vs.
Respondent.
Case No. 15-0310PL
On March 5, 2015, a duly-noticed hearing was held by video teleconference at locations in West Palm Beach and Tallahassee, Florida, before F. Scott Boyd, an Administrative Law Judge assigned by the Division of Administrative Hearings.
For Petitioner: Charles T. Whitelock, Esquire
Whitelock and Associates, P.A.
The issues to be determined are whether Respondent, Mr. Oges Fadael, violated sections 1012.795(1)(g) or (j),
as alleged in the Administrative Complaint, and if so, what is the appropriate sanction?
On August 12, 2013, Pam Stewart, as Commissioner of the Department of Education (Petitioner or Commissioner), filed an Administrative Complaint against Respondent, alleging violations of sections 1012.795(1)(g) and (j), and implementing rules. The case was to be set for informal hearing under section 120.57(2), Florida Statutes (2014). Respondent subsequently filed an Election of Rights form on or about December 19, 2014, disputing the allegations in the Administrative Complaint and requesting a hearing pursuant to section 120.57(1). On January 20, 2015, the case was referred to the Division of Administrative Hearings for assignment of an administrative law judge.
The case was noticed for hearing on March 5, 2015, and was heard and completed as scheduled. At hearing, Petitioner presented the testimony of Ms. Marian Lambeth, chief of the Office of Professional Practices Services; Ms. Michelle Weinhouse, a web design teacher at Congress Middle School (Congress); Mr. Anthony Cruz, a digital graphic design teacher at Congress; Ms. Lisa Snyder, a registered nurse assigned to Congress; Ms. Kathy Harris, principal at Congress during the 2011-2012 school year; K.S., a student at Congress in 2011; Ms. Clara Williams, mother of K.S.; and Detective Kevin McCabe,
a police detective assigned to Congress. Petitioner offered Exhibits P-1 through P-5 and P-7 through P-17, which were admitted into evidence, with the caveat that P-14, P-15, and P-16 were hearsay and could not in themselves support
findings of fact. Respondent testified on his own behalf and offered two exhibits. Exhibit R-1, a document from the state attorney, was offered to show that no charges had been filed, a fact stipulated to by Petitioner; it was found irrelevant and cumulative and was not admitted. Exhibit R-2, a copy of the Election of Rights, was admitted into evidence.
The two-volume Transcript of the proceeding was filed with the Division of Administrative Hearings on April 10, 2015. The Commissioner timely filed a Proposed Recommended Order that was considered in the preparation of this Recommended Order.
The Commissioner is responsible for investigating and prosecuting allegations of misconduct against individuals holding educator certificates.
At all times relevant to the allegations in the Administrative Complaint, Mr. Oges Fadael held an educator certificate and was employed as a guidance counselor at Congress in the Palm Beach County School District.
On November 17, 2011, K.S., a 13-year-old student, went to his new school, Congress, at mid-day. After attending
afternoon classes, he attempted to board a school bus for a ride back to his home at the end of the day. The bus driver refused to let K.S. get on the bus, saying that he needed to have a bus pass. K.S. testified that he then told Mr. Fadael, who was in the bus loop, that the bus driver would not let him get on the bus and that he needed assistance to get home. Mr. Fadael responded, "Hell, walk." K.S. testified that he started to walk, but couldn't find his way home, and that three or four hours later his uncle picked him up and took him home.
The following morning, on November 18, 2011, K.S. returned to Congress. He walked down a hall leading to the Student Services Office, where students were not supposed to be at that time in the morning. Mr. Fadael observed that K.S. was out of his assigned area and called after him, asking him where he was going. Mr. Fadael repeated his question, and asked K.S. to stop. K.S. did not answer Mr. Fadael, and continued to walk down the enclosed hallway, away from Mr. Fadael, with Mr. Fadael following him at a distance. Mr. Anthony Cruz, a digital graphic design teacher at the school, was in front of K.S., coming from the opposite direction down the hall toward K.S. and Mr. Fadael. Mr. Fadael called out to Mr. Cruz to "Please, stop this young man."
Mr. Cruz addressed K.S., saying, "Where are you going?
