STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PAM STEWART, AS COMMISSIONER OF EDUCATION,

Petitioner,

vs.

VICENTE PACHAY,

Respondent.

/

Case No. 15-2539PL

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on October 6, 2015, in Kissimmee, Florida, before Lynne Quimby- Pennock, an Administrative Law Judge of the Division of Administrative Hearings (Division).

APPEARANCES

For Petitioner: Ron Weaver, Esquire

Post Office Box 5675 Douglasville, Georgia 30154-0012

For Respondent: Eric J. Lindstrom, Esquire

Egan, Lev and Siwica, P.A. Post Office Box 5276 Gainesville, Florida 32627

STATEMENT OF THE ISSUE

Whether Respondent violated section 1012.795, Florida Statutes (2015),1/ and implementing administrative rules, as charged in the Administrative Complaint, and if so, what is the appropriate sanction.

PRELIMINARY STATEMENT

On December 4, 2014, Pam Stewart, as Commissioner of Education (Commissioner or Petitioner), filed a five-count Administrative Complaint2/ against Respondent, Vicente Pachay, charging him with violating section 1012.795(1)(d), (g) and (j), and Florida Administrative Code Rules 6A-10.081(3)(a) and (e).

Respondent timely filed an Election of Rights form.3/

On May 6, 2015, the matter was referred to the Division for assignment of an administrative law judge to conduct the hearing. Following two continuances, the hearing was noticed for and concluded on October 6, 2015.

A Joint Pre-Hearing Stipulation provided five uncontested facts. As relevant, those facts may be found below.

At the hearing, Petitioner presented the testimony of Vicente Pachay, K.N., M.N.,4/ Tammy Cope-Otterson, and

Curtis Wesler. Petitioner’s Exhibits 1 through 6, 8 through 10, 12, and 13 were received into evidence. Respondent testified on his own behalf. At the hearing, Respondent’s Exhibit 11 was offered and taken under advisement. On October 19, a notice withdrawing Respondent’s Exhibit 11 was filed. Respondent’s Exhibit 11 was not admitted or reviewed. Respondent did not offer any other exhibits.

The Transcript of the proceeding was filed on November 18, 2015. A Notice of Filing Transcript was issued, and the parties

were advised to file their proposed recommended orders (PROs) on or before the close of business on November 30. Both parties submissions were timely filed and have been carefully considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner is responsible for the investigation and prosecution of complaints against holders of Florida Educator Certificates who are accused of violating section 1012.795 and related rules.

2. At all times material to the allegations in this case, Respondent held Florida Educator’s Certificate 701877. The certificate covered the areas of elementary education, English for Speakers of Other Languages (ESOL), and world language- Spanish. The certificate was valid through June 30, 2015.

3. Respondent has been a teacher for over 20 years. At all times material to this proceeding, Respondent was employed by the Osceola County School District (OCSD) as a teacher at Michigan Avenue Elementary School (Elementary School).

4. The allegations against Respondent arise from Respondent transporting an Elementary School student home after school one day.

5. Tammy Cope-Otterson is the chief human resource officer for the OCSD. OCSD has a policy that requires school personnel to have approval from the principal before transporting a

   
   

   student. OCSD has a rule that requires written consent from a parent before a student can be transported in a private vehicle.

6. Respondent admitted that he was aware that it was against school district rule to transport students in a personal vehicle without permission from the school district or the student’s parents.

7. During the 2008-2009 school year, K.N. was a student in Respondent’s second-grade class at the Elementary School. While

   K.N. was in Respondent’s class, M.N. (K.N.’s mother) expressed that she was not fond of Respondent’s teaching methods.

8. During the 2010-2011 school year, K.N. was ten years old and in fourth grade at the Elementary School. Following the completion of the 2010-2011 regular school year, K.N. enrolled in the Elementary School summer enrichment program, called the Spirit Program. Respondent served as a physical education instructor for the Spirit Program.

9. When M.N.’s work hours changed, she and K.N. walked to and from the Elementary School to establish K.N.’s daily route.

