STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PAM STEWART, AS COMMISSIONER OF EDUCATION,

Petitioner,

vs.

THELEMA LAMAR,

Respondent.

/

Case No. 16-5558PL

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was conducted before Administrative Law Judge Mary Li Creasy by video teleconference with locations in West Palm Beach and Tallahassee, Florida, on March 7, 2017.

APPEARANCES

For Petitioner: Charles T. Whitelock, Esquire

Charles T. Whitelock, P.A.

300 Southeast 13th Street, Suite E Fort Lauderdale, Florida 33316

For Respondent: Peter Caldwell, Esquire

Florida Education Association Legal Department

1516 East Hillcrest Street, Suite 109

Orlando, Florida 32803 STATEMENT OF THE ISSUES

Whether Respondent committed any of the offenses alleged in Petitioner's Amended Administrative Complaint; and, if so, what

is the appropriate penalty to be imposed against her Florida Educator's Certificate.

PRELIMINARY STATEMENT

On August 7, 2015, Petitioner, Pam Stewart, as Commissioner of Education ("DOE," "Commissioner," or "Petitioner"), filed an Administrative Complaint against Respondent, Thelema Lamar.

Respondent disputed the allegations in the Administrative Complaint and requested a hearing pursuant to section 120.57(1), Florida Statutes. On August 7, 2015, the case was referred to the Division of Administrative Hearings ("Division") for the assignment of an Administrative Law Judge. On September 29, 2016, the case was noticed for hearing to be held on November 28, 2016. The case (then Case No. 16-1851PL) was closed at the request of the parties but was re-opened on October 23, 2016, when a proposed settlement was rejected. At the request of both parties initially, and Petitioner subsequently, the case was re- scheduled and, ultimately, a final hearing was ordered for January 19, 2017.

On January 5, 2017, Petitioner filed a motion seeking leave to amend the Administrative Complaint and, therewith, filed an Amended Administrative Complaint ("Complaint"). On January 9, 2017, the case was re-scheduled for March 7, 2017, in West Palm Beach and Tallahassee, Florida, by video teleconference. On

January 18, 2017, Petitioner was granted leave to amend its Complaint, over objection.

At the final hearing, Petitioner presented the testimony of Students T.C.,1/ J.V., and C.S.; Robin Burke; and Valerie Silverman. Petitioner's Exhibits 1 through 5 and 7 through 10 were admitted into evidence. Respondent testified on her own behalf and presented the testimony of Antoinette Hornyak, Wonda Jenkins, and Cecila Tipton. Respondent's Exhibits 1, 8, 9,

and 14 were also admitted.

The Transcript of the proceeding was filed with the Division on April 17, 2017. At the hearing on March 7, 2017, Respondent made an ore tenus motion for enlargement of time for filing of proposed recommended orders, which was unopposed. The motion was granted in part at the March 7, 2017, hearing, and the parties were allowed 30 days following the Transcript filing date to file their post-hearing submissions. Both parties timely filed Proposed Recommended Orders by the May 17, 2017, deadline, which have been carefully considered in the preparation of this Recommended Order.

Prior to hearing, the parties filed a Joint Pre-hearing Stipulation in which they stipulated to certain facts which would require no evidence at hearing. Where relevant, those facts have been incorporated into the Findings of Fact below.

All references to Florida Statutes and Florida Administrative Code rules are to the 2011 and 2012 codification, where appropriate based on the Complaint allegations, unless

otherwise indicated.

FINDINGS OF FACT

1. Petitioner, as Commissioner of Education, is responsible to investigate and prosecute complaints against individuals who hold a Florida educational certificate and are alleged to have violated provisions of section 1012.795, Florida Statutes, and related rules.

2. Respondent holds Florida Educator's Certificate 892498, covering the areas of biology and reading, which is valid through June 30, 2016. At the time of the final hearing, Respondent taught for the Palm Beach County School District for 16 years.

