STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BROWARD COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 12-1981TTS

)

THERESA LIQUORI, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was conducted by video teleconference at sites in Tallahassee and Lauderdale Lakes, Florida, on October 22, 23, and 24, 2012, and November 5, 2012, before Administrative Law Judge Edward T. Bauer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Charles T. Whitelock, Esquire

Charles T. Whitelock, P.A.

300 Southeast 13th Street, Suite E Fort Lauderdale, Florida 33316

For Respondent: Melissa C. Mihok, Esquire

Kelly & McKee, P.A.

1718 East 7th Avenue, Suite 301

Tampa, Florida 33605 STATEMENT OF THE ISSUE

Whether just cause exists to terminate Respondent's employment with the Broward County School Board.

PRELIMINARY STATEMENT

At its regularly scheduled meeting on May 30, 2012, Petitioner Broward County School Board ("Petitioner" or "School Board") voted to suspend Respondent Theresa Liquori without pay and to initiate proceedings to terminate her professional service contract.

Respondent timely requested a formal administrative hearing to contest Petitioner's action, and, on June 1, 2012, the matter was referred to the Division of Administrative Hearings for further proceedings. Petitioner thereafter filed an Administrative Complaint on June 4, 2012, wherein it alleges that just cause exists to terminate Respondent's employment based upon: the failure to correct performance deficiencies in two consecutive performance plans; incompetency; willful neglect of duties; violation of School Board Police 4008B; and/or violations of section 1012.53, Florida Statutes.

During the final hearing, Petitioner presented the testimony of eight witnesses (Louis Ruccolo, Wendy Barnes, Debra Kearns, Shaneka President, Alan Strauss, Amy Mujica, Khandia Pinkney, and Pamela Riley) and introduced three exhibits: portions of Petitioner's Exhibit 1; and Petitioner's Exhibits 2 and 3 in their entirety.1/ Respondent testified on her own behalf, called ten witnesses (Tricia Anderson, Carol Hightower, Erica Thompson, Albert Smith, Eartha Wright, Ellen Hochhauser,

Ashley Ramos, Bienvenue Lomba, Adriana Punziano, and Colleen Duffy), and introduced 15 exhibits, labeled 1-4, 6-7, 11, 14,

and 16-22.

The final hearing transcript was filed on November 26, 2012. Subsequently, and at the parties' request, the undersigned extended the deadline for the filing of proposed recommended orders to January 18, 2013. Both parties timely filed proposed recommended orders, which the undersigned has considered in the preparation of this Recommended Order.

Unless otherwise indicated, all rule and statutory references are to the versions in effect at the time of the alleged misconduct.

FINDINGS OF FACT

1. Background

   
   

   1. Petitioner is the entity charged with the duty to operate, control, and supervise the public schools within Broward County, Florida.

   2. Respondent began her teaching career with the Broward County School District in or around January 2002, at which time she was assigned to South Broward High School ("South Broward").2/

   3. In or around 2006, Petitioner introduced a program known as "Post-Graduate Alternatives for Secondary Students" ("PASS program") to most of its high schools, including South

      
      

      Broward. As explained by various witnesses during the final hearing, the PASS program is designed to assist students with moderate to significant learning disabilities——all of whom are between the ages of 18 to 21 and have already received special high school diplomas——attain the highest possible level of independence. This is achieved by placing students in a variety of work experience sites (simulated at first in the classroom and later at actual work locations), providing instruction related to community living tasks (e.g., use of money, transportation, shopping), and working to improve the students' behavior and communication skills.

