STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BROWARD COUNTY SCHOOL BOARD,

vs.

Petitioner,

Case No. 12-2083TTS

CHRISTOPHER MARSHALL,

Respondent.

/

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case pursuant to sections 120.569 and 120.57(1), Florida Statutes,1/ before Jessica E. Varn, a duly-designated administrative law judge of the Division of Administrative Hearings (DOAH). The hearing was held on May 1, 2013, by video teleconference at sites in Lauderdale Lakes and Tallahassee, Florida.

APPEARANCES

For Petitioner: Paul Gibbs, Esquire

Law Offices of Carmen Rodriguez, P.A. Suite 411

15715 South Dixie Highway Palmetto Bay, Florida 33157

For Respondent: Mark F. Kelly, Esquire

Kelly and McKee, P.A. Suite 301

1718 East Seventh Avenue Post Office Box 75638 Tampa, Florida 33675-0638

STATEMENT OF THE ISSUE

Whether just cause exists to suspend Respondent without pay for a total of ten days, based on two separate incidents.

PRELIMINARY STATEMENT

On May 30, 2012, Broward County School Board (School Board) notified Mr. Marshall of its intent to suspend him without pay for three work days. Mr. Marshall timely requested an administrative hearing, and the School Board referred the matter to DOAH on June 14, 2012. The hearing was originally scheduled for August 31, 2012. Based upon three requests from the parties, the hearing was rescheduled for October 15, 2012, then for November 9, 2012, and then for December 19, 2012. The case was then placed in abeyance by a joint request from the parties, pending the School Board's pursuit of additional allegations against Mr. Marshall.

On February 19, 2013, the School Board sought leave to file an Amended Administrative Complaint, which was granted without objection. The Amended Administrative Complaint sought to impose a seven-day suspension, in addition to the three-day suspension, based on allegations of gross insubordination, misconduct in office, and willful neglect of duty. The hearing was once again rescheduled for May 1 and 2, 2013.

The Amended Administrative Complaint charged

Mr. Marshall with violations of Florida Administrative

Code Rule 6A-5.056(2)(e), alleging that Mr. Marshall's acts constitute misconduct in office through "behavior that reduces the teacher's ability or his or her colleagues' ability to perform duties"; rule 6A-5.056(2)(b), alleging misconduct in office through violations of the Principles of Professional Conduct for the Education Profession in Florida as adopted in rule 6B-1.006; rule 6A-5.056(2)(a), alleging misconduct in office through violations of the Code of Ethics of the Education Profession in Florida as adopted in rule 6B-1.001;

rule 6B-4.009(4) and rule 6A-056(4),2/ alleging that Mr. Marshall's actions constitute gross insubordination; and 6A- 5.065(5), alleging willful neglect of duty.

At the hearing, the School Board presented the testimony of Shawn Aycock, Arnita Williams, and Todd LaPace. Petitioner's Exhibits 1-29 were admitted into evidence pursuant to stipulation of the parties. Respondent testified on his own behalf, and presented the testimony of K.L. Respondent also introduced the deposition testimony of M.D., and Respondent's Exhibits 1-6 were admitted into evidence pursuant to stipulation of the parties.

The one-volume Transcript was filed with DOAH on

May 31, 2013. Respondent filed an Unopposed Motion for Extension of Time to Submit Proposed Recommended Orders, which was granted.

Both parties then filed proposed recommended orders, which were considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Mr. Marshall has been a teacher in Broward County for approximately 20 years.

2. At all times pertinent to the instant case, Mr. Marshall was employed as a math teacher at McArthur High School. Prior to working at McArthur High School he had taught math at Hollywood Hills High School, and then at Flanagan High School.

3. During his tenure at Hollywood Hills High School,

   
   

   Mr. Marshall was placed on a Performance Development Plan (PDP), which required Mr. Marshall to remediate and reteach math lessons in an effort to obtain 70 percent comprehension in his classes.

4. During his tenure at Flanagan High School, Mr. Marshall was once again placed on a PDP, which included the same requirements as the previous PDP at Hollywood Hills.

5. Mr. Marshall was next transferred to McArthur High School for the 2007-2008 school year. Because Mr. Marshall had not completed the second PDP while at Flanagan High School, he was placed on a PDP and 90-day probationary period to start his tenure at McArthur High School. He successfully completed the

   PDP.

