vs.
Respondent.
Case No. 18-5316PL
On January 25, 2019, a duly-noticed hearing was held by video teleconference at locations in Lauderdale Lakes and Tallahassee, Florida, before F. Scott Boyd, an Administrative Law Judge assigned by the Division of Administrative Hearings.
For Petitioner: Charles T. Whitelock, Esquire
Charles T. Whitelock, P.A.
For Respondent: Robert F. McKee, Esquire
Robert F. McKee, P.A. Post Office Box 75638 Tampa, Florida 33675
The issues to be determined are whether Samuel Parrondo (Respondent or Mr. Parrondo) violated section 1012.795(1)(j), Florida Statutes (2015), and implementing administrative rules,2/
as alleged in the Amended Administrative Complaint; and, if so, what is the appropriate sanction.
On or about September 20, 2017, Pam Stewart, then Commissioner of the Department of Education (Petitioner or Commissioner), served a three-count Administrative Complaint against Respondent, alleging violations of section 1012.795(1)(j) and Florida Administrative Code Rule 6A-10.081(3)(a), (3)(e), and (5)(a). Respondent filed an Election of Rights form disputing facts alleged in the complaint and requesting a hearing pursuant to section 120.57(1), Florida Statutes. On October 4, 2018, the case was referred to the Division of Administrative Hearings for assignment of an Administrative Law Judge. An Amended Administrative Complaint adding an additional count was substituted for the original Administrative Complaint by Order issued December 13, 2018.
The case was set for hearing on November 29, 2018, and, after continuance, was heard on January 25, 2019. At hearing, Petitioner presented the live testimony of four witnesses, all employees at Olsen Middle School (Olsen): Elizabeth Sweeting, a teaching assistant; Linda Zuniga, a personal aide to Student J.M.; Shaundas Knighton, the exceptional student education (ESE) specialist; and Christopher Townley, an ESE teacher. Petitioner offered Exhibits P-1 through P-9, P-11, and P-12, which were
admitted into evidence without objection. Respondent testified on his own behalf and offered Exhibit R-1, which was admitted without objection.
The one-volume Transcript of the proceeding was filed with the Division of Administrative Hearings on February 13, 2019.
After an Order granting an extension of time, Respondent timely filed a Proposed Recommended Order that was considered in the preparation of this Recommended Order. Petitioner's Proposed Recommended Order was filed late and was not considered.
The Commissioner is the state agent whose office is responsible for investigating and prosecuting allegations of misconduct against individuals holding educator certificates.
Mr. Parrondo holds Florida Educator Certificate 1083050, covering the areas of English for Speakers of Other Languages (ESOL) and ESE, which is valid through June 30, 2020.
At all times relevant to the Amended Administrative Complaint, Mr. Parrondo was employed as an ESE teacher at Olsen in the Broward County School District.
Ms. Knighton was the ESE specialist at Olsen. During her first year there, she walked in on Mr. Parrondo restraining a female student. Ms. Knighton found Mr. Parrondo lying on top of the student with his hand on her head, pushing her face into the floor mat, and his whole body weight on top of her. The student
was screaming. Ms. Knighton told Mr. Parrondo to get off of the student. Mr. Parrondo informed her that the student did not go to "timeout" as she had been told to do. Ms. Knighton contacted her district program specialist to determine if Mr. Parrondo had received Professional Crisis Management (PCM) training, which teaches how to appropriately restrain students whose Individual Education Plans permit restraint. She learned that he had not. The mats were removed from Mr. Parrondo's classroom, and he was directed not to restrain students, because he had not been trained.
Student J.M. was an 11-year-old ESE student who was described as able to understand instructions, but nonverbal, and with a low comprehension level. He was able to communicate with some sign language and a few words. He was sometimes aggressive in his interactions with the teachers; he would "come at them" and try to butt them with his head or grab them with his fingers. Student J.M. was described as tall and thin, and "really strong."
