On October 5, 2009, a duly-noticed hearing was held by video teleconference with sites in Tallahassee and Jacksonville, Florida, before Lisa Shearer Nelson, an administrative law judge assigned by the Division of Administrative Hearings.
For Petitioner: Edward T. Bauer, Esquire
Brooks, LeBoeuf, Bennett, Foster & Gwartney, P.A.
For Respondent: David A. Hertz, Esquire
The issue to be determined is whether Respondent committed the acts alleged in the Administrative Complaint and if so, what penalties should be imposed?
On February 4, 2009, Dr. Eric J. Smith, as Commissioner of Education (the Commissioner or Petitioner), filed an Administrative Complaint against Respondent, Robin Phitides, alleging violations for Section 1012.795(1)(a), (d), and (j), Florida Statutes (2004, 2007)1/; Florida Administrative Code Rule 6B-1.006(3)(a), (e), and (i); and Florida Administrative Code Rule 6B-1.006(5)(a). The alleged misconduct deals with three separate factual contexts: 1) criminal offenses that allegedly occurred outside the classroom; 2) representations made on Respondent's application for recertification; and 3) inappropriate discipline within the classroom during the 2007- 2008 school year. Respondent disputed the allegations in the Administrative Complaint and requested a hearing pursuant to Section 120.57(1), Florida Statutes (2009). On July 17, 2009, the matter was referred to the Division of Administrative Hearings for assignment of an administrative law judge.
A Notice of Hearing by Video Teleconference was filed on August 4, 2009, setting the case for October 5, 2009. Petitioner filed a unilateral Pre-hearing Stipulation on September 30, 2009. On October 5, 2009, the hearing was held as scheduled.
At hearing, Petitioner presented the testimony of John Williams, Officer D.F. Lauyans, Roseanne Jones, Irene Szeremi, Leroy Starling, Michael Cobb and Dr. Charles Wolfgang.
Petitioner's Exhibits 1-8 were admitted into evidence.
Petitioner was granted leave until November 5, 2009, to submit the deposition testimony of two witnesses, and on October 21, 2009, the depositions of A.D. and M.D. were filed, which are admitted as Petitioner's Exhibits 9 and 10, respectively.
Respondent presented testimony on her own behalf and submitted no exhibits. The parties stipulated that Respondent has held a certificate as an educator during all times material to the Administrative Complaint, and Petitioner advised that it would present no evidence on the first three sentences of paragraph three of the Administrative Complaint.
The proceedings were recorded, and the Transcript was filed with the Division November 17, 2009. Both parties timely filed Proposed Recommended Orders that have been carefully considered in the preparation of this Recommended Order.
Petitioner is the state agency responsible for certifying and regulating public school teachers in Florida. Respondent is licensed in the fields of elementary education and pre-kindergarten education. She holds Florida Educator's Certificate No. 544004, which was valid through June 30, 2009.
During the time relevant to these proceedings, Respondent was employed as a kindergarten teacher at Oceanway Elementary School in the Duval County School District.
Criminal Charges
On August 7, 2002, Respondent was arrested for contributing to the delinquency of a minor and with failure to comply with the compulsory school attendance law. These charges stemmed from excessive absences from school by her daughter, A.F. During the 2001-2002 school year, A.F. missed 66 days of school. Respondent did not dispute the allegations regarding the excessive absences. She stated that her daughter did not want to attend school, and she took her out of the public school system during the 2002/2003 school year to home school her. Prior to her removal, she missed 13 days of the 2002-2003 school year. Upon her return to school for the 2003-2004 year, Respondent's daughter missed another 43 days of school.
On September 3, 2002, Respondent's entered her neighbor's property while he was not at home. She climbed up on a chair to tamper with the mounting of a security camera affixed to the neighbor's garage, removing caulk or putty from around the mounting. Respondent was arrested for trespass and criminal mischief with respect to this incident.
