The Issue The issue is whether Respondent's conduct constitutes just cause for her dismissal from employment with Petitioner.
Findings Of Fact At all times material to this matter, Petitioner was a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within the school district of Miami-Dade County, Florida, pursuant to article IX, Section 4(b) of the Florida Constitution and section 1001.32, Florida Statutes. At all times material to this matter, Respondent was employed as a teacher at J. W. Johnson Elementary (Johnson Elementary), a public school in Miami-Dade County, Florida. At all times material to this matter, Respondent's employment was governed by the collective bargaining agreement (CBA) between Miami-Dade County Public Schools and the United Teachers of Dade (UTD), the rules and regulations of the School Board, and Florida law. Respondent holds a professional services contract. Respondent's employment can be terminated for "just cause" as defined by the School Board in the Notice of Specific Charges. Prior to the 2009-2010 school year, Respondent was assigned as a pre-K teacher for non-disabled students. Due to decreased enrollment, Johnson Elementary lost unit allocations for teaching positions that year. In order to prevent some teachers from losing their jobs, reassignments were made of existing personnel to new positions. Of the persons Johnson Elementary Principal Maritza Garcia had available in her pool of teachers, Respondent was the most qualified person to teach a pre-K class of autistic students. Such students are qualified as being "exceptional," and the education of such students is commonly referred to as "exceptional student education" or "ESE." As such, during the 2009-2010 school year, Respondent was reassigned to teach a pre-K ESE class, which was comprised of autistic students. The autistic students are approximately four to five years old. They cannot speak and express themselves, making them even more vulnerable than ordinary students of similar age. Respondent was certified to teach these pre-K ESE students. In addition to holding the proper certification, Respondent was given the opportunity to participate and did participate in classes and trainings, both before the school year began and during the school year, regarding the instruction of ESE students with a particular emphasis on autistic students. Respondent was also assigned a mentor named Claudia Monsalve who provided her with hands-on assistance in the classroom, giving her guidance and support in the instruction of autistic ESE students. Ms. Monsalve met with Respondent one to two times per month and gave her written feedback on how to develop and improve her instruction methods. Ms. Monsalve also administered the pre-school year trainings. The support and training given to Respondent was extensive and no less than any other would have received as a result of being assigned to a similar classroom situation. Although not testifying on her own behalf, Respondent submits that she was "essentially abandoned" in the classroom with "no prior training." This argument is not supported by the record. Throughout the 2009-2010 school year, Respondent never requested additional help in her classroom from either the school administrators or Ms. Monsalve. According to Ms. Monsalve, it was a common occurrence for teachers to request such assistance, but Respondent made no such requests. Had Respondent requested additional support, she could have been provided additional in-service training or the administration could have assigned additional paraprofessionals to her classroom. Absent any requests, this additional help was not provided. In her time mentoring Respondent, Ms. Monsalve never saw her mistreat a child. On May 27, 2010, the principal's office received a telephone call stating that a package would arrive in the principal's mail that day. A package did arrive, was opened by the principal, and contained both a letter and a DVD. The unsigned letter contained criticisms of Respondent's pre-K autistic class, alleged "verbal and physical abuses" having occurred in the classroom, and referenced the enclosed DVD in support of the allegations. The person or persons who sent the letter have not been identified. School administration denies that it planted the camera that recorded the DVD, and it is more likely than not that a concerned parent placed the camera in the classroom. It is believed the recording was made in May 2010 from the dress of the students and other factors identified by administration. The principal viewed the DVD, which is approximately one hour in length. As a result of viewing the images on the DVD, and out of concern for the safety and welfare of the children in the class, the principal asked the school police to conduct an investigation. By letter dated June 3, 2010, the principal notified Respondent that she was being investigated based on the conduct shown on the DVD. The complainant was listed as unknown. One of the paraprofessionals assigned to Respondent's classroom, Marcia Dominguez, viewed the DVD and testified the footage was recorded on a Wednesday, in early to mid-May 2010. She determined this based upon her appearance in the video, the children present in the video, the state of the classroom, the clothing she and the other paraprofessional were wearing, and the activities occurring that day in the classroom on the day depicted on the DVD. The DVD shows numerous inappropriate actions taken by Respondent, including yelling and scolding the students, using harsh language and referring to their disabilities in a derogatory manner; pulling, jerking, swatting, and striking the students (one on the hand and forearm, one on the bottom), with both an open hand and a stick or classroom pointer; and brandishing a ruler and a stick, which she used to strike classroom furniture and intimidate the students. In addition to what can be viewed on the video, there are instances of other inappropriate behavior that can only be heard or inferred by the viewer. A sound like slapping can be heard, although not seen due to the camera being obscured. It is reasonable to assume the slapping is either of a child or furniture in the classroom. The behaviors and actions exhibited by Respondent in the video are beyond any reasonable explanation and depict Respondent as not being in control of her classroom. None of the actions described above may be considered appropriate behavior for a teacher. At the conclusion of the investigation, a conference was held between one of Petitioner's administrators, Respondent, and Respondent's representative. At that conference, Respondent was directed to refrain from contacting any parties involved in the investigation. Respondent violated this directive and called Ms. Dominguez on numerous occasions. Ms. Dominguez told Respondent she could not discuss the case with her while it was under investigation. The result of the investigation was a probable cause finding against Respondent for violations of the School Board and State Board of Education rules. Based upon the results of the investigation, the superintendent of schools recommended termination of Respondent's employment. The CBA specifically addresses the procedures for handling anonymous complaints made against School Board employees. Petitioner took no steps to ascertain the identity of the complainant who authored the anonymous letter and provided the DVD to the principal. The CBA clearly states that no investigation of allegations of misconduct against an employee shall be made on the basis of an anonymous complaint. The information contained in the anonymous letter and DVD served as the initial basis for the investigation of Respondent. That information was corroborated by the testimony of Ms. Dominguez, who was present in the classroom when the DVD was made. The DVD received by the principal along with the anonymous letter also serves as corroboration of the letter itself. The DVD gives life to the allegations made by the unknown author of the letter. The anonymous letter, by itself, cannot serve as the sole basis for investigating Respondent according to the explicit terms of the CBA. While the source of the DVD is unknown, the evidence supports the fact that the DVD is, in fact, a depiction of Respondent's classroom in May 2010. This is corroborated by the presence of Ms. Dominguez in the classroom and on the video, as well as her testimony at hearing. Dolores Mendoza, Petitioner's supervisor for the pre-K program for children with disabilities, criticized the behavior of Respondent based upon the DVD which was authenticated by the testimony of Ms. Dominguez, the paraprofessional assigned to Respondent's classroom. She candidly admitted that if all teachers were secretly videotaped, most would be seen yelling or screaming at one time or another in class. She admitted that she had yelled and screamed in class on occasion. Teaching pre-K autistic children is difficult. Effectively teaching pre-K autistic students is enhanced by years of classroom experience, and is not honed through only a once-a-month classroom visit or monthly mentoring meetings.