   
   

6. During the fall of 2010, Mr. Marshall complained about

   
   

   Mr. Jose Gonzalez, the assistant principal who supervised the

   
   

   math department at the time. Mr. Marshall was then permitted to choose which assistant principal would supervise him. He chose Shawn Aycock, who at the time worked as the assistant principal for the language arts department.

7. On November 5, 2010, Ms. Aycock observed Mr. Marshall in his classroom. Ms. Aycock noticed the following deficiencies: Mr. Marshall did not have the students start an activity as soon as the students entered the room, he had the students perform a task that had no educational value and was not tied to the day's activity, he gave inappropriate responses to students' questions, the students were confused with the lesson, he did not provide proper feedback to the students, he did not provide complete answers to student questions, he used vocabulary that was beyond the students' ability, he gave the students a sample problem but did not work through the problem with the students, and he made no attempt to re-teach the lesson or remediate in any way.

8. On November 16, 2012, Ms. Aycock met with Mr. Marshall to discuss the observation. Mr. Marshall was confrontational, denied that the observation of hers was accurate, and accused Ms. Aycock of lying. Ms. Aycock had observed many teachers before she observed Mr. Marshall, but had never seen the need to write up notes after a meeting with a teacher. But after her

   meeting with Mr. Marshall, she did. Since then, she has not seen

   
   

   the need to write notes arising from a meeting with any other teacher.

9. During the meeting, Mr. Marshall indicated that he would not water down his instruction for any student, and that he would have no problem with observations that were done ethically and did not consist of lies that were made by unqualified individuals.

10. On November 19, 2010, Ms. Aycock provided Mr. Marshall with a memo detailing her concerns and expectations:

    Concerns:

    • Students were asked upon entering the class to copy the day's objective.

    • Students did not understand all of the math vocabulary used to explain the lesson.

    • A student seeking further explanation on a problem was told,"If you didn't get it not to worry. It will not be on the quiz."

    • Students were referred back to their notes when they questioned the lesson.

    • Only two math problems were worked during a half an hour review.

      
      

      Expectations:

    • All student activities should be of value and tied to the day's activity.

    • Teacher will use math vocabulary consistent with student ability level and explain lessons in multiple ways.

    • Insinuating that lessons are learned only for a test is inappropriate. All student questions will be answered and explained in full.

    • During a review a minimum of five review problems will be worked per concept.

      
      

      Additionally, we discussed the importance of you checking your email. I am directing you to check your email prior to the conclusion of first period and again prior to the conclusion of fourth period. It is important for you to know and understand that these are the same issues that you have had in previous years. Your previous Performance Development Plans (PDPs) have addressed these same concerns. You have received hours upon hours of assistance in these areas. My expectation is that you will follow the directives listed above immediately. If you feel you need assistance, please see me.

      
      

11. Next, Ms. Aycock requested that Principal LaPace, who had an extensive math background, observe Mr. Marshall. He did so on January 7, 2011. Mr. LaPace's extensive notes regarding the observation detail Mr. Marshall's failure to have a proper lesson plan, his scattered presentation manner, and his ineffective management of the classroom. Mr. LaPace prepared a memo detailing his concerns and expectations:

    Concerns:

    • Students were not given clear directions causing confusion among the students.

    • The lesson was not sequential.

    • The objective on the board did not match the lesson being taught.

    • Modeling sample problems were ineffective.

      
      

      Expectations:

    • Always give clear and concise directions to students.

    • Plan and deliver lessons so that are presented in sequential order.

    • The lesson presented in class will align with the objective posted for the day.

      
      

    • During a lesson a minimum of three sample problems will be worked per concept.

      
      

      It is important for you to know and understand that these are the same issues that you have had in previous years. Your previous Performance Development Plans (PDPs) have addressed these same concerns. You have received adequate assistance in these areas. My expectation is that you will follow the directives listed above starting immediately.

      
      

12. When Mr. LaPace met with Mr. Marshall regarding his observation, Mr. Marshall disagreed with Mr. La Pace's observations, but did not indicate why he did. Mr. Marshall also declined all types of support from other staff members.

13. The administration asked Mr. Marshall to provide documentation of remediation and retesting of students if he had over 35% of his students earning Ds or Fs. The documentation needed to be specific information regarding times that

    Mr. Marshall sat down with students in small group settings, or phone logs regarding communication with parents, or any type of specific information regarding steps that Mr. Marshall was taking to raise the level of success of his students.

