STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
PAM STEWART, AS COMMISSIONER OF EDUCATION,
Petitioner,
vs.
DONNA FABER-SOUKEY,
Respondent.
/
Case No. 15-1883PL
RECOMMENDED ORDER
Administrative Law Judge Lisa Shearer Nelson of the Division of Administrative Hearings (DOAH or the Division) conducted a disputed-fact hearing on August 27 and October 23, 2015, in Bunnell, Florida.
APPEARANCES
For Petitioner: Ron Weaver, Esquire
Post Office Box 5675 Douglasville, Georgia 30154-0012
For Respondent: Donna J. Faber-Soukey, pro se
87 Parkview Drive
Palm Coast, Florida 32137 STATEMENT OF THE ISSUE
Whether Respondent violated section 1012.795(1)(j), Florida Statutes (2011), and Florida Administrative Code Rule 6A- 10.081(3)(a) and (e), with respect to her treatment of students
in her sixth-grade class and if so, what penalty should be
imposed.
PRELIMINARY STATEMENT
On December 17, 2014, Petitioner, Pam Stewart as Commissioner of Education, filed an Administrative Complaint charging Respondent, Donna Faber-Soukey (Respondent or
Ms. Soukey), with violating section 1012.795(1)(j) and rule
6A-10.081(3)(a) and (e). Respondent disputed the allegations in the Administrative Complaint and requested a hearing pursuant to section 120.57(1), Florida Statutes. On April 7, 2015, the case was referred to the Division for assignment of an administrative law judge (ALJ), and an Initial Order was entered on April 8, 2015. The parties did not respond to the Initial Order, so on April 27, 2015, the undersigned issued a Notice scheduling the hearing for May 29, 2015, as well as a telephonic pre-hearing conference for May 15, 2015.
At the time the Administrative Complaint was forwarded to DOAH, Respondent was not represented. However, on May 4, 2015, Jamison Jessup filed an Unopposed Motion to Recognize Jamison Jessup as Respondent’s Qualified Representative, as well as an Unopposed Motion to Continue Final Hearing and Telephonic Pre- Hearing Conference Call. Both motions were granted and the case was rescheduled for June 19, 2015.
On June 4, 2015, the parties filed a Joint Motion to Continue and Reschedule Hearing, citing the need to depose additional witnesses and conduct additional discovery, and the need for an additional day to conduct the hearing. Based upon this motion, the case was rescheduled for August 27-28, 2015. A Joint Pre-Hearing Stipulation was filed on August 17, 2015.
However, on August 24, 2015, the week of hearing, Respondent’s qualified representative filed a Motion to Withdraw as Qualified Representative and Notice of Suggestion to Continue Final Hearing. In this motion, Mr. Jessup indicated that he and Respondent had irreconcilable differences that made it impossible for him to effectively represent Respondent. He also suggested that the hearing be continued in order to allow Respondent to obtain new representation, but noted that he did not know whether Respondent indeed wished to have a continuance.
Petitioner objected to the granting of a continuance, and a telephonic hearing was conducted to address the pending motions. As memorialized in an Order dated August 25, 2015, Petitioner was vehemently opposed to a continuance, given that the matter had been continued twice previously and a lengthy list of witnesses had been subpoenaed to testify, including several children for whom arrangements had been made for absences from school. Petitioner was legitimately concerned that there would be difficulty assembling these witnesses yet again. The matter
was complicated further by the fact that while attempts were made to reach Respondent to obtain her participation in the conference call, she did not appear. Therefore, the Order directed Mr. Jessup to contact Respondent and advise her that she needed to file something no later than 11:00 a.m. the following day to indicate her position. Nothing was filed.
Accordingly, the Motion to Withdraw was granted, with the caveat that Mr. Jessup notify the witnesses he had subpoenaed who were not also on Petitioner’s witness list that they need not appear, if that was Respondent’s wish.1/ The hearing remained scheduled for August 27, 2015, and Respondent was given the option of presenting her case on the days already scheduled, or continuing the case after presentation of Petitioner’s case for a short period in order to give her the opportunity to prepare without the aid of Mr. Jessup.2/
The hearing commenced as scheduled on August 27, 2015. At that time, Ms. Faber-Soukey opted to present her case at a later date: accordingly, Petitioner presented its case and then the matter was continued until October 23, 2015.
