The Issue Whether Respondent violated section 1012.795(1)(g) and (j), Florida Statutes (2013),1/ and Florida Administrative Code Rule 6A-10.081(3)(a) and (e), while in a classroom at Neptune Beach Elementary School on September 19, 2013, and, if so, what penalty should be imposed.
Findings Of Fact Based on the demeanor of the witnesses, the documentary evidence presented, and the record as a whole, the following facts are found: The Florida Education Practices Commission (“the Commission”) is the state agency charged with the duty and responsibility to revoke or suspend, or take other appropriate action with regard to teaching certificates as provided in sections 1012.795 and 1012.796. § 1012.79(7), Fla. Stat. Petitioner, as Commissioner of Education, is charged with the duty to file and prosecute administrative complaints against individuals who hold Florida teaching certificates and who are alleged to have violated standards of teacher conduct. § 1012.796(6), Fla. Stat. At all times relevant to the instant case, Ms. Kennedy held Florida Educator Certificate 889874, covering the areas of Elementary Education and English for Speakers of Other Languages. Ms. Kennedy’s certificate is valid through June 30, 2017. Ms. Kennedy began her teaching career in 2001 after graduating with a bachelor’s degree in Elementary Education from the University of North Florida. The school district assigned Ms. Kennedy to Neptune Beach Elementary on September 9, 2013, approximately two weeks into the 2013-2014 school year. The principal of Neptune Beach Elementary, Elizabeth Kavanagh, then assigned Ms. Kennedy to a third-grade class being taught by Ms. Amber Rodenkirch. It is unclear whether the two teachers were equals in the classroom or if Ms. Rodenkirch gave direction to Ms. Kennedy. The students in Ms. Rodenkirch and Ms. Kennedy’s class (“the class”) sat at tables rather than in chairs with a writing surface attached thereto. As illustrated by Petitioner’s Exhibit 13, the chairs utilized by the students were of two types. One type consisted of a plastic seat resting on metal tubes. The metal tubes had four flat ends making contact with the floor. The second type of chair also consisted of a plastic seat resting on metal tubes. However, the second type of chair made contact with the floor by having two metal tubes lying flat on the floor. As a result, it would be much easier to slide the second type of chair along a carpeted floor than the first. When seated in the second type of chair, the children in the class would often lean forward. By doing so, they would cause the back portion of the metal tubes on which the seat rested to rise up off the floor. When working with a student, Ms. Rodenkirch and Ms. Kennedy would be standing behind or next to a seated student. If that student was seated in the second type of chair and leaning forward, there was a tendency for the metal tubes on which the seat rested to come down on a teacher’s foot once the student leaned or sat back in his or her chair. Because it was painful for a chair to come down on her feet, Ms. Kennedy greatly preferred the first type of chair to the second. On September 19, 2013, Ms. Kennedy had recently been in a surfing accident which left one of her feet black and blue. In all likelihood, Ms. Kennedy was particularly concerned that day with the children leaning forward in their chairs. On September 19, 2013, Ms. Rodenkirch was working with a student and was 10 to 14 feet away from Ms. Kennedy. A student, C.J., was leaning forward in his chair, and Ms. Rodenkirch witnessed Ms. Kennedy tip C.J. out of his chair. After getting up from the floor, C.J. sat back down in his chair and appeared to be startled. Ms. Rodenkirch asked Ms. Kennedy if C.J. fell out of his chair, and Ms. Kennedy responded by stating, “With a little help.” Ms. Rodenkirch interpreted that statement as confirmation that Ms. Kennedy intentionally tipped C.J. out of his chair. At a different time on September 19, 2013, Ms. Rodenkirch was again about 10 to 14 feet from Ms. Kennedy when she witnessed Ms. Kennedy tip another student, N.B., out of his chair. As was the case with C.J., N.B. fell to the floor and was startled. Ms. Rodenkirch did not say anything to Ms. Kennedy after witnessing the incident with N.B. However, she was very upset about what she witnessed that day and reported what she saw to Ms. Kavanaugh after the children left school. After hearing Ms. Rodenkirch’s description of what happened in the class earlier that day, Ms. Kavanaugh called her supervisor, the regional superintendant, and requested direction. The regional superintendant, Kelly Coker-Daniels, instructed Ms. Kavanaugh to contact the Department of Children and Families and the local school district’s investigative branch. Both of the aforementioned entities conducted investigations. The local school district concluded that there was “substantial evidence to sustain the charges of exercise of poor judgment and inappropriate physical contact with students against Robin Kennedy for her role in these incidents.” (emphasis in original). Based on the investigation conducted by the Department of Children and Families, the Duval County Public School System: (a) issued a letter