence also establishes that Respondent continued to

deduct points from students' academic course grades for behavioral issues,

such a s talking in class.

10 § 120.57(1)(c), Fla. Stat. (hearsay evidence may be used for the purpose of supplementing

or explaining other evidence but is not sufficient in itself to support a finding unless it would

be admissible over objection in civil actions. The burden of establishing that hearsay

evidence falls within an exception to the hearsay rules in sections 90.803 and 90.804 is on

the proponent of t he hearsay. See Yisrael v. State , 993 So. 2d 952, 956 (Fla. 2008)(evidentiary

proponent has burden to establish predicate for exception to hearsay rule).

73 . To this point, Alao and Henry credibly testified that Respondent

deducted points from their academic course grade s for talking in class.

Murray corroborated this testimony, credibly testif ying that he examined

Respondent's grade bo ok and confirmed that Respondent had deduct ed points

from their grades . A s a result, Henry's class grade dropped a letter grade,

from an " A " to a " B. "

74 . Several students also testified, credibly and consistently , that

Respondent did not timely grade th eir classwork or homework papers, so they

were unable to determine what their grades were, even when they accessed

the Pinnacle electronic gradebook.

75 . The 2018 - 2019 Faculty Handbook for MHS expressly requires that

grades be posted within 48 hours of c ollecting the assignment/test .

R espondent has repeatedly been directed to timely and accurately grade

classwork and homework , and to record the grades in Pinnacle so that

students and parents can be apprised of student progress in the course . The

disciplin ary and non - disciplinary corrective actions to which Respondent

previously has been subject bear this out.

76 . Murray testified , credibly, that in the second semester of the

2018 - 2019 school year, Respondent still did not timely or accurately grade

clas swork, homework, or tests , as required by the Faculty Handbook , and as

previously directed through disciplinary and non - disciplinary corrective

actions , discussed above .

77. The May Administrative Complaint also alleges that Respondent

made claims that f ormer assistant principal Cornelia Hoff had manipulated

students, during the previous four years, to write false statements about him.

Murray testified, credibly, that Respondent did, in fact, make such claims.

There was no evidence presented to substantia te any of Respondent's claims

against Hoff, and the competent substantial evidence establishes that Hoff

had not been employed at MHS for over two years at the time Respondent

made such claims.

7 8 . The May Administrative Complaint also charges Respondent with

failing to contact parents, write disciplinary referrals, and create a discipline

plan for student behavior issues in his classroom, as previously directed.

However, Petitioner failed to present any competent substantial evidence to

substantiate the allegation that Respondent engaged in this specific conduct

during the second semester of the 2018 - 2019 school year, which is the period

covered by the May Administrative Complaint. 11 Thus, Petitioner did not

demonstrate that Respondent engaged in this cond uct during the timeframe

covered by the May Administrative Complaint.

C. Witness Credibility

79 . Respondent contends, on the basis of inconsistencies between student

witness 's te stimony and written statement s regarding various details of

Respondent's alle ged conduct and surrounding circumstances , that these

witnesses were not credible , so that their testimony should not be afforded

weight in these proceedings. The undersigned rejects this contention.

80 . Although the students' accounts of Respondent's co nduct and

surrounding circumstances were not uniformly consistent, the inconsistencies

concerned minor or collateral details , which the undersigned ascribes t o the

fact that the students were testifying about incidents that occurred as much

as two years ea rlier.

81 . The undersigned found the student witnesses to be credible and

persuasive. Crucial to this credibility determination is that the students'

testimony was remarkably consistent with respect to whether Respondent

11 The evidence presented regarding this charge concerned conduct that is alleged to have

occurred in the first semester of the 2018 - 2019 school year, which is not addressed in the

May Administrative Complaint. Notably, the February Administrative Complaint, which

addressed conduct that is alleged to have occurred in the 2017 - 2018 school year and the firs t

semester of the 2018 - 2019 school year, did not charge Respondent with having engaged in

such conduct. See Cottrill v. Dep't of Ins. , 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996)

(predicating disciplinary action against a licensee on conduct never alleged in an

administrative complaint violates the Administrative Procedure Act).

engaged in , and the significant c ircumstances pertaining to , the conduct at

issue in these proceedings.

VI. Findings of Ultimate Fact

82 . Under Florida law, whether conduct charged in a disciplinary

proceeding constitutes a deviation from a standard of conduct established by

statute, r ule, or policy is a question of fact to be determined by the trier of

fact, considering the testimony and evidence in the context of the alleged

violation. Langston v. Jamerson , 653 So. 2d 489 (Fla. 1st DCA 1995); Holmes

v. Turlington , 480 So. 2d 150, 153 (Fla. 1st DCA 1985). See also McKinney v.

Castor , 667 So. 2d 387, 389 (Fla. 1st DCA 1995); MacMillan v. Nassau Cty.

Sch. Bd. , 629 So. 2d 226 (Fla. 1st DCA 1993). Accordingly, whether conduct

alleged in an administrative complaint violates the statutes , rul es, and

policies cited as the basis for the proposed disciplinary action is a factual,

rather than legal, determination.

A. February Administrative Complaint

83 . Here, Petitioner demonstrated, by the preponderance of the evidence,

that Respondent engaged in conduct with which he was charged in the

February Administrative Complaint. As discussed below, Respondent's

conduct violated DOE rules, School Board policies, and Florida Statutes.

Rule 6A - 5.056(2) Ï Misconduct in Office

84 . As found above, Respond ent made racially insensitive comments and

comments that demeaned and belittled students in his classes. The evidence

also established that Respondent yelled at students. As a result, many of his

students felt disrespected, embarrassed , and offended. One s tudent, Tevin

Fuller, even went so far as to avoid going to Respondent's class in order to

avoid Respondent's harassment and disrespectful treatment of him.

