STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PAM STEWART, AS COMMISSIONER OF EDUCATION,

Petitioner,

vs.

PETER ZANFAGNA,

Respondent.

/

Case No. 15-7095PL

RECOMMENDED ORDER

On February 23, 2016, Administrative Law Judge J. Lawrence Johnston held the final hearing in this case in Orlando, Florida.

APPEARANCES

For Petitioner: Ron Weaver, Esquire

Post Office Box 770088 Ocala, Florida 34477-0088

For Respondent: Peter Zanfagna, pro se

Apartment 17C

6904 Manatee Avenue West Bradenton, Florida 34209

STATEMENT OF THE ISSUE

The issue in this case is whether the Education Practices Commission should discipline the Respondent for statutory and rule violations alleged in the Petitioner’s Administrative Complaint.

PRELIMINARY STATEMENT

The Administrative Complaint in this case makes the following “material allegations”: the Respondent inappropriately disciplined students by requiring them to sit on concrete or do laps for entire class periods, or by yelling at very young students causing them to cry; and the Respondent jeopardized student safety by refusing to allow one student to go to the clinic for an asthma treatment and by requiring another student to continue running after she complained of pain in a recently injured ankle. As a result of those allegations, the Respondent was charged with two statutory and two rule violations. Count 1 charges that the Respondent is guilty of personal conduct that seriously reduces effectiveness as an employee of the school board, in violation of section 1012.795(1)(g), Florida Statutes, (2013).1/ Count 2 charges that the Respondent is guilty of violating section 1012.795(1)(j) by violating the Principles of Professional Conduct for the Education Profession prescribed in State Board of Education rules. The rule violations are charged as Counts 3 and 4. Count 3 charges that the Respondent violated Florida Administrative Code Rule 6A-10.081(3)(a)2/ by failing to make reasonable efforts to protect students from conditions harmful to learning and/or to the students’ mental health and/or physical health and/or safety. Count 4 charges that the

Respondent violated rule 6A-10.081(3)(e) by intentionally exposing a student to unnecessary embarrassment or disparagement. The Respondent disputed the allegations and asked for a hearing under section 120.57(1), Florida Statutes (2015).3/

At the hearing, the Petitioner called as witnesses Michelle Couret, Carl Sousa, Laura Fogarty, Z.B., A.O., A.O.’s mother, A.L., A.L.’s mother, Lizzie Michelle Welch, Tracey Lynn Latant, and Terry Bartlett. The Petitioner’s Exhibits 1 through 7 were admitted in evidence.4/ The Respondent testified and called one witness, Robert Flynn. The Respondent's Exhibits 1-A, 1-C, 1-D, 1-E, 1-K, 2-D, 3-A, 3-B, 4-A, and 4-B were admitted in evidence.5/ The Respondent’s Exhibits 1-C, 1-D, and 1-E were admitted over the Petitioner’s objection after the Petitioner had similar exhibits admitted without objection in its case-in-chief; as statements of individuals who did not testify at the hearing, they are hearsay that may be used for the purpose of supplementing or explaining other evidence, but are not sufficient in themselves to support a finding. § 120.57(1)(c), Fla. Stat.

A Transcript of the final hearing was filed on April 7, 2016. The parties filed proposed recommended orders6/ that have been considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. The Respondent, Peter Zanfagna, holds Florida Educator’s Certificate 1022509 covering the area of physical education, which is valid through June 30, 2017.

2. In August 2013, the Respondent was hired as the physical education teacher for Westbrooke Elementary School in the Orange County School District.

3. The Respondent’s classes combined two regular classrooms and consisted of approximately 42 to 70 children, depending on absences. Without a paraprofessional to assist him for the first two to three weeks of the school year, the Respondent made do with the assistance of a parent of a student and managed his classes well. He was widely considered to be a big improvement over his predecessor in the job. He had good lesson plans, followed his lesson plans and managed to maintain order. He received a good evaluation when his assistant principal,

   Carl Sousa, assessed him. Once, the school’s administration asked him to avoid using the playground when other classes were using it for recess, as he was doing on what he called “Fun Friday.” The Respondent immediately complied with the request.

4. On Friday, October 11, the Respondent was attempting to supervise a large group of kindergarteners as they moved from the playground to a pavilion where lumber, some with nails sticking out, was stacked in preparation for its use in setting up for the

   
   

   school’s annual fall carnival scheduled for that weekend. Just before the maneuver began, the Respondent explained to the children his safety concerns about them having to walk past the lumber to get where they were going and told them he wanted them to walk in single file behind him. As he began walking along a sidewalk outside some classrooms, several students ran up beside him. Concerned for the students’ safety and upset that they ignored his instructions, the Respondent reprimanded them by yelling or screaming at them in a very loud voice. Two teachers were startled by the loud yelling or screaming. They looked out the window and saw it was the Respondent. One said the yelling or screaming was extreme and in a sharp, harsh tone. The other said the Respondent was pointing a finger six-to-eight inches from the face of one child. She heard him yelling or screaming at the child, “I told you to stay behind me, not in front of me, not next to me, but behind me.” Both thought the Respondent’s behavior was over-the-top, especially for children so young.