of reprimand to Ms. Kennedy; and (b) notified her that, pending approval by the school board, she would be suspended for 15 consecutive working days without pay. Because of the events described above, the parents of C.J. and N.B. requested that their children be transferred to another third-grade class. At least one other student transferred to a different class because she was worried that Ms. Kennedy would pull a chair out from under her. During the final hearing in this matter, Ms. Kennedy denied ever intentionally doing anything that could injure a student. During cross-examination, she responded affirmatively when asked if Ms. Rodenkirch was lying when she testified that she saw Ms. Kennedy tip C.J. and N.B. out of their chairs. However, the undersigned finds that Ms. Rodenkirch was a much more credible and persuasive witness than Ms. Kennedy. Therefore, the undersigned credits Ms. Rodenkirch’s testimony and finds that Ms. Kennedy did tip over the chairs of C.J. and N.B. on September 19, 2013, at Neptune Beach Elementary. Without a doubt, tipping students out of their chairs reduced Ms. Kennedy’s effectiveness as a teacher. That is underscored by the fact that students were transferred to other third-grade classes due to Ms. Kennedy’s actions. Ms. Kennedy’s conduct demonstrates that she failed to make reasonable efforts to protect her students from mental and/or physical harm. While it is very fortunate that none of the students in the class suffered any serious physical injuries, that might not have been the case if a student had hit his or her head on a hard object after being tipped out of his or her chair. Also, it is obvious that tipping a student out of his or her chair could expose that student to unnecessary embarrassment or disparagement. Accordingly, Petitioner has proven by clear and convincing evidence that Ms. Kennedy violated section 1012.795(1)(g) and (j) and rule 6A-10.081(3)(a) and (e).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order suspending Robin Welch-Kennedy’s educator’s certificate for 12 months. DONE AND ENTERED this 5th day of December, 2016, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL 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 5th day of December, 2016.
The Issue Whether Respondent violated section 1012.795(1)(g) and (j), Florida Statutes (2015),1/ or Florida Administrative Code Rule 6A-10.081(3)(a), (e), or (i),2/ as charged in the Amended Administrative Complaint, and, if so, what is the appropriate sanction.
Findings Of Fact Petitioner is responsible for the investigation and prosecution of complaints against holders of Florida Educator Certificates who are accused of violating section 1012.795 and related rules. At all times material to the allegations in this case Respondent held Florida Educator’s Certificate 1023593. The certificate covers the area of chemistry, and is valid through June 30, 2019. Respondent became a full-time high school teacher in the Seminole County School District (SCSD) during the 2006-2007 school year. At all times material to the allegations, Respondent was employed by the SCSD as a teacher at Seminole High School (High School). In or around October 2013, Respondent was asked if she would be interested in working with the Hospital Homebound program (HH).6/ The HH offered to compensate Respondent for the time she spent assisting students. Respondent agreed to be involved with the HH. Respondent was assigned to tutor C.P. During the 2013-2014 school year, C.P. attended the High School, and was a student in one of Respondent’s classes. C.P. candidly testified that he had scoliosis.7/ In late November 2013, C.P. had surgery to correct his spine. The surgery included placing rods in his back to straighten it. In early December 2013, Respondent went to C.P.’s home to begin the tutoring. On her initial visit to C.P.’s home, she brought C.P. a Slurpee, and found him resting in his bed. C.P. understood that Respondent was to help him keep current in all of his classes. C.P. did not show Respondent his back and did not tell Respondent that he had rods or wires in his back. C.P. did not discuss with Respondent a need for food or that he needed a new mattress. A short time later, Respondent left C.P.’s residence, and later returned with fried chicken, books, Cheez-it crackers, and a poinsettia flower. Respondent went to Principal Collins and expressed concerns about C.P.’s health and his family’s financial situation. Respondent opined that C.P.’s family was “poor.” Respondent told Principal Collins she had taken food and other items to the family. Respondent also told Principal Collins there were wires coming out of C.P.’s back and thought a better mattress would help C.P. Respondent wanted to know if the school could help the family. Principal Collins appreciated the concern Respondent had for C.P.’s circumstances, but it was not something the High School could provide. Ms. Guy works in the front office of the High School. Respondent told Ms. Guy there was no food in C.P.’s home. Ms. Guy did not inquire about C.P., and did not know why Respondent discussed private student information with her. D.D. was in Respondent’s sixth-period class at the High School during the 