STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PAM STEWART, AS COMMISSIONER OF EDUCATION,

Petitioner,

vs.

ROY SHEWCHUK,

Respondent.

/

Case No. 13-1086PL

RECOMMENDED ORDER

On May 3, 2013, a duly-noticed hearing was conducted pursuant to section 120.57(1), Florida Statutes, in Green Cove Springs, Florida, before Lisa Shearer Nelson, an administrative law judge assigned by the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Ron Weaver, Esquire

Post Office Box 5675 Douglasville, Georgia 30154

For Respondent: no appearance

STATEMENT OF THE ISSUE

The issue to be determined is whether Respondent violated section 1012.795(1)(g) or (j), Florida Statutes (2010-11), or Florida Administrative Code Rule 6B-1.006(3)(a) or (e). If any violations are found, it must be determined what penalty should be imposed for the violation(s).

PRELIMINARY STATEMENT

On January 11, 2013, Petitioner, the Commissioner of Education for the State of Florida, filed an Administrative Complaint against Respondent, Ray Shewchuck, alleging violations of section 1012.795(1)(g) or (j), and Florida Administrative Code Rule 6B-1.006(3)(a) or (e). On February 26, 2013, Respondent filed an Election of Rights form disputing the allegations in the Administrative Complaint and requesting a hearing. On March 26, 2013, the case was referred to the Division of Administrative Hearings for assignment of an administrative law judge. Judge Van Laningham was originally assigned to hear the matter.

Respondent did not respond to the Initial Order, presumably because it was sent to 2606 Nassau Boulevard in Coconut Creek, Florida, as opposed to 2602 Nassau Bend (Respondent's handwriting on his Election of Rights form is somewhat difficult to read).

Petitioner requested that the case be scheduled in Orange Park, Florida, the vicinity in which the school was located at which the events took place. Hearing nothing from Respondent, the matter was reassigned to the undersigned and scheduled for hearing May 3, 2013, in Green Cove Springs, Florida.

At some point, the error regarding Respondent's address was discovered and future notices and documents were sent to his correct address, including the Notice of Hearing, which was issued April 8, 2013. Past orders were also re-mailed to the

correct address. However, on May 2, 2013, Respondent wrote a letter to DOAH, addressed to both the administrative law judge and to counsel for Petitioner, stating, "I am requesting the hearing to be held telephonically, for I do not have the finical [sic] ability to drive 600 miles one way to attend in person.

Thank you for your consideration on this matter."

It was unclear from Respondent’s letter whether counsel for Petitioner was provided a copy. Mr. Weaver was notified of the letter’s contents and arrangements were made to allow Respondent to participate in the hearing by telephone. Messages reminding Respondent of the need to have a notary present to administer an oath should he choose to testify, and the number to call should he wish to participate in the hearing, were left at the telephone number listed in DOAH’s records, as well as the telephone number listed on the correspondence.

The next day, May 3, 2013, Respondent was not present when the hearing was convened. His correspondence and the arrangements made to provide him with the ability to appear by telephone were placed on the record. In addition, a 15-minute recess was taken in order to allow Respondent to either appear or make an appearance by telephone. After the recess, Petitioner presented the testimony of Ronald Hartman, Justin Williams, Rebecca Davis, Dr. Susan Sailor, and Toni McCabe, and submitted Petitioner's Exhibits numbered 1-5. An additional witness,

student D.C., had been subpoenaed but did not appear. Accordingly, Petitioner was given leave to take and file his deposition.

At the close of the testimony, Respondent had not appeared or called into the hearing. Petitioner asserted at hearing that Respondent had not appeared for his deposition and filed the certificate of non-appearance as Petitioner's Exhibit 1.

Petitioner requested that the undersigned impose costs for non- appearance. For the reasons discussed in the Conclusions of Law, the request is denied.