   K.N. was allowed to walk or ride her bike to the Elementary School. M.N and K.N. lived on 10th Street, approximately 15 blocks from the Elementary School.

10. On July 6, 2011, K.N. started to ride her bike to the Elementary School. During the ride, she noticed that a tire was becoming flat. K.N. stopped at a local convenience store and

    
    

    attempted to put air in the tire, to no avail. She walked the rest of the way to the Elementary School, parked her bike in the bike rack, and left a voice message for M.N. that she had arrived at the Elementary School.

11. After the Spirit Program ended for the day on July 6,

    
    

    K.N. left her bike at school and started walking home via the established route. K.N. walked to the corner of Michigan and 10th Street and crossed over Michigan to be on the south side of 10th Street. Because it was a hot day, K.N. rested in some shade, a little south of the corner. Respondent stopped his car close to K.N. Respondent used his authoritative teacher voice and told K.N. to get in the car. K.N. got into Respondent’s

    car.

    
    

12. Respondent admitted that K.N. got into his private

    
    

    car. He then drove a block south on Michigan Avenue, turned west on 11th Street, drove two blocks, turned right on Indiana Avenue, drove two blocks, turned east on 9th Street, drove one block, turned south on Illinois Avenue and stopped at the corner of Illinois Avenue and 10th Street. K.N. got out of Respondent’s car and walked to her home on 10th Street.

13. Respondent testified that he wanted to let K.N. out on her home’s (north) side of the street so she could use the sidewalk to safely get home. There was no sidewalk on the north side of 10th street.

    
    

14. K.N. credibly testified that as Respondent was driving her around, he placed his hand on her left thigh and rubbed it.

    K.N. was “upset,” “very uncomfortable,” and “wanted to crawl out of [her] own skin.” K.N. also credibly testified that Respondent asked if she wanted to go for ice cream, which she declined.

15. Later that same day, Respondent was questioned about whether he had any interaction with K.N. after school on July 6. Initially Respondent denied any interaction with K.N., but later admitted that he had picked K.N. up and taken her home. Respondent did not take K.N. home, but merely dropped her off down the street from her home.

16. Respondent’s selective memory about the events of July 6 lessens his credibility and his testimony is deemed unreliable.

17. Respondent was arrested and criminally charged. While he awaited his court date, OCSD initially suspended and later terminated Respondent’s employment. There was extensive media coverage. Respondent was acquitted or found not guilty in the criminal matters.

    PRIOR CONDUCT

    
    

18. On November 10, 2000, a Final Order was entered by the Education Practices Commission of the State of Florida (EPC) involving Respondent. Respondent was alleged to have allowed an

    
    

    ineligible player to participate in a soccer game. Respondent did not contest the allegations and entered a Settlement Agreement that was accepted by the EPC. Respondent agreed to be reprimanded, placed on probation for one year, refrain from violating any laws, fully comply with all district school board regulations, rules and State Board of Education rule 6B-1.006, pay $150 to defray the costs of his monitoring while on probation, and satisfactorily perform his assigned duties. The allegations in the 2000 matter are not similar to the allegations in the instant case, were resolved in 2000, and Respondent successfully completed his probation.

    CONCLUSIONS OF LAW

    
    

19. 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.

20. The Florida Education Practices Commission is the state agency charged with the certification and regulation of Florida educators pursuant to chapter 1012, Florida Statutes.

21. This is a proceeding in which Petitioner seeks to permanently revoke 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).

    
    

22. Clear and convincing evidence “requires more proof than a ‘preponderance of the evidence’ but less than ‘beyond and to the exclusion of a reasonable doubt.’” In re Graziano, 696

    So. 2d 744, 753 (Fla. 1997). As stated by the Florida Supreme Court, the standard:

    [E]ntails both a qualitative and quantitative standard. The evidence must be credible; the memories of the witnesses must be clear and without confusion; and the sum total of the evidence must be of sufficient weight to convince the trier of fact without hesitancy.

