The Issue The issue is whether Points meets the criteria for assignment to an educational alternative program. Petitioner presented the testimony of Laura Bryant, school bus driver: Peter Rossi, police officer with the Special Investigative Unit of the School Board of Dade County, Raymond Fontana, assistant principal of Highland Oaks Junior High School; Arnold Golditch, teacher, and Lawrence Jurrist, teacher. Petitioner had Exhibits 1-8 admitted into evidence. Respondent presented the testimony of John Points. The parties waived the filing of a transcript and proposed orders.
Findings Of Fact John Points was a student at Highland Oaks Junior High School during the 1983-84 and 1984-85 school years until his assignment to the alternative school. During his attendance at Highland Oaks, Points has been involved in numerous instances of misbehavior that involved disciplinary action. On October 26, 1983 he was truant and was placed-on indoor suspension in the SCSI program. On February 24, 1984, he was placed on a two day indoor suspension for disruptive behavior. On May 3, 1984 he was given a 10 day outdoor suspension for theft. He served a three day indoor suspension each for starting a fight on May 31, 1984, and for general disruptive behavior on September 11, 1984. On September 14, 1984, Points walked out of class and on October 4, 1984, he was reprimanded and warned for fighting. He was placed on two days indoor suspension for cutting class on October 25, 1984. Points served two detentions for refusal to be seated, disruptive behavior and disrespect on November 7, 1984. On December 5, 1984, Points was suspended and recommended for alternative school for fighting and creating a general disturbance. Based on that recommendation for alternative school, Points was assigned to alternative school on December 17, 1984. Because of a paperwork mistake, Points did not go to alternative school and remained at Highland Oaks. In February, 1985, the error was discovered, but Mr. Fontana decided to let Points stay at Highland Oaks because two months had passed and he had no behavior problems in the interim. Shortly thereafter, Points was warned for failure to dress out for PE class on March 4, 1985. On March 12, 1985, Points was placed on a two day indoor suspension for disrupting the cafeteria by whistling. Finally, on March 28, 1985, Points was suspended from school for ten days for possession of marijuana on the school bus. In fact, no independent evidence was presented regarding Points supposed possession of marijuana. The only evidence was his own statement. By Points' own admission, two other students asked him to roll a marijuana cigarette from marijuana which they gave him. Points did so and gave it back to the other students. He did not smoke marijuana on the bus. Points has had academic problems at Highland Oaks. He is an exceptional student in Learning Disability classes. As of his last report card, Points received three F's, two D's and one B. During the 1984-85 school year, Points was absent 17 days from September 4, 1984 to April 4, 1985. This number does not include his absences for the ten day suspension. Additionally he was also absent on some occasions from particular classes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Dade County enter a Final Order assigning John Points to the alternative school program at Douglas MacArthur Senior High School-North. DONE and ENTERED this 16th day of September, 1985, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of September, 1985 COPIES FURNISHED: Angela Points 200-178 Drive Miami Beach, Florida 33160 Frank Harder, Esquire Twin Oaks Building Suite 100 2780 Galloway Road Miami, Florida 33165 Ms. Maeva Hipps School Board Clerk Dade County Public Schools 1450 N. E. 2nd Avenue Miami, Florida 33132 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132
The Issue Whether Respondent violated section 1012.795(1)(d) or (1)(f), Florida Statutes (2019), and, if so, what penalty should be imposed.1 1 Unless otherwise noted, all references to the Florida Statutes herein are to the 2019 version, which was in effect when the actions alleged in the Administrative Complaint took place.
Findings Of Fact Petitioner is the chief educational officer of the state, who recommends members for appointment to the Education Practices Commission—the statewide commission with the authority to discipline Florida educators. See §§ 1001.10(1), 1012.79(1), and 1012.795(1), Fla. Stat. (2021). Respondent, Calvin Chin, holds State of Florida Educator’s Certificate 737639, covering the areas of Educational Leadership and Mathematics, which is valid through June 30, 2026. Respondent has served as an educator for 27 years, primarily with the Marion County School District (“District”). He was first employed by the District as a math teacher at Dunnellon High School (“Dunnellon”) in 1994, where he continued for 12 years. Respondent was promoted to dean of students at Dunnellon in 2002 and served in that capacity through 2012. During that time-frame, Respondent was also a part-time math instructor at a local community college. Respondent served as dean of students for College Park Elementary School from 2012 through 2016, when he returned to Dunnellon to continue teaching math for college readiness and dual enrollment math for students enrolled for college-level credit math instruction. Respondent also had a 19-year career with the U.S. Marine Corps. He originally enlisted in 1978 after graduating from high school, then joined the Marine Reserves while he pursued his college education. Respondent graduated from the University of Florida in 1983 and became a commissioned officer through the Reserve Officer Training Corps (“ROTC”) program in December of that year. Respondent served in the Marine Corps through 1994. In 1996, Respondent established the Young Marines at Dunnellon, a program similar to ROTC that teaches discipline and military structure to youth. Respondent is passionate about teaching and shaping the lives of young people. Respondent has never had any disciplinary action taken against his license or against him by either the District or any school at which he has taught. Relationship with Joanne Mandic Respondent and Joanne Mandic are not married, but have been in a relationship for 19 years. Respondent and Ms. Mandic have lived together as a couple for over 18 years. The couple has one child together, C.C., who lives with her parents. C.C. was 13 years old and home-schooled by Ms. Mandic at all times relevant hereto. Ms. Mandic has another child, Nyasha Mandic-Mandaza, from a prior relationship. Ms. Mandic-Mandaza was 22 years old at all times relevant hereto. She does not live with her mother and Respondent; however, on the date of the incident, Ms. Mandic-Mandaza was staying at their home. October 25, 2019, Incident On Friday, October 25, 2019, Respondent came home from Dunnellon and prepared himself an alcoholic drink. At some point during the evening, he asked Ms. Mandic what she was preparing for dinner and she responded that she was too tired to cook. Respondent became upset that Ms. Mandic was not preparing dinner. By this time, Respondent had consumed several alcoholic drinks, and he and Ms. Mandic got into a verbal altercation about dinner. During the verbal altercation, Respondent came out of his bedroom holding his handgun. He said to Ms. Mandic, “Don’t piss me off. I am a Marine and I know how to shoot,” or similar words. Respondent “racked” the gun, which made a distinctive sound audible to Ms. Mandic. Afterward, Respondent returned to his bedroom. Ms. Mandic is familiar with the gun and familiar with Respondent’s habit of storing the gun and ammunition separately. According to Ms. Mandic, the gun was unloaded when Respondent brought it out of the bedroom. Ms. Mandic testified that she knew the gun was unloaded and that she