Please stop." K.S. did not answer Mr. Cruz or do as he was
directed, and instead attempted to pass by Mr. Cruz, first to the right, then to the left, and then to the right again, with Mr. Cruz adjusting his body position and arms with each move to remain in front of K.S. and block his way. K.S. continued to ignore Mr. Cruz and turned around to go back down the hall in the direction from which he had just come. He met with
Mr. Fadael, who again asked him where he was going, and directed him to stop. Again, K.S. did not answer or do as he was told, but instead attempted to pass around Mr. Fadael. Mr. Fadael pointed toward the Student Services Office and then stepped toward K.S., "herding" K.S. out of the hall and into a small alcove area outside the door leading into the Student Services Office.
At this point, Mr. Cruz testified that he saw K.S. try to "push off" Mr. Fadael. He explained that this was not done in an aggressive fashion, but just to push him out of the way, to get away from him and go on his way. The binder that
Mr. Fadael was carrying fell to the floor, but there was no clear and convincing evidence as to exactly how this happened. Mr. Fadael's written statement after the incident claimed that
K.S. hit it and knocked it to the ground, as Mr. Fadael reiterated at hearing. The testimony of Mr. Cruz was equivocal, claiming at one point that Mr. Fadael put in down, and at another point that Mr. Fadael dropped it. K.S. himself offered
no testimony as to whether he knocked the binder down, intentionally or otherwise. There were no other witnesses, and the video camera recording does not show what happened. It is clear, however, that Mr. Fadael grabbed K.S. by his right arm. When Mr. Fadael put his hands on K.S., Mr. Cruz testified that
K.S. escalated his physical struggle against Mr. Fadael and "kind of like got really out of control."
Mr. Cruz and Mr. Fadael were telling K.S. to "calm down, calm down." K.S. did not calm down. While still holding K.S.'s right arm, Mr. Fadael aggressively pushed him against the window next to the student services area entry door. The window is not flush, but sticks out from the wall. Mr. Cruz testified that K.S. finally calmed down just enough for them to open the door and move inside.
The struggle continued in the area inside the door, and
K.S. was screaming, "Let me go, let me go." Mr. Cruz testified that Mr. Fadael was holding K.S. with his arm behind his back, with K.S. facing toward the wall. Mr. Fadael pushed K.S. against the wall, pinning him there, as K.S. continued to struggle.
Ms. Michelle Weinhouse was a web design teacher at Congress during the 2011-2012 school year. She was in the mailroom in student services and heard yelling outside. When she came out of the mailroom to see what was happening, she saw
Mr. Fadael pinning K.S. against the wall. K.S. was crying and cursing, and saying he wanted to get his dad. K.S. was embarrassed and humiliated by his treatment.
Ms. Lisa Snyder was a registered nurse assigned to Congress. She testified she had seen Mr. Fadael talking to K.S. earlier, but things like that happened on a daily basis, and she went into her office. She said she came back out of her office when she heard K.S. screaming, "Ouch, let me go, let me go."
She testified:
There was an altercation with Mr. Fadael, the guidance counselor, and the student.
The child was struggling. Mr. Fadael had the child's arms. I think in the process of trying to subdue the child, you know, the kid was--I thought he was slammed against the wall.
Nurse Snyder was concerned that K.S. could have sustained a head injury because she saw his head slam against the wall.
Later on the day of the incident, K.S. was examined at the JFK Medical Center in Atlantis, Florida. The patient history indicated that there was right shoulder pain. Examination showed he had some contusions and:
There is mild widening of the physeal plate laterally concerning for a Salter-Harris type 1 fracture. The humeral head articulates with the glenoid cavity. There is no evidence of displaced fracture or subluxation. The visualized right lung apex is clear.
K.S. was instructed not to go to school for two days, and to schedule a follow-up appointment with an orthopedist, because a growth plate fracture was suspected. It is not clear from the record if K.S. was seen by an orthopedist. K.S. testified that he went to therapy for a month. He testified that he had always played football with his friends, but that he wasn't able to do that anymore, and that he wanted to play football in high school, but couldn't do that now.
K.S. was injured when Mr. Fadael pushed him against the window or when he pushed him against the wall, or both times.
It is clear that K.S. was uncooperative, disrespectful of authority, and disobedient.
It is clear that Mr. Fadael used excessive force in response to the disrespectful and disobedient actions of K.S.