85 . Respondent's behavior toward his students constitute d misconduct in

office under Florida Admi nistrative Code Rule 6A - 5.056(2), because it

disrupted the students' learning environment, in violation of

r ule 6A - 5.056(2)(d), and it reduced his ability to effectively perform his

teaching duties, in violation of rule 6A - 5.056(2)(e).

86 . Additionally , Respondent's behavior toward his students constituted

misconduct in office, pursuant to rule 6A - 5.056(2)(b), because it violated

rule 6A - 10.081(2)(a), which establishes a teacher's professional obligations to

students. Specifically, in making demeaning , racially insensitive , and

embarrassing comments to students in his classes, he failed to make

reasonable effort to protect his students from conditions harmful to their

learning and mental health, in violation of rule 6A - 10.081(2)(a)1. He also

intentionall y exposed students to unnecessary embarrassment and

disparagement, in violation of rule 6A - 10.081(2)(a)5. , and harassed students

on the basis of race, color, and national or ethnic origin, in violation of

rule 6A - 10.081(2)(a)7.

87 . Respondent's racially insensitive and disrespectful comments toward

his students also constituted misconduct in office under rule 6A - 5.056(2)(c) ,

because they violated School Board Policy 4008.B., regarding duties of

instructional personnel. Specifically, Respondent did not com ply with

paragraph 1. of Policy 4008.B . , because he violated the Principles of

Professional Conduct of the Education Profession in Florida, rule 6A - 10.081,

as discussed herein . Additionally, Respondent violated paragraph 4. of

Policy 4008.B . , because he di d not treat all students with kindness and

consideration, as required by that policy.

Rule 6A - 5.056(3) Ï Incompetency

88 . In making racially insensitive and demeaning comments , and in

engaging in disrespectful conduct toward his students, Respondent fail ed to

discharge his required teaching duties. Specifically, in making such

comments and engaging in such conduct, Respondent failed to communicate

appropriately with, and relate to, his students, and, thus, exhibited

incompetency due to inefficiency , pursu ant to rule 6A - 5.056(3)(a)2.

89 . As discussed above, Respondent's conduct also violated

r ule 6A - 10.081(2)(a)1., 5., and 7 . , and, thus, constituted incompetency due to

inefficiency , pursuant to rule 6A - 5.056(3)(a)1.

90 . Additionally, as found above , Re spondent did not follow established

exam protocol when he failed to collect students' book bags and place them at

the front of the room during administration of the PSAT to his homeroom

class on October 10, 2018 , as specified in the PSAT/ NMSQT administrati on

manual and mandated pursuant to section 1008.24(1)(f), Florida Statutes.

Thus, Respondent failed to perform duties prescribed by law, which

constitutes incompetency due to inefficiency under rule 6A - 5.056(3)(a)1.

Rule 6A - 5.056(4) Ï Gross Insubordinat ion

91 . As found above, on January 23, 2015, Respondent received a m eeting

s ummary regarding grading criteria; students not learning in, and failing , his

courses ; and making students feeling disparaged or embarrassed. On October

14, 2016, Respondent recei ved a s ummary m emorandum for his use of

embarrassing language toward students. On February 7, 2017, Respondent

received a five - day suspension for making racially insensitive and

inappropriate comments to students. On March 23, 2017, Respondent was

issued a c ease and d esist l etter for his use of embarrassing and disparaging

language toward students. On October 27, 2017, Respondent received a l etter

of r eprimand from the District's p rofessional s tandards c ommittee for making

embarrassing remarks to students. On or about December 7, 2017,

Respondent received a m eeting s ummary for making racially insensitive

comments to a male African - American student.

92 . In each of these corrective actions, Respondent was specifically and

expressly directed to cease engaging in specified conduct. These directives

were directly based on school and School Board policies and DOE rules, and,

thus, were reasonable in nature. The directives were given by his supervisors

at MHS and Petitioner, all of whom had proper authority to iss ue such

directives.

93 . As found above, Respondent continued to make racially insensitive,

demeaning, and disrespectful comments to his students during the timeframe

covered by the February Administrative Complaint, after repeatedly having

been directed not to do so through disciplinary and non - disciplinary

corrective actions . Respondent's conduct in this regard constitutes gross

insubordination, pursuant to rule 6A - 5.056(4).

94 . As found above, Respondent continu ed to lower students' academic course

g rades as a means of dealing with classroom behavioral issues during the

timeframe covered by the February Administrative Complaint, after

repeatedly having been directed not to do so through disciplinary and non -

disciplinary corrective actions . Respondent 's conduct in this regard

constitutes gross insubordination under rule 6A - 5.056(4).

Rule 6A - 5.056(5) Ï Willful Neglect of Duty

95 . "Willful neglect of duty" is defined in rule 6A - 5.056(5) as the

intentional 12 or reckless failure to carry out required duti es.

96 . In continuing to intentionally engage in unauthorized grading

practices by lowering students' academic course grades to address behavioral

issues, Respondent engaged in willful neglect of duty.

97 . In continuing to intentionally make racially in sensitive and

demeaning comments , and engag ing in disrespectful c onduct toward his

students, Respondent failed to comply with authority that establishes

required duties. Specifically, Respondent's conduct did not comply with

School Board Policy 4008.B.4., requiring that he treat students with kindness

and consideration. Additionally, his conduct did not comply with rule

6A - 10.081(2)(a) 1 ., 5., and 7., requiring that he make reasonable efforts to

protect students from conditions harmful to learning; refrain from exposing

12 "Intentional" is defined as "done with intention" or "on purpose." Dictionary.com,

https://dictionary.com (last visited Apr. 21, 2021). The evidence establishes that Respondent's

a ctions in this regard were done with intention or on purpose; there was no evidence

presented from which it reasonably can be inferred that Respondent's actions in this regard

were accidental .

students to unnecessary embarrassment or disparagement; and refrain from

harassing or discriminating against students on the basis of race, national

origin, or ethnicity.