In the interim between hearing days, Petitioner sought to amend the Administrative Complaint to conform the Administrative Complaint to the testimony at hearing. The proposed amendment did not add any additional charge, but added factual allegations that had been addressed extensively by both parties on the first
day of hearing. During this timeframe, Respondent sought to amend her witness list by adding five additional (although unidentified) witnesses. By Order dated October 9, 2015, Petitioner’s motion to amend the Administrative Complaint was granted, and Respondent’s motion to amend her witness list was also granted, provided that she filed an Amended Witness List identifying all of the witnesses she intended to call. The parties were reminded in the Order that only one day was reserved for completion of the hearing, and that evidence should be limited to those matters actually alleged in the Amended Administrative Complaint.
Respondent filed an Amended Witness List on October 9, 2015, which included T.A. Delegal, her former counsel in an unrelated suit against the School District, and Kristy Gavin, counsel for the Flagler County School Board. Mr. Delegal filed a Motion for Protective Order and to Quash Subpoena, and
Ms. Gavin filed a Notice of Unavailability, requesting that if required to appear, she be allowed to appear by telephone. A telephonic hearing was held on the motions, and as a result an Order was filed on October 20, 2015, granting Mr. Delegal’s Motion for Protective Order, and allowing Ms. Gavin’s testimony by telephone. The Order stated in part:
Respondent is reminded that this case is about, and only about, the allegations in the Amended Administrative Complaint brought
by the Commissioner of Education. It does not and cannot address issues that she may have with respect to the School District. The School District is not a party to these proceedings, and its interests are not represented. Any complaint that she may have with respect to the School District, and/or enforcement of any settlement she may have with the School District, must be addressed in a different forum. The undersigned has no authority in this proceeding to make any findings with regard to Respondent’s dispute with the School District, and this proceeding is not an avenue to create a record for that purpose. Evidence presented at hearing will be limited to evidence related to the Amended Administrative Complaint.
With those parameters in mind, the hearing was resumed on October 23, 2015, and concluded that day. Between the two days of hearing, Petitioner presented the testimony of Respondent; students M.B., S.T., K.J., J.S., K.E., and D.D.; and Nancy Willis. Petitioner’s Exhibits 1 through 14, 19 through 22, 28, and 29 were admitted into evidence. Respondent testified on her own behalf and presented the testimony of Janet Bentz; Deputy Kimberly Davis; students E.O., L.L., P.N., and Z.M.; Jennifer Olson; Margaret Hammack; Susan King; Karen Terry; Pamela Batten; Jean Stahl; and Kristy Gavin. Respondent’s Exhibits 1 through 22 were admitted into evidence.
The two-volume Transcript for August 27, 2015, was filed with the Division on September 23, 2015. The two volumes for October 23, 2015, were filed on November 10, 2015. At
Respondent’s request, the deadline for filing proposed recommended orders was extended to November 30, 2015. Petitioner filed its Proposed Recommended Order on November 30, 2015, and Respondent filed her Proposed Recommended Order on December 1, 2015. No prejudice has been caused by the one-day delay in filing Respondent’s Proposed Recommended Order; however, the document filed contains references to matters that were not presented at hearing or relevant to the allegations of the Amended Administrative Complaint. Respondent’s post-hearing submission also has attached to it several documents that were not admitted into evidence at the hearing. The undersigned has not considered those portions of the Respondent’s Proposed Recommended Order that do not reflect what was presented at hearing or that refer to matters outside the allegations in the Administrative Complaint. All references to Florida Statutes are to the 2011 codification, in effect at the time of the alleged conduct, unless otherwise specified.
FINDINGS OF FACT
Based upon the demeanor of the witnesses, the documentary evidence presented, and the record as a whole, the following facts are found:
Respondent, Donna Faber-Soukey, is a licensed educator in the State of Florida, who holds Florida Educator Certificate 840010, covering the areas of elementary education and
prekindergarten primary education, valid through June 30, 2015. Respondent has also obtained certification in the areas of K-12 health and K-12 physical education in the State of New York, and has a master’s degree in health administration.
