vs.
Respondent.
Case No. 14-2649PL
On September 12, 2014, Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings (DOAH), conducted the final hearing by video teleconference in Tallahassee and Orlando, Florida.
Herdman & Sakellarides, P.A. Suite 110
29605 U.S. Highway 19, North Post Office Box 4940 Clearwater, Florida 33761
The issue is whether Respondent is guilty of failing to make reasonable effort to protect a student's safety, in violation of
section 1012.795(1)(j), Florida Statutes, and Florida Administrative Code Rule 6A-10.081(3)(a).
By Administrative Complaint dated November 7, 2013, Petitioner alleged that Respondent holds a Florida Educator Certificate and, at all material times, was employed as an Exceptional Student Education (ESE) teacher at Windy Ridge K-8 school (Windy Ridge) in the Orange County School District (District). In their entirety, the material factual allegations are that, on December 4, 2012, Respondent "failed to protect and properly supervise a nine-year-old student, D.R., who on three separate occasions was discovered wandering around campus unaccompanied." The Administrative Complaint alleges that Respondent thus violated section 1012.795(1)(j) and
rule 6A-10.081(3)(a). Respondent timely requested a hearing.
At the hearing, Petitioner called seven witnesses and offered into evidence 23 exhibits: Petitioner Exhibits 1 through 23. Respondent called no witnesses and offered into evidence no exhibits. All exhibits were admitted. At the
142 from Petitioner Exhibit 23 and gave Petitioner ten days to file a replacement page 142 with one paragraph redacted. Petitioner did so on September 19, 2014, and the Administrative Law Judge added the late-filed page to the exhibit.1/
On November 12, 2014, the court reporter filed a Transcript.
The parties timely filed proposed recommended orders on November 21, 2014.
Respondent holds Florida Educator Certificate 646554 in the area of Mentally Handicapped. For the past six or seven years, Respondent has been employed as an ESE teacher at Windy Ridge. The record contains no evidence of prior discipline of Respondent's educator certificate, but the District suspended her for five days without pay for the three incidents that are described below.
For the 2012-13 school year, Respondent and four paraprofessionals taught a class of seven ESE students. The paraprofessionals performed tasks assigned to them by Respondent. Absences on December 4, 2012, reduced the class to five ESE students, Respondent, and two of the four paraprofessionals regularly assigned to Respondent's classroom. The principal assigned a substitute for one of the two absent paraprofessionals, so four adults were supervising five students on that day.
One of the five students present on December 4 was D.R., who was nine and one-half years old and suffered from a "significant cognitive disability." As documented by his Individual Educational Plan (IEP), which is dated November 6,
2012, D.R.'s mother was "very concerned" about the safety of her son, who was tube-fed, "non-verbal," and able to follow only "some simple one-step commands." The IEP warns that D.R. was in a "mouthing stage," meaning that he put "everything" in his mouth for sensory input. As described in his social/developmental history, which is dated November 1, 2012, D.R.'s health was "fragile."
The three incidents at issue took place during approximately one hour at midday on December 4. The first incident took place at 11:10 a.m. Serena Perrino, a District behavior trainer, was sitting alone in Ms. Barnabei's classroom, which is next to Respondent's classroom. The two classrooms are joined by the two teachers' offices, so it is possible to walk between the classrooms without entering the hallway. On a break, Ms. Perrino had turned off the lights and was on the computer at the front of Ms. Barnabei's classroom.
While facing the computer monitor, Ms. Perrino heard a noise behind her, turned around, and saw D.R., by himself, seated on the floor playing with a toy. Ms. Perrino knew that he belonged in Respondent's classroom. Without delay, Ms. Perrino walked D.R. toward his classroom, but, as they were passing through the teachers' offices, Ms. Perrino and D.R. encountered one of Respondent's paraprofessionals, who said that she was "just coming to get him, thanks."
The second incident took place between 11:30 a.m. and noon. Bernadette Banagale, the substitute paraprofessional assigned to Respondent's classroom on that day, was eating lunch in a small outside courtyard that is located at the end of the hallway where Respondent's classroom is located. Ms. Banagale saw D.R., by himself, enter the courtyard from the doors at the end of the hallway. Ms. Banagale approached D.R. and, with some difficulty, walked him back to Respondent's classroom where she left him in the custody of the other two paraprofessionals, Susan Brown and Delta Porter, but not Respondent, who was not in the classroom when Ms. Banagale returned the child.
