STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PAM STEWART, AS COMMISSIONER OF EDUCATION,

Petitioner,

vs.

ERIN SCHEUMEISTER,

Respondent.

/

Case No. 14-1052PL

RECOMMENDED ORDER

A final hearing was held before David M. Maloney, Administrative Law Judge with the Division of Administrative Hearings, on June 4, 2014, by video teleconferencing at sites in Port St. Lucie and Tallahassee, Florida.

APPEARANCES

For Petitioner: Charles T. Whitelock, Esquire

Charles T. Whitelock, P.A. Suite E

300 Southeast 13th Street

Fort Lauderdale, Florida 33316

For Respondent: Carol R. Buxton, Esquire

Florida Education Association Suite 109

1516 East Hillcrest Street Orlando, Florida 32803

STATEMENT OF THE ISSUES

Whether Respondent committed any of the offenses alleged in the Amended Administrative Complaint dated March 26, 2014, and, if so, what is the appropriate disciplinary penalty?

PRELIMINARY STATEMENT

On March 10, 2014, the Office of Professional Practice Services filed this case with the Education Practices Commission (EPC). The case consisted of an Administrative Complaint issued by Pam Stewart, Commissioner of Education (Petitioner), seeking disciplinary sanction of the educator’s certificate of Erin S. Scheumeister (Respondent), and Ms. Scheumeister’s Election of Rights in which she disputed the allegations in the complaint and requested a formal hearing. The EPC, in turn, referred the case to the Division of Administrative Hearings (DOAH) where a case file was opened on March 11, 2014. On the same day, DOAH designated Administrative Law Judge John Van Laningham to conduct the proceeding.

The case was set for hearing by video teleconference on

May 7, 2014. It was continued and heard on June 4, 2014. In the meantime, the case was transferred to the undersigned.

At the hearing, Petitioner presented the testimony of four witnesses: Amy Crossland, Jane Alice Waite, Morgan Kelly, and Karen Lynn Wilkins. Petitioner introduced eight exhibits marked as Petitioner’s Exhibits 1 through 8. All eight of Petitioner’s

exhibits were admitted into evidence. Ms. Scheumeister testified and presented the testimony of one witness, Thomas Mosely.

Respondent introduced two exhibits, marked as Respondent’s Exhibits 1 and 2. Both of Respondent’s exhibits were admitted into evidence.

A one-volume Transcript of the proceeding was filed with DOAH on July 25, 2014. The time for filing the proposed orders was extended at the request of the parties until August 13, 2014. Proposed Recommended Orders were filed timely by both parties and have been given due consideration during the preparation of this Recommended Order.

References to statutes are to Florida Statutes (2013) unless

otherwise noted.

FINDINGS OF FACT

1. Petitioner is responsible for the investigation and prosecution of complaints against holders of Florida Educational Certificates accused of violating section 1012.795, Florida Statutes, and related rules.

2. Respondent Erin S. Scheumeister holds Professional Educator’s Certificate 982133. Valid through June 30, 2015, the certificate covers the areas of Elementary Education, English for Speakers of Other Languages, Exceptional Student Education, and Autism Spectrum Disorders.

   
   

3. At all times material to this proceeding, the St. Lucie County School District (District) employed Ms. Scheumeister as an Exceptional Student Education teacher at Samuel S. Gaines Academy K-8 (“Samuel Gaines” or “Gaines Academy”).

4. During the 2012-2013 school year, a typical school day in Ms. Scheumeister’s class ended with a science or social studies lesson which would be presented jointly with the class of Ms. Madelina. Ms. Madelina was another Exceptional Student Education teacher at Gaines Academy, and she and Ms. Scheumeister would co-teach the class. For the science lesson, Ms. Madelina would bring her class to Ms. Scheumeister’s classroom.

   Ms. Madelina’s self-care aide, Jane Alice Waite, assisted with the joint science lesson.