Respondent began teaching at Old Kings Elementary School (Old Kings) in the Flagler County School District in approximately 2004. Through the spring of 2010, she taught kindergarten and/or first grade, and received highly effective, exemplary, or very effective (depending on the rating tool) evaluation ratings each school year.
In August 2010, Respondent’s husband suffered a significant health emergency that required her absence from school. As a result of events that are not the subject of these proceedings, Respondent did not teach at Old Kings for the 2010- 2011 school year, but returned in the fall of 2011. During this time, there were many issues in Respondent’s life that were causing extra stress for her, including the significant illnesses of several close family members, as well as her own diagnosis for depression.
Nancy Willis was the new principal at Old Kings in the fall of 2011. While it was her first year at Old Kings, she had many years of experience as a principal. At the beginning of the 2011-2012 school year, she needed a sixth-grade inclusion teacher and understood that Respondent had taught upper grades
before. She needed a veteran teacher, so placed Respondent in the sixth-grade inclusion classroom.
Respondent was not comfortable with this placement and made her concerns known to Ms. Willis. Despite her request to be assigned to a first-grade or kindergarten class, she remained assigned to the sixth-grade class.
Respondent found the class to be difficult to control, and admitted at hearing that she was “not on her game.” As noted above, there were other events taking place in Respondent’s life that effected Respondent professionally. However, any reference to other issues that were present is supplied only for context or for mitigation purposes. This Recommended Order deals only with those factual issues specifically alleged in the Amended Administrative Complaint.
At the beginning of the school year, Respondent outlined the classroom rules and procedures that she expected the children to follow in her classroom. Students admitted at hearing that those rules were reasonable. One of the established rules was that when students came into the room, they were supposed to get the materials they would need for class out of their backpacks and were to place their backpacks in cubbies in the back of the room. This rule was important to Respondent, because she considered it to be essential for maintaining a safe environment in the classroom. However, it
was common for students in the class to ignore this rule, and leave their backpacks on the floor next to their desks.
Respondent would remind students of the need to place the backpacks in their assigned cubbies, but to no avail. At some point, Respondent started taking the backpacks found on the floor and placing them outside the classroom. While she testified that she simply put them outside the door, several students testified credibly that she would sometimes toss the backpacks, without regard for what may be inside them. Specifically, Respondent tossed both M.B. and J.A.’s backpacks outside of the classroom. There was testimony that J.A.’s glasses were inside his backpack and were broken as a result of the backpack being tossed, but J.A. did not testify. While other students saw Respondent toss the backpack, the testimony regarding the broken glasses was based upon J.A. telling other students that his glasses were broken, as opposed to the students who testified seeing the broken glasses themselves. Moreover, the Amended Administrative Complaint makes no mention of Respondent being responsible for breaking J.A.’s glasses.
It must be noted, however, that the term “toss” conjures up different visuals for different people. According to Merriam Webster, the term means to throw with a quick, light motion; to move or lift something quickly or suddenly; or to move back and forth or up and down. www.merriam-
webster.com/dictionary/toss. There is nothing in the definition that would attach a violent intent to the action, and it is possible for a person to “toss” a backpack with no intention of damaging the backpack or its contents. It is found that Respondent tossed the backpacks outside with no intention of damaging them or their contents, but did so in a careless fashion and did not take any measures to insure that nothing was in fact damaged when she did so. Some students testified that having students’ backpacks handled this way made them feel Respondent had no respect for their personal belongings. Their testimony in this regard is accepted.
The students in Respondent’s classes were a challenging group. Some who testified admitted at hearing that they were not the best behaved. For example, one admitted that he enjoyed being referred to as the class clown, and another admitted that she had an “attitude problem.” There were also indications of significant bullying and conflict between students, and referrals to the office and refocus forms were issued frequently. Some students did not respect Respondent as a sixth-grade teacher and acted accordingly. Respondent had difficulty controlling the students in her class, and was exceedingly frustrated by their behavior. Simply put, teaching in a sixth-grade inclusion class was far different from the
kindergarten/first-grade environment to which Respondent was accustomed.
On at least two occasions, her frustration was such that she authored and provided documents for students to sign, which contained information about the behavior of other students in her classroom.