   4. Following its district-wide introduction in 2006, the PASS program underwent various refinements, which included the development of clear, well-defined "steps" for instructors to follow in their implementation of the program. "Step 1," for instance, requires a PASS teacher, who is supported by two classroom paraprofessionals, to create a minimum of five stations (or, in Petitioner's terminology, "zones") within the classroom, with each zone consisting of multiple tasks. Such stations can run the gamut from a "restaurant zone," where students learn, for example, to sort silverware, to a "laundry zone," where students are taught to fold and hang clothing. Among other things, the PASS steps also require the teacher to: create specialized zone instructions for each of the

      
      

      approximately 10-12 students to which the PASS instructor is assigned; create schedules to govern the rotation of students from zone to zone; and collect data that tracks each student's performance on every assigned task, which is later used for "job matching" and to determine if the students are meeting the goals in their Transition Individualized Education Plans ("TIEPs").

   5. As will be seen shortly, Respondent demonstrated a substantial lack of compliance with several of the PASS steps during the 2010-2011 and 2011-2012 school years, most notably in the area of data collection; it is upon that particular failing that the ensuing factual recitation will largely focus.

2. 2010-2011 School Year

   
   

   1. Prior to the start of the 2010-2011 academic year, Respondent was provided with a document titled, "PASS Process Implementation Steps & Expectations," which plainly instructed, inter alia, that PASS teachers record data (at least one time per week) for each student and for every task to which the student was assigned. The document read:

      STEP 1: IDENTIFY ZONES

      Arrange furniture/physical space for zones

      All zones clearly defined and labeled Minimum of 5 zones/areas

      1:1 zone/area defined

      
      

      STEP 2: DETERMINE TASKS PER ZONE

      At least 3-5 tasks in each zone to start; increase number of tasks as they are mastered

      Construct tasks for the zones – both high and low level

      Age appropriate materials must be used; nothing that's typically seen in elementary classrooms

      Variety of instructional methods used

      
      

      STEP 3: DEVELOP THE MASTER SCHEDULE

      Implement the Master Schedule Master Schedule/zone assignments are based on [each students' transition individualized education plan or

      "TIEP"]

      
      

      STEP 4: DEVELOP THE ZONE PROFILES

      Post a Zone Profile in every zone; zone profile shows, at a glance, which student should be in the zone at what particular time.

      
      

      STEP 5: DEVELOP AND IMPLEMENT STAFF SCHEDULES

      Teacher and paraprofessional schedules are complete

      Schedule shows coverage for each zone

      
      

      STEP 6: DEVELOP AND IMPLEMENT ZONE BINDERS WITH TASK INSTRUCTIONS

      Individualized task instructions for every task and every student in every zone (includes written instructions for readers/visual instructions for nonreaders)

      
      

      STEP 7: DEVELOP INDIVIDUAL DAILY STUDENTS SCHEDULES

      Create master individual schedules for students

      Implement Daily Independent Individual Student Schedule; student is following their individual schedule and going to

      
      

      zone that is stated on their schedule at their own individual pace

      Students rotating from zone to zone independently by following their individual daily schedule

      Students do schedule review at the end of the day for the next day; teacher/para checks for accuracy Students meaningfully engaged in zones

      
      

      STEP 8: COMPLETE STUDENT ASSESSMENTS

      Complete comprehensive vocational assessment(s)

      Complete specific behavior assessments (each task, for each student, for each zone, each week) Evidence of data collection

      Evidence of individual student binders to contain record keeping

      Evidence that staff is implementing students' TIEP

      
      

      STEP 9: DEVELOP AND IMPLEMENT [Community

      Based Instruction "CBI"] PROCESS Sites based on TIEP and student assessments

      Classroom zones based on CBI/Community sites

      Individualized student schedules created for each CBI site Preparation of students before CBI Follow-up CBI's

      CBI schedule posted

      3-4 students maximum at any given site (emphasis added).

   2. As established during the final hearing, the school district did not simply disseminate the foregoing steps to Respondent and leave her to her own devices. On the contrary, Respondent——who previously received formal PASS training from

      
      

      the school district——was provided with significant support throughout the 2010-2011 school year from Ms. Wendy Barnes, a PASS program transition instructor.

