The Issue The issue for consideration was whether the Respondent's teacher's certificate in elementary education and middle school social studies should be disciplined because of the misconduct alleged in the Administrative Complaint.
Findings Of Fact At all times pertinent to the issues herein, Petitioner was the state official responsible for the licensing and regulation of school teachers in Florida. Respondent, Virginia R. Purdy, was licensed as an elementary school and middle school social sciences teacher in Florida under certificate # 265007, issued on May 12, 1984, and which expired on June 30, 1989. During the school year 1988 - 1989, Respondent was employed as a social studies teacher for the 6th grade at W. D. Suggs Middle School in Bradenton, Florida. She had worked there as a teacher for approximately 14 years. Over the latter years of her tenure at Suggs, Respondent was involved in repeated incidents of improper use of alcohol, but under the prior administration, little if any corrective action was taken. However, with the arrival of Judy Bills as Principal in January, 1988, closer attention was paid to the Respondent's performance. Ms. Bills' preliminary efforts here aimed at assisting Respondent to seek professional help for her alcohol problem. At first, Respondent resisted any outside assistance. However, her performance continued to deteriorate. She frequently appeared in class in a disorganized manner, having difficulty standing erect, and demonstrating erratic and emotional behavior. Review of Respondent's record book revealed she failed to give her students any scores upon which the end of grading period grade could be based. She frequently failed to prepare lesson plans for her own use or the use of substitute teachers called in to replace her when she was absent. In that regard, during that school year she was absent 45 days, of which 31 were for hospitalization in the Genesis program as a result of her alcohol problem. In addition, she routinely failed to call in in advance of her absences which is a requirement by school policy. Her teaching performance was erratic and she frequently strongly smelled of alcohol. She routinely failed to take control in her classroom and provide the appropriate leadership to her students. As a result, the students could not and did not have the appropriate course materials presented, and she was, in addition, an unsatisfactory role model. Contrary to the school's rules, she frequently transported students in her private automobile to her home for swim parties. This is prohibited by the school due to the potential liability problems increased, in Respondent's case, by her alcohol problem. Also, in contravention of good teaching practices, she treated her students as her equals, allowing them to comb her hair, polish her nails, and rub her back in class. While she related well to her students and, for the mcst part, they loved her, she did not maintain an appropriate teacher-student relationship with them. On at least two occasions during that year, she failed to attend parent conferences, explaining that she had to do lesson planning. This was no justification and the evidence shows she frequently failed to do that in any case. On one occasion, Ms. Bills had to relieve Respondent of her duties because of her confusion and disorganization in class. At that time, Respondent claimed she had merely lost her contact lenses, but because she was inebriated and in no condition to drive, another teacher had to drive her home. On another occasion, Ms. Bills went to Respondent's classroom 15 minutes after the start of the class period to find Respondent had not yet begun teaching. She was still taking roll and doing preliminary matters. On the morning of September 13, 1989, Respondent had a conference with a parent. After the conference, at which Respondent was loud and disoriented and comported herself inappropriately in both action and comments, Ms. Bills, consistent with prior warnings given the Respondent, had her taken for a blood alcohol test to a lab of the Respondent's choosing. The result of that test, done on blood taken at 9:00 AM that morning, indicated a blood alcohol level of 0.420 on a test wherein an alcohol level greater than .200 is considered clinically toxic. No traces of drugs were found on this occasion. There is no direct evidence to establish that Respondent drank alcoholic beverages on school property. Evidence of an arrest for DWI, and of an admitted overdose of valium and wine are considered not probative and irrelevant since they occurred too far in the past. However, during the 1988-1989 school year, Respondent had numerous altercations with other teachers. If she felt that she or one of her students had been wronged by another faculty member, she would chastise that person in front of her students. This is inappropriate behavior. In the opinion of her principal, her department chairman, and the Director of Personal Services for the school system in which she taught, Respondent's obvious drinking problem diminished her effectiveness as a teacher; her actions were harmful to her students' ability to learn and to their safety; and she was not honest in her professional dealing with faculty and staff. It is so found. In addition, her use of emotional pressure on her colleagues in an effort to get them to support her and not report her deficiencies, may have resulted in several years' delay in identifying and rectifying the problem. Ms. Purdy resigned her position with the Manatee County Schools on September 20, 1989 and has not been employed within the system since that time.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered in this case revoking the Respondent's teacher's certificate and her eligibility for a teacher's certificate in Florida. RECOMMENDED this 5th day of July, 1991, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 5th day of July, 1991. COPIES FURNISHED: Lane Burnett, Esquire 331 E. Union Street, Suite 2 Jacksonville, Florida 32202 Virginia R. Purdy 3616 62nd Street Bradenton, Florida 34209 George A. Bowen Acting Executive Director Education Practices Commission 301 Florida Education Center 325 W. Gaines Street Tallahassee, Florida 32399-0400 Jerry Moore, Administrator Professional Practices Services 352 Florida Education Center 325 W. Gaines Street Tallahassee, Florida 32399-0400 Sydney H. McKenzie General Counsel Department of Education The Capitol, PL - 08 Tallahassee, Florida 32399-0400
The Issue Whether Respondent should be dismissed from her employment with Petitioner based on the allegations contained in Petitioner's letter to Respondent dated October 25, 2002.
Findings Of Fact Shouse was employed by the School Board as a teacher's assistant for nearly three years. Her duties included administering tests to students who were in the Exceptional Student Education (ESE) program at North East High School. Most of the ESE students had difficulty reading, and it was Shouse's responsibility to assist them in reading the examinations and other materials which could be used in taking the examinations. Jayme Klapperich (Mrs. Klapperich) and Arnold Klapperich (Mr. Klapperich) taught earth science at North East High School. On October 7 and 8, 2002, Shouse was assigned to administer the first quarter earth science examination for the ESE students in Mr. and Mrs. Klapperich's classes. The examination was a 110-question, multiple-choice test, which was divided into 11 sections. Each section represented a chapter in the textbook, and each section was divided into two subsections. Each subsection consisted of five definitions followed by five vocabulary words. The students were to match the definitions to the correct vocabulary word. Shouse had administered similar examinations for the Klapperichs in the past. Part of each student's classwork in the Klapperichs' classes included the preparation of a notebook which was divided by chapters of the textbook. Each chapter section was supposed to include vocabulary words and definitions, questions and answers on the materials in the chapter, and quizzes and tests that had been given on that chapter. The quality of the notebook varied by student, and some of the students' notebooks were incomplete. The students were allowed to use their notebooks during the first quarter examination, but each student could use only the notebook which that student had prepared. The examination was administered in a conference room where other examinations were also being administered by another teacher's assistant. The Klapperich students sat at a long table with Shouse seated at the end of the table and the students seated on each side. Shouse administered the examination to ten ESE students in Mr. Klapperich's class on October 7, 2002. She went to Mr. Klapperich's class to get the students who would be taking the examination in the conference room. She was present when Mr. Klapperich advised the students that each student was to use only his or her own notebook during the test. During the administration of the examination to Mr. Klapperich's students, the students were loud and were shouting out the answers to one another. Shouse would read the question, and some of the students would raise their hands or just shout out an answer. If the answer was incorrect, Shouse would give them the correct answer. Eventually, Shouse began to give the correct answers to the students. The ten ESE students in Mr. Klapperich's class who took the test administered by Shouse on October 7 made "A's" on their examination. Many of the students missed the same questions.1 Shouse administered the examination to eight ESE students in Mrs. Klapperich's class on October 8, 2002. As in the examination for Mr. Klapperich's class, the students were allowed to use only their own notebook. One of the students did not have his notebook with him during the examination. The normal time for taking the examination would have been at least an hour. The ESE students to whom Shouse administered the examination on October 8 finished the examination in 15 to 25 minutes. Mrs. Klapperich commented to one student on the short amount of time it took the students to take the test. During the examination, Shouse read the examination questions to the students as a group. She then read the answer from one student's notebook. Shouse testified that she checked each student's notebook before reading the answer to make sure that the student had the correct answer in his or her notebook. Her testimony is not credible. One student did not have his notebook. By her own admission, the writing in many of the notebooks was practically illegible. It would not have been possible to read 110 questions, to find the answers in the notebook, and to check the notebooks of eight students for each question to make sure the student had the definition in his notebook in the span of 25 minutes. The students taking the examination on October 8 made "A's" on their examinations. All the students gave the same incorrect answers for questions 14, 15, 69, and 70. Mrs. Klapperich became suspicious because all the students made "A's" and they all gave the same incorrect answers to four questions. Additionally, six of the students had grade averages of "F" prior to taking the test. Her suspicions were further aroused when she confiscated a note immediately after the test which was written to a classmate by one of the students who had taken the examination with Shouse's assistance. The student admitted at the final hearing that she wrote the note and that the note concerned the earth science examination administered by Shouse on October 8. The note stated in part: I wrote. She read the questions -n- gave us the answers. * * * (101) Should have gone it was the easiest thing I've done all year. Mrs. Klapperich discussed her suspicions with her husband, and they agreed to report the situation to school administrators. An investigation ensued. The students were required to retake the examination in November. Because many of the students no longer had their notebooks, the students were allowed to use their textbooks in the examination. Eight of the students in Mr. Klapperich's class retook the examination. The time these students took in taking the test ranged from 80 to 150 minutes. Four of the students made "A's." Three students made "B's," and one student made an "F." Five of the students in Mrs. Klapperich's class retook the examination. The time for taking the examination for these students ranged from 65 to 135 minutes. One student made an "A," one student made a "B," two students made "C's," and one student made a "D." The School Board had adopted disciplinary guidelines for employees of the School Board. School Board Policy 8.25(1)(v), provides that the penalty range for misconduct or misconduct in office is from caution to dismissal.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Kari E. Shouse guilty of misconduct in office and dismissing her from employment with Petitioner. DONE AND ENTERED this 15th day of August, 2003, in Tallahassee, Leon County, Florida. S SUSAN B. KIRKLAND 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 August, 2003.