14. Mr. Marshall was never observed remediating or

    
    

    re-teaching, despite the fact that all teachers were asked to allot the final 30 minutes of a class to these activities.

15. On February 17, 2011, Ms. Aycock, Mr. Gonzalez, and Mr.

    
    

    Marshall met for a Pre-Disciplinary Meeting. Mr. Marshall was

    
    

    given a verbal reprimand for insubordination. In the memorandum which documented the verbal reprimand, Ms. Aycock directed

    Mr. Marshall to:

    
    

    1. Reduce the number of students in your class receiving D's [sic] and F's [sic] to at or below thirty-five percent through

       re-teaching and remediating of those students.

       
       

    2. Check your school email throughout the day, a minimum of twice per day.

       
       

    3. Follow all directives given by and with proper authority.

    
    

    Failure or refusal to follow the above directives will result in further disciplinary action.

    
    

16. On September 20, 2011, Ms. Aycock again met with

    
    

    Mr. Marshall to discuss concerns and expectations, and also to conduct a Pre-Disciplinary Meeting, wherein Mr. Marshall was issued a second verbal reprimand for insubordination.

17. On September 22, 2011, Ms. Aycock wrote a memorandum detailing the conversation during the meeting, and reminding Mr. Marshall that from June 2010 through September 2011, he had

    attended seven meetings regarding the high percentage of students in his classes that were receiving Ds and Fs. At each meeting, he had been directed to reduce the number of students receiving Ds and Fs to at or below 35 percent, through remediation and

    re-teaching. Because Mr. Marshall had failed to comply with these directives, and had failed to provide a reason why he

    
    

    should not be disciplined, he was issued the second verbal reprimand. He was also directed to:

    1. Reduce the number of students in your class receiving Ds and Fs to at or below thirty-five percent through re-teaching and remediation of those students.

       
       

    2. Follow all directives given by and with proper authority.

    
    

18. Stemming from the same meeting, Ms. Aycock documented her concerns and expectations:

    Concerns:

    • You are receiving a large number of student and parental complaints in relation to your teaching practices.

    • Students are not being graded in a fair and consistent manner.

    • The department grading policy is not being followed.

    • Meaningful assignments are not being given to students.

    • Students are not receiving corrective and immediate feedback as it relates to their assignments.

      
      

      Expectations:

    • You will model lessons for students.

    • You will differentiate instruction to meet the needs of all the students.

    • You will develop and implement rubrics so students have clear expectations of class participation and effort requirements.

    • All assignments will correlate to the standards as tested by the Geometry EOC.

    • Students will receive corrective feedback within seventy-two hours.

      
      

      It is important for you to know and understand that these are the same issues that you have had in previous years. Your previous Performance Development Plans (PDPs)

      
      

      have addressed these same concerns. You have received adequate assistance in these areas. My expectation is that you will follow the directives listed above starting immediately.

      
      

19. Around December 2011, Ms. Aycock was promoted to the position of Principal for a middle school, and Ms. Arnita Williams became Mr. Marshall's supervising Assistant Principal.

20. Ms. Williams and Ms. Aycock once again conducted a classroom observation of Mr. Marshall, and Ms. Williams documented her concerns and expectations as follows:

    Concerns:

    • Students were not given clear directions causing confusion among the students.

    • The lesson was not sequential.

    • You did not address students' questions and concerns.

    • Modeling sample problems was ineffective.

    • You did not provide and use the correct mathematical vocabulary.

      
      

      Expectations:

    • Always give clear and concise directions to students and check for understanding.

    • Plan and deliver lessons so they are presented in sequential order.

    • Students' questions and concerns need to be addressed.

    • Mathematical vocabulary on student's level should be used.

      
      

      In previous memos additional directives were given. Below were the following expectations:

      
      

    • You will develop and implement rubrics so students have clear expectations of class participation and effort.

      
      

    • Provide a copy of your participation rubric to Ms. Aycock by the close of business on Friday, September 26, 2011.

    • Differentiate instruction every day the last 30 minutes of class the [sic] meet the needs of ask [sic] your students.

    • Student will receive corrective feedback within seventy-two hours on all graded work.

    • Reduce the number of students receiving Ds and Fs to at or below thirty-five percent through re-teaching and remediation of those students.

    • Daily indicate in your lesson plans interventions and strategies used to differentiate instruction.

    • A minimum of two grades each week must be entered into pinnacle per student.

    • Vocabulary used in class must be consistent with student's ability.

