STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BROWARD COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 05-2288

) CHARLENE REBECCA BLACKWOOD, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on August 15 through 17, 2006, in Fort Lauderdale, Florida, before Patricia M. Hart, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Eugene K. Pettis, Esquire

Deborah Klauber, Esquire Haliczer, Pettis & Schwamm, P.A. One Financial Plaza

101 Southeast Third Avenue, Seventh Floor Fort Lauderdale, Florida 33394

For Respondent: Mary Aspros, Esquire

Meyer and Brooks, P.A. 2544 Blairstone Pines Drive Post Office Box 1547 Tallahassee, Florida 32302

STATEMENT OF THE ISSUE

Whether the Respondent committed the violations alleged in the Amended Administrative Complaint filed May 22, 2006, and, if so, the penalty that should be imposed.

PRELIMINARY STATEMENT

On June 7, 2005, the School Board of Broward County ("School Board") approved the recommendation of the superintendent to initiate proceedings to terminate the employment of Charlene Rebecca Blackwood, pursuant to the allegations in the Administrative Complaint dated May 27, 2005. Ms. Blackwood timely requested an administrative hearing, and the School Board transmitted the matter to the Division of Administrative Hearings for assignment of an administrative law judge.

The Administrative Complaint was dismissed without prejudice in an Order entered May 8, 2006, and the School Board was granted leave to amend the May 27, 2005, Administrative Complaint in an Order entered June 8, 2006. In the Amended Administrative Complaint dated May 22, 2006, the School Board charged Ms. Blackwood, a Senior Supervisor with the School Board's Building Department, with misconduct in office and gross insubordination, pursuant to Section 1012.33(1)(a) and 6(b), Florida Statutes (2005).1 The School Board based its charges on the following allegations:

1. On or about February 16, 2006 [sic], Mr. Donnie Carter, the Deputy Superintendent for Operations for the School Board of Broward County, was put on notice of specific instances of misconduct and/or subordination [sic] involving the Respondent,

   Ms. Blackwood.

   
   

2. Mr. Carter was also notified of a working environment in the Building Department that was, at that time, intolerable to the employees based, in large part, on the behavior of the Respondent.

   
   

3. Mr. Carter was approached by a number of employees who requested a meeting to discuss their interactions with the Respondent, and how that interaction was negatively impacting their job performance.

   
   

4. The employees notified Mr. Carter of name calling, yelling, racial discrimination, favoritism, bullying, tyrannical behavior, insults about the school system, threats of union involvement, requests to relocate seating arrangements, and a negative impact on the physical and mental health of certain employees.

   
   

5. Mr. Carter was provided with a copy of a "Letter to the Editor," dated February 15, 2005, in which the author, now known to be the Respondent, made disparaging statements about her employer, the School Board of Broward County, her supervisor, Mr. Lee Martin, then Chief Building Official, and her co-workers in the Building Department.

   
   

6. Mr. Carter was also notified of an incident involving the Respondent and a Building Inspector, Ms. Jerolie Strong, in which Ms. Strong stated that the Respondent had engaged in inappropriate behavior, essentially yelling at and berating

   Ms. Strong in the presence of other Building Department employees.

7. Mr. Carter was also put on notice (by Ms. Diane Clark) of recent events wherein the Respondent, the supervisory employee, merely chuckled when one Building Department employee called another (Irene Kuziw) an "idiot" and "a serpent with two legs," and a situation wherein the Respondent was loud and argumentative with Ms. Clark, personally.

   
   

8. Mr. Carter was advised that this verbal abuse, tyrannical behavior and intimidation was ongoing, and had been for quite some time.

   
   

9. Based on the information provided by these Building Department employees,

Mr. Carter immediately removed the Respondent from the Building Department and commenced an investigation into the supervision and leadership therein. The investigation was conducted with the assistance of the Director of Employee Relations, Ms. Linda Wetzel.

* * *

1. During the investigation, it came to Mr. Carter and Ms. Wetzel's attention that there were longstanding, yet ongoing, problems with the Respondent's supervision within the Building Department, including a pattern or practice of aggressive and abusive behavior.

   
   

2. The majority of the employees in the Building Department complained about the Respondent's behavior and further explained that such behavior was having a negative impact on productivity.

   
   

3. Several employees stated that their own personal medical conditions had been adversely affected by the Respondent's behavior and attitude.

4. Following the completion of the investigation, Mr. Carter concluded that the Respondent's behavior, and the effect it was having on her co-workers in the Building Department warranted, if not required, disciplinary action, and he scheduled a pre- disciplinary meeting with the Respondent to discuss the allegations against her and provide her with an opportunity to respond.

In the Amended Administrative Complaint, the School Board alleged that Mr. Carter met twice with Ms. Blackwood and her union representative subsequent to February 15, 2005; that he had put Ms. Blackwood on notice of the specific allegations against her; and that he had given her an opportunity to respond to the allegations. As identified in paragraph 27 of the Amended Administrative Complaint, Mr. Carter advised

Ms. Blackwood of the following specific allegations against her:

1. Her failure to demonstrate appropriate leadership;

   
   

2. Her divisive leadership style;

   
   

3. Her frequent engaging in a loud and threatening manner;

   
   

4. Her clear favoritism within the Department;

   
   

5. The psychological impact she had on other subordinates by threats to report them to the Department of Business and Professional Regulation;

   
   

6. The impact of her behavior on subordinates who were forced to seek medical attention and/or requested to be removed from her supervision;

7. Her failure to demonstrate a leadership style supportive of the School Board's strategic plan; and

   
   

8. The fact that, because of these behaviors, she had lost the respect of the majority of the subordinate personnel within the Building Department, which placed severe limitations on her ability to be, or become, an effective leader.

Finally, the School Board alleged as follows:

1. Mr. Carter's recommendation [to terminate Ms. Blackwood] was made based on the triggering events of February 2005 and a pattern or practice of inappropriate behavior by the Respondent.

   
   

2. In making this recommendation,

Mr. Carter also noted that over the several years prior, the Respondent had been made aware of the problems with her behavior and attitude on various occasions including, but not limited to, formal and informal reprimands, performance evaluations indicating problems with, among other things, leadership and communication, and in regular meetings or counseling sessions with the most recent Chief Building Officer, Lee Martin.

* * *

1. Mr. Carter's recommendation was based on a determination that the Respondent had engaged in misconduct including, but not limited to, "problems with effective communication, a leadership style inappropriate for a supervisor, violations of the School Board's workplace violence policy; and harrassive [sic] conduct which interfered with the ability of other individuals to perform their work responsibilities that resulted in emotional harm to some employees."

2. In making his determination about the appropriate level of discipline, Mr. Carter took into account, among other things, the severity of the behavior, the impact on the community, the number of occasions or incidents complained of, the Respondent's employment history, the damage caused by the misconduct, the efforts to rehabilitate or work with the Respondent, the Respondent's knowledge of the conduct, the lack of any apparent attempt by the employee to stop or correct the misconduct, other similar instances of misconduct set forth by the Respondent's co-workers, the self-gain to the employee realized from the misconduct, the degree of physical and mental harm to the co-workers, the length of employment, the motivations for the misconduct, and other mitigating and aggravating factors.

   
   

3. . . . [T]he legal basis for this termination is for "just cause" based on misconduct in office that has been deemed so serious as to impair her effectiveness within the District. See § 1012.33(1)(a), (6)(b), Fla. Stat.