The Issue Did Respondent, Yolie Bauduy, violate section 1012.795(1)(g), Florida Statutes (2018)?1 Did Respondent, Yolie Bauduy, violate section 1012.795(1)(j)? 1 All citations to the Florida Statutes are to the 2018 codification unless otherwise noted. Did Respondent, Yolie Bauduy, violate Florida Administrative Code Rule 6A-10.081(2)(a)1.?
Findings Of Fact Parties Petitioner, Richard Corcoran, is the Commissioner of Education. 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. Ms. Bauduy holds a Florida Educators Certificate covering the areas of Autism Spectrum Disorder, Elementary Education, English for Speakers of Other Languages (ESOL), Exceptional Student Education (ESE), and Middle Grades Integrated Curriculum. It is valid through June 30, 2025. Ms. Bauduy teaches at Gotha Middle School in the Orange County School District and did at the time of the events alleged in the Administrative Complaint. During the period during which the alleged acts occurred, Ms. Bauduy taught students with autism. She has served students with disabilities of Orange County as an educator in ESE programs for 16 years. She taught at Gotha Middle School for 14 of those 16 years. Other than discipline for the incidents that are the subject of this proceeding, the District has never disciplined Ms. Bauduy. The school has recognized Ms. Bauduy as an effective teacher. For instance, an evaluation resulting from seven days of in-class observation in November 2020 concluded that she was applying all four expected classroom strategies and behaviors. The Education Practices Commission has never disciplined Ms. Bauduy. Gotha Middle School and Ms. Bauduy's Class During the 2018-2019 school year, all of Ms. Bauduy's students had disabilities that required more assistance and support than needed by students in the general population. Because of their disabilities, Ms. Bauduy's students required a modified curriculum that was less rigorous than the standard curriculum. The modified curriculum included social, skills, personal skills, and independent function skills. Teaching those skills helps students learn to manage their behavior and become more independent. All of Ms. Bauduy's students had Individual Education Plans (IEP). These plans identify a student's disabilities, their effect, and behavior that may arise from them. They establish goals for the student in light of the student's disabilities. And they identify strategies for helping the students accomplish the established goals. The demands of teaching students with disabilities required additional staff in the classroom to assist Ms. Bauduy. The school determined that properly caring for and teaching the children required a three to one student teacher ratio. The students' IEPs also required this staffing ratio. For that reason, the school assigned two paraprofessionals to assist in Ms. Bauduy's class of ten people. This was in addition to Ms. Edoo, who was assigned to student E.K. one-on-one. Thus, the proper staffing complement for Ms. Bauduy's class was four adults. Throughout the 2018-2019 school year, Gotha Middle School experienced chronic staffing shortages. One paraprofessional position in Ms. Bauduy's class was vacant the entire year. The school engaged a long- term substitute. That person often did not show up for work. In those instances, the school sought, often unsuccessfully, to engage fill-ins from a temporary staffing agency. In addition, the school usually did not provide staff to cover the paraprofessionals' breaks and lunches. Throughout the year, Ms. Bauduy had to juggle staffing shortages as best she could. During the representative month of September 2018, Ms. Bauduy's class was short one adult seven full days and four partial days. On September 11, 2018, Ms. Bauduy's class was down two professionals. When the paraprofessional staff took their breaks or lunch periods, the staffing deficiencies worsened. Ms. Bauduy repeatedly advised the administration about the staffing deficiencies, sought assistance, and expressed her concerns about not complying with students' IEP requirements. Her communications included a September 5, 2018, email advising that a substitute had not arrived, a September 11 email forwarding an email from a paraprofessional advising she was not coming in, and a September 26 email advising that a substitute once again failed to arrive and asking for assistance. In January 2019, despite the chronic understaffing, the school transferred two students, T.M. and N.A., from other classrooms to Ms. Bauduy's class. These students' disabilities were more profound and required more supports than the other students. They were regular elopers, required diaper changes, and required individual nearly one-on-one prompting for tasks. Among other things, T.M.'s disabilities required having someone hold his hand during transitions. Placement of T.M. and N.A. in Ms. Bauduy's class was not appropriate. Ms. Bauduy continued sending emails expressing her concerns and frustrations about understaffing. She also repeatedly, without effect, sought to get the school to change mandatory meetings to her planning period or after school because the meetings caused her to leave the classroom and exacerbated the staffing problems. Between October 25, 2018, and March 4, 2019, Ms. Bauduy sent 17 emails requesting full staffing and advising of staff absences. Ms. Bauduay could not rely upon prompt responses when she called for assistance or additional staffing to put her room back in compliance with the required student/adult ratio. Sometimes she received a quick response. Sometimes no one came. Often there was a 20 to 30-minute delay before assistance arrived. Even when management responded to Ms. Bauduy's request for a schedule of when behavior staff would be available to support her students, management's response was conditional. For instance, Laura Fogarty, ESE Curriculum and Instruction Team Instructional Coach, conditioned the schedule of available staff that she provided as follows. Please remember, however, that this schedule is in a perfect world. The behavior support team's first priority is to respond to radio calls and have other responsibilities that don't always make it possible for them to be in your room for the times listed below. They may also have to leave to respond to a behavior call when they are in there. Below is the ideal, if everything goes right and there are no behavior calls or other areas that require their attention. The world in which Ms. Bauduy taught was neither perfect nor ideal. Ms. Bauduy's testimony about staffing difficulties and insufficient responses to requests for assistance differs from testimony of school representatives. Ms. Bauduy was more credible and persuasive than the school representatives. Four of the reasons for this judgment are Ms. Bauduy's sincere demeanor, documents such as emails and logs consistent with her testimony, the admission in Ms. Fogarty's email that even scheduled availability of support was not reliable, and the corroborating testimony of a paraprofessional who worked in Ms. Bauduy's room, Lauren Mueller. K.C. K.C. was a male sixth grade student in Ms. Bauduy's class. K.C.'s IEP specified that K.C. should always be supervised. It stated, "He requires continuous supervision as he is very impulsive and responds aggressively and or obscenely." K.C. also had a Behavioral Improvement Plan (BIP). It too noted a need for intensive intervention to address inappropriate touching of and advances toward female students. The BIP provided, among other things, "If outside the classroom, one on one supervision must be provided." The BIP went on to state that K.C.'s transitions out of the classroom should be limited to necessary transitions and that a staff member should provide one-on-one supervision during all transitions. Ms. Bauduy was aware of the contents of the IEP and BIP. At each day's end, Ms. Edoo usually escorted K.C. from class to the transportation loading area, after escorting her assigned student to the transportation area. This did not happen on September 11, 2018. This was one of the many days when Ms. Bauduy's room was short-staffed. Because of a vacant position and a paraprofessional not showing up, Ms. Bauduy was down to two adults, including herself, of the staff that should have been in the room. This excludes Ms. Edoo who was responsible for providing one-on- one care for a single student. The afternoon of September 11 the substitute paraprofessional was to escort the students, in shifts, to the transportation area. The substitute took a student to the transportation area and did not return. This left Ms. Bauduy the sole adult in the room, responsible both for getting the children to the transportation area and supervising students in the classroom. Ms. Edoo called Ms. Bauduy on the radio and said to release K.C. Ms. Bauduy thought that meant Ms. Edoo was returning to the classroom and would meet K.C. in the hall. Although her room had a telephone and a two-way radio, Ms. Bauduy knew from experience a response to a request for help would be slow, if there even was one. Faced with confounding choices, Ms. Bauduy explained to K.C. that she would release him to go directly down the hall to meet Ms. Edoo. K.C. did not go straight down the hall to Ms. Edoo, and Ms. Edoo was not in the hall. K.C. went to the bathroom that opened on the hall. A student, K.M., found K.C. laying naked, save for his socks, on the bathroom floor, masturbating. This scared and confused K.M. He went home and told his mother about the incident. She called the school. The next day a guidance counselor met with K.M. to discuss the incident and reassure him. Shortly after K.M. left for home, an ESE clerk, Elizabeth Elkholi, saw K.C. naked in the bathroom, through the open door. She called for Shantell Johnson, a behavior trainer. Ms. Johnson did not wish to enter the bathroom because K.C. was naked. A substitute, Stephen Harnishfeger, and Deputy Luna, a school resource officer, joined Ms. Elkholi and Ms. Johnson. Between them, these four adults kept K.C. in sight. K.C. got dressed in a stall. Ms. Johnson escorted him back to Ms. Bauduy's classroom. Ms. Bauduy was not aware of this activity until K.C. was returned to her room. K.C. could have left the school grounds during the period that he was unsupervised. Eventually the substitute reappeared and declared she was leaving for the day. Ms. Bauduy convinced the substitute to escort K.C. to the transportation loading area before leaving. The school suspended Ms. Bauduy for five days without pay for this incident. T.M. T.M. was a student on the autism spectrum that the school transferred to Ms. Bauduy's class in January. T.M.'s previous classroom, Ms. Franklin's, was adjacent to Ms. Bauduy's classroom. On February 25, 2019, the school had again failed to staff Ms. Bauduy's classroom in compliance with the requirements of her students' IEPs. That day the school required Ms. Bauduy to participate in an IEP meeting, scheduled for 30 minutes, during her planning period. The meeting took two hours, running through her lunch period and ending at 4:00 p.m. When Ms. Bauduy returned to the classroom, she realized none of her paraprofessionals had taken a break. So, she released them one at a time for a short break. While one paraprofessional was gone on break, the remaining one left the room with a student to go to the restroom and change a diaper. This left Ms. Bauduy alone with the students. At that time, Ms. Bauduy was providing directions to a group of students. She heard the door slam. She looked for T.M. and did not see him in the classroom. T.M. had slipped away from Ms. Bauduy's classroom out into the hall. He left through the classroom's only door. Ms. Bauduy immediately went to the doorway to look for him. She knew T.M. had a history of leaving the classroom but waiting just outside the door. She did not see him. Then Ms. Bauduy took a few steps outside the door of her classroom into the hall. To the left of Ms. Bauduy's classroom the hall met double doors just yards away that led to the outside and a nearby road. Ms. Bauduy was in the hall approximately 23 seconds seeking to ensure that T.M. had not gone to the left toward the double doors. During these 23 seconds there was no adult inside Ms. Bauduy's class room. She however was just feet from the only door. One of the students could have done something destructive or harmful. But the brief period of time that Ms. Bauduy was outside the classroom, her proximity to the door, and the very short distance she was from her students made that risk minimal. Ms. Bauduy saw the door to Classroom B104 close. This was T.M.'s former classroom, which was next to Ms. Bauduy's room. This reassured her that T.M. was safe. She ran back to her classroom. The students had spent the 23 seconds without incident. Then Ms. Bauduy called for assistance. A staff member came to return T.M. to Ms. Bauduy's room. When T.M. slipped away, Ms. Bauduy had no good choices. In the time it would take to call for assistance and wait for it to arrive, if it did, T.M. could have been out the doors and in the road. Ms. Bauduy's experience taught her that assistance was often slow to arrive and sometimes did not arrive at all. Stepping out in the hall to quickly see where T.M. went left the eight remaining students without direct adult supervision for 23 seconds. But Ms. Bauduy was just outside the only door out of the classroom. She made a reasonable choice, one that most reduced the risk of a bad outcome to T.M. and his classmates. The school suspended Ms. Bauduy for five days without pay because of this incident. F.O. F.O. was a student in Ms. Bauduy's class. F.O. was non-verbal and deaf. She was working on pre-academic skills. F.O. was a joyful and social student. She, however, was defiant. She did not like to be corrected. She wanted