vs.
Respondent.
) Case No. 03-2276PL
A formal hearing was held in this case before Lawrence P. Stevenson, Administrative Law Judge, Division of Administrative Hearings, on September 23, 2003, in Bradenton, Florida.
For Petitioner: Bruce P. Taylor, Esquire
St. Petersburg, Florida 33731-0131
Whether Respondent's educator's certificate should be subject to discipline for the violations alleged in the Administrative Complaint dated February 20, 2003.
Following an investigation by the Department of Education (the "Department"), Petitioner filed an Administrative Complaint against Respondent on February 20, 2003. Respondent denied the allegations and filed an Election of Rights, seeking a formal hearing. This matter was referred to the Division of Administrative Hearings on June 18, 2003. The case was initially set for hearing on August 14, 2003. The case was continued once and rescheduled for final hearing on
September 23, 2003.
The Administrative Complaint set forth the following material allegations of fact:
During the 2000-2001 school year, the Respondent used inappropriate means to discipline kindergarten students. These incidents include, but are not limited to,
The Respondent was placed on administrative leave effective August 7, 2001. She resigned from her position effective January 15, 2002.
Based on the these factual allegations, the Administrative Complaint alleged two statutory violation counts and two rule violation counts. Count one stated the misconduct alleged was in "violation of Section 1012.795(1)(c), Florida Statutes, in that Respondent has been guilty of gross immorality or an act involving moral turpitude." Count two stated the misconduct alleged was in "violation of Section 1012.795(1)(i), Florida Statutes, in that Respondent has violated the Principles of Professional Conduct for the Education Profession in Florida prescribed by the State Board of Education." Count three stated the misconduct alleged constituted a rule violation in which Respondent "failed to make reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental health and/or physical safety," in violation of Florida Administrative Code Rule 6B-1.006(3)(a). Count four stated the misconduct alleged constituted a rule violation in which Respondent "intentionally exposed a student to unnecessary
embarrassment or disparagement," in violation of Florida Administrative Code Rule 6B-1.006(3)(e).
At the hearing, Petitioner presented the testimony of students J.C. and D.W., Paula Rosario, Dawn Stewart, Carolyn Furnbach, Karen Ammons, Deborah Houston, and Bill Owens.
Petitioner's Exhibits 1 through 4 were admitted into evidence. Counsel for Petitioner requested that he be allowed to file a clean copy of Exhibit 4 after the hearing. This request was granted, but Exhibit 4 was never filed.
Respondent testified on her own behalf and presented the testimony of Gloria Mitchell, Lisa Revell, and Nicki Rutkowski. Respondent's Exhibits 1 through 12 were admitted into evidence.
A two-volume Transcript of the hearing was filed on October 14, 2003. The parties stipulated that their proposed recommended orders would be filed within 20 days of the filing of the Transcript. Both parties timely filed their Proposed Recommended Orders on November 3, 2003.
Based on the oral and documentary evidence adduced at the final hearing and the entire record of this proceeding, the following Findings of Fact are made:
Respondent, Audrey Larson-Kalich (referred to herein as Ms. Kalich, as she was called by her students and fellow teachers), holds Florida Educator Certificate No. 711981,
covering the areas of elementary education (grades 1-6), English to Speakers of Other Languages (ESOL), and primary education (grades K-3), which is valid through June 30, 2008.
At all times relevant to this proceeding, Ms. Kalich was employed as a kindergarten teacher at Tillman Elementary School ("Tillman") by the Manatee County School District (the "District").
Ms. Kalich began her teaching career in Texas in 1981.
She taught second, third, fifth, and seventh grades during a three-year period at a parochial school. After the 1983-1984 school year, she got married and took a hiatus from teaching. Beginning with the 1986-1987 school year, Ms. Kalich taught for seven years in the public school system of San Patricio County, Texas, the last four as a kindergarten teacher.
Ms. Kalich left Texas after the 1992-1993 school year to join her husband in Manatee County, where he had commenced working at a position in the university system in March 1993. Ms. Kalich spent the next three years as a substitute teacher in the District, all the while seeking a full-time position. She performed well in a long-term substitute position at Braden River Middle School, teaching science to sixth and seventh graders. Ms. Kalich also substituted three different times at the Adolescent Recovery Center, a residential facility for students in rehabilitation for alcohol or drug abuse.