On January 17, 2003, Respondent pleaded no contest to the charge of failing to comply with school attendance laws, and adjudication was withheld. Respondent was placed on probation for a period of twelve months, and a fine of $148.00 was imposed. The charge of contributing to the delinquency of a minor was
nolle prossed. Respondent's probation with respect to the school attendance violation was terminated on July 8, 2003.
Four days later, on January 21, 2003, Respondent pleaded nolo contendere to the trespass charge, and adjudication of guilt was withheld on this charge as well. The criminal mischief charge was nolle prossed.
Application for Renewal of Educator's Certificate
On April 14, 2004, Respondent filed an application for renewal of her Florida educator's certificate.
The application for renewal contained the following question:
Have you ever been convicted, found guilty, had adjudication withhold, entered a pretrial diversion program, or pled guilty or nolo contendere (no contest) to a criminal offense other than a minor traffic violation (DUI is NOT a minor traffic violation)?
A YES or NO answer is required by Florida law. If you check the YES box, you must give the information requested for each charge.
Please attach a separate sheet with your name and social security number if you need more space.
Respondent answered the question "no."
The application contains and Respondent signed the following certification, which is sworn and notarized:
I hereby certify that I subscribe to and will uphold the principles incorporated in the Constitutions of the United States of America and the State of Florida. I understand that Florida Statutes provide for revocation of an Educator's Certificate if evidence and proof are established that the certificate has been obtained by fraudulent means. I further
certify that all information pertaining to this application is true, correct, and complete.
The information provided on the application for recertification was not true, correct and complete, as it did not include information regarding the two misdemeanor offenses of trespassing and failing to comply with the school attendance law, to which Respondent pled nolo contendere.
Inappropriate Student Discipline
During 2007-2008 school year, Respondent was teaching kindergarten at Oceanway Elementary School. At this time, she was known as Robin Bush. During at least part of the school year, she was assisted by Roseanne Jones and Irene Szeremi, paraprofessionals who worked in her classroom. While these women worked with Respondent at different times, their testimony about the atmosphere in the classroom was consistent.
Respondent was heard threatening the students in her class and yelling at them in a loud, angry manner. According to the paraprofessionals, Respondent yelled at the students almost every day. This behavior would cause some students to become upset and cry, and students appeared to be afraid of Respondent.
Respondent punished at least one child, J.H., by making him sit underneath a computer table, amidst the electrical cords, for long periods of time. The area where the child was directed to sit for time-out had not only electrical cords, but electrical outlets readily accessible to small children.
On one occasion, Ms. Szeremi observed Respondent discipline J.H. by making him stand up with his nose pressed to the wall at eye level. When Respondent left the room for a moment, the crying child dropped to the ground, protesting that he could not continue. When Respondent returned, she lifted him back to a standing position, using her knees to propel him up.
Respondent's loud, threatening behavior was upsetting to the students. At least one student, A.D., had been a happy student during her pre-kindergarten experience. However, within a few weeks of attending Respondent's kindergarten class, she started crying when it was time to go to school and did not want to attend. She had nightmares, complained of an upset stomach, and did not want to be out of her mother's sight. After Respondent was removed from the classroom, A.D.'s behavior improved and she no longer dreaded going to school.
In May of 2008, M.D., A.D.'s mother, contacted
Mr. Cobb, the principal at Oceanway Elementary, regarding the atmosphere in Respondent's classroom and her concerns about inappropriate discipline taking place in the classroom. The two paraprofessionals working with Respondent had also voiced concerns about her behavior.
As a result of these concerns, an investigation was conducted by Leroy Starling, the Duval County School District professional standards investigator. Before his retirement,
Mr. Starling was the professional standards investigator for the
School District for 17 years, following a 25-year career with the Jacksonville Sheriff's Office.
As part of the investigation, Mr. Starling interviewed several of Respondent's students in Mr. Cobb's presence. The students were interviewed individually in a non-leading fashion. Based upon the interviews of the students and of the paraprofessionals working with Respondent, the School District determined that the allegations of inappropriate discipline were substantiated.
