STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DR. TONY BENNETT, AS COMMISSIONER OF EDUCATION,

Petitioner,

vs.

ANGELICA CRUIKSHANK,

Respondent.

/

Case No. 13-2440PL

RECOMMENDED ORDER

On September 9 and October 3, 2013, a final administrative hearing was held in this case by video teleconferencing, with sites in Tampa and Tallahassee, before J. Lawrence Johnston, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Ron Weaver, Esquire

Post Office Box 5675 Douglasville, Georgia 30154-0012

For Respondent: Jamison Jessup, Qualified Representative

557 Noremac Avenue

Deltona, Florida 32738-7313 STATEMENT OF THE ISSUES

The issues in this case are whether Education Practices Commission (EPC) should discipline the Respondent on charges that she failed to make reasonable effort to protect students from conditions harmful to learning, or harmful to students' mental

health, physical health, or safety, in violation of Florida Administrative Code Rule 6A-10.081(3)(a)1/; intentionally exposed students to unnecessary embarrassment or disparagement, in violation of rule 6A-10.081(3)(e); and, as a result, engaged in personal conduct that seriously reduces her effectiveness as an employee of the Pasco County School District, in violation of section 1012.795(1)(g), Florida Statutes (2011).2/

PRELIMINARY STATEMENT

The Petitioner, Dr. Tony Bennett, Commissioner of Education (Commissioner), filed an Administrative Complaint against the Respondent, Angelica Cruikshank, alleging: in Count 1, that she violated section 1012.795(1)(g) by engaging in personal conduct that seriously reduces her effectiveness as an employee of the Pasco County School Board (School Board); in Count 2, that she violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules (namely, the two alleged to have been violated in Counts 3 and 4), in violation of section 1012.795(1)(j); in Count 3, that she violated rule 6A-10.081(3)(a) by failing to make reasonable effort to protect students from conditions harmful to learning, or harmful to students' mental health, physical health, or safety; and in Count 4, that she violated rule 6A-10.081(3)(e) by intentionally exposing students to unnecessary embarrassment or disparagement.

At the hearing, the Petitioner called six students, a parent of one of the students, three administrators, and one school district employee. The Petitioner's eight exhibits were received in evidence.3/ The Respondent testified and called three witnesses (one student, one teacher, and one school office secretary). The Petitioner's objections to the Respondent's two exhibits are sustained.

The Transcript of the final hearing was filed, and the Petitioner filed a Proposed Recommended Order, which has been considered. The Respondent did not file a proposed recommended

order.

FINDINGS OF FACT

1. The Respondent is a teacher certified by the State of Florida in the areas of reading and world language-Spanish and held Florida Educator's Certificate 871379 until it expired on June 30, 2013. During the 2011/2012 school year, she was employed by the Land O'Lakes High School (LOLHS) in Pasco County.

2. In January 2012, a former ninth grade pre-International Baccalaureate (IB) student, who had been in the Respondent's

   pre-IB ninth grade Spanish class earlier in the school year, told the Respondent that she heard a rumor about some current pre-IB students making negative comments about the Respondent's teaching on Facebook, possibly on a Facebook page used by pre-IB students

   
   

   to communicate about class assignments and similar subjects pertinent to the IB program.

3. The pre-IB Facebook page was suggested and administered by a pre-IB student after getting the school's permission. Shortly after it was created, its privacy settings were set to limit access to pre-IB student members only. Former pre-IB students were removed from membership in the Facebook group and no longer could access the page.

4. When told about the rumors, the Respondent asked the former student to accompany her to the office of the assistant principal over world languages to report the rumor. The Respondent wanted the school to block or delete the Facebook page. The assistant principal did not think anything reported to her was actionable, but she asked the student to let her know if she saw anything on Facebook that she considered to be threatening or something the assistant principal should know about.

5. After the meeting, the Respondent asked the student to try to find the Facebook page with the derogatory comments about her. The student tried but could not find anything. As a former pre-IB member, the student no longer could access the pre-IB page. The Respondent decided to try another tactic.