A one-volume Transcript was filed with the Division on May 24, 2013. Petitioner's request to extend the time for the filing of the transcript of D.C.'s deposition was granted, and the time for filing the deposition transcript was extended to June 17, 2013. D.C.'s deposition was filed timely, and on

June 27, 2013, Petitioner filed a Proposed Recommended Order. To date, Respondent has not submitted anything following his request

to appear telephonically.

FINDINGS OF FACT

1. At all times material to the allegations in the Administrative Complaint, Respondent has held a Florida educator's certification, i.e., Florida Educator's Certificate Number 752981. His certification in the areas of science and school principal expires June 30, 2017.

   
   

2. At all times material to the Administrative Complaint, Respondent was employed as an assistant principal at Keystone Heights Jr./Sr. High School (Keystone Heights) in the Clay County School District. Respondent began serving as an assistant principal in 2006.

3. Respondent's responsibilities at Keystone Heights included assisting teachers with obtaining the necessary furniture and equipment for their classrooms.

4. Ronald Hartman is a science teacher at Keystone Heights.

   
   

   He has been a teacher for eight years, and has taught at Keystone Heights since approximately 2008.

5. Mr. Hartman taught in a regular classroom until the fall of 2010, when he was moved to a portable during pre-planning. The portable contained student desks as opposed to lab tables that are usually in a science classroom.

6. Having lab tables for science classes makes teaching science easier than using traditional student desks. Accordingly, on August 12, 2010, after a faculty meeting on a pre-planning day, Mr. Hartman approached Respondent and asked whether Respondent could get lab tables to replace the student desks in his room.

7. Respondent's immediate response to Mr. Hartman was to say, "Where am I supposed to get those now, out of my ass?"

   
   

   Respondent told Mr. Hartman that he could not believe Mr. Hartman would even ask that.

8. Mr. Hartman was shocked by Respondent's response.

   
   

   Although he did not necessarily think he would get what he requested, he did not think he would get that kind of reaction. Although there were others present in the room when the conversation took place, Mr. Hartman did not believe that others heard the conversation, and there were no students present.

9. The following day, the conversation was relayed to the school's principal, Dr. Sailor, who requested that Mr. Hartman write his account of the incident.

10. Mr. Hartman never received the lab tables he requested.

    
    

    Having them would have made teaching science in the portable much easier. Respondent’s response to Mr. Hartman’s request was unprofessional and inappropriate.

11. Dr. Susan Sailor was the principal who hired Respondent. She has been employed with the Clay County School District for 20 years.

12. As a result of the incident with Mr. Hartman, she gave Respondent a verbal reprimand. However, that was not the only incident that gave her concern that year with respect to Respondent's performance.

13. According to Dr. Sailor, in addition to the incident with Mr. Hartman, Respondent "self-reported" two other incidents

    
    

    of questionable behavior in August 2010: yelling at a bus driver when the driver did not follow his directions regarding a seating chart, and identifying a student as a problem to the child’s parent in a telephone call before knowing the identity of the caller.

14. The Respondent, the bus driver, and the parent did not testify at hearing. As a result of these incidents, however, Dr. Sailor issued a formal reprimand to Respondent on August 30, 2010. The letter of reprimand included the following statement:

    On February 24, 2010, during your annual performance appraisal, I spoke with you about actions you needed to take to regain the professional respect of faculty and staff. Thus, your behaviors stated above will not be tolerated and must cease immediately. This reprimand is a warning that any further violation of the above mentioned Principles [of Professional Conduct of the Education Profession] will result in further disciplinary action up to and including termination.

    
    

15. D.C. was an eleventh-grade student at Keystone Heights.

    
    

    On September 6, 2011, D.C. came to school wearing clothes that violated the school's dress code.

16. D.C. was sent to the front office to call home for more suitable clothing. Although the testimony regarding the details is somewhat inconsistent, the evidence indicates that D.C. was disruptive, and Dr. Sailor could hear him from her office down the hall. She called Respondent and asked him to come to the front

    
    

    office and help de-escalate the situation. He escorted D.C. outside the school, and things quieted down.