Near the end of the 1995-1996 school year, while substituting at Tillman, Ms. Kalich learned of a full-time vacancy for a kindergarten teacher at that school. She applied for the position, though she knew that Tillman was a "very, very rough school." At the time, Tillman had a disproportionately large percentage of students with a lower socioeconomic background, learning disabilities, and difficulties complying with ordinary classroom discipline. As the 1996-1997 school year approached, the position remained unfilled. Ms. Kalich drove to Tillman to speak personally with Principal Gloria Mitchell and resolve lingering questions regarding her certification to teach kindergarten.
After her certification was verified, Ms. Kalich was hired for the 1996-1997 school year. She taught at Tillman for five years. Principal Mitchell's evaluations of Ms. Kalich for the 1996-1997, 1997-1998, 1998-1999, and 1999-2000 school years were all "satisfactory." Ms. Mitchell's comments regarding
Ms. Kalich's job performance stated that she "creates a positive learning environment" and is "always searching for new ways to improve student progress."
Ms. Mitchell retired after the 1999-2000 school year.
She was succeeded as principal by Patsy Roberson. An assessment document completed by Ms. Roberson during the 2000-2001 school
year indicated that Ms. Kalich "consistently meets and/or exceeds district competency standards of performance."
Paula Rosario was a kindergarten teacher at Tillman with Ms. Kalich. She and Ms. Kalich were personal friends, as well as colleagues. Ms. Rosario testified that she became increasingly alarmed at Ms. Kalich's classroom behavior during the 2000-2001 school year. As she walked down the hall,
Ms. Rosario often heard Ms. Kalich yelling at her class, "Shut up. Just shut up." Ms. Rosario discussed this behavior with Ms. Kalich, urging her to lower her voice and to ask for help with her class if she needed it.
Dawn Stewart, a kindergarten teacher at Tillman whose classroom shared a wall with Ms. Kalich's, testified that she often heard Ms. Kalich raising her voice, even "yelling at the top of her lungs," and telling her class to "shut up."
Karen Ammons, currently the magnet coordinator at Tillman, was assigned as Ms. Kalich's "peer teacher" when
Ms. Kalich was hired. A "peer teacher" advises a new teacher during her probationary period. Prior to the 2000-2001 school year, Ms. Ammons had advised Ms. Kalich not to grab students. Ms. Ammons testified that there are ways of moving a child from one place to another without grabbing the child's arms, which the child can perceive as malicious.
Ms. Ammons also advised Ms. Kalich against yelling at her students. Ms. Ammons believed that yelling at children is counterproductive because children tend to respond better to a calm, quiet voice. This opinion was supported by Ms. Rosario, who advised Ms. Kalich to be "fair, firm, and friendly" when trying to establish order in her classroom.
Ms. Rosario also testified that if a situation in the classroom appeared to be escalating to the point where physical restraint would be necessary, she would phone the office for assistance. Ms. Stewart testified that if a child is out of control, she moves the other children away from the flailing child and calls for assistance from an administrator. Carolyn Furnbach, another teacher at Tillman, testified that she would call for help before attempting to physically restrain a student, even though she had been trained in safe methods of restraint.
Ms. Ammons testified that during the 2000-2001 school year, she saw Ms. Kalich trying to line up her class in the hallway. Ms. Kalich's class was a loud, boisterous group, and Ms. Kalich was being very loud in trying to lay down the rules. Ms. Ammons saw Ms. Kalich grab one little boy by the arm and jerk him back into line. She then bent down and started talking to him very loudly, putting her finger near his face. The rest of the class became louder, seeing that Ms. Kalich was occupied
with this boy. Ms. Ammons intervened and calmed the class down. After school, Ms. Ammons discussed the matter with Ms. Kalich.
Ms. Ammons told Ms. Kalich that she could not handle children in that manner. Ms. Kalich claimed not to know what Ms. Ammons was talking about.
At the hearing, it was established that the practice among the Tillman kindergarten teachers was to defuse emotional disciplinary situations by sending the offending student to a different classroom for a "time out." Ms. Rosario was the "team leader" for the Tillman kindergarten teachers and offered her classroom as the "time out" room for any teacher who needed a break from a certain student. Ms. Rosario testified that, while other teachers would send their "time out" students down to
Ms. Rosario's classroom, Ms. Kalich often dragged them in by the arm. Ms. Rosario told Ms. Kalich to take her hands off the students, and that it was improper to pull on students' arms.
