STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PAM STEWART, AS COMMISSIONER OF EDUCATION,

Petitioner,

vs.

DEBORAH HIX,

Respondent.

/

Case No. 15-6020PL

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on February 25 and 26, 2016, in Sanford, 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 770088 Ocala, Florida 34477-0088

For Respondent: Douglas William Abruzzo, Esquire

Post Office Box 781746 Orlando, Florida 32878

STATEMENT OF THE ISSUES

Whether Respondent violated section 1012.795(1)(g) and (j), Florida Statutes (2015),1/ or Florida Administrative Code

Rule 6A-10.081(3)(a), (e), or (i),2/ as charged in the Amended

Administrative Complaint, and, if so, what is the appropriate

sanction.

PRELIMINARY STATEMENT

On June 22, 2015, Pam Stewart, as Commissioner of Education (Commissioner or Petitioner), filed a five-count Administrative Complaint against Respondent, Deborah Hix, charging her with violating section 1012.795(1)(g) and (j) and rule 6A- 10.081(3)(a), (e), and (i). Respondent timely filed a Request for Formal Hearing through an individual who requested to be recognized as her qualified representative.

On October 23, 2015, the matter was referred to the Division for assignment of an administrative law judge to conduct the hearing. On November 4, 2015, the Order Accepting Qualified Representative issued. The case was transferred to the undersigned on November 5, 2015. On December 10, 2015, a notice of appearance was filed by Respondent’s current counsel.3/ On December 29, 2015, Petitioner’s Unopposed Motion for Leave to Amend Administrative Complaint was filed. This motion was granted on January 7, 2016. Following one continuance, the hearing was noticed for February 25 and 26, 2016. The hearing concluded on February 26, 2016.

Petitioner presented the testimony of Connie Collins, D.D.,4/ C.M., M.R., E.B., Patsy Guy, Kenneth Van Bevan, Jr., C.P., and Ms. C.P. (C.P.’s mother). Petitioner’s Exhibits 1

through 9 were received into evidence. Respondent testified on her own behalf. Respondent did not offer any exhibits.

At the conclusion of the hearing, the parties were advised that any post-hearing submissions were due ten days after the transcript was filed. On March 4, 2016, Respondent’s Motion for Recommended Dismissal was filed. Based on the Findings of Fact herein, that motion is denied.

The three-volume Transcript of the proceeding was filed on April 5, 2016. 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 April 15, 2016. On April 11, 2016, Petitioner’s Opposed Motion for Extension of Time to File Proposed Recommended Orders was filed. On April 12, 2016, Respondent’s Partial Opposition to Petitioner’s Motion for Extension of Time to File Proposed Recommended Orders was filed. An Order Granting Extension of Time was issued on April 13, 2016.

On April 22, 2016, Respondent’s Motion to Supplement the Record was filed. Petitioner filed a Response in Opposition to Respondent’s Motion to Supplement Record.5/ The motion was denied on April 28, 2016.

Each party timely filed a PRO. Each PRO has been carefully reviewed 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 1023593. The certificate covers the area of chemistry, and is valid through June 30, 2019.

3. Respondent became a full-time high school teacher in the Seminole County School District (SCSD) during the 2006-2007 school year. At all times material to the allegations, Respondent was employed by the SCSD as a teacher at Seminole High School (High School).

4. In or around October 2013, Respondent was asked if she would be interested in working with the Hospital Homebound program (HH).6/ The HH offered to compensate Respondent for the time she spent assisting students. Respondent agreed to be involved with the HH. Respondent was assigned to tutor C.P.

5. During the 2013-2014 school year, C.P. attended the High School, and was a student in one of Respondent’s classes.

   C.P. candidly testified that he had scoliosis.7/ In late November 2013, C.P. had surgery to correct his spine. The surgery included placing rods in his back to straighten it.

   
   

6. In early December 2013, Respondent went to C.P.’s home to begin the tutoring. On her initial visit to C.P.’s home, she brought C.P. a Slurpee, and found him resting in his bed.

7. C.P. understood that Respondent was to help him keep current in all of his classes. C.P. did not show Respondent his back and did not tell Respondent that he had rods or wires in his back. C.P. did not discuss with Respondent a need for food or that he needed a new mattress. A short time later, Respondent left C.P.’s residence, and later returned with fried chicken, books, Cheez-it crackers, and a poinsettia flower.

8. Respondent went to Principal Collins and expressed concerns about C.P.’s health and his family’s financial situation. Respondent opined that C.P.’s family was “poor.” Respondent told Principal Collins she had taken food and other items to the family. Respondent also told Principal Collins there were wires coming out of C.P.’s back and thought a better mattress would help C.P. Respondent wanted to know if the school could help the family. Principal Collins appreciated the concern Respondent had for C.P.’s circumstances, but it was not something the High School could provide.