    
    

    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 Davey, 645 So. 2d 398, 404 (Fla. 1994)(quoting, with approval, Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA

    1983)); see also In re Henson, 913 So. 2d 579, 590 (Fla. 2005). "Although this standard of proof may be met where the evidence is in conflict, it seems to preclude evidence that is ambiguous." Westinghouse Elec. Corp. v. Shuler Bros., 590 So.

    2d 986, 989 (Fla. 1st DCA 1991).

    
    

23. Charges in a disciplinary proceeding must be strictly construed, with any ambiguity construed in favor of the licensee. Elmariah v. Dep’t of Prof’l Reg., 574 So. 2d 164, 165

    (Fla. 1st DCA 1990); Taylor v. Dep’t of Prof’l Reg., 534 So. 2d 782, 784 (Fla. 1st DCA 1988). Disciplinary statutes must be construed in terms of their literal meaning, and words used by the Legislature may not be expanded to broaden their application. Beckett v. Dep’t of Fin. Servs., 982 So. 2d 94,

    99-100 (Fla. 1st DCA 2008); Dyer v. Dep’t of Ins. & Treas., 585 So. 2d 1009, 1013 (Fla. 1st DCA 1991). A licensee may only be disciplined for those matters specifically alleged in the Administrative Complaint. Trevisani v. Dep’t of Health, 908 So.

    2d 1108 (Fla. 1st DCA 2005); Ghani v. Dep’t of Health, 714 So. 2d 1113 (Fla. 1st DCA 1998); and Willner v. Dep’t of Prof’l

    Reg., 563 So. 2d 805 (Fla. 1st DCA 1990). And, the allegations against Respondent must be measured against the law in effect at the time of the commission of the acts alleged to warrant discipline. McCloskey v. Dep’t of Fin. Servs., 115 So. 3d 441 (Fla. 5th DCA 2013).

24. The Administrative Complaint is based upon the following factual allegations:

    1. On or about July 20, 2000, the Commissioner of Education found probable cause to sanction the Respondent’s Florida Educator Certificate for allowing an ineligible player to participate in a

       
       

       varsity soccer game representing the school.

       
       

    2. On or about July 6, 2011, the Respondent engaged in inappropriate behavior towards 10-year-old student K.N. The Respondent asked K.N., three times to give her a ride home. After the third attempt, K.N. got into the Respondent’s vehicle and the Respondent drove K.N. home. While driving, the Respondent asked K.N. if she wanted ice cream, or words to that affect. Further, the Respondent rubbed K.N.’s thigh area while driving.

       
       

    3. On or about July 29, 2011, the Respondent was arrested and charged with Luring or Enticing a Child and Battery.

       
       

    4. On or about August 11, 2011, the Respondent was charged with Luring or Enticing a Minor and Battery.

       
       

    5. This incident was reported in the local news.

       
       

       * * *

       
       

       1. On or about January 11, 2012, the Respondent was suspended with pay and recommended for termination.

          
          

       2. On or about February 13, 2012, the Osceola County School Board approved the Respondent’s termination.

          
          

       3. On or about June 28, 2012, the Respondent was acquitted by jury trial of Luring or Enticing a child under 16 years of age. The Respondent was also found not guilty by jury trial of Battery.

          
          

       4. On or about April 3, 2013, the Respondent was found not guilty by a jury of Lewd or Lascivious Conduct and Unnatural or Lascivious Act.5/

       
       

25. Section 1012.795 provides in relevant 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:

    
    

    * * *

    
    

    (d) Has been guilty of gross immorality or an act involving moral turpitude as defined by rule of the State Board of Education.

    
    

    * * *

    
    

    (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.

    
    

26. Rule 6A-10.081 provides in pertinent part:

    
    

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

    
    

    * * *

    
    

    1. 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.

    
    

27. Osceola County School Board Rule 8.36 provides in pertinent part:

    1. The parent, as defined by Florida Statutes, of each student shall be notified in writing about the transportation arrangement and shall give written consent before a student is transported in a private vehicle except in an emergency situation.