to be on her own, basically following her own schedule. When corrected, F.O. would shake her head, point her finger, and stick her tongue out. The school regularly delivered breakfast and lunch to the class. On September 11, 2019, F.O. ate breakfast around 10:00 a.m. After breakfast, F.O. and the other students had a short lesson and went to PE. After they returned to class, they had another short lesson. Afterwards, Ms. Bauduy gave the class another short break. Around 11:30 a.m., the lunch cart's arrival signaled the beginning of lunch to the class. The lunch service procedure began with placing meals on tables for students who could feed themselves. Then Ms. Bauduy and the paraprofessionals assisted students who needed help eating. F.O.'s lunch was placed in front of her. It was time for F.O. to pick up her toys and eat. She refused. Ms. Bauduy tried prompting F.O. several ways. Ms. Bauduy's efforts to persuade F.O. to put her toys up included gestures, pantomiming the desired actions, and modeling the actions by picking up some toys herself. This did not work. Ms. Bauduy took F.O. out of the classroom to see if a change in environment would help. Ms. Bauduy then took F.O. to the behavior specialist's classroom down the hall. But it was not staffed. They returned to Ms. Bauduy's classroom. There Ms. Bauduy tried to get F.O. to comply with simple directions like "put it down." F.O. would not respond. Also, F.O. continued to refuse to pick up her toys and eat lunch. Ms. Bauduy concluded that F.O.'s refusal to eat lunch was a defiance issue. Ms. Bauduy learned a behavior management strategy called "First – Then" in her applied behavior classes at the University of Central Florida. Ms. Bauduy kept a graphic depicting this strategy posted in her classroom. Other teachers and paraprofessionals in the school also used this strategy. It was a system where the "Then" was something the child wanted or wanted to do and the "First" was a task the child was resisting. After F.O. continued to play with toys and ignore her lunch. Ms. Bauduy decided to use the "First—Then" strategy by withholding F.O.'s lunch until she picked up her toys. She asked a paraprofessional, Ms. Lewis, to remove the food. Ms. Lewis refused. Ms. Bauduy then placed the lunch on a shelf so that other students would not eat it or play with it. Around 2:00 p.m., snack time, F.O. had put up her toys. Ms. Bauduy gave her the lunch. Ms. Bauduy's log for the day, sent home with each student each day, advised F.O.'s parents that F.O. would not listen or follow directions most of the day and that "lunch was delayed till she showed more compliance." Withholding lunch was not a proper use of the "First – Then" strategy. Meals are a regular part of the day and necessary for nutrition, although in this case the student repeatedly declined food. Withholding a meal, as opposed to withholding a treat, is not proper. Also, since F.O. was not interested in eating lunch, making lunch the "Then" was not a well-reasoned use of the strategy. Ms. Bauduy, however, did not withhold lunch as a punishment. But withholding lunch was not a reasonable behavior management strategy. The school suspended Ms. Bauduy for five days for this instance.
Conclusions For Petitioner: Ron Weaver, Esquire Post Office Box 770088 Ocala, Florida 34477-0088 For Respondent: Branden M. Vicari, Esquire Herdman & Sakellarides, P.A. 29605 U.S. Highway 19 North, Suite 110 Clearwater, Florida 33761
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, Yolie Bauduy, violated section 1012.795(1)(j), Florida Statutes, by violating Florida Administrative Code Rule 6A- 10.081(2)(a)1., and imposing a reprimand upon Respondent, Yolie Bauduy. DONE AND ENTERED this 24th day of November, 2021, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us COPIES FURNISHED: Filed with the Clerk of the Division of Administrative Hearings this 24th day of November, 2021. Lisa M. Forbess, Executive Director Education Practices Commission Department of Education Turlington Building 325 West Gaines Street, Suite 316 Tallahassee, Florida 32399-0400 Branden M. Vicari, Esquire Herdman & Sakellarides, P.A. 29605 U.S. Highway 19 North, Suite 110 Clearwater, Florida 33761 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 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
The Issue The issue in this case is whether cause exists to terminate the Respondent's employment by the Pinellas County School Board based on the allegations set forth in the Superintendent’s letter dated May 6, 1997.
Findings Of Fact Kay Kennedy (Respondent) has been employed as a teacher by the Pinellas County School Board (Board) since October 3, 1977, under a continuing contract of employment pursuant to Section 321.36(4)(c), Florida Statutes. Since 1990, the Respondent has taught at Safety Harbor Middle School. By all credible accounts, the Respondent has been an effective and capable teacher throughout her career. The Test Review The Pinellas County School District administers a Comprehensive Test of Basic Skills (CTBS) test to middle school students. The CTBS test measures the skill level of individual students within their grade levels and is used to compare the District’s students to similiar students in other Florida school districts and in other states. The compiled math and language arts scores of each District school are published in the local newspaper to permit local school-by-school comparison. Individual student scores are not released. Teachers are encouraged by school officials to prepare students for the examination. The District provides review materials in math and language arts to each middle school. Teachers in each school review the material with students in the days immediately prior to administration of the test. Reviews may take as much as a full week of class time to complete. Teachers in subject areas other than math and language arts also provide subject matter review to students although the District provides no review materials for those review sessions. The Respondent has provided a general social studies review during the seven-year period she was employed as a geography teacher at Safety Harbor Middle School. Other teachers in non- math and non-language subject areas offer their own reviews. During the review period, the Respondent initiated discussions with her classes about general social studies topics. Because the District provides no materials, the Respondent was left to determine the topics for her review. In the 1996-97 school year, the Respondent taught five geography classes. She used the first period time as a planning period and taught her classes beginning in the second period. Teachers who had first period classes administered the 1997 CTBS test. Because the Respondent did not have a first period class, she was not involved in the administration of the 1997 CTBS test. After the test was completed, some of the Respondent’s students believed that in her review, the Respondent had given them the answers to the social studies section of the CTBS test. The students relayed their belief to parents. One student’s father, a principal at another Pinellas County School, was already concerned with the Respondent and had complained to her superiors about her teaching. He immediately contacted the Safety Harbor Middle School principal. There is no evidence that the Respondent’s teaching fails to meet minimum standards. To the contrary, the Respondent’s teaching evaluations appear to be completely acceptable. Shortly thereafter, the Safety Harbor principal also heard from another parent, and from a teacher who overheard students discussing the matter. The Safety Harbor principal contacted district officials and initiated an inquiry into the matter. Based upon the allegations, representatives of the school and the District interviewed the children, and came to the conclusion that the Respondent had provided answers to specific questions contained in the social studies section of the CTBS test. The CTBS test is kept under secure and locked conditions. Teachers receive test materials immediately prior to administration of the test. The materials are bar-coded and individually scanned to assure that all materials distributed are returned. Although the evidence is unclear as to how many versions of the CTBS test exist, multiple versions of the exam exist. It is reasonable to assume that the District would annually rotate versions of the test to prevent students from sharing test content with students who will be tested the next year. The Respondent administered the CTBS test during the 1994-95 school year. There is no evidence that she made or kept a copy of the test. There is no evidence that she made or kept any personal notes as to what was on the test. There is no evidence that the Respondent had access to the 1997 CTBS test. There is no evidence that the 1997 exam was the same test administered by the Respondent in 1994. There is no evidence that the Respondent had knowledge regarding the questions contained in the social studies section of the CTBS test. There is no evidence that the Respondent knew which version of the exam would be administered in the 1997 school year. There is no evidence that there is any benefit whatsoever to a teacher who provides test answers to a student. The results of the CTBS tests are not used in teacher performance evaluations, in matters related to salary, or in any other employment issues. There is no evidence that the Respondent’s students, having supposedly been told the answers to the social studies section of the CTBS test, scored higher than other students in the school who took the same exam and answered the same questions. The Respondent’s students were re-tested using another version of the CTBS social studies test after the allegations of improper test preparation were raised. There is no evidence that the Respondent’s students scored higher the first time they were tested than they did when they were re- tested. At the hearing, students acknowledged discussing the matter. At the time the initial accusations were made, some students discussed using the allegations as grounds to have the Respondent’s employment terminated for apparently personal reasons. Again, there is no evidence that the Respondent had access to the 1997 CTBS test, knew which version of the CTBS test would be administered, or had any personal gain to realize from providing answers to students. Absent any supporting evidence, the testimony of the students in this case is insufficient to establish that the Respondent provided specific answers to the social studies portion of the 1997 CTBS exam to her students. Assistance During the Exam At the time of the 1997 CTBS exam, R. M. was a student at Safety Harbor Middle School. He had not been in the school for very long, was not proficient at speaking English, and had never before taken an exam like the CTBS test. The Respondent was present during the time R. M. was taking the math portion of the CTBS test to momentarily relieve the teacher responsible for administration of the test. The Respondent saw R. M. filling in boxes on his test answer sheet and believed him to be doing so in a random manner known as “Christmas-treeing” the test. A student who does not know test answers may choose to randomly fill in the answer sheet in hopes that at least some of the guesses will be correct. The Respondent approached R. M. and advised him to work the problems instead of guessing. She worked a problem similar to those on the test to demonstrate how to perform the task. At the hearing, R. M.’s testimony regarding the incident was inconsistent. It is insufficient to establish that the Respondent provided answers to the math questions actually appearing on the test. Although the evidence fails to establish that the Respondent provided test answers to R. M., the provision of test assistance to R. M. during the examination was inappropriate. Working a demonstration problem for a student taking a standardized examination is improper, and is unfair to students who do not receive such assistance. At the hearing, the Respondent acknowledged that she should not have assisted R. M. with the exam. Prior Reprimands The May 6, 1997, letter states that the Respondent has “received four reprimands for leaving your classroom unsupervised, lack of judgment, kicking a student and misrepresenting the truth.” The evidence establishes that in 1990, the Board prosecuted the Respondent for such allegations and attempted to impose an unpaid three-day suspension. After an administrative hearing was held, the charges were dismissed. The prior allegations provide no basis for any current disciplinary action.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Pinellas County School Board enter a Final Order reprimanding Kay Kennedy for providing assistance to a student during an examination and dismissing all remaining allegations set forth in the Superintendent's letter of May 6, 1997. DONE AND ENTERED this 23rd day of April, 1998, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM 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 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of April, 1998. COPIES FURNISHED: C. Wesley Bridges II, Esquire Pinellas County School Board 301 4th Street Southwest Post Office Box 2942 Largo, Florida 33779 Mark Herdman, Esquire Herdman & Sakellarides, P. A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684 Dr. J. Howard Hinesley, Superintendent Pinellas County School Board 301 4th Street Southwest Largo, Florida 33770-2942 Frank T. Brogan Commissioner of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
The Issue The issue for determination is whether Respondent violated section 1012.795(1)(g) and (j), Florida Statutes (2012), and Florida Administrative Code Rule 6A-10.081(3)(a), and if so, what penalty should be imposed.