The third incident took place shortly after noon. Cathy Zimmerman, a teacher, was sitting in a classroom eating lunch with another teacher. Looking out the window of the classroom, Ms. Zimmerman noticed D.R. in the adjoining breezeway, which divides the building from the school parking lot. Ms. Zimmerman did not know D.R., nor where he belonged, but she saw that he was unescorted. Approaching D.R. in the breezeway, Ms. Zimmerman guided him back through the doors leading to a hallway that, after a short distance, intersects the hallway where Respondent's classroom is located.
As she was walking the child into the building,
Ms. Zimmerman directed the teacher with whom she had been having lunch to enter the nearest classroom to see if anyone could
identify the child. As directed, the other teacher entered
Ms. Barnabei's classroom, where she found Ms. Perrino, who again took custody of D.R. and immediately returned him to Respondent's classroom where Ms. Perrino found Respondent and one or more paraprofessionals.
In an effort to prove that Respondent failed to make reasonable effort to protect D.R., Petitioner offered two pieces of evidence: during direct examination, the principal prescribed that a classroom teacher is required to know at all times the location of her students, and, during cross-examination, Respondent agreed with the metaphor supplied to her by Petitioner's counsel that a classroom teacher is the "captain of the ship." The principal's prescription and Respondent's metaphor constitute the entirety of Petitioner's explicit analysis of the reasonableness of Respondent's effort to protect D.R.
The principal's prescription and Respondent's metaphor do not prove that Respondent failed to make reasonable effort to protect D.R. in the first incident. The principal's testimony is inapt because Petitioner failed to prove that a paraprofessional did not always know D.R.'s location; that Respondent failed to protect D.R. when a paraprofessional knew his location, regardless of whether Respondent knew his location; and that D.R.'s safety was compromised at any time during the few seconds
that he was in the adjoining classroom. Respondent's testimony is inapt because Petitioner did not prove that a paraprofessional failed to make reasonable effort to protect D.R.'s safety, which would be a pre-condition to attributing this failure to the captain of the ship, as discussed in the Conclusions of Law.
The principal's prescription and Respondent's metaphor do not prove that Respondent failed to make reasonable effort to protect D.R. in the second incident. Petitioner failed to prove that Respondent was in the classroom at the time of D.R.'s escape or at any time during his ensuing absence from the classroom and failed to prove that Respondent's absence from the classroom was unauthorized.
As for the absence of Respondent from the classroom at the time of the escape in the second incident, the strongest evidence is Respondent's written statement to this effect. Other evidence tends to support Respondent's written statement that she was not in the classroom at the time of the escape.
Ms. Banagale's scheduled lunch was 11:30 a.m. to noon, and nothing in the record suggests that the substitute paraprofessional took her lunch at other than her scheduled time. The distance between the front door of Respondent's classroom and the exterior doors leading to the courtyard is the width of the single classroom that separates Respondent's classroom from these exterior doors, so it would not have taken D.R. long to travel
from the front door of the classroom to the exterior doors leading to the courtyard.
Respondent's scheduled lunch was 11:00 a.m. to
11:30 a.m., but Respondent testified that she was behind schedule when she took her lunch. She also testified that she returned to the classroom "a little after noon." Nothing in the record indicates how long Respondent took for lunch, but, if she took all of her allotted time, she likely left the classroom shortly after Ms. Banagale, leaving a very narrow window for D.R. to escape, if he were to do so after Ms. Banagale's departure, but before Respondent's departure--a fact that Petitioner has not established.
The only evidence suggesting that Respondent was in the classroom at the time of D.R.'s escape comes from Respondent's testimony at the hearing to this effect. Notwithstanding the inculpatory nature of Respondent's testimony, it is impossible to credit it. Provided nearly two years after the incident, Respondent's testimony was, at times, confused and unclear, but her written statement is clear and straightforward. It would appear that, based on the findings below concerning the third incident, Respondent may have confused the second and third incidents.