Ms. Kathy Harris was principal of Congress in the 2011-2012 school year. On November 18, 2011, Ms. Harris was asked to come to her office because a parent needed to see her.
The parent was K.S.'s mother, who told Ms. Harris that there was a problem with one of the instructors. After talking with the parent for a while, Ms. Harris asked Mr. Fadael to join them.
She testified that when Mr. Fadael arrived, he defended his actions to the mother. Ms. Harris testified that neither the mother nor Mr. Fadael was listening to what the other was
saying, and they both became very loud and belligerent. She asked Mr. Fadael to leave and requested that he submit a written statement about what had occurred. He submitted a Student Discipline Referral. He described the events as follows:
Student was out of assigned area unsupervised. I asked student to report to his designated area; he refused. I gave him a choice to report to the cafeteria or the gym, and again he refused. Another teacher who was observing the incident asked him to comply, and again the student refused. The teacher attempted to stop him, but the student was still unwilling to cooperate.
When I approached him, he became aggressive and extremely provocative. I was carried [sic] my binder and my briefcase, and he knocked my binder to the floor. At this point I had to restrain him for his own safety and had to call school police for assistance.
As noted earlier, there was scant evidence showing exactly what happened in the alcove off of the hall. There was no credible evidence as to whether the binder was knocked to the floor, or simply was dropped. Even assuming that false information was contained in the Student Discipline Referral, there was no evidence that it was offered with the intent to defraud. Mr. Fadael submitted the Student Discipline Referral for the purposes of having K.S. disciplined, and to justify his own actions. Ms. Harris testified that at the time she received the Student Discipline Referral, she didn't know if it was accurate or not, but she continued her investigation. Although
the referral had requested that K.S. be suspended, this ultimately was not done. In fact, Mr. Fadael was instead given notice of a ten-day suspension. Mr. Fadael did not submit fraudulent information.
Mr. Fadael's demeanor at hearing was confrontational and belligerent. His testimony was generally evasive and not credible.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this case pursuant to sections 120.569 and 120.57(1), Florida Statutes (2014).
Petitioner is responsible for filing complaints and prosecuting allegations of misconduct against instructional personnel. §§ 1012.795(1) & 1012.796(6), Fla. Stat.
Section 1012.01(2)(b) includes within the definition of "instructional personnel" staff members who provide student personnel services, defined as:
Student personnel services include staff members responsible for: advising students with regard to their abilities and aptitudes, educational and occupational opportunities, and personal and social adjustments; providing placement services; performing educational evaluations; and similar functions. Included in this classification are certified school counselors, social workers, career specialists, and school psychologists.
Under section 1012.55(1), school counselors must hold educator certification from the Department of Education.
Petitioner seeks to take action against Respondent's educator certificate as provided in sections 1012.795 and 1012.796. A proceeding to impose discipline against a professional license is penal in nature, and Petitioner bears the burden 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).
Clear and convincing evidence has been said to require: [T]hat 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 explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such 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)).
Respondent is substantially affected by Petitioner's intended decision to discipline his Florida educator certificate and has standing to maintain this proceeding.
COUNT 1
Section 1012.795(1)(g) provided that the Education Practices Commission may suspend the educator certificate of a person found guilty of personal conduct that seriously reduces that person's effectiveness as an employee of the district school board.
While no direct testimony regarding serious reduction of effectiveness was presented at hearing, this may be shown in some instances simply from the nature of the misconduct. Purvis v. Marion Cnty. Sch. Bd., 766 So. 2d 492 (Fla. 5th DCA
2000)(lying under oath and resisting arrest was misconduct that supported inference that effectiveness was impaired); Walker v.
Highlands Cnty. Sch. Bd., 752 So. 2d 127 (Fla. 2d DCA 2000)(commotion in class, including intoxicated student, showed class was out of control such that no evidence of impaired effectiveness was necessary, misconduct "spoke for itself"); Summers v. Sch. Bd. of Marion Cnty., 666 So. 2d 175, 175 (Fla.
5th DCA 1995)(though no specific evidence presented, it was clear that conduct must have impaired effectiveness as a teacher). It is not difficult to conclude from the evidence presented that Respondent's demonstrated resort to physical force against a student in frustration and anger seriously reduces his effectiveness as an employee of the district school board.