Recommendation it is Based upon the Findings of Fact and Conclusions of Law, RECOMMENDED that the School Board enter a final order sustaining the termination of Respondent's employment. DONE AND ENTERED this 24th day of January, 2012, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 January, 2012. COPIES FURNISHED: Mark Herdman, Esquire Herdman and Sakellarides, P.A. 29605 U.S. Highway 19 North, Suite 110 Clearwater, Florida 33761 Christopher J. La Piano, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 430 Miami, Florida 33132 Alberto M. Carvalho, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 912 Miami, Florida 33132 Gerard Robinson, Commissioner Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Charles M. Deal, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issues are whether Respondent is guilty of misconduct in office, as alleged in the Petition for Termination dated May 19, 2014, and if so, whether termination of her employment is an appropriate sanction.
Findings Of Fact The Parties and the Charges Petitioner is responsible for hiring, overseeing, and terminating employees in the school district. Respondent is an instructional employee who received a bachelor's degree in special education in 2007 from Florida Gulf Coast University. She is certified to teach (a) special education kindergarten (K) through grade 12; (b) pre-K through grade three; (c) English to speakers of other languages; and (d) general education K through grade six. Also, she has completed three of four masters level courses in autism required to obtain her Autism Endorsement. On October 1, 2010, Respondent acquired her professional services contract. As an instructional employee, Respondent's employment is governed by the Collective Bargaining Agreement between the Board and the Teacher's Association for Lee County (TALC). In order to terminate an employee under the TALC contract, just cause is required. The incident which gave rise to this proceeding took place on December 12, 2013, at which time the Board alleges Respondent improperly restrained a special education student in her classroom. Several months later, after the parents of two other students in her classroom learned about the incident, they came forward and, for the first time, expressed concerns about behavioral issues with their children and physical injuries (bruises on the legs and a scratch mark) that they attributed to Respondent. (A third parent also telephoned the school but did not wish to file a complaint.) The parents' complaints triggered the Board's proposed action. In a Petition for Termination dated May 19, 2014, the Board alleged that just cause exists for terminating Respondent for the following acts of misconduct while teaching a special education class at Caloosa during school year 2012-2013 and the fall of school year 2013-2014: She improperly restrained a student in her classroom on December 12, 2013; She exhibited "a pattern of inadequate classroom supervision and academic focus prior to that incident"; She yelled at students and was relentless when a student refused to perform a task; She was observed by a colleague attempting to force feed a student; She told a student, "I'm bigger than you, I will win"; The school received complaints from the parents of two children that they noticed an escalation of negative behavior in their children while they were students in her classroom; One of the two parents alleged that her child's behavior immediately improved after the child was withdrawn from the school in February 2014; and The second parent alleged that her child would come home from school with bruises on his legs; that his speech and behavior immediately improved after Respondent left school; and that the child had significant diaper rash and full diapers on several occasions when he arrived at his after-school provider. Respondent does not dispute the allegation that she told a student "I'm bigger than you, I will win." Even so, the undersigned has assigned that statement little, if any, weight in resolving this dispute. Respondent's Employment Prior to School Year 2012-2013 In the spring of 2007 Respondent completed her paid internship with the Board as a student teacher. In August 2007 she was hired by Caloosa on an annual contract teaching intensive academics to students with learning disabilities in grades K through two. At the end of her first year of teaching, Respondent received a performance assessment of high performing and/or satisfactory in all categories. Shelley Markgraf, her evaluator and then the assistant principal of Caloosa, noted that Respondent had a "rough start" but ended the year "with a strong finish" and that Markgraf was "very proud" of her accomplishments. Pet'r Ex. 7, p. 73. Respondent's contract at Caloosa was not renewed at the end of the year. There is no evidence, however, that the non- renewal was due to poor performance. In school year 2008-2009, she was hired by Veterans Park Academy for the Arts (VPA), another District school, where she continued teaching for the next four years. During that four-year period, she taught K, first, and second grade special education students with autism. All were low-functioning students who were not capable of receiving a regular diploma when they finished high school. She was rated as satisfactory or effective for each of those years. School Year 2012-2013 Respondent elected to return to Caloosa for the 2012- 2013 school year, primarily because Caloosa was located closer to her home. By then, Markgraf was principal, and even though Markgraf had misgivings about hiring Respondent, she was hired because of a lack of applicants qualified to teach ESE students. Respondent was assigned to teach a small pre-K social communications class with less than ten autism students. The students were three to five years of age, on the autism spectrum, and many were behaviorally challenged, easily frustrated, and had social communication deficiencies. During most of the year, Respondent's paraprofessional (helping teacher) was Sara Catalano. It is fair to say that the working relationship between the two was not good. Catalano eventually left Respondent's classroom before the end of the school year because she felt she could not continue to work with Respondent. According to Catalano, Respondent did not prepare for class, her continual "scrambling" at the last minute to get activities prepared created a very "stressful" environment, and Catalano felt her efforts could be better served in another classroom. Respondent attributes her preparation deficiencies to the fact that Caloosa used a set teaching curriculum for exceptional students, which had not been used at VPA, and it took time and effort to adapt to the new requirements. On October 10, 2012, Caloosa's Behavioral Specialist, Crystal Dormer, wrote a memorandum to the administration regarding various things she had observed when she visited Respondent's classroom four or five times a week. See Pet'r Ex. 11. As further explained by Dormer at hearing, many times she found Respondent in the bathroom and not supervising the students. She estimated that Respondent went to the bathroom approximately ten to 15 times per day and spent up to 12 minutes in there each time. She characterized Respondent as having controlling behavior, relentless in forcing a student to complete a task, and lacking in patience, as evidenced by her yelling at the students. On one occasion, Dormer observed Respondent attempting to force feed a student who brought his own lunch from home and refused to try the school food. Finally, she was concerned with Respondent's "sporadic mood swings" when she would be calm and pleasant with the students and then suddenly begin yelling at them. On October 12, 2012, Respondent was issued a Letter of Concern by Markgraf regarding "the many concerns various people have had that have come in and out of [her] room." Pet'r Ex. These concerns included "screaming" at students (which was heard by teachers and other personnel passing by the classroom), failing to supervise her students, using her cellphone "all the time" during class for personal calls (most of which were made to her husband in a loud and argumentative tone), being easily frustrated with other teachers, and having a lack of patience with the students. School policy is for teachers to have their cell phones turned off during the day and used only for emergencies. Finally, two teacher aides asked to be removed from her classroom because "they were uncomfortable with the way things were going." In the Letter of Concern, which addressed only some of the complaints received by Markgraf, Respondent