STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BROWARD COUNTY SCHOOL BOARD,

vs.

Petitioner,

Case No. 17-1180TTS

DIANE LOUISE NEVILLE,

Respondent.

/

RECOMMENDED ORDER

This case came before Administrative Law Judge Darren A. Schwartz of the Division of Administrative Hearings for final hearing on July 12, 2017, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Tria Lawton-Russell, Esquire

Douglas G. Griffin, Esquire Broward County School Board Eleventh Floor

600 Southeast Third Avenue

Fort Lauderdale, Florida 33301

For Respondent: Robert F. McKee, Esquire

Robert F. McKee, P.A. Suite 301

1718 East 7th Avenue Tampa, Florida 33605

STATEMENT OF THE ISSUE

Whether just cause exists for Petitioner to suspend Respondent’s employment as a teacher without pay for 15 days.

PRELIMINARY STATEMENT

By letter dated January 18, 2017, Petitioner, Broward County School Board (“School Board”), notified Respondent, Diane Louise Neville (“Respondent”), of the School Board’s intent to suspend her employment without pay. On January 18, 2017, Respondent timely requested an administrative hearing. On February 7, 2017, at its scheduled meeting, the School Board took action to suspend Respondent’s employment as a teacher without pay for 15 days. Subsequently, the School Board referred the matter to the Division of Administrative Hearings (“DOAH”) to assign an Administrative Law Judge to conduct the final hearing. The final hearing was initially set for

April 27 and 28, 2017. On April 13, 2017, the School Board filed an unopposed motion to continue the final hearing. On April 17, 2017, the undersigned entered an Order resetting the final hearing for July 12 and 13, 2017.

On March 3, 2017, Petitioner served its first request for admissions (“RFA”) on Respondent’s counsel. The RFA consists of

24 separate requests. After Respondent did not timely respond to the RFA, Petitioner filed a Motion to Deem Matters Admitted on April 26, 2017. Respondent’s counsel did not timely respond to the motion. On May 9, 2017, the undersigned entered an Order granting the motion, ruling that the matters set forth in the RFA “are deemed technically admitted based on Respondent’s

failure to timely object or otherwise respond to such requests” in accordance with the applicable Florida Rules of Civil Procedure and case law. The Order, however, allowed Respondent the opportunity, pursuant to Florida Rule of Civil Procedure 1.370(b), to file by May 16, 2017, a motion to withdraw or amend the technical admissions, accompanied by responses to the RFA, unless the privilege against self-incrimination is asserted.

Respondent did not file a motion to withdraw or amend the technical admissions.

The final hearing commenced as scheduled and concluded on July 12, 2017, with both parties present. At the hearing, the School Board presented the testimony of Terry Kopelman, Golda Hoff, Susan Rockleman, Kathleen Goldweber, Sherline Manzo, Kalebra Jacobs-Reed, Johanna Davidson, and Susan Cooper. In addition, the School Board presented the deposition of Tamara Odom in lieu of her live testimony.1/ The School Board’s Exhibits 1, 2, 6 through 9, 11, 12, 15 through 17, 21, 29 through 31, and 33 were received into evidence. Respondent testified on her own behalf and did not offer any exhibits into evidence.

At hearing, the parties agreed to file their proposed recommended orders within 30 days after the filing of the final hearing transcript at DOAH. The one-volume final hearing Transcript was filed at DOAH on August 15, 2017.

On September 13, 2017, the parties filed a joint motion to extend the deadline until October 5, 2017, for the parties to file their proposed recommended orders. On September 14, 2017, the undersigned entered an Order granting the motion. On September 27, 2017, Respondent filed an unopposed motion to extend the deadline until October 13, 2017, for the parties to file their proposed recommended orders. On September 27, 2017, the undersigned entered an Order granting the motion. The parties timely filed their proposed recommended orders, which were given consideration 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 violations.

FINDINGS OF FACT

1. The School Board is a duly-constituted school board charged with the duty to operate, control, and supervise the public schools within Broward County, Florida.

2. Respondent was initially hired by the School Board in August 1998. Respondent is currently employed by the School Board as a teacher at Gulfstream Academy (K-8), pursuant to a Professional Services Contract, issued in accordance with section 1012.33(3)(a), Florida Statutes (2014). Respondent teaches Microsoft Office applications and computer coding.