The principal's prescription and Respondent's metaphor do not prove that Respondent failed to make reasonable effort to
protect D.R. in the third incident. The third incident is more complicated than the first and second incidents because it is more difficult to determine exactly what Petitioner proved and the extent to which the material factual allegations extend to the proof of the third incident.2/
At minimum, Petitioner pleaded3/ and proved that D.R. escaped from the classroom, and Respondent was in the classroom at the time of the escape. Respondent gave a written statement admitting that she was present when D.R. left the classroom and that she was unaware of his departure "because my back was turned by me working with another student on the computer, [as D.R.] left out the rear door." At the hearing, Respondent testified confusingly, possibly suggesting that she was at lunch or in planning when D.R. escaped in connection with the third incident, but any such exculpatory testimony is discredited for the same reason that her inculpatory testimony regarding the second incident was rejected.
As was true of the written statement in connection with the second incident, other evidence tends to support Respondent's written statement in connection with the third incident. As noted in the discussion of the second incident, Respondent returned to the classroom "a little after noon." At this point, Respondent, Ms. Banagale, and Ms. Brown were in the classroom. Ms. Porter's scheduled lunch was from noon to 12:30 p.m., and
nothing in the record suggests that she did not take her lunch as scheduled.
As discussed in the Conclusions of Law, analysis of whether Respondent failed to meet a reasonableness standard may be facilitated by consideration of the burden of taking precautions sufficient to prevent an escape, the probability of an escape, and the magnitude of the threat to D.R.'s safety, if he escaped.
The burden of taking additional precautions was not insubstantial. The classroom has three exits, and D.R. used each of them in connection with the three incidents. In the first incident, as noted above, D.R. used a side exit through the teachers' offices to get to the adjoining classroom of
Ms. Barnabei. In the second incident, D.R. used the front door to get to the courtyard. In the third incident, D.R. used the rear door to access the adjoining breezeway, where Ms. Zimmerman found him no more than 75 feet from the rear door.
Evidence suggests that locking the doors at each of these exits was forbidden, possibly due to fire regulations. Although three adults were supervising only five ESE students at the moment of D.R.'s escape in the third incident, the paraprofessional who normally taught D.R. one-on-one at the time of the escape was absent. It is not entirely clear how long Respondent was in the classroom before D.R. escaped, but
Respondent was performing instructional duties at the moment of the escape, so additional attention by Respondent to security would have meant reduced instruction, at least of the child whom she was teaching one-on-one at the time of the escape; this adds to the burden of taking escape precautions.4/
The probability of D.R.'s escape was demonstrably very high, as evidenced by his three escapes in a single hour on December 4.
The magnitude of the threat to D.R.'s safety from an escape is difficult to assess. D.R. was a medically fragile, highly vulnerable child. However, he suffered no injuries in any of the three escapes that are the subject of this case. The magnitude of the threat posed to D.R.'s safety from escaping was thus low.
Considering that the burden of taking additional precautions was moderate, the probability of escape was high, and the magnitude of threat to D.R.'s safety from an escape was low, it is impossible to find that Petitioner proved by clear and convincing evidence that Respondent failed to make reasonable effort to protect D.R.'s safety by preventing the escape in connection with the third incident.
The analysis in the preceding paragraphs focuses on Respondent's failure at the moment of D.R.'s escape, not on the duration of his absence from the classroom and any ongoing
failure to notice that the child was missing from the classroom. As explained in the Conclusions of Law, Petitioner did not plead these failures as grounds for disciplining Respondent, but, in an abundance of caution, the following findings address these alternative grounds for determining that Respondent failed to make reasonable effort to protect D.R.'s safety in connection with the third incident.
There is no direct evidence of how long D.R. was out of the classroom in connection with the third incident. There is only one point in time established by direct evidence:
Ms. Zimmerman first saw the child at 12:10 p.m. There is no direct evidence of when D.R. escaped from the classroom, nor could there have been such evidence from the known witnesses.
Ms. Zimmerman's written statement notes that all of the physical education teachers, which may include her, were in the area of the breezeway from noon to 12:07 p.m., and they never saw
D.R. Ms. Zimmerman's statement implies that someone would have seen D.R. if he had been anywhere in the breezeway by himself.