   
   

4. This recommendation for termination is likewise based on the Respondent's gross insubordination to the actions and policies of the School Board as a whole, and her supervisors. Id.

At the hearing, the School Board presented the testimony of Robert Hamberger, Valerie Oscheneek, Irving Tutunick, Jerolie Strong, Irene Kuziw, Diane Clark, Sherry Gammon, Charlene Blackwood, Linda Wetzel, Marilynn Strong, Donnie Carter, Robert Goode, and Lee Martin; Petitioner's Exhibits 3, 4, 15, 16, 21,

26, 30, 33, 35 through 37, 42, 44, 51, 52, 56, 61, 63, 67, 71,

77, 79a, 79b, 80, 83, 91, 96, 97, 99, 100, 102, and 110 were

offered and received into evidence. Ms. Blackwood testified in her own behalf and presented the testimony of George Segna, Gary Itskowitz, Dean Heminger, Maria Rouco, Sarah Kanner, Nelsi Alvarez, and Lee Martin; Respondent's Exhibits 1, 3, 8, 17

through 19, 25, 33, 37, 38, and 45 were offered and received into evidence. Official recognition was granted to School Board Rule 4.9, Employee Disciplinary Guidelines.

The three-volume transcript of the proceedings was filed with the Division of Administrative Hearings on September 22, 2006. After having been granted an extension of time, the parties timely filed their proposed findings of fact and conclusions of law, which have been considered in the preparation of the Recommended Order.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the final hearing, the stipulation of the parties, and the entire record of this proceeding, the following findings of fact are made:

1. Ms. Blackwood has been employed by the School Board as a construction project manager on July 2, 1996. On July 1, 1997, Ms. Blackwood was made Senior Supervisor of Inspections and Code Compliance in the School Board's Building Department; the title of her position changed in 2001, and at the times material to this proceeding, Ms. Blackwood's position was Senior

   Supervisor for Building Inspectors in the Building Department. Her job responsibilities included supervising building inspectors whose function it was to inspect School Board construction projects for compliance with the various building codes governing such construction.

2. Ms. Blackwood earned a bachelor's degree in design and a masters degree in construction management from the University of Florida. At the times material to this proceeding, she held a Florida building inspector's license, a building code administrator's license, a building contractor's license, and an interior designer's license. She has approximately 20 years' experience in building design and construction. Prior to becoming Senior Supervisor for Building Inspectors,

   Ms. Blackwood had no experience as a building inspector; her experience in the construction field was as a project manager.

3. Ms. Blackwood is a member of the Broward Teachers Union - Technical Support Personnel ("BTU-TSP").

4. The BTU-TSP and the School Board entered into a Collective Bargaining Agreement that includes sections setting forth the rights of the School Board and the procedures that must be observed with respect to due process and discipline.

5. The provisions defining "Management Rights" are found in Article Four of the Collective Bargaining Agreement and provide in pertinent part:

   1. It is understood and agreed that the District possesses the right and responsibility to operate and manage all schools, departments and programs and to direct the work forces.

      
      

      The rights, powers, authority, and discretion necessary for the District to carry out these rights and responsibilities shall be limited only by the express terms of this Collective Bargaining Agreement and shall be exercised in a manner consistent with this Collective Bargaining Agreement and Florida. In matters not covered by this Collective Bargaining Agreement, the District shall have the clear right to make administrative decisions.

      
      

   2. Consistent with this Collective Bargaining Agreement, these management rights shall include, but not be limited, to the following:

* * *

1. Direct its employees and establish standards of performance and conduct, including the right to make reasonable rules and regulations for the purpose of efficiency, safe practices and discipline.

   
   

2. Take disciplinary action for just cause.[2]

3. The provisions governing "Due Process & Discipline" are found in Article Nine of the Collective Bargaining Agreement and provide in pertinent part:

   1. Progressive Discipline: The parties

      agree to the principles of progressive discipline. Disciplinary action, for the most part, shall be administered in a manner to correct behavior that is in violation of policies, procedures and established practices. Discipline shall be administered

      for just cause and not in a manner that is demeaning or degrading.

      
      

      b. Meetings and Notifications: Disciplinary action shall be administered within twenty (20) working days from the date the violation occurred or when

      the violation was first known to have occurred. For any meeting scheduled for the purpose for taking disciplinary action, the department shall provide the employee with written notification of the violation

      and schedule a meeting where the circumstances surrounding the violation shall be discussed. This meeting shall be scheduled no sooner than three (3) working days after the employee receives such notification. . . .

      
      

      * * *

      
      

      1. During the Meeting:

         
         

         1. The conference is intended to provide the employee with an explanation of the charges and the basis for the charges. Any relevant questions that the employee asks shall be answered to the best of the supervisor's ability. The employee shall be given an opportunity to respond, including their own explanation of the incident or mitigating circumstances, either verbally or in writing.

         
         

         * * *

         
         

      2. Discipline:

      
      

      1. Any discipline of an employee shall be for just cause. Disciplinary action may be taken in the form of a verbal reprimand, written reprimand, suspension, demotion or discharge.

         
         

      2. No action against an employee shall be taken on the basis of a complaint by any individual nor any notice of such action or

      complaint shall be included in the employee's personnel file, unless the matter is first reported to the employee in writing and the employee has had the opportunity to discuss the matter with his/her supervisor.[3]

      
      

4. Ms. Blackwood's immediate supervisor in the Building Department was the Chief Building Official ("CBO"). The CBO is the final authority who is responsible, at the local level, for interpreting the Florida Building Code ("Code") as it applies to School Board construction projects. During her time as Senior Supervisor, Ms. Blackwood was supervised by Robert Goode, except for a period of four or five months when Alan Gilbert served as the CBO, and by Lee Martin.4 Ms. Blackwood had a difficult relationship with each of the CBOs; she considered Mr. Goode unqualified for the position of CBO; she did not like

   Mr. Gilbert's allowing the building inspectors under her supervision to avoid the chain of command and go directly to him with any concerns they might have; she did not agree with many of Mr. Martin's policies and decisions and she thought he was an ineffective leader.

5. In September 2001, Ms. Blackwood and two of her subordinate building inspectors, Maria Rouco and Sarah Kanner, filed suit against the School Board, alleging, among other things, that they should be accorded whistle-blower status and that they had been subjected to discrimination, harassment, and

   failure to promote. The lawsuit caused a split among the building inspectors under Ms. Blackwood's supervision, with some supporting the lawsuit and others opposing it. At or about the time the suit was filed, some of Ms. Blackwood's subordinates noticed that Ms. Blackwood's behavior in the workplace changed and that the atmosphere in the Building Department's offices became strained, tense, and chaotic. The lawsuit was finally resolved in November 2004, and resulted in a verdict against Ms. Blackwood.

6. From the summer of 2001 until she was reassigned in February 2005, Ms. Blackwood's effectiveness as a leader and her conduct in the workplace was called into question in evaluations, letters of reprimand, informal communications from her supervisors, non-disciplinary counseling sessions, and formal and informal complaints submitted by several of her subordinates.

   Ms. Blackwood's relationship with Mr. Goode

   
   

7. Both Ms. Blackwood and Mr. Goode applied for the position of CBO with the School Board in 2001, and Mr. Goode was ultimately chosen for the position. Their working relationship was somewhat confrontational when he first became her supervisor, but the level of confrontation escalated as time progressed. Ms. Blackwood believed that Mr. Goode had misrepresented his qualifications for licensure to the

   Department of Business and Professional Regulation and was not qualified to hold either the license that was issued to him or the position of CBO.