2013-2014 school year. D.D. credibly testified that Respondent spoke of a student whom she was tutoring. Respondent told the class that the student was ill, could not walk and did not have any food in the home, so she brought chicken to the family. D.D. heard that Respondent spent $40 on C.P.’s family. Respondent later stated C.P.’s name to the students. C.M. was in Respondent’s first-period class at the High School during the 2013-2014 school year. C.M. is not one of C.P.’s “immediate friends” and had no knowledge of C.P.’s surgery before Respondent spoke of it. C.M. credibly testified that Respondent told students that C.P. did not look well, and she could see wires on C.P.’s back. M.R. was in one of Respondent’s classes at the High School during the 2013-2014 school year. M.R. credibly testified that while other students were in the classroom, Respondent told the students that C.P.’s family did not have food, and he was too weak to get out of his bed. M.R. testified that she, E.B., C.P., Student J, and Student C were friends. M.R. also testified that C.P. shared with his friends about his upcoming back surgery. E.B. was in Respondent’s sixth-period class at the High School during the 2013-2014 school year. E.B. credibly testified that Respondent told the class about C.P.’s physical condition. E.B. acknowledged that he and C.P. were friends, almost like brothers. After Respondent made the statements in class concerning C.P., E.B. immediately texted C.P. regarding her comments. Following Respondent’s comments in class, E.B. had other students coming to him, inquiring about C.P.’s well- being. When C.P. heard what Respondent had said in her classes, C.P. was “saddened, a little bit angry and upset.” C.P. then texted his mother at work, who became upset upon hearing what information was shared about her son. Ms. C.P. is a single working mom. The family lives in a four-bedroom, two-bath, and two-living room house. Ms. C.P. has paid the mortgage on the house for over 20 years. Ms. C.P. took time off from work to go to the High School. Initially Ms. C.P. spoke with Ms. Guy and expressed her rage at the private information shared about her son. Ms. C.P. spoke with an assistant principal about what Respondent had said in her classes. Ms. C.P. and C.P. went to the High School after C.P. heard more of what Respondent had said about C.P. Prior to going to the High School, Ms. C.P. went to the bank, withdrew $40 and gave it to C.P., so he, in turn, could give the money to Respondent. While on the High School campus, C.P. went to Respondent’s classroom, and gave the $40 to Respondent. C.P. wanted to give Respondent the $40 as he did not want to be portrayed as poor. C.P. credibly testified that “I’m not poor in my eyes so I felt it was necessary to reimburse her [Respondent] for what she claimed that she spent in food for me.” As part of an investigation into the allegations made by Ms. C.P. and C.P., Principal Collins invited students from Respondent’s classes to provide statements regarding any comments made by Respondent about C.P. The statements, written by individual students who testified at the hearing, and which were ratified as true when written, demonstrated that Respondent had specifically referenced C.P., his medical condition, Respondent’s thoughts that C.P. was poor, and that Respondent had brought food and a flower to him. During the 2013-2014 school year, Mr. Bevan served as an Assistant Principal (AP) at the High School. Following reports of confidential student information being shared with other students, AP Bevan interviewed several students. He then attempted to provide Respondent with an opportunity to discuss the circumstances from her perspective. Respondent became somewhat distraught and AP Bevan offered to obtain coverage for her class. Respondent calmed down and declined the offer of coverage. Respondent left AP Bevan’s office and went to the media center where her class was to meet. Respondent did not stay with the class, but instead left the campus. Following the investigation, Principal Collins determined there were inappropriate confidential matters about C.P. shared with other students and staff. As a result, on December 18, 2013, Principal Collins issued a letter of reprimand to Respondent. The Superintendent recommended and the SCSB approved a two-day suspension as a result of Respondent’s conduct. Respondent was on medical leave beginning on January 7, 2014, through March 10, 2014. Respondent served the suspension on April 15 and April 22, 2014. Respondent’s disciplinary history also includes an October 25, 2013, letter of reprimand for using profanity with a student.
Recommendation 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 violated section 1012.795(1)(g) and (j), and rule 6A-10.081(3)(a), (e), and (i). It is further RECOMMENDED that the Education Practices Commission place Respondent’s educator certificate on probation for two years. The Education Practices Commission shall establish the terms and conditions of Respondent’s suspension and probation, which may include the cost of monitoring the probation. DONE AND ENTERED this 13th day of May, 2016, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 13th day of May, 2016.