5. During the 2012-2013 school year, two support staff members, a behavior tech and a paraprofessional, were assigned to Ms. Scheumeister’s class.

6. Ms. Scheumeister is charged with violations that flow from an incident that occurred during a joint science class on Friday, March 8, 2013. The joint science class was conducted, as was customary, at the end of the school day but in Ms. Madelina’s absence because she was absent from school the entire day. In her place was Amy Crossland, a frequent substitute teacher at Gaines Academy. Ms. Crossland also substituted on occasion for Ms. Scheumeister when she was absent and had filled in for

   
   

   Ms. Scheumeister’s paraprofessional aide on more than one occasion so that she was familiar both with Ms. Scheumeister’s class and Ms. Madelina’s class and the arrangement for joint science or social studies classes at the end of the day. As Ms. Crossland put it at the hearing, “It [Ms. Scheumeister’s class] was a challenging classroom, so they [the Administration] would put me in there frequently because they knew I [could] do it.” Hr’g Tr. 11.

7. One of the students in Ms. Scheumeister’s class was R.W., a nine-year-old male student with Autism Spectrum Disorder and Language Impairments. Described by Ms. Crossland as “a sweet kid but . . . a handful,” Hr’g Tr. 12, R.W. exhibited aggressive behavior on a regular, if not daily, basis. Ms. Scheumeister summed this behavior up as follows:

   He would hit, kick, punch staff, students, knock over desks, fall on the floor, roll around on the floor, knock over furniture. He would do self-injurious behavior such as pinching himself on the arm or he would run over into the kitchen and hit his head

   on . . . the counter where we have to block him from hurting himself.

   
   

   Hr’g Tr. 102. R.W.’s aggressive behavior was triggered when his routine was disrupted or he became upset. Whenever the trigger occurred, R.W.’s behavior became aggressive quickly.

8. An example of R.W.’s aggressive behavior involved a sink in an island in the kitchen that is either adjoining the

   
   

   classroom or part of the classroom. The sink had a faucet that could be rotated away from a position above the sink into a position above the floor. In moments of acting out, R.W. would swivel the faucet and turn the water on so that water would pour onto the floor.

9. Over the course of the several times that Ms. Crossland was present in Ms. Scheumeister’s class, she saw R.W. turn the faucet on above the floor. Ms. Scheumeister’s response usually consisted of attempts to redirect R.W. to appropriate behavior.

10. By the time of the incident on March 8, 2013, R.W. had swiveled the faucet and turned it on to spill water onto the floor more than once that day. These spills occurred during the joint science class in the presence of students from the two classes of Mses. Scheumeister and Madelina. Immediately after the first time, R.W. ran from the sink and dropped to the floor, which was common behavior for R.W. when he did not get his way or was disciplined. Ms. Scheumeister “raised her voice a little bit,” Hr’g Tr. 13, and her facial expression indicated that her patience with R.W. was wearing thin. Ms. Crossland attributed Ms. Scheumeister’s less-than calm reaction to R.W.’s misbehavior, plus the added stress of the joint science lesson with so many students present in the classroom at once.

11. Ms. Scheumeister did not do anything to R.W. physically the first time he ran the water onto the classroom floor on

    
    

    March 8, 2013. Her reaction became physical, however, when R.W. did it again. Ms. Scheumeister grabbed R.W.’s shoulders with both of her hands. With R.W. kicking and screaming,

    Ms. Scheumeister sat him on the floor. Ms. Scheumeister pushed and pulled R.W. through the water in what witnesses described as a mopping action. His shirt and shorts became wet.

    Ms. Scheumeister followed this physical discipline with words to

    
    

    R.W. with the effect that if he thought it was funny to spill water on the floor, she thought it would be funny for him to have to explain to his parents why his clothes were wet.

