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 Whether the teaching certificate of Respondent John Eugene Armstrong should be suspended, revoked or annulled.
Findings Of Fact The Petitioner Professional Practices Council seeks to revoke Respondent John Eugene Armstrong's teaching certificate based on a recommendation filed September 20, 1976, by Hugh Ingram, Administrator of the Council. The Council alleges that the Respondent is guilty of gross immorality and that he failed to perform his duties as educator as required by Section 231.09, Florida Statutes. Pursuant to the raising of the issue of fairness and constitutional guarantees by the hearing panel of the Professional Practices Council and without admitting the validity of the issue, the Council relinquished jurisdiction of the cause and requested that jurisdiction be assumed by a Hearing Officer from the Division of Administrative Hearings. The Petition for the Revocation of Teacher's Certificate filed by the Petitioner on October 7, 1976, contended that Respondent John Eugene Armstrong: "1. On August 16, 1967, at 4:00 p.m. made two threatening phone calls to Mr. Claude O. Hilliard, former principal, using pro- fane language; On or about January 14, 1975, made an obscene gesture with his fingers to Linda Rhodes, a student; On or about June 20, 1975, confronted Mrs. Marilyn H. Bagby, Coordinator EMR, in a classroom and made threatening remarks; On or about November 10, 1975, entered the girls' locker room when the girls were dressing out for class as observed by Coach Ruth Stevens and Coach Geraldine Williams; On or about November 10, 1975, in rela- tion to the incident in Number 4, threatened Ms. Ida L. Shellman, Administrative assistant; On or about December 10, 1975, fondled the upper portion of Gwendolyn Lowe's, a student's, body; On January 29, 1976, in the presence of Mr. R. L. Ballew, Director, Area I, made accusations against Mr. Milton Threadcraft, principal, in a threatening manner; On March 3, 1976, struck Lavern White, a student, on or about his neck causing bruises; On March 12, 1976, struck Johnny Hill, a student lacerating his upper lip; The Respondent Armstrong was first employed by the Board of Education in the public schools of Duval County, Florida, in 1952. He holds valid Florida Teaching Certificate Number 401436. In 1973 he was assigned to Northwestern High School to teach industrial arts and was assigned to teach classes of educable mentally retarded (EMR) students. He taught special education industrial arts classes consisting of seventh and eighth grade students. Respondent stated that he had attempted to obtain a transfer from the Northwestern School on a number of occasions both because of dissatisfaction with the facilities and because of harassment he received from the administration. He stated that discipline was a major problem among EMR students. Various witnesses were called to testify and findings in regard to the aforementioned charges are as follows: The charge that Respondent made threatening phone calls to Mr. Claude O. Hilliard, former principal, using profane language was not proved. The charge that Respondent made an obscene gesture with his fingers to Linda Rhodes, a student, was denied by the Respondent who stated that he did not know what an obscene gesture meant. The student testified that he "shot a bird" at her and demonstrated by position of her fingers. She was a member of Respondent Armstrong's class two years ago and was advised by her counselor, Mrs. Shellman, to write out a complaint against Respondent. Upon observing the demeanor of the witnesses, I find the Respondent did make such a gesture to Linda Rhodes, a sixteen year old student. Considering the testimony of the Respondent and of Mrs. Marilyn H. Bagby, the Hearing Officer finds that Respondent was upset and did in fact make remarks to her concerning a report she made subsequent to her observation of Respondent's teaching and room atmosphere which he had not received and that the witness Bagby was in fact frightened by the presence of the Respondent in her room alone, his close proximity and his tone of voice on or about June 20, 1975. She verbally reported the incident to her supervisors and later made a written report of the incident. Respondent testified that if he threatened her he did not recall it. The Respondent admitted that he did in fact enter the girls locker room when the girls were dressing out for class on or about November 10, 1975. The evidence does not show that the entrance into the girls locker room was for an immoral purpose although he knew or should have known he should not have entered when the girls were in various stages of undress. Considering the testimony of the Respondent and Mrs. Ida L. Shellman, Administrative Assistant, concerning the locker room incident, the Hearing Officer finds that by Respondent's presence with his hands in his pockets, his remarks and his general tone of voice, Mrs. Shellman was in fact threatened and frightened. Respondent testified that he did not recall his conversation relative to the incident as being threatening. The charge that on or about December 10, 1975, Respondent fondled the upper portion of Gwendolyn Lowe's, a student's, body was not proven by the evidence. The charge is that on January 29, 1976, in the presence of R. L. Ballew, Director, Area I, Respondent made accusations against Mr. Milton Threadcraft, the principal, in a threatening manner. The testimony of Mr. Threadcraft is believable when he testified that Respondent accused him of being incompetent and said that he, Respondent, was not going to put up with it. The remarks of Respondent were subsequent to a commotion in the school room in which wood was being thrown about and the Respondent had taken a student by the arms to discipline him. The principal, Threadcraft, was called by other students to witness the actions of Respondent. Respondent was relieved of his duties for the remainder of the day after a later confrontation with the principal and director. The testimony and evidence supports the charge. Charge Number 8 that Respondent struck Lavern White on March 3, 1976, on or about his neck causing bruises was proven by the testimony of the student, Lavern White, and also by a fellow student, Johnnie Hills. Sufficient evidence was not shown that Respondent in fact did strike Johnnie Hills on March 12, 1976, lacerating his lip although the evidence shows that Respondent did use corporal punishment by pushing the student against the wall to discipline him. Respondent attempted to discipline students through physical restraints. The Respondent was dissatisfied with his teaching position in the school to which he was assigned. He had asked to be transferred, he testified, about ten times in three years. The students were a discipline problem. The method of discipline of the students was to use force which, among other things, caused the students to be dissatisfied with their classwork. Order was not kept in the class and objects were thrown about the class from time to time. The Respondent was feared by some of the other teachers and by some of the students. From the general comments of the students of Respondent and the adult staff members, it is evident that the classes of Respondent did not reflect an atmosphere for optimum learning. Respondent appeared resentful of his professional status and uncooperative toward the other members of the educational community. He displayed no interest in the education of his students.