8. Mr. Goode issued a written directive that building inspectors should stop doing any plan reviews for the projects for which they were responsible. Several months after the directive was issued, Mr. Goode learned that building inspectors under Ms. Blackwood's supervision continued to be involved in plan review. Mr. Goode discussed this with Ms. Blackwood and told her to follow the directive and send it to all of the employees under her supervision.

9. On or about August 7, 2002, Ms. Blackwood directed one of the building inspectors under her supervision to take a dispute with an architect over an inspection to the Florida Department of Education. This instruction was inconsistent with the procedures Mr. Goode had established for resolving disputes between building inspectors and architects, which procedures required that the issue first be considered at the local level. In an e-mail dated August 7, 2002, Mr. Goode wrote Ms. Blackwood to advise her that he considered this an act of insubordination and that he intended to schedule a meeting with her in the near future to discuss the matter. This incident did not, however, result in disciplinary action being imposed against

   Ms. Blackwood.

10. On or about August 23 and 26, 2002, Ms. Blackwood become involved in a heated e-mail exchange with Israel Rodriguez-Soto, a project manager, regarding the accessibility requirements of the Americans With Disabilities Act being met at Elementary School X and the procedure for resolving disputes over whether a building met the requirements of the Florida Accessibility Code for Building Construction. Ms. Blackwood noted in her e-mail to Mr. Rodriguez-Soto that "MR. GOODE'S PROCEDURE [for resolving disputes over code interpretation] ONLY REFERS TO THE DEPARTMENT OF EDUCATION INTERPRETATIONS."5 (Emphasis in original.) Both Mr. Rodriguez-Soto and

    Ms. Blackwood sent a copy of their e-mails to Mr. Goode, who responded in an e-mail to Ms. Blackwood dated August 27, 2002:

    Please refrain from critiquing procedures I have issued with statements such as

    "Mr. Goode's procedures only refers to the Department of Education interpretations." This is the second recent incident regarding misinformation you provided related to the Code Interpretation Dispute Procedure and I consider such action to be insubordinate conduct. . . . [I]t troubles me that you, as a senior supervisor, did not instruct

    Mr. Fallon to follow the procedure . . . .

    I plan to meet with you soon to discuss this matter in greater detail.[6]

11. Mr. Goode considered Ms. Blackwood's job performance to be consistently unacceptable in several areas, specifically in her failure to implement his policies regarding building inspectors not being involved with plan reviews and regarding

    the dispute resolution procedures. Mr. Goode prepared draft evaluations of Ms. Blackwood's performance for the 2001-2002 and 2002-2003 school years, but he was advised by the School Board's personnel office not to finalize the evaluations because a poor performance evaluation could be considered retaliation for the lawsuit she had filed against the School Board and an attempt to tarnish her employment record. Mr. Goode, therefore, never finalized these two performance evaluations.

12. On two or three occasions, Mr. Goode met with

    
    

    Ms. Blackwood and told her that he expected her to follow his directives, policies, and procedures. He was also concerned because he perceived that she had a confrontational relationship with the general contractors, architects, and engineers who worked on School Board projects. Mr. Goode did not, however, initiate formal disciplinary proceedings against Ms. Blackwood during the time he was her supervisor.

13. During the period extending from October 2002 through mid-January 2003, Ms. Blackwood corresponded by e-mail with Charlotte Greensbarg, an assistant to a member of the School Board, and with Jilda Unruh, a reporter for a local television station, and provided them with documents she obtained from the Building Department. Ms. Blackwood did not inform Mr. Martin, her supervisor, that she was providing these documents and information about the inner workings of the Building Department.

    Dr. Frank Till, the Superintendent of Schools for Broward County, became aware of Ms. Blackwood's correspondence and asked for an explanation of her intention. Ms. Blackwood responded with a lengthy memorandum about the problems she believed existed with the backlog of punch lists for School Board construction projects that had not been completed and with other matters handled by the Building Department. This memorandum did not provide an answer acceptable to Dr. Till, and he again requested an explanation in a memorandum dated May 27, 2003, but Ms. Blackwood refused to provide any additional explanation.

    Ms. Blackwood was not disciplined for her actions. Ms. Blackwood's relationship with Mr. Martin

14. Both Ms. Blackwood and Mr. Martin applied for the position of CBO after Mr. Gilbert left the position. Although Mr. Goode returned as acting CBO, Mr. Martin was ultimately offered the position. The working relationship between

    Mr. Martin and Ms. Blackwood was initially amicable but eventually deteriorated and ultimately became contentious and adversarial.

15. In May 2003, shortly after he became CBO, Mr. Martin requested a non-disciplinary meeting with Ms. Blackwood. He was aware that there was hostility among some of the building inspectors under her supervision, and he called the meeting to discuss ways she could improve the working relationships with

    these employees. Mr. Martin asked Marilynn Strong, who was at the time coordinator of evaluations in the School Board's Human Relations Department, to attend the meeting. The meeting started out well, but, according to Ms. Strong, Ms. Blackwood began shouting at Mr. Martin, telling him that she was disappointed in his leadership. She appeared very angry, and Ms. Strong was shocked at Ms. Blackwood's behavior.

16. Ms. Strong received a number of complaints from several of the building inspectors under Ms. Blackwood's supervision, and, in the fall of 2003, she, Mr. Martin,

    Ms. Blackwood, and Gary Itskowitz, Ms. Blackwood's BTU-TSP representative, met to discuss these complaints. Ms. Strong shared with Ms. Blackwood that the complaints involved perceived harassment and intimidation, creation of a bad working environment caused by Ms. Blackwood's yelling, and interference with the building inspectors' work. Ms. Strong advised

    Ms. Blackwood that the employees felt that their work environment was adversely affecting them personally and professionally and that Ms. Blackwood's behaviors were continual, pervasive, and offensive. Finally, Ms. Strong advised Ms. Blackwood that several of building inspectors under her supervision had asked for transfers from her section.

17. On January 28, 2004, Mr. Martin issued two letters of reprimand to Ms. Blackwood, in which he advised her that if her

    actions were repeated, she would be subject to discipline, "up to and including termination." One letter was a reprimand for "Failure to Know or Disclose Information" and referred to a letter dated August 29, 2003, in which Ms. Blackwood challenged Mr. Martin's decision to issue Temporary Certificates of Occupancy for buildings at McArthur High School. The second letter was a reprimand for "Exceeding Authority" and referred to Ms. Blackwood's directing the principal of an elementary school to occupy portable buildings before a Certificate of Occupancy, which could be signed only by the CBO, had been issued. In addition to issuing the letters, Mr. Martin held a counseling session with Ms. Blackwood on January 28, 2004. Ms. Blackwood filed grievances with respect to the two reprimands, asserting that they were untimely under the 20-day rule in the Collective Bargaining Agreement; the grievances were successful, and the letters of reprimand were rescinded.