3. At all times pertinent hereto, Respondent was employed as a science teacher at John Leonard High School.

4. There are three incidents that serve as the basis for the Complaint. The first incident concerned Respondent's physical confrontation with L.P., a tenth-grade female student, on December 15, 2011. Respondent pinned L.P. against the hallway wall before grabbing the hood of her sweatshirt (hoodie) and forcibly slinging her back into the classroom. The second incident occurred on or about September 19, 2012, which involved Respondent's inappropriate conduct with F.M., a 17-year-old

   
   

   student. The third incident occurred the same day when, following the F.M. incident, Respondent threatened the students who witnessed the incident with a failing grade if they reported her misconduct.

   L.M. Incident

   
   

5. C.S., a then 16-year-old female student, was in

   
   

   Mr. Palmberg's science class on December 15, 2011. The teacher was absent for the week, and the class required an aide. C.S. and another student, K.D., went to locate an aide for the class. Walking down the hallway, they encountered Respondent, who had a female student, L.P., backed against the hallway wall next to the classroom door. Respondent was screaming in L.P.'s face. L.P. appeared frightened and looked towards C.S. causing Respondent to put her finger on L.P.'s neck and scream, "Look at me."

6. C.S. and K.D. went upstairs for a moment, but returned shortly thereafter. Respondent and L.P. were still in the hall.

   L.P. was wearing a hoodie. Respondent grabbed L.P.'s jacket by the hood and slung her into the classroom so hard that L.P. stumbled and caught herself from falling.

7. C.S., who credibly testified at the hearing about this event, gave a written statement on January 12, 2012, to the district investigator along with K.D., N.H. (a student), and

   S.S. (a student). On this same date, L.P. also gave a written statement to the district detailing this interaction with

   
   

   Respondent. The student statements, other than that of C.S., although hearsay, are relevant because they corroborate C.S.'s hearing testimony. The minor inconsistencies between these reports and C.S.'s testimony at hearing are consistent with discrepancies commonly found in eyewitness reports of events that occurred quickly and over five years ago.

8. Respondent's argument,2/ that C.S. testified about an incident which occurred January 12, 2012, rather than on December 15, 2011, is specious at best and casts serious doubt on Respondent's credibility. Although the written statements were provided on January 12, 2012, it is clear they all described an incident which occurred on December 15, 2011, before the winter break. These statements were authored during an investigation into a separate incident between Respondent and L.P. which occurred on January 11, 2012, in which Respondent is alleged to have improperly touched L.P. while arguing about L.P.'s cell phone.3/ The fact that counsel for Petitioner mentioned the January 12, 2012, date when questioning C.S. does not diminish C.S.'s credibility. The undersigned credits the written statements of C.S., K.D., N.H., S.S., and L.P. regarding the timing and events of the December 15, 2011, hallway incident.

9. Respondent admits she had a loud altercation with L.P. on December 15, 2011, however, she disputes pushing L.P. against the wall, touching her, or slinging her into the classroom by her

   
   

   hoodie. Respondent claims L.P. became loud and disruptive when Respondent refused to allow L.P. to go to the front office to meet with her probation officer.

10. Respondent asserts that her testimony was corroborated by fellow Teacher Antoinette Hornyak. Although Ms. Horynak heard a loud commotion between Respondent and L.P. in the hallway and described the student as loud and agitated, she testified it appeared that Respondent had the situation under control and that she did not open the door to find out what was going on. She returned her attention to her class while Respondent and L.P. remained in the hall. Accordingly, she could not know whether Respondent put her finger on L.P.'s neck or slung her into the classroom by her hoodie.

11. The fact that L.P. was loud or belligerent leaving the classroom with Respondent is not relevant to whether Respondent engaged in the behavior described by L.P., C.S., N.H., S.S., and

    K.D. Further, Respondent's theory that the students concocted this story after the fact because they were "friends," is not viable. At the final hearing, C.S. could not recall the name, race, hairstyle, or any other detail about L.P., which is not surprising because the incident occurred six years prior. Other than N.H., the other witnesses described L.P. as "the girl" or the "female student." It is clear that they barely knew each other, which may explain why they waited until the investigation

    
    

    into the January 11, 2012, touching incident before providing a written report.

12. There is no believable explanation for five similar statements to be provided by students who do not know each other very well about the same hallway incident unless it, in fact, occurred. Although Respondent tries to portray L.P. as an

    out-of-control, belligerent aggressor, Respondent did not send

    
    

    L.P. to the office or call for assistance. Respondent's explanation simply is not credible.4/

13. Respondent was given a Written Notation of a Verbal Reprimand for her inappropriate verbal and physical interaction with L.P.