For example, on December 14, 2011, there was an incident in her classroom involving student Z.M. The details related to the incident are not important, but the incident resulted in a referral for Z.M. Respondent wrote her account of the incident, comprising two pages. She asked two students who were present at the time of the incident to sign the second page of the document as witnesses.
Respondent admitted authoring the document and asking the two students, H.W. and L.L., to sign it. She explained that she prepared the narrative for the benefit of the administrator who would receive the referral, and asked for the students to sign it so that the administrator would know which students had witnessed the incident. Respondent testified that she only showed the students the second page, which had a little more than one paragraph of text and a place for their signatures.
H.W. did not testify, and L.L. recognized her signature on the narrative but did not recall signing it. Respondent’s testimony that she only showed the students the
second page is accepted. However, it makes little difference. The second page stated:
[s]uspension, today’s events and his current failing academic standing as a retention in 6th grade.
I have tried to keep this child in my classroom since he is a repeater and will be going to seventh grade next year. He could easily have been written up and referred weekly. I have tried to develop a relationship with him to support and encourage him. His behavior is however, a detriment to the class as a whole. At this point, he will no longer be extended any leniency for inappropriate behavior.
The line for the first signature is less than one inch from the typed text. It does not matter whether the two students signing the document were shown the first page: there is significant derogatory information about both Z.M.’s behaviors and academic issues on the page that the two students signed. The fact that page two of the document does not mention Z.M. by name is also irrelevant, given that the students were asked to sign the narrative soon after the incident where Z.M. was clearly a participant.
On or about December 19, 2011, Respondent prepared a second narrative regarding problematic behaviors in her classroom. The narrative also stated that the students signing it have never witnessed Ms. Soukey use physical force to get the
boys in her class to behave. She asked several students in the classroom to sign the document, and admits doing so.
This narrative is signed by students R.R., S.R., S.P., N.S., C.G., G.D., and B.B. Only one of these students testified at hearing, and that student’s testimony does not reference the narrative. Respondent admitted preparing the narrative, stating that upon the advice of counsel, she was documenting those things that were happening in her classroom because she felt that she was being set up for a constructive termination. This narrative does not reference Z.M.
Preparing the documents for her personal use is one thing. Having students sign the documents regarding the behavior of their classmates is another matter altogether. It was inappropriate to ask students in the classroom to sign a document detailing the misbehavior of other students in their class.
Respondent must have been aware that a student had accused her of using physical force against him, in light of her including a denial of such behavior in the December 19 narrative. However, the evidence presented at hearing did not rise to the level of clear and convincing evidence that she, in fact, inappropriately grabbed, pushed or hit students in her class.
There were students who testified that Respondent pushed them in order to get them moving to their seats. Some students described Respondent’s actions as placing her hands on a
student’s shoulders to propel them forward toward the student’s seat. It is found that she did in fact place her hands on students to nudge them along to their seats. Beyond that, however, the students’ testimony was vague at best. The students often did not indicate who was pushed, pulled, or hit, and little or no date or time-frame was identified.3/ On the other hand, several students testified that they never saw Respondent punch, slap, or push anyone, or pull their hair. Z.M., one of the most credible students who testified, admitted his role in a fight that occurred in the classroom, and admitted that he enjoyed being considered the class clown. However, he did not recall Respondent ever punching, slapping, or grabbing a student by the hair. When asked if she ever grabbed anyone by the shirt and pulled them, he answered, “not really in an aggressive way, no.”
One student, K.J., testified that Respondent deliberately stepped on his toes in class. K.J. is a tall student who could not sit comfortably at his desk with his feet under the desk, because to do so caused his knees to hit the underside of the desk. As a result, he often had his feet in the aisle in front of him. K.J. sat on the front row, and Respondent told him repeatedly to keep his feet out of the aisle.
K.J. testified that Respondent stepped on his toes at least twice. He testified that he would ask her to get off of his feet and she would not respond, acting like she did not hear
him, and then would ask him to put his feet under the desk. He was not aware that custodians had come to the classroom to alter his desk so that he could sit more comfortably.