Although Ms. Zimmerman could have estimated how long she had the child before turning him over to Ms. Perrino, no one asked her to do so.5/ And there is no other direct evidence of how long Ms. Zimmerman had the child.
Based on the evidence cited in the preceding paragraph,
D.R. escaped the classroom between 12:08 p.m. and 12:10 p.m. and
returned to the classroom between 12:11 p.m. and 12:13 p.m. Limiting inferences to those supported by clear and convincing evidence, as discussed in the Conclusions of Law, the earliest that D.R. left the classroom was 12:09 p.m., and the latest that
D.R. returned to the classroom was 12:11 p.m. This means that Petitioner has proved that D.R. was absent from the classroom for no more than two minutes: one minute by himself and one minute accompanied by Ms. Zimmerman.
The burden of taking adequate precautions to detect the child's absence and return him to the safety of the classroom is lower than the burden of preventing the escape, which can occur in a few seconds, although it is difficult to assess what exactly would have been required of Respondent to conduct a search or, by notifying school administrators, to cause a search to be conducted. The burden of preventing an escape is much greater than the burden of noticing, within two minutes, that a child is missing from a five-student classroom. The magnitude of the threat to D.R.'s safety rises the longer that he is out of the classroom, especially unescorted.
Presenting a closer case than the pleaded case involving only an escape, the claim that Respondent failed to make reasonable effort, when directed to the length of time that
D.R. was out of the classroom, requires consideration of any effort that Respondent made during D.R.'s absence. The duration
of D.R.'s absence is thus linked to whether Respondent noticed that D.R. was missing and, if so, what Respondent did upon discovering that he was gone.
As discussed in the Conclusions of Law, because inferences are limited to those supported by clear and convincing evidence, Petitioner has not proved that Respondent and the paraprofessionals failed to notice that D.R. was missing. There is no direct evidence that Respondent and the paraprofessionals failed to notice that D.R. was missing from the classroom. The record lacks admissions from Respondent and the two paraprofessionals in the classroom during the third incident that they were unaware of D.R.'s absence.6/
Both Ms. Zimmerman and Ms. Perrino testified that they did not see anyone in the vicinity of the classroom looking for D.R., and this testimony is credited, but supports no more than an inference by a preponderance of the evidence that the adults in the classroom were not looking for the child, and does not support even an inference by a preponderance of the evidence that the adults in the classroom had failed to notice that D.R. was missing.
Ms. Perrino testified that when she returned D.R. to the classroom, none of the adults present seemed to have realized that the child had been missing. This testimony is credited, but, lacks important detail, including on what this testimony is
based and whether this observation applied to Respondent, so as to support no more than an inference by a preponderance of the evidence that the adults had not noticed that D.R. was missing.
Thus, even if Petitioner has pleaded the duration of D.R.'s absence and a failure to notice the absence of the student as grounds for determining that Respondent failed to make reasonable effort to protect his safety, Petitioner failed to prove these claims by clear and convincing evidence
CONCLUSIONS OF LAW
DOAH has jurisdiction over the subject matter.
§§ 120.569, 120.57(1), and 1012.796(6), Fla. Stat.
Section 1012.795(1)(j) authorizes the Education Practices Commission (EPC) to discipline the educator certificate of any person who violates the Principles of Professional Conduct for the Education Profession, which are set forth in Florida Administrative Code Rule 6A-10.081.
Rule 6A-10.081(3)(a) requires that a person holding an educator certificate "[s]hall 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."
Petitioner must prove the material allegations by clear and convincing evidence. Dep't. of Banking & Fin. v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996).
As noted above, the material factual allegations are that Respondent "failed to protect and properly supervise . . . D.R., who on three separate occasions was discovered wandering around campus unaccompanied." These factual allegations are constrained by the standard set forth in Trevisani v. Department
of Health, 908 So. 2d 1108 (Fla. 1st DCA 2005), in which the court held that a charge that a dentist failed to keep dental records constituted an allegation that he failed to make required records, but not an allegation that he failed to maintain them after their creation.