On September 10, 2008, the School District issued a letter of reprimand to Respondent, based on the allegations of inappropriate discipline.
Respondent denied using inappropriate discipline, accused one of the paraprofessionals of "being bipolar" and having Alzheimers' Disease, and claimed that J.H. sat under the computer table because that is where he wanted to be. Respondent's testimony is rejected. She also claimed, although she was not present for any of the interviews, that Mr. Starling and Mr. Cobb led the students to say bad things about her.
It is considered abuse for a teacher to require a student to stand with his or her nose against a wall for a substantial period of time. Such a punishment could have a significant psychological impact on a child. The same could be said for consistently yelling at kindergarten students, and punishing students by making them lie or sit under a table.
Persuasive evidence indicates that instead of creating an atmosphere for learning for these five and six-year-old students, Respondent's classroom had an atmosphere of fear that would interfere with the ability to learn.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action in accordance with Sections 120.569 and 120.57(1), Florida Statutes (2009).
This proceeding is a disciplinary proceeding to take action against Respondent's certification to teach in the State of Florida. Petitioner bears the burden of proof to demonstrate the allegations in the Administrative Complaint by clear and convincing evidence. Department of Banking and Finance v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).
Clear and convincing evidence:
requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and lacking in confusion as to the facts in issue. The evidence must be of such a weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.
In re Henson, 913 So. 2d 579, 590 (Fla. 2005), quoting Slomowitz
v. Walker, 429 So. 797, 800 (Fla. 4th DCA 1983).
The Administrative Complaint alleges the following facts to support the imposition of discipline against Respondent:
. . . [O]n or about September 3, 2002, Respondent took her minor child and a ladder and entered J.C.'s property uninvited and while she knew he was not at home. While on J.C.'s property, Respondent removed putty from a security camera on the garage. Respondent was arrested and charged with one count of Criminal Mischief and one count of Trespass on Property. On or about January 21, 2003, Respondent pled nolo contendere to the charge of Trespass on Property and the court withheld adjudication of guilt. On the same date all other charges were nolle prossed.
During the 2001/2002 school year, Respondent failed to ensure that her elementary school age child attended school on a regular basis in violation of Florida's compulsory school attendance law and resulting in Respondent's child having 31 un- excused absences for the school year. During the fall semester of the 2002/2003 school year, Respondent continued to withhold her child from classes resulting in 13 unexcused absences for the first half of the year. On or about December 24, 2002, Respondent was arrested and charged with Count 1, Failure to Comply with Compulsory School Attendance Law and Count 2, Contributing to the Delinquency of a Minor. On or about January 17, 2003, Respondent pled nolo contendere to Count 1 and the court withheld adjudication of guilt. On the same day, Count 2 was nolle prossed.
During the 2007/2008 school year Respondent engaged in inappropriate conduct that included but was not limited to the following:
Respondent required kindergarten students to serve extended periods of "timeout" on the floor, under a computer table requiring the students to sit on electrical wires, computer cables and dirt.
Respondent drew a circle on the board and required kindergarten students to stand for extended periods of time with their nose in a circle.
Respondent struck kindergarten students with a ruler.
Respondent discussed the medical history of students with parents of other students and with other teachers.
Respondent solicited B.J., the parent of one of her kindergarten students, to write a letter denying that Respondent had employed inappropriate discipline with B.J.'s son. When B.J. failed to write the letter, Respondent went to B.J.'s house to exert further pressure and acted in a manner that suggested to B.J.'s husband that Respondent was inebriated.
Without administrative permission, Respondent showed her kindergarten class videos that had been downloaded from the internet that were inappropriate for the age group in that they depicted violence or suggested violence.
On her application to renew her Florida Educator's Certificate, Respondent failed to acknowledge her criminal background as required by Florida law and in conflict with her statement on the application that all information provided was true, and accurate and complete in that she failed to acknowledge her 2002 charge.