was specifically instructed to not have her cell phone out when supervising students; supervise her classroom at all times; treat students with respect; not attempt to force students to try the school lunch if they brought a lunch from home; and focus on school issues rather than personal issues at home. Pet'r Ex. 16. Respondent did not deny the allegations or protest receiving the Letter of Concern. On April 8, 2013, Respondent received a Letter of Reprimand for Unsatisfactory Performance for sleeping during "naptime" at her desk. Pet'r Ex. 17. The incident was first reported by Catalano who, after knocking on the door, entered the classroom to obtain supplies (pencils) and noticed that for around four minutes, Respondent sat at her desk with her head lowered and did not raise her head or otherwise acknowledge her presence. The assistant principal, Diana Lowrey, then went to the classroom and observed Respondent with her head down and appearing to be asleep. Although Respondent contended that she was not sleeping but was holding her head down while waiting for a pain reliever to start relieving a migraine headache, this explanation was not accepted. The Letter of Reprimand directed Respondent to remain awake and alert during all supervisory time periods or call somebody to cover her classroom. The Letter indicated that she had violated School Board Policy 4.01 regarding student safety. The performance evaluation for school year 2012-2013 had a rating scale that included, from best to worst, Exemplary, Accomplished, Basic, and Requires Action. Basic means you need improvement, while Requires Action means something is drastically not right. In the 20 areas evaluated for Respondent that school year, Respondent received one Exemplary (Communicating With Families). According to Markgraf, "parents loved her" because she was "very good at communicating" with them. She also received nine Accomplished, nine Basics, and one Requires Action. See Pet'r Ex. 7. The Requires Action was in the area of Establishes and Manages Classroom Procedures. Id. Markgraf testified that she wanted Respondent to "improve on classroom supervision" and "to improve on the way she spoke to and treated kids, and her peers." In her written comments, Markgraf noted that "[w]hile she had done some great things in her classroom and with her peers, there are some things I would like to see improved for next year." Pet'r Ex. 7, p. 51. Markgraf went on to say that there "have been a couple of instances where supervision has not been optimal in the classroom, this needs to improve to 100%. On days when Shawna is not 100%, she has frustration problems with students and is not always respectful to them, and is not always prepared." Id. The evaluation concluded that "Shawna has done everything I've asked of her this year and I look forward to a very successful next year." Id. School Year 2013-2014 Respondent returned to Caloosa for school year 2013- 2014. Although she was still one course short of obtaining her Autism Endorsement, she was again assigned to teach pre-K autistic students. The class began with four students but by October 2013 had increased to eight. Most of the students were new to a school environment, their academic levels were much lower than the students she had the year before, and they were either nonverbal or had very limited verbal communication. In short, they were a far more challenging group to manage than the students she taught the previous year. Respondent's paraprofessional was Andrea Schafer. A second paraprofessional, Deborah Wagner, spent approximately 90 minutes per day in the classroom after the classroom size reached eight students. At the beginning of the school year, Markgraf instructed Schafer to immediately inform her of any concerns regarding Respondent's conduct or classroom management. Until December 2013, Schafer did not report any concerns to Markgraf. Undoubtedly, as Markgraf suggested, this was because "teachers and staff don't like to tell on each other," but wait until "things have spiraled out of control." When Schafer concluded that things were going "downhill," she spoke with Markgraf on December 6, 2013. She reported that Respondent was engaged in "troubling behavior," and that she was spending "more and more time in the bathroom" and "more time on her phone" texting messages, mainly to her husband. Also, Schafer reported that Respondent would allow the students to just sit in front of the "You Tube videos" for academic lessons, rather than presenting live instruction. While this took place, Respondent would go to the restroom, presumably to use her cell phone, leaving Schafer to manage the classroom. With Markgraf's approval, Schafer began keeping detailed notes on index cards regarding Respondent's performance. See Pet'r Ex. 9. As it turned out, Respondent was suspended a few days later so notes were only recorded for Respondent's activities on December 9, 10, and 11, 2013. They reflect, among other things, that Respondent continued to remain in the bathroom for long periods of time (up to 19 minutes), and she was using her cell phone for personal calls. The notes also reflect that student D.M. was very non-compliant and disruptive, that Respondent had difficulty managing him, and that D.M.'s father met with Respondent in the classroom on December 10, 2013. The other paraprofessional, Wagner, confirmed that after she was assigned to the classroom in October, she observed Respondent spending "a lot" of time in the bathroom, especially when the children were eating, and that she would put her cell phone away when leaving the bathroom. This led Wagner to conclude that Respondent was using her cell phone while in the bathroom. The December 12, 2013 Incident One of Respondent's students was D.M., then four years old, who had transferred to Caloosa in October 2013 from a school in New York City. According to Markgraf, D.M. "was a big kid, and he was violent when he went off, and it wasn't a secret in school." Dormer described him as "aggressive, noncompliant, and disruptive," and that he would "hit, throw things, scream, pinch, [and] bite on occasion." She testified that D.M. was one of two out of 35 autistic students that year that caused her the most problems. Wagner testified that D.M. "had more frequent temper tantrums" than other students and that if you asked D.M. to do anything, he would start crying. Schafer agreed with Wagner's assessment and noted that Dormer had to be called a number of times to remove him from class. At hearing, D.M.'s mother testified (through an interpreter) that as a disciplinary measure at home, her husband would take off his belt and show it to D.M. whenever he misbehaved, but she denied that he ever used it when punishing the child. However, on a visit to Respondent's classroom on December 10, 2013, the father took off his belt and offered to give it to Respondent to use on his son if a disciplinary problem arose. In sum, the evidence shows that D.M. was probably the most difficult autistic child in the school to manage and teach. The incident in question began on the morning of December 12, 2013, after Respondent attempted to have D.M. perform a counting exercise from one to 100. Completing the exercise was necessary before the Christmas break in order for a new Individualized Education Program (IEP) to be prepared for D.M. His current IEP had been prepared in New York and needed to be revised to conform to Florida requirements. Rather than count, D.M. wanted to play on the computer, his favorite activity. At that point he became combative and disruptive. While changing the diapers of a student in the bathroom that adjoins the classroom, Schafer heard yelling in the classroom. When she entered the classroom, she observed D.M. sitting in a chair in front of a table in the back of the room with Respondent standing behind him. D.M. was "very upset and very aggressive" and swinging his arms in an effort to free himself. Schafer stated that Respondent had her hand on the back of D.M.'s neck and was attempting to push his head onto the table in front of him. Respondent says she was simply trying to keep the child seated until the counting exercise was completed. Schafer also observed Respondent holding D.M.'s fingers and pushing them into his wrist in an effort to restrain him from hitting her. When D.M. attempted to bite Respondent, she raised his arm towards his mouth to prevent this. While this was occurring, D.M. was complaining that it hurt and was crying. At one point, Respondent held D.M.'s arms behind his back. Schafer asked Respondent if the behavioral specialist should be called to the classroom. She asked because on prior occasions when D.M. was having a "temper tantrum" or refusing to comply with instructions, Dormer, who "helps out when a student is in crisis," had been called to the classroom to assist Respondent. Respondent replied that