COUNT 2
Count 2 alleges that Respondent is in violation of section 1012.795(1)(j), in that he has violated the Principles of Professional Conduct for the Education Profession. Counts 3 through 6 go on to allege the specific violations of these principles. Count 2 does not constitute a distinct disciplinary violation.
COUNT 3
Count 3 alleges that Respondent violated Florida Administrative Code Rule 6B-1.006(3)(a),2/ which at the time of the alleged offense provided:
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.
Respondent's overreaction to the disrespectful conduct of 13-year-old student K.S. caused K.S. physical injury. It is clear that a person charged with making reasonable efforts to protect a student from conditions harmful to the student's physical and mental health violates that duty when the person becomes the instrument which inflicts injury.
Petitioner proved by clear and convincing evidence that Respondent violated rule 6B-1.006(3)(a).
COUNT 4
Count 4 alleges that Respondent violated rule 6B- 1.006(3)(e), providing that an individual shall not intentionally expose a student to unnecessary embarrassment or disparagement.
The excessive physical force used by Respondent against K.S. in the Student Services Office area, as witnessed by school faculty and staff, greatly upset and embarassed K.S., and was completely unnecessary.
Petitioner has proven by clear and convincing evidence that Respondent violated rule 6B-1.006(3)(e).
COUNT 5
Count 5 alleges that Respondent violated rule 6B- 1.006(5)(a), which provided that "obligation to the profession of education requires that the individual shall maintain honesty in all professional dealings." The term "honesty" is not defined in the rule.
Where a term is not defined in law, its common and ordinary meaning applies. Donato v. Am. Tel. & Tel. Co., 767
So. 2d 1146 (Fla. 2000); Cole Vision Corp. v. Dep't of Bus. & Prof'l Reg., 688 So. 2d 404, 410 (Fla. 1st DCA 1997).
The term "honesty" has been defined as "fairness and straightforwardness of conduct; adherence to the facts: sincerity." http://www.merriam-webster.com/dictonary/honesty.
Respondent's statement in the Student Discipline Referral obviously recounted his version of the events of November 18, 2011. The evidence did not show exactly what actions took place, in what sequence, in the small alcove. It was not clearly shown that K.S. did not knock the binder to the floor as Respondent alleged. Other, more elusive questions, such as whether Respondent could reasonably have concluded that
K.S. was acting aggressively, or Respondent's purposes in restraining K.S. cannot be answered without clear and convincing evidence as to what happened in those few seconds. It was not clearly shown that Respondent failed to maintain honesty in all professional dealings because of his assertions in the Student Discipline Referral.
Petitioner failed to prove that Respondent violated rule 6B-1.006(5)(a) by clear and convincing evidence.
COUNT 6
Rule 6B-1.006(5)(h) provided that an individual:
Shall not submit fraudulent information on any document in connection with professional activities.
The parties did not cite, and research did not reveal, any cases interpreting the phrase "fraudulent information" as used in the rule. The word "fraudulent" is defined as "done to trick someone for the purpose of getting something valuable." http://www.merriam-webster.com/dictionary/fraudulent.
Fraudulent information is not simply false information, but information that is offered with the intent to defraud.
The elements of fraud are: (1) a false statement of material fact; (2) the maker of the false statement knew or should have known of the falsity of the statement; (3) the maker intended that the false statement induce another's reliance; and
(4) the other party justifiably relied on the false statement to its detriment. See Cong. Park Office II, LLC v. First-Citizens Bank & Trust Co., 105 So. 3d 602, 606 n.4 (Fla. 4th DCA 2013)(quoting Prieto v. Smook, Inc., 97 So. 3d 916, 917 (Fla. 4th DCA 2012)). The submission of fraudulent information seemingly would include such acts as the submission of false grades to "help" students or inflate school statistics, or the submission of false travel claims for reimbursement.
As noted above, the evidence did not clearly and convincingly show that the facts Respondent alleged in the Student Discipline Referral were false and that he knew them to be false. Grover v. Brumell Investigations, Inc., 915 So. 2d 750, 755 (Fla. 2d DCA 2005). Even had those two elements been shown, it is not at all clear that an exculpatory statement made by a party is intended to "induce reliance" or to "defraud." It was not clearly and convincingly shown that Respondent submitted fraudulent information.