   3. Nevertheless, evidence of Respondent's noncompliance with the PASS steps was evident by early October 2010. Indeed, a classroom observation on October 5, 2010, by Ms. Barnes and Deborah Kearns (an assistant principal at South Broward and Respondent's immediate supervisor) revealed no evidence of data collection, contrary to Step Eight of the PASS program. In addition, the observers discovered a more fundamental problem in that the zone instruction binders were incomplete and not individualized for the students.

   4. Subsequently, on October 14, 2010, a conference was held with Respondent to discuss her noncompliance with the PASS program and to develop a plan to correct the shortcomings. At the conclusion of the meeting, Respondent was: advised that she was being placed on a cycle of assistance, whereby she would be provided with written directives on a weekly basis by Ms. Kearns; informed that she would continue to receive support from Ms. Barnes, who would assist her in complying with the directives; and provided with a memorandum from Ms. Kearns, which emphasized, among other things, that her "failure to implement and demonstrate improvements throughout this cycle of

      
      

      assistance may result in [her] placement on a Professional Development Plan."

   5. Owing perhaps to the sheer impracticability of ordering Respondent to bring all PASS steps into immediate compliance, Ms. Barnes instead directed, in a memorandum dated October 20, 2010, that Respondent correct Step Two (and only Step Two) within the next six days. In relevant part, the memorandum read:

      On 10/19/10, Ms. Barnes assisted you with regard to Step 2 of the PASS process Implementation Expectations. As discussed at that time, PASS Step 2 requires that zone binders and individual zone tasks reflect the following:

      
      

      1. Students must be assigned at least 3-5 activities per zone.

         
         

      2. Students must be assigned an amount and level of zone activities to maintain engagement during the period scheduled within each zone.

         
         

      3. Students must be assigned zone tasks that are [] varied by level and challenging based upon individual student ability and need.

         
         

      4. Students must be assigned zone tasks that are appropriate . . . .

         
         

         You are directed to bring these aspects of Step 2 of the PASS program into compliance by October 26, 2010.

         
         

   6. Unfortunately, Respondent failed to satisfy this reasonable——and modest——directive, as Ms. Kearns and Ms. Barnes

      
      

      discovered during an observation of Respondent's classroom on October 26, 2010. In response, Ms. Barnes issued a memorandum to Respondent the following day, wherein she directed Respondent to bring "item three" of Step Two (i.e., assign zone tasks of varying difficulty based upon student ability), as well as Steps Three and Four, into compliance by November 2, 2010.

   7. Ms. Barnes' ample and appropriate support efforts notwithstanding, Respondent brought only one of the PASS steps (Step One) into compliance by mid-December, a fact that was confirmed during a classroom observation on December 14, 2010. Ms. Kearns discussed this issue with Respondent during a pre- disciplinary conference held the following day, at which time Respondent admitted that she had "muddled" the implementation of the PASS steps. Two days later, on December 17, 2010, Ms. Kearns warned Respondent in writing that her continued failure to implement the PASS steps might result in further disciplinary action.

   8. As the 2010-2011 school year progressed, Respondent's failure to implement the PASS steps——particularly the step related to data3/ collection——continued in spite of frequent classroom visits, numerous memoranda4/ and emails, and regular meetings5/ with Ms. Kearns, Ms. Barnes, and Ms. Aldridge. Ultimately, on April 5, 2011, Ms. Kearns provided written notification to Respondent that she was being placed on a 90-day

      
      

      Performance Development Plan ("PDP") due to deficiencies in the areas of lesson management, lesson presentation, and student performance evaluation (i.e., assessments and data collection). The PDP, which was drafted during a meeting held the same date (attended by Ms. Kearns, Respondent, the school principal, and a union representative), articulated the corrections Respondent was required to make, various strategies for improvement, and the assistance with which Respondent would be provided.