12. Jane Alice Waite, a paraprofessional aide assigned to Ms. Madelina’s class, observed Ms. Scheumeister push and pull

    R.W. through the water on the classroom floor. Ms. Waite’s response was immediate. She gathered Ms. Madelina’s students, left Ms. Scheumeister’s classroom with them, and returned the students to Ms. Madelina’s classroom. Ms. Waite did not want her students to remain in the presence of Ms. Scheumeister’s actions with R.W. for fear that they would be upset or become

    over-excited, a tendency of autistic students.

    
    

13. Ms. Waite appreciates that maintaining order in a classroom of autistic students can be a task that is “overwhelming.” Hr’g Tr. 46. Nonetheless, Ms. Waite found Ms. Scheumeister’s method of discipline of R.W. to amount to a loss of control and to be unjustifiable and inappropriate.

    
    

14. Morgan Kelly was the behavior tech in

    
    

    Ms. Scheumeister’s classroom the day of the incident. Ms. Kelly confirmed the testimony of Mses. Crossland and Waite. She saw Ms. Scheumeister “proceed with the mopping action dragging [R.W.] back and forth across the water.” Hr’g Tr. 53. Ms. Kelly’s immediate reaction was to offer to change R.W.’s clothing.

    Ms. Scheumeister reiterated that R.W. could go home wet and his parents can wonder why. R.W. responded to the comment by again turning on the faucet and running water onto the floor.

    Ms. Scheumeister grabbed R.W. and dragged him through the water again and then instructed Ms. Kelly to put R.W. on the bus wet without a change in clothing. R.W. rode the bus home in wet clothing.

15. The incident with R.W. was not the first time Ms. Kelly had observed Ms. Scheumeister act inappropriately with the autistic students in her classroom. On one occasion,

    Ms. Scheumeister disparaged her students for their inability to answer questions about a topic at kindergarten level that she had just read to them. On other occasions, Ms. Scheumeister said to some of her students that she intended to “choke them out.”

    Ms. Scheumeister also on more than one occasion pulled a student’s tee shirt over the back of the chair in which they were sitting so that the student could not get up.

    
    

16. Ms. Kelly reported the incident with R.W. to Carolyn Wilkins, the principal of Gaines Academy at approximately

    5:30 p.m. on the evening of March 8, 2013, a few hours after it occurred. Ms. Crossland also reported the matter. Rather than to the principal, Ms. Crossland submitted the report to the Exceptional Student Education Department chairperson.

17. In the investigation that ensued, Mses. Kelly, Crossland, and Waite provided written statements. Ms. Waite’s view of the incident with R.W. differed from Ms. Crossland’s in one respect. Ms. Waite was “not sure” how R.W. ended up in the water. But her statement was consistent with the other two statements in that Ms. Waite wrote that Ms. Scheumeister “pulled him in the water two or three time[s] and stated she was not going to change him and he was going home wet and he got on the bus wet.” Pet’r’s Ex. 4.

18. In the wake of the report from Ms. Kelly, Ms. Wilkins called the assistant superintendent of Human Resources. The assistant superintendent directed Principal Wilkins to call the Department of Children and Families and the school resource officer. Ms. Wilkins did so. She followed up the reports with a call to Ms. Scheumeister. In the conversation with

    Ms. Scheumeister, the principal informed her of the allegations, and ordered Ms. Scheumeister to report to the District office on the following Monday.

    
    

19. The District followed its procedures dictated by reports of a teacher’s inappropriate conduct with a student. The District commenced an investigation, and Ms. Scheumeister was transferred to the District office on what the District refers to as a “temporary duty assignment,” Hr’g Tr. 81, or “TDA.” See

    Pet’r’s Ex. 7. In keeping with standard procedure, the District hand-delivered to Ms. Scheumeister a copy of a written document entitled “Notice of Investigation and TDA” dated March 11, 2013, the Monday after the incident with R.W.

20. In May 2013, Principal Wilkins sent a letter dated May 29, 2013, to Ms. Scheumeister. It informed her that Principal Wilkins had decided not to recommend Ms. Scheumeister for reappointment for the 2013-2014 school year.