18. In an e-mail dated January 20, 2004, to John Hamrich of the Florida Department of Education, Ms. Blackwood complained that Mr. Martin had "reassign[ed] all of the building inspectors to other construction projects replacing [building] inspectors at all on-going capital construction" and instituted a policy to rotate building inspectors from one project to another every

    60 days.7 Ms. Blackwood pointed out what she perceived to be a number of problems with Mr. Martin's new policy, and, under the

    guise of asking for clarification of what she considered to be the negative effect of these changes, Ms. Blackwood included numerous charges of irregularities in the running of the Building Department. Ms. Blackwood also accused Mr. Martin of allowing new facilities to open "with outstanding life safety violations" by issuing Temporary Certificates of Occupancies [sic]."8

19. In a memorandum to Ms. Blackwood, dated February 18, 2004, sent through Kenneth Klink, the School Board's Chief Operating Officer, and carrying the heading of "Reprimand - Rotation of Inspectors," Mr. Martin stated that he considered the e-mail message to Mr. Hamrick "extremely insubordinate, and detrimental to the school district" and that "[i]n the future, continued insubordination will result in disciplinary action, up to and including termination." Ms. Blackwood received the letter on March 8, 2004.9

20. Ms. Blackwood filed a grievance with respect to the March 8, 2004, letter of reprimand on the grounds that it was untimely under the 20-day rule in the Collective Bargaining Agreement. A meeting was held on June 9, 2004, with Mr. Martin, Ms. Blackwood, Mr. Itskowitz, and Linda Wetzel, Director of the School Board's Employee Relations Department. The letter of reprimand and the grievance were discussed, and Mr. Martin stated that he had sufficient grounds to issue Ms. Blackwood a

    letter of reprimand. It was determined, however, that the letter of reprimand had not been issued timely under the provisions of Article 9 of the Collective Bargaining Agreement. The grievance was, therefore, successful, and the letter of reprimand was rescinded.

21. During the June 9, 2004, meeting, Mr. Itskowitz stated that the BTU-TSP had received a number of complaints from employees in Ms. Blackwood's department, and he asked if he could bring in a mediator to work with Ms. Blackwood and the employees that she supervised in an attempt to resolve some of the conflicts. Ms. Wetzel and Mr. Martin agreed that this would be beneficial, but the mediation was never held.

22. Ms. Blackwood filed a complaint with the Inspector General of the Florida Department of Education on October 4, 2004, in a letter headed "Hurricane Shelters and Other Outstanding Construction Issues at Broward County Schools." In the complaint, she criticized Mr. Martin in particular and the district administration in general for the failure to complete hurricane shelters with proper safeguards and to turn them over to local emergency organizations for use. Ms. Blackwood pointed out that she had brought the problems to the attention of

    Mr. Martin and others for several years and that no action had been taken. The Inspector General wrote to Mr. Till and requested that the matter be investigated at the local level and

    a report prepared for his office no later than March 31, 2005. The results of the investigation are not included in the record of this hearing.

23. When Mr. Martin first assumed the position as CBO, he was advised by the central office that Mr. Goode and Mr. Gilbert had had problems with Ms. Blackwood and that he should consider having a series of counseling sessions to attempt to resolve any problems Ms. Blackwood was having. Mr. Martin had a number of non-disciplinary counseling sessions with Ms. Blackwood, which were arranged by the School Board's personnel department or its employee relations department and were attended by either Linda Wetzel or Marilyn Strong. Mr. Martin's purpose in conducting these counseling sessions with Ms. Blackwood was to address what he perceived as her ongoing insubordinate, subversive, and argumentative conduct in the workplace. The counseling sessions were not productive, however, because Ms. Blackwood was confrontational and argumentative. Mr. Martin believed that Ms. Blackwood's way of conducting herself in the workplace had not altered at the time he left his position as CBO in

    February 2005.

    
    

24. Mr. Martin memorialized one non-disciplinary counseling session that was held on December 9, 2004, with

    Ms. Blackwood regarding "her attitude toward her job role in the Building Department, and the specific parameters of her job

    responsibilities."10 Lynn Strong, of the School Board's Department of Human Resources, also attended the meeting.

    Mr. Martin summarized Ms. Blackwood's conduct during the meeting as follows:

    During the meeting, Ms. Blackwood dominated the conversation and continually turned it around to a discussion of various people not meeting her expectations or managing the Building Department in the manner she thinks is appropriate. Given that the purpose of the meeting, as stated at the beginning, was to discuss how the Building Department could move forward in a unified manner toward common goals, it is significant that at no time during the conversation, which lasted for roughly an hour and fifteen minutes, did Ms. Blackwood ever make any comments pertaining to the effective functioning of the organization, or reducing the levels of stress and animosity that exist in it as a result of her insistence on having her own way. All of her comments were directed at how people, me included, should change to conform to her way of thinking and performing their job duties. Until

    Ms. Blackwood chooses to help unify and improve the Department rather than criticize and undermine it, she will not be an effective supervisor.[11]

    Mr. Martin scheduled another meeting with Ms. Blackwood for December 14, 2004, in order to discuss the parameters of her job responsibilities, but the evidence does not reflect that this meeting was held.

25. At some point during Mr. Martin's tenure as CBO,

    
    

    Ms. Blackwood filed a complaint against him with the Department of Business and Professional Regulation, the agency responsible

    for issuing and regulating the licenses held by Mr. Martin. In her complaint, Ms. Blackwood accused Mr. Martin of having issued Temporary Certificates of Occupancy for school buildings that were in violation of the Code. The Department of Business and Professional Regulation investigated the complaint and found that there was no probable cause to institute disciplinary proceedings against Mr. Martin. Ms. Blackwood also filed complaints against two other co-workers in the Building Department.

26. Mr. Martin prepared performance appraisals for

    
    

    Ms. Blackwood for the 2003-2004 and 2004-2005 school years, with an overall rating of effective.12 Mr. Martin rated Ms. Blackwood "effective" in all areas of each appraisal except "leadership"; Mr. Martin rated Ms. Blackwood "ineffective" in this category in both appraisals, commenting in the 2003-2004 school year appraisal that Ms. Blackwood "[a]ctively challenges and undermines decisions and authority of Chief Building Official" and in the 2004-2005 school year appraisal that "Ms. Blackwood is frequently argumentative rather than collaborative with respect to coworkers and stakeholders; contributes to a departmental atmosphere that is strained, and where communication is impeded."13 Even though Ms. Blackwood's overall appraisal rating was "effective," she filed grievances with respect to both performance appraisals. The grievances had not

    been resolved as of the date of final hearing in this case, so the performance appraisals have not been finalized.

27. On or about February 15, 2005, Mr. Martin discovered a copy of an anonymous document identified as "Letter to the Editor" circulating around the employees of the Building Department. The letter purported to be a response to comments by Mr. Martin to the press to the effect that the Building Department was dysfunctional. The letter included comments critical of the School Board, School Board construction project managers, "influential builders, architects and engineers," and district, area, and school site staff for "preventing the School Board Building Department from performing their duties as required by State Statute/law, including the opening of safe schools for occupancy," and it implied that Dr. Till had a conflict of interest to the extent that he directly supervised the Building Department and was also responsible for ensuring that the Broward County schools opened on time.14 The author of the letter, whose identity was not known in February 2005 but who was later revealed to be Ms. Blackwood, included details of specific incidents that she considered inappropriate and a number of complaints regarding the way certain issues were handled by the School Board or the school district's administration. Mr. Martin considered the allegations in the letter to be sufficiently serious that he wrote an e-mail to the

    Building Department staff trying to reassure them and encourage them to continue doing their jobs to the best of their ability.

28. The "Letter to the Editor" that was circulating around the Building Department on or about February 15, 2005, was a draft that Ms. Blackwood provided only to the union for comment and to the Building Department's union steward; Ms. Blackwood did not put the document in general circulation. Ms. Blackwood wrote the letter because of her frustration over quotes attributed to Mr. Martin that appeared in a newspaper and because she thought that Mr. Martin was one of the reasons the Building Department was dysfunctional. At the time she provided the document to the union, Ms. Blackwood did not know whether she would send it to the newspaper for publication, and she did not, in fact, do so.

