STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BROWARD COUNTY SCHOOL BOARD,

Petitioner,

vs.

SELINA CLARKE,

Respondent.

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) Case No. 12-3163TTS

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RECOMMENDED ORDER

This case came before Administrative Law Judge Todd P. Resavage for final hearing by video teleconference on

February 14, 2013, at sites in Tallahassee and Lauderdale Lakes,

Florida.

APPEARANCES

For Petitioner: Eugene K. Pettis, Esquire

Brian Engel, Esquire

Haliczer Pettis & Schwamm, P.A. One Financial Plaza, 7th Floor

100 Southeast Third Avenue

Fort Lauderdale, Florida 33394

For Respondent: Melissa C. Mihok, Esquire

Kelly & McKee, P.A. Suite 301

1718 East Seventh Avenue Tampa, Florida 33605

STATEMENT OF THE ISSUE

Whether just cause exists to suspend Respondent's employment with the Broward County School Board for three days

without compensation.

PRELIMINARY STATEMENT

On August 24, 2012, the Broward County Superintendent of Schools issued an Administrative Complaint recommending that the Broward County School Board (School Board) suspend Respondent, Selina Clarke, for three days without pay.

Respondent timely requested a formal administrative hearing, and, on September 24, 2012, the matter was referred to the Division of Administrative Hearings for further proceedings. Petitioner filed its Administrative Complaint wherein it alleged that Respondent's employment should be suspended for three days without compensation based upon insubordination in the failure to complete tasks of the Transition Process Implementation Steps and Expectations Guidelines, as directed.

During the final hearing, Petitioner presented the testimony of two witnesses, Shaneka President and Alona DiPaolo, and Petitioner's Exhibits 1-4, 6-8, 10-19, 21-26, 28, 29-42, 43A, and 44 were received in evidence. Respondent testified on her own behalf, called one witness, Quita Freeman, and Respondent's exhibits 1 and 2 were received in evidence.

The final hearing transcript was filed on March 13, 2013.

Subsequently, the parties requested, and the undersigned granted, two extensions for the filing of proposed recommended orders. Both parties timely filed proposed recommended orders, which the undersigned has considered in the preparation of this Recommended Order.

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

alleged misconduct.

FINDINGS OF FACT

Introduction

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

2. Respondent began her teaching career with the Broward County School District in or around 2005. Respondent has taught reading and math, and at all times pertinent to this proceeding was employed as a specialized varying exceptionalities ("SVE") teacher at MacArthur High School, a public school in Broward County.

3. Respondent was assigned to a SVE classroom for the 2011-2012 school year. The SVE program is designed to prepare high school students with varying disabilities for the transition to adulthood. The intended goal is to teach skills

   
   

   needed to ensure the most independence for each student. Functional academics, social and communication skills, independent living, and employability skills are contained within the SVE program.

4. At the beginning of the 2011-2012 academic school year, Respondent was provided with a document titled, "Transition Process Implementation Steps & Expectations" (hereinafter "Steps").1/ Sheneka President, a transition teacher assigned to provide support to SVE teachers within the district, described the Steps as a means to "break down" the SVE high school standards into "doable pieces," such that if a teacher follows the Steps, he will also be in compliance with the standards.

5. Alona DiPaulo, Assistant Principal at MacArthur High School, described the purpose of the above-referenced Steps as

   follows:

   
   

   "There are seven steps. The steps is basically part of the curriculum in which the SVE students are required to go through on a daily basis. The idea and concept behind steps is that this is really the last ditch effort for students in order to become competent human beings out in the real world, whether it's in the world of work, whether it's home for personal living, social skills, this gets them to function independently."

   
   

6. The school district did not simply disseminate the document to Respondent and leave her to her own devices to implement the Steps. To facilitate the implementation process,

   
   

   Respondent was required to attend formal PASS training from the school district.2/

7. The PASS training is conducted over four sessions.

   
   

   Each session provides instruction, examples, and guidance on completing certain steps (for example Steps 1 and 2), as well as visits to classroom settings that have implemented the Steps.