21. An Administrative Complaint was executed on November 7, 2013. On March 26, 2014, Petitioner moved to amend the Administrative Complaint. The motion was granted following Respondent’s notice of withdrawal of her opposition to the amendment.

22. A section of the Amended Administrative Complaint entitled “MATERIAL ALLEGATIONS” contains three paragraphs, numbered 3, 4, and 5. Paragraph 3 alleges:

Respondent twice grabbed R.W., a 9-year-old student diagnosed with Autism Spectrum Disorder and Language Impairment, and dragged him across the floor in an attempt to mop up a puddle of water that R.W. had spilled.

During this, Respondent stated to the student, “You think it is funny to flood the room? Well, I think its funny your clothes are wet.” When another school personnel offered to change R.W.’s clothes, Respondent refused to allow it and commented she wanted

R.W. to go home with wet clothes.

Paragraph 4 alleges:

Respondent made inappropriate comments or actions to her nine (9) students, who are diagnosed with Autism, including but not limited to, “I’m going to choke you out”; “That’s a kindergarten book and you (students) are not as smart as kindergarteners”; “It’s ok his (student’s) pants are too tight, he shouldn’t reproduce,”; putting student’s over their chairs to prevent them from getting out of their chair and yelling at students.

Amended Administrative Complaint, executed March 26, 2014, EPC Case No. 123-2596. Paragraph 5 alleges that following an investigation, Ms. Scheumeister’s “employment contract was non- renewed for the 2013-2014 school year.”

1. On the basis of the material allegations, the Amended Administrative Complaint charged Ms. Scheumeister as follows:

   STATUTE VIOLATIONS

   
   

   COUNT 1: The Respondent is in violation of Section 1012.795(1)(d), Florida Statutes, in that Respondent has been guilty of gross immorality or an act involving moral turpitude as defined by rule of the State Board of Education.

   
   

   COUNT 2: The Respondent is in violation of Section 1012.795(1)(g), Florida Statutes, in that Respondent has been found guilty of personal conduct which seriously reduces her

   
   

   effectiveness as an employee of the school board.

   
   

   COUNT 3: The Respondent is in violation of Section 1012.795(1)(j), Florida Statutes, in that Respondent has violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules.

   
   

   RULE VIOLATIONS

   
   

   COUNT 4: The allegations of misconduct set forth herein are in violation of Rule 6A- 10.081(3)(a), Florida Administrative Code, in that Respondent has 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 health and/or safety.

   
   

   COUNT 5: The allegations of misconduct set forth herein are in violation of Rule 6A- 10.081(3)(e), Florida Administrative Code, in that Respondent has intentionally exposed a student to unnecessary embarrassment or disparagement.

   
   

2. Ms. Scheumeister requested a formal hearing before DOAH on an Election of Rights form in which she disputed all allegations of the Administrative Complaint.

3. On March 10, 2014, the Office of Professional Practices Services filed the case with the EPC, and the EPC announced in a letter dated March 11, 2014, that it would forward the case to DOAH.

   
   

   CONCLUSIONS OF LAW

   
   

   1. Jurisdiction

      
      

4. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding pursuant to sections 120.569 and 120.57(1), Florida

   Statutes.

   
   

   1. Burden of Proof; Standard of Proof

      
      

5. The Commission has the burden of proof in this disciplinary proceeding. The “disciplinary” nature of the proceeding requires that the standard of proof the Commission must meet is “clear and convincing evidence.” See Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987) and McKinney v. Castor,

   667 So. 2d 3878 (Fla. 1st DCA 1995).

   
   

   1. Clear and Convincing

      
      

6. The “clear and convincing” standard of proof and its components are described by the Florida Supreme Court in In re

   Davey, 645 So. 2d 398 (Fla. 1994). The Court wrote in a portion

   
   

   of the opinion that is often quoted:

   
   

   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 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.

   
   

   Id. at 404 (quoting with approval, Slomowitz v. Walker, 429

   
   

   So. 2d 797, 800 (Fla. 4th DCA 1983)).