    Ms. Blackwood's relationship with building inspectors under her supervision

    
    

29. Ms. Blackwood's working relationship with the building inspectors under her supervision was generally good when she first became Senior Supervisor of Building Inspectors in 1999. In late 2001 and early 2002, several of the building inspectors under Ms. Blackwood's supervision began experiencing problems in their working relationship with her. The working environment became very strained, and friction developed between

    Ms. Blackwood and some of the building inspectors. The tense

    atmosphere apparently coincided with the hiring of Susan Kanner and Maria Rouco and the filing of the lawsuit against the School Board by Ms. Blackwood, Ms. Kanner, and Ms. Rouco.

30. Several building inspectors felt intimidated by Ms. Blackwood and believed that they faced the threat of retribution if they disagreed with Ms. Blackwood or her co- litigants. A rumor circulated among the building inspectors

    that Mr. Goode had been personally named as a defendant in the lawsuit, and several of the building inspectors under

    Ms. Blackwood's supervision feared that, if they did not agree with her interpretation of the Code, they would be included as defendants in the lawsuit. As it turned out, the rumor regarding Mr. Goode's being named a do-defendant was false, but it nonetheless had the effect of increasing the tension in the Building Department.

31. Building inspectors must be licensed by the state as building inspectors, and they often hold several additional licenses relating to the construction trades. They must use their own judgment to determine whether particular construction satisfies code requirements and to determine how a violation should be corrected. The perception of several of the building inspectors was that Ms. Blackwood expected them to perform inspections and fail any work that did not conform to

    Ms. Blackwood's interpretation of the Code. After they learned

    that Ms. Blackwood had filed a complaint with the Department of Business and Professional Regulation against Mr. Martin, several of the building inspectors under Ms. Blackwood's supervision feared that, if they did not conform to Ms. Blackwood's interpretation of the Code, their licenses would be in jeopardy. In fact, several of the building inspectors feared retribution from Ms. Blackwood because they believed she was implicitly threatening to report them to the Department of Business and Professional Regulation when she emphasized during staff meetings that their licenses and their jobs would be jeopardized if they failed to enforce the applicable statutes, rules, and codes according to her interpretation.

32. Several of the building inspectors also experienced stress and felt intimidated because Ms. Blackwood, Ms. Kanner, and Ms. Rouco routinely sent accusatory e-mails that required responses from the building inspectors to defend their decisions and because Ms. Blackwood frequently yelled at some of the building inspectors in front of other employees.

33. In a letter dated August 13, 2003, Jerolie Strong, a building inspector supervised by Ms. Blackwood, wrote a letter to the director of the School Board Office of Equal Educational Opportunities complaining of ongoing problems with

    Ms. Blackwood. Although Ms. Strong indicated in the letter that the problems she had with Ms. Blackwood were of long duration,

    she focused on an incident that occurred on August 13, 2003, in which Ms. Blackwood wrongly accused Ms. Strong of not following the appropriate procedures when doing inspections and, according to Ms. Strong, yelled at her in front of the office staff and some of Ms. Strong's fellow building inspectors and continued yelling at her in a conference room. Ms. Strong felt that, at least in part, Ms. Blackwood's behavior towards her was the result of discrimination on the basis of race. Ms. Strong is not aware of anything that was done in response to her complaint.

34. In an e-mail dated February 4, 2004, Robert Hamberger, a building inspector under Ms. Blackwood's supervision, wrote a letter of complaint to Mr. Martin about misinformation

    Ms. Blackwood provided to the building inspectors under her supervision. Mr. Hamberger summarized information purportedly provided by Ms. Blackwood in staff meetings held between June 3, 2003, and December 3, 2003, that he considered incorrect.

    Mr. Hamberger concluded the e-mail with the following concerns:

    
    

    One, we are being coerced and intimidated to perform our inspections contrary to the intent of the [Florida Building] code resulting in added expense and delays to projects based on incorrect interpretations. Two, it is more than apparent that

    Ms. Blackwood's objectivity and that of Ms. Kanner's and Ms. Rouco's has been lost.

    Three, all three have demonstrated numerous times in the field and at staff meetings a gross lack of experience, which lead to some

    of these errant interpretations. We see a true conflict of interest in how these three function. They are undermining the very system that they are paid to service for the purposes of personal gain. The bottom line is the creation of disharmony and confusion amongst the building inspectors.[15]

    
    

    In Mr. Hamberger's view, the Code could be interpreted several ways, and building inspectors had the discretion to interpret gray areas of the Code in the way they thought appropriate.

    Mr. Hamberger believed that the goal of Ms. Blackwood, Ms. Kanner, and Ms. Rouco was to bring the School Board's building program to a halt to further their chances of

    prevailing in their lawsuit and that Ms. Blackwood insisted on overly-strict interpretations of the Code in order to slow down construction.

35. Mr. Hamberger prepared a memorandum dated February 27, 2004, directed to Michael Garretson, the School Board's Deputy Superintendent of Facilities and Construction Management. The memorandum was signed by Mr. Hamberger, Al Jackson, Valeria Oscheneek, Jose Sadin, Gigi (Jerolie) Strong, and Irv Tutunick, who were all building inspectors under Ms. Blackwood's supervision. In the memorandum, these individuals complained about the deterioration of the working conditions and the extremely low morale in the Building Department, which they attributed to the Ms. Blackwood's management style. They pointed out that, in their view, "retribution and intimidation

    are status quo" for anyone opposing Ms. Blackwood, pointing out the she routinely reminds anyone disagreeing with her that their licenses could be in jeopardy if they failed to enforce the Code, statutes, and rules.16 The building inspectors accused Ms. Blackwood of using bullying tactics, of discriminating against building inspectors who do not agree with her, of attempting to undermine the CBO, Mr. Martin, by standing over his shoulder "hoping he will make an error in judgment, so that she can report him to the Department of Business and Professional Regulation or the DOE [Department of Education]."17 Finally, the building inspectors stated that they could not understand why the situation with Ms. Blackwood had been allowed to continue, and they requested that "some action . . . be taken soon to correct the abhorrent working conditions prevalent in our Department."18

36. On March 3, 2004, Mr. Martin submitted a Personnel Investigation Request to the Special Investigative Unit of the School Board's Office of Professional Standards and referred the complaint of the six building inspectors for investigation. The report of the investigator from the Special Investigative Unit found no evidence that Ms. Blackwood "ha[d] created a hostile work environment by requiring inspectors to follow state guidelines."19 The inspector did, however, note that his

    investigation revealed some issues that needed to be addressed by a labor relations expert or senior management.

37. Mr. Hamberger complained to Mr. Martin of a negative encounter with Ms. Blackwood on November 19, 2004. On that date, Ms. Blackwood accused Mr. Hamberger of perjuring himself in his testimony at the trial of Ms. Blackwood's lawsuit.

    Ms. Blackwood made the accusation in a loud voice in the presence of at least one other employee of the Building Department. This encounter was one of the items addressed in the non-disciplinary meeting Mr. Martin held with Ms. Blackwood on December 9, 2004; according to Mr. Martin, Ms. Blackwood denied in this meeting that her comments to Mr. Hamberger had been heated or acrimonious.

38. In late 2004, Mr. Hamberger found the working conditions created by Ms. Blackwood so stressful and onerous that he requested and was given a transfer to the Building Department section supervised by Ron Morgan.