was not in fear of Respondent. Ms. Mandic testified that this incident was not indicative of her relationship with Respondent and that he has never been violent toward either her or the children. She further testified that there has been no similar incident since that date. C.C. was home in her bedroom and heard, but did not see, the altercation between her parents. No evidence was introduced regarding C.C.’s reaction to the incident or its effect on her. Ms. Mandic-Mandaza both heard and saw the altercation between Respondent and her mother. Ms. Mandic-Mandaza had come to the house after work and was preparing to leave for the evening, when she stepped into the hallway in response to the verbal altercation. She saw Respondent walking down the hallway with his handgun. Ms. Mandic-Mandaza was in fear as Respondent appeared to be approaching her in the hallway; however, Respondent passed by her and moved towards her mother, who was in the kitchen. Ms. Mandic-Mandaza retreated to a bedroom where she called the police to report the incident, then left the house shortly thereafter. Respondent’s Arrest In response to the 911 call, Marion County Deputy Sheriffs Joseph Diaz and Christopher White, as well as Sergeant Moore, were dispatched to the Chin home. Both Respondent and Ms. Mandic were interviewed by the officers. During his interview with the officers, Respondent was forthcoming about his actions. He demonstrated to the officers how he held and racked the gun, and repeated the statements he made as he held the gun. Ms. Mandic downplayed the incident when she was interviewed, describing Respondent’s actions as simply “showing us his handgun.” Deputy White also contacted Ms. Mandic-Mandaza via telephone and interviewed her, as well as meeting with her to take her statement. She was reticent to discuss the incident with Deputy White and expressed that she did not want to get Respondent in trouble. Respondent was arrested for Aggravated Assault with a Deadly Weapon Without the Intent to Kill and Possession of a Firearm During the Commission of a Felony, and was incarcerated from October 25 to November 2, 2019. On November 21, 2019, the State Attorney for the Fifth Judicial Circuit filed an “Announcement of No Information” on the allegation of Use of a Firearm During the Commission of a Felony and charged Respondent solely with Aggravated Assault with a Deadly Weapon (without Intent to Kill). On March 11, 2020, Respondent plead nolo contendere to the lesser charge of Improper Exhibition of a Firearm, which is a misdemeanor defined in section 790.10, Florida Statutes, and adjudication was withheld. Respondent received credit for eight days served, was placed on a year of probation, assessed court and prosecution costs of $350, and was required to submit to random alcohol screens at least two times per month during probation. Subsequent Events Following his incarceration, Respondent voluntarily participated in mental health counseling and alcohol evaluation. Respondent testified that he “talked about drinking” with the counselor. Respondent further testified that, since the incident, he has “not been drunk like that.” The District placed Respondent on administrative leave with pay through December 2020. Respondent was placed on administrative leave without pay in December 2020, but returned to teach at Dunnellon in March 2021 just before spring break. Following spring break, due to the COVID-19 pandemic, the school moved classes to an online format and Respondent continued teaching in that format throughout the remainder of the 2020-2021 school year. Respondent remains employed by the District and is currently teaching at Dunnellon. Neither Dunnellon nor the District imposed any disciplinary action against Respondent due to the incident and his subsequent arrest. Respondent testified that neither any student nor any fellow teacher has questioned him or made any remark about the incident or his arrest. Petitioner introduced no evidence of any press coverage or community concern regarding the incident. Character Witnesses Stephen Ayers is the director of student assignment and school choice for the District. Mr. Ayers has worked in various educational capacities with the District for 27 years, including as a math teacher, dean, assistant principal, principal, and coordinator for the District. Mr. Ayers met Respondent in 1994 when they were both pursuing their graduate degrees. Mr. Ayers later worked at Dunnellon as assistant principal, then principal, while Respondent served as dean of students. In those capacities, Mr. Ayers was Respondent’s supervisor at Dunnellon. Mr. Ayers described Respondent as “an exemplary dean” and “a mentor with … youngsters.” Mr. Ayers was aware of Respondent’s October 25, 2019 arrest and “the basis and reason for that arrest.” Mr. Ayers testified that he has no doubt Respondent can continue to perform his duties effectively and does not consider Respondent’s effectiveness in the community to be diminished by that arrest. Bobby James retired from the District in 2018 after serving the District for 47 years as a teacher, coach, principal, school board member, and school board chairman for three terms. Mr. James was the principal at Dunnellon in 1994 and hired Respondent as a math teacher. Mr. James remained principal for 12 years and moved Respondent into the dean of student’s position. Mr. James initiated the Young Marines program at Dunnellon and chose Respondent as the first instructor in the program. After leaving Dunnellon for a position with the school board, Dunnellon remained a school in which Mr. James, as a school board member, exercised oversight authority. Mr. James frequently visited Dunnellon and met Respondent and administrative leaders there. Mr. James described Respondent’s performance as an educator and leader of young people as “exceptional,” especially in working with youth who have difficult life challenges. Mr. James was familiar with Respondent’s arrest and “had heard” that a firearm was involved in the October 25, 2019 incident. He was not aware of the specific statements alleged to have been made by Respondent to Ms. Mandic. During cross-examination, Mr. James admitted that, if Respondent had said, “Don’t piss me off, I have a gun and I know how to use it,” that would not be appropriate conduct for an educator, or for that matter, “for any person.” However, Mr. James testified that, given his 25 years of experience with Respondent in service to the District, even knowing the specifics of the incident, he believes Respondent can remain an effective educator. Mr. James testified that Respondent’s character with students and District employees is proven, and indicated that, if he were in a position to do so, Mr. James would rehire Respondent. Ryan Malloy met Respondent through the Young Marines program in middle school when Respondent was the commanding officer of the program (for both high school and middle school). Mr. Malloy left the Young Marines program before high school but has maintained a mentoring relationship with Respondent through his recent graduation from the University of Florida. Respondent taught Mr. Malloy the game of golf and the two play golf regularly. Mr. Malloy testified that Respondent has served as a constant mentor in his life; that when he is really struggling with something, he talks to Respondent. He related that Respondent encourages him to consider both sides of a situation and avoid quick judgments. Mr. Malloy was generally familiar with Respondent’s arrest and the circumstances surrounding the arrest. Mr. Malloy testified that Respondent’s effectiveness as a mentor has not been diminished by the incident. He testified that Respondent has helped him acknowledge his own mistakes and learn from them. Mr. Malloy stated that Respondent taught Mr. Malloy that true character is built by taking