       
       

    2. Violation of this policy shall result in disciplinary action up to and including termination.

    
    

28. Section 1012.796 describes the disciplinary process for educators, and provides in pertinent part:

    
    

    1. Upon the finding of probable cause, the commissioner shall file a formal complaint and prosecute the complaint pursuant to the provisions of chapter 120. An administrative law judge shall be assigned by the Division of Administrative Hearings of the Department of Management Services to hear the complaint if there are disputed issues of material fact. The administrative law judge shall make recommendations in accordance with the provisions of subsection (7) to the appropriate Education Practices Commission panel which shall conduct a formal review of such recommendations and other pertinent information and issue a final order. The commission shall consult with its legal counsel prior to issuance of a final order.

       
       

    2. A panel of the commission shall enter a final order either dismissing the complaint or imposing one or more of the following penalties:

       
       

       1. Denial of an application for a teaching certificate or for an administrative or supervisory endorsement on a teaching certificate. The denial may provide that the applicant may not reapply for certification, and that the department may refuse to consider that applicant’s application, for a specified period of time or permanently.

          
          

       2. Revocation or suspension of a certificate.

          
          

       3. Imposition of an administrative fine not to exceed $2,000 for each count or separate offense.

          
          

       4. Placement of the teacher, . . . on probation for a period of time and subject to such conditions as the commission may specify, including requiring the certified teacher, administrator, or supervisor to complete additional appropriate college courses or work with another certified

          
          

          educator, with the administrative costs of monitoring the probation assessed to the educator placed on probation. An educator who has been placed on probation shall, at a minimum:

          
          

          1. Immediately notify the investigative office in the Department of Education upon employment or termination of employment in the state in any public or private position requiring a Florida educator’s certificate.

             
             

          2. Have his or her immediate supervisor submit annual performance reports to the investigative office in the Department of Education.

             
             

          3. Pay to the commission within the first

             6 months of each probation year the administrative costs of monitoring probation assessed to the educator.

             
             

          4. Violate no law and shall fully comply with all district school board policies, school rules, and State Board of Education rules.

             
             

          5. Satisfactorily perform his or her assigned duties in a competent, professional manner.

             
             

          6. Bear all costs of complying with the terms of a final order entered by the commission.

          
          

       5. Restriction of the authorized scope of practice of the teacher, administrator, or supervisor.

          
          

       6. Reprimand of the teacher, administrator, or supervisor in writing, with a copy to be placed in the certification file of such person.

          
          

       7. Imposition of an administrative sanction, upon a person whose teaching certificate has expired, for an act or acts committed while that person possessed a

          
          

          teaching certificate or an expired certificate subject to late renewal, which sanction bars that person from applying for a new certificate for a period of 10 years or less, or permanently.

          
          

       8. Refer the teacher, . . . to the recovery network program provided in

    s. 1012.798 under such terms and conditions as the commission may specify.

    
    

29. Count I of the Administrative Complaint alleged that Respondent violated section 1012.795(1)(d), "in that Respondent has been guilty of gross immorality or an act involving moral turpitude as defined by rule of the State Board of Education."

30. The Ethics in Education Act, chapter 2008-108, § 32, Laws of Florida, amended section 1012.795(1)(d) to add the phrase "as defined by rule of the State Board of Education," creating the statute as it appears at present. In May 2015, rule 6A-10.083 became effective which provided “Standards Relating to Gross Immorality and Acts of Moral Turpitude.” Had this rule been in place when Respondent transported K.N. or when he was arrested and charged with the criminal offenses, he would be in violation. However, it is well-settled that someone cannot violate a law that was not in place at the time of the incident. McCloskey at 444; Art 1, § 10, Fla. Const.

31. Count 2 of the Administrative Complaint alleged a violation of section 1012.795(1)(g), by being "found guilty of personal conduct which seriously reduces his effectiveness as an employee of the school board." Although the conduct did not

    
    

    occur on school board property, K.N. felt compelled to obey Respondent’s authoritative direction to get in his car.