K.J. admitted it was possible that Respondent asked him to keep his feet under his desk for safety reasons, but believed that she stepped on his toes deliberately. However, on the totality of the record presented, while the evidence is compelling that Respondent did in fact step on K.J.’s toes, the evidence leaves more than one equally plausible alternative in terms of Respondent’s intentions. She could have deliberately stepped on K.J.’s toes to make a point to him about keeping them under his desk, or she could have stepped on them accidentally because they were admittedly in an aisle that should have been clear. Testimony was fairly uniform that the classroom was noisy. She could have heard his request that she move off of his toes and ignored it, or she could have not heard it. Given that either interpretation is plausible, the evidence is not clear and convincing that stepping on Respondent’s toes was intentional.
There was no dispute that the classes Respondent taught that year were unruly and that she was frustrated with the students in her care. There was a lot of yelling, and little effective discipline. There was discussion among the students about the desire of some them to have a different teacher, and at some point in February 2012, students in Respondent’s classes
were asked to go to the office and make statements about things they observed in the classroom. Ms. Willis testified that the students were asked to write a statement if there was anything that had happened in Respondent’s class. The statements were far from uniform. It is clear from reading some of the statements that the students are reacting to an inquiry concerning inappropriate touching, and responding that yes, she did touch students, or no, she did not. Whether the question that framed the responses came from Ms. Willis or from the students themselves is not clear: however, there was testimony that the students circulated a petition to try to get her fired, and that they discussed among themselves what they were going to write in their statements. Even with such discussion, there is not enough concrete detail about the alleged events to deem them credible.4/
In addition, there were several adults who came in and out of Respondent’s classroom and spent significant time there during this period. Among those adults were Ms. Christensen, Ms. King, Ms. Hammack, and Ms. Bentz. All who testified talked about the noisy, unruly atmosphere of the classroom, and there was agreement that Respondent appeared frustrated. However, none testified to ever seeing her inappropriately touch a student.
Ms. Christensen did not testify. She was a paraprofessional in Respondent’s classroom. There are written statements by Ms. Christensen about various matters occurring in
the classroom, in which she states that she had not witnessed Ms. Soukey physically handle a student by hitting, slapping, or punching them.5/ Ms. Hammack was also a paraprofessional who worked in Respondent’s classroom, generally every day. She identified her statement that she had never seen Respondent use physical force to force a student to comply, and testified credibly that she never saw Respondent punch or kick a student, or grab them by the hair, and that she would have seen it if it had occurred. Similarly, Ms. King was a special education teacher who worked in Respondent’s classroom approximately twice
a week, in the mornings. She testified credibly that while there was not much control in the classroom, she never saw Respondent be physically inappropriate with a student.
Finally, Jan Bentz was a veteran teacher who worked as a substitute at Old Kings. In January 2012, she was asked to work in Respondent’s classroom to provide classroom management support while Respondent taught. When Respondent was eventually removed from the classroom, Ms. Bentz took her place. She, like the other adults who spent time in Respondent’s classroom, testified that she never saw Respondent use excessive force with a student. More importantly, Ms. Bentz testified that the students told her about things that had happened in the classroom previously that she did not in fact witness. She gave the student’s stories little credence because she considered it to be
hearsay. When asked on cross-examination about what she was told, she stated that what the students told her was mostly about thrown backpacks: “I don’t know that any actual hand-on-kid type thing happened, and I don’t recall being told about anything like that.” Surely, reporting that a teacher used excessive use of force would have been as important, if not more so, than relating instances where backpacks were tossed outside.
Respondent readily admitted that she was not well- suited to teach in a sixth-grade inclusion class, and that because of the many issues going on in her life, she was not doing her best work. However, she also testified, credibly, that while she was exhausted, frustrated, and sometimes angry while working with these students, she did not touch them inappropriately. While it is found that she did guide students to their seats by placing her hands on their shoulders, and sometimes applied pressure to get them to sit in their seats; and that she stepped on K.J.’s toes, it is found that she did not take either action with the intention of harming any child in her care.
Respondent clearly did not have control of the sixth- grade classroom and it was a mistake to place her there, especially given the concerns she had expressed when given the assignment. The many serious complications in her personal life, including the serious illness of her husband, mother, and father,
and her own debilitating depression, certainly affected her ability to perform her job as she wanted to. Her actions in creating narratives and having them signed by students was misguided and meant as a way of documenting things happening in her classroom. However, it was inappropriate to involve the students in her classroom in her attempt to create any kind of record, whether personal or professional.