ownership of one’s mistakes and using them for self-improvement. Mr. Malloy believes that is an important trait for all teachers to be effective role models. Linda Malloy, Mr. Malloy’s mother, retired from the District in May 2019, was a fellow teacher with Respondent at Dunnellon for 24 years, and second in command of the Young Marines with Respondent for 10 years. She described Respondent as strict, honest, and fair. She admired his ability to reach students through Young Marines and help them turn their lives around when they were headed “down the wrong path.” Ms. Malloy was familiar with Respondent’s arrest and the fact that a gun was involved in the October 25, 2019 incident. Ms. Malloy testified that Respondent can remain an effective educator because she “believe[s] in his core values.” She trusted him with her own child and still would to this day. Ms. Malloy has not heard anyone in the education community suggest that Respondent should not continue to teach. Sharon Lambert has taught at Dunnellon for 22 years and currently teaches business technology and serves as the teachers’ union representative. Respondent was in charge of the Young Marines when Ms. Lambert began teaching at Dunnellon. Her impressions of Respondent as an educator are that he cares about his students, wants to help them succeed, and “would do anything to help them learn what he’s supposed to teach.” Ms. Lambert was familiar with Respondent’s arrest. She testified that the incident has not had any negative affect on his ability to teach his students. To her knowledge, since Respondent returned to the classroom, there has been “no talk amongst the students or the teachers” concerning the incident or Respondent’s ability to teach. Respondent also introduced a letter from Jay Easom, who served as president of the Dunnellon School Advisory Council (“SAC”) from 2007-2010 and is familiar with Respondent in that capacity, as well personal conversations with him. The letter relates as follows: I am writing on behalf of “Captain Chin.” I am acquainted with him for more than ten (10) years. I’ve had the opportunity to know him in his capacity of leadership at our local high school as well as our personal conversations detailing his desire to be responsible to his family. He always plans well and stands firmly in his commitment to reach his personal goals for the benefit of his family. I can’t tell you how surprised I was when [Respondent] shared with me the events of October 25, 2019 that resulted in him being charged. I instantly detected his regret and disappointment. The idea of [Respondent] bringing harm to anyone escapes my consideration especially in the handling of a firearm. My children attended and graduated from [Dunnellon]. I know [Respondent] in this period during my participation as president of the [SAC] from 2007-10. I learned more about [Respondent] when as a part of our meetings, he introduced proud young men and women to share their outlook for the future that had joined Young Marines. He provided a path of personal development for them and I am sure that his peers will tell you that his hard work, dedication, and friends in the community supported the program because of his commitment. I expect that [Respondent] has a plan to be sure that there will never again be such an event in his life as this. I hope that you may have the opportunity to give him further consideration as his employer, students, peers, and friends have over a very difficult year and a half. Thank you. Respondent also introduced the following letter from Jeffery Daniel Ratliff: To whom it may concern, Captain Calvin Chin has been, and still is, one of my largest influences throughout my life. I still remember the very first time I met him, and that was over 20 years ago. It was my first day in a new school, an entirely new state, at [Dunnellon]. While waiting with my parents in the front office to get registered for classes, in walks this Marine wearing freshly starched cammies with flickering silver and gold on his uniform, and it was at that moment that I decided to become a Marine. Over my high school career Captain Chin shaped and guided me in a way that only a true leader can. When my temper or overzealousness got the best of me, he did not hesitate to punish me but always ensured that a lesson was learned. When I was unable to understand the mathematic teachings of Mr. Gaitanis’ overeducated ramblings, Captain Chin would break it down simply for me and insist that I already knew how to do it. And he was right! When I left for Marine Corps bootcamp, he gave me some last-minute advice, but insisted that I would do fine … as long as I didn’t ask too many questions. He was right about that too. When I got back from Iraq and needed another Marine to vent to about what I saw, he was there for me. He wasn’t judgmental at all. After the Young Marines program was removed from the high school, he chose to keep it active and open it up for all ages from 8 to eighteen. He even encouraged me to come volunteer after I had gotten out of the Marines. I did not have the patience or understanding to deal with such young children at the time, but Captain Chin did. Even though I have two loving parents who are still together, and love me very much, I still refer to Captain Chin as my Adopted Asian Dad. I have seen this man motivate, influence and inspire so many young minds over the years that I lose count. As Dean at the high school, the kids who he had to punish still respected him and find him years later to tell him that they are doing so much better now, because he showed them respect first. It is impossible to fit everything that Captain Chin has done to help me, influence me on one page. Just know that this is one of the most selfless human beings I have ever met, that has committed his entire life to serving and helping others, and will continue to do so until he is no longer physically able. Respondent also introduced his final evaluation from the District for the 2020-2021 school year on which he received the rating of “Effective” on all four instructional practice domains in which he was assessed. Respondent became emotional during his testimony at the final hearing. Petitioner introduced, and played for the undersigned, body-camera footage from the responding officers on October 25, 2019. Respondent was ashamed and remorseful of his behavior on the night of the incident. Respondent was dismayed by his own behavior and it obviously pained him to watch the video footage.
Conclusions For Petitioner: Ron Weaver, Esquire Post Office Box 770088 Ocala, Florida 34477-0088 For Respondent: Mark Herdman, Esquire Herdman & Sakellarides, P.A. 29605 U.S. Highway 19 North, Suite 110 Clearwater, Florida 33761-1526
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)(f), but, based on the Findings of Fact herein, including substantial factors in mitigation, take no action against Respondent’s certificate. DONE AND ENTERED this 29th day of September, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: S SUZANNE VAN WYK Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of September, 2021. Lisa M. Forbess, Executive Director Education Practices Commission Department of Education Turlington Building, Suite 316 325 West Gaines Street Tallahassee, Florida 32399-0400 Ron Weaver, Esquire Post Office Box 770088 Ocala, Florida 34477-0088 Anastasios Kamoutsas, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Mark Herdman, Esquire Herdman & Sakellarides, P.A. Suite 110 29605 U.S. Highway 19 North Clearwater, Florida 33761-1526 Randy Kosec, Jr., Chief Office of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue Whether Petitioner is entitled to participate in the Florida Retirement System (FRS) from January 1, 2000, through June 13, 2002, on the basis of his employment with Florida Community College at Jacksonville (FCCJ).