17. However, once he walked D.C. outside, Respondent told

    
    

    D.C. to “get his ass off campus.” According to Respondent’s description of the incident to Dr. Sailor later, D.C. was clenching his fists, and Respondent “got in his face,” telling D.C., “hit me. Hit me. Come on, I dare you to hit me.”

18. According to D.C., he was simply sitting on the bench outside, waiting for his mother, when Respondent came out of the building and told him, “[g]et off this property. I am tired of seeing your f---ing face.[1/] Get the hell out of here.”

19. Respondent also told D.C. that he wished D.C. would just hit him, saying, “Come on and just f---ing hit me or go.” D.C. testified that he thought Respondent was trying to provoke him.

20. Ms. Davis is a school secretary for Keystone Heights.

    
    

    She did not witness the conversations described above, but went to see Mr. Shewchuck on September 7, 2010, because D.C. was absent that day. She testified that she had seen D.C. in Respondent’s office the day before, and asked Respondent if D.C. had been suspended. Respondent replied that he had not suspended D.C. because it was a dress code matter, but told him to “get the f--- out of his office.”

21. Ms. Davis then called Ms. McGhghy to ask about the possible suspension of D.C., and Ms. McGhghy indicated that

    
    

    Respondent had handled the matter. When Ms. Davis relayed her conversation with Respondent to Ms. McGhghy, she was told to report it to Dr. Sailor. Ms. Davis was reluctant to do so because she was not offended by Respondent’s comments, “because of the child that we deal with.” She felt that Respondent tends to tell a story to make it “a little bigger than it is,” and did not believe he actually made the statement to D.C. She acknowledged that if he indeed said it, it would be unprofessional.

22. Respondent also discussed the incident with another vice principal, Justin Williams, telling Mr. Williams that he told D.C. to “get his ass off campus,” and to “go ahead and hit him.”

23. Although there are some variations between the versions of the incident related at hearing, all indicate that Respondent used inappropriate language toward a student, and challenged the student to hit him. The behavior described is inappropriate and unprofessional, regardless of which version most closely resembles the actual event.

24. After Respondent reported the incident regarding D.C. to her, Dr. Sailor felt additional discipline was necessary. She contacted human resources at the county school district, and spoke to Assistant Superintendent Toni McCabe. Then-Superintendent Ben Wortham recommended a three-day suspension without pay, which is a level of discipline that requires approval by the School Board. In the interim, he suspended Respondent for three days with pay,

    
    

    to take place September 12-14, 2011, pending approval of the School Board.

25. Upon presentation of Superintendent Wortham’s recommendation, the Board determined that a more severe discipline was appropriate. The School Board voted to suspend Respondent for

    10 days without pay, to take place September 12-23, 2011; to reassign Respondent to the District Office as an Administrator on Assignment, effective September 26, 2011; to terminate his employment with the District at the end of the first semester, effective December 16, 2011; and to accept his letter of resignation in lieu of termination prior to December 16, if he chose to resign.

26. Dr. Sailor originally hired Respondent, but lost confidence in his ability to perform as an administrator at Keystone Heights. She supported the decision to terminate his employment and would not rehire him. Respondent tendered his resignation before the deadline established by the School Board.

    CONCLUSIONS OF LAW

    
    

27. 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 (2013).

28. The Florida Education Commission is the state agency charged with the certification and regulation of Florida

    
    

    educators pursuant to the provisions of chapter 1012, Florida Statutes.

29. This is a proceeding in which Petitioner seeks to discipline Respondent's educator certification. Because disciplinary proceedings are considered penal in nature, Petitioner is required to prove the allegations in the Administrative Complaint by clear and convincing evidence. Dep't

    of Banking & Fin. v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

30. As stated by the Florida Supreme Court:

    
    

    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. 2d 797, 800 (Fla. 4th DCA 1983)).