Findings Of Fact Based on the demeanor and credibility of the witnesses and other evidence presented at hearing, and upon the entire record of this proceeding, the following facts are found: Respondent holds Florida Educator’s Certificate 739881, covering the areas of Physical Education and Exceptional Student Education, which is valid through June 30, 2015. He has held a certification in Florida since 2005. Respondent is African- American. At all times relevant to the charges in the Administrative Complaint, Respondent has been employed as an In- School Suspension (ISS) Teacher at the CARE Program in the Calhoun County School District (District). The CARE acronym is shorthand for character, achievement, respect, and education. The CARE Program is a second-chance school for students who have been suspended for more than ten days, have been suspended for drug offenses, or who are currently in a juvenile facility. The first time a student is assigned to the CARE Program, it is for a 90-day term. If the student does well, he or she returns to their regular school. The second referral is for a period of 180 days; the third for a year. The CARE Program generally has approximately 30-40 students at a time. In November 2012, the program had approximately 31-32 students. The CARE Program is located at a facility that used to house a vocational complex, next to the adult school. Also housed in this complex is the In-School Suspension (ISS) class, where students serve in-school suspensions of less than ten days. Students are referred to the ISS class for behavior such as tardiness and being disruptive in the classroom. The number of students in the ISS classroom varies, because it depends on how many students have been referred. There is a limit to how many students can be in the ISS class, because each school has a cap on the number of students it can refer at any given time. Testimony varied as to how many students were present at the time of the incident giving rise to this case. The most reasonable and credible testimony indicates that on November 14, 2012, there were approximately 15-20 students in the ISS class. There was adequate room in the ISS classroom for the number of students in the class. Some time prior to the incident giving rise to this case, part of the complex where the CARE Program and the ISS class were housed underwent construction. As a result, several staff members working in the complex had tires punctured because of construction debris in the area. The District would reimburse employees for repairs to tires that were punctured if the employee submitted the documentation related to the repair. Respondent had requested two new tires, as opposed to repair of his tires. Although the record is not clear when Respondent made his request, there was some delay in any action being taken to address it. Wilson McClellan was the superintendent of the District from 2000 to 2004, and then again from 2008 to 2012, after which he retired. Mr. McClellan, who is Caucasian, was an educator in Calhoun County for approximately 25 years. He had worked with Respondent in a summer recreation program at some point before Respondent was hired by the District. Mr. McClellan had told Respondent that if there was an opening in Calhoun County, he would give Respondent a call and let him know. On November 13, 2012, Mr. McClellan was defeated in his bid for re-election as superintendent. The next day, he visited the CARE Program and spoke with several of the staff there, presumably to touch base with people with whom he had worked. He came to the CARE Program around midday, and class was in session. While he was there, Mr. McClellan went to speak with Respondent about Respondent’s pending request for reimbursement for his tires. While repairs had been authorized, no other staff member had requested new tires. Mr. McClellan told Respondent that he would need to submit documentation for the reimbursement for action by the School Board, as opposed to the superintendent, because Mr. McClellan did not feel comfortable authorizing the expenditure when no one else had requested reimbursement for new tires instead of repair of existing ones. Mr. McClellan knocked on the door to the ISS classroom and he and Respondent went into the small office adjacent to it. When he told Respondent about the need to submit the reimbursement matter to the Board, Respondent became angry and walked back into his classroom. Respondent told McClellan, in the presence of his students, that if he had a different last name and a different color, then the results would have been different. McClellan denied Respondent’s claim and left the classroom. Mr. Thomas’s classroom had an inside door, going into a hallway, and an outside door that led to a covered pavilion area with picnic tables. Also adjacent to the area with the picnic tables is Barbara Hathaway’s office. Ms. Hathaway served as the Dean of Students for the CARE Program, a position that functions much like a principal does in a traditional school. When Mr. McClellan left the classroom, he went to the area with the picnic tables. Ms. Hathaway saw him there and came out to speak with him. While Ms. Hathaway and Mr. McClellan were speaking, Respondent came out of his classroom and asked Ms. Hathaway to get someone to cover his class because he was “pretty hot” and needed to walk. According to Ms. Hathaway, Respondent was agitated and upset. She did not understand him to mean he was overheated based on temperature, but rather that he was upset or angry, and her testimony is credited. Without waiting for coverage for his class, Respondent walked away from the classroom and the area where Mr. McClellan and Ms. Hathaway were standing and up the sidewalk. Ms. Hathaway left to ask another staff member to cover the classroom and was going to walk back outside when she heard Mr. Thomas speaking loudly. She could not hear what Mr. Thomas said, but his tone was agitated. She noticed that the ISS classroom door to the outside was open, and the students could hear the heated conversation between their instructor and the superintendent, so she opened the inside door and told a student to shut the outside door. Ms. Hathaway thought from the students’ reactions that they were enjoying the interchange between Mr. McClellan and Mr. Thomas. She used her phone to call for a resource officer because she felt the situation was agitated and that someone should be present to intervene. After Ms. Hathaway walked inside to arrange for coverage for the classroom, Mr. Thomas had walked back down the sidewalk to Mr. McClellan. He repeated to Mr. McClellan that in this county, if he had a different last name and a different color, it would probably be a different result. Mr. McClellan became impatient and said, “shut up Ed, I am just not wanting to hear any more about that.” Mr. Thomas walked closer to him, glared and said, “if you ever say shut up again to me, I will be the last black man you ever say that to.”1/ Mr. Thomas is a large, imposing figure, and according to Mr. McClellan, he spoke in a loud, angry voice and “bowed up” in a threatening gesture; however, he was never close enough to the superintendent to actually strike him. While Ms. Hathaway could not hear the actual language being used, both Ms. Barbee, who came to cover the ISS classroom, and the students in the classroom were able to hear the colorful exchange. Ms. Barbee testified that she did not remember the actual conversation, but that there was “some cussing and hollering.” Her statement written the day of the incident indicates that Mr. Thomas used the term “f**k.” Likewise, P.G., one of the students in the classroom, testified that Mr. Thomas told Mr. McClellan, “don’t tell me to shut the f**k up,” and for him to “shut the f**k up.” P.G. believed the students in the room were shocked at the interchange.2/ After this exchange, Respondent once again walked away from Mr. McClellan and up the sidewalk away from his class. On both occasions, Respondent was five to six classroom lengths away from his classroom, and unable to monitor in any way the actions of his students. Ms. Hathaway, as noted above, was not present for this heated exchange and did not hear what was said. When she returned outside, Mr. Thomas was standing on the sidewalk up the hill from the classroom. She spoke to Mr. McClellan, who told her about the conversation with Mr. Thomas. What he told her involved the reimbursement issue and not any complaint about overcrowding. About that time Warren Tanner, the school resource officer, came around the corner. When he arrived, he saw Ms. Hathaway and Mr. McClellan sitting on a bench under the pavilion, and Mr. Thomas was standing at the end of the driveway at the end of the building. Mr. Tanner asked what had happened, and Mr. McClellan told him that Mr. Thomas had threatened him. Mr. Thomas walked back down the hill to where the others were standing, and Mr. McClellan told him to go home for the rest of the day. Mr. Thomas went into his classroom briefly, then came out and asked Mr. McClellan if he was sending him home for the rest of the day, and was told, “yes.” Mr. Thomas got in his truck to leave, then got out and asked Mr. Tanner if this was going to be a complaint, and Mr. Tanner told him, not at this time. Mr. McClellan returned to his office and called David House, the school board attorney. He related the events of the morning and told Mr. House that, in light of past behavior by Mr. Thomas and the current incident, he was considering terminating Mr. Thomas. Later that afternoon, Vicki Davis, assistant superintendent for the District, called Mr. Tanner and asked him to collect statements from those who witnessed or heard the morning’s events. Mr. Tanner got statements from Mr. McClellan, Ms. Hathaway, Ms. Barbee, and several students in Mr. Thomas’s class.3/ On Thursday, November 15, 2012, Mr. McClellan wrote to Mr. Thomas advising him that he was suspended with pay, effective immediately. Respondent had been the subject of discipline previously, and there had been concerns expressed about his behavior during his employment in Calhoun County. For example, in January 2008, he received a formal reprimand for allegedly confronting a fellow teacher in front of students in a loud, belligerent, and profane manner.4/ On June 3, 2008, Respondent received a second reprimand for allegedly leaving a magazine with an unclothed woman on the cover in the Health Building bathroom where it could be viewed by students. On January 13, 2011, Neva Miller, the principal of Blountstown Middle School, wrote a lengthy letter to Superintendent McClellan detailing several alleged incidents involving Mr. Thomas that caused her to “express concerns that I have as to the effectiveness and concerning anger control abilities of Edward Thomas.” A two-page document titled “Ed Thomas Issues Calendar Year 2011” was placed in his personnel file, recounting a series of concerns regarding alleged deficiencies in his performance. On February 23, 2012, Ms. Hathaway, as Dean of the CARE Program, documented an alleged incident involving a ninth-grade student.5/ On December 11, 2012, Mr. McClellan’s successor, Superintendent Ralph Yoder, issued a Notice of Charges for Dismissal to the Calhoun County School Board, recommending Respondent be suspended without pay and dismissed from employment by the District. The Notice of Charges stated, “Mr. Thomas has a history of engaging in insubordinate, hostile and confrontational behavior toward faculty members and administrators, which began in 2007 and culminated in an incident that occurred on November 14, 2012, involving the former Superintendent of Schools, Mr. Tommy McClellan. Mr. Thomas has been repeatedly instructed by persons in authority to correct his behavior, but he has failed to do so.” The Notice goes on to describe 13 separate incidents and references several others. Only the incident involving Mr. McClellan on November 14, 2012, is alleged in the Administrative Complaint, and Petitioner presented no evidence to prove what happened with respect to the other incidents. No findings are made concerning the validity of the other allegations in the Notice of Charges. It is considered solely to show that the District took action with respect to Respondent’s employment. Likewise, it is unclear what, if any, proceedings were conducted with respect to the Notice of Charges before the school board. Respondent acknowledged that his employment was terminated as of December 11, 2012, the day the Notice was issued.