Petitioner has demonstrated by clear and convincing evidence that, as alleged in paragraph three of the Administrative Complaint, Respondent entered her neighbor's property, removed putty from the camera mounting, and was arrested and charged with trespassing and criminal mischief. Petitioner has also proven that Respondent pled nolo contendere
to the charge of trespass, for which adjudication was withheld.
Petitioner has proven by clear and convincing evidence, as alleged in paragraph four of the Administrative Complaint, that Respondent allowed her daughter to be absent from school on numerous days with no valid excuse, and that as a result she was charged with contributing to the delinquency of a minor and failure to comply with the compulsory school attendance law. Petitioner has also proven by clear and convincing evidence that Respondent pled nolo contendere to the compulsory attendance violation, for which adjudication was withheld, and that the remaining charge was dismissed.
Petitioner has proven by clear and convincing evidence the material allegations in subparagraphs 5A and 5B of the Administrative Complaint. Petitioner has not proven the remaining allegations in paragraph five, either because no evidence was presented or the evidence presented was not competent, or substantial.2/
Petitioner has also proven by clear and convincing evidence that Respondent filed an application to renew her Florida Educator's Certificate, and on that application falsely stated that she had never pled nolo contendere to a criminal offense other than a minor traffic violation.
Section 1012.795(1), Florida Statutes, authorizes the Commission to suspend, revoke, or otherwise discipline a teaching certificateholder, where it is shown that he or she:
(a) Obtained or attempted to obtain an educator certificate by fraudulent means.
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(c) Has been guilty of gross immorality or an act involving moral turpitude.
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(i) Has violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules.
Florida Administrative Code Rule 6B-1.006 provides in pertinent part:
The following disciplinary rule shall constitute the Principles of Professional Conduct for the Education Profession in Florida.
Violation of any of these principles shall subject the individual to revocation or suspension of the individual educator's certificate, or the other penalties as provided by law.
Obligation to the student requires that the individual:
Shall make reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental and/or physical health and/or safety.
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(e) Shall not intentionally expose a student to unnecessary embarrassment or disparagement.
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(i) Shall keep in confidence personally identifiable information obtained in the course of professional service, unless
disclosure serves professional purposes or is required by law.
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Obligation to the profession of education requires that the individual:
Shall maintain honesty in all professional dealings.
Section 1012.796(7), Florida Statutes (2009), provides the penalties for violations of Section 1012.796 and Rule 6B-
1.006. Those penalties include denial of a certificate, revocation or suspension, probation, restriction of the certificate and administrative fines not to exceed $2,000 per count or offense.
The Education Practices Commission has not defined "gross immorality" or "moral turpitude" for the purposes of discipline to be imposed pursuant to Section 1012.795, Florida Statutes. The Commission has, however defined "immorality" and "moral turpitude" for use by school districts in taking action against instructional personnel in Florida Administrative Code Rule 6B-4.009. This rule, which may provide guidance in this context, provides in pertinent part:
(2) Immorality is defined as conduct that is inconsistent with the standards of public conscience and good morals. It is conduct sufficiently notorious to bring the individual concerned or the education profession into public disgrace or disrespect and impair the individual's service in the community.
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(6) Moral turpitude is a crime that is evidenced by an act of baseness, vileness or depravity in the private and social duties; which, according to the accepted standards of the time a man owes to his or her fellow man or to society in general, and the doing of the act itself and not its prohibition by statute fixes the moral turpitude.
Moral turpitude has also been defined by the Supreme Court of Florida as "anything done contrary to justice, honesty, principle, or good morals, although it often involves the question of intent as when unintentionally committed through error of judgment when wrong was not contemplated." State ex rel. Tullidge v. Hollingsworth, 108 Fla. 607, 146 So. 660, 661 (1933).
Count One of the Administrative Complaint charges Respondent with violating Section 1012.795(1)(a). The Department has proven this charge by clear and convincing evidence. By applying for recertification of her educator's certificate without disclosing, as required, the two pleas of nolo contendere entered in 2003, Respondent obtained a teaching certificate by fraudulent means.