    • Check your school email throughout the day, a minimum of twice daily (before and after school).

    • During a lesson a minimum of three sample problems will be worked per concept.

    • Follow all directives given by and with proper authority.

      
      

      You have been given the above directions numerous times in the past. It is my expectation that all directives will be implemented immediately.

      
      

21. On December 12, 2011, Ms. Williams issued a written reprimand for failing to meet the performance standards required of his position as a math teacher. As grounds for the written reprimand, Ms. Williams focused on Mr. Marshall's repeated failure to reduce the number of students receiving Ds and Fs to at or below 35 percent through remediation and re-teaching, and

    
    

    his failure to follow all other directives given by and with proper authority.

22. School administration consistently directed

    
    

    Mr. Marshall to remediate and re-teach daily; he advised the administration that he would do so on one particular day of the week. The administration denied that request.

23. As a result of Mr. Marshall's non-compliance, students were moved from Mr. Marshall's class to other classes, which resulted in a disparate amount of students in other classes. While most math teachers had from 30-35 students in their classes, Mr. Marshall's class was reduced to about 17 students.

24. On January 5, 2012, Ms. Williams conducted a pre-disciplinary meeting with Mr. Marshall, for failure to

    provide daily re-teaching and remediation for students the last

    
    

    30 minutes of class, as he had been instructed to do numerous times. He was informed by letter that he was being recommended to the School Board for a three-day suspension.

25. On October 10, 2012, approximately nine weeks into the next school year, Ms. Williams sent Mr. Marshall a memorandum that stated:

    Due to the large number of complaints, schedule changes, high failure rate and conferences, you are hereby directed to provide the following documentation for each of the 93 students (Juniors) who presently have a grade of F in your class at interims

    
    

    by October 15, 2012. Please provide copies to Ms. Williams and Ms. DiPaolo by 2:45 p.m.

    
    

    • Interventions and strategies for each student

    • Parent phone contact log

      
      

26. On that same date, Mr. Marshall responded to this request by giving Ms. Williams a document that read as follows:

    MATHEMATICAL RUBRIC

    Tests/Quizzes

    
    

    1. Correct Problems 10pts.

    2. Completely Wrong 0pts.

    3. Total is 100%

    
    

    Please note that the total number of questions can affect the outcome.

    
    

27. Since the reply by Mr. Marshall was completely lacking in usefulness and did not supply the information requested by Ms. Williams, she attempted once again to solicit the proper information from Mr. Marshall by sending an e-mail to him on October 15, 2012, at 6:03 a.m., giving him a second notice that

    the deadline for production of the requested information was that same day.

28. Mr. Marshall never complied with the directive to provide information on each student who was failing his class. He never asked for more time to collect the information, and despite that fact that he admitted it would have been easy to retrieve his phone log and submit it, he never did so.

    
    

29. Ms. Williams met with Mr. Marshall, informing him that he would be recommended to the School Board for a seven-day suspension.

30. The greater weight of the evidence established that Mr. Marshall is guilty of gross insubordination for his conduct before and after July 2012.

    CONCLUSIONS OF LAW

    
    

31. DOAH has jurisdiction over the subject matter of this proceeding and of the parties hereto pursuant to chapter 120, Florida Statutes.

32. District school boards have the authority to operate, control, and supervise all free public schools in their respective districts and may exercise any power except as expressly prohibited by the State Constitution or general law.

    § 1001.32(2), Fla. Stat.

    
    

33. Such authority extends to personnel matters and includes the power to suspend and dismiss employees.

    See §§ 1001.42(5), 1012.22(1)(f), and 1012.23(1).

    
    

34. At all times material to the instant case, the school boards had the right, under section 1012.33(6)(a), to suspend or dismiss, for "just cause," classroom teachers and other instructional personnel having professional service contracts.

35. "Just cause" has been defined to include, but not be limited to, immorality, misconduct in office, incompetency, gross

    
    

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

    § 1012.33(1)(a).

    
    

36. "Gross insubordination" has been defined in Florida Administrative Code Rule 6B-4.009(4) 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.

    
    

37. Petitioner has the burden of proving the material allegations by a preponderance of the evidence. McNeill v. Pinellas Cnty. Sch. Bd., 678 So. 2d 476, 477 (Fla. 2d DCA 1996); Allen v. Sch. Bd. of Dade Cnty., 571 So. 2d 568, 569 (Fla. 3d DCA 1990).