this was not necessary. Wagner was present for a part of the incident. She walked into the classroom and observed Respondent standing behind D.M., who was crying and seated in a chair in front of a table. Respondent's hand was on D.M.'s neck pushing his head toward the table. Respondent asked Wagner to stand behind D.M. and hold him while she temporarily left the area to pick up items needed for the other students. Although she did not see Respondent take D.M.'s hands and push his wrists down, she stated that Respondent had done this on a few other occasions whenever a student attempted to bite her. Schafer says the incident was over "pretty quick," and after continual prompting by Respondent, D.M. completed most or all of the counting exercise and was allowed to go to a computer. The student did not suffer any physical injuries during the incident. Schafer did not immediately report the incident, as she was unsure if the techniques being used by Respondent were appropriate, and she did not want to get Respondent in trouble if they were allowed. During lunch hour, she checked with Wagner to see if Respondent's actions may have been authorized. Wagner was not trained in that area and was unsure. After lunch, Schafer discussed the incident with Dormer, who then reported the matter to Markgraf. Respondent testified that her method of restraining D.M. was a safe and effective way to restrain him while he was out of control and was consistent with her training at VPA. She explained that when a special education student resorted to bad behavior as a tactic for not completing a task, she was trained to complete a "work through," which essentially requires the student to finish the task regardless of their behavior. However, this assertion was not corroborated by any personnel from VPA. She also stated that the restraint was consistent with training she had received for her Techniques for Effective Adolescent and Child Handling (TEACH) certification. However, her certification had lapsed, she had not received current training in order to become recertified, and her understanding differed from Dormer's interpretation of TEACH. According to Dormer, who instructs the TEACH certification program at Caloosa, it is never appropriate to bend a student's hands behind his back, push a student's head down towards a table, or bend a child's fingers into his wrist. See Pet'r Ex. 15. She also testified that a teacher should never use physical force in making a child comply with a task. She explained that if an autistic student has a temper tantrum or engages in other non-compliant behavior, the proper protocol is to call her and have the child temporarily removed from the classroom. Dormer's testimony is accepted as being the most persuasive on this issue. Therefore, while Respondent believed that her method of restraining the child was permissible and necessary under school policy, it was contrary to TEACH and constituted improper restraint of a student. After receiving Dormer's report, Markgraf treated the incident as "improperly restraining a student" and contacted the Professional Standards and Equity Office (PSEO). She also collected statements from the witnesses and Dormer. At the end of the school day, Markgraf advised Respondent that she was suspended with pay, effective immediately, while the matter was further investigated. Markgraf also reported the incident to the Department of Children and Families (DCF) as possible child abuse. Although DCF took the report and investigated the matter, no charge of child abuse was ever lodged against Respondent. Finally, D.M.'s parents were notified. Based on the above incident, and "a possible pattern of inadequate classroom supervision and academic focus" prior to the incident, a pre-determination hearing was conducted by the PSEO on January 21, 2014. Notwithstanding these charges, after the hearing, Respondent was notified that she could return to the classroom for the remaining school year. Respondent was told that she would be taking the place of a K teacher who was going on maternity leave. As discussed below, it is fair to say that had D.M.'s father not conducted a one-man vendetta against Respondent in an effort to have her terminated from Caloosa, Respondent would have continued teaching at the school, at least for the remainder of the school year. The Parents When D.M.'s father learned that Respondent's employment with Caloosa would not be terminated, he was obviously very unhappy. Even though his child was not physically injured, he reported the incident to the Cape Coral Police Department and asked that criminal charges be filed against Respondent. A police report was prepared, but no charges were ever filed by the State Attorney's Office. See Pet'r Ex. 18. He also engaged the services of an attorney and put the Board on notice that a civil lawsuit may be filed. After D.M.'s father obtained a copy of the police report, he made additional copies, stood outside the school grounds, and distributed the police report to any "parents [of students] that would take it," or anyone else who was interested, along with a cover sheet stating in pertinent part: Please read the following police report provided by the Cape Coral Police Dept. Regarding: Abuse to my Son by his Special Needs Teacher, Shawna Driggers For Further Information, please contact: [D.M.'s Father] [telephone number omitted] Although the father did not testify at the final hearing, it can be inferred that his intentions were to disseminate information about the incident to as many people as possible in an effort to bring pressure on the Board to terminate Respondent. As a result of the distribution of the hand-out and the police report, the parents of two other children in Respondent's classroom, E.P. and G.D., contacted one another and spoke with D.M.'s father. After speaking with D.M.'s father, they decided that any perceived problems experienced by their children during the fall school year should be reported to the school and blamed on Respondent. After verifying that the police report was accurate, the parents contacted the PSEO and complained that Respondent was responsible for bruises on the legs of one child (G.D.) and a scratch mark on the neck of the other (E.P.). They also attributed certain negative behavioral issues and lack of progress in the classroom to Respondent's actions or neglect. Throughout the fall that school year, the parents received daily planners from Respondent setting forth the activities and progress of their children, and Respondent was always available to speak with them by text, email, or cell phone. They also met with Respondent on several occasions. Notably, before reading the police report given to them by D.M.'s father, and conferring with one another, they had never complained about behavior issues or progress in school to either Respondent or school officials. Ironically, the year before Respondent had been given a high rating for communications with parents, and according to Markgraf, the parents "loved her." The mother of E.P., a three-year-old student with very limited communication skills, testified that her son started to become more aggressive during the first week of school, had trouble sleeping, and began screaming words that he did not hear at daycare or at home. She acknowledged, however, that his limited communication skills may have contributed to his aggressive behavior with others; that Respondent was always "brainstorming" with her throughout the fall on how to improve her son's behavior; and that Respondent was always accessible to discuss any issues about her son. She also admitted that her negative opinions regarding Respondent may have been influenced by the police report. According to E.P.'s mother, the child's behavior improved after Respondent was suspended. However, even after Respondent was replaced with a new teacher in January 2014, the mother was still dissatisfied with her child's progress, and she withdrew him from Caloosa the next month and placed him in daycare. She testified that after he enrolled in daycare, the child experienced a huge improvement in his behavior. The mother of student G.D., a three-year-old who was totally non-communicative when he began the school year, testified that before enrolling in Respondent's class, her child was not violent, did not throw tantrums, and except for being "hyper," did not act out in any way. She noted that while her son made significant progress with sign language, he did not make any progress with his speech, and he consistently came home with "clusters of bruises" on his shins, which she believes were caused by Respondent striking or kicking her son. She further testified that the child's speech improved significantly and he had "a complete turnaround" after a new teacher was assigned to his class. But almost a year later in October 2014, when she testified, she admitted he