STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on October 30, 2009, in Orlando, Florida, before Susan B. Harrell, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Ron Weaver, Esquire

Post Office Box 5675 Douglasville, Georgia 30154-0012

For Respondent: John Cardona, pro se

101 East New Hampshire Avenue Apartment 3B

Deland, Florida 32724 STATEMENT OF THE ISSUES

The issues in this case are whether Respondent violated Subsections 1012.795(1)(c), 1012.795(1)(f), and 1012.795(1)(i),

Florida Statutes (2006),1 and Florida Administrative Code Rules 6B-1.006(5)(a), 6B-1.006(5)(d), 6B-1.006(5)(e),

and 6B-1.006(5)(h), and, if so, what discipline should be imposed.

PRELIMINARY STATEMENT

On February 9, 2009, Petitioner, Dr. Eric J. Smith, as Commissioner of Education (Petitioner), filed a seven-count Administrative Complaint against Respondent, John Francis Cardona (Mr. Cardona), alleging that he violated Subsections 1012.795(1)(d), 1012.795(1)(g), and 1012.795(1)(j), Florida

Statutes,2 and Florida Administrative Code Rules 6B-1.006(5)(a), 6B-1.006(5)(d), 6B-1.006(5)(e), and 6B-1.006(5)(h). Mr. Cardona

requested an administrative hearing, and the case was forwarded to the Division of Administrative Hearings for assignment to an Administrative Law Judge on September 16, 2009.

At the final hearing, Petitioner called the following witnesses: Elaine Scott, Ph.D; Collette Marie Rance; Valerie Ann Simons; Susan Fronheiser; and W. Thomas Oldroyd, Jr.

Petitioner’s Exhibits 1 through 7 were admitted in evidence. Respondent testified in his own behalf. Respondent’s Exhibits 1 and 2 were admitted in evidence.

At the final hearing, Petitioner made an ore tenus motion to amend the Administrative Complaint to correct a scrivener’s error. The motion was granted. In paragraph 10 of the Administrative Complaint, line 2 is amended to read “Respondent

acted in an inappropriate and unprofessional manner toward V.S. by making.”

The two-volume Transcript was filed on November 25, 2009.

The parties agreed to file their proposed recommended orders within ten days of the filing of the Transcript. On December 7, 2009, Petitioner filed his Proposed Recommended Order, which has been considered in the preparation of this Recommended Order.

As of the date of this Recommended Order, Mr. Cardona has not filed any post-hearing submittals.

FINDINGS OF FACT

1. Mr. Cardona holds Florida Educator’s Certificate 634334, covering the areas of athletic coaching, sociology, and exceptional student education. His certificate is valid through June 30, 2011.

2. At all times pertinent to the allegations in the Administrative Complaint, Mr. Cardona was employed as a vocational exceptional student education teacher at Gateway School (Gateway) in the Orange County School District (School District). Gateway is a specialized day school for emotionally- disabled students, grades six through twelve.

3. Valerie Simons (Ms. Simons) was an art teacher at Gateway. Kathy Nash (Ms. Nash) was also employed at Gateway as a behavior technician. Ms. Nash would help instructional staff work with students who were having emotional behavior problems.

4. From July 2005 until April 2006, Mr. Cardona was engaged in a romantic relationship with Ms. Simons. The relationship included, but was not limited to, dating, visiting one another’s homes, and exchanging gifts.

5. In or about March 2006, Mr. Cardona borrowed $1,400 from Ms. Simons. He later repaid $700 of the loan. Although Ms. Simons has made numerous requests for him to pay the balance owed, he had failed to do so.

6. On or about April 7, 2006, Mr. Cardona and Ms. Simons had their last date. On or about April 10, 2006, Ms. Simons had major surgery. After Ms. Simons’ surgery, the romantic relationship between Mr. Cardona and Ms. Simons ended. Unbeknownst to Ms. Simons, Mr. Cardona had also been having a romantic relationship with Ms. Nash at that the same time that he was seeing Ms. Simons. Mr. Cardona continued his romantic relationship with Ms. Nash after the relationship with

   Ms. Simons ended.