D.W. was a female student in Ms. Kalich's class during the 2000-2001 school year. She was prone to throwing tantrums. She would freeze herself to one spot or fall to the ground kicking, screaming, flailing her arms, and refusing to be moved. Children in D.W.'s vicinity during one of these tantrums were likely to get kicked or hit by D.W.'s flailing arms.
Ms. Rosario witnessed Ms. Kalich carrying or pulling
D.W. into Ms. Rosario's classroom for "time out." Ms. Rosario
conceded that D.W. was a "challenging" child and that Ms. Kalich had great difficulty in getting D.W. to listen or follow her classroom rules. Once in Ms. Rosario's room, D.W. would calm down and comply with Ms. Rosario's instructions.
Ms. Rosario never asked D.W. about events leading to her being sent to Ms. Rosario's classroom, because her immediate goal was to get D.W. under control. Ms. Rosario testified that neither D.W. nor any other student sent to her class by
Ms. Kalich ever reported abuse by Ms. Kalich.
Prior to May 29, 2001, D.W. and Ms. Kalich had several confrontations that led either to allegations of abuse against Ms. Kalich or discipline against D.W. On April 10, 2001, D.W. alleged that Ms. Kalich hit her on the hand with a book. Assistant Principal Deborah Houston removed D.W. from the classroom pending an investigation of the allegation. After interviewing several teachers and a student, Ms. Houston determined that the allegation could not be sustained, and she returned D.W. to Ms. Kalich's classroom.
On April 23, 2001, D.W. refused to report to a "time out" classroom and, later, pushed another child in the lunch line. When Ms. Kalich came near her in the lunch line, D.W. bit Ms. Kalich. Ms. Houston conferred with D.W.'s mother and imposed a three-day in-school suspension on D.W.
On May 23, 2001, D.W. called Ms. Kalich "an ugly bitch," when Ms. Kalich told her to go to another classroom for a "time out." On this occasion, Ms. Houston imposed a two-day out-of-school suspension on D.W.
Ms. Kalich testified at length concerning the events of May 29, 2001. This was the next to last day of the school year, and the children were therefore in a higher state of agitation than usual. Ms. Kalich was preparing her class to go out for physical education ("PE"). She called the children by name to line up in the classroom before walking down the hallway. When D.W.'s turn came to line up, she was displeased with her position and began pushing other children to make her way to the front of the line. Ms. Kalich ordered D.W. to go to the end of the line. D.W. refused. Ms. Kalich then informed
D.W. that, if she would not go to the end of the line, she would walk to PE alongside Ms. Kalich.
D.W. commenced a tantrum, throwing herself on the floor. She lay on her stomach, flailing her hands, and kicking her feet. Ms. Kalich closed the classroom door to minimize the disturbance to other classes. She then got down on her knees beside D.W. and rested her hands on D.W.'s calves and feet to stop her from kicking. She kept her hands in that position for "a few minutes," until D.W. calmed down.
Ms. Kalich conceded that the position of her hands might have made it look as though she were dragging D.W. by the legs, but she denied dragging the child. After D.W. quieted down, Ms. Kalich helped her to her feet. They started out the door, with Ms. Kalich holding onto one of D.W.'s hands.
As they went out the door, D.W. began hitting other students with her free hand. Ms. Kalich took both of D.W.'s hands and clasped them between her own, and in that way they walked down the hallway and outside the building.
Another of Ms. Kalich's students, J.Q., was carrying a chair outside because she was to be disciplined with a "time out," while the rest of the class took PE. As Ms. Kalich and
D.W. were rounding a corner outside the building, J.Q. dropped the chair, creating a loud crashing sound.
Ms. Kalich testified that just as she was distracted by the crash, D.W. jerked away from her grip and hit her head on the wall. D.W. began to cry and ran away to the corner of a fenced area outside the school. Ms. Kalich joined Ms. Stewart in checking to see if J.Q. was hurt. After she was assured that
J.Q. was not hurt, Ms. Kalich told the child, "That's what you get for acting silly."
Ms. Kalich turned her attention back to D.W., ordering her back into the line. D.W. refused to come. Ms. Kalich testified that she told D.W., "Then I will go to the office and
tell them you're not coming back." The PE coach, Michael VanSerke, came out and helped Ms. Kalich move D.W. from the corner to the PE area. Coach VanSerke told Ms. Kalich that he would have two of his first grade "helpers" take D.W. to a classroom for "time out" during the PE class.
Ms. Kalich was skeptical that two first grade boys could handle D.W. She saw D.W. approach one of the boys and try to kick him. Ms. Kalich interceded. She carried D.W. under the arms and, with the help of the two first grade helpers, got D.W. to the "time out" classroom.