still had only a "little bit" of speech. Finally, she testified that the child had issues with a diaper rash while in Respondent's care and arrived at daycare two or three times with full diapers. Changing diapers was the responsibility of the paraprofessional, not Respondent, and these concerns were never brought to the attention of Respondent so that the problem, if generated at Caloosa, could be rectified. The allegation that Respondent was responsible for physical injuries to the two students is not credited for several reasons. First, there is no credible evidence that the scratch mark on E.P.'s neck, or the bruises on G.D.'s shins, were caused by Respondent. Moreover, Wagner, who monitored the children in October and December, never observed the alleged injuries. Third, there is no record of any medical treatment at the school clinic for either student. Fourth, except for the scratch mark, the injuries were never reported to school officials at the time they were observed by the parents. As to the allegations regarding behavioral issues or lack of progress in school, they were not corroborated by any other evidence, and it is reasonable to infer that the parents were unduly influenced by the police report and conversations with D.M.'s father. The April Board Action Although it was previously determined that the charges against Respondent did not warrant termination, the PSEO decided to reconsider the matter after the parents came forward with their complaints. A second investigation was conducted, and another pre-determination conference was held on April 22, 2014. After the conference, a recommendation was made to the Board to terminate Respondent, obviously due in large part to pressure from the parents and the notoriety now surrounding the December 12, 2013 incident. This resulted in the issuance of the Petition for Termination. Even though Respondent taught only a portion of school year 2013-2014, Markgraf was required to prepare an evaluation for the school year. Markgraf characterized it as a "very poor evaluation compared to everyone else."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Lee County School Board enter a final order determining that Respondent is guilty of misconduct, as defined in rule 6A-5.056(2)(b), (d), and (e), terminating her suspension, and reinstating her as a special education teacher at a different school. All other charges in the Petition for Termination should be dismissed. DONE AND ENTERED this 12th day of January, 2015, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER 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 12th day of January, 2015. COPIES FURNISHED: Dr. Nancy J. Graham, Superintendent School District of Lee County 2855 Colonial Boulevard Fort Myers, Florida 33966-1012 (eServed) Robert Dodig, Jr., Esquire School District of Lee County 2855 Colonial Boulevard Fort Myers, Florida 33966-1012 (eServed) Robert J. Coleman, Esquire Coleman & Coleman Post Office Box 2089 Fort Myers, Florida 33902-2089 (eServed) Lois S. Tepper, Interim General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Pam Stewart, Commissioner Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
The Issue Whether it is appropriate for Petitioner to discipline Respondent's Florida educator's certificate for acts alleged in Petitioner's Administrative Complaint dated July 16, 2009.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following Findings of Fact are made: Respondent holds Florida Professional Educator's Certificate No. 1045332, covering the area of music, which is valid through June 30, 2011. At the time of the incident alleged in the Administrative Complaint, he was employed as a band teacher at Memorial Middle School, Orlando, Florida. Petitioner is the head of the state agency responsible for certifying and regulating public school teachers in Florida. On December 12, 2007, Respondent, pursuant to his teaching responsibility, was conducting the seventh-grade band ensemble which was performing in the school cafeteria. Apparently, this is where the band class meets. C.F., a sixth-grade band student, was in the cafeteria as a part of the class. Students who were not actively performing had been instructed to remain quiet, to read music, to be courteous and not to distract the performing ensemble. Notwithstanding the admonition to remain quiet, C.F. became "bored" and began "banging" rhythmically on a lunch table. Initially, Respondent attempted to get C.F.'s attention. Another student also attempted to stop C.F. Respondent moved across the cafeteria as he continued to conduct the ensemble, reached out and "tapped" C.F. on the wrist/forearm with a conductor's baton "to get his attention," and instructed him by facial expressions to stop banging on the table. A conductor's baton is approximately eight inches long, has a cork end that allows it to be grasped between the thumb and forefinger, and is smaller in circumference than a pencil. It looks similar to a small knitting needle, only shorter. When the ensemble concluded the musical selection it was performing, Respondent returned his attention to C.F. who began arguing with him. Respondent told C.F. to remove himself from the cafeteria and stand in the hallway. Instead of standing in the hallway as instructed, C.F. went to the assistant principal, Mr. Campbell, and complained that Respondent had struck him. Mr. Campbell called Mr. Longmire, the sixth-grade dean of men, to his office, and Mr. Longmire observed a small red mark on C.F.'s arm.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Michael Allen Simmons, be found not guilty of the violations alleged in the Administrative Complaint and that no disciplinary action be taken. DONE AND ENTERED this 29th day of April, 2010, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 29th day of April, 2010. COPIES FURNISHED: Deborah Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Kathleen M. Richards, Executive Director Education Practices Commission Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 Marian Lambeth, Bureau Chief Bureau of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 Edward T. Bauer, Esquire Brooks, LeBoeuf, Bennett, Foster & Gwartney, P.A. 909 East Park Avenue Tallahassee, Florida 32301 Michael Allen Simmons 6004 Westgate Drive, Apartment 102 Orlando, Florida 32835
The Issue At issue in this proceeding is whether Petitioner may terminate Respondent's employment as an instructional employee based upon the conduct alleged in the letter titled "Notice of Termination of Employment Contract and Immediate Suspension Without Pay" (the "Notice") from Superintendent of Schools Ed Pratt-Dannals to Respondent dated April 13, 2009.
Findings Of Fact Ms. Silver's education and employment history Ms. Silver has been employed as a teacher by the School Board since she graduated from George Peabody College in 1978, and works under a professional service contract pursuant to section 1012.33, Florida Statutes. Ms. Silver's personnel file indicates "tenure" as of the 1984-1985 school year, pursuant to the Duval County Teacher Tenure Act, Chapter 21197, Laws of Florida (1941), as amended. Throughout her career in the Duval County school system, Ms. Silver has been a special education teacher. She has taught students classified with specific learning disabilities ("SLD"), and as emotionally handicapped ("EH"), trainable mentally handicapped and educable mentally handicapped. Prior to her assignment to Kernan Trail Elementary School ("Kernan Trail") at the beginning of the 2005-2006 school year, Ms. Silver had at various times taught students from kindergarten through sixth grade. She had not taught autistic students, nor had she taught pre-kindergarten ("pre-K") students. Prior to the Notice, Ms. Silver had never in her 31 years with the School Board been subjected to disciplinary action of any kind. From the 1997-1998 school year through the 2004-2005 school year, Ms. Silver taught a mixed grade class of kindergarten through second grade ("K-2") EH students at Lone Star Elementary School ("Lone Star"). Autistic students were included in the EH category during those years, and Ms. Silver taught autistic students in her class. Elizabeth Kavanaugh, who was vice principal and then principal of Lone Star during Ms. Silver's tenure at the school, testified that Ms. Silver's students had behavioral and emotional problems that required a teacher who could work with them in a flexible setting. These were "difficult" children who would kick, scream, cry, and try to run away when met with any adversity. Ms. Kavanaugh characterized Ms. Silver as a professional in the classroom, very knowledgeable about her students, and "passionate" about her work. Ms. Kavanaugh stated that the 2004-2005 school year was difficult for Ms. Silver, largely due to one very physical six- year-old boy who gave everyone in the school "a hard time." School Board