Section 1008.24 Ï Test Administration and Security

98 . Based on the facts found above, it is determined that Respondent did

not follow testing protocol when he failed to collect students' book bag s before

administering the PSAT on October 10, 2018.

99 . However, in order to violate section 1008.24, the failure to follow test

administration directions must be done both "knowingly and willfully."

100 . Neither "knowingly" nor "willfully" are defined in chapter 1008.

Where the legislature has not defined the words used in a statute , the

language should be given its plain and ordinary meaning . 13

101 . The term "knowingly" is defined as "having knowledge or

information" 14 or "deliberate, conscious." 15 The term "willfully" is defined as

"deliberate, voluntary, or intentional." 16

102 . The evidence fails to establish that Responden t made the deliberate

decision not to collect the book bag s, notwithstanding the test manual and

exam directions. From the evidence in the record, it is equally reasonable to

infer 17 that he either did not realize that he needed to collect the book bag s,

13 Sch. Bd. of Palm Beach Cty. v. Survivors Charter Sch. , Inc. , 3 So. 3d 1220, 1233 (Fla.

2009) . It is appropriate to refer to dictionary definitions when construing a statute in order to

ascertain the plain and ordinary meaning of words used in the statute. Id. ; Barco v. School

Bd. of Pinellas Cty . , 975 So. 2d 1116, 1122 (Fla. 2008); see also Rollins v. Pizzarelli, 761 So.

2d 294, 298 (Fla. 2000)(when necessary, the plain and ordinary meaning can be ascertained

by reference to a dictionary ).

14 Dictionary.com, https://dictionary.com (last visited Apr. 22, 2021).

15 Black's Law Dictionary, Deluxe 7th ed., at p. 876.

16 See id. at p. 1593, describing "willful" or "willfully" as meaning "only intentionally or

purposely as distinguished from accidentally or negligently."

17 See Heifetz v. Dep't of Bus. Reg. , 475 So. 2d 1 277, 1281 (Fla. 1st DCA 1985)(it is the

presiding officer's function to, among other things, draw permissible inferences from the

evidence ).

or that he simply forgot to do so. The latter inference is particularly

plausible, given that he was running late in beginning administration of the

test.

103 . Thus, it is found that Respondent did not violate section 1008.24, as

charged in the February Administrative Complaint.

School Board Policy 4008 - Responsibilities and Duties (Principals and

Instructional Personnel )

104 . As discussed above, Respondent's racially insensitive , demeaning ,

and disrespectful comments toward his students violated Schoo l Board Policy

4008.B., regarding duties of instructional personnel.

105 . Specifically, as discussed herein , Respondent did not comply with

rule 6A - 10.081, the Principles of Professional Conduct of the Education

Profession in Florida, as required by p ara graph 1. of Policy 4008.B.

106 . Additionally, Respondent did not treat all students with kindness

and consideration, as required by paragraph 4. of Policy 4008.B.

School Board Policy 6 3 1 4 Ï Testing Ï Assessing Student Achievement

107 . School Board Polic y 6314, the text of which is set forth in the

Conclusions of Law, below, establishes a District - wide policy regarding

annual achievement testing. T he plain language of the p olicy states, in

pertinent part, "[a] program of achievement testing shall be cond ucted

annually . . . ," and "[t]esting within the Broward County School Distric t

should be conducted to . . . [p]rovide parents/guardians with a yearly

individual student test report and interpretation for those students who have

been tested." Policy 6314, at preamble, ¶ 2 (emphasis added). From this

language, it is clear that Policy 6314 is specifically directed toward annual

achievement testing , rather than routine classroom tests and quizzes. Further

to this point, nowhere in Policy 6314 is there any lan guage establishing a

prohibition on giving unannounced class quizzes , or deciding not to count

quiz grades in a class .

108 . Additionally, although the February Administrative Complaint cites

Policy 6314 as a basis for imposing discipline, the policy does not establish

any specific standards of conduct to which instructional personnel must

adhere, or which can constitute the basis of disciplinary action for lack of

compliance.

109 . Petitioner's P roposed R ecommended O rder cites Policy 6314 as a

basis for i mposing discipline on Respondent for having given an unannounced

quiz in his class on material that he allegedly had not yet taught his class,

and then deciding not to grade the quiz "because he could 'read the F's on

their foreheads.'" However, as discuss ed above, the language of Policy 6314

makes clear that it does not apply to routine class tests and quizzes.

Additionally, t he February Administrative Complaint does not specifically

charge Respondent with having engaged in any of this conduct. As discusse d

herein , Respondent cannot be disciplined for conduct which was not

specifically charged in the A dministrative C omplaint. 18

110 . Therefore, even though credible testimony and other evidence was

provided showing that Respondent engaged in this conduct, tha t evidence is

relevant only with respect to whether Respondent made demeaning

comments to his students . That conduct was charged in the February

Administrative Complaint , and , as discussed herein , has been considered in

determining that Respondent engaged in conduct constitut ing misconduct in

office , pursuant to rule 6A - 5.056(2).

School Board Policy 4.9 Ï Corrective Action

111 . Petitioner also alleges that Respondent "violated" School Board

Policy 4.9, titled "Corrective Action," as a basis for its proposa l to terminate

his employment.

112 . As further addressed in the Conclusions of Law, below , Policy 4.9

does not establish a separately enforceable standard of conduct which may be

18 Cottrill , 685 So. 2d at 1372 (Fla. 1st DCA 1996) . See note 11, supra .

violated for purposes of serving as the basis for discipline, but , rather,

c onstitutes a policy designed to improve and/or change employee's job

performance and conduct , as well as establishes Petitioner's progressive

discipline policy for purposes of determining the appropriate penalty range

for violations of applicable standards of conduct established in statutes, DOE

rules, and School Board policies .

113 . In this case, Respondent has been charged with "Category B" offenses

under Policy 4.9. Section III of Policy 4.9, titled "Other Considerations," sets

forth a non - exhaustive li st of circumstances that may be considered in

determining the appropriate penalty for Category B offenses.