Ms. Stewart's version of the events of May 29, 2001, was very different. Ms. Stewart walked with Ms. Kalich because some of the children in her class went to PE at the same time as Ms. Kalich's class. Ms. Stewart testified that she looked in the doorway of Ms. Kalich's class and saw D.W. sitting on the floor, flailing her arms and crying, refusing to get up.
Ms. Kalich grabbed D.W. by the ankles and dragged her out of the room. Ms. Stewart asked Ms. Kalich if she needed help, but
Ms. Kalich said she did not.
Ms. Stewart recalled that J.Q. dropped the chair on her foot and was crying. Ms. Kalich still had D.W. by the arm, and D.W. was still flailing. Ms. Kalich jerked D.W.'s arm, presumably to make her stop flailing, and the child's head hit the wall and she began to cry. Ms. Stewart did not believe that
Ms. Kalich deliberately pushed D.W. into the wall. Ms. Stewart recalled Ms. Kalich telling D.W. "something like, 'You never need to come to school again.'"
Carolyn Furnbach, another teacher at Tillman, witnessed the portion of the incident that occurred outside. She recalled that there was "a lot of commotion" and that
Ms. Kalich "had the child by the arm and was pulling her quite forcibly." Ms. Furnbach was concerned for D.W.'s safety.
D.W. testified at the final hearing. She recalled being pushed into the wall by Ms. Kalich but could offer no further details of the incident.
Ms. Stewart's testimony is credited as to Ms. Kalich dragging D.W. out of the classroom. Ms. Kalich's testimony that she was merely resting her hands on D.W.'s calves to calm her is not credible for several reasons. First, given the general descriptions of D.W.'s tantrums involving flailing arms and wildly kicking legs, it is not credible that Ms. Kalich's resting her hands on the child's calves would have the effect claimed by Ms. Kalich. Second, Ms. Kalich's placing her hands on the child's legs would not stop D.W.'s flailing arms. Third, it is not credible that Ms. Stewart would mistake hands resting on the child's calves for the act of dragging the child out of the classroom. Fourth, it is not credible that the rest of the
class would stand by quietly for the "few minutes" Ms. Kalich claimed it took her to calm D.W.
Ms. Stewart's testimony is credited as to Ms. Kalich's causing D.W.'s head to hit the wall. Ms. Stewart's testimony was bolstered by that of Ms. Furnbach, who also saw Ms. Kalich pulling on D.W.'s arm.
Ms. Kalich's testimony is credited as to her statement to D.W. after the incident. Ms. Stewart's recollection of that statement was not precise and could have been consonant with Ms. Kalich's version of her statement. It is found that
Ms. Kalich was trying to obtain D.W.'s cooperation by threatening to tell the office that D.W. was not coming back to school, not telling the child not to come back to school.
Ms. Rosario did not witness the May 29 incident, but afterwards Ms. Stewart and Ms. Furnbach came to her, as their kindergarten team leader, with their concerns about Ms. Kalich's handling of D.W. Ms. Rosario advised them to go to Principal Roberson with their concerns. Ms. Roberson asked all three of the teachers to submit written statements outlining their observations of, and concerns about, Ms. Kalich's behavior in the classroom.
Ms. Rosario opined that Ms. Kalich is a "great person" and a caring, hard-working teacher, but that she was teaching in the wrong school, because Tillman students are "hard on you."
Ms. Rosario noted that there are many special needs children at Tillman, including some from bad homes and some who were "drug babies" or "fetal alcohol children." Because they have just started school, many of these children have not yet been identified for special services. Ms. Rosario stated that she would not send her own children to Tillman. She believed that Ms. Kalich tried everything she knew to deal with her students, but that nothing in Ms. Kalich's education or background prepared her for the type of students she encountered at Tillman.
Ms. Furnbach testified that Tillman is a school with a "tough group" of students, many of whom have behavioral problems. She believed that Ms. Kalich always had the right intentions, was a good instructor, and cared about her students. Ms. Furnbach believed that Ms. Kalich should receive some help in classroom management and dealing with problem students before returning to Tillman or that she be assigned to work with less challenging students.
Lisa Revell, another kindergarten teacher at Tillman, worried that Ms. Kalich was "too nice" to be working in the Tillman environment. Ms. Mitchell, the former principal, commented that certain children were able to take advantage of Ms. Kalich.