Petitioner alleges a failure to supervise, which is arguably an instance of a failure to protect. Petitioner also alleges that D.R. was found wandering three times around the campus by himself. By midday, afterschool supervision of the child clearly had commenced, the most likely means by which supervision could be interrupted was by a student's escape, so Petitioner's allegation of a failure to protect reasonably implies a failure to prevent an escape.
However, Petitioner has not alleged, directly or indirectly, the issue of the duration of each lapse in supervision or that Respondent and the paraprofessionals failed to notice that the child was missing. An allegation that the child was "found wandering" suggests a point in time after an escape from the classroom, but there is no way to read
Petitioner's spare pleadings to identify issues involving how long D.R. was out of the classroom or the adults' lack of realization that the child was missing. In an abundance of caution, though, this Recommended Order contains findings and conclusions for these additional theories, as well.
The determination of whether a teacher has failed to make reasonable effort to protect a student is a fact question. See, e.g., Langston v. Jamerson, 653 So. 2d 489 (Fla. 1st DCA
1995). The determination of whether a teacher has failed to make reasonable effort invites the same analysis that would accompany the determination of whether a person were guilty of a failure to exercise reasonable care or, in a word, negligence.7/
In United States v. Carroll Towing Co., 159 F.2d 169,
173 (2d Cir. 1947), Judge Learned Hand set forth a useful formula for adjudicating claims concerning the reasonableness of care exercised by a party: liability does not attach if the burden of taking adequate precautions is more than the probability of injury multiplied by the magnitude of injury, if injury occurs.
Judge Hand's formula is not the only analytic framework for resolving issues of the reasonableness of effort or care. But, rather than address the reasonableness of Respondent's acts and omissions through Judge Hand's formula or some other means, Petitioner has relied on the principal's prescription and Respondent's metaphor. In doing so, Petitioner essentially has
tried to prove violations of the reasonable-effort rule by prima facie evidence of negligence or a rebuttable presumption of negligence.
According to the principal--evidently for all three incidents, although she never addressed any of the incidents in any detail--if a classroom teacher does not know the location of her students, she has failed to make reasonable effort to protect her students' safety, and no further analysis is needed. The principal's prescription has the virtue of simplicity, but is notably unsuitable for a fact-intensive inquiry into the reasonableness of a teacher's effort.
It is unclear whether Petitioner would acknowledge the necessity of revising the principal's prescription for different factual scenarios.8/ If not, Petitioner's reliance on the principal's prescription would appear less an elucidation of non- rule policy9/ and more an attempt improperly to shift the burden of proof to Respondent. See McDonald v. Dep’t of Bus. & Prof’l
Reg., 582 So. 2d 660 (Fla. 1st DCA 1991) (agency improperly predicated liability on prima facie evidence of negligence in piloting of vessel); B.R. v. Dep’t of HRS, 558 So. 2d 1027 (Fla. 2d DCA 1989) (agency improperly modified its statutory burden to prove child abuse by reliance on rule requiring finding of abuse if bruise from corporal punishment remains visible for 24 hours;
courts and legislature, not executive agencies, may establish evidentiary presumptions).
Respondent's metaphor requires no such analysis because it is inapposite. The captain-of-the-ship principle holds a physician liable for the acts and omissions of staff members under the physician's direct control and supervision; although, in the case of a surgeon, following the surgery and the departure of the surgeon from the hospital, liability for the acts and omissions of hospital employees reverts to the hospital employing them. See, e.g., Variety Children's Hospital v. Perkins, 383 So.
2d 331, 334-35 (Fla. 3d DCA 1980). Because of the absence of any showing that any of the paraprofessionals failed to make reasonable effort to protect D.R.'s safety in the three incidents, the captain-of-the-ship principle is completely irrelevant.
As set forth in the Findings of Fact, the first and second incidents do not seriously call into question the reasonableness of Respondent's effort to protect the safety of
D.R. If restricted to the escape itself, the third incident, which presents a slightly closer case, also requires no further consideration in the Conclusions of Law.
The closer questions as to the third incident arise in connection with the duration of D.R.'s absence from the classroom and whether Respondent and the paraprofessionals realized that he
was gone. As noted in the Findings of Fact, only inferential evidence is available to establish these facts.