114 . The racially insensitive and demeaning comments that Respondent

repeatedly made to his students , over a substantial period of time in his

emplo yment with Petitioner, constitute a severe offense. The evidence

establishes that Respondent's comments not only offended and embarrassed

his students, but also affected his effectiveness as a teacher Ð to the point

that one student avoided going to class in order to avoid Respondent's racially

insensitive and disrespectful conduct toward him.

115 . Additionally, Respondent's conduct in lowering students' academic

course grades to deal with behavioral issues, directly contrary to school

grading policy set for th in the MHS Faculty Handbook, was severe, in that it

inappropriately affected students' course grades in a negative manner .

116 . Moreover, Respondent's students were directly involved in, and

affected by, his conduct. To this point, Respondent's raciall y insensitive and

demeaning comments and disrespectful conduct was directed to his students,

who were offended and embarrassed by his comments and conduct.

Additionally, his students' grades were directly and negatively affected by

Respondent's practice of lowering academic course grades to address

behavioral issues . Respondent's conduct had direct , n egative impacts on his

students.

117 . Respondent has a lengthy corrective action history during his

employment with Petitioner, dating back to 2011 . He previ ously has received

two verbal reprimands, two written reprimands, and a five - day suspension

without pay. Additionally, he has received numerous non - disciplinary

corrective actions during his employment with Petitioner. Collectively, he has

received approxi mately 14 corrective actions, five of which were disciplinary ,

between July 2011 and November 2018. Notwithstanding these numerous

corrective actions, Respondent has persisted , during the timeframe covered

by the February Administrative Complaint, in engag ing in much of the same

conduct for which he previously has been disciplined or issued non -

disciplinary corrective actions. The competent, credible evidence shows that

these corrective actions have had little, if any, deterrent effect on

Respondent's condu ct.

118 . Based on the foregoing Findings of Fact , it is determined that

Respondent should receive a ten - day suspension without pay in

Case No. 1 9 - 3380, for having engaged in conduct that was charged in the

February Administrative Complaint and proved by a preponderance of the

competent substantial evidence.

B. May Administrative Complaint

119 . Petitioner demonstrated, by the preponderance of the evidence, that

Respondent engaged in conduct with which he was charged in the May

Administrative Complaint. As discussed below, Respondent's conduct

violated DOE rules and School Board policies.

Rule 6A - 5.056(2) Ï Misconduct in Office

120 . As found above, in the second semester of the 2018 - 1019 school year,

Respondent continued to make racially insensitive and disparaging

comments, and engage in demeaning and disrespectful conduct, directed

toward his students.

121 . Specifically, he directed racially insensitive comments toward an

African - American student, Dorcas Alao, regarding her language and

ethnicity. As discussed above, Alao found Respondent's conduct offensive.

122 . Respondent's conduct in this regard constituted misconduct in office,

pursuant to rule 6A - 5.056(2). Specifically, it disrupted his students' learning

environment, in violation of rule 6A - 5.0 56(2)(d), and it reduced his ability to

effectively perform his teaching duties, in violation of rule 6A - 5.056(2)(e).

123 . Additionally, Respondent's behavior toward his students constituted

misconduct in office under rule 6A - 5.056(2)(b), because it viol ated rule

6A - 10.081(2)(a), which establishes his professional obligations to students.

Specifically, in making racially insensitive and demeaning comments, he

failed to make reasonable effort to protect his students from conditions

harmful to their learni ng and to their mental health, in violation of rule 6A -

10.081(2)(a)1.; he intentionally exposed students to unnecessary

embarrassment and disparagement, in violation of rule 6A - 10.081(2)(a)5.;

and he harassed students on the basis of race, color, and natio nal or ethnic

origin, in violation of rule 6A - 10.081(2)(a)7.

124 . Respondent's racially insensitive and demeaning comments and

disrespectful conduct toward his students also constituted misconduct in

office under rule 6A - 5.056(2)(c) , because it violated School Board

Policy 4008.B., regarding duties of instructional personnel. Specifically,

Respondent did not comply with paragraph 1. of Policy 4008.B . , because he

violated the Principles of Professional Conduct of the Education Profession in

Florida, rule 6A - 10.081, as discussed herein . Additionally, Respondent

violated paragraph 4. of Policy 4008.B . , because he did not treat all students

with kindness and consideration, as required by that policy.

125 . Respondent's conduct in making unsubstantiated accusa tions against

former assistant principal Hoff constituted misconduct in office because it

violated rule 6A - 10.081(2)(c)5., which establishes the professional standard

that an educator shall not make malicious or intentionally false statements

about a colle ague. Although the evidence does not establish that

Respondent's accusations about Hoff were malicious Ð i.e., characterized by,

or showing malice, intentionally harmful, or spiteful 19 Ð it is reasonable to

infer that they were intentionally false, given that H off had not been

employed at MHS for over two years when Respondent made those

accusations, and that Murray had succeeded Hoff as Respondent's supervisor.

Rule 6A - 5.056(3) Ï Incompetency

126 . In making racially insensitive and demeaning comments, and

en gaging in disrespectful conduct, toward his students, Respondent also

failed to discharge his required teaching duties. Specifically, in making such

comments and engaging in such conduct, Respondent failed to communicate

appropriately with, and relate to, his students, and, thus, exhibited

incompetency as a result of inefficiency, pursuant to rule 6A - 5.056(3)(a)2.

127 . As discussed herein , Respondent's conduct also violated

rule 6A - 10.081(2)(a)1., 5., and 7 . , and, thus, constituted incompetency due to

i nefficiency, pursuant to rule 6A - 5.056(3)(a)1.