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 has violated section 1012.795(1)(g) and (j), as well as Florida Administrative Code Rule 6A-10.081(3)(a). It is further recommended that the Commission suspend Respondent’s teaching certificate for one year; that he submit to an evaluation for anger management by the Recovery Network on terms to be set by the Education Practices Commission; and that upon re-employment as an educator, Respondent be placed on probation for a period of three years, with terms and conditions to be set by the Commission. DONE AND ENTERED this 19th day of June, 2015, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 19th day of June, 2015.
The Issue The issues to be determined are whether Respondent violated section 1012.795(d) and (j), Florida Statutes (2011), or Florida Administrative Code Rule 6A-10.081(3)(a) and (e), and if so, what penalty should be imposed by the Education Practices Commission.
Findings Of Fact Respondent is a teacher certified by the State of Florida, holding Florida Educator’s Certificate 958493, covering the areas of Elementary Education, Exceptional Student Education (ESE), and Autism Spectrum Disorders, valid through June 30, 2014. At all times material to the allegations in this case, Respondent was employed by the Bay County School District as an ESE teacher at Margaret K. Lewis Center (MKL Center). This is a second career for Respondent. She left a business and technology career to pursue a career in education, specifically working with students with special needs. Respondent obtained her Master’s degree and a special designation to work with special needs students. Respondent was motivated to pursue teaching special education students because she had an aunt with Down’s syndrome who had limited educational opportunities. Respondent taught at Oscar Patterson Elementary for the 2006-2007 school year, and then transferred to MKL Center beginning in the 2007-2008 school year. After Respondent received her state educational certification in autism spectrum disorders, she requested to be assigned to teach an ESE class beginning with the 2010-2011 school year. That year, she was voted as “Teacher of the Year” by her peers. The class to which Respondent was assigned was a challenging class. It was not unusual for students in this classroom to bite, kick, hit, pinch, and trip staff. During the 2010-2011 school year, the number of students was reduced from eight to four, and the number of paraprofessionals was increased from two to three. During the 2011-2012 school year, there were four students in her classroom: C.B., J.B., K.M., and D.C. One paraprofessional, Patricia Lewis, was assigned specifically to D.C. The other two paraprofessionals, Jennifer Shea Saulmon and Nancy Davis, worked with all of the children, and when able to, Patricia Lewis did as well. Ms. Davis, Ms. Saulmon, and Ms. Lewis have seven, fourteen and twenty-seven years of experience, respectively. C.B. had a severe mental disability with a limited ability to comprehend verbal communications and a limited ability to communicate. C.B.’s communication involved single words, sounds, and gestures. He could discern the speaker’s mood, but might not fully understand the content of what was said. For example, C.B. might not understand that someone was saying hello, but would understand that the speaker was friendly towards him. C.B. also had problematic behaviors including biting, pinching, scratching, and hitting. C.B. had an awkward gait and wore ankle orthotics (AFO’s), a type of plastic brace, over his shoe and lower leg to provide stability from the foot to the leg, and to assist in improving his ability to walk. C.B. was ten years old. J.B. was approximately 11 years old in January 2012, and was diagnosed with Autism Spectrum Disorder. He also had a limited ability to communicate using single words, sounds and utterances, and gestures. J.B. also used an iPad to communicate. Over time, someone working with J.B. would develop a greater ability to understand and communicate with him. J.B.’s difficult behaviors included spitting, hitting, kicking, and pinching. K.M. was 11 in January 2012. K.M. was diagnosed with Down’s syndrome, and had previously suffered a stroke which limited her use of one arm. She also had significant intellectual limitations. However, K.M.’s ability to communicate was greater than the other members of the class, and she could understand verbal communications. In addition, K.M. was more independent than her classmates, and was a risk for elopement from both the classroom and the campus. As stated by one of the paraprofessionals, K.M. “was a runner.” By all accounts, K.M.’s behaviors were consistently disruptive, and managing her in a classroom took a significant effort. D.C. was also 11 in January 2012. D.C. was diagnosed as autistic and engaged in repeated self-injurious behaviors. When upset, D.C. would repeatedly strike himself in the head and face, and he often wore a football helmet as a protective measure. D.C. was very strong, and attempts to prevent him from hurting himself could often result in staff members being hurt. There was testimony at hearing that his behavior plan addressed how many he times he was allowed to hit himself or how long he was allowed to hit himself without intervention. However, the behavior plan for D.C. was not in evidence. A portion of the classroom was designed specifically for D.C., with padded walls and a padded floor, in light of D.C.’s tendency to hit his head against hard surfaces as well. He had some beads that he played with that sometimes calmed him. At some point during the 2011-2012 school year, Respondent began to show signs that the stresses of her very challenging classroom were having an effect on her. After the Christmas break, her stress seemed to have intensified. Respondent was having trouble sleeping, suffered from high blood pressure and pain from injuries sustained in the classroom, and was experiencing some depression. Respondent began to “self- medicate” with alcohol at night. There was no credible evidence that Respondent ever drank during the day or was under the influence of alcohol during work hours. At the end of the school day on January 30, 2012, Ms. Lewis approached assistant principal Elizabeth Swedlund to voice some concerns about Respondent’s behavior in the classroom. Ms. Lewis related some events that had occurred in the classroom that day, as well as some general concerns regarding treatment of the students in the classroom. She voiced the following concerns: that Respondent took away D.C.’s beads and would allow him to hit himself for a period of time longer than allowed by his treatment plan; that she made statements to K.M. such as “I could kill you” or “go play in the street”; and that she hit C.B. with a closed hand and kicked him while working in “circle time.” On January 31, 2012, Ms. Swedlund notified her principal, Britt Smith, of the conversation with Ms. Lewis. She decided to speak with the other paraprofessionals in the classroom and after doing so, to report the information to the abuse registry. Principal Smith notified Sharon Michalik, the District’s Executive Director of Human Resources, of the issue with respect to Respondent. As a result, Mike Jones, Chief of Safety, initiated an investigation. Mike Jones visited the campus the following day. All three paraprofessionals were interviewed and asked to provide written statements. He took Respondent for a drug and urine test, which came back negative. On Friday, February 3, 2012, Respondent was notified to meet with Ms. Michalik and other administrators to review the allegations. After this meeting, Respondent was suspended with pay, and the School District planned to proceed with a recommendation for termination. However, instead the parties entered an agreement executed on March 30, 2012, through which Respondent would take a medical leave of absence and would only be allowed to return to a position with the School District if she was found fit for duty. If she returned, she would be required to submit to random drug and alcohol testing. On March 30, 2012, the Department of Children and Families issued a letter to Respondent stating that it found no indicators of physical injury and no indicators of bizarre punishment. On April 27, 2012, Respondent was evaluated by psychologist David J. Smith who opined that at that time, she was not fit for duty. She was re-evaluated on July 26, 2012, and cleared to return to work. At that time, she was assigned to a different school. One of the issues raised by Ms. Lewis was that Respondent permitted D.C. to hit himself more frequently than allowed by his behavior plan. The Administrative Complaint specifically charges that she allowed D.C. to hit himself repeatedly for up to ten minutes, while his behavior plan indicated that he should be allowed to hit himself up to three times. The behavior plan was not entered into evidence. The evidence was unclear as to what the plan actually required, and it was equally unclear exactly what Respondent was doing. For example, there was testimony that she would attempt to redirect him once he started hitting himself, but did not physically intervene for ten minutes. There was other testimony that there was never a time when he was allowed to simply hit himself with no one doing anything. Without being able to examine the behavior plan, and without being able to specify the exact incident or incidents at issue, it is not possible to determine whether Respondent was varying from the requirements of the behavior plan, or if any variation was significant. Ms. Davis reported to Ms. Swedlund that on or about Friday, January 27, 2012, J.B. was in time-out because of bad behaviors. While he was in time-out, he was sitting behind a rolling partition, and Respondent was holding the partition in place so that J.B. would have to remain in place. J.B. spat at Respondent, which is something he did often. Ms. Davis reported that while holding the partition Respondent spat back at him, an action that shocked Ms. Davis. Respondent denies ever spitting on J.B. She testified via deposition that J.B. was spitting while in time-out, and she was holding the barrier while talking to him. She responded to his behavior by saying “you do not spit.” Respondent testified that it was possible that some spittle may have fallen on J.B., but that she never intentionally spit on him. The only person who testified regarding the spitting was Ms. Davis. While she was a very credible witness, there was no testimony regarding how close she was to Ms. Henson or to J.B., or that J.B. reacted in any way. Neither of the other paraprofessionals in the room testified that they saw or heard about the incident, and it is implausible to think that such behavior would go without comment. It is conceivable that in saying, “you do not spit,” that spittle would result. Given the high burden of proof for this proceeding, the allegation has not been proven by clear and convincing evidence. As previously stated, K.M. presented a classroom management problem. She had a tendency to run around the classroom, take her clothes off, or run out of the classroom and sometimes out of the building. She also would tear up items in the classroom and could be very disruptive. Ms. Lewis felt that Respondent had a hard time getting past her dislike of the child. She had heard her say things like, “I could just kill you right now,” and “go ahead and go into the street.” While Ms. Lewis believed K.M. could understand such statements, she did not react to them, except perhaps to run faster. Ms. Lewis did not believe that Ms. Henson was serious when she made the statements, but more likely made them when frustrated by K.M.’s behavior. Respondent did not recall ever making such statements. Neither Ms. Lewis nor the Administrative Complaint identified exactly when Respondent was to have made these statements, although Ms. Lewis specified that they were statements made at different times. While Ms. Lewis testified that she believed Respondent did not like K.M., it is just as likely that she