personnel came out to Lone Star on several occasions for behavior management consultations, and a functional behavior assessment was performed on the child. Ms. Silver worked very hard with the boy and showed patience with him, even after he struck her in the face hard enough to leave her with a black eye. The child was sent home for the day, in spite of Ms. Silver's intervention on his behalf. Ms. Silver argued that the child was just upset and did not mean to hurt her. At the end of the 2004-2005 school year, Ms. Kavanaugh faced budget cuts to Lone Star's exceptional student education ("ESE") program due to a shortage of ESE students at the school. She would not be able to keep all of her ESE teachers for the coming school year. Ms. Kavanaugh noted the very hard year Ms. Silver had just completed, and wondered whether it might be time for Ms. Silver to move away from intense work with EH children and into a new area of teaching. Ms. Kavanaugh testified that "burnout" is common among special education teachers, and she believed that Ms. Silver had been in an EH classroom well beyond the usual burnout rate for such assignments. During the 2004-2005 school year, Ms. Silver had mused to Ms. Kavanaugh about the possibility of transferring to a new position. Because of her seniority, Ms. Silver would have to volunteer for a reassignment; otherwise, Ms. Kavanaugh would be forced to cut a younger teacher. Ms. Kavanaugh discussed the situation with Ms. Silver, who agreed to accept a "voluntary surplus" assignment, meaning essentially that she would leave Lone Star but have no control over her next assignment. At the hearing, Ms. Kavanaugh praised Ms. Silver's willingness to accept a transfer to an uncertain new position, on very short notice, to save the job of a less experienced teacher. Ms. Silver testified that she accepted the voluntary surplus because she wanted a change and with the knowledge that there were probably a lot of openings for special education teachers in Duval County. She was especially interested in the School Board's autistic program, and began attending School Board autism workshops in preparation for a potential assignment to that program. When she learned of the opening in the pre-K autistic class at Kernan Trail, Ms. Silver jumped at the opportunity. Ms. Silver has had a long-standing interest in the subject of children with autism. Her adopted son (28 years old at the time of the hearing) had shown some symptoms of autism at least since age five, and was finally diagnosed at age 11 with Asperger's syndrome, an autism spectrum disorder. Ms. Silver has been active in the autism support community in Jacksonville for many years and is well known as an advocate on issues affecting that community. Ms. Silver was assigned to teach the pre-K autistic class at Kernan Trail for the 2005-2006 school year, and continued to teach the class without complaint or incident during the 2006-2007 and 2007-2008 school years.5/ Ms. Silver's classroom in the 2008-2009 school year The 2008-2009 school year formally began on Monday, August 18, 2008, though Tropical Storm Fay caused the closure of the Duval County schools for the first week of classes, through August 22, 2008. As the year began, there were six children in Ms. Silver's pre-K autistic class. A seventh child, B.G., entered the class on October 2, 2008, though he stayed only through October 16. Children could enter the pre-K autistic class upon their third birthday. It was not unusual to have a new student come into the class after the school year was underway. Ms. Silver had two paraprofessionals in her class. Nancy Cornell had worked as a paraprofessional in the pre-K autistic class for three years under Ms. Silver's predecessor, and then continued in the same class when Ms. Silver came to Kernan Trail. The 2008-2009 school year was Ms. Cornell's fourth year under Ms. Silver's supervision. Ms. Cornell described Ms. Silver's classroom as "organized chaos." Ms. Kavanaugh testified that Ms. Silver was a "pack rat" who kept lots of things in her classroom and storage closet. Stephanie Smith, a classroom teacher who acted as Kernan Trail's autism "site coach"6/ prior to the 2008-2009 school year, testified that she had talked with Ms. Silver about problems with organization in her classroom, but that there was never a problem with Ms. Silver's direct teaching. Terrie Bennett, the coordinator of the School Board's autism program, similarly testified that the only "issues" she recalled from her observations of Ms. Silver's class involved disorganization, not quality of instruction. The other paraprofessional assigned to Ms. Silver's class was Althea Gale. Ms. Gale had been at Kernan Trail for six years, but had never worked with Ms. Silver or with pre-K autistic children before the 2008-2009 school year.7/ Ms. Gale had come to Kernan Trail after being fired from her previous job at Vicar's Landing, a retirement community at Ponte Vedra Beach. One other adult was assigned to Ms. Silver's classroom at the start of the 2008-2009 school year. Taylor Dowell was an intern completing the last semester of a dual bachelor's/master's program at Florida State University ("Florida State"). Her master's degree would be in special education, with a specialization in autism. Though she had worked in elementary classrooms during the practicum portions of her classes, Ms. Dowell had never been in a pre-K class prior to commencing in Ms. Silver's class on August 26, 2008. The children in Ms. Silver's class ranged in age from three to five years, and functioned at levels younger than their age dues to developmental delays. Some of the children were nonverbal; others could speak a few words but could not articulate sentences. Several of the children were not potty trained and wore diapers or "Pull-Ups" type training pants. Ms. Silver's was the only pre-K autistic class at Kernan Trail. The students spent the entire day in the classroom. Breakfast and lunch were served to the students in the classroom. The school day commenced at 8:00 a.m. Ms. Gale was assigned to escort children from the school bus pick-up area to the classroom while Ms. Cornell set up breakfast. Ms. Dowell sometimes accompanied Ms. Gale. Ms. Gale and Ms. Cornell served the children breakfast from 8:45 to 9:15. The remainder of the morning was filled by "circle time" (the reading of a book to the children seated in a circle), rotating activities at tables in the classroom, and a 45-minute playtime. Lunch was served to the children from 12:05 to 12:35, followed by a one-hour "quiet time," during which the children took naps or quietly watched television. Classroom activities resumed at 1:35 and continued until the students were dismissed at 2:50. Ms. Silver organized the classroom according to a "zone plan," which was a spreadsheet indicating where each adult should be and what the adult should be doing at any given time during the school day.8/ For example, during rotations, Ms. Silver, Ms. Gale, and Ms. Cornell would each sit at a table with a small group of children and undertake activities that included direct instruction and work on fine motor skills. Every fifteen minutes, the groups would change tables and move on to a new activity with a different adult. Punctuality was obviously important in this scheme because rotations could not work if one of the adults was missing. Also, each paraprofessional was allotted a ten-minute break in the morning and in the afternoon. The zone plan so precisely accounted for their time that if one paraprofessional took too long on her break, the other might not get a break at all. Ms. Silver ran an open classroom. Parents were free to visit the room at any time, without an appointment. Occupational therapists and physical therapists were frequently in and out of the classroom. Other teachers, such as Erin Tupper, Kimberly Bloor, and Stephanie Smith, would step into the room to speak briefly with Ms. Silver. Parents were also free to observe the classroom from the outside, through a window in the classroom door.9/ Conflicts in the classroom Ms. Silver and Ms. Cornell had been together in the pre-K autistic classroom for three years and had developed a solid working relationship. They did not always agree on every detail of the classroom. For example, Ms. Silver discontinued her predecessor's practice of taking down data during potty training as to when the child was placed on the potty, whether the child was wet or dry prior to going to the potty, and the results of each trip. Ms. Cornell found the data helpful, but Ms. Silver believed that taking down the data took more time than it was worth. Ms. Cornell disagreed with Ms. Silver, but acknowledged that the decision rested with Ms. Silver as the teacher. Such disagreements did not affect the basically positive relationship between Ms. Silver and Ms. Cornell.10/ In her time at Kernan Trail, Ms. Gale had