Findings Of Fact Petitioner, Robert Burns, has been employed as an adjunct instructor of FCCJ since March 1989. FCCJ is a member employer under FRS. Adjunct instructors traditionally have been employed by FCCJ on a class-by-class, semester-by-semester basis, and have no expectation of employment beyond any single semester. Petitioner knew this from his date of first hire. When Petitioner began work with FCCJ, all adjunct instructors were given a contract for each term and each course. This practice continued for all instructors and classes until the year 2000. Despite the semester-to-semester, repetitive contracts, occasionally Petitioner's courses were of a duration longer than one semester, and Petitioner was sometimes evaluated only on an annual basis. These evaluations were for purposes of certifying Petitioner and similarly situated adjunct instructional personnel for further semester contracts. At all times material, Petitioner taught on three campuses and taught college courses in biology and earth science; acted as a facilitator in the laboratory; and taught Adult Studies courses. At all times material, sixty percent of Petitioner's time was spent teaching Adult Studies courses. From 1989 until January 1, 2000, Petitioner was provided semester contracts for each of the three foregoing functions: college courses, lab facilitation, and Adult Studies courses. Every contract clearly acknowledged, in pertinent part, 3. This contract shall at all times be subject to any and all laws, Florida State Board of Education Rules and Florida Community College at Jacksonville Board of Trustees rules and regulations now existing or hereinafter lawfully enacted or promulgated. In furtherance thereof, the Contractor expressly agrees to become aware of and comply with all such applicable regulations, including but not limited to those addressing discrimination/affirmative action and sexual harassment. * * * The Contractor agrees and understands that he/she is not entitled to receive benefits made available by the College to its full-time employees. The Contractor further agrees and understands that his/her services are of a temporary nature, and that the College does not agree to provide the Contractor with any future employment or contract whether temporary, permanent or otherwise. The relationship hereby created between the Contractor and the College shall be deemed to have been voluntarily terminated by the Contractor upon the termination or expiration of this agreement. The Contractor agrees and understands that the compensation described herein is the entire compensation due to Contractor for performance of services pursuant to this contract. Specifically, Contractor agrees and understands that he/she shall not be entitled to wages or hours similar to those provided to College employees. * * * 9. The Contractor and the College understand and hereby agree that this contract does not and shall not be deemed to create an employment relationship. From January 1, 2000, through June 2002, Petitioner was not provided individual contracts for his Adult Studies classes, but was provided contracts for his other courses and lab facilitation work. In 2000, FCCJ began implementing a new computer system and, as a result, some adjunct instructors were not given individual contracts for each course. Adult Studies was one program area where time cards, rather than individual contracts, were used. No one at FCCJ ever told Petitioner that he had become a full or part-time employee, as opposed to an adjunct instructor. At various times during the period after January 1, 2000, Petitioner and other adjunct instructors approached Dean of Adult Studies, Lloyd Watkins, and asked him where their contracts were. The Dean inquired of FCCJ's Human Resources Department and was told there were too many contracts to do and so they would not be issued. It is not certain that Dean Watkins ever conveyed this information to Petitioner. However, throughout the period at issue, Petitioner used the time cards and understood that his employment was on a class by class, semester by semester basis. The issue of FRS benefits vis-á-vis independent contractor status did not arise until after Petitioner had been terminated.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement enter a final order denying Petitioner's request to participate in FRS from January 1, 2000, through June 13, 2002. DONE AND ENTERED this 14th day of January, 2003, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of January, 2003. COPIES FURNISHED: Al Millar, Esquire 4627 Ocean Street Mayport, Florida 32233 Thomas E. Wright, Esquire Department of Management Services 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950 Erin Sjostrom, Director Division of Retirement Department of Management Services Cedars Executive Center 2639 North Monroe Street, Building C Tallahassee, Florida 32399-1560 Simone Marstiller, General Counsel Department of Management Services 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950
The Issue Whether Respondent violated sections 1012.795(1)(g) and 1012.795(1)(j), Florida Statutes, and Florida Administrative Code Rules 6A-10.081(2)(a)1. and 6A-10.081(2)(c)1., as alleged in the Administrative Complaint; and, if so, what disciplinary penalty should be imposed.
Findings Of Fact Based on the evidence, testimony, and stipulated facts, the following Findings of Fact are made. The Commissioner is the head of the state agency, the Florida Department of Education, responsible for investigating and prosecuting allegations of misconduct against individuals holding Florida educator certificates. Upon a finding of probable cause, Petitioner is then responsible for filing a formal complaint and prosecuting the complaint pursuant to chapter 120, if the educator disputes the allegations in the complaint. Respondent holds Florida Educator Certificate No. 834897, covering the areas of elementary education, English for Speakers of Other Languages (“ESOL”), and varying exceptionalities, which is valid through June 30, 2023. At the time of the allegations in the Administrative Complaint, Respondent was employed as an exceptional student education (“ESE”) teacher at Wyomina Park Elementary School (“WPES”) in the Marion County School District (“MCSD”). Ms. Miller has served as an elementary education teacher since the 2000-01 school year. Thus, she has a 20-year career with MCSD. From 2008 to 2018, Respondent taught third, fourth, and fifth grades at Reddick Collier Elementary (“Reddick Collier”’). Since she holds certification in ESE, she also taught ESE inclusion students in her general education classrooms. However, she has never taught a classroom of only ESE students. In 2018, Respondent’s value-added model (commonly referred to as VAM) scores rendered her ineligible to continue teaching at Reddick Collier because it was one of the District’s lowest performing schools. As a result, she was involuntarily transferred to WPES. Ms. Baxley testified that Respondent was initially assigned to teach students with academic issues, not behavioral issues. The initial assignment was consistent with her experience and previous work with ESE inclusion students. Respondent had maintained certification in ESE so that she could better serve academically low-performing ESE students in a general education inclusion environment. While Respondent had training in an inclusion environment, she did not have training or certification in Treatment and Education of Autistic and Communication Handicapped Children (“TEACCH”) or Crisis Prevention Intervention de-escalation techniques for use with students with behavioral issues. Ms. Baxley believed that Respondent had been trained to work with children with behavioral issues. After the initial assignment, students were reassigned between Ms. Miller and Patricia Poag. Respondent became responsible for only students with behavioral issues. Some of the students assigned to Respondent had extensive behavioral issues to the extent they required medication treatment. Respondent’s new assignment was a kindergarten through second grade self-contained ESE class of 12 to 13 students. Generally, a self- contained ESE classroom is a group environment with students who have special needs. Respondent’s students required increased supervision, structure, visuals, and very specific direct instruction. Respondent, Ms. Davis, and Ms. Poag testified that the classroom assignment was very “challenging, overwhelming, and distressing.” The new classroom structure included six or seven more students than previously assigned. Respondent had one paraprofessional to assist with supervision of the students. Respondent requested additional staff support, but never received it. In addition to learning to navigate the struggles with the student’s behavioral issues, Respondent was struggling with paperwork. Respondent made the effort to get help with completing necessary documents and learning how to complete IEP’s and behavior plans. She had no experience in completing these documents, or in working with “severe maladaptive behaviors” before being assigned to WPES. Allegations Involving Classroom Management As an ESE instructor, Ms. Miller’s primary responsibility was to ensure compliance with services or accommodations required for ESE students assigned to her classroom. Gina Gazzaniga is the MCSD ESE specialist. Her primary responsibility is to ensure compliance with services/accommodations required for all ESE students. Ms. Gazzaniga visited Respondent’s classroom. While in Respondent’s classroom, Ms. Gazzaniga observed students run on tables, throw items, and elope from the classroom unsupervised. Ms. Gazzaniga testified that while students were engaged in this conduct, Respondent did not intervene. Ms. Gazzaniga also testified that when students eloped from the classroom, they would typically go to the Guidance office or the Dean’s office. Ms. Gazzaniga had the Behavior Team (behavior tech, behavior specialist and