    F.M. Incident and Failing Grade Threat

    
    

14. F.M. was a student in Respondent's science class on September 19, 2012, when Respondent became angry because F.M. refused to straighten papers on her desk. When F.M. stated he did not create the mess, Respondent told him to get out of the class. F.M. tried to sit down on a stool near the classroom door, but Respondent called him an idiot and pulled it out from under him. She then pushed and kneed him out the door, before slamming the door.

15. Two students, T.C. and J.V., who testified at the hearing, stated F.M. asked if an administrator was coming to the classroom, but Respondent refused to contact the office. Both

    
    

    students verified Respondent's inappropriate actions with F.M.

    
    

    J.V. described F.M. as "calm" and Respondent as "just mad."

    
    

16. Robin Burke, who is a 25-year educator with the district, had several of these students in her math class. The day following the incident, T.C., one of her students, along with

    J.V. and K.D., approached her to request information on a schedule change out of Respondent's science class. When prompted, they described Respondent's inappropriate interaction with F.M. the previous afternoon. They related that Respondent called F.M. an idiot, before grabbing his shirt and shaking, pulling, and pushing him. Respondent also called F.M. a "dumbass." He was ordered to leave the room, which he refused. Respondent then kneed and kicked him out of the room.

17. These three students also told Ms. Burke that after literally kicking F.M. from the classroom, Respondent told the remaining students that they would likely be interviewed, after which she would be shown the statements with the students' names. Respondent threatened to fail any student who gave a statement regarding her altercation with F.M.

18. Later that day, F.M. came to Ms. Burke's sixth-hour class. He had not told either his mother or any administrator about Respondent's actions. Ms. Burke questioned him about the incident and told him to inform his mother. Ms. Burke, believing this activity by Respondent was child endangerment and her own

    
    

    license could be at risk if not reported properly, then took F.M. to Valerie Silverman, the assistant principal, who had Ms. Burke file a complaint against Respondent with the Department of Children and Families.

19. When speaking with Ms. Silverman, F.M. was very upset.

    
    

    F.M.'s mother was notified, and he was removed from Respondent's class. Respondent was later issued a written reprimand for her physical altercation with F.M. and for calling him names.

20. Respondent admits that she was engaged in an altercation with F.M. on September 19, 2012, but denies calling him names or physically touching him. Respondent also denied threatening student witnesses to the event with failing grades. According to Respondent, F.M. was angry because Respondent made him take a test although he had been absent for several days. When turning in his paper, he threw it on Respondent's desk, causing the stack of papers to scatter. According to Respondent, when Respondent asked him to straighten the papers, F.M. became loud and argumentative.

21. Respondent then asked F.M. to exit the classroom, but he did not want to. F.M. asked to have an administrator called to remove him from the room. According to Respondent, things escalated quickly, and she and F.M. had a "tussle" at the door. However, Respondent asserts that she was five months pregnant at

    
    

    the time with a high-risk pregnancy and would not have gotten into a physical confrontation with F.M. who was bigger than she.

22. The testimony of T.C. and J.V. was clear and convincing that the incident with F.M. occurred as they described. Again, the minor variation between their testimony and written statements can be attributed to the passage of time since the incident. Both of these former students are now in their early 20s and have no apparent reason to fabricate their recollection of the events in question.

23. Further, both students were adamant and credible that the class was threatened by Respondent with failing grades if they provided statements about what they saw. J.V. explained that he gave a verbal statement to the officer investigating (which was then written by the investigator) because he was already failing the class and was afraid of Respondent's retaliation. Their version of what occurred is consistent with their written statements, the verbal reports they provided to Ms. Burke, and with the written statements of other students who were present, including F.M., K.J., C.S., and T.O.

24. The students' version of what occurred between F.M. and Respondent is the only one which explains why three students would seek a class transfer the following day. Accordingly, their testimony is credited and that of Respondent is not.

    
    

    CONCLUSIONS OF LAW

    
    

25. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this case pursuant to sections 120.569 and 120.57(1), Florida Statutes (2016).