9. Ms. Guy works in the front office of the High School.

   
   

   Respondent told Ms. Guy there was no food in C.P.’s home. Ms. Guy did not inquire about C.P., and did not know why Respondent discussed private student information with her.

   
   

10. D.D. was in Respondent’s sixth-period class at the High School during the 2013-2014 school year. D.D. credibly testified that Respondent spoke of a student whom she was tutoring. Respondent told the class that the student was ill, could not walk and did not have any food in the home, so she brought chicken to the family. D.D. heard that Respondent spent

    $40 on C.P.’s family. Respondent later stated C.P.’s name to the students.

11. C.M. was in Respondent’s first-period class at the High School during the 2013-2014 school year. C.M. is not one of C.P.’s “immediate friends” and had no knowledge of C.P.’s surgery before Respondent spoke of it. C.M. credibly testified that Respondent told students that C.P. did not look well, and she could see wires on C.P.’s back.

12. M.R. was in one of Respondent’s classes at the High School during the 2013-2014 school year. M.R. credibly testified that while other students were in the classroom, Respondent told the students that C.P.’s family did not have food, and he was too weak to get out of his bed.

13. M.R. testified that she, E.B., C.P., Student J, and Student C were friends. M.R. also testified that C.P. shared with his friends about his upcoming back surgery.

14. E.B. was in Respondent’s sixth-period class at the High School during the 2013-2014 school year. E.B. credibly

    
    

    testified that Respondent told the class about C.P.’s physical condition. E.B. acknowledged that he and C.P. were friends, almost like brothers. After Respondent made the statements in class concerning C.P., E.B. immediately texted C.P. regarding her comments. Following Respondent’s comments in class, E.B. had other students coming to him, inquiring about C.P.’s well- being.

15. When C.P. heard what Respondent had said in her classes, C.P. was “saddened, a little bit angry and upset.”

    C.P. then texted his mother at work, who became upset upon hearing what information was shared about her son.

16. Ms. C.P. is a single working mom. The family lives in a four-bedroom, two-bath, and two-living room house. Ms. C.P. has paid the mortgage on the house for over 20 years.

17. Ms. C.P. took time off from work to go to the High School. Initially Ms. C.P. spoke with Ms. Guy and expressed her rage at the private information shared about her son. Ms. C.P. spoke with an assistant principal about what Respondent had said in her classes.

18. Ms. C.P. and C.P. went to the High School after C.P. heard more of what Respondent had said about C.P. Prior to going to the High School, Ms. C.P. went to the bank, withdrew

    $40 and gave it to C.P., so he, in turn, could give the money to Respondent. While on the High School campus, C.P. went to

    
    

    Respondent’s classroom, and gave the $40 to Respondent. C.P. wanted to give Respondent the $40 as he did not want to be portrayed as poor. C.P. credibly testified that “I’m not poor in my eyes so I felt it was necessary to reimburse her [Respondent] for what she claimed that she spent in food for

    me.”

    
    

19. As part of an investigation into the allegations made

    
    

    by Ms. C.P. and C.P., Principal Collins invited students from Respondent’s classes to provide statements regarding any comments made by Respondent about C.P. The statements, written by individual students who testified at the hearing, and which were ratified as true when written, demonstrated that Respondent had specifically referenced C.P., his medical condition, Respondent’s thoughts that C.P. was poor, and that Respondent had brought food and a flower to him.

20. During the 2013-2014 school year, Mr. Bevan served as an Assistant Principal (AP) at the High School. Following reports of confidential student information being shared with other students, AP Bevan interviewed several students. He then attempted to provide Respondent with an opportunity to discuss the circumstances from her perspective. Respondent became somewhat distraught and AP Bevan offered to obtain coverage for her class. Respondent calmed down and declined the offer of coverage. Respondent left AP Bevan’s office and went to the

    
    

    media center where her class was to meet. Respondent did not stay with the class, but instead left the campus.

21. Following the investigation, Principal Collins determined there were inappropriate confidential matters about

    C.P. shared with other students and staff. As a result, on December 18, 2013, Principal Collins issued a letter of reprimand to Respondent.

22. The Superintendent recommended and the SCSB approved a two-day suspension as a result of Respondent’s conduct. Respondent was on medical leave beginning on January 7, 2014, through March 10, 2014. Respondent served the suspension on April 15 and April 22, 2014.