   9. With respect to the issue of data collection, for example, the PDP contemplated that by September 19, 2011, Respondent would be required to demonstrate mastery of the requirement that she "collect and record quantitative data for each task in each zone for each student on a weekly basis." The PDP further provided that Ms. Barnes and/or Ms. Aldridge would work with Respondent to improve her data collection methods.

      (At Respondent's request, this portion of the PDP was amended on May 31, 2011, to read that only "District Personnel and/or Shalita Aldridge" would assist her.)

   10. On April 11, 2011, less than one week after the creation of the PDP, Ms. Barnes met with Respondent (for one hour) to review and discuss proper data collection methods. Despite this meeting and the subsequent provision of ample support, Respondent's failure to collect proper data——and comply with numerous other PASS steps——persisted: on April 27, 2011,

       
       

       Ms. Kearns noticed during a classroom observation that Respondent was still not collecting weekly data for each task and, further, that the data she had collected was not measureable; on May 3, 2011, Ms. Barnes and Ms. Kearns examined a sample of recent data sheets, which revealed that Respondent's data entries were vague and not recorded separately by task type; on May 16, 2012, during a classroom visit by Alan Strauss (South Broward's principal) and Louis Ruccolo (a transition supervisor with the district), it was observed that six PASS steps were out of compliance, including data collection; and, on May 19, 2011, a one-hour classroom observation by Ms. Kearns uncovered myriad data collection issues, which included, with respect to one particular student, zero "office zone" data entries during the preceding six weeks.

   11. Respondent's continued noncompliance resulted, not surprisingly, in the issuance of several reprimands by Ms. Kearns. The first, provided to Respondent in writing on May 12, 2011, was based upon her repeated failure to comply with time- bound directives; the second, issued in early June of 2011, disciplined Respondent for her lack of adherence to "directives relative to student supervision."

   12. On or about June 10, 2011, Ms. Kearns issued a memorandum to Respondent that discussed, in painstaking detail, what would be expected of her during the following school year.

       
       

       Among other things, the memorandum advised Respondent that she would be required, effective August 22, 2011, to "utilize the specific data collection tools that are named in [her] PDP," including but not limited to weekly zone task data. Respondent was further informed, accurately as it turns out, that "District support will continue to be provided . . . during the school year and will begin the week of August 15, 2011."

3. 2011-2012 School Year

1. At the outset of the 2011-2012 school year, Mr.

   
   

   Strauss provided Respondent with two memoranda. The first, dated August 16, 2012, recounted Respondent's shortcomings during the preceding academic year, which included her failure to "collect and maintain consistent and quantitative data through specific zone task data collection." The second, which Respondent received on August 22, 2011, reminded her that her PDP (initiated on April 1, 2011) had carried over from the previous year and would expire on September 13, 2011; Respondent was further advised that the performance evaluation to be conducted upon the expiration of her PDP would be drafted under the assessment system in effect during the 2010-2011 school year.

2. Pursuant to the School Board's evaluation system (known as the Instructional Personnel Assessment System or "IPAS"), teachers are rated (satisfactory, in need of

   
   

   improvement, or unsatisfactory) in ten areas: instructional planning; lesson management; lesson presentation; communication; classroom management; behavior management; records management; subject matter knowledge; "other professional competencies"; and student performance evaluation.

3. On September 19, 2011, Ms. Khandia Pinkney——an assistant principal at South Broward, who assumed the duties of Ms. Kearns——issued Respondent's evaluation for the 2010-2011 school year. In the evaluation, Ms. Pinkney awarded Respondent satisfactory ratings in seven of the performance areas, while the remaining three (lesson management, lesson presentation, and student performance evaluation) were deemed unsatisfactory. In light of her failure to achieve satisfactory ratings in all ten performance areas, Respondent was issued an overall performance rating of unsatisfactory.