never worked in the same classroom or with the same teacher for two years in a row, despite the generally acknowledged superiority of developing teacher-paraprofessional teams who work together over several years. Ms. Gale attributed her frequent movement to the vagaries of the School Board's assignment procedures. However, Ms. Smith testified that Ms. Gale could be confrontational, harassing, and overbearing, and that Ms. Gale's reputation for having a bad attitude made people hesitant to engage with her. Ms. Smith also testified that Ms. Gale always wanted to dictate her own schedule and work assignments. Kernan Trail's autism site coach, Karma Flotkoetter, testified that when she was a classroom teacher at Kernan Trail, Ms. Gale was assigned as her paraprofessional for a month or two. Ms. Flotkoetter stated that Ms. Gale did not come to work on time and had difficulty interacting with the children. Ms. Flotkoetter stated that she would not have hired Ms. Gale to work in a self-contained pre-K autistic classroom such as Ms. Silver's. Ms. Silver testified that she was aware of Ms. Gale's personality conflicts with other teachers. Ms. Silver's belief in her own ability to get along with people made her optimistic that she and Ms. Gale would not have any serious problems. Ms. Silver knew that Ms. Gale "had been passed around from teacher to teacher," and "figured it was just my turn" to deal with Ms. Gale. Despite Ms. Silver's initial optimism, Ms. Gale's persistent inability to come to work on schedule and outright refusal to perform some aspects of a paraprofessional's job inevitably led to conflicts. Ms. Silver did not believe she had a personality conflict with Ms. Gale, who was generally compliant with Ms. Silver's direct instructions and only became defensive when the conversation steered to her constant lateness for work. Ms. Gale, however, believed that Ms. Silver had an "attitude" toward her and essentially did not like Ms. Gale. Ms. Flotkoetter questioned Ms. Gale's basic honesty.11/ Based on his view of the testimony and demeanor of both witnesses, the undersigned finds that any "attitude" displayed by Ms. Silver was occasioned by Ms. Gale's own personal truculence, her reluctance to perform the tasks of her job unless directly told to do so, and the needless injection of anxiety into the order of the classroom by her arbitrary comings and goings. From the start of the 2008-2009 school year, Ms. Gale was persistently late in arriving at school, sometimes by as much as an hour. She was also late returning from her morning and afternoon breaks and from her lunch break. Ms. Gale's actions affected the running of the classroom and Ms. Cornell's ability to take breaks. Ms. Silver complained to Ms. Flotkoetter about Ms. Gale's lateness as early as August 29, 2008. Both Ms. Silver and Ms. Flotkoetter repeatedly counseled Ms. Gale about the need to arrive on time and to follow the zone plan, but little changed. At the hearing, Ms. Gale testified that she was not supposed to change the children's diapers, and that she only did so once or twice while assigned to Ms. Silver's class. In fact, the zone plan called for Ms. Gale to assist Ms. Silver in changing diapers, and Ms. Gale simply declined to perform this aspect of her job. Ms. Cornell regularly stepped in and performed the diapering duties, though the zone plan did not give her that assignment. Ms. Gale was reluctant to engage with the children in the classroom. Ms. Dowell witnessed Ms. Silver tell Ms. Gale that she was not doing anything with the children and that she needed to interact with them. Ms. Cornell believed that Ms.Gale could "do better" in the classroom and would not have been Ms. Cornell's choice to work with children. Ms. Silver described Ms. Gale as the worst subordinate she ever had. Ms. Silver eventually took the matter to assistant principal Alandrea Turner in hopes of having Ms. Gale transferred to another classroom, but Ms. Turner declined to move Ms. Gale.12/ As to Ms. Dowell, both Ms. Silver and Ms. Cornell described her as initially enthusiastic and happy to be in the classroom, eager to work and affectionate with the children. Ms. Dowell concurred that at first she was excited about working in a pre-K classroom. However, Ms. Dowell was repulsed by the physical appearance of the classroom. There was "stuff everywhere." The room was cluttered with paper and the toys were dirty. Ms. Silver had for years kept animals in the classroom. At the start of the 2008-2009 school year, Ms. Silver had a chinchilla and two small birds in her classroom. Ms. Dowell found the cages "filthy" and too easily accessible by the children. She found the smell offensive and would sneeze and cough at the end of the day. Ms. Gale complained that the animals affected her allergies. Ms. Dowell testified that she told Ms. Silver the cages were "disgusting" and in need of cleaning, but that Ms. Silver brushed off her complaint. Ms. Cornell, who was not opposed to the presence of the animals, conceded that feathers and feces found their way to the floor of the classroom. Ms. Dowell complained to Ms. Flotkoetter about the situation, who in turn discussed the matter with Ms. Turner and Ms. Silver. On Friday, September 12, 2008, after notifying Kernan Trail principal David Gilmore of her plan, Ms. Turner went to Ms. Silver and told her to remove the animals from the classroom. Ms. Silver did so over the weekend, and held no grudge over the incident. Ms. Dowell's attitude toward the animals and the general messiness of Ms. Silver's classroom exemplified a general clash of styles, personalities, and teaching philosophies between Ms. Silver and Ms. Dowell. Ms. Flotkoetter testified that when she walked into Ms. Silver's classroom, she could feel the tension between the two women. Ms. Cornell testified that Ms. Dowell came into the classroom expecting something different than what she found, and quickly became "unhappy and just disinterested." Ms. Silver dressed in casual clothes and tennis shoes, appropriate attire for a job that required her to spend a lot of time on the floor and to change diapers frequently. Ms. Dowell dressed in skirts and high-heeled shoes, which hindered her interaction with the children. (Ms. Flotkoetter stated that no other employee in a self-contained classroom dressed in the manner of Ms. Dowell.) Ms. Silver was loud, boisterous, and free with her opinions. Ms. Dowell was soft spoken. Ms. Silver generally had higher expectations of the students than did Ms. Dowell, who was more inclined to treat the children as infants. These differences could not help but color the relationship between the mentor and the student teacher. According to Ms. Silver, Ms. Dowell seemed to "hit it off" immediately with Ms. Gale. Ms. Dowell and Ms. Gale were friendly with each other in the classroom. They chatted with each other more than either of them talked with Ms. Silver or Ms. Cornell.13/ They talked during nap time, despite Ms. Silver's admonitions that the room needed to be quiet. However, Ms. Dowell and Ms. Gale had no relationship outside of the school. Ms. Silver, who had supervised many interns over the years, found Ms. Dowell puzzling. Ms. Silver had never before "had to lead an intern by the hand and tell them this is what you have to do." Because she would be expected to take over and run the class by the time her semester at Kernan Trail was over, Ms. Dowell should have been sitting with Ms. Silver and watching her perform direct instruction to the children. Instead, Ms. Dowell would sit with Ms. Gale and chat while Ms. Silver instructed the children. Ms. Silver mentioned several times that Ms. Dowell needed to watch the direct instruction, but Ms. Dowell did not comply. Ms. Silver also talked to Ms. Dowell about lesson plans. Ms. Silver understood that Florida State would expect to see lesson plans developed by Ms. Dowell, and Ms. Silver offered to stay after school and help her with them. Ms. Silver also wanted Ms. Dowell to look at IEPs14/ and become familiar with the children's goals in order to facilitate direct instruction, but never saw Ms. Dowell do so. Ms. Dowell testified that she picked up some of the IEPs and "scanned" them one day, but never fully studied them. Ms. Silver also saw no indication that Ms. Dowell reviewed Ms. Silver's lesson plans for the class, even though Ms. Silver gave her a copy of the lesson plans every week. Ms. Silver continued to produce lesson plans for as long as she worked with Ms. Dowell, though at some point Ms. Dowell should have taken over that function. Ms. Cornell testified that she never saw Ms. Dowell working with an IEP, and that she never saw a lesson plan produced by Ms. Dowell Ms. Dowell conceded that she prepared no lesson plans while interning at Kernan Trail. Ms. Silver encouraged Ms. Dowell to start leading circle time because that was the easiest thing for the teacher