Ms. Barbara Bond, a speech language pathologist, testified that sometime before the 2016 Spring Break, Student
J.M. tapped her with his head. Mr. Parrondo responded by throwing Student J.M. to the ground and putting himself over Student J.M. "like when you're making a snow angel" with his arms outstretched and completely covering Student J.M.'s body.
Ms. Bond testified that she supposed Mr. Parrondo was trying to
protect her, but that he overreacted. She testified that Student J.M.'s action had not been a "head bang" and that she believed he could have just been trying to communicate with her.
On March 11, 2016, Mr. Parrondo was attempting to get Student J.M. to come with him to conduct some periodic testing. Ms. Zuniga, Student J.M.'s aide, had taken Student J.M. to breakfast that morning, as she usually did, and had been with him all morning. She advised Mr. Parrondo that she thought that Student J.M. may have to go to the bathroom, although he had gone earlier, because of the way he was pacing back and forth.
Student J.M. did not want to go to the testing.
Mr. Parrondo said "Let's go" to him several times and said, "I'm not playing with you." However, Student J.M. would not cooperate and began to get aggressive toward Mr. Parrondo, moving his arms in "boxing" or "pawing" motions, perhaps trying to grab
Mr. Parrondo, or ward him off. Student J.M. then put his head on Mr. Parrondo's chest. Ms. Sweeting, who was also present in the classroom during the incident, said that when she saw this, she thought perhaps Student J.M. was going to try to head butt
Mr. Parrondo, because Student J.M. had done this before, but that Mr. Parrondo did not let him.
Ms. Sweeting credibly testified as to what happened next. Mr. Parrondo became very upset with Student J.M.
Mr. Parrondo was holding onto Student J.M.'s arms and told him to
sit down, but Student J.M. would not do it. Mr. Parrondo then grabbed Student J.M. by the side of his neck and "slung" or pushed him down to the ground. Mr. Parrondo then sat on top of Student J.M. to subdue him until Student J.M. calmed down, which he did in a few minutes. When Student J.M. got up, Ms. Zuniga noticed a red mark on his neck that had not been there earlier. It is a reasonable inference that Student J.M. was scratched during the altercation.
Between 10:30 a.m. and 11:00 a.m., Mr. Parrondo took a picture of the mark on Student J.M.'s neck and texted it to Student J.M.'s mother, saying, "Mom, [Student J.M.] has what appears to be a scratch on his neck from a nail. It is not bothering him or anything. I just wanted to inform you." A few minutes later Mr. Parrondo called Student J.M.'s mother on the telephone to confirm that she received the e-mail. In response to her question, he assured her that Student J.M. was doing fine. When she said that her son did not have a scratch when he went to school, Mr. Parrondo replied that he had noticed that Student J.M.'s nails were long. He said nothing to her about the altercation. The text and call to Student J.M.'s mother were made in the course of Mr. Parrondo's professional dealings.
Mr. Parrondo stated that the altercation came about because he had observed Ms. Zuniga and Student J.M. in "some sort of disagreement" and that Ms. Zuniga was acting as if she felt
threatened by Student J.M., so he went to assist her. He testified that she was near her desk with her hands up and was pulling back from Student J.M. because he was swinging his arms erratically. Mr. Parrondo said that he intervened to avoid any possible injury to Ms. Zuniga or to other students. Mr. Parrondo testified that he moved behind Student J.M. and was holding his wrists trying to control him. He testified that Student J.M. squirmed to the floor and that Mr. Parrondo squatted down with him to continue holding him and was speaking into his ear.
Mr. Parrondo testified that Student J.M. calmed down quickly and was soon ready to go to the restroom and then on to testing.
Mr. Parrondo stated that he did not grab Student J.M. by the neck, did not take him to the ground, and did not lay on top of him.
However, Ms. Zuniga testified that the incident began when Mr. Parrondo attempted to take Student J.M. for testing, and said nothing about Student J.M. acting aggressively toward her or any student in any way. Mr. Parrondo's account that he was attempting to prevent injury to Ms. Zuniga or other students is not credible. His testimony that he did not grab Student J.M. by the neck, take him to the ground, or sit on him is also rejected in favor of the testimony of Ms. Sweeting.