4. Although Respondent's poor evaluation could have resulted in the initiation of termination proceedings, Mr. Strauss and Ms. Pinkney elected instead to place Respondent on a new, 90-day PDP. The second PDP, which was drafted with Respondent's collaboration on September 19, 2011, listed 14 specific deficiencies (e.g., "collect and record quantitative data for every task in each zone for each student on a weekly basis") that Respondent was required to correct by January 10, 2012.

   
   

5. In accordance with the terms of the second PDP, Respondent received considerable support and supervision as the school year progressed. Such support included twice-weekly visits by Ms. Shaneka President (a district-level transition teacher) to Respondent's classroom, as well as weekly follow-up e-mails that emphasized, among various issues, the necessity of proper data collection.6/

6. Respondent's data collection issues persisted; in light of this continued failing, as well as several other concerns, Ms. Pinkney drafted a written recommendation, dated October 17, 2011, that Respondent be suspended from work for three days.7/ In pertinent part, the recommendation read:

   On 10/13/2010 you received a summary memo, on 12/17/2010 you received a written warning, on 3/01/2011 you received a verbal reprimand, and on 5/12/2011 and 6/10/2011 you received written reprimands. All notifications were regarding the concern with your failure to follow directives.

   
   

   You have failed to meet the performance standards required of your position as a teacher. Specifically, you have failed to follow directives relative to leaving campus without administrative approval, following time-bound directives, directives relative to student supervision by failing to properly supervise you SVE students, utilizing instructional time for personal activities such as smoking and personal phone calls, and not following procedural directives. . . .

   
   

   Your repeated failure to follow directives is a serious breach of conduct that cannot

   
   

   be tolerated. Therefore, I am recommending that your name be sent before the School Board . . . for a 3-day suspension.

   
   

7. Petitioner's receipt of the foregoing memorandum did not spur her into compliance: two days later, on October 19, 2011, Mr. Ruccolo and Ms. Pinkney conducted an observation of Petitioner's classroom, during which they noticed——among other deficiencies——instances of incomplete8/ and/or inaccurate data.9/ The observed deficiencies were discussed with Respondent during a meeting with Ms. Pinkney on October 25, 2011, and further outlined in a memorandum issued to Respondent two days later.

8. During the ensuing four weeks, Ms. President continued to remind Respondent, in writing and on no fewer than four occasions, of the requirement to record data "for every task for every student in every zone on a weekly basis."10/ Respondent, however, failed to heed this guidance——as Mr. Strauss learned during a classroom observation of Respondent's classroom on December 1, 2011. On that occasion, Mr. Strauss and an intern principal (Ms. Cherie Hodgson-Toeller) uncovered numerous data collection issues, each of which was discussed with Respondent during a meeting on December 5, 2011, as well as detailed in a memorandum provided to Respondent the following week. The memorandum read, in relevant part:

   We also pointed out that [student "Sa."] had no data in her binder with respect to her performance in the Office zone. We

   
   

   discussed that no data was reflected in the binders for the current week and commented that the data recorded in the binders was lacking uniformity and data recorded did not provide[] comparison details to determine the students['] current percentage of correct completions while performing the task or indicate whether or not they are making adequate progress. . . . It was also discussed that we witnessed a lot of confusion in the classroom and inconsistencies in monitoring, scheduling, and tracking of data continue to exist.

   
   

   (emphasis added).

   
   

9. Over the next four weeks, Respondent's issues with data collection persisted, and, in at least one regard, worsened. During an observation of Respondent's class on January 3, 2012, Ms. Pinkney discovered that no data had been recorded for one particular student in the "restaurant zone"; with respect to another student, Ms. Pinkney noted, troublingly, that "restaurant zone" data had been recorded for a date (December 15, 2011) that the student had been absent. The cause of the latter discrepancy, as established by Ms. Riley's credible testimony, was a directive to Ms. Riley from Respondent to manufacture data entries (after the fact) to create the appearance of proper data collection. As Ms. Riley explained during the final hearing:

   There were times [when] I was uncomfortable. Ms. Liquori would say, well, Ms. Presidente [sic] and them are coming on Monday, or, they are coming this and such date, so you need to go ahead and put your data in.