analyst, and school academic coaches) assist with structure and behavior/classroom management strategies in Respondent’s classroom. The team implemented procedures to help prevent students from eloping. However, Respondent would change the practices the behavior team implemented. Respondent testified that some of the practices put into place were not effective. For example, when tables were lowered, the students increased their jumping from table to table. In addition, the assistance button was not within the reach of the teachers in the classroom. Ms. Gazzaniga’s overall assessment was that she saw “limited improvement, or refusal to follow taught strategies.” Other members of the WPES administration expressed concerns about Respondent’s classroom management. While visiting Respondent’s classroom, Ms. Baxley, along with Kendra Hamby, saw student W.H. pulling the hair of M.D. W.H., a male student, dragged M.D., a female student, by her hair as she screamed. Ms. Baxley testified that she heard Respondent say “stop.” Ms. Baxley then approached the students and removed W.H.’s hand from M.D. so that he would “stop pulling M.D. around like a caveman on the floor.” Ms. Baxley testified that Respondent did not intervene to help M.D., but rather “she just stood there.” Ms. Hamby testified that “Ms. Miller was standing there, not intervening, not saying or doing anything. So that was extremely concerning.” On another occasion, while in Respondent’s classroom, Ms. Baxley saw students hitting each other with containers. Ms. Baxley testified that Respondent did nothing to intervene. Respondent testified that she approached the students and instructed them to return the containers. Jennifer Foster was a paraprofessional assigned to Respondent’s classroom. On one occasion two students were running around the room, fighting, and chasing each other. Ms. Foster tried to “get in the middle to separate them and they both ran behind the big solid wooden table.” When Ms. Foster went in front of the table in an effort to separate them, the two students picked up the table and tossed it over on the side. Ms. Foster was able to move one foot out of the way, but the table landed on her other foot. Ms. Foster testified “I eventually got up and hobbled over to push the panic button and asked for assistance.” Her foot was injured as a result of the incident involving the students. Ms. Foster indicated that Respondent did not assist her. Allegations Involving Failure to Supervise Students In addition to concerns about classroom management, the Administrative Complaint alleged Respondent failed to supervise students. One of those incidents involved K.C. K.C. was one of Respondent’s kindergarten students. He is an ESE student with a medical condition. On September 6, 2018, a teacher informed Assistant Principal Troy Sanford that Respondent’s student, K.C., was found standing at the exit door of a hallway that opens to the playground. Mr. Sanford saw K.C. approaching the exit doors to the playground alone at 11:24 a.m. K.C. stood there alone until 11:29 a.m., at which time the teacher spoke to K.C. After consulting with another teacher, Ms. Hawthorne, about where K.C. belonged, the teacher took him to Respondent’s classroom. Respondent denied allowing K.C. to stand alone in the hallway for several minutes. She testified that while standing at her classroom door, awaiting the arrival of students coming from the restroom, K.C. began to walk from Ms. Davis toward her. This was customary for her students if children needed additional time in the restroom. As K.C. got close to Respondent, L.G.R. began climbing on the top shelf of a bookcase in the classroom. Since their routine was for the students to come into the classroom, she assumed K.C. would follow the customary practice and enter the classroom. Respondent testified that she made a judgment call to turn her attention to L.G.R. to ensure his safety and prevent harm to him. Instead of entering the classroom, K.C. walked down the hallway. Based on the totality of the circumstances, Respondent’s actions were reasonable. A second incident involved a different student. Two first-grade teachers, Nancy P. Neal and Ireina Hawthorne, were outside on the playground with their students. When recess was over, they were gathering their students and doing a head count to go back inside to their classrooms when they noticed there was “an extra child” in line. The student did not belong in their classroom. The student was nonverbal so they could not determine to which classroom he belonged. Ms. Hawthorne assumed that he belonged in Respondent’s class and took the student to Respondent’s classroom. When Ms. Hawthorne took the student to Respondent’s classroom, Respondent “ushered him into the classroom.” Respondent testified that she was in the hallway, counting her students before going to her classroom. She explained that she had a substitute paraprofessional, Ms. Foster, who did not know all of her students. In addition, this was the first time she had Ms. Foster serve as a substitute. To help remedy the issue regarding the student left outside, Respondent asked her assigned paraprofessional not to take breaks or lunch during recess. Whether Respondent was in her classroom (as stated by Ms. Hawthorne) or in the hallway, the student was left outside without her supervision, which could be harmful to the student’s safety. A third incident related to supervision involved student L.G.R. On October 19, 2019, L.G.R. entered Ms. Gazzaniga’s office and hid under a table. The evidence offered at hearing demonstrated that when the student eloped from the classroom, Respondent immediately followed the student into the guidance office. However, she did not see the L.G.R., so she continued to search for him. A minute or so later, Ms. Gazzaniga saw Respondent walk down the hallway towards the main office. Respondent later learned the student was in the guidance office at the time she initially searched that location. However, Ms. Gazzaniga did not alert Respondent that L.G.R. was in her office. Ms. Gazzaniga testified that she “kept an eye on him while he was there.” After a short time, Ms. Gazzaniga went over to L.G.R. and spoke to him. He came from under the table and went to the doorway of the office. At the same time, Respondent was walking back down the hallway and saw L.G.R. and took him back to her classroom. The credible evidence demonstrates that Respondent made reasonable efforts to locate the student by searching for him immediately after his elopement from the room. DP-3 Assessment On September 10, 2018, Ms. Scott gave Respondent a Developmental Profile Third Edition (“DP-3”) to complete for student A.M.S. Students who are developmentally delayed must have a DP-3 completed for re-evaluation to determine what ESE services need to be continued. A DP-3 is an assessment tool used to evaluate nonverbal or low achieving students that have not reached the cognitive level to take an IQ test. MCSD uses the DP-3 to assess the student’s level of achievement. The DP-3 assesses five areas of development, including the child’s cognitive functioning, physical development, communication skills, social, emotional, and adaptive skills. The assessment is completed by completing a series of questions on whether a student can or cannot perform a particular task. Respondent returned the DP-3 to Ms. Scott on September 25, 2018. Respondent circled items indicating a “yes” response. During the hearing, however, Respondent acknowledged the student would not be capable of performing the tasks. In addition, Ms. Scott did not believe A.M.S. could perform the skills for which Respondent answered yes. Based on the evidence offered at hearing, some of the responses Respondent provided on the DP-3 were inaccurate. Performance Assessments Throughout her career, Respondent had been assessed as progressing or effective related to instructional practice as an educator. For the 2018 informal classroom teacher instructional assessment performed by Ms. Baxley, Ms. Cino, and Mr. Sanford, Ms. Miller was assessed as unsatisfactory in multiple areas.1 However, in the areas of criticism, it was also noted that Ms. Miller was engaged in instruction of students. Interestingly, she was criticized for a child wandering to her desk, and then, criticized for leaving the group of students she was working with to redirect the wandering student. In another instance, the observers were critical of a Positive Behavioral Interventions Support plan but Ms. Miller was never trained in the area of behavioral management. For the 2019 informal classroom teacher evaluation, Ms. Miller was assessed effective in each category, including areas where she was assessed unsatisfactory in 2018. Disciplinary Action at WPES For the first time in her career, Respondent received disciplinary action while working at WPES. On or about September 10, 2018, Respondent was issued an oral reprimand for purported failure to supervise the students assigned to her. On or about September 26, 2018, Respondent was issued a written reprimand for misconduct for purported falsification of documents. On or about October 26, 2018, Respondent was issued a written reprimand for alleged failure to supervise a student assigned to her. On or about November 26, 2018, Respondent was issued Step One progressive discipline for substandard performance due to behavioral concerns in her classroom and failure to report grades. On or about December 11, 2018, Respondent was issued a Step Two verbal reprimand regarding substandard performance. 1 In 2018, Ms. Miller was assessed unsatisfactory in the following areas: 2b. establishing a culture for learning, managing student behavior; 3b. using questioning and discussion techniques; and 3c. engaging students in learning. On or about December 18, 2018, Respondent was issued a Step Three progressive discipline written reprimand regarding substandard performance. Respondent’s educator certificate has no prior discipline.