   
   

7. In the spring of 2006, W. Thomas Oldroyd, Jr. (Mr. Oldroyd), was the principal at Gateway. One of his

   assistant principals, Collette Rance (Ms. Rance), came to him and told him that Ms. Nash had come to her and was upset. A student had complained to Ms. Nash about a romantic relationship between Ms. Simons and Mr. Cardona. There had been rumors about

   romantic relationships between Mr. Cardona and Ms. Simons and between Mr. Cardona and Ms. Nash, who was married.

8. A student also approached Ms. Rance during the spring of 2006 and told Ms. Rance that he had overheard a conversation between Mr. Cardona and Ms. Nash. Mr. Cardona had told Ms. Nash that Ms. Simons was crazy. The emotionally-handicapped student was excited and animated when he disclosed the information to Ms. Rance. Ms. Rance gathered from the student that the student understood that there had been a romantic relationship between Mr. Cardona and Ms. Simons.

9. The day after Ms. Rance reported her conversation with Ms. Nash to Mr. Oldroyd, Mr. Oldroyd called Mr. Cardona,

   Ms. Simons, and Ms. Nash in his office and told them that whatever personal relationships going on among them was their business, but that he did not want the students to get involved and to discuss the personal lives of Gateway staff. He also told them that, if the talk did not cease, he would involve the employee relations office to do an investigation into the matter. Mr. Cardona, Ms. Simons, and Ms. Nash did not acknowledge that were any personal relationships among themselves; however, they did agree to act professionally and to do what they could to stop the talk among the students.

10. During the 2006 summer school session at Gateway, Ms. Rance had to discipline a student who had yelled at

    Ms. Simons, telling Ms. Simons that Ms. Simons had broken up Ms. Nash’s marriage and that it was Ms. Simons’ fault that Ms. Nash was getting a divorce. It was clear that the environment that was created concerning the romantic

    relationships of Mr. Cardona, Ms. Simons, and Ms. Nash was being disruptive to the learning environment.

11. In July 2006, Elaine Scott, Ph.D. (Dr. Scott), replaced Mr. Oldroyd as principal at Gateway. Dr. Scott began to hear comments about the relationships between Mr. Cardona and Ms. Nash and Ms. Simons. She asked Ms. Rance about the comments, and Ms. Rance advised Dr. Scott about Mr. Oldroyd calling Mr. Cardona, Ms. Nash, and Ms. Simons into his office and telling them to act professionally.

12. In August 2006, during the pre-planning session prior to the students returning to school, there was an incident involving Mr. Cardona and a staff member concerning the issuance of keys. Mr. Cardona had complained to Ms. Rance that he thought that Ms. Simons was using her master key to go into his office. Ms. Rance advised him that she would not be issuing master keys to anyone. Mr. Cardona became agitated that he would not be getting a master key.

13. As a result of the incident concerning the keys,

    
    

    Mr. Cardona was given a written directive dated August 28, 2006, in which he was told to conduct himself in the following ways:

    You are to avoid even the appearance of verbal intimidation while dealing with staff members. This includes, but is not limited to yelling, comments of a disparaging nature, or actions that subject a person to embarrassment. You must also avoid the appearance of retaliation toward any person who may have been a part of this matter.

    
    

    You are reminded that conduct of a sensational nature can adversely impact the professional reputation and effectiveness of a teacher. I expect you to exercise discretion and judgment, such that you do not discredit yourself, the school, or the district.

    
    

14. Dr. Scott continued to her comments by others about the unprofessional manner in which Mr. Cardona, Ms. Simons, and Ms. Nash were interacting. Dr. Scott became concerned to the point that she asked the employee relations department of the School District to investigate, and an investigation was commenced.

15. On or about October 19, 2006, Mr. Cardona went to

    
    

    Ms. Simons’ classroom during work hours. He brushed Ms. Simons’ shoulder and said he was trying to see if she had any chips on it. Mr. Cardona also unzipped his pants and pressed against

    Ms. Simons and asked if he could come to her house that evening.

    
    

16. On or about October 24, 2006, Mr. Cardona approached Ms. Simons while she was in the school library, while they were there to view a video as part of the teacher training.

    Mr. Cardona asked Ms. Simons if he could give her proof that he

    was free from any sexually transmitted disease and acquired immune deficiency syndrome.

17. On or about October 30, 2006, Mr. Cardona went to Ms. Simons’ home uninvited. He began to bang on a window and banged so hard on the front door that he dented the door.