39. Ms. Oscheneek, one of the building inspectors who signed the February 24, 2004, complaint against Ms. Blackwood, found working under Ms. Blackwood's supervision to be very stressful. She felt fearful, very uncomfortable, and intimidated by Ms. Blackwood's "screaming" at her in the office in front of others, and she felt threatened and was afraid that Ms. Blackwood would report her to Department of Business and

    Professional Regulation if she made a mistake in her inspections or disagreed with Ms. Blackwood or Ms. Kanner or Ms. Rouco.

    Ms. Oscheneek felt that her effectiveness as a building inspector was negatively influenced by Ms. Blackwood, and, in December 2004, on the advice of her doctor, Ms. Oscheneek transferred to the group of building inspectors supervised by Ron Morgan.

40. Irving Tutunick, a long-time building inspector with the School Board, considered Ms. Blackwood a very good supervisor until approximately 2001, when he perceived that the hiring of Ms. Kanner and Ms. Rouco created a split among the building inspectors supervised by Ms. Blackwood. In

    Mr. Tutunick's view, the workplace became very uncomfortable for him, especially since he believed that Ms. Blackwood did not approve of the way he carried out his job responsibilities. In particular, Ms. Blackwood treated as a major offense any criticism of Ms. Kanner's or Ms. Rouco's Code interpretations, and, in Mr. Tutunick's view, the "wrath of god" would rain down from Ms. Blackwood if any building inspector disagreed with their interpretations. Mr. Tutunick also was uncomfortable in the workplace because of Ms. Blackwood's tendency to, in

    Mr. Tutunick's words, "fly off the handle and chastise [his] co- workers" in front of the entire office. Mr. Tutunick also felt that Ms. Blackwood's management style adversely affected his

    ability to do his job because he perceived that Ms. Blackwood considered the building inspectors who did not agree with her or Ms. Rouco ignorant about construction and the process of inspections and Code interpretation. Mr. Tutunick signed the February 27, 2004, memorandum to Mr. Garretson complaining about the hostile working environment created by Ms. Blackwood. He retired from the School Board in February 2005.

41. Several of the building inspectors supervised by Ms. Blackwood considered her an excellent supervisor who supported her staff, tried to improve her staff's performance, and took seriously her responsibility to ensure that the

    buildings constructed for the School Board met the requirements of the Code and ensured the life health and safety of the students and staff who would be using the buildings. They agreed that there was a great deal of yelling in the Building Department because that type of behavior is typical for the construction industry.

42. All of the building inspectors under Ms. Blackwood's supervision agreed that building inspectors are under a great deal of stress trying to deal with the competing goals of ensuring that school buildings meet Code requirements but are constructed in a cost-effective way and meet deadlines for opening. At times, building inspectors are under pressure to pass inspections in order to avoid delays in project completion.

    Ms. Blackwood frequently addressed Code interpretation in staff meetings because she was concerned with inconsistency among the building inspectors in their Code interpretations.

    Ms. Blackwood's working relationship with clerical and secretarial staff

    
    

43. During his exit interview in February 2005, Mr. Martin told Donnie Carter, Deputy Superintendent of Operations for the School Board, of the problems he had experienced with

    Ms. Blackwood and of his concern about the negative effects of Ms. Blackwood's conduct. Mr. Martin believed that Mr. Carter decided to initiate a preliminary investigation into the Building Department as a result of the information he provided to Mr. Carter during his exit interview.

44. On February 16, 2005, Mr. Carter was visiting the Building Department offices, when several members of the Building Department's clerical staff requested a meeting with him. Eight individual staff members met with Mr. Carter for approximately one and one-half hours, and they advised

    Mr. Carter of concerns they had regarding their working relationship with Ms. Blackwood and of the negative impact Ms. Blackwood was having on their job performance and, in some cases, their health. There were, among others, specific complaints that Ms. Blackwood frequently yelled at co-workers

    and staff in the workplace; caused some employees to cry because

    of her harsh treatment of them; engaged in tyrannical actions as supervisor; repeatedly belittled management, and was often disrespectful to her supervisor, Mr. Martin.

45. As a result of this meeting, Mr. Carter initiated a full investigation of the overall operation of the Building Department but did not specifically target Ms. Blackwood.

    Mr. Carter's purpose in conducting the investigation was to determine the cause of the negative working environment in the Building Department and the reasons for the delays in opening new buildings. Mr. Carter asked the employees in the Building Department to complete a questionnaire that contained eight questions that inquired about their perceptions of the leadership and the working environment in the Building Department; any statements or actions of a supervisor that they wanted to point out; whether they had witnessed unprofessional or abusive conduct by a supervisor or co-worker and, if so, why they had not previously come forward; whether the working environment was supportive or hostile to productivity and employee satisfaction; whether supervisors encouraged good working conditions and cooperation and teamwork among employees; what could be done to improve the working environment and quality of supervision; and whether the employee's supervisor treated him or her in a supportive, professional manner.

46. After he received responses to the questionnaires, Mr. Carter interviewed each of the individuals. Either

    Ms. Wetzel or Ms. Strong was present at these meetings.

    
    

47. The information Mr. Carter received from the Building Department staff indicated to him that Ms. Blackwood was responsible for the low morale and the negative performance in the Building Department because of her perceived unprofessional conduct, her extreme lack of leadership, her lack of support for her staff, the confrontational way she conducted herself in the workplace, the tone of voice in which she spoke to people, the demeaning manner in which she spoke to staff, and her disrespectful attitude toward her supervisor, Mr. Martin.

48. In or around February 16, 2005, Mr. Carter was advised of three specific instances of alleged misconduct by

    Ms. Blackwood involving three employees of the Building Department. The first incident occurred on February 16, 2005, and involved Jerolie Strong. During a conversation with

    Ms. Blackwood, Ms. Strong told her that she intended to ask Mr. Martin to sign an application for her to receive a

    provisional license to perform plan reviews. At the time of her discussion with Ms. Strong, Ms. Blackwood was writing an e-mail to the BTU-TSP about certain matters at the Building Department, and she included in the e-mail the statement that Mr. Martin was "signing certifications for inspectors to get provisional

    licenses" to perform plan reviews.20 Ms. Strong saw the statement and became very upset because this was not what she had told Ms. Blackwood. In Ms. Strong's view, Ms. Blackwood's behavior in this instance was typical and part of an ongoing pattern of misinterpreting and passing along a distorted version of something that she had been told. Ms. Strong told

    Ms. Blackwood that the statement she had made in the e-mail about Mr. Martin was incorrect, and Ms. Blackwood corrected the statement in a subsequent e-mail. Ms. Strong reported this incident to Mr. Carter as part of an ongoing pattern of misrepresentation on Ms. Blackwood's part.

49. The second incident occurred on or about February 4, 2005, and involved Diane Clark, a secretary who worked in

    Ms. Blackwood's section. Ms. Clark reported this incident to Mr. Carter in an e-mail dated February 18, 2005. Ms. Clark's encounter with Ms. Blackwood occurred when Ms. Clark passed along to Ms. Rouco some concerns Mr. Martin had regarding the way Ms. Rouco had filled out a "Property Pass" form and regarding Ms. Rouco's request for compensatory-leave time.