   
   

7. Although the “clear and convincing” standard of proof may be met where the evidence is in conflict, In re Guardianship

   of Browning, 543 So. 2d 258, 273 (Fla. 2d DCA 1989), approved,

   
   

   568 So. 2d 4 (Fla. 1990), it precludes evidence that is ambiguous. Westinghouse Elec. Corp. v. Shuler Bros., 590 So. 2d 986 (Fla. 1st DCA 1991).

   1. Application of Standard of Proof in This Case

      
      

8. Respondent argues that her denials of the allegations concerning the incident with R.W., including those made under oath at the hearing, have been unchanged from the start. She posits her denials have been demonstrative of an independent recollection of the events at issue that is clear and without flounder. In contrast, she points to disagreement among the three eyewitnesses as to the details of the “alleged dragging incident” and asserts the disagreement is “because it never happened.” See Respondent’s Proposed Recommended Order at 13. Respondent’s argument is that the superiority of the quality of her testimony to that of the three witnesses requires that her testimony prevail. Alternatively, her argument is that her testimony compared to the testimony of the three eyewitnesses renders the Petitioner’s case less than clear and convincing.

   
   

9. It is correct that Ms. Scheumeister did not waiver in her denials. It is also correct for her to point out that the three eyewitnesses who accuse her did not agree precisely on some of the details. But each of the three eyewitnesses had different perspectives and different charges. Two of the eyewitnesses were in charge of students from a visiting class, who were not part of Ms. Scheumeister’s class. As Ms. Waite testified, for example, her main concern at the moment of Ms. Scheumeister’s distressing actions was to gather her students and escort them back to their own classroom in order to shield them from what might further occur in light of Ms. Scheumeister’s highly inappropriate actions.

10. Whatever minor discrepancies may be attributed to the versions of Mses. Crossland, Waite, and Kelly, all three eyewitnesses to the dragging incident involving R.W. were each credible. Their descriptions of the main points under oath and in their written statements of the incident are consistent. In summary, the three individuals were taken aback at the moment the incident occurred. They were disturbed by Ms. Scheumeister’s refusal to have R.W.’s clothes changed by staff. They knew it was not right, no matter how difficult it could be to have R.W. in the classroom and how difficult he was in the moments leading up to the draggings through the water, that he boarded the bus home in wet clothes. Most importantly, they testified without

    
    

    any disagreement as to the material allegations in the complaint: Ms. Scheumeister “twice grabbed R.W., a 9-year-old student diagnosed with Autism Spectrum Disorder and Language Impairment, and dragged him across the floor in an attempt to mop up a puddle of water that R.W. had spilled.” Amended Administrative Complaint, EPC Case No. 123-2596. There is no aspect of their testimony and written statements submitted during the investigation that does anything other than fully support the complaint’s material allegations.

11. The testimony of the three eyewitnesses constitutes clear and convincing evidence.

12. The “clear and convincing” quality of the evidence is in no way diminished by Ms. Scheumeister’s denial of the charges and her testimony that contradicted that of the eyewitnesses. When weighed against the testimony of Mses. Crossland, Waite, and Kelly, moreover, Ms. Scheumeister’s testimony is deemed not credible and her denial of the mopping action she used with R.W.’s body in the water on the floor is not credited.

13. The evidence in this case demonstrates Ms. Scheumeister had a challenging class of special education children; among those children, R.W. was especially difficult; at the end of the day and at the end of the week in an especially stressful moment when two classes of exceptional education students were present in one classroom and when R.W. was being difficult and disruptive

    
    

    in a way exhibited many times before, a frustrated

    
    

    Ms. Scheumeister, prompted by the stress of the moment, took actions that were indubitably inappropriate-–physically dragging

    R.W. back and forth across water on the floor in a mopping action and in essence using the student’s body to mop up the water--and all three of the other staff members of Gaines Academy present at the time instantly knew it.