6. On January 30, 2012, the Respondent announced to her second period pre-IB Spanish class that she would be handing out

   
   

   permission slips for a field trip to the new Salvador Dali Museum in St. Petersburg, but that certain students who had made mean, hurtful, derogatory posts about her on the internet would not be getting a permission slip. Four students in the class did not get permission slips. They were upset because they thought they had been embarrassed in front of at least some of the class. At least three of them could not understand why they had been punished, since they could not think of any such posts by them.

   The incident weighed on their minds, upset, and distracted them during the rest of the school day.

7. The former pre-IB student got a pass from her teacher to visit the Respondent during her fifth period pre-IB Spanish class. When the student arrived, the Respondent handed her a list of pre-IB students and told the student to mark with red dots the names of pre-IB students who could have been the ones supposedly posting derogatory remarks about the Respondent. Then she made an announcement to her fifth period class similar to the announcement to her second period class regarding the field trip permission slips, but this time she named two students who were not going to get permission slips, implying that they were the ones who posted the offending remarks on Facebook. (In fact, the Respondent had no reason to believe those two students did any such thing.) The two students were upset because they had been embarrassed in front of the class and because they could not

   
   

   understand why they had been punished, since they could not think of any such posts by them. One of them recalled agreeing with a post that criticized the Respondent's teaching, but that was all. When that student approached the Respondent for a notebook check, the Respondent handed her a cell phone and told the student to use her ID and password to log on to the pre-IB Facebook page.

   Feeling intimidated, the student complied, and the Respondent scrolled the Facebook posts for several minutes. When the bell rang and the students left, the Respondent's phone remained logged in to the pre-IB Facebook page.

8. The sixth period was lunch period for the Respondent and her second period class. Four students who had been declined field trip permission slips because of supposed Facebook comments used their lunch period to return to the Respondent's class to defend themselves. One student said he could prove their position that they were innocent, opened Facebook on his cell phone, and handed it to the Respondent. The Respondent spent almost the entire lunch period looking on Facebook. When the period ended, the Respondent asked the student to leave his phone with her. He refused and remained until she returned the phone and told him that he and the others would get their field trip permission slips. As a result, the student was late for his seventh period class.

   
   

9. During the day, some of the students reported to their parents what had occurred in the Respondent's classes. Some of them, in turn, contacted the school to complain. The school principal contacted the assistant principal over the IB program and told her to fix the problem by insuring that all students got field trip permission slips and by investigating the matter in cooperation with the School District Employee Relations Office.

10. The next day, the assistant principal told the Respondent that all the students should be given field trip permission slips. She also removed the Respondent from her classroom and made arrangements for a meeting early the following week for the Respondent to discuss the matter with the school officials.

11. The preliminary investigation corroborated the parents' complaints. When the Respondent met with the school officials the next week, she exercised her right not to say anything in her defense. Eventually, the Respondent was suspended pending a decision by the School Board whether to terminate the Respondent or take some other disciplinary action against her.

12. The conduct of the Respondent in regard to the field trip permission slips and Facebook posts very quickly became widely known among her students and their parents. Several students indicated that as a result of the Respondent's conduct, they would not want her to teach them again. In addition, local

    
    

    and even national media broadcast news of the incident, placing the Respondent and the school in a bad light. The Respondent contributed to the media broadcasts by making statements for repetition in the broadcasts.

13. The School Board hearing took place in July 2012. In September 2012, the School Board terminated the Respondent's employment.

14. During her suspension, and at the hearings before the School Board and in this case, the Respondent took the position that her conduct was justified because the assistant principal for world languages expressed serious concerns about

    cyber-bullying and directed the Respondent to conduct an investigation and report the results (i.e., the evidence she was able to obtain). To the contrary, the evidence was clear and convincing that the assistant principal gave the Respondent no such instruction or said anything that reasonably could be construed as such an instruction. Instead, the Respondent decided to undertake such an investigation on her own.

15. The Respondent also has taken the position, during her suspension and at the hearings before the School Board and in this case, that she never withheld or threatened to withhold field trip permission slips to punish students or to force them to allow her access to Facebook posts, but rather that she simply

    
    

    ran out of permission slips. The evidence to the contrary was clear and convincing.