    Ms. Clark gave Ms. Rouco Mr. Martin's message, and Ms. Blackwood interjected her opinion that Mr. Martin was incorrect with respect to both the request for compensatory-leave time and the procedure for completing the "Property Pass" form. Ms. Clark explained the rationale for Mr. Martin's interpretation of the

    requirements for the "Property Pass" to Ms. Blackwood, and Ms. Blackwood continued disagreeing with Ms. Clark in what Ms. Clark perceived to be a loud voice. Ms. Clark got up from her desk and started to walk away, and Ms. Blackwood began to yell at her. Ms. Clark responded to Ms. Blackwood in a raised voice and left the building. The incident was overheard by everyone present in the office at the time.

50. Ms. Clark reported another incident to Mr. Carter in e-mails dated February 17 and 18, 2005, involving

    Ms. Blackwood's reaction to a negative comment about Irene Kuziw, Mr. Martin's secretary, that Ms. Rouco made to Dean Heminger, a building inspector that Ms. Blackwood supervised. At Mr. Martin's request, Ms. Kuziw approached Mr. Heminger's desk, which was next to Ms. Rouco's desk, and asked Mr. Heminger to do two inspections as a special assignment from Mr. Martin.

    After Ms. Kuziw left their work area, Ms. Rouco questioned Mr. Heminger about his willingness to take an assignment from Mr. Martin when Ms. Blackwood was his supervisor. Ms. Rouco then commented to Mr. Heminger that Ms. Kuziw was "a serpent with two legs" or a "two-legged serpent." Ms. Kuziw did not hear the remark, but Ms. Clark overheard the comment.

    Ms. Blackwood was not present when Ms. Rouco first made the comment, but, approximately 15 minutes later, Ms. Rouco repeated the comment about Ms. Kuziw in Ms. Blackwood's presence, and

    Ms. Blackwood chuckled at the remark. Ms. Clark witnessed this incident and reported it to Mr. Martin and to Ms. Kuziw.

    Disciplinary procedures followed by Mr. Carter

    
    

51. Based on the information he gathered during his investigation and on the incidents that occurred in February 2005, specifically the February 15, 2005, incident involving Ms. Strong and the February 4, 2005, incident

    involving Ms. Clark, Mr. Carter decided that Ms. Blackwood had committed misconduct in office and insubordination and that the appropriate discipline for her actions should be termination of her employment with the School Board. Mr. Carter reached the conclusion that termination was the appropriate discipline by considering the history of Ms. Blackwood's employment with the School Board over the previous five years, and he concluded that the behavior complained of by the staff and building inspectors in February 2005 was ongoing and formed a consistent pattern of behavior on Ms. Blackwood's part in her position as a supervisor.

52. On February 17, 2005, Mr. Carter removed Ms. Blackwood from her duties as a Senior Supervisor of Building Inspectors and advised her in a memorandum that, effective immediately, she was assigned to administrative duties.

53. Mr. Carter notified Ms. Blackwood in a letter dated March 10, 2005, that she was to report to his office on

    March 15, 2005, for "a pre-disciplinary meeting regarding your inappropriate supervisory conduct."21 No other conduct or specific incident was included in the notice dated March 10, 2005.

54. Ms. Blackwood and her union representative attended the meeting on March 15, 2005, and Mr. Carter presented

    Ms. Blackwood with the materials he had collected during his investigation. These materials were quite extensive, and

    Ms. Blackwood asked if she could have additional time in which to study the information and formulate her response. They agreed that the pre-disciplinary meeting would be re-convened on April 5, 2005, and that the 20-day time frame in the Collective Bargaining Agreement for imposing discipline would be extended accordingly.

55. At the meeting on April 5, 2005, Mr. Carter identified several areas of concern, which were discussed with

    Ms. Blackwood and to which Ms. Blackwood was allowed to provide an explanation. Specifically, Mr. Carter advised Ms. Blackwood

    of

    
    

    problems with her failure to demonstrate an appropriate leadership style, that she demonstrated a divisive leadership style, that she acted in a loud and threatening manner towards her co-workers, that there was evidence of her favoritism with regard to certain employees under her supervision, that her behavior was having a psychological and medical impact on some of her

    subordinates, that she engaged in threatening behavior regarding reports to the Department of Business and Professional Regulation, that her behavior resulted in multiple employees having to seek medical attention and/or requesting to be removed from under her supervision, that she failed to demonstrate a leadership style that supported the School Board's strategic plan, and that as a result of all of these behaviors, she had lost response among the employees in the Building Department such that it was limiting her ability to lead.[22]

    
    

    Mr. Carter also discussed with Ms. Blackwood the "Letter to the Editor" that circulated in the Building Department in

    February 2005 because, by the time of that meeting, it was known that Ms. Blackwood was the author.23

56. Ms. Blackwood was given the opportunity to respond to the charges presented by Mr. Carter, and she requested that

    Mr. Carter do a follow-up investigation with some of the employees he had previously interviewed. Mr. Carter met again with the employees pursuant to Ms. Blackwood's request.

57. In a letter dated April 29, 2005, and addressed to Jerrod Neal, Field Staff Representative for the BTU-TSP, with a copy sent to Ms. Blackwood, Mr. Carter advised Ms. Blackwood that the letter constituted the 20-day notice of the intent to impose disciplinary action, as required by the terms of the Collective Bargaining Agreement. Mr. Carter continued:

    This letter is to inform you that, after completing the investigation regarding the allegations of inappropriate supervisory

    conduct by Ms. Blackwood, advising

    Ms. Blackwood of the charges and the basis for them, and meeting with you to consider Ms. Blackwood's position, I have decided to recommend that Ms. Blackwood be terminated/discharged from employment with the School Board of Broward County. This recommendation is based upon my determination that Ms. Blackwood has engaged in misconduct including, but not limited to, problems with effective communication, a leadership style inappropriate for a supervisor, violations of the School Board's workplace violence policy, and harassive [sic] conduct which has interfered with the ability of other individuals to perform their work responsibilities and resulted in emotional harm to some employees.[24]

58. In a letter dated May 27, 2005, Mr. Carter transmitted to Ms. Blackwood a letter from Dr. Till advising her that

    Dr. Till was recommending to the School Board that she be terminated from her employment. An Administrative Complaint was attached to the May 27, 2005, letter, and Ms. Blackwood was told that the allegations in this complaint set forth the charges on which the recommendation was based.

59. The School Board voted on June 7, 2005, to initiate termination proceedings with respect to Ms. Blackwood. Summary and ultimate findings of fact

60. Pursuant to the provisions of Article Nine of the Collective Bargaining Agreement, Ms. Blackwood can only be disciplined if the discipline is imposed within 20 days of the date on which a violation occurred. In this case, the evidence

    presented by the School Board is insufficient to establish that Ms. Blackwood committed misconduct in office or insubordination as a result of her conduct occurring on or about February 15, 2005. The incident involving Ms. Blackwood and Ms. Clark occurred on February 4, 2005, outside the 20-day time period.

    Although the incident involving Ms. Strong occurred on February 15, 2005, Ms. Blackwood's including in an e-mail

    information that inaccurately conveyed the statement Ms. Strong made to her about Mr. Martin signing an application for a provisional license does not rise to the level of misconduct, even if it was part of a pattern of distortions by

    Ms. Blackwood. Ms. Blackwood's conduct on this occasion also failed to constitute gross insubordination because there was no evidence presented by the School Board to establish that she acted in violation of an order given by anyone with proper authority. Finally, to the extent that the draft "Letter to the Editor" formed a basis for the School Board's decision to terminate Ms. Blackwood's employment, there is no evidence that Ms. Blackwood committed misconduct by drafting the letter, nor was there any evidence that Ms. Blackwood had been ordered not to communicate to the press regarding the problems that she perceived with the Building Department and the School Board's building program in general.