   
   

   And there was a time where she asked me to put in data for a student that had not been in school for three weeks. And I told her, I said, I don't think that we are supposed to be doing that. I know that's not right for us to do that. But because you are my supervisor and teacher, then I have to follow orders from my supervising teacher.

   
   

   Q. So, if I understand correctly then, Ms. Liquori instructed you to put in data on a student that wasn't present.

   
   

   A. That is correct.

   
   

   Q. And that was false data.

   
   

   A. Right. And there was [sic] times where we would have to put down a student mastered a task when we know that the student had not mastered that task.

   
   

   Q. Why would Ms. Liquori make you do that?

   
   

   A. Because data needs to be put in before Ms. Presidente [sic] and them would come in. Because when they come in they did the observations.

   
   

   (emphasis added).

   
   

10. A meeting was thereafter scheduled for January 12, 2012, during which Ms. Pinkney intended to close Respondent's PDP and draft an unfavorable performance evaluation. From what can be gleaned from the record, however, the meeting was postponed by virtue of Respondent's placement on medical leave. The meeting was ultimately convened on April 26, 2012, at which time Ms. Pinkney issued a written performance evaluation that rated Respondent unsatisfactory in three performance areas

    
    

    (lesson management, lesson presentation, and student performance evaluation——the same categories that were rated unsatisfactory during the previous evaluation), satisfactory in the other seven areas, and unsatisfactory overall.

11. Petitioner has demonstrated by a greater weight of the evidence that Respondent's failure to collect appropriate PASS data, a deficiency that persisted for more than one and one-half school years, constituted a willful neglect of her duties. In so finding, it is notable: that the data collection tasks Respondent was directed to perform were uncomplicated and reasonable in nature; that Respondent received adequate training concerning the PASS program prior to the 2010-2011 school year, as well as substantial levels of support and guidance during each school year at issue; and that Respondent never indicated, at any point during the 2010-2011 or 2011-2012 school years, that she did not understand her obligations or was unable to perform them.11/

    CONCLUSIONS OF LAW

    
    

    1. Jurisdiction

       
       

12. The Division of Administrative Hearings has jurisdiction over the subject matter and parties to this case pursuant to sections 120.569 and 120.57(1), Florida Statutes.

    
    

    1. The Burden and Standard of Proof

       
       

13. A district school board employee against whom a disciplinary proceeding has been initiated must be given written notice of the specific charges prior to the hearing. Although the notice "need not be set forth with the technical nicety or formal exactness required of pleadings in court," it should "specify the [statute,] rule, [regulation, policy, or collective bargaining provision] the [school board] alleges has been violated and the conduct which occasioned [said] violation." Jacker v. Sch. Bd. of Dade Cnty., 426 So. 2d 1149, 1151 (Fla. 3d DCA 1983)(Jorgenson, J., concurring).

14. Once the school board, in its notice of specific charges, has delineated the offenses alleged to justify termination, those are the only grounds upon which dismissal may be predicated. See Cottrill v. Dep't of Ins., 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996); Klein v. Dep't of Bus. & Prof'l Reg., 625 So. 2d 1237, 1238-39 (Fla. 2d DCA 1993); Delk v. Dep't of

    Prof'l Reg., 595 So. 2d 966, 967 (Fla. 5th DCA 1992).

    
    

15. In an administrative proceeding to suspend or dismiss a member of the instructional staff, the school board, as the charging party, bears the burden of proving, by a preponderance of the evidence, each element of the charged offense. McNeill v. Pinellas Cnty. Sch. Bd., 678 So. 2d 476, 477 (Fla. 2d DCA 1996); Sublett v. Sumter Cnty. Sch. Bd., 664 So. 2d 1178, 1179

    
    

    (Fla. 5th DCA 1995). The preponderance of the evidence standard requires proof by "the greater weight of the evidence" or evidence that "more likely than not" tends to prove a certain proposition. See Gross v. Lyons, 763 So. 2d 276, 280 n.1 (Fla. 2000); see also Williams v. Eau Claire Pub. Sch., 397 F.3d 441,

    446 (6th Cir. 2005)(holding trial court properly defined the preponderance of the evidence standard as "such evidence as, when considered and compared with that opposed to it, has more convincing force and produces . . . [a] belief that what is sought to be proved is more likely true than not true").