    Ms. Simons went to the door, looked through the peephole, and saw that it was Mr. Cardona. He tried to convince her to let him in, but she refused. Mr. Cardona eventually left.

18. Ms. Simons complained to the School District about Mr. Cardona’s harassment. She also filed a petition in circuit court for a restraining order against Mr. Cardona.

19. On October 31, 2006, a Temporary Injunction for Protection Against Domestic Violence Without Minor Child(ren) was issued by the Circuit Court of the Ninth Judicial Circuit in and for Orange County, prohibiting Mr. Cardona from having contact with Ms. Simons. On November 13, 2006, a Final Judgment of Injunction for Protection Against Domestic Violence Without Minor Child(ren) (After Notice) was issued by the same court against Mr. Cardona, prohibiting Mr. Cardona from having contact with Ms. Simons.

20. Ms. Simons advised Ms. Rance of the issuance of the injunctions. After Ms. Rance became aware of the injunctions, she observed Mr. Cardona standing near Ms. Simons’ classroom, sorting through what looked like junk mail. There was no reason

    for Mr. Cardona to be near Ms. Simons’ classroom. Ms. Rance confronted Mr. Cardona about standing near Ms. Simons’ classroom after the issuance of the injunctions, and Mr. Cardona became angry with Ms. Rance.

21. On November 18, 2006, a staff meeting was held concerning a student. Present at the meeting were the student, his guardian, several vocational teachers, Ms. Simons, and

    Mr. Cardona. During the meeting, Ms. Simons was commenting on what she had observed of the student’s performance and was giving her professional opinion on whether the student should be on a particular diploma track. While Ms. Simons was speaking, Mr. Cardona made sidebar comments such as: “Yeah, in her professional opinion. . . . What profession is that?”

    Mr. Cardona also would roll his eyes and shake his head at Ms. Simons’ comments. These types of comments continued

    throughout the meeting. Susan Fronheiser (Ms. Fronheiser), then a teacher at Gateway, was present during the meeting.

22. During the meeting, the guardian of the student asked Ms. Fronheiser what was going on with Mr. Cardona’s comments and actions. At the end of the meeting, other teachers asked

    Ms. Fronheiser what was going on with Mr. Cardona.

    
    

    Mr. Cardona’s conduct at the meeting was unprofessional and disturbing to the attendees of the meeting. Ms. Fronheiser advised Ms. Rance of what had occurred during the meeting.

23. On November 30, 2006, Mr. Cardona gave notice to the School District that he would retire from his position on December 29, 2006.

    CONCLUSIONS OF LAW

    
    

24. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. §§ 120.569 and 120.57, Fla. Stat. (2009).

25. Subsection 1012.795(1), Florida Statutes, gives the Education Practices Commission the authority to suspend or revoke the teaching certificate of any person, or to impose any penalty provided by law, if the person is guilty of certain specified acts.

26. Petitioner has alleged in the Administrative Complaint that Mr. Cardona has violated Subsections 1012.795(1)(c), 1012.795(1)(f), and 1012.795(1)(i), Florida Statutes, which provide:

    1. The Education Practices Commission may suspend the educator certificate of any person as defined in s. 1012.01 (2) or (3) for a period of time not to exceed 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 a period of time not to exceed 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 order of the court, of any person found to have a delinquent child support obligation; or may impose any other penalty provided by law, provided it can be shown that the person:

       
       

       * * *

       
       

       (c) Has been guilty of gross immorality or an act involving moral turpitude.

       
       

       * * *

       
       

       (f) Upon investigation, has been found guilty of personal conduct which seriously reduces that person's effectiveness as an employee of the district school board.

       
       

       * * *

       
       

       (i) Has violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules.

       
       

27. Petitioner has also alleged that Mr. Cardona has violated Florida Administrative Code Rules 6B-1.006(5)(a), 6B- 1.006(5)(d), 6B-1.006(5)(e), and 6B-1.006(5)(h), which provide that the educator has an obligation to the profession of education to do the following:

    (a) Shall maintain honesty in all professional dealings.

    * * *

    
    

    1. Shall not engage in harassment or discriminatory conduct which unreasonably interferes with an individual’s performance of professional or work responsibilities or with the orderly processes of education or which creates a hostile, intimidating, abusive, offensive, or oppressive environment; and, further, shall make reasonable effort to assure that each individual is protected from such harassment or discrimination.