61. The evidence presented by the School Board regarding Ms. Blackwood's employment history is sufficient to establish that, between 2001 and February 2005, she engaged in acts of misconduct that were sufficiently serious that her effectiveness as a Senior Supervisor of Building Inspectors was severely impaired. The evidence presented by the School Board regarding Ms. Blackwood's employment history is also sufficient to establish that she engaged in numerous acts of insubordination that, taken in the aggregate, rose to the level of gross insubordination. Indeed, the evidence submitted by the School Board is sufficient to establish that, without doubt,

    Ms. Blackwood's conduct in the workplace and as a Senior Supervisor of Building Inspectors was totally unacceptable for an extended period of time. Pursuant to the undersigned's interpretation of the provisions of Article Nine of the Collective Bargaining Agreement, however, Ms. Blackwood cannot be disciplined for events occurring outside the 20-day time period set out in the Collective Bargaining Agreement; but for this conclusion, Ms. Blackwood's ongoing misconduct and insubordination would more than justify termination of her employment with the School Board. In their various attempts to discipline Ms. Blackwood, School Board personnel did not adhere to the disciplinary procedures set forth in the Collective Bargaining Agreement and were, therefore, unable to prevail

    against the grievances Ms. Blackwood filed with respect to each attempt to subject her to discipline. Because the School Board did not submit evidence sufficient to establish that

    Ms. Blackwood committed misconduct in office or insubordination within the 20-day time period set out in Article Nine of the Collective Bargaining Agreement, she cannot now be disciplined for these previous violations.

    CONCLUSIONS OF LAW

    
    

62. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties thereto pursuant to Sections 120.569 and 120.57(1), Florida Statutes (2006).

63. Because this case is a proceeding to terminate

    
    

    Ms. Blackwood's employment with the School Board and does not involve the loss of a license or certification, the School Board has the burden of proving the allegations in the Amended Administrative Complaint by a preponderance of the evidence.

    McNeill v. Pinellas County School Board, 678 So. 2d 476 (Fla. 2d DCA 1996); Allen v. School Board of Dade County, 571 So. 2d 568,

    569 (Fla. 3d DCA 1990); Dileo v. School Board of Lake County, 569 So. 2d 883 (Fla. 3d DCA 1990).

64. Ms. Blackwood is a part of the School Board's managerial staff and is a member of the BTU-TSP. She is, therefore, covered by the Collective Bargaining Agreement

    between the BTU-TSP and the School Board. Although the School Board is empowered by Section 1001.42(5)(a), Florida Statutes, to suspend and dismiss its employees, it is nonetheless required to impose discipline in a manner that is consistent with Chapter 1012, Florida Statutes, and with the provisions of the Collective Bargaining Agreement entered into by the School Board and the BTU-TSP. See Hillsborough County Governmental Employees Ass'n v. Hillsborough County Aviation Auth., 522 So. 2d 358, 363 (Fla. 1988)(public employer must implement ratified collective bargaining Collective Bargaining Agreement with respect to wages, hours, or terms or conditions of employment).

65. Pursuant to Article Four, Section B.5., and

    
    

    Article Nine, Sections B and E.1, of the Collective Bargaining Agreement between the BTU-TSP and the School Board,

    Ms. Blackwood may only be disciplined for just cause, and discipline may only be imposed within 20 days of the date on which the violation occurred or was first known to have occurred.

66. In the Amended Administrative Complaint, the School Board charged Ms. Blackwood with misconduct in office that was so serious it impaired her effectiveness as an employee of the School Board and with gross insubordination, which is defined as "a constant or continuing intentional refusal to obey a direct order, reasonable in nature, and given by and with proper

authority." See § 012.33(1)(a) and (6)(b), Fla Stat., and Fla. Admin. Code Rule 6B-4.009(4). The School Board notified

Ms. Blackwood of its intent to impose discipline on March 10, 2005, and the acts of misconduct and insubordination upon which the School Board may impose discipline must have occurred on or about February 15, 2005. Based on the findings of fact herein, the School Board has failed to carry its burden of proving by a preponderance of the evidence that Ms. Blackwood committed an offense that would subject her to discipline within the 20-day time period specified in the Collective Bargaining Agreement.25

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 dismissing the Amended Administrative Complaint against Charlene Rebecca Blackwood.

DONE AND ENTERED this 7th day of March, 2007, in Tallahassee, Leon County, Florida.

S

PATRICIA M. HART

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

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

Filed with the Clerk of the Division of Administrative Hearings this 7th day of March, 2007.

ENDNOTES

1/ All references to the Florida Statutes herein are to the 2005 edition, except as otherwise noted.

2/ Petitioner's Exhibit 110.

3/ Id.

4/ There is some discrepancy in the testimony regarding the date of which Mr. Goode left the position of CBO and Mr. Martin took over. It appears most likely from the evidence submitted that Mr. Martin began as CBO in the spring of 2003.

5/ Petitioner's Exhibit 4.

6/ Id.

7/ Petitioner's Exhibit 30.

8/ Id.

9/ Petitioner's Exhibit 42. 10/ Petitioner's Exhibit 71. 11/ Id.

12/ Petitioner's Exhibits 56 and 77.

13/ Id.

14/ Petitioner's Exhibit 79a. 15/ Petitioner's Exhibit 37. 16/ Petitioner's Exhibit 44. 17/ Id.

18/ Id.

19/ Petitioner's Exhibit 51. 20/ Respondent's Exhibit 37. 21/ Petitioner's Exhibit 96.

22/ Stipulated Facts filed February 20, 2006, paragraph 16.

23/ Mr. Carter was not aware at the time he decided to recommend that Ms. Blackwood be terminated that she was the author of the "Letter to the Editor," although he was aware that the letter was circulating in the Building Department.

24/ Petitioner's Exhibit 99.

25/ A central question raised by both parties in this case was the extent to which the School Board could take into account the non-disciplinary employment history of a person who was otherwise subject to discipline under the Collective Bargaining Agreement. School Board Policy 4.9, Employee Disciplinary Guidelines, provides in Section III that the School Board may consider employment history among other considerations when determining the appropriate penalty to impose. Because of the ultimate finding in this case that the evidence presented by the School Board was not sufficient to establish by a preponderance of the evidence that Ms. Blackwood committed misconduct in office or insubordination, it is not appropriate to address this issue herein.

COPIES FURNISHED:

Eugene K. Pettis, Esquire Haliczer, Pettis, & Schwamm, P. A. One Financial Plaza

100 Southeast Third Avenue, Seventh Floor Fort Lauderdale, Florida 33394

George Segna

Broward Teachers Union

6000 North University Drive Tamarac, Florida 33321

Ronald G. Meyer, Esquire Mary Aspros, Esquire Meyer and Brooks, P.A.

2544 Blairstone Pines Drive Post Office Box 1547 Tallahassee, Florida 32302

Dr. Franklin L. Till, Jr., Superintendent Broward County School District

600 Southeast Third Avenue

Fort Lauderdale, Florida 33301-3125

Jeanine Blomberg, Commissioner Department of Education Turlington Building, Suite 1514 Tallahassee, Florida 32399-0400

Deborah K. Kearney, General Counsel Department of Education

Turlington Building, Suite 1244 Tallahassee, Florida 32399-0400

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: 05-002288

Orders for Case No: 05-002288