   After attending each session, the teacher returns to the classroom and implements the steps learned to date. The process repeats until the teacher has been trained on the implementation of all seven steps.

8. Respondent was also provided with significant personnel support throughout the 2011-2012 school year. Ms. President observed Respondent's class approximately once per week. If Respondent, in Ms. President's opinion, was not in compliance with the Steps, Ms. President would give instruction on how to become complaint.3/ Ms. President would then confer with Respondent concerning a reasonable time to implement the suggestions and expectations de jure.4/

9. Ms. President's suggestions, expectations, and the agreed timeframe for completion were subsequently memorialized in the form of summary emails. Respondent acknowledged receipt of the summary emails.

10. Although Ms. President was not Respondent's supervisor, as early as January 3, 2012, Ms. DiPaolo advised

    
    

    Respondent that Ms. President's suggestions and expectations were to be considered "written directives." Respondent fully acknowledged that the suggestions and expectations of

    Ms. President were to be construed as directives.

    
    

11. Ms. DiPaolo conceded that Respondent was not expected to be able to implement the Steps prior to attending the PASS training; however, once she began the training she was expected to implement the steps learned to date. Unfortunately, Respondent did not begin PASS training until December 2011, despite the availability of a September 2011 class.5/

12. Respondent completed the PASS training on or about January 30, 2012. The alleged implementation shortcomings specifically set forth in the Administrative Complaint, therefore, coincide with Respondent's completion of the PASS training.

    The Charges

    
    

13. Petitioner alleges that Respondent was insubordinate in failing to complete the requisite Steps, despite clear directives. Specifically, Respondent alleges that:

    1. On January 31, 2012, Ms. Clarke agreed that her tasks would be completed by February 2, 2012. However, on February 2, 2012, Steps 1, 2, 4 and 5 were not complete.

       
       

    2. At that time, Ms. Clarke agreed that the tasks would be completed by February 9, 2012. However, on February 10, 2012, Steps

       
       

       2, 3, and 4 were not complete (one day after the due date).

       
       

    3. At that time, Ms. Clarke agreed that her tasks would be complete by February 14, 2012. However, on February 14, 2012, Steps

       3 and 6 were not complete. On February 16, 2012, Step 4 was still not complete.

       
       

    4. On February 23, 2012, Ms. Clarke agreed that her tasks would be complete by February 27, 2012. However, on February 27, 2012, Steps 4, 5, and 6 were not complete. On February 28, 2012, Steps 4 and 6 were still not complete.

       
       

14. Petitioner further alleges that on March 1, 2012, Principal Todd LaPace held a pre-disciplinary meeting with Respondent to address her insubordination for failing to complete the above-referenced steps, and upon receiving an unsatisfactory response, recommended Respondent be placed before a three-day suspension without pay. On March 19, 2012, Respondent was placed on notice of the recommendation.

    The Steps

    
    

15. On January 30, 2012, Respondent completed the final installment of PASS training. The following day, Ms. President observed Respondent's classroom. On that date, Ms. President thanked Respondent for presenting tasks with task instructions (Steps 4 and 5); however, she suggested that Respondent revise the instructions to use "less words." She also noted that previously agreed upon zone labels were not available (Step 1), and requested that same be printed for review by the next visit.

    
    

    Respondent agreed to have the master schedule, staff schedules, and individualized student schedules printed and implemented by the next visit (Steps 2 and 3).

16. On February 2, 2012, Ms. President observed that the labels were not posted, as previously requested (Step 1); the schedules were completed, but not posted (Step 2); individualized student schedules were still needed (Step 3); and that Respondent had agreed to revise the tasks and task instructions (Step 4) by February 9, 2012.

17. Ms. President's next observation of Respondent's classroom occurred on February 10, 2012. On that date, there were no discrepancies concerning Steps 1, 5, 6, or 7. Concerning Step 2, Ms. President noted that Respondent's schedule needed to be posted, but she was otherwise in compliance. The individualized student schedules (Step 3) still needed to be completed, posted, and implemented. Additionally, the previously agreed upon modified tasks and instructions were still not available. Again, Respondent agreed to make the requisite modifications.