CONCLUSIONS OF LAW
The Division has jurisdiction over the subject matter and the parties to this action in accordance with sections
120.569 and 120.57(1), Florida Statutes (2015).
The Florida Education Practices Commission is the state agency charged with the certification and regulation of Florida educators pursuant to chapter 1012, Florida Statutes.
This is a proceeding in which Petitioner seeks to impose discipline against Respondent’s educator certification. Because disciplinary proceedings are considered to be penal in nature, Petitioner is required to prove the allegations in the Amended Administrative Complaint by clear and convincing evidence. Dep’t of Banking & Fin. v. Osborne Stern & Co.,
670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292
(Fla. 1987).
Clear and convincing evidence “requires more proof than a ‘preponderance of the evidence’ but less than ‘beyond and
to the exclusion of a reasonable doubt.’” In re Graziano,
696 So. 2d 744, 753 (Fla. 1997). As stated by the Florida Supreme Court:
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 lacking in confusion as to the facts in issue. The evidence must be of such a weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.
In re Davey, 645 So. 2d 398, 404 (Fla. 1994)(quoting, with
approval, Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983)); see also In re Henson, 913 So. 2d 579, 590 (Fla. 2005).
“Although this standard of proof may be met where the evidence is in conflict, it seems to preclude evidence that is ambiguous.” Westinghouse Elec. Corp. v. Shuler Bros., 590 So. 2d 986, 989 (Fla. 1991).
Section 1012.796 describes the disciplinary process for educators, and provides in pertinent part:
Upon the finding of probable cause, the commissioner shall file a formal complaint and prosecute the complaint pursuant to the provisions of chapter 120. An administrative law judge shall be assigned by the Division of Administrative Hearings of the Department of Management Services to hear the complaint if there are disputed issues of material fact. The administrative law judge shall make recommendations in accordance with the
provisions of subsection (7) to the appropriate Education Practices Commission panel which shall conduct a formal review of such recommendations and other pertinent information and issue a final order. The commission shall consult with its legal counsel prior to issuance of a final order.
A panel of the commission shall enter a final order either dismissing the complaint or imposing one or more of the following penalties:
Denial of an application for a teaching certificate or for an administrative or supervisory endorsement on a teaching certificate. The denial may provide that the applicant may not reapply for certification, and that the department may refuse to consider that applicant’s application, for a specified period of time or permanently.
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.
Imposition of an administrative sanction, upon a person whose teaching certificate has expired, for an act or acts
committed while that person possessed a teaching certificate or an expired certificate subject to late renewal, which sanction bars that person from applying for a new certificate for a period of 10 years or less, or permanently.
Refer the teacher, administrator, or supervisor to the recovery network program provided in s. 1012.798 under such terms and conditions as the commission may specify.
Charges in a disciplinary proceeding must be strictly construed, with any ambiguity construed in favor of the licensee. Elmariah v. Dep’t of Prof’l Reg., 574 So. 2d 164, 165 (Fla. 1st DCA 1990); Taylor v. Dep’t of Prof’l Reg., 534 So. 2d 782, 784
(Fla. 1st DCA 1988). Disciplinary statutes and rules must be construed in terms of their literal meaning, and words used by the Legislature may not be expanded to broaden their application. Beckett v. Dep’t of Fin. Servs., 982 So. 2d 94, 99-100 (Fla. 1st
DCA 2008); Dyer v. Dep’t of Ins. & Treas., 585 So. 2d 1009, 1013 (Fla. 1st DCA 1991).
The Amended Administrative Complaint alleges the following factual bases for imposing discipline against Respondent:
3. During the 2011-2012 school year Respondent acted inappropriately towards her students. Specifically, the Respondent grabbed, pushed and hit multiple students, intentionally stepped on the toes of a student, threw students’ book bags out of the classroom door, grabbed a student by the hair and pushed her out the door, and
the Respondent authored and provided a document to at least two other students, which contained inappropriate and disparaging information regarding student Z.M.