26. Petitioner seeks to take action against Respondent's educator's certificate as provided in section 1012.795. A proceeding to impose discipline against a professional license is penal in nature, and Petitioner bears the burden to prove the allegations in the 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).

27. The "clear and convincing evidence" standard requires that the evidence be found credible, the facts to which the witnesses testify must be distinctly remembered, the testimony must be precise and explicit, and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established. In re Davey, 645 So. 2d 398, 404 (Fla. 1994); Slomowitz v. Walker, 429 So. 2d 797, 800

    (Fla. 4th DCA 1983).

    
    

28. Whether Respondent committed the charged offenses is a question of ultimate fact to be determined by the trier of fact

    
    

    in the context of each alleged violation. Holmes v. Turlington,

    
    

    480 So. 2d 150, 153 (Fla. 1985); McKinney v. Castor, 667 So. 2d 387, 389 (Fla. 1st DCA 1995); McMillan v. Nassau Cnty. Sch. Bd.,

    629 So. 2d 226, 228 (Fla. 1st DCA 1993).

    
    

29. Section 1012.795 provides, in pertinent part, that:

    
    

    1. The Education Practices Commission may suspend the educator certificate of any person as defined in s. 1012.01(2) or (3) for up to 5 years, thereby denying that person the right to teach or otherwise be employed by a district school board or public school in any capacity requiring direct contact with students for that period of time, after which the holder may return to teaching as provided in subsection (4); may revoke the educator certificate of any person, thereby denying that person the right to teach or otherwise be employed by a district school board or public school in any capacity requiring direct contact with students for up to

       10 years, with reinstatement subject to the provisions of subsection (4); may revoke permanently the educator certificate of any person thereby denying that person the right to teach or otherwise be employed by a district school board or public school in any capacity requiring direct contact with students; may suspend the educator certificate, upon an order of the court or notice by the Department of Revenue relating to the payment of child support; or may impose any other penalty provided by law, if the person:

       
       

       * * *

       
       

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

       
       

30. Section 1001.02(1), Florida Statutes, grants the State Board of Education authority to adopt rules pursuant to

    sections 120.536(1) and 120.54 to implement provisions of law conferring duties upon it.

31. Consistent with this rulemaking authority, the State Board of Education promulgated Florida Administrative Code Rule 6A-10.081, Principles of Professional Conduct for the

    Education Profession in Florida. Rule 6A-10.081(3) provides, in pertinent part:

    1. Obligation to the student requires that the individual:

       
       

       1. 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.

    
    

    * * *

    
    

    1. Shall not intentionally expose a student to unnecessary embarrassment or disparagement.

       
       

    2. Shall not intentionally violate or deny a student's legal rights.

    
    

32. Petitioner proved by clear and convincing evidence that Respondent is guilty of conduct in violation of section 1012.795(1)(j) and rules 6A-10.081(3)(a) and (e), because she intentionally exposed students to unnecessary embarrassment or disparagement, and she failed to make reasonable efforts to

    
    

    protect students from conditions harmful to learning and/or to the student's mental and/or physical health and/or safety.

33. The actions of physically slinging C.S. into the classroom and kicking F.M. out of the classroom, while verbally attacking them both, exposed these students to unnecessary embarrassment or disparagement and jeopardized their mental and physical safety. Similarly, threatening students with failing grades if they participated in the school's investigation into Respondent's misconduct is harmful to students' learning and mental health.

34. Petitioner failed to demonstrate that the actions against C.S. and F.M. constituted actionable battery or that they were deprived of legal rights. Similarly, although threatening students' grades is reprehensible, no evidence was presented showing that a student refused to exercise his or her legal right to participate in the investigation as a result of the threat. Accordingly, Petitioner did not meet its burden to demonstrate a violation of rule 6A-10.081(3)(f).

    Penalty

    
    

35. The Education Practices Commission adopted disciplinary guidelines for the imposition of penalties authorized by section 1012.795 in Florida Administrative Code Rule 6B-11.007.

    
    

36. Rule 6B-11.007(2)(f) provides a range of penalties from probation to revocation for a teacher, such as Respondent, who violates sections 1012.795(1)(j).