In summary, the Department demonstrated by clear and convincing evidence that Ms. Kalich repeatedly yelled at the children in her kindergarten class, telling them to "shut up"; and that on May 29, 2001, Ms. Kalich dragged D.W. from the classroom by her ankles, pulled her by the arm, and jerked her arm in a manner that caused D.W.'s head to hit an outside wall. The evidence did not establish that Ms. Kalich told D.W., "You don't need to ever, ever come back to school again," or words to that effect.
The evidence did not establish that any of Ms. Kalich's actions were motivated by malice or an intent to abuse the children. To the contrary, even those teachers who testified against Ms. Kalich spoke highly of her dedication and desire to provide the best possible educational environment for her students. The evidence established that Ms. Kalich was ill- equipped to deal with the unique needs of the student population at Tillman and that, in her desperation to maintain order, she would resort to yelling and rough handling of young children.
Ms. Kalich submitted several letters attesting to her good character and her quality as a teacher. These have been considered, but are beside the point. Ms. Kalich's good character is not at issue. Specific acts were alleged. Eyewitnesses testified that they observed these acts, even as they continued to
believe that Ms. Kalich was a person of good character who sincerely cared about the children in her charge.
Grabbing students, jerking them by the arms, dragging them by the ankles, yelling at them, all are improper means of maintaining order in the classroom. Ms. Kalich's inability to cope with the behavior of the children in her classroom evokes some sympathy, but it must be noted that the other kindergarten teachers at Tillman managed to keep order in their classrooms without resort to such abusive methods.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of these proceedings. Sections 120.569 and 120.57(1), Florida Statutes (2003). See also
§ 1012.796(6), Fla. Stat. (2003).
License revocation and discipline proceedings are penal in nature. The burden of proof on Petitioner in this proceeding was to demonstrate the truthfulness of the allegations in the Administrative Complaint by clear and convincing evidence. Department of Banking and Finance v. Osborne Stern and Company, 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).
The "clear and convincing" standard requires:
[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.
Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983). The findings in this case were made based on the standard set forth in Osborne Stern and Ferris.
The Administrative Complaint alleged that Ms. Kalich committed the acts prohibited by the provisions of Section 1012.795(1)(c) and (i), Florida Statutes (2003). The Administrative Complaint further alleged that Ms. Kalich violated Florida Administrative Code Rule 6B-1.006(3)(a) and (e).
Section 1012.795(1), Florida Statutes (2003), authorizes the Education Practices Commission to suspend, revoke or otherwise penalize a teaching certificate provided it can be shown that the holder of the certificate, inter alia:
(c) Has been guilty of gross immorality or an act involving moral turpitude.
* * *
(i) Has violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules.
Florida Administrative Code Rule 6B-1.006 reads in pertinent part:
6B-1.006 Principles of Professional Conduct for the Education Profession in Florida.
The following disciplinary rule shall constitute the Principles of Professional Conduct for the Education Profession in Florida.
Violation of any of these principles shall subject the individual to revocation or suspension of the individual educator's certificate, or the other penalties as provided by law.
Obligation to the student requires that the individual:
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.
Florida Administrative Code Chapter 6B-4 applies to school districts, but its definitions provide guidance as to the terms "immorality" and "moral turpitude." Florida Administrative Code Rule 6B-4.009 provides:
(2) Immorality is defined as conduct that is inconsistent with the standards of public conscience and good morals. It is conduct sufficiently notorious to bring the individual concerned or the education profession into public disgrace or disrespect and impair the individual's service in the community.
The term "moral turpitude" is defined in Florida Administrative Code Rule 6B-4.009(6), as follows:
Moral turpitude is a crime that is evidenced by an act of baseness, vileness or depravity in the private and social duties which, according to the accepted standards of the time a man owes to his or her fellow man or to society in general, and the doing of the act itself and not its prohibition by statute fixes the moral turpitude.
Moral turpitude has also been defined by the Supreme Court of Florida as follows:
Moral turpitude involves the idea of inherent baseness or depravity in the private social relations or duties owed by man to man or by man to society. It
has also been defined as anything done contrary to justice, honesty, principle, or good morals, though it often involves the question of intent as when unintentionally committed through error of judgment when wrong was not contemplated.
State ex rel. Tullidge v. Hollingsworth, 108 Fla. 607, 611, 146
So. 660, 661 (1933).