14. With regard to the material allegations in paragraph 4 of the Amended Administrative Complaint, the evidence is less compelling than that related to paragraph 3. Unsupported by other evidence and rebutted by Ms. Scheumeister, Ms. Kelly’s testimony about the occurrence of the material allegations in paragraph 4 stands alone. Nonetheless, given Ms. Scheumeister’s lack of credibility with regard to the incident involving R.W., there is no reason to credit her own explanation of the allegations in paragraph 4 of the Amended Administrative Complaint. In contrast, the testimony of Ms. Kelly is credited. Under these circumstances, the evidence of the material allegations in paragraph 4 is deemed clear and convincing.

    1. Gross Immorality or Moral Turpitude

       
       

15. The first of the three statutory charges is a violation of section 1012.795(1)(d): gross immorality or an act involving moral turpitude.

    
    

16. “Immorality” is defined in rule 6A-5.056(1) as:

    
    

    “Immorality” means conduct that is inconsistent with the standards of public conscience and good morals. It is conduct that brings the individual concerned or the education profession into public disgrace or disrespect and impairs the individual’s service in the community.

    
    

    There is no definition of “gross immorality” in statute or rule nor is there any definition in statute or rule of the term “gross” in relation to the rule’s definition of “immorality” quoted above.

17. While one might infer that “gross immorality” is misconduct that is more egregious than mere “immorality,” absent definition in a rule of the State Board of Education, the charge against Respondent cannot be lodged. The following, in Dr. Tony Bennett, as Commissioner of Education v. Rebecca Sampson Carey,

    at 26, Case No. 13-4253 (Fla. DOAH June 30, 2014), recently written by Administrative Law Judge Elizabeth McArthur in a case in which a final order has not been issued yet, applies to the charge that Ms. Scheumeister is guilty of “gross immorality”:

    1. In Cappi Arroyo v. Dr. Eric J. Smith, as Commissioner of Education (Arroyo), Case

       No. 11-2799 (Fla. DOAH May 31, 2012; Fla. EPC

       Nov. 5, 2012), Administrative Law Judge F. Scott Boyd analyzed the charged violation of “gross immorality” under section 1012.795(1)(d), as follows:

       
       

       1. The Ethics in Education Act, Chapter 2008-108, Laws of Florida, added the phrase “as defined by rule

          
          

          of the State Board of Education” to what now appears as section 1012.795(1)(d). It is unclear whether this new language modifies only “an act involving moral turpitude” or if it instead modifies the entire phrase “gross immorality or an act involving moral turpitude.” The absence of a comma after the word “immorality” suggests that it modifies the entire phrase. In any event, when construing penal statutes, any statutory ambiguity should be resolved in favor of Petitioner. Cilento v. State, 377 So. 2d 663, 668 (Fla. 1979) (where criminal statute is ambiguous, construction most favorable to accused should be adopted). See also

          § 775.021, Fla. Stat. (“The provisions of this code and offenses defined by other statutes shall be strictly construed; when the language is susceptible of differing constructions, it shall be construed most favorably to the accused.”).

          This portion of the statute is thus only violated if an educator is guilty of gross immorality as defined by rule of the State Board of Education.

          
          

       2. The State Board of Education has not defined the term “gross immorality” by rule. No evidence was presented that Petitioner’s behavior met any such rule definition. No evidence shows that Petitioner was guilty of gross immorality as defined by rule of the State Board of Education.

    
    

    Arroyo Rec. Order at 41-42. The Education Practices Commission adopted the Recommended Order, including these conclusions of law, as its Final Order, issued on November 5, 2012.