   
   

3. At all times material to this case, Respondent’s employment with the School Board was governed by Florida law and the School Board’s policies.

4. The conduct giving rise to the School Board’s proposed suspension of Respondent involves a series of threats by Respondent on June 25, 2015, to resort to “extreme violence.”

5. On this day, Respondent was frustrated because she believed the School board had placed her salary at the incorrect “step” level and that she was owed for certain days in 2015 while teaching at McArthur High School during the previous school year.

6. Against this backdrop, at approximately 2:15 p.m. on Thursday, June 25, 2015, Terry Kopelman, a clerk for Talent and Operations at the School Board, received a telephone call from Respondent requesting to speak with the director, Susan Rockelman.

7. Ms. Kopelman told Respondent that Ms. Rockelman was not in her office and that she did not have voicemail. Ms. Kopelman advised Respondent that if she calls again, she should speak with Susan Cooper in the School Board’s Employee Labor Relations Department. In response, Respondent threatened to resort to “extreme violence.”

8. Ms. Kopelman was frightened by Respondent’s remarks, so she placed Respondent on hold and got her supervisor, Golda

   
   

   Hoff. Around this same time, Ms. Rockelman also appeared at Ms. Kopelman’s cubicle.

9. Ms. Kopelman put Respondent on speakerphone, at which time Respondent repeated her threat to resort to “extreme violence.” Ms. Rockelman asked Respondent if she was threatening her, and Respondent responded by repeating, several times, the same threat to resort to “extreme violence.”

10. Ms. Rockelman viewed Respondent’s remarks as a serious threat towards herself and other office workers who had spoken to Respondent.

11. That same day, Ms. Rockelman reported Respondent’s threats to the Chief of Police of the School Board’s police department and to the Fort Lauderdale Police Department.

12. During the afternoon of June 25, 2015, Respondent also called the School Board’s Employee and Labor Relations Department in an effort to speak with Ms. Cooper. Sherline Manzo, an employee of the department answered the telephone call from Respondent.

13. During the call, Respondent was irate and yelled at Ms. Manzo. Respondent told Ms. Manzo to take the following message verbatim for Ms. Cooper: “I am severely disabled and have autism and you are beyond my patience and tolerance level and will now resort to extreme violence to elevate my frustrations.”

    
    

14. Ms. Manzo asked Respondent if there was anything else she could help her with, but Respondent told her no. Respondent told Ms. Manzo to re-read the statement to make sure Ms. Cooper received the exact message.

15. Ms. Manzo viewed Respondent’s remarks as a serious threat of workplace violence, which conjured images in

    Ms. Manzo’s mind of a “post office incident where one of the employees came in . . . and started shooting their colleagues.” Ms. Manzo relayed the message to Ms. Cooper that same day.

    Ms. Cooper viewed Respondent’s remarks as a serious threat of violence which needed to be urgently addressed.

16. On June 25, 2015, at approximately 2:35 p.m., Respondent also called the Florida Education Association (“FEA”), an organization in Tallahassee, Florida, which represents teachers in school districts throughout Florida.

17. Tamara Odom, a legal secretary at FEA who had spoken to Respondent on prior occasions and was familiar with her voice, retrieved the following voicemail message left by Respondent on an FEA telephone at 2:35 p.m. on June 25, 2015:

    This is Diane Neville, personnel number 31013 with the School Board Broward County. I am tired of people hanging up on me. I am tired of being shuffled into voicemail and no one picking up the phone. I have no more patience. I have no more tolerance. I’m severely disabled. I have autism. I am now going to resort to extreme violence. Thank you all so much. The sooner you get back to

    
    

    me the happier I’ll be. Because right now I am at the level of act out the violence.

    Thank you.

    
    

18. On her voicemail, Respondent emphasized the point of “extreme violence.”2/

19. Respondent’s voicemail was taken seriously by Ms. Odom as a threat. In response to the voicemail, FEA contacted law enforcement and Respondent’s photograph was posted at the front door with instructions not to let her inside. Subsequently, Respondent showed up in Tallahassee at the FEA building, at which time she was met by law enforcement personnel.

20. During the afternoon on June 25, 2015, Respondent also called the Broward Teachers Union (“BTU”) in Fort Lauderdale, Florida. BTU is a union which negotiates the teacher contract in conjunction with the School Board and provides support and assistance to its union members.