Findings Of Fact Petitioner has been employed with the Florida Department of Transportation since 1971. He is a graduate of the University of West Florida, with a degree in business management. Petitioner is 38 years old, with a physical disability which limits his use of his left hand and arm, and his left leg is shorter than his right. In 1979, Petitioner was employed by Respondent in its right-of-way section, as a Right-of-Way Agent III. In that position, he was responsible for the coordination of the Acquisition, Relocation and Property Management sections of Respondent's District III. One of Petitioner's subordinates was H. E. Walls, who was in charge of the Acquisition section. Petitioner's immediate supervisor was J. F. Culpepper, Assistant Right-of-Way Administrator. In April, 1980, a new Right-of-Way Administrator, J. A. Alfes, was assigned to District III. In 1980, and again in 1981, Petitioner filed charges of discrimination against Respondent with the Florida Commission on Human Relations premised upon Petitioner's aforementioned disability. The 1980 charge was resolved through the entry of a settlement agreement. The charge filed in 1981 was premised upon the same disability, but that charge was ultimately dismissed by the Florida Commission on Human Relations. In January, 1981, a hearing was held in Tallahassee, Florida, on one of the charges of discrimination filed by Petitioner. On the day following that hearing, Petitioner was called into Mr. Alfes' office in Chipley, Florida, and was told that the hearing held in Tallahassee had been several hours of "horse shit." On May 18, 1981, Mr. Alfes advised Petitioner of an impending reorganization of the section in which Petitioner was employed. Subsequently, on June 17, 1981, Mr. Alfes told Petitioner that there would be "consequences" as a result of Petitioner's having filed complaints with the Florida Commission on Human Relations. In 1981 a reorganization of functions occurred in all six districts statewide of DOT. This reorganization eliminated one classification of position, Right-of-Way Agent III, which Petitioner had held in District III, and elevated the positions at the head of Acquisition and Relocation sections to the administrator level. At the time this reorganization occurred, Petitioner, as previously mentioned, was a Right-of-Way Agent III, and Herbert Walls headed the Acquisition section. Mr. Alfes, Petitioner's immediate superior, recommended that Petitioner be placed in charge of Relocation, and that Mr. Walls, who had been working in Acquisition, be placed in charge of the Acquisition section in light of his experience in that area since 1978. J. F. Culpepper, who occupied the position on DOT's organization chart to whom the Acquisition section, Relocation section, and Property Management section would report, recommended that the Petitioner be placed in charge of the Acquisition section, based upon his belief that Petitioner was better qualified by reason of his real estate training and college degree. Mr. Walls had only a high school diploma. During the period of his employment with DOT, Petitioner had not handled any complete right-of-way acquisition matters, and had never negotiated for DOT in the acquisition of any right-of-way parcels. Petitioner had, however, attended two relocation seminars while employed by DOT. Mr. Walls had been continually engaged in acquisition work for DOT since at least 1978. DOT's District Engineer, Alan Potter, was the DOT employee ultimately responsible for selecting the heads of the Acquisition and Relocation sections. Mr. Potter concurred with the recommendation that Petitioner be placed in charge of the Relocation section, based upon his belief that it was the most important job involved in right-of-way acquisition, and that it required a very thorough and cautious person. Based upon Mr. Potter's evaluation of Petitioner as possessed of high ability, and being very mature and compassionate, Petitioner was placed in charge of the Relocation section. At the time Petitioner was named as head of Relocation and Mr. Walls was placed as head of Acquisition, the two positions were both classified as Right-of-Way Specialist II's, pay grade 22. Later both were reclassified as Right-of-Way Administrator I's, at pay grade 23. The record in this cause establishes that neither position was more prestigious" than the other, or that either position placed the individual holding it in a more favorable posture for promotion or advancement. Subsequently, in the summer of 1981, the reorganization of DOT was completed, with Mr. Walls having been appointed head of Acquisition, with approximately six subordinates. Petitioner became responsible for Relocation, and shared the supervision of a clerical employee with the head of Property Management. After reorganization, Mr. Alfes relocated Petitioner's office in another building 100 feet away from the main office. Petitioner's office was initially located in a passageway and, as a result, Petitioner was required several times a day to make trips to the main building to obtain files necessary to complete his work. In August of 1983, prior to final hearing in this cause, Mr. Alfes retired, and Petitioner's office was relocated in a more spacious office close to the Acquisition section.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered by the State of Florida, Commission on Human Relations, dismissing the petition for relief, and denying the relief requested therein. DONE AND ENTERED this 23rd of May, 1984, at Tallahassee, Florida. WILLIAM E. WILLIAMS, Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 904/488-9675 FILED with the Clerk of the Division of Administrative Hearings this 23rd day of May, 1984. COPIES FURNISHED: BEN R. PATTERSON, ESQUIRE POST OFFICE BOX 4289 TALLAHASSEE, FLORIDA 32315 VERNON L. WHITTIER, JR., ESQUIRE DEPARTMENT OF TRANSPORTATION HAYDON BURNS BUILDING TALLAHASSEE, FLORIDA 32301 JEAN OWEN, ESQUIRE ASSISTANT GENERAL COUNSEL FLORIDA COMMISSION ON HUMAN RELATIONS WOODCREST OFFICE CENTER 325 JOHN KNOX ROAD SUITE 240, BUILDING F TALLAHASSEE, FLORIDA 32303 DONALD A. GRIFFIN, EXECUTIVE DIRECTOR FLORIDA COMMISSION ON HUMAN RELATIONS 325 JOHN KNOX ROAD BUILDING F, SUITE 240 TALLAHASSEE, FLORIDA 32303