16. The instructional staff member's guilt or innocence is a question of ultimate fact to be decided in the context of each alleged violation. McKinney v. Castor, 667 So. 2d 387, 389 (Fla. 1st DCA 1995); Langston v. Jamerson, 653 So. 2d 489, 491 (Fla. 1st DCA 1995).

    1. Grounds for Termination

    
    

17. Pursuant to section 1012.33(6)(a), Florida Statutes, Petitioner is authorized to suspend or dismiss a member of its instructional staff for "just cause," which is defined, in relevant part, as follows:

    Just cause includes, but is not limited to, the following instances, as defined by rule of the State Board of Education: immorality, misconduct in office, incompetency, two consecutive annual performance evaluation ratings of unsatisfactory under s. 1012.34 . . .

    
    

    gross insubordination, willful neglect of duty, or being convicted or found guilty of, or entering a plea to, regardless of adjudication of guilt, any crime involving moral turpitude.

    
    

    § 1012.33(1)(a), Fla. Stat.

    
    

18. Petitioner alleges in its Administrative Complaint that just cause exists to terminate Respondent's employment based upon her commission of one or more of the following charges: the failure to correct performance deficiencies in two consecutive performance plans, in violation of section 1012.34, Florida Statutes (Count One); incompetency (Count Two); willful neglect of duties (Count Three); an unspecified violation of School Board Policy 4008B (Count Four); and violations of section 1012.53(1) and (2), Florida Statutes (Counts Five and Six).

19. In light of the overwhelming evidence concerning Respondent's persistent and unjustified failure to collect appropriate PASS data, the undersigned need only address the charge of willful neglect of duties, which is defined by rule as follows:

    Gross insubordination or willful neglect of duties is defined as a constant or continuing intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority.

    
    

    Fla. Admin. Code R. 6B-4.009(4).12/

    
    

20. Pursuant to the findings of fact contained herein, Petitioner has satisfied its burden of proof. In reaching this conclusion, it bears noting, once again, that Respondent's noncompliance with respect to her data collection obligations—— which were uncomplicated in nature——occurred in spite of of numerous, reasonable directives from her administrators, as well as considerable levels of training and support. It is also significant that the record is devoid of any credible evidence that Respondent did not understand her data collection responsibilities or that she lacked the capacity to perform them. Respondent is therefore guilty of Count Three, which alone warrants the termination of her employment. See Taylor

Cnty. Sch. Bd. v. Roberson, Case No. 10-1351, 2011 Fla. Div. Adm. Hear. LEXIS 583, *32-33 (Fla. DOAH Feb. 22, 2011)

("Respondent was grossly insubordinate because she refused to . . . perform tests and record data. . . . Absent being

grossly incompetent, there is no excuse for Respondent's failure

in this regard.").

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of Law, it is

RECOMMENDED that the Broward County School Board enter a final order adopting the Findings of Fact and Conclusions of Law

contained in this Recommended Order. It is further RECOMMENDED that the final order terminate Respondent's employment.

DONE AND ENTERED this 8th day of February, 2013, in Tallahassee, Leon County, Florida.

S

EDWARD T. BAUER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 8th day of February, 2013.