Recommendation Suspend the teaching certificate of the Respondent Armstrong for a period of time not to exceed three (3) years. DONE and ORDERED this 29th day of June, 1977, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: David A. Barrett, Esquire Post Office Box 1501 Tallahassee, Florida 32302 Donald Nichols, Esquire 320 East Adams Street Jacksonville, Florida 32202
The Issue The issue for determination in this case is whether Respondent’s Florida Educator’s Certificate should be revoked or otherwise disciplined for misconduct as alleged in the Administrative Complaint.
Findings Of Fact Petitioner, FRANK T. BROGAN, as Florida Commissioner of Education, is statutorily responsible for maintaining teaching certification standards, and is authorized to enforce the provisions of Chapter 231, Florida Statutes. Respondent, JOEL M. BURKI, at all material times hereto, was a certified teacher in the State of Florida. STIPULATED FACTS Respondent holds Florida Educator’s Certificate 686763, covering the area of Art Education, which is valid through June 30, 1997. At all times pertinent hereto, Respondent was employed as an alternative education teacher at St. Pete Challenge School in the Pinellas County School District. During 1992, Respondent was reported to Professional Practices Services for allegedly using excessive force with students. On or about September 22, 1992, the Department of Education and Respondent entered into a Deferred Prosecution Agreement extending through the end of the first semester of the 1992-1993 school year. Respondent satisfactorily completed the agreement, and on or about April 9, 1993, the Commissioner issued a finding of no probable cause to take disciplinary action concerning his educator’s ceritficate. On or about January 30, 1996, the Pinellas County School District investigated Respondent for allegedly engaging in inappropriate conduct with students. The district subsequently reported Respondent to Professional Practices Services. On or about March 20, 1996, Respondent resigned his teaching position effective March 22, 1996. THE ALLEGED INCIDENT OF MISCONDUCT An incident occurred at the St. Pete Challenge School at some time shortly after January 26, 1996, in which five male students, aged nine-to-ten years old, fell down at the door outside Respondent’s art and music classroom. As a result of this incident one student suffered a cut lip, and one other complained of a headache. The students involved in this incident initially had been disrupting Respondent’s class prior to roll call. Respondent had instructed these students to wait outside the classroom door until Respondent attended to the remaining students in the classroom. Respondent then intended to address this disciplinary situation. The five misbehaving students were outside for a very short period of time when they observed another teacher approaching. Upon seeing the teacher approaching, the five students attempted to re-enter Respondent’s classroom; however, Respondent at this time was also opening the door from the other side. The force of Respondent opening the door caused a chain reaction resulting in the fall of the five students on the outside of the door. The injured students were taken to the front office for treatment. None of the injuries sustained was serious. Respondent did not intend to cause any physical contact with the five students, nor to cause any physical harm to the students. Respondent was not physically abusive to the five students involved in this incident. It is the policy of the Pinellas County School District that a teacher shall not use physical force upon a student absent extraordinary circumstances which require physical intervention for the protection of other students or school personnel. Respondent in this incident did not use physical force in a manner inconsistent with the policy of the Pinellas County School District. Respondent is considered mild-mannered, cordial, and friendly in both his professional and personal capacities. MOTION FOR LEAVE TO AMEND THE ADMINISTRATIVE COMPLAINT The Administrative Complaint filed in this matter alleged in paragraph 4 that "Respondent grabbed minor student J.M. and pushed him," and "Respondent also pushed minor student,” A.H. into other students causing A.H. and the other students to fall." No evidence was presented at final hearing to support these allegations; however, there was testimony from minor student, K.D., that Respondent pushed another of these students, B.W., which then caused the chain reaction fall. Petitioner, accordingly, made an ore tenus motion for leave to amend the administrative complaint to conform to the evidence. The student in question, B.W., testified at final hearing and did not state that Respondent pushed him. On cross- examination, B.W. testified that Respondent pushed some other unidentified student during the incident. There was no clear and consistent evidence that Respondent pushed any identified student including B.W. or A.H. during this incident. Another student involved in the incident, C.G., who also testified at final hearing, on cross-examination confirmed Respondent's account of this occurrence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order dismissing the Administrative Complaint filed in this matter. DONE AND ENTERED this 21st day of July, 1997, in Tallahassee, Leon County, Florida. RICHARD HIXSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUMCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 21st day of July, 1997. COPIES FURNISHED: Bruce P. Taylor, Esquire 501 First Avenue, Suite 600 St. Petersburg, Florida 33701 Mark Herdman, Esquire HERDMAN and SAKELLARIDES, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684 Karen B. Wilde, Executive Director Education Practices Commission 325 West Gaines Street, Room 224-E Tallahassee, Florida 32399