       
       

    2. Shall not make malicious or intentionally false statements about a colleague.

    
    

    * * *

    
    

    (h) Shall not submit fraudulent information on any document in connection with professional activities.

    
    

28. Petitioner has the burden to establish 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).

29. Petitioner has failed to establish that Mr. Cardona’s actions rise to the level of gross immorality or moral turpitude. Thus, Petitioner has failed to establish that

    Mr. Cardona violated Subsection 1012.795(1)(c), Florida Statutes.

30. Petitioner has established by clear and convincing evidence that Mr. Cardona’s actions regarding Ms. Simons, such

    as making inappropriate remarks during a meeting in which a student and the student’s guardian were present; unzipping his pants and pressing against Ms. Simons in Ms. Simons’ classroom; offering to prove to Ms. Simons that he did not have a sexually transmitted disease; and going to Ms. Simons’ home uninvited and banging on the door, reduced his effectiveness as an employee of the School District. Thus, Petitioner has established by clear and convincing evidence that Mr. Cardona violated Subsection 1012.795(1)(f), Florida Statutes.

31. Petitioner has established by clear and convincing evidence that Mr. Cardona engaged in harassment of Ms. Simons and as such created a hostile environment, interfered with Ms. Simons’ work performance as evidenced in the meeting in which he made sarcastic remarks during her presentation, and

interfered with the orderly processes of education as evidenced by the guardian and teachers’ reactions to Mr. Cardona’s sarcastic remarks about Ms. Simons. Petitioner has established that Mr. Cardona violated Florida Administrative Code Rules 6B- 1.006(5)(d) and 6B-1.006(5)(e), which is in violation of Subsection 1012.795(1)(i), Florida Statutes. Petitioner has failed to establish that Mr. Cardona violated Florida Administrative Code Rules 6B-1.006(a) and 6B-1.006(h).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Mr. Cardona is not guilty of violating Subsection 1012.795(1)(c), Florida Statutes; finding Mr. Cardona guilty of violating Subsections 1012.795(1)(f) and 1012.795(1)(i), Florida Statutes; finding that Mr. Cardona is guilty of violating Florida Administrative Code Rules 6B-1.006(5)(d) and 6B- 1.006(5)(e); finding that Mr. Cardona did not violate Florida Administrative Code Rules 6B-1.006(5)(a) and 6B-1.006(5)(h); and suspending his teaching certificate for two years.

DONE AND ENTERED this 15th day of January, 2010, in Tallahassee, Leon County, Florida.

S

SUSAN B. HARRELL

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 15th day of January, 2010.

ENDNOTES

1/ Unless otherwise indicated, all references to the Florida Statutes are to the 2006 version.

2/ The allegations in the Administrative Complaint refer to actions which occurred in 2006; thus, any statutory violations would have to be of the statutes as they existed in 2006. Each count of the Administrative Complaint describes an alleged violation, but gives the citation for the alleged violation using the current version of the Florida Statutes. For example, Count 1 alleges that Mr. Cardona “has been guilty of gross immorality or an act involving moral turpitude as defined by rule of the State Board of Education,” and gives the citation of the violation as Subsection 1012.795(1)(d), Florida Statutes, which is the current citation for such a violation. The correct citation for 2006 for such a violation is Subsection 1012.795(1)(c), Florida Statutes. The violations are the same but the statute has been renumbered. The same error exists for Counts 2 and 3. The correct citations for the violation described in Count 2 is Subsection 1012.795(1)(f), Florida Statutes, and the correct citation for the violation described in Count 3 is Subsection 1012.795(1)(i), Florida Statutes. The described violations will be cited as the Florida Statutes existed in 2006.

COPIES FURNISHED:

Ron Weaver, Esquire Post Office Box 5675

Douglasville, Georgia 30154-0012

John Cardona

101 East New Hampshire Avenue Apartment 3B

Deland, Florida 32724

Kathleen M. Richards, Executive Director Education Practices Commission Department of Education

Turlington Building, Suite 224-E

325 West Gaines Street Tallahassee, Florida 32399-0400

Deborah K. Kearney, General Counsel Department of Education

Turlington Building, Suite 1244

325 West Gaines Street Tallahassee, Florida 32399-0400

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

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: 09-005041PL

Orders for Case No: 09-005041PL