21. Ms. Kathy Goldweber, a BTU office manager, retrieved the following voicemail message left by Respondent on an FEA telephone on June 25, 2015:

    Hi Kathy

    
    

    This is Diane Neville. I don’t know if you are familiar with my case. I am a

    severely disabled teacher. I have two forms of [ ] including Aspergers. I am now pretty much beyond my patience and beyond my tolerance. I have not been paid in over seven weeks. I am going to miss my son’s wedding on Saturday. I am still starving.

    
    

    I’m running on food from the food bank. Today I ate ½ can of peas to conserve.

    
    

    I have no more patience and tolerance. I am now going to resort to extreme violence to alleviate my frustration.

    
    

    (Repeat) I am out of patience and I am out of tolerance. I am now going to resort to extreme violence to alleviate my frustration.

    
    

    Thank you for your help.

    
    

22. Respondent’s conduct was inappropriate, harassing, abusive, and intimidating.

23. Respondent could certainly have conveyed her frustration about her pay without the need to harass, intimidate, and resort to threats of extreme violence.

24. The persuasive and credible evidence adduced at hearing establishes that Respondent is guilty of misconduct in office in violation of Florida Administrative Code Rule 6A- 5.056.

25. By her threats to resort to extreme violence, Respondent violated Florida Administrative Code Rule 6A- 10.081(2)(c) by engaging in conduct which created a hostile, intimidating, abusive, offensive, or oppressive environment, and failing to make reasonable effort to assure that each individual is protected from such harassment. Respondent also violated rule 6A-5.056(2)(e) by engaging in conduct which reduced

    
    

    Respondent’s ability or her colleagues’ ability to effectively perform duties.

26. The persuasive and credible evidence adduced at hearing establishes that Respondent is guilty of incompetence in violation of rule 6A-5.056(3). By her threats to resort to extreme violence, Respondent failed to discharge her required duties as a teacher as a result of inefficiency. Respondent was inefficient by failing to perform duties prescribed by law and by failing to communicate appropriately with and relate to colleagues, administrators, or subordinates.

27. The persuasive and credible evidence adduced at hearing establishes that Respondent violated School Board Policy No. 2410. By her threats to School Board employees to resort to extreme violence, Respondent violated School Board Policy

    No. 2410. Respondent’s threats to employees of FEA and BTU to resort to extreme violence are beyond the scope of the policy.

28. The persuasive and credible evidence adduced at hearing establishes that Respondent violated School Board Policy No. 4008(B)1. and 3. By her threats to resort to extreme violence, Respondent failed to comply with the Principles of Professional Conduct of the Education Profession in Florida and all rules and regulations prescribed by the State Board and the School Board. The persuasive and credible evidence adduced at hearing fails to establish that Respondent violated School Board

    
    

    Policy No. 4008(B)2., which pertains to certain traits to be infused in the “classroom.”

    CONCLUSIONS OF LAW

    
    

29. DOAH has jurisdiction of the subject matter and the parties to this proceeding pursuant to sections 120.569 and 120.57(1).

30. Respondent is an instructional employee, as that term is defined in section 1012.01(2). The School Board has the authority to suspend instructional employees pursuant to sections 1012.33(1)(a) and 1012.33(6)(a).

31. The School Board has the burden of proving, by a preponderance of the evidence, that Respondent committed the violations alleged in the Administrative Complaint and

    that such violations constitute “just cause” for suspension.

    
    

    §§ 1012.33(1)(a) and (6), Fla. Stat.; Dileo v. Sch. Bd. of Dade Cnty., 569 So. 2d 883, 884 (Fla. 3d DCA 1990).

32. 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). The preponderance of the evidence standard is less stringent than the standard of clear and convincing evidence applicable to loss of a license or certification. Cisneros v. Sch. Bd. of Miami-

    Dade Cnty., 990 So. 2d 1179 (Fla. 3d DCA 2008).

    
    

33. Whether Respondent committed the charged offenses is a question of ultimate fact to be determined by the trier of fact in the context of each alleged violation. Holmes v. Turlington,

    480 So. 2d 150, 153 (Fla. 1985); McKinney v. Castor, 667 So. 2d 387, 389 (Fla. 1st DCA 1995).

34. Sections 1012.33(1)(a) and (6) provide in pertinent part that instructional staff may be suspended during the term of their employment contract only for “just cause.”