18. Ms. President then observed Respondent's classroom on February 14 and 16, 2012. By those dates, Respondent had succeeded in implementing Steps 1 and 2. Concerning Step 3, Ms. President opined that Respondent still needed to complete individual student schedules for "a few" of the students.

    
    

19. Ms. President acknowledged that, concerning Steps 4 and 5, Respondent had created new tasks and instruction upon the completion of the PASS training; however, she had been instructed to revise some of them because they had "too many words and/or steps." Ms. President noted that if Respondent had indeed revised them, they were not available for her review.

    Ms. President further instructed Respondent that, "[i]f you are comfortable with what you have, please print so the students will have tasks to complete in the zones." For the first time, Ms. President noted that Respondent was not collecting data for every assigned task in every zone, as required by Step 6.

20. In the follow-up visits of February 21 and 23, 2012, Ms. President documented that Steps 1, 2, and 3 were now in compliance. Respondent had, as directed, revised some of her previously completed tasks for Step 4. At this time, it was merely noted that "suggestions were made to improve the tasks." Ms. President did, however, direct Respondent to place the now acceptable tasks in a binder for utilization by the students. Again, Respondent was admonished to collect data for every assigned task in every zone, every week, for every student.

21. On the final pertinent observation period of

February 28, 2012, Respondent was compliant with Steps 1, 2, and

1. Concerning Steps 4 and 5, according to Ms. President, Respondent had yet to place the acceptable task instructions in

   
   

   binders. Additionally, she continued to be deficient in data collection as previously requested.

   1. Respondent was most notably unsuccessful in the creation of tasks, as required by Step 4. Step 4, in essence, required Respondent to develop and implement tasks for a minimum of 5 separate zones or areas within the class. Respondent was required to create and implement at least three to five tasks in each zone based on individual needs. If Respondent failed to properly execute Step 4, it logically follows that she would also fail in the execution of Steps 5 and 6, which, respectively, required task binders and assessments of the student's performance of said tasks within a particular zone.

   2. To this point, Respondent testified, and there was no evidence to the contrary, that the PASS training did not include a textbook or other standard materials that a teacher may reference for the implementation of the Steps. In regard to the Step 4 creation of tasks, Respondent's unrebutted testimony was that a predetermined or preapproved set of tasks had not been endorsed by the district. As such, Respondent had some discretion in the creation of said tasks.

   3. Online resources were at her disposal, to a degree, for sample tasks. Respondent testified, however, that the sample online tasks, primarily composed of stick figures, were inconsistent with competing directives to make the tasks

      
      

      individualized and consistent with the student's environment. Respondent credibly testified that this perceived inconsistency was a recurring cognitive stumbling block to her timely implementation of tasks deemed acceptable by Ms. President.

      Ultimate Factual Determinations

      
      

   4. Ms. President's suggestions and/or expectations provided to Respondent after January 3, 2012, for the proper implementation of the Steps, were direct orders that were reasonable in nature and given by and with proper authority.

   5. Respondent was provided with a reasonable period of time to implement the Steps and was provided significant training and support to enhance her likelihood of success.

   6. On multiple occasions, Respondent was unsuccessful in executing Ms. President's directives, particularly Step 4. As noted above, Step 4 was a condition precedent to the successful implementation of Steps 5 and 6.

   7. Respondent's credible testimony that she was continually striving to be in compliance was buttressed by the testimony of Ms. President. Indeed, Ms. President testified that Respondent never refused to comply with her suggestions or time deadlines. As such, the undersigned finds that Respondent did not constantly or continually and intentionally refuse to comply with the directives.