It is concluded that none of the acts Ms. Kalich committed rise to the level of "gross immorality" or "moral turpitude." As noted by the Supreme Court in Tullidge, the determination of "moral turpitude" often involves the question of intent. No witness suggested that Ms. Kalich intended harm to the children. Her colleagues were concerned for the childrens' safety, not because they believed Ms. Kalich intended to harm her students but because they feared Ms. Kalich was
overwhelmed by the task of maintaining order in the classroom and had no adequate tools at her disposal to cope with her task. Ms. Kalich's actions indicate poor judgment and a lack of self- control but do not approach "inherent baseness or depravity."
It is concluded that Ms. Kalich did not make reasonable efforts to protect the students from conditions harmful to learning and/or to the student's mental, physical health, and/or safety. Specifically, Ms. Kalich's persistent yelling at her class could not have been conducive to learning. Her rough handling of children was harmful to their mental and physical health and safety, the most obvious harm being D.W.'s head striking the wall due to Ms. Kalich's jerking her arm.
It is concluded that Ms. Kalich did intentionally expose a student to unnecessary embarrassment or disparagement. Specifically, the manner in which Ms. Kalich handled D.W. on May 29, 2001, exposed the student to unnecessary embarrassment. Ms. Kalich could have isolated the child inside the classroom and called for help. She could have accepted the help offered by Ms. Stewart. Instead, she dragged D.W. by the ankles into the hallway, exposing the flailing child to anyone who happened to be in the area. She later jerked D.W.'s arm, causing the child's head to hit an outside wall, then had a loud verbal confrontation with D.W. outside. D.W.'s tantrum in the classroom initiated the sequence of events, but Ms. Kalich's
wholly inadequate response was certain to escalate the situation rather than calm it and to turn an incident of classroom discipline into a public spectacle, unnecessarily exposing the child to embarrassment before her peers.
Section 1012.796, Florida Statutes (2003), reads in pertinent part:
(7) A panel of the [Education Practices] commission shall enter a final order either dismissing the complaint or imposing one or more of the following penalties:
* * *
Revocation or suspension of a certificate.
Imposition of an administrative fine not to exceed $2,000 for each count or separate offense.
Placement of the teacher, administrator, or supervisor 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.
Restriction of the authorized scope of practice of the teacher, administrator, or supervisor.
Reprimand of the teacher, administrator, or supervisor in writing, with a copy to be placed in the certification file of such person.
The facts led to the conclusion that Ms. Kalich violated Florida Administrative Code Rule 6B-1.006(3)(a) and (e). It is concluded that the appropriate penalty is a reprimand and the placement of Ms. Kalich on two years of
probation, during which she should be assigned to work in the classroom only under the supervision of another certified educator and should be required to complete appropriate college coursework in classroom management, as specified by the Commission.
RECOMMENDED that a final order be issued finding that Respondent violated the provisions of Florida Administrative Code Rule 6B-1.006(3)(a) and (e). It is further
RECOMMENDED that a final order be issued providing that a written reprimand be placed in her certification file and placing her on a two-year period of probation, subject to such conditions as the Commission may specify, including classroom supervision by another certified educator and completion of appropriate college courses in classroom management.
DONE AND ENTERED this 9th day of January, 2004, in Tallahassee, Leon County, Florida.
LAWRENCE P. STEVENSON
Filed with the Clerk of the Division of Administrative Hearings this 9th day of January, 2004.
1/ At the final hearing, it was established that R.S. was a student in Respondent's class during the 1997-1998 school year, not during the 2000-2001 year as alleged in the Administrative Complaint. Because this is a penal proceeding against Respondent's license, the charges against Respondent must be specific, and any ambiguities in the charging documents must be construed against the agency. See, e.g., Ghani v. Department of Health, 714 So. 2d 1113, 1114 (Fla. 1st DCA 1998); Davis v.
Department of Professional Regulation, 457 So. 2d 1074 (Fla. 1st DCA 1984). Evidence concerning Respondent's treatment of R.S. was not considered in the formulation of this Recommended Order.
The Department was allowed to proffer testimony as to Respondent's treatment of R.S., in order to counter Respondent's evidence of her good character to establish that the allegations against her would be inconsistent with that character. As noted in the Findings of Fact below, Respondent's good character was not placed in question, and in any event, would not override the eyewitness testimony of her colleagues.
Kathleen M. Richards, Executive Director Education Practices Commission Department of Education
Bruce P. Taylor, Esquire Post Office Box 131
St. Petersburg, Florida 33731-0131
Marian Lambeth, Program Specialist Bureau of Educator Standards 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.