Count Two of the Administrative Complaint charges Respondent with violating Section 1012.795(1)(d), Florida Statutes. In support of this charge, the Commission asserts that Respondent has committed gross immorality by stating under oath on her 2004 application that she had not entered pleas of no contest or had adjudication withheld with respect to any criminal offense, when in fact she had entered two such pleas, and in each
case adjudication was withheld by the court. The Commission also contends that Respondent committed an act of gross immorality or moral turpitude when she removed the caulk from the camera mounting on her neighbor's property, and by virtue of her improper and egregious methods of physical discipline.
Removal of putty from the camera mounting, and the nolo plea for trespassing do not rise to the level of gross immorality or a crime of moral turpitude. Winn v. Daniel Gardiner, No. 08- 6171 (DOAH Recommended Order 2009)(citation for trespass does not rise to the level of gross immorality or an act of moral turpitude). However, deliberately falsifying the application for renewal is a an act of gross immorality as contemplated by Section 1012.795(1)(c), Florida Statutes. See Turlington v. Jenkins, No. 82-2834 (DOAH Recommended Order 1983). Likewise, the methods used in disciplining children within her care, as well as the general demeanor exhibited in front of kindergarten students are acts of gross immorality. Count I has been proven by clear and convincing evidence.
Count Three of the Administrative Complaint charges Respondent with violating Section 1012.795(1)(j), Florida Statutes, by violating the Principles of Professional Conduct for the Education Profession as prescribed by rule. As explained below, Respondent's violation of Counts Four, Five and Seven require a finding that the Commission has demonstrated a violation of Count Three by clear and convincing evidence.
Count Four of the Administrative Complaint charges a violation of Rule 6B-1.006(3)(a), by failing to make a reasonable effort to protect a student from conditions harmful to learning and/or to the student's mental health and/or physical safety.
The Commission has demonstrated a violation of this rule by clear and convincing evidence. Respondent yelled at the kindergarteners in her classroom on almost a daily basis. Her manner was abusive and threatening, to the point where the five and six-year-olds in her care were afraid of her and reduced to tears. At least one child was so frightened, she suffered nightmares, crying spells and upset stomachs, and was afraid to attend kindergarten. No child should be subjected to this type of behavior in what is supposed to be an environment to create a foundation for a child's educational future and foster learning.
Respondent also violated Rule 6B-1.006(3)(a) by placing
J.H. in time-out under a computer table. Respondent contends that she did not place him there as a punishment, but that he chose to go under the table and she let him. Her explanation is rejected. Even assuming that she allowed, as opposed to ordered,
J.H. to sit under the table, the location was not a safe place for a small child. Respondent should have known that placing or allowing a child to sit amongst computer wires and adjacent to electrical plugs placed the child in a potentially dangerous position. Under either scenario, Respondent has failed to make reasonable effort to protect the child's safety.
Count Five of the Administrative Complaint charges Respondent with violating Rule 6B-1.006(3)(e), by intentionally exposing a student to unnecessary embarrassment or disparagement. The Commission has proven this charge by clear and convincing evidence. By placing J.H. in time-out under the computer table, and by requiring him to stand with his nose in a circle on the wall, Respondent engaged in methods of punishment that were humiliating and isolative. Expert testimony, which is credited, demonstrated that this type of punishment is not an accepted form or discipline and is abusive to the child.
Count Six of the Administrative Complaint charges Respondent with violating Rule 6B-1.006(3)(i), by failing to keep in confidence personally identifiable information obtained in the course of professional services. No evidence was presented to support this charge. Accordingly, Count Six should be dismissed.
Count Seven charged Respondent with violating Rule 6B- 1.006(5)(a), by failing to maintain honesty in all professional dealings. By failing to disclose her pleas of nolo contendere, for which adjudication was withheld, on her application for renewal of her teaching certificate, Respondent acted in a manner that was dishonest and unprofessional. Count Seven has been proven by clear and convincing evidence.