Mr. Parrondo also stated that his purpose in texting the note and photograph and telephoning Student J.M.'s mother was
to document the injury and gather information. He noted that child abuse is always a possibility that he must consider, although he doubted it in this case because he knew the family. This testimony was also not credible. Under all of the circumstances, it is clear that Respondent's communications were instead intended to forestall inquiries into the altercation and deflect any blame for the incident away from Mr. Parrondo. They were calculated to mislead or misdirect Student J.M.'s mother with respect to the cause of the injury.
Mr. Parrondo had not received PCM training at the time of the March 11, 2016, altercation, although he had requested it several times. Mr. Parrondo had been given a radio, knew that he was not to restrain students, and was aware that school procedure required that he call for assistance. As Ms. Knighton testified, Olsen had a PCM-trained security specialist employed at the time of the March 11, 2016, altercation who could have been dispatched to assist Mr. Parrondo.
No evidence was introduced at hearing as to any prior discipline relating to Mr. Parrondo's Florida Educator
Certificate.
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 (2018).
Petitioner is responsible for filing complaints and prosecuting allegations of misconduct against instructional personnel. §§ 1012.795(1), 1012.796(6), Fla. Stat. (2018).
Petitioner seeks to take action against Respondent's educator certificate. A proceeding to impose discipline against a professional license is penal in nature. It is Petitioner's burden 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).
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 the Commissioner's intended decision to discipline his Florida Educator Certificate and has standing to maintain this proceeding.
COUNT ONE
Count one of the Amended Administrative Complaint alleges that Respondent was in violation of section 1012.795(1)(j), in that he violated the Principles of Professional Conduct for the Education Profession. Counts two, three, and four go on to allege the specific violations of these principles.
Count one does not constitute a distinct disciplinary violation.
COUNT TWO
Count two alleges that Respondent violated Florida Administrative Code Rule 6A-10.081(3)(a),3/ which at the time of the alleged offense provided that an educator:
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.
The Amended Administrative Complaint alleged:
At approximately 10:30 am on March 11, 2016, Respondent engaged in inappropriate conduct with a sixth grade, non-verbal, ESE student (JM). Respondent insisted he needed to test JM. When JM began to walk away, Respondent chased JM and forcibly grabbed J.M. by the throat before taking him down to the floor with a "leg sweep" type of action.
Respondent then pinned the student to the floor with his arms at his side, while yelling at him.
It was clearly shown that Respondent grabbed Student J.M., took him to the floor, and sat upon him to subdue him until Student J.M. calmed down. There was some testimony that
immediately prior to these actions Student J.M. was moving his arms in "boxing" or "pawing" motions trying to strike or ward off Respondent. However, there was no credible evidence to indicate that Respondent's actions of taking Student J.M. to the floor and holding him there were necessary for defense of Ms. Zuniga, Respondent, or other students, especially in light of the fact that Respondent had been instructed not to restrain students and had been given a radio to quickly summon assistance. Whether Respondent's actions were prompted because he was upset that Student J.M. was not cooperating with his scheduled testing or because Student J.M. was becoming physical, Respondent overreacted in a fashion that could have resulted in serious injury to Student J.M.
It should be noted that there was no competent evidence to prove several facts alleged in the Amended Administrative Complaint: that Respondent grabbed Student J.M. by the throat; that he used a "leg sweep" to take Student J.M. to the floor; or that Student J.M.'s arms were pinned to his side. However, Petitioner's failure to prove these facts does not mean that the charge itself was not clearly proved. These additional facts were not essential elements of the charged offense of failure to protect a student. Even in criminal cases, failure to prove specific facts alleged in a charging document is permitted so long as those facts are not essential elements. Mitchell v.
State, 888 So. 2d 665, 668 (Fla. 1st DCA 2004)(conviction
affirmed because language identifying a specific means by which a victim was put in fear was not an essential element, so that proof of fear by another means was sufficient); Ingleton v.