ENDNOTES

1/ The following portions of Petitioner's Exhibit 1 were admitted: item "A" (a memorandum dated November 18, 2004); item "B" (a description of the PASS program); item "C" (PASS standards and benchmarks); item "D" (a seven-page transition services packet); and the pages bearing bates-stamp numbers 7- 11, 24-32, 37-148, 152-153, 175-211, 217-380, 383, 385-404, 408,

411-413, 416-430, 432-433, 436-501, 601-609, 617-619, 622, 626-

627, 632, 634-636, 642-643, and 645.

2/ Respondent holds a bachelor's degree in elementary education, as well as a master's degree in special education.

3/ During an examination of Respondent's student data sheets on February 28, 2011, Ms. Kearns discovered numerous missing entries, as well as the lack of quantitative measurements in many instances. During subsequent visits to Respondent's classroom on March 22 and 24, 2011, Ms. Barnes concluded that "assessments and data collection are not in evidence."

4/ In a memorandum dated January 18, 2011, Ms. Kearns directed Respondent to bring PASS steps 2, 5, 6, 7, and 8 into compliance

by January 25, 2011. Thereafter, on February 3, 2011, Ms. Kearns directed Respondent to bring steps 1-7 into compliance by February 8, 2011. Subsequently, on March 1, 2011, Ms. Kearns issued a memorandum that documented a previously-issued verbal reprimand, as well as instructed Respondent to "bring the PASS program within [her] classroom into compliance with District standards as determined by the PASS Process Steps & Expectations." Two additional memoranda (dated March 11, 2011, and March 25, 2011) preceded Respondent's April 5, 2011, placement on a Performance Development Plan.

5/ From the beginning of January 2011 through April 5, 2011 (the date Respondent was placed on a 90-day Performance Development Plan), no fewer than six meetings (January 4, 11, 18, 25, February 1, and March 10) were held with Respondent in an effort to remedy her non-compliance with the PASS steps.

6/ On September 20, 26, and 30; October 18, 25, and 31; November

8, 16, and 29; and December 6 and 12, 2012, Ms. President sent e-mail reminders to Respondent, each of which included (among other information) some variation of the following: "At a minimum, data should be collected for every task for every

student in every zone on a weekly basis. It is expected that if a student is assigned a task, a[n] entry on the data collection form will be present at least once a week."

7/ The recommendation was ultimately approved by the School Board on January 18, 2012.

8/ It was observed, as one of the more egregious shortcomings, that Respondent had failed to collect "grocery zone" data for one particular student during the preceding three weeks.

9/ The deficiencies noted during the October 19, 2011, observation are credibly outlined in observation notes drafted by Ms. Pinkney and Mr. Ruccolo, as well as in a follow-up memorandum to Respondent dated October 27, 2011. See Petitioner's Exhibit 1, pp. 206-211.

10/ See Petitioner's Exhibit 1, pp. 358-359; 361-362; 366-367;

and 369-370.

11/ Respondent's final hearing testimony that she "tried [her] best" to collect appropriate data has not been credited.

12/ Rule 6B-4.009, which was in effect at the time of Respondent's misconduct, was renumbered (beginning July 8, 2012) as Florida Administrative Code Rule 6A-5.056.

COPIES FURNISHED:

Charles T. Whitelock, Esquire

300 Southeast 13th Street, Suite E Fort Lauderdale, Florida 33316

Melissa C. Mihok, Esquire Kelly & McKee, P.A.

1718 East 7th Avenue, Suite 301

Tampa, Florida 33605

Lois Tepper, Interim General Counsel Department of Education

Turlington Building, Suite 1244

325 West Gaines Street Tallahassee, Florida 32399-0400

Dr. Tony Bennett, Commissioner Department of Education Turlington Building, Suite 1514

325 West Gaines Street Tallahassee, Florida 32399-0400

Robert Runcie, Superintendent Broward County School District 600 Southeast Third Avenue

Fort Lauderdale, Florida 33301-3125

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of this recommended order. Any exceptions to this recommended order must be filed with the agency that will issue the final order in this case.

Docket for Case No: 12-001981TTS

Orders for Case No: 12-001981TTS