    
    

    In sum, without a definition of the term by rule of the State Board of Education, and there was none offered in this proceeding, a charge of “gross immorality” against

    Ms. Scheumeister cannot stand. Accord Torreya Landrea Davis v. Pam Stewart, as Comm’r of Educ., Case No. 13-2501 (Fla. DOAH

    Dec. 13, 2013; Fla. EPC March 28, 2014); Pam Stewart, as Comm’r of Educ. v. Elaine Anderson, Case No. 13-1347PL (Fla. DOAH

    Dec. 16, 2013; Fla. EPC March 28, 2014); Dr. Tony Bennett, as

    
    

    Comm’r of Educ. v. Doreen Whitfield, Case No. 13-3360PL (Fla. DOAH Jan. 8, 2014; Fla. EPC May 20, 2014).

18. With regard to the charge of “an act involving moral turpitude,” Petitioner refers to an outdated definition of “moral turpitude” as 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 statutes fixes the moral turpitude.” See Petitioner’s Proposed Recommended Order at 11. Ms. Scheumeister’s actions with regard to R.W. in the March 8, 2013, incident and her derogatory comments to her students, while ranging from extremely inappropriate and demeaning of a student in the case of R.W. to uncalled-for and inappropriate in the case of the remarks overheard by Ms. Kelly, do not reach down to the level of base, vile or depraved.

    
    

19. Ms. Scheumeister is not guilty of a violation of section 1012.795(1)(d), Florida Statutes.

    1. Reduction of Effectiveness as a School Board Employee

       
       

20. The second statutory violation is that Ms. Scheumeister is guilty of personal conduct that seriously reduces her effectiveness as an employee of the school board.

21. Dragging a nine-year-old autistic student through water on the floor in punishment for having deliberately caused the water to flow onto the floor reduces her effectiveness as an employee of the school board. Sending the student home in wet clothes when there were clothes available into which the student could change and telling the student she thinks it will be funny for him to explain his situation to his parents is also personal conduct that seriously reduces her effectiveness as an employee of the school board.

22. The remarks Ms. Scheumeister made to students that were overheard by Ms. Kelly were not appropriate. While some may have been in jest, their totality evinces a serious disrespect for her students and seriously reduces her effectiveness as an employee of the school board.

23. Ms. Scheumeister is guilty of the charges contained in Count 2 of the Amended Administrative Complaint.

    
    

    1. Misconduct in Office

    
    

24. The charge of a violation of section 1012.795(1)(j) for violations of the Principles of Professional Conduct for the Educational Profession prescribed by State Board of Education rules involve two rules.

25. The first is rule 6A-10.081(3)(a). It requires that the holder of an educational certificate “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.”

26. The second is rule 6A-10.081(3)(e). It requires that the holder of an educational certificate “shall not intentionally expose a student to unnecessary embarassment or disparagement.”

27. Respondent’s conduct with regard to R.W. constituted a failure to protect R.W. from conditions harmful to learning, to his mental health, and to his physical health. The refusal to allow staff to change his wet clothes intentionally exposed R.W. to unnecessary embarassment and disparagement. Ms. Scheumeister is guilty of the charges contained in Counts 3, 4, and 5 of the Amended Administrative Complaint.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent’s educator’s certificate be revoked for a period of not less than five years and that an appropriate fine be levied for each count. If Respondent, when

eligible, reapplies for an educator’s certificate and receives one, a condition of the certificate should be probation for a period of five years with additional conditions appropriate to the facts of this case to be set by the Education Practices Commission.

DONE AND ENTERED this 8th day of September, 2014, in Tallahassee, Leon County, Florida.

S

DAVID M. MALONEY

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 8th day of September, 2014.

COPIES FURNISHED:

Gretchen Kelley Brantley, Executive Director Education Practices Commission

Department of Education

325 West Gaines Street, Suite 316 Tallahassee, Florida 32399-0400 (eServed)

Lois S. Tepper, Interim 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)

Carol R. Buxton, Esquire Florida Education Association

1516 East Hillcrest Street, Suite 109

Orlando, Florida 32803 (eServed)

Charles T. Whitelock, Esquire Charles T. Whitelock, P.A.

300 Southeast 13th Street, Suite E Fort Lauderdale, Florida 33316 (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: 14-001052PL

Orders for Case No: 14-001052PL