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 the statues and rules as referenced above; Respondent be placed on probation for a period of two years, with conditions to be determined by the Education Practices Commission. DONE AND ENTERED this 31st day of March, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: S YOLONDA Y. GREEN Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 2021. Emily Moore, Esquire Florida Education Association 213 South Adams Street Tallahassee, Florida 32301 Lisa M. Forbess Interim Executive Director Education Practices Commission 325 West Gaines Street, Room 316 Tallahassee, Florida 32399 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Ron Weaver, Esquire Post Office Box 770088 Ocala, Florida 34477-0088 Randy Kosec, Jr., Chief Office of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issue is whether petitioner's request for an exemption from disqualification from employment in a position of special trust should be granted.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: This case involves a request by petitioner, Damon L. Lee, for an exemption from disqualification from employment in a position of special trust. If the request is approved, petitioner intends to work in a developmental services facility for retarded persons. Respondent, Department of Health and Rehabilitative Services, is the state agency charged with the responsibility of approving or denying such requests. Petitioner is now barred from working in such a facility because of a disqualifying offense which occurred on June 1, 1994. On that date, petitioner was arrested for the offense of "battery on spouse, domestic violence," a misdemeanor. On the evening of June 1, 1994, petitioner went to the residence of his girlfriend in Baldwin, Florida, where he discovered that another male was present. As he started to leave the premises, his girlfriend, who was four months pregnant, followed him outside and an altercation ensued. She took a broom and began smashing the windows of petitioner's vehicle, causing $458.32 in damages. While attempting to stop her, petitioner grabbed his girlfriend and pushed her to the ground. Although not seriously injured, the girlfriend received marks on her body where petitioner grabbed her. After an investigation was conducted by local law enforcement officials, petitioner was arrested and charged with domestic violence. Whether petitioner pled guilty or nolo contendere to the charge is unclear. In any event, on July 13, 1994, he was given three months supervised probation and was required to enroll in, and complete, an anger control class. Thereafter, he successfully completed all terms of probation and a six-week anger control class. Other than this incident, petitioner has never been charged with any other crime. After being disqualified from employment, petitioner appeared before a three-person committee composed of local HRS employees seeking an exemption. At that time, he was told that his request was being denied because he had not brought to the hearing proof that he had successfully completed the terms of his probation and the anger control class. This proceeding followed. When the incident occurred, petitioner was employed by Jacksonville Electric Authority (JEA). Because of his arrest, however, JEA terminated his employment. For the same reason, he was denied employment with AT&T Corporation. He eventually obtained employment as a program assistant with Kincaid Cluster Homes, a facility for retarded persons in Jacksonville, Florida, where he worked for six weeks until the disqualifying offense was discovered. He is presently enrolled in a special HRS program known as the Project Independence Program for food stamp recipients since he has custody of, and is caring for, two small children. Petitioner, who is twenty-three years of age, has completed course work at Lake City Junior College and is now enrolled at Florida Junior College in Jacksonville seeking to attain a degree in computer programming. He desires an exemption so that he can work on a part-time basis at Kincaid Cluster Homes, which has promised to rehire him if his request for an exemption is approved. Besides needing the income for college, petitioner also has children who rely upon him for their support. Petitioner was described as a responsible, reliable worker at Kincaid Cluster Homes and is well-liked by the staff and clients. This was not contradicted. He will not present a danger to the safety or well-being of that facility's clients. Based on petitioner's own testimony, as corroborated by letters from third parties, and the testimony of his former co-worker at Kincaid Cluster Homes, it is found that petitioner has presented sufficient evidence of rehabilitation so as to justify approving the exemption.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Health and Rehabilitative Services enter a final order granting petitioner's request for an exemption from disqualification for employment in a position of special trust. DONE AND ENTERED this 27th day of August, 1996, in Tallahassee, Florida. DONALD R. ALEXANDER, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of August, 1996. APPENDIX TO RECOMMENDED
The Issue The issue in this case is whether to impose sanctions against Respondent, Brooke Braly, up to, and including, revocation of her Educator’s Certificate.