    §§ 1012.33(1)(a) and (6), Fla. Stat. “Just cause” is defined in section 1012.33(1)(a) to include “misconduct in office” and “incompetency.”

35. Section 1001.02(1), Florida Statutes, grants the State Board of Education authority to adopt rules pursuant to

    sections 120.536(1) and 120.54 to implement provisions of law conferring duties upon it.

36. Consistent with this rulemaking authority, the State Board of Education has defined “misconduct in office” in

    rule 6A-5.056(2), which provides:

    
    

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

          
          

       2. A violation of the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule 6A-10.081, 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.[3/]

          
          

37. Rule 6A-10.080, titled “Code of Ethics of the Education Profession in Florida,” provides:

    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.

    
    

38. While rule 6A-5.056(2)(a) provides that violation of the Code of Ethics rule constitutes “misconduct,” it has been frequently noted that the precepts set forth in the above-cited “Code of Ethics” are “so general and so obviously aspirational as to be of little practical use in defining normative

    
    

    behavior.” Miami-Dade Cnty. Sch. Bd. v. Lantz, Case No. 12-3970,

    
    

    2014 Fla. Div. Admin. Hear. LEXIS 399, at *29-30 (Fla. DOAH July 29, 2014).

39. Rule 6A-5.056(2)(b) incorporates by reference

    
    

    rule 6A-10.081, which is titled: “Principles of Professional Conduct for the Education Profession in Florida.”

    Rule 6A-10.081(2)(c) provides, in pertinent part:

    
    

    (c) Obligation to the profession of education requires that the individual:

    
    

    * * *

    
    

    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 process 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.

    
    

40. Consistent with its rulemaking authority, the State Board of Education has defined “incompetency” in rule 6A- 5.056(3), which provides, in pertinent part:

    1. “Incompetency” means the inability, failure or lack of fitness to discharge the required duty as a result of inefficiency or incapacity.

       
       

       1. “Inefficiency” means one or more of the following:

    
    

    1. Failure to perform duties prescribed by law;

    
    

    * * *

    
    

    3. Failure to communicate appropriately with and relate to colleagues, administrators, subordinates, or parents;

    
    

41. School Board Policy No. 2410 (Workplace Violence) is a “rule” within the meaning of rule 6A-5.056(2)(c). School Board Policy No. 2410 provides, in pertinent part:

    2410

    
    

    WORKPLACE VIOLENCE

    
    

    Identifying and preventing workplace incidents of actual or threatened violence is a priority of the School Board of Broward County, Florida. Zero tolerance toward workplace violence or the threat of violence, by any of its employees, customers, the general public, and/or anyone who conducts business with the School District on School Board property will be followed. It is the intent of the School District to provide a workplace which is free from physical attacks, destructive acts, verbal abuse (harassment), property crimes, threats or any other violent acts.

    Employees who violate this policy will be subject to disciplinary action up to and including termination of employment.

    
    

42. School Board Policy No. 4008 is a “rule” within the meaning of rule 6A-5.056(2)(c). School Board Policy No. 4008 provides, in pertinent part:

    B. DUTIES OF INSTRUCTIONAL PERSONNEL

    
    

    The members of instructional staff shall perform the following functions:

    
    

    1. Comply with the Code of Ethics and the Principles of Professional Conduct of the Education Profession in Florida.

    
    

    * * *

    
    

    3. Infuse in the classroom, the District’s adopted Charter Education Traits of Respect, Honesty, Kindness, Self-control, Tolerance, Cooperation, Responsibility and Citizenship.

    
    

    * * *

    
    

    8. Conform to all rules and regulations that may be prescribed by the State Board and by the School Board.

    
    

43. Turning to the present case, the School Board proved by a preponderance of the evidence that Respondent is guilty of misconduct in office in violation of rule 6A-5.056(2). As detailed above, the School Board proved by a preponderance of the evidence that Respondent is guilty of misconduct in office, in that she engaged in conduct which created a hostile, intimidating, abusive, offensive, or oppressive environment, and failed to make reasonable effort to assure that each individual is protected from such harassment. Respondent also engaged in conduct which reduced Respondent’s ability or her colleagues’ ability to effectively perform duties.4/

44. The School Board proved by a preponderance of the evidence that Respondent is guilty of incompetence in violation of rule 6A-5.056(3). As detailed above, Respondent was inefficient by failing to perform duties prescribed by law, and

    
    

    by failing to communicate appropriately with and relate to colleagues, administrators, or subordinates.