38. 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. 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").

    
    

39. As to the three-day suspension which predates the change in the Florida Administrative Code effective July 2012, the preponderance of evidence establishes a constant or continuing intentional refusal by Mr. Marshall to obey a direct order, reasonable in nature, and given by and with proper authority. He was reasonably directed numerous times to re-teach and remediate during his daily lessons, and he refused to comply. Accordingly, Mr. Marshall is guilty of gross insubordination or willful neglect of duties.

40. Turning to the conduct that occurred after July 2012, Mr. Marshall is charged with gross insubordination, willful neglect of duties, and misconduct in office.

41. Misconduct in office is defined in Florida Administrative Code Rule 6A-5.056(2), as follows:

    1. "Misconduct in Office" means one or more of the following:

       
       

       1. A violation of the Code of Ethics of the Education Profession in Florida as adopted in Rule 6B-1.001, F.A.C.;

          
          

       2. A violation of the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule 6B- 1.006, F.A.C.;

          
          

       3. A violation of the adopted school board rules;

          
          

       4. Behavior that disrupts the student's learning environment; or

          
          

       5. Behavior that reduces the teacher's ability or his or her colleagues' ability to effectively perform duties.

    
    

42. The Code of Ethics of the Education Profession in Florida, found in Florida Administrative Code 6B-1.001, reads as follows:

    1. The educator values the worth and dignity of every person, the pursuit of truth, devotion to excellence, acquisition of knowledge, and the nurture of democratic citizenship. Essential to the achievement of these standards are the freedom to learn and to teach and the guarantee of equal opportunity for all.

       
       

    2. The educator's primary professional concern will always be for the student and for the development of the student's potential. The educator will therefore strive for professional growth and will seek to exercise the best professional judgment and integrity.

       
       

    3. Aware of the importance of maintaining the respect and confidence of one's colleagues, of students, of parents, and of other members of the community, the educator strives to achieve and sustain the highest degree of ethical conduct.

    
    

43. The Principles of Professional Conduct for the Education Profession in Florida, found in Florida Administrative Code Rule 6B-1.006, states:

    1. Obligation to the student requires that the individual:

       
       

       1. Shall make reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental and/ or physical health and/or safety.

          
          

       2. Shall not unreasonably restrain a student from independent action in pursuit of learning.

          
          

       3. Shall not unreasonably deny a student access to diverse points of view.

          
          

       4. Shall not intentionally suppress or distort subject matter relevant to a student's academic program.

          
          

       5. Shall not intentionally expose a student to unnecessary embarrassment or disparagement.

          
          

       6. Shall not intentionally violate or deny a student's legal rights.

          
          

       7. Shall not harass or discriminate against any student on the basis of race, color, religion, sex, age, national or ethnic origin, political beliefs, marital 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.

          
          

       8. Shall not exploit a relationship with a student for personal gain or advantage.

          
          

       9. Shall keep in confidence personally identifiable information obtained in the course of professional service, unless disclosure serves professional purposes or is required by law.

          
          

    2. Obligation to the public requires that the individual:

       
       

       1. Shall take reasonable precautions to distinguish between personal views and those of any educational institution or organization with which the individual is affiliated.

          
          

       2. Shall not intentionally distort or misrepresent facts concerning an educational matter in direct or indirect public expression.

          
          

       3. Shall not use institutional privileges for personal gain or advantage.

          
          

       4. Shall accept no gratuity, gift, or favor that might influence professional judgment.

          
          

       5. Shall offer no gratuity, gift, or favor to obtain special advantages.

          
          

    3. Obligation to the profession of education requires that the individual:

       
       

       1. Shall maintain honesty in all professional dealings.

          
          

       2. Shall not on the basis of race, color, religion, sex, age, national or ethnic origin, political beliefs, marital status, handicapping condition if otherwise qualified, or social and family background deny to a colleague professional benefits or advantages or participation in any professional organization.

          
          

       3. Shall not interfere with a colleague's exercise of political or civil rights and responsibilities.

          
          

       4. Shall not engage in harassment or discriminatory conduct which unreasonably interferes with an individual's performance of professional or work responsibilities or with the orderly processes of education or which creates a hostile, intimidating, abusive, offensive, or oppressive environment; and, further, shall make reasonable effort to assure that each individual is protected from such harassment or discrimination.