A licensee may only be disciplined for those matters specifically referenced in an administrative complaint against them. Trevisani v. Dep’t of Health, 908 So. 2d 1108 (Fla. 1st DCA 2005); Ghani v. Dep’t of Health, 714 So. 2d 1113 (Fla. 1st
DCA 1998); and Willner v. Dep’t of Prof’l Reg., 563 So. 2d 805
(Fla. 1st DCA 1990). Therefore, while there may be other issues referenced in this Recommended Order in order to explain the backdrop against which the alleged violations occurred, Petitioner may only impose discipline based on those matters actually alleged in the Amended Administrative Complaint.
With these parameters in mind, Petitioner did not prove by clear and convincing evidence that Respondent grabbed, pushed, and hit multiple students. Petitioner proved that Respondent stepped on the toes of student K.J., but did not demonstrate that it was done intentionally. Petitioner did not prove by clear convincing evidence that Respondent grabbed the hair of a student and pushed her out of the door.
Petitioner did demonstrate by clear and convincing evidence that Respondent created a narrative related to the behavior of Z.M., and had two other students sign it. While there was evidence presented regarding a second narrative, and
reference to this narrative is included in the findings of fact because of its relationship to other events occurring in Respondent’s classroom, the Amended Administrative Complaint only charges Respondent with authoring the first narrative.
Therefore, discipline can only be based upon the creation of this one document.
Count 1 of the Amended Administrative Complaint charges Respondent with violating section 1012.795(1)(j), which makes it a basis for discipline when a teacher or administrator has “violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education Rules.” A finding that Respondent violated either of the rule provisions alleged in Counts 2 and 3 necessarily means that Respondent violated Count 1.
Counts 2 and 3 of the Amended Administrative Complaint charge Respondent with violating rule 6A-10.081(3)(a) and (e), respectively. Rule 6A-10.081 provides in pertinent part:
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.
While rule 6A-10.081(3)(e) requires a finding of intentional conduct, subsection (3)(a), as charged in Count 2 of the Amended Administrative Complaint, does not. It adopts the requirement that a teacher affirmatively protect a student from harm. In this case, Petitioner demonstrated that Respondent violated rule 6A-10.081(3)(a) in three respects: first, by her stepping on K.J.’s toes; second, by asking students to sign the narrative concerning Z.M.’s behavior; and third, by throwing backpacks outside of the classroom when they were not stored in accordance with class rules. As to stepping on K.J.’s toes, while Petitioner did not demonstrate that Respondent did so with the intent to hurt K.J., Respondent knew his feet were often beyond the desk because of his height, and she had repeatedly asked him not to stick his feet into the aisle. It was incumbent upon her to be extra careful to avoid stepping on what was to her a known hazard.6/
Petitioner also proved a violation of Count 2 by Respondent’s throwing the backpacks out of the classroom. This
action, no doubt caused by Respondent’s frustration with the students’ repeated failure to follow classroom rules, is not an acceptable method for dealing with disobedience, and demonstrated a lack of regard for the students’ belongings. Finally, a violation was proven by Respondent asking students in her classroom to sign the document regarding Z.M.’s conduct.
Authoring the document, standing alone, is not a problem. Creating a document for an administrator to use in reference to a referral is appropriate. Asking students to sign it as witnesses is not, and exposed information about Z.M.’s behavior and academic status that should not be shared with his classmates.
Count 3, which alleges a violation of rule 6A- 10.081(3)(e), as noted above, requires a finding of intentional conduct. This violation has been established by asking the students to sign the narrative regarding Z.M.’s behavior, and by throwing the backpacks out of the classroom. Both actions had the effect of exposing Z.M. and those students whose backpacks were thrown outside, to embarrassment. Both actions were unnecessary.
The State Board of Education has adopted disciplinary guidelines to provide notice of the range of penalties that can be expected for violations of section 1012.795 and Principles of Professional Conduct. The rule also lists aggravating and mitigating factors that may be considered in determining an
appropriate penalty. In this case, the undersigned has considered the fact that the same conduct constituted the basis for demonstrating a violation of both subsections of rule
6A-10.081. No evidence was presented to indicate that Respondent has ever been disciplined by the Education Practices Commission, and her prior teaching experience at Old Kings was excellent.
Moreover, Respondent was under significant duress during the time period at issue in this case, and had requested that she not be placed in this particular environment. It is difficult to know what her performance would have been had she been teaching in kindergarten or first grade, as she usually did. Respondent was candid that she was not at her best during this time, and has suffered a great deal already by the significant illnesses with which she was coping, and the loss of her employment with the School District.