   Neither knew the reason for the Respondent’s behavior.

   
   

5. One of the teachers who witnessed the incident said she heard children sobbing and screaming. The other said one child was crying and another was starting to cry. They believed the children were crying because of the Respondent’s loudness.

   
   

6. The Respondent conceded that he yelled or screamed at the children to “stop” and “hold up.” He testified that his main concern during this incident, as always, was the safety of the children. He suggested the children’s crying may have been in reaction to his message to them that they could be seriously hurt if they ran into the lumber and nails. The Respondent also pointed out that he was saddled unfairly with the difficult task of supervising and monitoring a very large number of small children without adequate help. Even so, there was no evidence of any other similar incident.

7. It was not proven by clear and convincing evidence that the Respondent inappropriately disciplined students by requiring them to sit on concrete for entire class periods. When students were misbehaving so as to endanger other students or were not following the Respondent’s instructions, the Respondent would place the students in “timeout” by having them sit apart from the rest of the class for periods of time. Sometimes this occurred when the class was in the pavilion, which is where his classes gathered for attendance and for dismissal. The pavilion had a concrete floor and no walls but had a roof and was not an inappropriate place for students to be in time-out. Early in the school year, the Respondent sometimes left children in time-out for inappropriately long periods of time. When this was reported

   
   

   to administration, the Respondent was given a directive to limit time-out to ten minutes. The Respondent testified that he complied with that directive throughout the rest of the school year until he resigned, effective April 25, 2014. With one exception, there was no evidence that the Respondent failed to comply with this directive.

8. On April 16, 2014, a school psychologist attempted to observe one of the Respondent’s kindergarten or first-grade students to help a school “staffing” determine if the child was autistic and eligible for special education. Near the beginning of the class, while the class was in the pavilion, the Respondent placed the child in time-out for not listening to instructions. The Respondent proceeded with his class, and the child remained in time-out for approximately 20 or more minutes. On that day, the Respondent had no assistant and was attempting to teach a class of 40 or more students by himself. The psychologist conceded that he might have lost track of time and left her “target” in time-out longer than intended. The Respondent did not recall the incident.

9. It was not proven by clear and convincing evidence that the Respondent inappropriately disciplined students by requiring them to do laps for entire class periods. First, the evidence was clear that the Respondent did not force his students to run laps. They always had the option of running or walking. Second,

   
   

   after attendance was taken in the pavilion, all classes began with stretching and warm-ups. Third, running or walking laps was sometimes a class activity, not discipline. Fourth, when laps were being run or walked, the duration of the activity or discipline could be determined by how well the students were performing; if they were not performing well, extra laps could be added to the activity or discipline.

10. The charge that the Respondent made A.O., a twelve-year old fifth-grader, continue running after she complained of pain in her recently injured ankle arose from an incident on

    January 15, 2014. As to how recently A.O.’s ankle had been injured, her ankle was in a boot for about a month after the injury, and she had been out of the boot for about a week at the time in question. The evidentiary basis for the rest of the charge consisted of the written statements A.O. and the testimony of her and her mother.

11. A.O. wrote an ambiguous statement the day after the incident. It started saying that the Respondent made the class run for the whole class period but then said he would let some people sit down and make others keep running. She stated her ankle started hurting after 20 minutes, so she asked if she could stop running, but he said to keep running. She did not state that she told the Respondent her ankle hurt.

    
    

12. A.O. wrote another ambiguous statement for the Petitioner’s investigator in September 2014. In it, she said the Respondent did not make the class run the whole class period every day. She said, “[t]hat day we were walking and we were not running so he made us run the whole time.” Although “that day” was not specified, it reasonably can be inferred that the investigator was asking about January 15, 2014. In this statement, A.O. did not mention her own ankle hurting but stated another student claimed to have fallen and hurt his ankle, may or may not have told the Respondent about it, and seemed fine after the class. She also stated that when a student actually got hurt in class, the Respondent would send them to the clinic to get ice for the injury.