31. The Administrative Complaint alleges the following facts as a basis for imposing discipline:

    1. At all times pertinent hereto, the Respondent was employed as an Assistant Principal at Keystone Heights Jr./Sr. High in the Clay County School District.

       
       

    2. On or about August 12, 2010, in response to a teacher’s request for classroom lab tables Respondent said to the teacher:

       
       

       “Where am I supposed to get those now? Pull them out of my ass?” or words to that effect.

       
       

    3. On or about September 6, 2011, Respondent told a student he was “tired of seeing his f---ing face,” to get his “ass of this campus,” and “I dare you to hit me” or words to that effect.

       
       

32. Based upon these factual allegations, Respondent has charged Respondent with violating section 1012.795(1)(g) and (j), and rule 6B-1.006(3)(a) and (e). Section 1012.795(1), which did not change during the pendency of this proceeding, provides in pertinent part:

    (1) The Education Practices Commission may suspend the educator certificate of any person as defined in s. 1012.01(2) or (3) for up to 5 years, thereby denying that person the right to teach or otherwise be employed by a district school board or public school in any capacity requiring direct contact with students for that period of time, after which the holder may return to teaching as provided in subsection (4); may revoke the educator certificate of any person, thereby denying that person the right to teach or otherwise be employed by a district school board or public school in any capacity requiring direct contact with students for up to 10 years, with reinstatement subject to the provisions of subsection (4); may revoke permanently the educator certificate of any person thereby denying that person the right to teach or otherwise be employed by a district school board or public school in any capacity requiring direct contact with students; may suspend the educator certificate, upon an order of the court or notice by the Department of Revenue relating to the payment of child support; or may impose any

    
    

    other penalty provided by law, if the person:

    * * *

    
    

    (g) Upon investigation, has been found guilty of personal conduct that seriously reduces that person’s effectiveness as an employee of the district school board.

    
    

    * * *

    
    

    (j) Has violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules.

    
    

33. Rule 6B-1.006, as it existed at the time of the conduct at issue in this case, provided in pertinent part:

    6B-1.006 Principles of Professional Conduct for the Education Profession in Florida.

    1. The following disciplinary rule shall constitute the Principles of Professional Conduct for the Education Profession in Florida.

    2. 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.

    3. Obligation to the student requires that the individual:

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

    
    

    * * *

    
    

    (e) Shall not intentionally expose a student to unnecessary embarrassment or disparagement.

    
    

34. Count 1 charges a violation of section 1012.795(1)(g).

    
    

    Petitioner has proven this count by clear and convincing

    
    

    evidence. Respondent’s interactions with his peers and with D.C. severely reduced his effectiveness as an administrator at Keystone Heights, and by extension, as an employee of the School Board. The evidence presented clearly demonstrated Dr. Sailor’s loss of faith in him, and the evidence substantiated at least some part of the reasons for that loss.2/

35. Count 2 charges Respondent with violating section 1012.795(1)(j), by violating the Principles of Professional Conduct for the Education Profession prescribed by the State Board of Education rules. Respondent violated this provision by violating Counts 3 and 4.

36. Count 3 charges Respondent with violating rule 6B- 1.006(3)(a), and Count 4 charges a violation of rule 6B- 1.006(3)(e). Both charges have been proven by clear and convincing evidence, based upon his interaction with student D.C. His use of profane language, attempting to provoke a violent reaction from D.C., and his actions to kick D.C. off campus were inappropriate and unprofessional, no matter what behavior is attributed to the student. In this instance, a simple phone call for appropriate clothing and some adult supervision was all that was needed. Instead, Respondent acted in such a way as to place a student in an unsupervised setting, and used language and gestures designed to intimidate and provoke. His behavior was unnecessary to maintain discipline and order, and presented no

    
    

    positive message. Further, Respondent related the encounter to multiple colleagues in a boastful manner that denigrated D.C.’s reputation among the professional staff even further.