Rule 6A - 5.056(4) Ï Gross Insubordination

128 . As found above, on January 23, 2015, Respondent received a m eeting

s ummary regarding grading criteria; students not learning in, and failing, his

courses; and mak ing students feeling disparaged or embarrassed. On October

14, 2016, Respondent received a s ummary m emorandum for his use of

embarrassing language towards students. On February 7, 2017, Respondent

received a five - day suspension for making racially insensit ive and

inappropriate comments to students. On March 23, 2017, Respondent was

issued a c ease and d esist l etter for his use of embarrassing and disparaging

language toward students. On October 27, 2017, Respondent received a l etter

of r eprimand from the Sch ool BoardÔs p rofessional s tandards c ommittee for

making embarrassing remarks to students. On or about December 7, 2017,

19 Dictionary.com, https://dictionary.com ( last visited Apr. 22, 2021).

Respondent received a m eeting s ummary for making racially insensitive

comments to a male African - American student.

129 . Additionally, as discussed herein , the undersigned recommend s that

Respondent be suspended without pay for ten days in Case No. 19 - 3380, for

continuing to engage in such conduct during the timeframe covered by the

February Administrative Complaint. This ten - day suspensi on constitutes yet

another disciplinary corrective action against Respondent for continuing to

engage in conduct about which he repeatedly has been admonished , and has

been directed to cease.

130 . In each of these corrective actions, Respondent was specif ically and

expressly directed to cease engaging in specified conduct. These directives

were directly based on school and School Board policies and DOE rules, and,

thus, were reasonable in nature. The directives were given by his supervisors

at MHS and Peti tioner, all of whom had proper authority to issue such

directives.

131 . As found above, Respondent continued to make racially insensitive

and demeaning comments and engage in disrespectful conduct to ward his

students during the timeframe covered by the M ay Administrative

Complaint, after repeatedly having been directed not to do so through

disciplinary and non - disciplinary corrective actions. Respondent's conduct in

this regard constitutes gross insubordination, pursuant to rule 6A - 5.056(4).

132 . As fou nd above, Respondent continued to lower students' academic

course grades as a means of dealing with classroom behavioral issues during

the timeframe covered by the May Administrative Complaint, after

repeatedly having been directed not to do so through dis ciplinary and

non - disciplinary corrective actions. Respondent's conduct in this regard

constitutes gross insubordination, pursuant to rule 6A - 5.056(4).

Rule 6A - 5.056(5) Ï Willful Neglect of Duty

133 . "Willful neglect of duty" is defined in rule 6A - 5.056 (5) as the

intentional 20 or reckless failure to carry out required duties.

134 . In continuing to intentionally engage in unauthorized grading

practices by lowering students' academic course grades to address behavioral

issues, Respondent engaged in willful neglect of duty.

135 . In continuing to intentionally make racially insensitive, demeaning,

and disrespectful comments and conduct toward his students, Respondent

failed to comply with authority that establishes required duties. Specifically,

Respondent' s conduct did not comply with School Board Policy 4008.B.4.,

requiring that he treat students with kindness and consideration.

Additionally, his conduct did not comply with rule 6A - 10.081(2)(a)1., 5., and

7., requiring that he make reasonable efforts to pr otect students from

conditions harmful to learning; refrain from exposing students to

unnecessary embarrassment or disparagement; and refrain from harassing or

discriminating against students on the basis of race, national origin, or

ethnicity.

School B oard Policy 4008 Ï Responsibilities and Duties (Principals and

Instructional Personnel)

136 . As discussed herein , Respondent's racially insensitive , demeaning ,

and disrespectful comments toward his students violated School Board Policy

4008.B., regarding duties of instructional personnel.

137 . Specifically, as discussed herein , Respondent did not comply with

rule 6A - 10.081, the Principles of Professional Conduct of the Education

Profession in Florida, as required by paragraph 1. of Policy 4008.B.

138 . Additionally, Respondent did not treat all students with kindness

and consideration, as required by paragraph 4. of Policy 4008.B.

School Board Policy 4.9 Ï Corrective Action

139 . Petitioner also alleges that Respondent "violated" School Board

Policy 4.9, titled "Corrective Action," as a basis for its proposal to terminate

his employment.

140 . As previously discussed and further addressed in the Conclusions of

Law, below, Policy 4.9 does not establish a separately enforceable standard of

conduct which may be violated for purposes of serving as the basis for

discipline, but , rather, constitutes a policy designed to improve and/or change

employee's job performance and conduct, as well as establishes Petitioner's

progressive discipline policy for purposes of determining the appropriate

penalty range for violations of applicable standards of conduct.

141 . The racially insensitive and demeaning comments that Respondent

made to his students, repeatedly, over a substantial period of his employment

with Petitioner , constitute a severe offense. The evidence establishes that his

comments not only offended and embarrassed his students, but also affected

his effectiveness as a teacher.

142 . Additionally, Respondent's conduct in lowering students' academic

course grade s to deal with behavioral issues, directly contrary to school

grading policy set forth in the MHS Faculty Handbook, was severe, in that it

inappropriately affected students' course grades in a negative manner.

143 . Moreover, Respondent's students were dir ectly involved in, and

affected by, his conduct. To this point, Respondent's racially insensitive and

demeaning comments and disrespectful conduct was directed to his students,

who were offended and embarrassed by his comments and conduct.

Additionally, hi s students' grades were directly and negatively affected by

Respondent's practice of lowering academic course grades to address

behavioral issues . Respondent's conduct had direct and negative impacts on

his students.

144 . As discussed above, Respondent ha s a lengthy corrective action

history during his employment with Petitioner, dating back to 2011. He has

previously received two verbal reprimands, two written reprimands, and a

20 See note 1 2 , supra .

five - day suspension without pay. Additionally, in Case No. 19 - 3380, the

unders igned has recommended that Respondent be suspended for ten days

without pay for engaging in conduct charged in that case. Respondent also

has been subjected to numerous non - disciplinary corrective actions during his

employment with Petitioner. Collectively , counting the ten - day suspension

that has been recommended in Case No. 19 - 3380, Respondent has received

approximately 15 corrective actions, six of which were disciplinary in nature,

between July 2011 and March 2019. Notwithstanding these numerous

correct ive actions, Respondent has persisted, during the timeframe covered

by the May Administrative Complaint, in engaging in much of the same

conduct for which he previously has been disciplined and issued non -

disciplinary corrective actions. The evidence shows that these corrective

actions have had essentially no deterrent effect on Respondent's conduct.