13. At the hearing, counsel for the Petitioner had A.O. adopt her January statement and led her to testify that she told the Respondent that her ankle hurt, and asked him if she could stop running and sit down, and that he told her “no.” She then said she “kept walking.” Counsel then asked if the Respondent said, “no, keep running,” and she said, “yes.” She then said “no” to the suggestions that she was about to cry and was uncomfortable. She said she told her mother that evening that her ankle was hurting. On cross, she clarified that she “might have not been running as much as the other kids. I only said since it was hurting could I sit down. And you said, no, keep

    
    

    walking.” She then said she could not remember exactly what the Respondent said to her but only knew she asked to stop and sit down, and the Respondent said no, she had to keep going. On redirect, she agreed with counsel for the Petitioner that her memory of events would have been better at the time of her January statement than her September statement.

14. A.O.’s mother testified that A.O. told her on the evening of January 15, 2014, that her ankle was hurting while running, that she asked the Respondent to stop, and that he said, no. She did not give any testimony on whether her daughter told the Respondent that her ankle was hurting.

15. The Respondent denied that A.O. told him her ankle was hurting and that he refused to let her stop. He stood by his testimony that students always were given the option to walk and that he asked A.O. if she could walk slowly, she said she could, and she did. For that reason, he was not aware of any cause for concern. He testified persuasively, with strong corroboration from Robert Flynn, who was the Respondent’s teaching assistant for the last part of the Respondent’s tenure at Westbrooke and is the current physical education teacher there, and others, that the health and safety of the children was the Respondent’s number one priority, and that he would not have made any student run or walk if he thought there was a risk of injury.

    
    

16. Taken together, the evidence was not clear and convincing that the Respondent made A.O. keep running after being told her ankle was hurting.

17. The charge that the Respondent refused to allow A.L., a ten-year-old fourth-grader, to go to the clinic for an asthma treatment arose from an incident on April 18, 2014. The evidentiary basis for this charge consisted of two written statements by A.L. and the testimony of A.L. and her mother.

18. A.L.’s first written statement was on April 21, 2014.

    
    

    It said she was in the Respondent’s class running at 12:15 p.m. when she had an asthma attack and went up to the Respondent to ask him if she could go to the nurse, “but before I can say anything he said no I can’t go to the nurse because I sometimes ask him if I can go to the nurse for my inhaler. Then I had to walk slow.” A.L. gave a second statement, this time to the Petitioner’s investigator, which was essentially consistent with the first one. Neither statement made it clear that A.L. told the Respondent she was having an asthma attack or that she needed her inhaler. At the hearing, she testified that she was running in class, felt an asthma attack, and asked the Respondent if she could go to the nurse to take her inhaler, and that he said, no, keep running. She then was led by counsel for the Petitioner to testify that she also told the Respondent she “couldn’t run and

    
    

    needed [her] inhaler.” Counsel for the Petitioner also led her to testify that she told her mother after school that she had gone to the Respondent and told “her [sic?]” that “[she] needed to see the nurse.”

19. A.L.’s mother testified that her daughter had tears in her eyes when picked up after school. The mother could tell her daughter was having an asthma attack but no one else in the pickup area noticed. The mother took her daughter to the hospital, where it was determined that after a full medical workup that A.L. had walking pneumonia. A.L. spent a few days in the hospital and returned to school with a new medication for the pneumonia to take in addition to her inhaler.

20. The Respondent denied that A.L. asked him to go to the clinic. He testified persuasively, with strong corroboration from Robert Flynn and others, that the health and safety of the children was the Respondent’s number one priority, and that he would not have refused to allow A.L. or any student go the clinic upon request for a medical reason. It appears from the greater weight of the evidence, including A.L.’s shy demeanor, and the number of children in the Respondent’s class, that A.L.’s medical request was not made known to the Respondent at the time.

    
    

21. Taken together, the evidence was not clear and convincing that the Respondent refused to allow A.L. to go to the clinic for an asthma treatment.

22. After A.L.’s parents reported to Westbrooke’s administration why A.L. was out of school, the school’s administration blamed the Respondent for refusing to allow A.L. to go to the clinic for an asthma treatment. This was the culmination of deteriorating relations between the Respondent and the school administration that began when the Respondent got his first paraprofessional assistant, Laura Fogarty. Ms. Fogarty was a private school physical education teacher, coach and athletic director in Chicago, who had moved to Orlando and took the paraprofessional job while she was awaiting her Florida certification. The Respondent felt she was undermining and disrespecting him and angling to replace him and felt that the school’s administration was siding with her when disagreements between them were presented to the school’s administration. The Respondent became increasingly antagonistic to Ms. Fogarty and the school’s administration. When the A.L. incident occurred, the school’s administration decided to ask the Respondent to resign or be fired. The Respondent chose to resign.