37. Rule 6B-11.007(2)(i)6. provides a range of penalties from reprimand to revocation for a teacher, such as Respondent, who uses corporal punishment/inappropriate methods of discipline in violation of rules 6A-10.081(3)(a) and (e).

38. Rule 6B-11.007(2) provides that in addition to the other disciplinary guidelines set forth in the rule, each should be interpreted to include "probation," "Recovery Network Program," "letter of reprimand," "restrict scope of practice," "fine," and "administrative fees and/or costs" as additional penalty provisions.

39. Rule 6B-11.007(3) provides:

    
    

    (3) Based upon consideration of aggravating and mitigating factors present in an individual case, the Commission may deviate from the penalties recommended in

    subsection (2). The Commission may consider the following as aggravating or mitigating factors:

    
    

    1. The severity of the offense;

       
       

    2. The danger to the public;

       
       

    3. The number of repetitions of offenses;

       
       

    4. The length of time since the violation;

       
       

    5. The number of times the educator has been previously disciplined by the Commission;

       
       

    6. The length of time the educator has practiced and the contribution as an educator;

       
       

    7. The actual damage, physical or otherwise, caused by the violation;

       
       

    8. The deterrent effect of the penalty imposed;

       
       

    9. The effect of the penalty upon the educator's livelihood;

       
       

    10. Any effort of rehabilitation by the educator;

        
        

    11. The actual knowledge of the educator pertaining to the violation;

        
        

    12. Employment status;

        
        

    13. Attempts by the educator to correct or stop the violation or refusal by the educator to correct or stop the violation;

        
        

    14. Related violations against the educator in another state including findings of guilt or innocence, penalties imposed and penalties served;

        
        

    15. Actual negligence of the educator pertaining to any violation;

        
        

    16. Penalties imposed for related offenses under subsection (2) above;

        
        

    17. Pecuniary benefit or self-gain inuring to the educator;

        
        

    18. Degree of physical and mental harm to a student or a child;

        
        

    19. Present status of physical and/or mental condition contributing to the violation including recovery from addiction;

        
        

    20. Any other relevant mitigating or aggravating factors under the circumstances.

    
    

40. In the instant case, there was no actual physical injury caused to L.P. and F.M., and Respondent was a teacher for the Palm Beach County School District for 16 years. On the other hand, Respondent engaged in several incidents of foul language and the improper use of force against students. Further, Respondent threatened innocent student witnesses with failing grades if they participated by providing statements in the investigation which she knew would follow. Such conduct is reprehensible in a classroom setting with susceptible students.

41. However, it should be noted that Respondent received relatively minor School Board-imposed discipline for the offenses. The last offense occurred almost five years ago. No evidence was presented to demonstrate that Respondent has engaged in further similar incidents or that the imposition of additional harsh punishment at this late date would serve as an effective deterrent. Respondent's vice principal, who observed Respondent in the classroom, described her as a good teacher.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order placing a written reprimand in Respondent's certification file and placing Respondent on one school year of

probation (180 days). It is also RECOMMENDED that Respondent be responsible for the payment of monitoring costs in the amount of

$150.00.

DONE AND ENTERED this 14th day of June, 2017, in Tallahassee, Leon County, Florida.

S

MARY LI CREASY

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 14th day of June, 2017.

ENDNOTES

1/ All student names are referred to by initials in order to preserve each student's confidentiality.

2/ Resp.'s PRO ¶ 24.

3/ The Complaint does not cite the January 11, 2012, incident as a basis for any charges.

4/ Respondent claims that C.S. and K.D. could not have observed anything because this occurred while they should have been in class, "not out roaming the halls," and they would have encountered a hall monitor. This begs the question of where was the hall monitor when L.S. was being loud and belligerent with Respondent and why Respondent did not seek the assistance of said hall monitor?

COPIES FURNISHED:

Gretchen Kelley Brantley, Executive Director Education Practices Commission

Department of Education Turlington Building, Suite 316

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

Peter Caldwell, Esquire Florida Education Association Legal Department

1516 East Hillcrest Street, Suite 109

Orlando, Florida 32803 (eServed)

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

300 Southeast 13th Street, Suite E Fort Lauderdale, Florida 33316 (eServed)

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: 16-005558PL

Orders for Case No: 16-005558PL