      
      

      CONCLUSIONS OF LAW

      
      

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

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

   10. In an administrative proceeding to suspend or dismiss a member of the instructional staff, the school board, as the charging party, bears the burden of proving, by a preponderance of the evidence, each element of the charged offense. McNeill v. Pinellas Cnty. Sch. Bd., 678 So. 2d 476, 477 (Fla. 2d DCA 1996); Sublett v. Sumter Cnty. Sch. Bd., 664 So. 2d 1178, 1179 (Fla. 5th DCA 1995). The preponderance of the evidence standard requires proof by "the greater weight of the evidence" or evidence that "more likely than not" tends to prove a certain proposition. See Gross v. Lyons, 763 So. 2d 276, 280 n.1 (Fla.

       
       

       2000); see also Williams v. Eau Claire Pub. Sch., 397 F.3d 441,

       
       

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

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

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

       follows:

       
       

       Just cause includes, but is not limited to, the following instances, as defined by rule of the State Board of Education: immorality, misconduct in office, incompetency, two consecutive annual performance evaluation ratings of unsatisfactory under s. 1012.34, two annual performance evaluation ratings of unsatisfactory within a 3-year period under

       s. 1012.34, three consecutive annual performance evaluation ratings of needs improvement or a combination of needs improvement and unsatisfactory under s. 1012.34, gross insubordination, willful neglect of duty, or being convicted or found guilty of, or entering a plea of guilty to,

       
       

       regardless of adjudication of guilt, any crime involving moral turpitude.

       
       

       § 1012.33(1)(a), Fla. Stat. (emphasis added).

       
       

   13. Gross insubordination is defined as "a constant or continuing intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority." Fla. Admin. Code R. 6B-4.009(4).6/

   14. In Forehand v. Sch. Bd. of Gulf Cnty., 600 So. 2d 1187, 1192-93 (1st DCA 1992), the court construed the intentional component of gross insubordination as follows:

       Rule 6B-4.009, Florida Administrative Code, defines "gross insubordination" . . . as "a constant or continuing intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority" (emphasis added). The word "intent" has been defined as follows:

       
       

       The word "intent" is used throughout the Restatement of Torts, 2nd, to denote that the actor desires to cause consequences of his act, or that he believes that the consequences are substantially certain to result from it. Sec. 8A. Black's Law Dictionary 727 (5th Ed. 1979)(emphasis added). An "intentional" act has been defined as one "done deliberately." American Heritage Dictionary of the English Language 683 (New College ed. 1979)(emphasis added).

       
       

   15. Applying the rules of law to the instant facts, Petitioner clearly proved by a preponderance of the evidence that Ms. President's suggestions and/or expectations provided to Respondent after January 3, 2012, for the proper implementation

       
       

       of the Steps, were direct orders that were reasonable in nature and given by and with proper authority.

   16. Pursuant to the findings of fact contained herein, Petitioner has not, however, satisfied its burden of proof that Respondent constantly or continualy and intentionally refused to obey said direct orders, as is required for gross insubordination.

   17. The undersigned appreciates the gravity surrounding the proper implementation of the SVE curriculum. The evidence presented at final hearing raises significant concerns regarding Respondent's competency as a SVE teacher. Respondent's competency, however, is not at issue in the instant proceeding.

RECOMMENDATION

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

RECOMMENDED that the Broward County School Board enter a final order dismissing the Administrative Complaint.

DONE AND ENTERED this 6th day of May, 2013, in Tallahassee,

Leon County, Florida.

S

TODD P. RESAVAGE

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 6th day of May, 2013.

ENDNOTES

1/ The Transition Process Implementation Steps & Expectations document is set out in full as an addendum to this Recommended Order.

2/ The Post-Graduate Alternatives for Secondary Students ("PASS") program is designed to assist students with moderate to significant learning disabilities-all of whom are between the ages of 18 to 21 and have already received special high school diplomas-attain the highest level of independence.

3/ Ms. President works with approximately fifteen other SVE teachers. Approximately five of those teachers are also not in full compliance with the Steps.

4/ Ms. President was frequently accompanied by one or more PASS training instructors when conducting observations of Respondent's classroom.

5/ Respondent testified that she intended to register for the initial class; however, she was advised by Ms. President that the class was full.