State, 700 So. 2d 735 (Fla. 5th DCA 1997)(conviction was affirmed
although the language charged that defendant had been murdered "by strangling" when evidence showed that murder was actually committed through a cocaine overdose, because the language alleging the method by which the murder was committed was surplusage); In the Interest of W.M., 491 So. 2d 1263 (Fla. 4th
DCA 1986)(conviction for aggravated assault was affirmed on proof that the defendant used a BB gun, despite the charge of using a handgun, because the type of weapon used was not an essential element). An administrative hearing does not require more. The additional facts alleged in the Amended Administrative Complaint were unnecessary surplusage. It was not necessary for Petitioner to prove them.
It was clearly shown that Respondent failed to make reasonable effort to protect his student from conditions harmful to physical and mental health when Respondent overreacted to Student J.M.'s conduct by using unnecessary force. A person with a duty to make reasonable efforts to protect a student violates that duty when the person becomes an instrument of potential injury. It is a reasonable inference that Student J.M. was
scratched during the altercation, but even had no physical injury occurred, the potential for injury attendant to the use of unnecessary force would be sufficient to constitute a violation.
The evidence with respect to the earlier incident involving the female ESE student who failed to follow directions to go to "timeout" and the evidence with respect to the incident involving Student J.M. and Ms. Bond also indicate that Respondent failed to take reasonable efforts to protect his students when he overreacted and used unnecessary force that might have caused injury to them.
Petitioner proved by clear and convincing evidence that Respondent violated rule 6A-10.081(3)(a).
COUNT THREE
Count three alleges that Respondent violated
rule 6A-10.081(3)(e), which provided that an individual shall not intentionally expose a student to unnecessary embarrassment or disparagement.
This rule requires intentional action on the part of Respondent. The evidence as to the physical altercation between Respondent and Student J.M. suggests a spontaneous exhibition of anger or temper rather than a calculated action. The courts have held that there can be no violation of this rule in the absence of evidence that the teacher made a "conscious decision not to
comply with the rule." Langston v. Jamerson, 653 So. 2d 489, 491
(Fla. 1st DCA 1995).
However inappropriate Respondent's conduct on March 11, 2016, there was insufficient evidence from which it could reasonably be inferred that Respondent took the actions he did with the conscious intention to embarrass or disparage Student J.M.
While the Amended Administrative Complaint alleged additional misconduct, the evidence presented at the hearing as to these other incidents was similarly insufficient to demonstrate that any of these actions were taken with the intent to embarrass or disparage students.
Petitioner failed to prove by clear and convincing evidence that Respondent violated rule 6A-10.081(3)(e).
COUNT FOUR
Count four alleges that Respondent violated
rule 6A-10.081(5)(a), which provided that an individual shall maintain honesty in all professional dealings. The term "honesty" is not defined in the rule.
When terms are not defined in law, the common and ordinary meanings apply. Dadeland Depot v. St. Paul Fire & Marine Ins., 945 So. 2d 1216, 1225 (Fla. 2006); Cole Vision Corp. v. Dep't of Bus. & Prof'l Reg., 688 So. 2d 404, 410 (Fla. 1st DCA 1997). It is appropriate to refer to dictionary definitions to
determine the plain meaning of terms. License Acquisitions, LLC
v. Debary Real Estate Holdings, LLC, 155 So. 3d 1137, 1144 (Fla. 2014).
The term "honesty" has been defined as: "adherence to the facts: sincerity" and "fairness and straightforwardness of conduct," www.merriam-webster.com/dictonary/honesty; and "the quality or fact of being honest; uprightness and fairness," https:/www.dictionary.com/browse/honesty.
The Amended Administrative Complaint alleged that Respondent's actions resulted in a noticeable scratch on Student J.M.'s neck and that Respondent subsequently sent a text message to Student J.M.'s parent falsely claiming the scratch came from a nail. It alleged that Respondent called Student J.M.'s mother but never mentioned his earlier restraint of Student J.M.