45. The School Board proved by a preponderance of the evidence that Respondent violated School Board Policy Nos. 2410 and 4008(B)1. and 3.5/ The School Board failed to prove by a preponderance of the evidence that Respondent violated School Board Policy No. 4008(B)2.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order upholding the 15-day suspension of Respondent without pay.

DONE AND ENTERED this 24th day of October, 2017, in Tallahassee, Leon County, Florida.

S

DARREN A. SCHWARTZ

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 24th day of October, 2017.

ENDNOTES

1/ The parties stipulated at the final hearing that Ms. Odom was unavailable for the final hearing, and therefore, her deposition could be received into evidence and considered by the undersigned in lieu of her live testimony.

2/ See School Board’s Exhibit 1, deposition of Tamara Odom, Exhibit 2 to the deposition.

3/ In Knight v. Winn, 910 So. 2d 310, 312 (Fla. 4th DCA 2005), the court upheld an Administrative Law Judge’s finding of a teacher’s reduced effectiveness warranting termination and revocation of her certificate based on, among other things, the teacher’s threatening resignation letter stating that the conditions “almost define going postal.”

4/ Respondent’s contention that the School Board failed to sufficiently plead the charge of “misconduct in office” is without merit. The Administrative Complaint alleges that Respondent’s threats to resort to “extreme violence” constitutes “misconduct in office,” in violation of “one or more of Rules

6A-5.056(2)(a) through (e) of the Florida Administrative Code, which defines ‘misconduct.’” Admin. Compl., par. 26.

Respondent’s reliance on Manatee County School Board. v. Youmans, Case No. 11-1078, 2011 Fla. Div. Admin. Hear. LEXIS 232 (Fla. DOAH Aug. 22, 2011), is misplaced. In that case, the Administrative Complaint contained no citation to any rule provision. Rather, the Administrative Complaint in Youmans merely alleged a charge that Respondent engaged in “misconduct in office.”

The undersigned also rejects Respondent’s contention that Respondent’s threats to resort to extreme violence could not constitute misconduct in office because, when viewed in their proper context, the comments were not meant to be taken literally. The persuasive and credible testimony of

Ms. Kopelman, Ms. Hoff, Ms. Rockleman, Ms. Manzo, Ms. Jacobs- Reed, and Ms. Odom leads the undersigned to conclude otherwise. The undersigned was unpersuaded by Respondent’s testimony at hearing and her testimony is not credited. Even if Respondent did not intend to act upon her threats, however, the fact that she made the threats in the manner that she did constitutes misconduct in office.

5/ The undersigned rejects Respondent’s contention that Policy No. 2410 does not apply because none of Respondent’s conduct

occurred “on school board property.” Contrary to Respondent’s assertion, the policy is not limited to conduct that occurs only “on school property.” Rather, the policy broadly provides “[z]ero tolerance towards workplace violence, or the threat of violence, by any of its employees, customers, the general public, and/or anyone who conducts business with the school district on school board property.” It is sufficient that Respondent’s threats of resorting to extreme violence were made by her, as an employee of the School Board, to other School Board employees. The undersigned agrees with Respondent’s contention that Respondent’s calls to FEA and BTU are beyond the scope of the policy.

COPIES FURNISHED:

Tria Lawton-Russell, Esquire Douglas G. Griffin, Esquire Broward County School Board Eleventh Floor

600 Southeast Third Avenue Fort Lauderdale, Florida 33301 (eServed)

Robert F. McKee, Esquire Katherine A. Heffner, Esquire Robert F. McKee, P.A.

Suite 301

1718 East 7th Avenue Tampa, Florida 33605 (eServed)

Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244

325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)

Robert Runcie, Superintendent Broward County School Board Tenth Floor

600 Southeast Third Avenue Florida Fort Lauderdale, Florida 33301-3125

Pam Stewart, Commissioner of Education Department of Education

Turlington Building, Suite 1514

325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

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

Docket for Case No: 17-001180TTS

Orders for Case No: 17-001180TTS