23. Respondent’s disciplinary history also includes an October 25, 2013, letter of reprimand for using profanity with a

    student.

    
    

    CONCLUSIONS OF LAW

    
    

24. 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.

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

    
    

26. This is a proceeding in which Petitioner seeks to suspend Respondent's educator certificate. Because disciplinary proceedings are considered penal in nature, Petitioner is required to prove the allegations in the Amended 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).

27. 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).

28. 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).

    
    

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

    1. In or around December 5, 2013, Respondent tutored C.P., a sixteen-year-old male student who was medically homebound.

       
       

       Respondent subsequently revealed to students, school teachers and administrators, confidential personal and medical information about C.P. Respondent also told students, school teachers and administrators, false information regarding C.P.’s family living and financial affairs.

       
       

    2. On or about January 14, 2014, Respondent was suspended for a period of two days from her teaching position with the District as a result of her actions.

       
       

       The Amended Administrative Complaint alleged that Respondent violated section 1012.795(1)(g), and (j); and rule 6A- 10.081(3)(a), (e), and (i).

30. 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:

    
    

    * * *

    
    

    (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.

    
    

31. 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.

    
    

    * * *

    
    

    (i) Shall keep in confidence personally identifiable information obtained in the course of professional service, unless

    
    

    disclosure serves professional purposes or is required by law.

    
    

32. Section 1012.796, which describes the disciplinary process 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

    2. 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.

    
    

    1. 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.

    
    

33. Count 1 of the Amended Administrative Complaint alleged a violation of section 1012.795(1)(g), by being "found guilty of personal conduct that seriously reduces that person’s effectiveness as an employee of the district school board." Petitioner has proven a violation of Count 1 by clear and convincing evidence.

34. Count 2 of the Amended Administrative Complaint alleged a violation of section 1012.795(1)(j). Count 2 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 3, 4, and 5.

35. Count 3 of the Amended 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 and/or to the student’s mental health and/or physical health and/or safety.

36. The evidence demonstrated that Respondent discussed C.P.’s medical condition and her assessment of his family’s financial circumstances to students and staff at the High School. C.P. became upset when he learned his private matters were made public. This is harmful to a student’s mental and/or physical health. Petitioner has proven a violation of Count 3 by clear and convincing evidence.

37. Count 4 of the Amended Administrative Complaint alleged a violation of rule 6A-10.081(3)(e), in that Respondent has intentionally exposed a student to unnecessary embarrassment or disparagement. This count is supported by clear and convincing evidence.

38. Count 5 of the Amended Administrative Complaint alleged a violation of rule 6A-10.081(3)(i), in that Respondent failed to keep in confidence personally identifiable information obtained in the course of professional service, unless disclosure serves professional purposes or is required by law. This count is supported by clear and convincing evidence.

39. The disciplinary guidelines for educators are found in Florida Administrative Code 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(i)22. The guidelines also list aggravating and mitigating factors to be considered in determining whether to deviate from the guidelines.

40. The January 2014 two-day suspension (involving this same circumstance) and October 2013 reprimand are in Respondent’s record. The October 2013 allegation dealt with Respondent’s use of profanity towards a student. The Respondent took responsibility for that misstep and that allegation is 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 section 1012.795(1)(g) and (j), and rule 6A-10.081(3)(a), (e), and (i).

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

DONE AND ENTERED this 13th day of May, 2016, 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 13th day of May, 2016.

ENDNOTES

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

2/ Florida Administrative Code Rule 6A-10.081 was amended as of March 23, 2016. The allegations occurred prior to this amendment.

3/ On February 11, 2016, a motion for leave for Jamison Jessup to withdraw as Respondent’s Qualified Representative was filed. Although a motion hearing was held on February 15, Mr. Jessup filed a notice of unavailability the morning of the hearing, and did not attend the motion hearing.

4/ Several students testified. In order to protect the students’ privacy, the Recommended Order refers to the students and their parents by initials.

5/ Respondent filed a Rebuttal to Petitioner’s Response in Opposition to Respondent’s Motion to Supplement Record.

Respondent failed to seek leave to file a reply to Petitioner’s response. Fla. Admin. Code R. 28-106.204(1).

6/ The HH program teacher acts as a liaison between home-bound students and their teachers, and provides the students with tutoring and support so that they do not fall further behind in their academic classes.

7/ Scoliosis is a curvature of the spine.

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)

Ron Weaver, Esquire Post Office Box 770088

Ocala, Florida 34477-0088 (eServed)

Douglas William Abruzzo, Esquire Post Office Box 781746

Orlando, Florida 32878 (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: 15-006020PL

Orders for Case No: 15-006020PL