          
          

       5. Shall not make malicious or intentionally false statements about a colleague.

          
          

       6. Shall not use coercive means or promise special treatment to influence professional judgments of colleagues.

          
          

       7. Shall not misrepresent one's own professional qualifications.

          
          

       8. Shall not submit fraudulent information on any document in connection with professional activities.

          
          

       9. Shall not make any fraudulent statement or fail to disclose a material fact in one's own or another's application for a professional position.

          
          

       10. Shall not withhold information regarding a position from an applicant or misrepresent an assignment or conditions of employment.

           
           

       11. Shall provide upon the request of the certificated individual a written statement of specific reason for recommendations that lead to the denial of increments, significant changes in employment, or termination of employment.

           
           

       12. Shall not assist entry into or continuance in the profession of any person known to be unqualified in accordance with these Principles of Professional Conduct for the Education Profession in Florida and other applicable Florida Statutes and State Board of Education Rules.

           
           

       13. Shall self-report within forty-eight

           (48) hours to appropriate authorities (as determined by district) any arrests/charges involving the abuse of a child or the sale and/or possession of a controlled substance. Such notice shall not be considered an admission of guilt nor shall such notice be admissible for any purpose in any proceeding,

           
           

           civil or criminal, administrative or judicial, investigatory or adjudicatory. In addition, shall self-report any conviction, finding of guilt, withholding of adjudication, commitment to a pretrial diversion program, or entering of a plea of guilty or Nolo Contendre for any criminal offense other than a minor traffic violation within forty-eight (48) hours after the final judgment. When handling sealed and expunged records disclosed under this rule, school districts shall comply with the confidentiality provisions of Sections 943.0585(4)(c) and 943.059(4)(c), Florida

           Statutes.

           
           

       14. Shall report to appropriate authorities any known allegation of a violation of the Florida School Code or State Board of Education Rules as defined in Section 231.28(1), Florida Statutes.

           
           

       15. Shall seek no reprisal against any individual who has reported any allegation of a violation of the Florida School Code or State Board of Education Rules as defined in Section 231.28(1), Florida Statutes.

           
           

       16. Shall comply with the conditions of an order of the Education Practices Commission imposing probation, imposing a fine, or restricting the authorized scope of practice.

           
           

       17. Shall, as the supervising administrator, cooperate with the Education Practices Commission in monitoring the probation of a subordinate.

    
    

44. Willful neglect of duty, as defined in Florida Administrative Code Rule 6B-5.056(5), is an "intentional or reckless failure to carry out required duties."

45. Gross insubordination is defined in Florida Administrative Code Rule 6B-5.056(4) as follows:

    
    

    the intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority; misfeasance, or malfeasance as to involve failure in the performance of the required duties.

    
    

46. The preponderance of the evidence established that Mr. Marshall is guilty of gross insubordination because he was

given a reasonable order, that is, to compile information for his supervisor regarding the failing students in his class, and he intentionally refused to comply with that order. The evidence as to the conduct that occurred after July 2012, however, does not support the charges of willful neglect of duty or misconduct in

office.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Broward County School Board issue a final order suspending Mr. Marshall without pay for a total of ten days, based on his conduct before and after July 2012.

DONE AND ENTERED this 28th day of August, 2013, in Tallahassee, Leon County, Florida.

S

JESSICA E. VARN

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 28th day of August, 2013.

ENDNOTES

1/ All citations to the Florida Statutes are to the 2012 version.

2/ Rule 6B-4.009 was renumbered (rule 6A-056(4)) and amended effective July 2012. The actions giving rise to the three-day suspension occurred prior to July 2012, but because the actions that gave rise to the ten-day suspension occurred after that date, Mr. Marshall was charged with a violation of both rules.

COPIES FURNISHED:

Paul Gibbs, Esquire Law Offices of

Carmen Rodriguez, P.A. Suite 411

15715 South Dixie Highway Palmetto Bay, Florida 33157

Mark F. Kelly, Esquire Kelly and McKee, P.A. Suite 301

1718 East Seventh Avenue Post Office Box 75638 Tampa, Florida 33675-0638

Pam Stewart, Commissioner of Education Department of Education

Suite 1514 Turlington Building

325 West Gaines Street Tallahassee, Florida 32399-0400

Matthew Carson, General Counsel Department of Education Turlington Building, Suite 1514

325 West Gaines Street Tallahassee, Florida 32399-0400

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

Fort Lauderdale, Florida 33301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 12-002083TTS

Orders for Case No: 12-002083TTS