STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PAM STEWART, AS COMMISSIONER OF EDUCATION,

Petitioner,

vs.

MATTHEW FONTES,

Respondent.

/

Case No. 15-3499PL

RECOMMENDED ORDER

On October 1, 2015, a disputed fact hearing was held in this case by video teleconferencing, with sites in Tampa and Tallahassee, Florida, before J. Lawrence Johnston, Administrative Law Judge, Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Ron Weaver, Esquire

Post Office Box 5675 Douglasville, Georgia 30154-0012

For Respondent: Branden M. Vicari, Esquire

Herdman and Sakellarides, P.A. Suite 110

29605 U.S. Highway 19 North

Clearwater, Florida 33761 STATEMENT OF THE ISSUE

The issue in this case is whether the Education Practices Commission should take disciplinary action against the teaching certificate held by the Respondent, Matthew Fontes, based on an

Administrative Complaint charging him with violating Florida Administrative Code Rule 6A-10.081(3)(a)(failure to make reasonable effort to protect students from conditions harmful to learning or to students’ mental or physical health or safety) and, therefore, violating section 1012.795(1)(j), Florida

Statutes (2014).

PRELIMINARY STATEMENT

The Respondent requested a disputed fact hearing on the Administrative Complaint, which was forwarded to DOAH. At the hearing, the Petitioner called eight witnesses: the Respondent; Kelly Slade; Dustin Sassic; Matthew Phillips, Ed.D.; Tammy Cope- Otterson; B.S.; K.S.; and A.L. (Initials are used to protect the students’ rights to confidentiality.) Petitioner’s Exhibits 1 through 3, 5, 6, and 13 were admitted in evidence. (The Petitioner’s Exhibit 17, a diagram drawn at the Orlando video teleconferencing site, was not filed at DOAH.) The Respondent testified and called two witnesses, S.W. and H.F. Respondent’s Exhibit 2 was admitted into evidence. Objections to the Respondent’s other exhibits have been sustained.

The Transcript of the final hearing was filed on

November 19, 2015. Each party filed a proposed recommended order that has been considered.

FINDINGS OF FACT

1. The Respondent holds Florida educator certificate 1138466, which expires on June 30, 2018. He is certified in guidance and counseling. From 2010 to 2014, he was a middle school guidance counselor at Narcoossee Community School in Osceola County.

2. On October 9, 2013, two Narcoossee students, K.S. and H.F., got into a verbal argument. At the end of school the next day, K.S. got onto the bus and became concerned by the “dirty look” and hard stare H.F. was giving her and thought that more arguing and possibly physical fighting would take place if she stayed on the bus. To avoid a fight, K.S. and her cousin, A.L., got off the bus and went to the school’s administration building for K.S. to call her mother at work to pick them up. K.S. was adamant about not riding the bus, so her mother agreed to leave work and pick them up.

3. K.S. and A.L. then went to find a school administrator.

   
   

   They found the Respondent in his office helping another student, S.W., with a written statement about an unrelated bullying incident.

4. Standing in the doorway to the Respondent’s office, K.S. told the Respondent that she did not feel comfortable riding the bus home because a girl on the bus was giving her “dirty looks” and bothering her, and she was afraid there was going to be a

   
   

   fight. She did not say who the other girl was. She told the Respondent that she had called her mother, who was on her way to drive her and her cousin home, and asked if she could wait in the office for her. The Respondent asked if they were signed up for the after-school program for students who did not take the bus home and was told that they were not. The Respondent noticed Kelly Slade, a paraprofessional at the school, in the hallway and asked her if the office was closed, which it was. The Respondent then told the two students that he could not wait with them because he had an appointment with an air-conditioning repairman, and that they would have to ride the bus. He did not look for or use his school-issued radio to call another administrator.

   Instead, he led K.S. and A.L. back to the bus loading area.

   
   

5. When they got outside the building, the buses were starting to leave the bus loading area. As he was running up to Dustin Sassic, the administrator in charge of buses, the Respondent yelled at him to hold the buses. Mr. Sassic complied with the Respondent’s request. As the Respondent approached

   Mr. Sassic, the students got on their bus, and Mr. Sassic “rolled” the buses (i.e., signaled to the bus drivers to continue to leave the school). When the Respondent reached Mr. Sassic, he told him there had been a problem, but the Respondent had to leave for an appointment. Mr. Sassic could not recall any specifics about the problem mentioned by the Respondent. The

   
   

   Respondent then walked directly to the teacher parking lot and left school to meet the air-conditioning repairman at his house.

6. Not long after the buses left, H.F. started a fight with

   
   

   K.S. and punched her in the nose, causing it to bleed. The bus driver stopped the bus, and emergency medical services and the sheriff’s office were called.

7. On her way to the school, K.S.’s mother received a telephone call from her daughter and was told what had happened. She then got a call from an emergency medical services technician regarding her daughter’s nosebleed and treatment and the location of the bus. She drove directly to the bus to see to her daughter’s needs.