Findings Of Fact The Commissioner is responsible for monitoring each person who holds a Florida Educator Certificate and who is working in any school district within the State. Part and parcel of the Commissioner’s duties is the determination of whether any teacher violated any of the Principles of Professional Conduct for the Education Profession. At all times relevant hereto, Ms. Braly held Florida Educator Certificate No. 1106771, covering the areas of elementary education and English for speakers of other languages. The certificate is valid through June 30, 2021. Ms. Braly is employed as a teacher in the Volusia County School System, teaching at the School in the area of Modified ESE with Varying Exceptionalities. Her students were those with physical and/or mental disabilities which resulted in learning difficulties. Ms. Braly had served in that position for seven years as of the date of final hearing, including the 2017-2018 school year. An incident occurred at the School on December 5, 2016, i.e., the 2016-2017 school year, involving the Student. Based on that incident, the Commissioner issued an Administrative Complaint on November 21, 2017 (some 10 months later), which contained the following allegations: On or about December 5, 2017, [Ms. Braly] failed to notify school administrators after she confiscated a BB gun from a student at the beginning of the school day. [Ms. Braly] also failed to properly secure the BB gun to prevent the student from regaining possession of it while still on school property. The Salient Facts From the evidence presented, it is clear that on December 5, 2016, the Student approached Ms. Braly at the beginning of the school day. The Student told Ms. Braly that he had inadvertently failed to remove his BB/airsoft pistol from his backpack before leaving for school that morning. He asked her what he should do, and Ms. Braly took the gun from him to secure it for the day. At no time was she worried that the Student had intentions of using the BB gun or that it was a serious problem. In fact, Ms. Braly did not even believe it was a BB gun, but thought it was a plastic toy gun. At the end of the day, the Student took the gun home with him. As the Student was exiting the school bus at his stop that afternoon, another student sitting on the bus saw the BB gun, which the Student had stuck into his waistband under his shirt. The Student’s shirt was lifted for some reason and the other student spotted the gun. That student went home and immediately sent an email to several School administrators to report what he had seen. The administrators reviewed surveillance videos from the bus and identified the Student as the person carrying the gun. An investigation ensued and the Administrative Complaint was filed. The less clear and/or less persuasive “facts” of this case are set forth below. The Gun The Commissioner presented a picture of a BB gun at final hearing which was purported to be the same gun Ms. Braly had confiscated from the Student on December 5, 2016. The black and white picture shows a replica Smith & Wesson handgun of small to average size. Ms. Braly says that the gun depicted in the picture is not the gun she took from the Student. The Student’s father brought a handgun to final hearing that he said was the gun at issue. It was plastic, lightweight, and tan and black in color. There was a clip (presumably for holding BBs) that could slide into the handle of the gun. The father demonstrated how to insert the clip and how to “cock” the gun by sliding back the top portion. That action would engage a spring that would release once the trigger was pulled, i.e., it was a spring-fired pistol, not a recoil action weapon. According to the Student, the gun fired plastic pellets rather than BBs. Ms. Braly, who only saw the gun for a few moments on the morning of December 5, 2016, remembers it to be black with an orange tip, unlike the gun produced at final hearing. At some point, the Student was asked to identify the gun from a picture depicting several different handguns. The Student pointed out to an investigator which of the depicted guns looked most like his BB pistol. The photographic line-up was not offered or admitted into evidence, so no finding is made as to what it may have shown, vis-à-vis what the gun looked like. At the final hearing, the Student’s father acknowledged that he had previously told School administrators he had destroyed his son’s gun back in December when the event occurred. The gun he produced at final hearing was obviously not destroyed; in fact, it looked very new and barely used. The Student said the gun produced at hearing was the same gun he gave to Ms. Braly on December 5, 2016. Mr. Starin, an investigator for the Volusia County School District, was tasked with looking into the incident. He did not speak to the Student’s parents nor did he attempt to locate the gun (other than having the Student identify what the gun looked like from the pictorial lineup). The most persuasive evidence is that the gun given to Ms. Braly on December 5, 2016, was the same as or similar to the one depicted in the Commissioner’s exhibit and proffered at final hearing. It was very light and obviously a toy, but was designed to resemble a real gun. Though it looked somewhat like a real weapon from afar, it is hard to believe anyone who held the gun or saw it up close would think it real or capable of causing serious harm to a person. December 5, 2016 As the Student was walking to his bus stop, he told his sister he had forgotten to remove the BB gun from his backpack after carrying it with him to the park the night before. His sister advised the Student to give the gun to his teacher so as not to get in trouble at school. Upon arrival at the School, the Student immediately approached Ms. Braly, who he trusted and believed would help him do what was most appropriate in this situation. When no other students were nearby, the Student told her about the gun. Ms. Braly took the gun and placed it in her office in a desk drawer. The Student remembers her placing the gun in a cardboard soda can box. Ms. Braly remembers just placing it in a desk drawer. It is patently obvious by his actions that the Student had no intentions of displaying the gun at school for any purpose. He very intentionally tried to diffuse any danger or unease that might have arisen due to his mistake. Ms. Braly took the Student’s actions and demeanor into account when deciding what to do. Ms. Braly thought the toy gun would be safe in her locked office as that was where she kept her purse and car keys during the school day. Normally no one had access to the office during the day, except that construction was going on and some of the workers did have access to the office. Ms. Braly did not consider those workers a threat to steal anything or to rifle through her desk during the day. She also did not consider the toy gun worthy of anyone’s interest. She believed her response to the situation was reasonable, based on all the circumstances and her knowledge of the Student. At the end of the day, the Student retrieved the gun. How that occurred is not entirely clear from the evidence. The Student says that he asked Ms. Braly at the end of the day if he could get his gun. She was very busy at the time and just told him, “yes,” so he went into the office and retrieved it. He remembers Ms. Braly telling him to put it in his backpack so that no one else would see it. He did so, but then transferred it to his waistband later. An ESE co-teacher with Ms. Braly remembers Ms. Braly being completely absorbed in the preparation of an Individual Education Plan for another student that afternoon. The co-teacher had instructed students not to bother Ms. Braly and does not remember the Student or anyone else talking to Ms. Braly that afternoon. Ms. Braly does not remember being asked by the Student whether he could get his gun from the office. She simply did not even think about the gun after acquiring it that morning. To her, the gun was a toy and did not warrant much attention. Sometime the next day, she realized the gun was gone and surmised that the construction workers must have left the door open so that the Student was able to get his gun. She did not explain why she thought the Student – rather than the workers – had taken the gun from her office. At any rate, the Student retrieved his gun before he left for home. As he was exiting the school bus, the other student noticed the gun in his waistband and notified School administrators. That action is very understandable considering the school shootings across the nation in recent times. December 6, 2016 Once the school administrators got word about the gun and identified the Student, they contacted Ms. Braly. The School resource officer, Deputy Abato, went to Ms. Braly’s class and asked to talk to her. They went into her office, away from the students, and she was asked about the gun. The conversation lasted only a few moments. Deputy Abato was only concerned with whether the gun was real or not. Convinced it was not, he did not pursue the matter. Later, Ms. Braly was asked by assistant principal Feltner to write a statement concerning the incident. Her statement reiterated what had happened, i.e., the