145 . The competent, credible evidence establishes that Petitioner has

given Respondent numerous chances, through its corrective action policy,

including the p rogressive disciplin e process, to change his conduct which

violated, and continues to violate, DOE rules and School Board policies.

146 . The competent, credible evidence establishes that nonetheless ,

Respondent has continued, during the timeframe covered by the May

Administrative Complaint, to engage in much of the same conduct which

violates DOE rules and School Board policies, and for which he previously

has received numerous disciplinary and non - disciplinary corrective actions.

147 . Petitioner has close ly adhered to the progressive discipline provisions

in Policy 4.9, meting out multiple verbal and written reprimands,

interspersed with non - disciplinary corrective actions to Respondent , before

resorting to suspending him from employment Ð first, for five da ys, then for

ten days Ð for his persistent conduct which violated DOE rules and School

Board policies.

148 . The purpose of Policy 4.9 is "to improve and/or change employees' job

performance [and] conduct." 21 Despite giving Respondent numerous

opportunities, through disciplinary and non - disciplinary corrective actions, to

change his conduct, Respondent has not done so.

149 . Given that Petitioner has closely followed the progressive discipline

provisions of Policy 4.9, and the fact that Respondent has receive d numerous

corrective actions over his period of employment with Petitioner Ð which have

not resulted in him changing his conduct such that he does not engage in

behavior which violates DOE rules and School Board policies Ð it is

de termined that, pursuant to P olicy 4.9, Respondent should be terminated

from his employment as a teacher.

C ONCLUSIONS OF L AW

I. Jurisdiction, Burden and Standard of Proof , and Administrative Charges

150 . DOAH has jurisdiction over the parties to, and subject matter of, this

procee ding, pursuant to sections 120.569 and 120.57(1).

151 . In these consolidated disciplinary proceedings, Petitioner seeks to

suspend Respondent for ten days without pay in Case No. 19 - 338 0 , and to

terminate his employment as a teacher in Case No. 19 - 3381 .

152 . These de novo proceedings are designed to formulate agency action,

no t review agency action taken earlier and preliminarily. Dep't of Transp. v.

J.W.C. Co. , 396 So. 2d 778, 785 (Fla. 1st DCA 1981); Capelleti Bros., Inc. v.

Dep't of Transp. , 362 So. 2d 346, 348 (Fla. 1st DCA 1978); McDonald v. Dep't

of Banking and Fin. , 346 So. 2d 569, 584 (Fla. 1st DCA 1977). Accordingly,

the purpose of these proceedings is to determine anew , based on the

competent substantial evidence in the record, whether just cau se exists to

suspend Respondent without pay and to terminate his employment.

153 . Respondent is classified as "instructional personnel , " as that term is

defined in section 1012.01(2).

21 School Board Policy 4.9, "Intent and Purpose," ¶ 2.

154 . Section 1012.33(6)(a) states, in pertinent part : "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)."

155 . "Just cause" is "cause that is legally sufficient." Fla. Admin. Code R .

6A - 5.056. Just cause includes , but is not limited to, misconduct in office and

incompetency . § 1012.33(1)(a), Fla. Stat.

156 . In order t o suspend and terminate Respondent 's employment as a

teacher, Petitioner must prove that Respondent committed conduct alleged in

the administrative c omplaints ; that the alleged conduct violates the statutes,

rules , and policies cited in the administrative complaint s ; and that the

violation of these statutes, rules , and policies constitutes just cause to

suspend and terminate his employment. Dileo v. Sc h. Bd. of Dade Cty. , 569

So. 2d 883 (Fla. 3d DCA 1990). See Balino v. Dep't of HRS , 348 So. 2d 349,

350 (Fla. 1st DCA 1977)(unless provided otherwise by statute, the burden of

proof is on the party asserting the affirmative of the issue). It is axiomatic

t hat con duct not specifically charged in the administrative complaint s cannot

constitute the basis for disciplinary action. Cottrill v. Dep't of Ins. , 685 So. 2d

1371, 1372 (Fla. 1st DCA 1996).

157 . The standard of proof applicable to these proceedings is a

preponderance, or greater weight, of the evidence. McNeill v. Pinellas Cty.

Sch. Bd. , 678 So. 2d 476, 477 (Fla. 2d DCA 1996); Dileo , 569 So. 2d at 884.

II. Violations of Statutes, Rules, and School Board Policies

158 . In Case No. 19 - 3380, in which Petit ioner seeks to suspend

Respondent for ten days without pay, Petitioner has charged Respondent

with engaging in conduct that violates section 1008.24, Florida Statutes

(2018) 22 ; constitutes misconduct in office, incompetency, gross

insubordination , and willf ul neglect under rule 6A - 5.056(2), (3), (4) , and (5) ;

22 Respondent's conduct alleged to violate section 1008.24 occurred in October 2018, when the

2018 version of Florida Statutes was in effect.

violates rule 6A - 10.081; and v iolates School Board p olicies 4008, 6314 ,

and 4.9.

159 . In Case No. 19 - 3381, in which Petitioner seeks to terminate

Respondent's employment as a teacher, Petitioner ha s charged Respondent

with engaging in conduct that constitutes misconduct in office, incompetency,

gross insubordination , and willful neglect under rule 6A - 5.056(2), (3), (4) , and

(5) ; violates rule 6A - 10.081; and violat es School Board Policies 4008 and 4. 9.

Section 1008.24

160 . Section 1008.24, which govern s state assessment test administration

and security, states , in pertinent part:

(1) A person may not knowingly and willfully

violate test security rules adopted by the State

Board of Education for mand atory tests

administered by or through the State Board of

Education or the Commissioner of Education to

students, educators, or applicants for certification

or administered by school districts pursuant to s.