16. The Respondent also takes the position that she is not responsible for the students missing the educational opportunity of the museum field trip since it was canceled by the school administrators after the Respondent was suspended. It is true that the school administrators made the decision to cancel the trip, rather than allow a substitute teacher to replace her (which was against school policy) or to have a school administrator do so. Regardless, it is clear that no such decision would have had to be made had the Respondent not engaged in the conduct that resulted in her suspension.

17. The Respondent also attempted to portray her actions regarding the Facebook posts as motivated by a strong desire to protect her students from bullying and mean behavior by other students. The clear and convincing evidence was that her primary motivation was to stop her students from saying negative things about her on Facebook.

18. Despite her conduct in regard to the permission slips and the Facebook posts and her untruthfulness in response to the complaints about them, the Respondent has the potential to learn from her mistakes and become a good teacher.

    
    

    CONCLUSIONS OF LAW

    
    

19. Since this is a license discipline case, the Petitioner must prove its allegations 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).

    The Supreme Court has stated:

    
    

    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)).

    
    

20. The Administrative Complaint charges the Respondent: in Count 1, with violating section 1012.795(1)(g), Florida Statutes, by engaging in personal conduct that seriously reduces

    her effectiveness as an employee of the School Board; in Count 2, with violating Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules (namely, the two alleged to have been violated in Counts 3

    and 4), in violation of section 1012.795(1)(j); in Count 3, with violating rule 6A-10.081(3)(a) by failing to make reasonable efforts to protect students from conditions harmful to learning,

    
    

    or harmful to students' mental health, physical health, or safety; and, in Count 4, with violating rule 6A-10.081(3)(e) by intentionally exposing students to unnecessary embarrassment or disparagement.

21. The charges are based on allegations that:

    
    

    3. During January of 2012, the Respondent became concerned about student comments on the social media website Facebook, and engaged in improper conduct with respect to those concerns. Specifically:

    
    

    1. the Respondent called female student

       A.L. to the front of the class and directed

       A.L. to log into A.L.'s personal Facebook account on the Respondent's phone. The Respondent then used access to A.L.'s account to view messages posted by other students;

       
       

    2. the Respondent told students that they could not participate in a field trip if they had posted negative comments about the Respondent on Facebook;

       
       

    3. the Respondent singled out students in class whom she thought had posted negative comments about the Respondent on Facebook; and

       
       

    4. the Respondent asked students to show her their Facebook activity and asked them to report on the Facebook activity of other students.

    
    

22. The Petitioner proved the allegations by clear and convincing evidence, which establishes the charges.

23. The range of penalties for the offenses charged and proven is from probation to revocation, subject to the consideration of aggravating and mitigating factors. Fla. Admin.

Code R. 6B-11.007(2)-(3). The Petitioner contends that revocation is the appropriate penalty and that the EPC should decide whether the revocation should be permanent. While consideration of the aggravating and mitigating factors does not warrant a departure from the penalty guidelines, it suggests that something less than revocation is appropriate. Under all the circumstances, a suspension until June 30, 2015, which is two years from the expiration of the Respondent's certificate, is

appropriate.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the EPC enter a final order: finding the Respondent guilty as charged; and suspending her teacher certificate until June 30, 2015.

DONE AND ENTERED this 15th day of January, 2014, in Tallahassee, Leon County, Florida.

S

J. LAWRENCE JOHNSTON 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 15th day of January, 2014.

ENDNOTES

1/ References to the Florida Administrative Code are to the version in effect at the time of the alleged offenses.

2/ References to the Florida Statutes are to the 2011 codification, which was in effect at the time of the alleged offenses.

3/ During the hearing, the Petitioner's Exhibit 7 was marked erroneously as a second Exhibit 6. The Respondent's objection to irrelevant statements on page one of the Petitioner's Exhibit 5 is sustained, and those statements are excluded from evidence.

COPIES FURNISHED:

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

325 West Gaines Street Tallahassee, Florida 32399-0400

Gretchen Kelley Brantley, Executive Director Education Practices Commission

Department of Education Turlington Building, Suite 224

325 West Gaines Street Tallahassee, Florida 32399-0400

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

Ron Weaver, Esquire Post Office Box 5675

Douglasville, Georgia 30154-0012

Jamison Jessup, Qualified Representative

557 Noremac Avenue

Deltona, Florida 32738-7313

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: 13-002440PL

Orders for Case No: 13-002440PL