did not dislike the child, but was extremely frustrated by her behavior. All of the paraprofessionals testified that Respondent truly loved the children she worked with, but that she was frustrated and overwhelmed in the very challenging classroom in which she taught. While the evidence was clear and convincing that Respondent made the statements, even Ms. Lewis testified that she did not believe Respondent was serious when she made them. Regardless, the statements were not appropriate statements to make to a child, especially a child with limited intellectual abilities that might not be able to discern whether Respondent was serious. They are, by their nature, disparaging statements. Finally, the incident which caused Ms. Lewis to approach Ms. Swedlund about Respondent involved Respondent’s reactions to C.B. C.B. liked to work on the computer. He would play computer games, such as Dora the Explorer, and was rewarded with computer time for good behavior and finishing all of his assigned work. On Friday, January 27, 2012, C.B. had a rough day, and had been hitting, pinching, and kicking staff. Respondent had spoken with his mother about his behaviors to see if there had been any changes at home that might have contributed to his aggressive behavior. Respondent had told C.B.’s mother that they would have to try some different methods to get C.B. to comply, and that his playing on the computer all day would have to stop. The paraprofessionals testified that on Monday, January 30, 2012, Respondent seemed agitated all day. One said she seemed to carry the frustrations of Friday into Monday. That morning Jennifer Shea Saulmon went to the cafeteria to pick up C.B., who had walked from the parent pickup area without incident, and seemed to be in a good mood. When they reached the classroom, C.B. went straight to the computers. Respondent immediately told him that he could not have computer time. Ms. Saulmon was upset by this, because C.B. had not misbehaved that morning. She questioned Ms. Henson’s decision, and Respondent responded that he could not play on the computer all the time. He then completed his morning work without any disruption, and then walked over to the computers. Ms. Saulmon told him he could not play on the computer at that time. At about 9:15 a.m., the class began “circle time.” During this time, the students sit on the outside of a u-shaped table while Respondent sits on the inside of the “u.” C.B. did not like circle time. On this particular day, he was sitting at the end of the u-shaped table, to Respondent’s left. He began, as he often did, to hit and bite. According to Ms. Saulmon, this behavior usually subsides after about five minutes. This day, however, it did not. C.B. continued to pinch and hit Respondent. In response, Respondent put her arm up with a closed hand (so that the child could not pull and bend back a finger) in a blocking motion, as the teachers and paraprofessionals had been taught to do in order to protect themselves. She said out loud, “I’m blocking, I’m blocking.” However, rather than simply holding her arm up to block against any blows, she would swing her arm toward him to stop the blow, and in doing so, made contact with his arm. Although to Ms. Davis it looked like Respondent was hitting him, she never thought Respondent was trying to hurt C.B. Each time Respondent blocked C.B., he pinched her again, and she blocked him again, which made him angrier. He then started kicking her, and Ms. Davis and Ms. Saulmon believed she kicked him back. However, neither paraprofessional could say that Respondent actually made contact with C.B. They were pretty certain that C.B. was kicking Respondent, and they could see movement toward him by Respondent, and C.B. responded angrily by squealing as he usually did when frustrated or angry. It is just as likely that Respondent was using her leg or foot to try to block C.B.’s kicks, as she stated in her deposition, and that C.B. was angry because she was blocking him. Nonetheless, Respondent’s clear agitation in the classroom that day led to Ms. Lewis’ conversation with Ms. Swedlund about Respondent’s behavior. While all of the paraprofessionals stated concerns about Ms. Henson’s ability to handle that particular class, all were very supportive of her continuing to teach in the special education area. All three seemed to think that the environment of that particular class, which by any measure would be extremely challenging, is one that overwhelmed Respondent, and that she had been in that setting too long. When Respondent returned to work at the beginning of the 2012-2013 school year, she was transferred to Beach Elementary School. The principal at the new school is Glenda Nouskhajian. Ms. Nouskhajian considers Respondent to be one of her lead teachers in the ESE department, and has no performance- related concerns about her. The only issue Respondent has had since coming to Beach Elementary was a minor paper-work issue related to transferring schools within the district. Respondent is not working in a stand-alone classroom like she was before. She is what Ms. Nouskhajian referred to as a “push-in,” meaning that she goes into other teachers’ classrooms and works with students in small groups in an inclusion setting. She works with the lowest quartile of students, and helps with all of these students’ interventions. Ms. Nouskhajian testified that the students with whom Respondent works are making “great strides,” and Respondent is an educator she would “absolutely” seek to retain. Ms. Nouskhajian knew that there was an issue at Respondent’s prior school, but did not investigate the details. She stated that Respondent had been placed at Beach Elementary by Sharon Michalik, and “I knew that if she was a danger to students, Sharon Michalik would not have placed her at my school . . . . That she went through the counseling and everything she had to do so when she came to my school it was a total fresh start.” Since coming to Beach Elementary, Respondent’s evaluation for the 2012-2013 school year was overall effective, with all categories rated as effective or highly effective. In sum, there is clear and convincing evidence that Respondent made inappropriate remarks to student K.M. There is not clear and convincing evidence that Respondent spat on J.B., or that she hit or kicked C.B. Likewise, there is not clear and convincing evidence that she varied significantly from D.C.’s behavioral plan or acted in a way that allowed him to hurt himself. There is clear and convincing evidence that Respondent was frustrated and overwhelmed in the autistic classroom and, despite having asked for the assignment, had been teaching in that environment for too long to be effective, given the violent tendencies of the children in that setting. There is clear and convincing evidence that she took a leave of absence in lieu of termination and could only return to the classroom after an evaluation found her fit for duty. A change of setting was needed and has served to re-invigorate Respondent.
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 has violated rule 6A- 10.081(3)(e). It is further recommended that Respondent be reprimanded and placed on probation for a period of two years, subject to such terms and conditions as the Commission in its discretion may impose. DONE AND ENTERED this 24th day of March, 2014, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 24th day of March, 2014. COPIES FURNISHED: David Holder, Esquire J. David Holder PA 387 Lakeside Drive Defuniak Springs, Florida 32435 Emily Moore, Esquire Florida Education Association 213 South Adams Street Tallahassee, Florida 32301 Gretchen Kelley Brantley, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Suite 224 Tallahassee, Florida 32399 Matthew Carson, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399 Marian Lambeth, Bureau Chief Bureau of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399
Findings Of Fact On September 9, 1982 Petitioner filed an application with the Teacher Certification Section of the Florida Department of Education to be re-certified as a teacher in the State of Florida. He was previously certified as a teacher in Florida from September 3, 1974 until 1979 in the field of cooperative distributive education. Mr. Hill is a graduate of the University of South Florida with a bachelor's degree in distributive education and he has 20 to 25 hours of credit towards his master's degree in administration Supervision. From 1974 until 1977 he successfully taught school in the Orlando area. In December of 1979 Petitioner had an argument with his father. During the course of that argument Mr. Hill picked up a 12 gauge shotgun and hit his father in the stomach several times. Petitioner was arrested, charged with aggravated assault, and subsequently adjudicated not guilty by a reason of insanity. The court order adjudicating him not guilty found that "At the time of the alleged offense, defendant's psychological condition caused him to function under paranoid delusions and persecutory relations. He not only had such thoughts and beliefs, but they were held so firmly that he was acting upon them." After the entry of that order on March 24, 1980, Petitioner was found to meet the criteria for involuntary commitment to a state mental hospital pursuant to the provisions of the Baker Act. He was treated at G. Pierce Wood Memorial Hospital until June 1980 and then released to the Peace River Center for Personal Development as a resident there. In either October or November 1981 Mr. Hill ceased taking the psychotropic medication which had been prescribed for him. By March 1982 he was again readmitted as an involuntary patient at G. Pierce Wood Memorial Hospital and after treatment there he was released in August 1982 back to the Peace River Center. Dr. M. Saleem Jeewa has been his treating psychiatrist since June of 1980. At the present time Dr. Jeewa prescribes Mellaril, a major tranquilizer, and Pamelor, an anti-depressant medication for Petitioner. Mr. Hill now visits Dr. Jeewa on a monthly basis unless something unusual happens in the interim. Additionally Petitioner attends group therapy three times a week and lives in one of the satellite apartments at Peace River Center. The satellite apartments are an arrangement where three or four patients live together to share expenses and help each other as a peer group. The satellite apartments are not part of a residential facility but are leased out in the community by the Peace River Center. In April 1983 Petitioner began working at American Building Maintenance, a Tampa janitorial service. His other employment history subsequent to his arrest, but prior to this hearing, includes janitorial work for Goodwill Industries. This employment was terminated when, due to an automobile accident, Mr. Hill was injured and physically unable to perform his job. Prior to that employment he worked for a CETA program where he assisted in locating jobs for handicapped persons. With respect to Mr. Hill's present psychological state he has no evidence of any thought disorder. His speech is logical, coherent and relevant. He has a fair amount of insight into his own condition and his judgment is adequate. No psychosis is apparent. He continues however to display a mild form of mixed anxiety and depression. At the present time it would be difficult however, for Mr. Hill to handle a job where he is fairly independent, must be flexible with considerable responsibilities and handle a variety of tasks. In order for Mr. Hill to be a successful teacher in a classroom situation with responsibility for 15 to 20 children, he would initially need some additional assistance and support over and above that normally required by a new teacher. It is unlikely that due to Mr. Hill's present condition he would cause any harm or be dangerous to students or other people around him. While it is within the realm of possibility that Petitioner, if certified, could successfully handle the responsibilities of a distributive education teacher, that possibility is not probable in view of Petitioner's present fragile psychological state.