1008.22, [ 23 ] or, with respect to any such test,

k nowingly and willfully to:

* * *

(f) Fail to follow test administration directions

specified in the test administration manuals[.]

161 . For the reasons discussed above in the Findings of Fact , it

is concluded that Respondent did not violate sec tion 1008.24 in

Case No. 19 - 3380.

Rule 6A - 5.056

162 . Rule 6A - 5.056 , Criteria for Suspension and Dismissal , states, in

pertinent part:

23 The 2 018 version of section 1008.22, which was in effect at the time of the alleged conduct,

applies to this proceeding. Pursuant to section 1008.22(9) and the version of rule

6A - 1.09422(8) in effect on October 1, 2018, the PSAT is a test to which section 1008 .24

applies.

[ " ] Just cause " means cause that is legally sufficient.

Each of the charges upon which just cause for a

dismissal acti on 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:

* * *

(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.;

(c) A violation of the adopted school board rules;

(d) Behavior that disrupts the studentÔs learning

enviro nment; or

(e) Behavior that reduces the teacherÔs ability or his

or her colleaguesÔ ability to effectively perform

duties.

(3) " Incompetency " means the inability, failure or

lack of fitness to discharge the required duty as a

result of inefficiency or in capacity.

(a) " Inefficiency " means one or more of the

f ollowing:

1. Failure to perform duties prescribed by law;

2. Failure to communicate appropriately with and

relate to students;

3. Failure to communicate appropriately with and

relate to colleagues, administrators, subordinates,

or parents [.]

* * *

(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 failur e in

the performance of the required duties.

(5) " Willful neglect of dutyÒ means intentional or

reckless failure to carry out required duties.

163 . Based on the Findings of Fact, it is concluded , in Case No. 19 - 3380,

that Respondent engaged in misconduc t in office, incompetency due to

inefficiency, gross insubordination, and willful neglect of duty, pursuant to

rule 6A - 5.056 .

164 . Based on the Findings of Fact, it is concluded , in Case No. 19 - 3381,

that Respondent engaged in misconduct in office, incom petency due to

inefficiency, gross insubordination, and willful neglect of duty, pursuant to

rule 6A - 5.056 .

Ru le 6A - 10.081

165 . Rule 6A - 10.081, Principles of Professional Conduct for the Education

Profession in Florida, states, in pertinent part:

* * *

(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

educatorÔs certificate, or the other penalties as

provide d 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 studentÔs mental and/or physical health

and/or safety.

* * *

5. Shall not intentionally expose a student to

unnecessary embarrassment or disparagement.

* * *

7. Shall not harass or discriminate against any

student on the basis of race, color, religion, sex, age,

national or ethnic origin, political beliefs, mari tal

status, handicapping condition, sexual orientation,

or social and family background and shall make

reasonable effort to assure that each student is

protected from harassment or discrimination.

* * *

(c) Obligation to the profession of educati on

requires that the individual:

* * *

5. Shall not make malicious or intentionally false

statements about a colleague.

166 . Based on the Findings of Fact, it is concluded , in Case No. 19 - 3380,

that Respondent violated rule 6A - 10.081(2)(a)1., 5., and 7.

167 . Based on the Findings of Fact, it is concluded , in Case No. 19 - 3381,

that Respondent violated rule 6A - 10.081(2)(a)1., 5., 7., and (2)(c)5.

School Board Policy 4008

168 . Petitioner has charged Respondent with violating School Board

Polic y 4008, Responsibilities and Duties (Principals and Instructional

Personnel). That policy states, in pertinent part:

All employees of the Board who have been issued

contracts as provided by Florida Statutes . . . shall

comply with the provisions of the Fl orida School

Code, State Board Regulations, and Regulations of

the Board.

* * *

B. Duties of Instructional Personnel

1. Comply with the . . . the Principles of

Professional Conduct of the Education Profession in

Florida.

* * *

4. Trea t all students with kindness, consideration

and humanity, administering discipline in

accordance with regulations of the State Board and

the School Board; provided that in no case shall

cruel or inhuman punishment be administered to

any child attending the public schools.

169 . Based on the Findings of Fact, it is concluded , in Case No. 19 - 3380,

that Respondent violated Policy 4008.

170 . Based on the Findings of Fact, it is concluded , in Case No. 19 - 3381,

that Respondent violated Policy 4008.

School Board Policy 6314

171 . In Case No. 19 - 3380, Petitioner has charged Respondent with

violating School Board Policy 6314, titled "Testing Ï Student Achievement

Testing." This policy states:

A program of achievement testing shall be

conducted annually in a profe ssional and ethical

manner to monitor the status of student

achievement.

Testing within the Broward County School System

should be conducted to:

1. Obtain information for the instructional staff

about students strengths and weaknesses with

such informat ion to be used as a basis for

improving the instruction program and

determining eligibility for special programs.

2. Provide parents/guardians with a yearly

individual student test report and interpretation

for those students who have been tested.

3. Obt ain information for dissemination to the

general public concerning the status of its total

school system.

* Individual needs of exceptional and bilingual

students shall be considered in providing

modifications of test instruments and/or

procedures.

1 72 . For the reasons addressed in the Findings of Fact , it is concluded

that Respondent did not violate School Board Policy 6314.

School Board Policy 4.9

173 . Petitioner also alleges that Respondent violated S chool B oard

P olicy 4.9, titled " Corrective Acti on , " as a basis for its proposed discipline .

T he "Intent & Purpose" section of the P olicy states: "[e]mployees are expected

to comply with workplace policies, procedures and regulations; local, state,

and federal laws; and State Board Rule, both in and out of the workplace."