8. The next day, K.S.’s mother and father went to the school to ask the principal, Dr. Matthew Phillips, why their daughter was not allowed to wait for her under the circumstances, but instead was made to take the bus. At the time, the principal knew nothing about the incident. He followed up on the complaint by talking to Mr. Sassic and initiating an investigation.

9. As a result of the investigation, the Respondent was reprimanded by the Osceola County School District for violating parts of the Principles of Professional Conduct, including rule 6A-10.081(3) regarding protecting students from harm. At the end of the school year, Dr. Phillips decided not to renew the Respondent’s employment contract because of the K.S. incident and

   
   

   other “struggles” in meeting the requirements of his job as guidance counselor at the school. Since then, the Respondent has not been employed as a teacher; he has been employed by his uncle, who has health problems, helping to take care of him and his orchard.

10. The Respondent’s version of the incident on October 10, 2013, was starkly inconsistent with the greater weight of the evidence. He testified that K.S. did not appear to be at all stressed or upset about having to ride the bus and only told him that someone on the bus was bothering her. All the other witnesses confirmed that K.S. was visibly upset, definitely did not want to ride the bus that day, and told the Respondent that her mother was on the way to drive her home. Even if all K.S. said was that someone on the bus was bothering her, the Respondent asked no questions to better understand the situation.

11. The Respondent then testified that he asked Ms. Slade, the paraprofessional, to supervise the cousins while he dealt with the other student in his office and to try to determine the facts and whether the cousins should ride the bus. He testified that he finished with the other student and returned to Ms. Slade and the cousins. He testified that Ms. Slade told him the cousins just said someone was bothering them and that she believed they should ride the bus. Ms. Slade categorically denied that any of this actually took place. Again, even if it

    
    

    happened that way, it would have been incumbent on the Respondent, as guidance counselor, to ask more questions to resolve the matter.

12. The Respondent also testified that he explained the situation to Mr. Sassic, who concurred that the students should be required to ride the bus. Mr. Sassic denied this, and the greater weight of the evidence refutes the Respondent’s testimony.

13. Simply put, the greater weight of the evidence was that the Respondent wanted to leave school to make his appointment with the air-conditioning repairman. This desire led to a poor decision to place the cousins back on the bus without giving the matter adequate attention. He unreasonably took a chance that the threat to K.S. was not credible. This placed K.S. in physical danger.

14. The offices of the school’s other administrators, including the principal, Dr. Phillips, were a short distance from the Respondent’s office. If the Respondent was too busy to help K.S., he should have gone to one of the other administrators for assistance. The Respondent also had a school-issued radio, as did all the administrators at the school, but did not attempt to use it to call for assistance.

    
    

    CONCLUSIONS OF LAW

    
    

15. The Education Practices Commission (EPC) regulates the certification and discipline of teachers in Florida.

    Disciplinary proceedings like this one are considered to be penal in nature.

16. The Administrative Complaint charges the Respondent with failing to protect the health and safety of K.S. in violation of rule 6A-10.081(3)(a)(failure to make reasonable effort to protect students from conditions harmful to learning or to students’ mental or physical health or safety), which is part of the Principles of Professional Conduct governing Florida teachers, which constitutes a violation of section 1012.795(1)(j), Florida Statutes (2014).

17. The Petitioner must prove the charges against Respondent by clear and convincing evidence. See Dep’t of Banking & Fin. v. Osborne Stern & Co., 670 So. 2d 932 (Fla.

    1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987). As the

    
    

    Supreme Court of Florida stated quoting Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983):

    [C]lear 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 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).

    
    

18. It is not always possible for a teacher to prevent one student from physically injuring another student. In this case, however, the evidence was clear and convincing that the Respondent failed to make reasonable efforts to protect K.S. from conditions harmful to her physical health and safety by placing her back on the bus. This is a violation of section 1012.795(j), by violating rule 6A-10.081(3)(a).

19. Rule 6B-11.007(1)-(2) sets out the penalty guidelines for statutory and rule violations. The range of discipline for a violation of rule 6A-10.081(3)(a) and section 1012.795(1)(j) is from probation to revocation. Fla. Admin. Code R. 6B- 11.007(2)(i)16. Section (3) of the rule authorizes the EPC to deviate from the routine range of penalties upon consideration of aggravating and mitigating factors listed (a) through (t). Consideration of those factors does not warrant a deviation from the routine range of discipline for the proven violation.

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 the Respondent guilty as charged and suspending his teacher certificate for six months to impress on

him the importance of taking responsibility for his actions and acting in accordance with the Principles of Professional Conduct in general, and rule 6A-10.081(3)(a) in particular.

DONE AND ENTERED this 6th day of January, 2016, 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 6th day of January, 2016.

COPIES FURNISHED:

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

Turlington Building, Suite 316

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

Branden M. Vicari, Esquire Herdman and Sakellarides, P.A. Suite 110

29605 U.S. Highway 19 North

Clearwater, Florida 33761 (eServed)

Ron Weaver, Esquire Post Office Box 5675

Douglasville, Georgia 30154-0012 (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: 15-003499PL

Orders for Case No: 15-003499PL