Student showed her the gun, she identified it as a toy and placed it in her office, and the Student later retrieved it. Again, how she knew that the Student retrieved the gun rather than someone else getting it is not clear. Deputy Abato’s statement from that same day mirrored Ms. Braly’s statement. Deputy Abato said that if a student pulled a gun on him that looked like the one in the picture offered into evidence, he would order the student to put the gun down. If they did not do so, he would likely shoot them. Whether the gun the Student had was like the picture is not clearly established in the record. The best evidence is that the gun could have looked like that, but even that evidence is neither clear nor convincing. The gist of the Commissioner’s argument in this case is that: IF an armed deputy saw the Student with the gun, and IF the deputy ordered him to put it down, BUT the student did not immediately comply, THEN the deputy MIGHT be inclined to fire on the student. Though completely plausible in general terms, that eventuality seems very unlikely under the facts of this case. Later Developments On December 15, 2016, Investigator Starin issued an “Investigative Summary” describing his findings after conducting a brief investigation. The report did little more than recite what other people had said. Mr. Starin concluded that the Student brought the gun to school, gave it to his teacher, and retrieved it at the end of the day. The summary provides little substantive information and makes no recommendation or assertion of wrongdoing by Ms. Braly. The investigator only talked to three people as part of his minimal investigation into the incident on December 5, 2016: Ms. Braly; Deputy Abato, who had only secondhand knowledge; and the Student. It is remarkable that Mr. Starin did not interview Ms. Braly’s co-teacher or her paraprofessional, both of whom were in the classroom that day, or the Student’s parents. The overall level of the investigation is consistent with the degree of seriousness of the events. That is, there was a slight breach of protocol, but no probability of harm to the Student or others at the School. The Board decided that the incident nonetheless warranted some discipline. The School Board notified Ms. Braly that a letter of reprimand would be issued and she would be suspended for three days without pay. Although this was a fairly low level of discipline, Ms. Braly has challenged it; the matter is currently in arbitration. Notwithstanding the discipline imposed, the Board has re-hired Ms. Braly for the 2018-2019 school year in the same position she has held for the past seven years. In fact, she has continued teaching at the School since the December 5, 2016, incident. She is an effective teacher and has not had any other disciplinary actions against her, and the School recognizes her as an effective ESE teacher. The Commissioner also seeks to discipline Ms. Braly, noting that she failed to report the incident and did not adequately secure the toy gun. Both of these allegations are true, whether they violate any particular policy or not. The Commissioner proposes a letter of reprimand, suspension of Ms. Braly’s Educator Certificate for six months, and two years of probation. However, based on the best evidence available, Ms. Braly’s conduct was both reasonable and essentially benign. If any sanction against Ms. Braly was warranted, it should be minimal at worst.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Pam Stewart, as Commissioner of Education, dismissing the Administrative Complaint filed against Respondent, Brooke Braly, in its entirety. DONE AND ENTERED this 22nd day of August, 2018, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 22nd day of August, 2018. 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) Branden M. Vicari, Esquire Herdman & Sakellarides, P.A. Suite 110 29605 U.S. Highway 19 North Clearwater, Florida 33761 (eServed) Ron Weaver, Esquire Post Office Box 770088 Ocala, Florida 34477-0088 (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)
The Issue The issue is whether Petitioner should receive an exemption from employment disqualification pursuant to Section 435.07, Florida Statutes.
Findings Of Fact Petitioner is seeking this exemption from dis- qualification because she desires to work at Arnette House, a DJJ contract provider. Myra Burks is the manager of DJJ’s background screening unit. Ms. Burks reviewed all of the background screening information received regarding Petitioner, including her criminal history. Petitioner’s criminal history included two disqualifying offenses. In 1982, Petitioner was charged with Grand Larceny. She pled guilty and was placed on probation for two years and was ordered to pay restitution and court costs. Also in 1982, Petitioner was charged with Obstructing a Law Enforcement Officer with Violence. She was found guilty and sentenced to five years in prison. Petitioner served six months in prison and then worked in a work release program in Gainesville, Florida. Initially, Ms. Burks considered two other offenses to be disqualifying: a 1985 charge of Parole Violation-Aggravated Assault, and a 1992 charge of grand larceny. At hearing, Ms. Burke acknowledged that neither of these offenses was disqualifying as there was no documentation of conviction as to the 1985 parole violation-aggravated assault charge, and the 1992 grand larceny charge was reduced to petit theft. After being released from prison, Petitioner moved to Alabama where she worked as a 911 dispatcher for the Lowndes County Sheriff’s Department. She returned to Florida in 1991. Petitioner was arrested in 2002 for False Report of Child Abuse or Neglect. She pled guilty and adjudication of guilt was withheld. She was placed on probation for two years, which she completed in one year. At hearing, Petitioner offered some explanation as to the two disqualifying offenses, which occurred 27 years ago. Petitioner explained that she was only 19 at the time of those offenses. The resisting arrest incident happened at her parents’ home where an officer came to arrest her. Petitioner and her sister resisted Petitioner's being arrested and taken from the home. As to the 2002 incident, Petitioner explained that while working at a doctor’s office, a child patient told her things which others ignored. She maintains that she did not falsify the report, believed the child was in trouble, and was trying to help the child when she made the report. Despite her having entered a plea of guilty, her testimony regarding this incident is deemed credible and is accepted. In 2003, Petitioner obtained employment at the Centers, Inc., and worked there for six years until she resigned. She has also worked for Timbrook of Ocala and Genesis House of Ocala. These facilities assist youth who are homeless or their parents cannot handle on their own. Petitioner has taken classes and has obtained certification as a NAPPI trainer, completed child care training and certification through Central Florida Community College in working with angry and resistant youth, and holds various certificates from other entities. She also completed various training classes while working at the Centers. The Program Manager at the Centers wrote a letter of recommendation for Petitioner stating that she was dependable, punctual, detailed, and helpful. Petitioner has received exemptions from employment disqualification from the Agency for Persons With Disabilities to work with children and persons with developmental disabilities; the Department of Children and Family Services making her eligible to be considered for employment/licensing in a caretaker position; and the Agency for Health Care Administration for patient care employment. On September 14, 2007, her civil rights were restored by the Office of Executive Clemency. Petitioner is a mother and grandmother. She volunteers to work with “kids” in the community including being involved with Sunday school with the youth in her church. Petitioner is a member of the choir in her church. Based upon her review of Petitioner's file, Ms. Burks recommended that Petitioner be disqualified. Ms. Burks’ recommendation, however, was based on her initial belief that Petitioner had four disqualifying offenses. As noted above, Ms. Burks acknowledged at hearing that Petitioner only had two disqualifying offenses, both of which occurred 27 years ago. Petitioner presented meaningful evidence of rehabilitation. She has attended many classes to receive training in areas of caring for others and in troubled youth. She is active in her community as a volunteer and at church, and she genuinely likes to work with youth.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent enter a final order granting Petitioner an exemption from disqualification. DONE AND ENTERED this 15th day of December, 2009, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of December, 2009. COPIES FURNISHED: Flora Osborne 1425 Northwest 109th Avenue Ocala, Florida 34482 Kimberly Sisko Ward, Esquire Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399 Frank Peterman, Jr., Secretary Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399 Jennifer Parker, General Counsel Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399