At the same time, Respondent did not seem to appreciate just how inappropriate it was to ask students to sign the document regarding Z.M.’s behavior. While her testimony that she did not give the students the entire document was credited, she should not have given them any document at all. Given that Petitioner did not prove some of the more serious allegations in the Amended Administrative Complaint, and taking these aggravating and mitigating factors into account, a penalty at the lower end of the guideline range is recommended.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding that Respondent has violated section 1012.795(1)(j) and rule 6A-10.081(3)(a) and (e). It is further recommended Respondent be reprimanded; that she be placed on probation for a period of one year; and that as part of her probation, she be required to attend courses as determined by the Commission, in the areas of ethics and stress management.
DONE AND ENTERED this 15th day of January, 2016, in Tallahassee, Leon County, Florida.
S
LISA SHEARER NELSON
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, 2016.
ENDNOTES
1/ It does not appear that Mr. Jessup complied with this directive. Respondent’s amended witness list contained 25 names. Many of these witnesses called the ALJ’s assistant the week of hearing, asking for direction. When advised to contact Mr. Jessup, many indicated that they had done so and were
advised that he no longer represented Respondent. Mr. Jessup filed a Notice of Compliance and request for Clarification indicating that he had been unable to speak to Ms. Faber-Soukey, which may have formed the basis for his response to witnesses.
However, the reality is that Mr. Jessup’s withdrawal at such a late date created significant confusion in the days immediately preceding the hearing.
2/ A third continuance so close to hearing would, in fact, prejudice Petitioner’s ability to present its case. Further, there was no certainty that Respondent would be able to obtain counsel following Mr. Jessup’s withdrawal, so the compromise reached, while clearly imperfect, seemed to be the best solution for a situation presenting difficulties for both sides. The undersigned notes that while Respondent did not always stay focused on the issues in the Amended Administrative Complaint, she was more prepared than many litigants.
3/ One student testified to an incident where Respondent, in an effort to get to the door of the classroom, pushed past the students which resulted in one of the students falling against the cubbies near the door. However, as with most of the allegations, there was no indication of when the incident supposedly occurred. Further, she had a limited recollection of the things happening in the classroom.
4/ The undersigned also finds it telling that, notwithstanding all of these complaints of violent behavior from students, not one parent wished to cooperate with police or pursue further action against Respondent for hitting, slapping, or pushing their child. All of the requests for transfer of students had to do with other issues, such as confidentiality of student records, problems with the backpacks, or other disciplinary issues with individual students, or the learning environment (or lack thereof) in general.
Moreover, Petitioner asserted in its Proposed Recommended Order that Ms. Willis initiated an investigation, interviewed approximately 30 students (citing the statements at Petitioner’s Exhibit 9), and at the conclusion issued Respondent a written reprimand. However, the chronology presented by the exhibits does not support this timeline. Respondent was indeed issued a reprimand on October 13, 2011. The reprimand indicates that it is based upon a complaint regarding throwing backpacks, along with two issues that were not specifically charged in the Amended Administrative Complaint. The student statements comprising Petitioner’s Exhibit 9 were not written until mid-February 2012.
5/ Clearly, Ms. Christensen’s written statement is hearsay, and it is only considered to the extent that it corroborates other non-hearsay statements in the record.
6/ If this were the only conduct found to have violated the Rules of Professional Conduct, the undersigned would not recommend discipline of any kind.
COPIES FURNISHED:
Gretchen K. Brantley, Executive Director Education Practices Commission Department of Education
Turlington Building, Suite 316
325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
Ron Weaver, Esquire Post Office Box 5675 Douglasville, Georgia | 30154-0012 |
(eServed) | |
Donna J. Faber-Soukey 87 Parkview Drive Palm Coast, Florida | 32137 |
(eServed) |
Matthew Mears, 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)
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.
| Issue Date | Document | Summary |
|---|---|---|
| Mar. 31, 2016 | Agency Final Order | |
| Jan. 15, 2016 | Recommended Order | Petitioner demonstrated violations of Rules of Professional Conduct but did not prove that Respondent used inappropriate physical force on students. Recommend probation and reprimand. |
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