It was clearly shown that Student J.M. had a scratch on his neck, and it is a reasonable inference that he was scratched during the altercation. Respondent's text and call to Student J.M.'s mother were in the course of Respondent's professional dealings.
The text that Respondent sent did not actually state what caused Student J.M.'s injury, accurately or otherwise. It instead only described how the injury "appeared," stating that Student J.M. had "what appears to be a scratch on his neck from a nail." Petitioner's evidence of what the injury looked like,
consisting most importantly of a copy of the picture that was texted to Student J.M.'s mother, in fact, supported Respondent's description. J.M. did have what appeared to be a scratch on his
neck from a nail. The text message was, in a strict sense, not a lie.
However, honesty in professional dealings goes beyond not technically telling a lie. Honesty, as noted in the definitions above, requires fairness and straightforwardness of conduct. Respondent's communication to Student J.M.'s mother that Student J.M. had what "appears to be a scratch on his neck from a nail," without any mention of his altercation with Student J.M., was clearly disingenuous. When he later telephoned Student J.M.'s mother, he still failed to disclose the incident. These communications intentionally concealed other relevant information that Respondent knew. Far from being sincere and
straightforward, his calculated purpose was to avert inquiries into the altercation and deflect responsibility for the incident away from himself. Under the circumstances, these intentionally incomplete and misleading communications constitued dishonesty within the meaning of the rule.
Petitioner proved by clear and convincing evidence that Respondent violated rule 6A-10.081(5)(a).
PENALTIES
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)(i)16. provided that probation to revocation was the appropriate range of penalties for "failure to protect or supervise students in violation of paragraph 6B-1.006(3)(a)."4/
Rule 6B-11.007(2)(i)22. provided that probation to revocation was the appropriate range of penalties for other violations of the Principles of Professional Conduct and the Florida Administrative Code.
Rule 6B-11.007(2) also provided that the disciplinary guidelines should be interpreted to include "administrative fees and/or costs" with applicable terms thereof as additional penalty provisions.
Section 1012.796(7)(c) provided that the Education Practices Commission may also impose an administrative fine not to exceed $2,000 for each count or separate offense.
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, Samuel Parrondo, in violation of section 1012.795(1)(j), Florida Statutes, and Florida Administrative Code Rules 6A-10.081(3)(a) and 6A-10.081(5)(a) and suspending his educator certificate for one year, followed by a two-year period of probation under conditions imposed by the Commission to ensure that he is properly trained and monitored and does not constitute a danger to students.
DONE AND ENTERED this 28th day of March, 2019, in Tallahassee, Leon County, Florida.
F. SCOTT BOYD Administrative Law Judge
Filed with the Clerk of the Division of Administrative Hearings this 28th day of March, 2019.
1/ This case was previously styled with Pam Stewart as Commissioner of Education. On January 8, 2019, Richard Corcoran assumed the office of Commissioner of Education, and the style has been amended accordingly.
2/ All references to Florida Statutes or administrative rules are to the versions in effect in the Spring of 2016, the time of the alleged incidents, except as otherwise indicated.
3/ The numbering of rule 6A-10.081(3)(a) was not changed to that shown in the Amended Administrative Complaint until March 23, 2016, after the date of the incidents involved in this case.
Counts three and four were similarly misdrafted. Petitioner's incorrect citations are tedious to correct, but the facts alleged and the text of the rule allegedly violated in this case were clear for each count, and Respondent was not misled or harmed by these technical defects in pleading.
4/ Rule 6B-1.006 was replaced by rule 6A-10.081 on January 11, 2013, but the penalty rule was not amended to reflect this change until May 29, 2018. Again, Respondent is not prejudiced by the mislabeling.
Robert F. McKee, Esquire Robert F. McKee, P.A. Post Office Box 75638 Tampa, Florida 33675 (eServed)
Charles T. Whitelock, Esquire Charles T. Whitelock, P.A.
Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244
Morgan K. Thompson, Program Director Office of Professional Practices Services Department of Education
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.