Petitioner did not prove that Respondent violated rule 6B-1.006(5)(h) by clear and convincing evidence.
The Education Practices Commission adopted disciplinary guidelines for the imposition of penalties authorized by section 1012.795 in Florida Administrative Code Rule 6B-11.007.
At the time of the offenses, rule 6B-11.007(2)(f) provided that probation to revocation was the appropriate range of penalty for "engaging in personal conduct which seriously reduces effectiveness as a district school board employee in violation of Section 1012.795(1)(f), F.S."3/
Rule 6B-11.007(2)(i)16. provided that probation to revocation was the appropriate range of penalty for "[f]ailure to protect or supervise students in violation of paragraph 6B- 1.006(3)(a), F.A.C."
Rule 6B-11.007(2)(i)22. provided that probation to revocation was the appropriate range of penalty for other violations of the Principles of Professional Conduct and the Florida Administrative Code.
Rule 6B-11.007(3) provided:
(3) Based upon consideration of aggravating and mitigating factors present in an individual case, the Commission may
deviate from the penalties recommended in subsection (2). The Commission may consider the following as aggravating or mitigating factors:
The severity of the offense;
The danger to the public;
The number of repetitions of offenses;
The length of time since the violation;
The number of times the educator has been previously disciplined by the Commission;
The length of time the educator has practiced and the contribution as an educator;
The actual damage, physical or otherwise, caused by the violation;
The deterrent effect of the penalty imposed;
The effect of the penalty upon the educator's livelihood;
Any effort of rehabilitation by the educator;
The actual knowledge of the educator pertaining to the violation;
Employment status;
Attempts by the educator to correct or stop the violation or refusal by the educator to correct or stop the violation;
Related violations against the educator in another state including findings of guilt or innocence, penalties imposed and penalties served;
Actual negligence of the educator pertaining to any violation;
Penalties imposed for related offenses under subsection (2) above;
Pecuniary benefit or self-gain inuring to the educator;
Degree of physical and mental harm to a student or a child;
Present status of physical and/or mental condition contributing to the violation including recovery from addiction;
Any other relevant mitigating or aggravating factors under the circumstances.
No aggravating or mitigating circumstances are present here to the extent necessary to warrant deviation from the wide range of penalties already permitted within the guidelines.
RECOMMENDED that the Education Practices Commission enter a final order finding Respondent, Mr. Oges Fadael, in violation of sections 1012.795(1)(g) and (j), Florida Statutes, and implementing rules. It is further recommended that the Education Practices Commission impose upon Mr. Fadael a fine of
$1,500.00 and revoke his educator certificate for a period of two years, at the expiration of which time he may receive a new certificate by meeting all certification requirements of the state board current at the time of his application, subject to terms and conditions determined by the Education Practices Commission to be reasonably necessary to ensure that there will
be no threat to students and that he will be capable of resuming the responsibilities of an educator.
Leon County, Florida.
F. SCOTT BOYD Administrative Law Judge
Filed with the Clerk of the Division of Administrative Hearings this 8th day of May, 2015.
1/ All references to Florida Statutes or administrative rules are to the versions in effect in November 2011, on the date of the alleged violations, except as otherwise indicated.
2/ On November 18, 2011, Florida Administrative Code Rule 6A- 10.081(3)(a) did not yet exist. Rule 6B-1.006(3)(a), the substantively identical rule at that time, was not renumbered until January 11, 2013. The other counts in the Administrative Complaint were similarly misdrafted. However, the facts alleged and the text of the rule allegedly violated were clear for each count, and Respondent was not misled or harmed by these defects in pleading.
3/ Section 1012.795 was renumbered by chapter 2008-108, section 32, Laws of Florida. Although the rule was amended in 2009, it continues to reference the old numbering of the paragraphs in the statute. However, the nature of the offenses
is set out in full in the rule, and Respondent is not prejudiced by the mislabeling.
Charles T. Whitelock, Esquire Whitelock and Associates, P.A.
300 Southeast Thirteenth Street, Suite E Fort Lauderdale, Florida 33316 (eServed)
Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244
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.