174 . The second paragraph of the Intent & Purpose section of P olicy 4.9

stat es: "[t]he District's corrective action policy is designed to improve and/or

change employees' job performance, conduct, and attendance. Supervisors are

encou raged to continually provide coaching, counseling, feedback, and/or

additional support to help ensure each employees' [sic] success. "

175 . The context provided in the second paragraph makes clear that the

Intent and Purpose section of Policy 4.9 does not establish a separate ly

enforceable standard of conduct for purposes of imposing discipline, but ,

rather, establishes the Petitioner's progressive discipline policy for purposes

of determining the appropriate penalty range for violations of standards of

co nduct which are established in other local, state, and federal laws and

School Board policies. Thus, c onsistent with the concept of improving or

changing employee job performance, conduct, or attendance, P olicy 4.9

identifies categories of offenses and the appropriate type or range of

discipline that may be imposed if the employee is shown to have engaged in

conduct constituting an offense within a specifi ed category .

176 . Policy 4.9 , "Corrective Action," section I, states, in pertinent part:

* * *

(b) The types of corrective action may include, but

are not limited to the following employment

actions: verbal reprimands, written reprimands,

suspension without pay, demotion, or termination

of employment. There are other types of actions to

encoura ge and support the improvement of

employee performance, conduct or attendance that

are not considered disciplinary in nature. These

actions may include, but are not limited to:

coaching, counseling, meeting summaries, and

additional training.

* * *

(d) There are other acts of misconduct (See Section

II, Category B) considered to be so egregious,

problematic or harmful that the employee may be

immediately removed from the workplace until

such time a workplace investigation is completed.

The severit y of the misconduct in each case,

together with relevant circumstances (III (c)), will

determine what step in the range of progressive

corrective action is followed. In most cases, the

District follows a progressive corrective action

process consistent wit h the " Just Cause " standard

designed to give employees the opportunity to

correct the undesirable performance, conduct or

attendance. A more severe corrective measure

will be used when there is evidence that students,

employees, or the community we serve w as

negatively impacted. It is the intent that employees

who engage in similar misconduct will be treated as

similarly situated employees and compliant with

the principle of Just Cause.

177 . Policy 4.9 , section II, identifies Category B offenses and the pe nalty

range applicable to those offenses. Following are the Category B offenses with

which Respondent is charged. The penalty for each of these offenses ranges

from "Reprimand" to "Dismissal."

* * *

m) Any violation of the Code of Ethics of the

E ducation Professional in the State of Florida - State

Board of Education Administrative Rule

* * *

p) Insubordination, which is defined as a

continuing or intentional failure to obey a direct

order, reasonable in nature and given by and with

proper authority

* * *

r) Failure to comply with School Board policy, state

law, or appropriate contractual agreements

178 . Policy 4.9, section III, titled "Other Considerations," subsection (c),

sets forth circumstances that are "illustrative and not meant to be exhaustive

and may be considered when determining the appropriate penalty within a

penalty (II Category B) range." Section III further states that "the [p]enalty

[r]ange is established as an administrative guideline for administering

approp riate corrective action. The purpose in providing a range of corrective

action is to allow for considerations that may include the factors identified in

this poli c y. "

179 . The circumstances, or factors, to be considered in determining the

appropriate penal ty under Policy 4.9 include, as relevant:

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 and

length of time between offenses

18 0 . Pursuant to Policy 4.9, including the progressive discipline and

penalty determination provisions , it is concluded that the appropriate penalty

in Case No. 19 - 3380 is to suspend Respondent for ten days without pay.

181 . Pursuant to Policy 4.9, including the progressive discipline and

penalty determination provisions, it is concluded that the appropriate penalty

in Case No. 19 - 3381 is to terminate Respondent's employment as a teacher.

III. Just Ca u se Exists for Suspension and Termination

182 . B ased on t he Findings of Fact and the pertinent statutes, rules, and

School Board policies, it is concluded that , pursuant to section 1012.33 and

rule 6A - 5.056, just cause exists in Case No. 19 - 3380 to suspend Respondent

without pay for ten days.

183 . Based on the F indings of Fact and the pertinent statutes, rules, and

School Board policies, it is concluded that, pursuant to section 1012.33 and

rule 6A - 5.056, just cause exists in Case No. 19 - 3381 to terminate

Respondent's employment as a teacher.

R ECOMMENDATION

Base d on the foregoing Findings of Fact and Conclusions of Law, it is

R ECOMMENDED that Petitioner, Broward County School Board, enter a Final

Order in Case No. 19 - 3380 suspending Respondent for ten days without pay,

and enter a Final Order in Case No. 19 - 3381 terminating Respondent's

employment as a teacher.

D ONE A ND E NTERED this 5 th of May , 2021 , in Tallahassee, Leon County,

Florida.

S

C ATHY M. S ELLERS

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah .state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 5 th day of May , 2021 .

C OPIES F URNISHED :

Denise Marie Heekin, Esquire Katherine A. Heffner, Esquire

Bryant Miller Olive, P.A. Robert F. McKee, P.A.

One Southeast Third Avenue , Suite 2200 1718 East Seventh Avenue , Suite 301

Miami, Florida 33131 Tampa, Florida 33605

Robert F. Mc Kee, Esquire Ranjiv Sondhi, Esquire

Robert F. McKee, P.A. Bryant Miller Olive, P.A.

1718 East Seven th Avenue , Suite 301 One Southeast Third Avenue , Suite 2200

Tampa, Florida 33605 Miami, Florida 33131

Elizabeth W. Neiberger, Esquire Robert W. Runcie

Bryant Miller Olive, P.A. Superintendent

One Southeast Third Avenue , Suite 2200 Broward County School Board

Miami, Florida 33131 600 Southeast Third Avenue, Tenth Floor

Fort Lauderdale, Florida 33301 - 3125

Matthew Mears, General Counsel

Department of Education Richard Corcoran

Turlington Building, Suite 1244 Commissioner of Education

325 West Gaines Street Departme nt of Education

Tallahassee, Florida 32399 - 0400 Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

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.