In a preponderance case, a finding may be based on an inference as long as the inference "shall outweigh all contrary inferences to such extent as to amount to a preponderance of all of the reasonable inferences that might be drawn from the same circumstances." Voelker v. Combined Ins. Co., 73 So. 2d 403, 405
(Fla. 1954) (citing King v. Weis-Patterson Lumber Co., 124 Fla.
272, 168 So. 858, 859 (Fla. 1936)). However, a more rigorous principle applies to an inference in a criminal case, which of course bears the highest standard of proof--beyond a reasonable doubt. In a criminal case, a finding may be based on inference as long as the "evidence in its totality supports no contrary reasonable inference." Benson v. State, 526 So. 2d 948, 953
(Fla. 2d DCA 1988). Clear and convincing is an intermediate standard, but its requirement that "the evidence '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,'" see, e.g., Bone & Joint
Treatment Center v. Healthtronics Surgical Services, 114 So. 3d 363, 366 (Fla. 3d DCA 2013) (citation omitted), precludes the use of the inference test applicable to a case governed by the preponderance standard.
Based on the case law governing inferences, Petitioner has proved a two-minute absence of D.R. from the classroom--one minute of which he was unescorted--and has failed to prove that Respondent and the paraprofessionals did not notice that D.R. was gone. Such proof does not establish that Respondent failed to make reasonable effort to protect D.R.'s safety.
RECOMMENDED that the Education Practices Commission enter a final order dismissing the Administrative Complaint.
DONE AND ENTERED this 1st day of December, 2014, in Tallahassee, Leon County, Florida.
ROBERT E. MEALE
Filed with the Clerk of the Division of Administrative Hearings this 1st day of December, 2014.
1/ Petitioner failed to redact from her exhibits any personally identifiable information about students. On his own initiative, the Administrative Law Judge has sealed those exhibits that contain such information. Rather than examine for personally identifiable information the prefiled exhibits that were not
offered into evidence, the Administrative Law Judge also has sealed those exhibits in a separately marked envelope.
2/ As discussed in the Conclusions of Law, the material factual allegations raise the issue of whether Respondent made reasonable effort to protect D.R.'s safety when he escaped from the classroom, but not the issue of whether Respondent made reasonable effort to protect D.R.'s safety after his escape-- specifically, in terms of whether Respondent or any of the paraprofessionals noticed that D.R. was missing at any point prior to his return to the classroom. In an abundance of caution, though, this Recommended Order also contains findings on this post-escape issue.
3/ See, below, discussion of the scope of the Administrative Complaint.
4/ By contrast, the burden of taking additional precautions would have been slighter or nonexistent if, at the time of the escape, Respondent were not teaching another student, but were on an unauthorized break or using her computer for matters other than work.
5/ This apparent omission reinforces the conclusion that Petitioner did not allege a failure to make reasonable effort to protect D.R.'s safety during his absence from the classroom.
6/ See preceding endnote.
7/ Cf. § 39.521(1)(f), Fla. Stat. (in disposition proceeding following dependency adjudication, agency must make "reasonable effort" to reunify family; "reasonable effort" is "exercise of reasonable diligence and care" by agency to provide court-ordered services); Instruction 401.4, Standard Jury Instructions in Civil Cases,
35 So. 3d 666 (Fla. 2010) (per curiam) ("Negligence is the failure to use reasonable care . . .").
8/ Consider, for example, a classroom escape by one of 30 neurotypical 17-year-olds while the teacher, back to the class, was trying to cover complicated coursework on a chalkboard.
9/ Rulemaking to link the reasonable-effort rule to specific examples of acts and omissions that violate the rule would likely not be "practicable," see § 120.54(1)(a)2.,Florida Statutes, so Petitioner must elucidate its non-rule policy linking the reasonable-effort rule with the acts and omissions of Respondent
in this case. Cf. Jenkins v. Bd. of Educ., 399 So. 2d 103, 105 (Fla. 1st DCA 1981) (dictum)..
Herdman and Sakellarides, P.A. Suite 110
29605 U.S. Highway 19, North Post Office Box 4940 Clearwater, Florida 33761 (eServed)
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.