23. After resigning, the Respondent was employed by a charter school in Manatee County as a physical education teacher, coach, and athletic director. He testified that he has been

    
    

    there for a year and a half with “zero problems.” On cross, it was brought out that the Respondent actually had been on administrative leave for about the last two weeks, apparently since counsel for the Petitioner questioned the charter school’s principal in preparation for the hearing and made the principal aware of the Petitioner’s investigation and disciplinary case against the Respondent’s state educator certificate.

24. Cross-examination of the Respondent by counsel for the Petitioner also attempted to have the Respondent contradict his testimony regarding his positive teaching experiences at other Florida schools before he was hired by Westbrooke. Those attempts at impeachment were unsuccessful, and the Petitioner presented no evidence to contradict the Respondent’s testimony, which is accepted.

    CONCLUSIONS OF LAW

    
    

25. The Education Practices Commission regulates the certification and discipline of teachers in Florida. The Administrative Complaint seeks unspecific discipline; the Petitioner’s Proposed Recommended Order seeks a five-year suspension of the Respondent’s educator certificate.

26. Disciplinary proceedings are considered to be penal in nature. In prosecuting a disciplinary action, the prosecutor is limited to proving the allegations and charges pled in the administrative complaint. Cf. Trevisani v. Dep't of Health, 908

    
    

    So. 2d 1108 (Fla. 1st DCA 2005); Aldrete v. Dep't of Health, Bd.

    
    

    of Med., 879 So. 2d 1244 (Fla. 1st DCA 2004); Ghani v. Dep't of Health, 714 So. 2d 1113 (Fla. 1st DCA 1998); Willner v. Dep't of

    Prof'l Reg., Bd. of Med., 563 So. 2d 805 (Fla. 1st DCA 1990).

    
    

27. In a penal proceeding, the prosecutor must prove the allegations and charges by clear and convincing evidence. See Dep't of Banking & Fin. v. Osborne Stern & Co., 670 So. 2d 932

    (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

    
    

28. 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, the standard:

    [E]ntails both a qualitative and quantitative standard. The evidence must be credible; the memories of the witnesses must be clear and without confusion; and the sum total of the evidence must be of sufficient weight to convince the trier of fact without hesitancy.

    
    

    In re Davey, 645 So. 2d 398, 404 (Fla. 1994) (citing 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).

    
    

29. Using these standards, it was not proven by clear and convincing evidence that the Respondent was guilty of the conduct alleged, and the conduct found did not sustain the violations charged in the Administrative Complaint.

30. The Respondent’s effectiveness at Westbrooke was seriously reduced because of the deterioration of the working relationships between the Respondent and the school’s administration and one staff member. It was not proven that his effectiveness as a teacher at other schools in the district was seriously reduced, or that his effectiveness at Westbrooke was seriously reduced as a result the incidents alleged in the Administrative Complaint. However, to avoid similar issues in the future, the Respondent would be well-advised to avoid unwise confrontations with the staff and administration of his current and future employers, and to make every effort to understand what his students may be trying to communicate to him in the way of their medical and health needs.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order denying the Petitioner’s request for a five- year suspension and dismissing the charges against the Respondent.

DONE AND ENTERED this 3rd day of May, 2016, in Tallahassee,

Leon County, Florida.

S

J. LAWRENCE JOHNSTON 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 3rd day of May, 2016.

ENDNOTES

1/ The statutory sections cited in this Recommended Order are to the 2013 Florida Statutes, which were in effect at the time of the alleged violations.

2/ The rule citations are to the Florida Administrative Code rules that were in effect at the time of the alleged violations.

3/ Citations to the Administrative Procedure Act are to the 2015 version of the statutes that were in effect at the time of the final hearing.

4/ The Petitioner’s exhibits were duplex copies of documents, with each page numbered consecutively at the top right corner. This made it difficult to manage the exhibits. For example, Exhibit 2 was page 21, which also was part of Exhibit 3, which consisted of pages 7-34; in some cases, exhibits included only one side of duplex copies. For this reason, all of the documents have been maintained in the binder as presented. Exhibit 1 consists of pages 35-36; Exhibit 2 is page 21; Exhibit 3 is pages

7-34; Exhibit 4 is pages 3-5; Exhibit 5 is pages 42-51; Exhibit 6

is page 56; and Exhibit 7 is pages 54-55.

5/ The Respondent’s method of pre-marking his exhibits was less problematic than the Petitioner’s but curious just the same. It is not clear why the Respondent chose to group his exhibits as he did.

6/ The Respondent’s “proposed recommended order” was in the form of a letter.

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 770088

Ocala, Florida 34477-0088 (eServed)

Peter Zanfagna Apartment 17C

6904 Manatee Avenue West Bradenton, Florida 34209

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.

Docket for Case No: 15-007095PL

Orders for Case No: 15-007095PL