6/ Rule 6B-4.009, which was in effect at the time of Respondent's alleged misconduct, was renumbered (beginning July 9, 2012) as Florida Administrative Code Rule 6A-5.056.

ADDENDUM

Transition Process Implementation Steps & Expectations

STEP 1: CREATE AND IMPLEMENT ZONES

Arrange furniture/physical space for zones. All zones clearly defined and labeled.

Minimum of 5 zones/areas. 1:1 zone/area defined.

Evidence of zone binder and data collection binder or system

STEP 2: DEVELOP AND IMPLEMENT MASTER, STAFF, AND ZONE SCHEDULES

MASTER SCHEDULE

Completed schedule clearly posted, implemented and updated when necessary.

CBI schedules clearly posted, implemented and updated when necessary.

Schedule review and CBI prep are included in the Master Schedule.

STAFF SCHEDULES

Completed teacher and paraprofessional schedules are posted, implemented and updated when necessary.

Schedule shows coverage for each zone.

DEVELOP ZONE SCHEDULES

Completed zone schedules are posted, implemented and updated when necessary.

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

STEP 3: DEVELOP AND IMPLEMENT INDIVIDUAL DAILY STUDENTS SCHEDULES

Create and implement individualized students schedules according to students cognitive ability (i.e. desk, photo book, clipboard, lanyard, iTouch, agenda).

Individualized schedules are to be used by the students to transition independently in the classroom and community.

Students are scheduled in zones according to their TIEP goals.

Evidence of assistive technology based on student needs.

STEP 4: DEVELOP AND IMPLEMENT TASKS PER ZONE

At least 3-5 tasks in each zone to start based on individual needs; increase number of tasks as they are mastered.

Construct tasks for the zones based on student ability levels, CBI environment and TIEP goals.

Realistic and age appropriate materials must be used. Variety of instructional methods used.

Tasks are individualized to reflect student's future environments (life skills, vocational, recreation/leisure).

STEP 5: DEVELOP AND IMPLEMENT ZONE BINDERS WITH TASK INSTRUCTIONS

Individualized task instructions will be developed and available for every task for every student in every zone meeting their ability level.

Every student will have an individualized section within the zone binder.

Every student will have assigned tasks that correlate with their TIEP goals and/or CBI environment.

STEP 6: COMPLETE STUDENT ASSESSMENTS

Complete pre and post comprehensive vocational assessment(s) for each student.

Evidence of data collection in zones. Data must be collected for every assigned task in every zone, every week for every student.

Data supporting TIEP goals must be collected weekly as evidence that the staff is implementing the TIEP. Evidence of CBI data collection on weekly basis.

Evidence of individual student binders to contain record keeping.

Evidence of weekly communication with family/caregiver.

STEP 7: DEVELOP AND IMPLEMENT CBI PROCESS

Sites based on the students TIEP goals and student assessments.

Classroom zones based on CBI/Community sites. Individualized CBI student schedules are developed, implemented and revised when necessary for each CBI site.

CBI schedule is posted, implemented and updated when necessary.

3-4 students maximum at any CBI site (including sampling, interning, community or recreational). CBI prep/debrief is scheduled and implemented.

CBI checklist will be completed for each student.

COPIES FURNISHED:

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

1718 East 7th Avenue, Suite 301 Post Office Box 75638

Tampa, Florida 33675-0638

Eugene K. Pettis, Esquire

Haliczer, Pettis, and Schwamm, P. A. One Financial Plaza, 7th Floor

100 Southeast 3rd Avenue

Fort Lauderdale, Florida 33394

Dr. Tony Bennett, Commissioner of Education Department of Education

Turlington Building, Suite 1514

325 West Gaines Street Tallahassee, Florida 32399-0400

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

325 West Gaines Street Tallahassee, Florida 32399-0400

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

Fort Lauderdale, Florida 33301-3125

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

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

Docket for Case No: 12-003163TTS

Orders for Case No: 12-003163TTS