    Respondent used his position as a teacher to compel K.N. to get in his car. Respondent's inappropriate conduct, driving K.N. close to her home without authorization from K.N.’s parent or Respondent’s principal, seriously reduced his effectiveness as a school district employee. Count 2 has been proven by clear and convincing evidence.

32. Count 3 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. Count 3 does not constitute an independent violation, but rather is dependent upon corresponding violations of the rules constituting the Principles of Professional Conduct for the Education Profession (rule 6A-10.081), which are alleged in counts 4 and 5.

33. Count 4 of the Administrative Complaint alleged a violation of rule 6A-10.081(3)(a), in that Respondent failed to make reasonable efforts to protect the student from conditions harmful to learning or to the student’s mental or physical health or safety.

34. The evidence demonstrated that Respondent knew of the school district’s rule regarding transporting students. Respondent readily admitted that he picked up K.N., a student,

    
    

    took her close to her home. Respondent placed K.N. in a situation that caused her to be upset, uncomfortable and “wanting to crawl out of [her] own skin.” These are all conditions that are harmful to a student’s mental health, physical health or safety. Petitioner has proven a violation of Count 4 by clear and convincing evidence, and thus a violation of section 1012.795(1)(j).

35. Count 5 of the Administrative Complaint alleged a violation of rule 6A-10.081(3)(e), in that Respondent had intentionally exposed a student to unnecessary embarrassment or disparagement. This count is supported by clear and convincing evidence.

36. The disciplinary guidelines for educators are found in rule 6B-11.007. The penalty range for a violation of section 1012.795 and/or the Principles of Professional Conduct for the Education Profession, rule 6A-10.081, is probation to revocation. Fla. Admin. Code R. 6B-11.007(2)(f) and

    6B-11.007(2)(i)22. The guidelines also list aggravating and mitigating factors to be considered in determining whether to deviate from the guidelines.

37. While the 2000 Final Order is in Respondent’s record, the allegations were 15 years ago and are not sufficiently similar to the allegations herein to be used as an aggravating factor.

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 violated sections 1012.795(1)(g) and (j), and rule 6A-10.081(3)(a), and that he did not violate section 1012.795(1)(d), and

rule 6A-10.081(3)(e).

It is further RECOMMENDED that the Education Practices Commission suspend Respondent’s educator certificate for five years, followed by five years of probation. The Education Practices Commission shall establish the terms and conditions of Respondent’s suspension and probation, which may include the cost of monitoring the suspension and probation.

DONE AND ENTERED this 17th day of December, 2015, in Tallahassee, Leon County, Florida.

S

LYNNE A. QUIMBY-PENNOCK

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 December,2015.

ENDNOTES

1/ All statutory references are to Florida Statutes (2015) unless otherwise indicated.

2/ Prior to the start of the hearing, Petitioner confirmed and Respondent’s counsel agreed that the allegations in paragraphs 8 and 9 would not be pursued.

3/ These documents indicated that Respondent selected the Settlement Option, which provided a 45-day period to try to negotiate a settlement with the Office of Professional Practices Services. On May 4, 2015, Petitioner’s Office of the General Counsel requested that the matter be sent to the Division.

4/ One student testified. In order to protect the student’s privacy, the Recommended Order refers to the minor student and her parent by initials.

5/ These two paragraphs were withdrawn from consideration by Petitioner.

COPIES FURNISHED:

Ron Weaver, Esquire Post Office Box 5675

Douglasville, Georgia 30154-0012 (eServed)

Gretchen K. Brantley, Executive Director Education Practices Commission Department of Education

Turlington Building, Suite 316

325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)

Eric J. Lindstrom, Esquire Egan, Lev and Siwica, P.A. Post Office Box 5276 Gainesville, Florida 32627 (eServed)

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

325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)

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 (eServed)

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: 15-002539PL

Orders for Case No: 15-002539PL