Recommendation Based on the foregoing Findings of fact and Conclusions of Law, it is RECOMMENDED: That the State Board of Education as the head of the Department of Education, enter a Final Order denying Petitioner's application for certification as a teacher in the field of distributive education. DONE and RECOMMENDED this 4th day of November, 1983, in Tallahassee, Florida. MICHAEL P. DODSON 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 4th day of November, 1983.
The Issue The issue is whether Petitioner is entitled to a permanent Florida Educator's Certificate.
Findings Of Fact Petitioner was born on May 25, 1976. She was educated predominantly in the Tampa Bay area, having attended two years of elementary school, all of middle school, and all of high school in Largo. Petitioner is Hispanic and conversant in Spanish, which is the first language that she learned at home, but her primary language is now English, which she speaks fluently and without accent. Petitioner attended the University of South Florida (USF), from which she graduated on July 1, 1998, with a bachelor of science degree and a 3.3 grade point average. She majored in English education and completed the state-approved teacher education program for English certification for grades 6-12. While attending USF, Petitioner participated in an internship under the supervision of a reading teacher with 11 years' teaching experience. During the internship, which ran from January to April 1998, Petitioner taught language arts and drama to Hillsborough County middle-school students who were predominantly Hispanic. Petitioner's supervising teacher gave her two employment references: the first to the Hillsborough County School District and the second to the Pinellas County School District. In the first reference, which is dated April 5, 1998, the supervising teacher evaluated Petitioner as "excellent" in all categories. The categories are "appearance," "English usage," "cooperation and dependability," "emotional stability," "mature judgment," "leadership," "ability to get along with others," and "ability to work with children in a friendly and understanding way." In her remarks, the teacher stated: "We will be lucky to have her." The teacher enthusiastically recommended that Petitioner be employed as a substitute. In the second reference, which is dated September 18, 1998, the supervising teacher assigned Petitioner the highest score in all categories except "ability to discipline," "professional attitude & growth," and "sympathetic understanding and treatment of students," for which the teacher assigned Petitioner the second highest rating. In response to a question if she know why Petitioner should not work with students, the supervising teacher responded, "Absolutely not." In response to a question if she would employ Petitioner, the supervising teacher stated that she would. Under additional comments, the supervising teacher added: "[Petitioner] motivated students on every level. She has the management skills of a ten year teacher." This case arises out of Petitioner's employment during the summer of 1998 as a residential counselor with the Summer Migrant Institute at the University of South Florida (Migrant Institute). This was Petitioner's first job after college. Her prior employment consisted of working at Walgreens pharmacy, escorting USF teachers and students to ensure their safety while walking the USF campus at night, working in the USF Marriott cafeteria, and serving as a substitute teacher in Hillsborough and Pinellas counties. Her present employment is in customer service at the Home Shopping Network. The Migrant Institute is a six-week program sponsored jointly by USF and the Hillsborough County School District. Each summer, eligible middle- and high-school students from throughout Florida live in USF dormitories and attend remedial academic instruction in USF classrooms. The Migrant Institute employs teachers and residential counselors, among other staff. During the summer of 1998, the teachers, residential counselors, and three administrators in charge of the program all resided in the dormitories with the students. The residential counselors performed a variety of supportive roles, such as serving as liaisons with the parents, advisors to the students, and assistants to the teachers. The administrators assigned female residential counselors to female students and male residential counselors to male students, at about a 1:10 ratio. Residential counselors, but not teachers, were required to eat their meals with the students in the cafeteria. There is some dispute, even among the administrators, as to what the administrators told the residential counselors they could and could not do with the students. The record suggests that the assistant director, in particular, was somewhat ambitious in his description of the guidelines and prohibitions that the administrators gave the residential counselors. Of course, nothing in the record suggests that Petitioner lacked the common sense to recognize that she could not voluntarily have sexual contact with a 13-year-old male student. The record is less developed as to what the Migrant Institute rules required Petitioner to do if a 13-year-old male student kissed her, once or even twice. However, the evidence does not support, and even contradicts, the assertions of the administrators that the rules of the Migrant Institute prohibited any contact whatsoever between staff and students of the opposite sex. The student involved in this case is A. M., who was born on August 21, 1984. He had failed most of his classes during the prior school year. He attended the Migrant Institute at the suggestion of his school counselor, who hoped that he could acquire sufficient skills to earn a promotion to the next grade. A. M. took five or six classes during the six-week summer program and earned grades of Bs, Cs, and Ds in his courses. A. M.'s first four weeks at the Migrant Institute passed without incident. In the fourth week, A. M. met Petitioner. Although she was not his residential counselor, A. M. approached Petitioner one afternoon while walking to the dormitories from his last class. During this initial conversation, Petitioner and A. M. spoke only about baseball. However, later in the fourth week, Petitioner and A. M. spoke about other matters, such as his grades and personal problems that he was having that interfered with his academic performance. A. M. missed his father, who was working in Mexico. During the fourth week, Petitioner asked A. M.'s teacher to release him from class, so that Petitioner and A. M. could talk about his problems and academic performance. One day, during the fourth week, after Petitioner and A. M. had spoken three or four times, Petitioner and A. M. happened to encounter each other in a stairwell in the dormitory. It was late in the afternoon after the recreation period, just before the students were to prepare to eat supper. Someone had directed Petitioner to find another boy. After she had found him, Petitioner was climbing the stairs to return to her room when she met A. M. walking down the stairs. Petitioner and A. M. spoke for about a minute on the stairs. Then, without warning, A. M. kissed Petitioner briefly on the lips. Completely surprised by A. M.'s behavior, Petitioner pushed him hard, saying, "What the fuck are you doing?" Obviously unhurt by the push and unoffended by the language, A. M. replied that Petitioner had nice lips. She ignored A. M.'s impertinent comment and warned him never again to misbehave in this manner. A. M. apologized and said that he knew he should not do that. Petitioner added that she did not want to get into trouble or be fired from the program, and A. M. said that he understood. Due to her concerns that she would get into trouble for getting kissed and pushing and swearing at a student, Petitioner decided not to report the incident to the administrators. The next time Petitioner saw A. M. neither of them said anything about the incident, and their relationship returned to how it had been prior to the incident. On one other occasion, Petitioner removed A. M. from class to talk to him. On one occasion, Petitioner sat next to A. M. in the cafeteria and ate lunch with him. Two or three days after the stairwell kissing incident, Petitioner encountered A. M., again late in the afternoon. After having walked her students back to their dormitory following class, Petitioner returned to the classroom building to tutor some boys in a study hall. Knowing Petitioner's teaching background, someone had asked her to tutor the boys because, the prior day, one of the boys' tutors had left the program to return to Mexico. A. M. was among the boys in the study hall. For about 45 minutes, Petitioner tutored the boys, but A. M. was disruptive for the entire time, slamming books and throwing paper. Petitioner told him to stop being disruptive and do his work, but he ignored her. Unable to summon assistance, because she would be leaving the study hall unsupervised, Petitioner tried to deal as best she could with A. M., who was a reasonably large, well developed boy. At the end of the study hall, Petitioner dismissed the other students for dinner, but told A. M. to remain so she could speak to him. Petitioner told A. M. that she did not appreciate his behavior and that other students had a right to learn. Petitioner and A. M. were both sitting, facing each other. Suddenly, A. M. leaned over and kissed Petitioner briefly again. Petitioner was upset, although not angry. She said that they had spoken about this before, and he needed to consider the position in which his behavior left both of them. A. M. again agreed not to attempt this behavior. Again, Petitioner did not report the incident due to concerns that she would get into trouble. It is difficult to describe Petitioner's characterization of these two incidents. At the hearing, Petitioner seemed somewhat shy and even intimidated. In her dealing with the authority represented by the persons at the hearing, Petitioner seemed a very young 24 years old and presumably was an even younger 23 years old during the summer of 1998, as she credibly claims to have felt uncomfortable with the three administrators. On balance, the most compelling view of all of the evidence is that Petitioner felt that A. M.'s behavior was a relatively minor annoyance--a product of an otherwise-harmless crush that he had on her and, if revealed, a potential source of trouble for her with her supervisors. Regardless of her handling of A. M.'s advances, Petitioner unwisely did not discourage his flirting, as she admits even to have engaged in some undescribed flirting herself with A. M., "explaining" that he had told her that he was 16 years old. On Sunday, July 19, the director of the Migrant Institute summoned Petitioner to his room to discuss with him, the assistant director, and the residential counselor supervisor reports that they had heard that Petitioner had an improper relationship with A. M. The director, Patrick Doone, was a USF employee. For the most part, he delegated responsibility for the residential counselors to the assistant director, Sundy Chazares, an assistant principal of a high school within the Hillsborough County School District, and the residential counselor supervisor, Rosie Mendez, also a USF employee, who had been a residential counselor for the preceding seven years before becoming the residential supervisor in the summer of 1998. The meeting consisted of two parts. In the first part, which lasted 15 minutes, Mr. Doone began by asking Petitioner if there was "anything going on" between her and a student, possibly naming