37. The Education Practices Commission has established Disciplinary Guidelines for the imposition of penalties authorized for disciplinary proceedings. Florida Administrative Rule 6B- 11.007(2)(g) provides that, for a violation of section 1012.795(1)(g), the range of penalties is probation to revocation.3/ With respect to violations of rule 11B-1.006(3)(a) and (e), for “misuse of corporal punishment/Inappropriate methods of discipline in violation of paragraphs 6B-1.006(a),(e),” the range of penalties is reprimand to revocation. Rule 6B- 11.007(2)(i)6.

38. The rule also delineates aggravating and mitigating factors to consider in determining the penalty and, particularly, in determining whether deviation from the guideline range is appropriate. Those factors include the severity of the offense; the danger to the public; the number of repetitions of offenses; the length of time since the violations; the number of times the offender has been disciplined previously by the Commission; the effect of the penalty on the educator’s livelihood; and the degree of physical or mental harm to a student or child. Rule 6B- 11.007(3).

    
    

39. No evidence was presented indicating that Respondent has been disciplined before. Respondent’s behavior was clearly inappropriate, but there was no evidence presented that any student was harmed by his actions. D.C. did not indicate that he was embarrassed or humiliated by Respondent’s comments, although the potential was clearly there. The incident with D.C. was the last in a string of incidents where Respondent’s judgment was poor. As a result, he lost his job.

40. While Respondent’s behavior was clearly inappropriate, it does not warrant the five-year suspension requested by Petitioner. Respondent needs some retraining and a fresh start.

41. Finally, Petitioner requested fees for Respondent’s failure to appear at deposition. The deposition was scheduled in Green Cove Springs, when Respondent’s Election of Rights form indicated that he was living in Coconut Creek, Florida. Florida Rule of Civil Procedure 1.410(e)(2) provides that “a person may be required to attend an examination only in the county wherein the person resides or is employed or transacts business in person or at such other convenient place as may be fixed by the court.” Respondent no longer resides in Clay County, and no evidence was presented to indicate that he conducts business there. To force him to return for deposition is not authorized under the Florida Rules of Civil Procedure, notwithstanding that Clay County is where the infractions at issue occurred. While it made sense to

hold the hearing in that location, based upon the number of witnesses involved, none of those witnesses were necessary for his deposition. For this reason, the request for costs for Respondent’s non-appearance at his deposition is denied.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a Final Order finding that Respondent has violated section 102.795(1)(g) and (j), as well as rule 6B-1.006(1)(a) and (e), as alleged in the Administrative Complaint. It is further recommended that the Commission suspend his certificate for a period of 18 months; upon employment in any public or private position requiring an educator’s certificate, place him on probation for a period of two years on such terms as the Commission deems advisable; and require Respondent to take a three-hour college-level course in professional ethics.

DONE AND ENTERED this 17th day of July, 2013, in Tallahassee, Leon County, Florida.

S

LISA SHEARER NELSON

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 17th day of July, 2013.

ENDNOTES

1/ Letters not omitted in original, for this and all subsequent references to the term.

2/ Respondent did not testify in this proceeding, and the evidence hinted at problems in existence prior to the events chronicled in this case. One could not help but believe that there was more to the story than was presented; however, the evidence was sufficient to establish the allegations in the Administrative Complaint.

3/ The rule in effect at the time of the violation refers to a violation of section 1012.795(1)(f). The statutory reference has since been renumbered as section 10121795(1)(g).

COPIES FURNISHED:

Kathleen M. Richards, Executive Director Education Practices Commission Department of Education

Turlington Building, Suite 224

325 West Gaines Street Tallahassee, Florida 32399-0400

Roy Shewchuk

2602 Nassau Bend A2

Coconut Creek, Florida 33066

Ron Weaver, Esquire Post Office Box 5675

Douglasville, Georgia 30154

Marian Lambeth, Bureau Chief

Bureau of Professional Practices Services Department of Education

Turlington Building, Suite 224-E

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

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: 13-001086PL

Orders for Case No: 13-001086PL