In summary, Counts One, Two, Three, Four, Five and Seven have been proven by clear and convincing evidence, and
provide a basis for discipline. Count Six has not been proven and should be dismissed.
The Commission has adopted disciplinary guidelines for the imposition of penalties authorized by Section 1012.796, Florida Statutes. Florida Administrative Code Rule 6B-11.007(2) provides that for a violation of Section 1012.795(1)(a), as charged in Count One, the appropriate penalty range is probation to revocation. For a violation of Section 1012.795(1)(c), as charged in Count Two, the penalty range is also probation to revocation. The appropriate penalty range for using inappropriate methods of discipline, of violation of Rule 6B- 1.006(3)(a) and (e), and charged in Counts Four and Five, is a reprimand to revocation. Failure to protect children, in violation of Rule 6B-1.006(3)(a) is probation to revocation. The same penalty (probation to revocation) is the range identified for other violations of Section 1012.795, such as that alleged in Count Seven, not specifically covered by the guidelines.
Rule 6B-11.007 also identifies several aggravating and mitigating factors to be considered in determining the appropriate penalty. Due consideration to these factors as well as the guideline ranges for the violations proved have been considered in determining the recommendation for penalty in this case. Respondent has been found guilty of several violations based on multiple different factual instances taking place over a period of six years. What is particularly disturbing is that in
each instance she casts responsibility or blame on anyone other than herself. For example, she claimed that the neighbor, now deceased and therefore not available as a witness, was taking pictures of her and her daughter, necessitating her trespass onto his property to examine his security camera. She claimed a paraprofessional testifying against her was bipolar and has Alzheimers' Disease. She excused her daughter's non-attendance at school because she did not want to attend, yet professed to be an educator. Most importantly, she created an atmosphere in her classroom where small children were afraid to come to school.
Not only were her claims not credible, but they evidenced an attitude that served only to confirm that she does not belong in a classroom.
That the Education Practices Commission enter a Final Order finding Respondent guilty of Counts One, Two, Three, Four, Five and Seven of the Administrative Complaint; dismissing Count Six of the Administrative Complaint; and permanently revoking her education certificate.
DONE AND ENTERED this 18th day of December, 2009, in Tallahassee, Leon County, Florida.
Filed with the Clerk of the Division of Administrative Hearings this 18th day of December, 2009.
1/ The applicable statutory provision for each violation is the codification in effect at the time of the conduct, i.e., the 2004 codification with respect to the renewal application, and the 2007 codification for the allegations with respect to the 2007-2008 school year. There has been no change in Section 1012.795 from the 2004 codification to the 2007 codification.
E. A finding that Respondent committed the acts alleged in subparagraph C would depend on the testimony of a child, A.D., who was five at the time of the events, and 7 when her deposition was taken. However, there was no demonstration in the deposition that
A.D. had the ability to tell the difference between the truth and a lie, or understood the moral obligation to tell the truth. See
§90.603(2), Fla. Stat. (2009); R.P. v. Department of Children and Family Services, 975 So. 2d 435 (Fla. 2d DCA 2007)(insufficient inquiry into the child witness's ability to understand the difference between telling a lie and telling the truth required reversal). With respect to paragraph F, the only evidence that Respondent showed videos in class is the statement of A.D.'s mother, M.D., that A.D. told her about the videos. This hearsay statement is insufficient to support a finding of fact.
§ 120.57(1)(c), Fla. Stat. (2009).
Edward T. Bauer, Esquire Matthew K. Foster, Esquire Brooks, LeBoeuf, Bennett,
Foster & Gwartney, P.A.
David A. Hertz, Esquire Duval Teachers United 1601 Atlantic Boulevard
Kathleen M. Richards, Executive Director Education Practices Commission Department of Education
Deborah K. Kearney, General Counsel Department of Education
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.