A. M. Petitioner said that there was not. Mr. Chazares then took over, saying that he knew that A. M. and Petitioner had kissed. Petitioner admitted that she and A. M. had kissed, but added, "it's not the way you think it is." The meeting quickly became confrontational, with Mr. Chazares and Ms. Mendez loudly making accusations, rather than asking questions and giving Petitioner a chance to explain. Illustrative of the level of discourse was Ms. Mendez's rhetorical question, "So you like 14- year-old boys?" Petitioner began to cry and did not say anything else. Mr. Doone then told Petitioner to return to her room, which she did. After a brief discussion among the three administrators, they decided to terminate Petitioner from the Migrant Institute program that night. Mr. Doone summoned Petitioner from her room and told her, "Pack up your bags and leave the premises as soon as possible." After packing her clothes and saying goodbye to the girls whom she had supervised, Petitioner left the USF campus that evening and did not return, nor did she have further contact with A. M. As a result of her termination from the Migrant Institute program, Petitioner lost the job that she had been given to start teaching fulltime in the Hillsborough County School District in the fall of 1998. On September 14, 1998, Petitioner completed an application for a teaching position with the Pinellas County School District. Submitted the next day, the application discloses the employment with the Migrant Institute. Petitioner answered "no" to the question, "Have you ever been suspended without pay, or dismissed from employment or resigned while an investigation was in progress for possible disciplinary action?" The declaration above Petitioner's signature states in part: "I declare that the answers given by me to the foregoing questions and statements are true and correct without pertinent omissions." At the time that she responded to this question, Petitioner was represented by counsel concerning the incidents of the summer of 1998. However, the Administrative Law Judge excluded evidence of reliance upon advice of counsel. Petitioner testified that she felt that a confidentiality directive issued by a Hillsborough County School District investigator precluded the disclosure of her termination, but this explanation is inadequate. If Petitioner had developed evidence of reliance upon advice of counsel, the evidence might have been mitigative, but not entirely exculpatory because such reliance must be justifiable. The application squarely asked whether the applicant had ever been terminated, and Petitioner failed to answer the question. No legal advice can overcome these simple facts. The incidents during the summer of 1998 do not constitute gross immorality or moral turpitude. These incidents do not constitute personal conduct that seriously reduces Petitioner's effectiveness as an employee of the school board. These incidents do not constitute a violation of any of the rules cited in the proposed recommended order of Respondent. Petitioner did not kiss A. M., but was kissed by him. Petitioner mishandled the misbehavior of A. M. by not reporting it to one of the administrators, at least by the second occasion, although it appears likely that Petitioner justifiably feared that she might lose her job, even if she had reported the misbehavior after the first incident. In any event, Petitioner clearly did not enter into a sexual relationship with a 13-year-old student. The omission of the termination from the Pinellas County School District application was material and dishonest. By answering the question in the negative, Petitioner made a fraudulent nondisclosure of information that is crucial to the hiring decision that any school district must make. Lying on this application denied Petitioner's prospective employer of the right that it has to learn of material facts concerning job applicants, weigh this information, and then arrive at an informed employment decision.
Recommendation It is RECOMMENDED that the Education Practices Commission enter a final order granting Petitioner a Florida Educator's Certificate. DONE AND ENTERED this 26th day of June, 2000, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 26th day of June, 2000. COPIES FURNISHED: Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Room 224-E Tallahassee, Florida 32399-0400 Jerry W. Whitmore, Chief Bureau of Educator Standards Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400 Michael H. Olenick, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400 B. Edwin Johnson Attorney at Law 1433 South Fort Harrison Avenue Suite C Clearwater, Florida 33756 J. David Holder Law Offices of J. David Holder, P.A. Post Office Box 489 DeFuniak Springs, Florida 32435
The Issue Whether Sharon V. Eaddy (Respondent) committed the acts alleged in the Notice of Specific Charges filed by the Miami-Dade County School Board (the School Board) on August 29, 2014, and whether the School Board has good cause to terminate Respondent’s employment as a paraprofessional.
Findings Of Fact At all times material hereto, the School Board has been the constitutional entity authorized to operate, control, and supervise the public schools in Miami-Dade County, Florida. Campbell Drive Center is a public school in Miami-Dade County, Florida. During the 2013-2014 school year, the School Board employed Respondent as a paraprofessional pursuant to a professional service contract. At all times material hereto, Respondent’s employment was governed by the collective bargaining agreement between the School Board and the United Teachers of Dade, the rules and regulations of the School Board, and Florida law. The School Board assigned Respondent to a Pre-K special education classroom at Campbell Drive Center taught by Pascale Vilaire. Respondent has worked at Campbell Drive Center as a paraprofessional for 13 years. During the 2013-2014 school year, 14 special needs students were assigned to Ms. Vilaire’s classroom. Those students were between three and five years of age. L.H., a four-year-old boy who was described as being high functioning on the autism spectrum, was one of Ms. Vilaire’s students. L.H. had frequent temper tantrums during the 2013-2014 school year. Prior to the conduct at issue in this matter, Respondent had had no difficulty managing L.H.’s behavior. There was a conflict in the evidence as to the date the conduct at issue occurred. The undersigned finds that the conduct occurred April 9, 2014, based on the Incident Information admitted into evidence as Petitioner’s Exhibit 4, on the testimony of Yamile Aponte, and on the testimony of Grisel Gutierrez.1/ Ms. Aponte had a daughter in Ms. Vilaire’s class and often served as a parent-volunteer. Ms. Aponte was at Campbell Drive Center’s cafeteria on the morning of April 9, 2014. Present in the cafeteria were Ms. Vilaire, Respondent, some of Ms. Vilaire’s class (including L.H.) and students from other classes. When Ms. Aponte entered the cafeteria, L.H. was crying and hanging on to a trash bin. Ms. Vilaire was attending to another student. Respondent was trying to deal with L.H. to prevent him from tipping over the trash bin. Respondent led L.H. by the wrist back to a table where they sat together. Ms. Aponte approached them and offered L.H. a milk product referred to as a Pediasure. Because L.H. was allergic to milk, Respondent told Ms. Aponte that L.H. could not have the product. When Ms. Vilaire lined up her class to leave the cafeteria, L.H. threw a tantrum because he was still hungry. Ms. Aponte testified that Respondent grabbed L.H. by the wrist and pulled him up. Ms. Vilaire observed the entire interaction between L.H. and Respondent in the cafeteria. Ms. Vilaire did not witness anything she thought was inappropriate or caused her concern. Petitioner failed to establish that Respondent became physically aggressive toward L.H. in the cafeteria by dragging him across the floor or otherwise grabbing him inappropriately. Paragraph nine of the Notice of Specific Charges contains the allegation that while in the cafeteria, “Respondent forcefully grabbed L.H. and dragged him across the floor.” Petitioner did not prove those alleged facts. After the class finished in the cafeteria, the students lined up to go back to the classroom. Ms. Vilaire was at the front of the line, and Respondent was ten to fifteen feet behind at the end of the line with L.H. Ms. Aponte was part of the group going from the cafeteria to the classroom. During the walk back to the classroom, Ms. Vilaire did not see or hear anything between Respondent and L.H. she thought was inappropriate. She did not hear anything that diverted her attention to Respondent and L.H. At the time of the conduct at issue, Barbara Jackson, an experienced teacher, taught first grade at Campbell Drive Center. While Ms. Vilaire’s class was walking from the cafeteria to the classroom, Ms. Jackson had a brief conversation with Respondent about getting food for her class from McDonald’s. Ms. Jackson did not hear or see anything inappropriate between Respondent and L.H. After stopping to talk with Ms. Jackson, Respondent resumed walking to Ms. Vilaire’s classroom. L.H. continued to cry and attempted to pull away from Respondent. L.H. wanted to be the leader of the line, a position that is rotated among the class members. Ms. Vilaire led the other class members into the classroom while Ms. Aponte, Respondent, and L.H. were still outside. While still outside, they saw Grisel Gutierrez, a teacher at Campbell Drive Center. L.H. began to throw himself on the ground on top of his backpack. Ms. Aponte and Ms. Gutierrez saw Respondent grab L.H. forcefully by the arm and hit him on his shoulder with a slapping sound.2/ After Respondent returned L.H. to the classroom, L.H. tried to push over a bookcase containing books and toys. To prevent L.H. from pushing over the bookcase, Respondent grabbed L.H. by his hands and held them behind his back. Ms. Vilaire witnessed the interaction between Respondent and L.H. in the classroom and thought Respondent acted appropriately. Petitioner failed to establish that Respondent acted inappropriately towards L.H. while in the classroom. Ms. Aponte reported what she had seen to the school principal the day of the incident. Respondent learned that Ms. Aponte had complained against her the day of the incident. After school the day of the incident, Respondent angrily confronted Ms. Aponte and asked her why she had lied. Rounett Green, a security guard at Campbell Drive Center, stepped in to end the confrontation between Respondent and Ms. Aponte. There was no evidence that Respondent attempted to threaten Ms. Aponte. Respondent did not use inappropriate language towards Ms. Aponte. Respondent did not make physical contact with Ms. Aponte. L.H.’s mother heard about the alleged interactions between Respondent and L.H. When L.H. returned home after school, the mother examined L.H. and found no bruises or other unusual marks on L.H.’s body. At its regularly scheduled meeting on June 18, 2014, the School Board suspended Respondent’s employment and instituted these proceedings to terminate her employment.
Recommendation The following recommendations are based on the foregoing Findings of Fact and Conclusions of Law: It is RECOMMENDED that the Miami-Dade County School Board, enter a final order adopting the Findings of Fact and Conclusions of Law set forth in this Recommended Order. It is further RECOMMENDED that the final order terminate the employment of Sharon V. Eaddy. DONE AND ENTERED this 15th day of January, 2015, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 15th day of January, 2015.