to do. Circle time was held early in the morning. It was the vehicle for introducing concepts and skills that would be taught during the remainder of the day. Ms. Dowell began leading circle time, but never took on the task of preparing the materials for circle time. Ms. Silver continued to select the books to read and bring in the materials to be used. Ms. Silver testified that Ms. Dowell would frequently try to avoid even leading circle time, asking Ms. Silver if she wanted to take over. Ms. Silver insisted that Ms. Dowell do it as part of her transition to taking over the class. Ms. Silver was further disappointed by the fact that Ms. Dowell did not seem to want to do anything else. Ms. Silver would give her suggestions, but Ms. Dowell would ignore them. Ms. Dowell denied her lack of participation in classroom activities, but Ms. Silver's view on the matter was confirmed by Ms. Cornell and Ms. Flotkoetter. Ms. Dowell claimed that she was "running the classroom" with the assistance of Ms. Gale and Ms. Cornell as early as the first part of September, when Ms. Silver was preoccupied with potty training L.P. She stated that she was doing circle time, providing direct instruction, taking the children to the playground, and helping with lunch. No other adult who was present in the classroom corroborated Ms. Dowell's assertion that she was "running the classroom." Ms. Silver wanted Ms. Dowell to run the class but could not persuade her to take charge. Ms. Cornell pointedly denied that Ms. Dowell ever took over the running of the class. She overheard Ms. Dowell telling Ms. Gale that she was there to watch the class, not to take it over. Ms. Dowell never gave any instructions to Ms. Cornell in the manner of a teacher in charge of the class.15/ Ms. Flotkoetter visited Ms. Silver's classroom at least three or four times every week. She never saw Ms. Dowell "running" anything other than circle time. Erin Tupper, an occupational therapist who took children out of the classroom once a week for therapy sessions, never noticed Ms. Dowell running the class. Ms. Tupper noted that Ms. Dowell showed a distinct lack of curiosity as to what the occupational therapist does with the children. In Ms. Tupper's experience, interns tend to show more interest and to ask more questions than did Ms. Dowell. They want to be able to help the teacher follow through on the therapy. Ms. Tupper testified that some interns have even accompanied her to the therapy sessions, and that she would have been happy to take Ms. Dowell had she been interested. Ms. Dowell testified that she did not know Erin Tupper, testimony that supports Ms. Tupper's observation that Ms. Dowell showed little interest in what was happening in the classroom.16/ One goal of the Kernan Trail pre-K autistic classroom was to foster independence in the students. In their testimony, both Ms. Silver and Ms. Flotkoetter emphasized that there should be a minimum of "babying" the children. Ms. Silver would ask parents not to carry their children into the classroom, but to let them walk in like big boys and girls. Ms. Flotkoetter would stop parents who were carrying their children into the school and ask them to put the children down. Ms. Silver worked on teaching the children to use utensils and feed themselves at breakfast and lunch. It was considered appropriate to give a child a brief hug when the child had performed a task successfully or when the child needed to be comforted, but it was not appropriate to sit and hold the children for extended periods of time. As Ms. Cornell stated, the children want to be cuddled all the time, and it was best not to be "too huggy" with them. If the child is hurt, the adult gives the child a brief hug, and then attempts to redirect the child. Ms. Cornell testified that all of the adults in the classroom would give brief hugs to the children. Ms. Dowell had a propensity for picking up and holding the children, and compounded the problem by choosing one child, Z.G., as her particular favorite. She would sit and hold Z.G. at lunch, feeding him like a baby and paying attention only to him, cooing over him and calling him her "boyfriend." Ms. Silver testified that Ms. Dowell would actually tell other children to go away when she was holding Z.G. Ms. Cornell confirmed that Ms. Dowell would sit and hold Z.G. and attend only to him. She noted that when Ms. Dowell led circle time, Z.G. would often end up sitting in her lap. Ms. Silver attempted to counsel Ms. Dowell about excessive holding of the children and about lavishing attention on one child. She told Ms. Dowell that it is only natural to have a favorite student, but that it is the teacher's job not to let the other children pick up on the fact that she has a favorite. Every child should see himself as the favorite. Ms. Dowell simply said that she disagreed with Ms. Silver, and carried on as she had been. Ms. Cornell testified that the more Ms. Silver would ask Ms. Dowell not to hold Z.G., the more Ms. Dowell would do it. In her testimony, Ms. Dowell stated that she would hold Z.G. in her lap, and that she saw no harm in it. Ms. Dowell agreed that Ms. Silver had a rule against picking up the children, and further agreed that she chose not to follow that rule. She could not understand why an adult would not hug or pick up a three or four-year-old child if the child wanted it. Ms. Dowell stated that she picked up all of the children, but that she probably did hold Z.G. more than the others because he was hypersensitive to the sound of Ms. Silver's "screaming." D.G., the mother of B.G., testified that from outside the room she would see Ms. Dowell holding her son. (D.G. also once saw Ms. Dowell holding Z.G.) She would also see Ms. Gale or Ms. Dowell rocking him to sleep during naptime. D.G. approved of Ms. Dowell's "sensitive" actions, and resented the fact that Ms. Silver put a stop to it. J.J., the mother of G.J., a student in Ms. Silver's class, testified that she witnessed Ms. Dowell "fawning all over the kids, and some of these kids didn't want it. And she was coochie-coochying them, if I can use that as a word." Though never approaching the level of Ms. Gale, Ms. Dowell had problems keeping to the class schedule. She would be on time some days, but on others she would be a little late. Ms. Silver granted that Ms. Dowell would call in when she was going to be more than a few minutes late, and that such occasions were infrequent. More serious was the fact that Ms. Dowell had a second job teaching cheerleading after school. Ms. Dowell acknowledged that the terms of her internship prohibited "involvement in out- of-school activities that would interfere with teaching responsibilities in any way," but believed this job did not interfere with her school duties because it was after hours.17/ Ms. Dowell stated that the cheerleading job started at 3:15 or 3:30 p.m., and she was finished at Kernan Trail by 3:00. Ms. Dowell would walk the children to the bus pick-up, then walk back to the classroom and ask Ms. Silver if there was anything else she needed to do. If Ms. Silver said there wasn't, Ms. Dowell would leave for cheerleading. Ms. Silver's recollection differed from that of Ms. Dowell. Ms. Silver did not approve of Ms. Dowell's working a second job, and stated that Ms. Dowell never asked for her approval. Ms. Dowell asked Ms. Silver if she could come to school early and leave early. Ms. Silver explained that teachers do not have comp time. No matter how early a teacher arrived at Kernan Trail (Ms. Silver often arrived as early as 7:15 a.m.), the teacher was required to stay until 3:10 p.m. Ms. Silver testified that Ms. Dowell would sometimes leave as early as 2:45, without asking anyone for permission.18/ Ms. Silver's testimony on the question of Ms. Dowell's leaving early is credited. Ms. Dowell inadvertently admitted that she left the school early when she testified that she would leave at 3:00 p.m. Ms. Silver's uncontested testimony was that teachers were required to stay until 3:10.19/ Ms. Flotkoetter believed there was a personality conflict between Ms. Silver and Ms. Dowell, and stated that she could feel the tension when she walked into the room. As the fall semester of the 2008-2009 school year progressed into October, Ms. Silver became increasingly concerned that Ms. Dowell was not fulfilling the requirements of her internship. Ms. Silver had not been asked to formally evaluate Ms. Dowell, although the FSU Handbook, discussed in endnote 17, supra, called for biweekly evaluations of a student teacher's performance. Ms. Silver worried that she could not in good conscience give Ms. Dowell a passing grade. Ms. Silver testified that no matter what she thought of Ms. Dowell, it was her job to see to it that Ms. Dowell successfully completed her internship. The potty training allegations In September 2008, L.P. was a four-year-old student20/ who had been in Ms. Silver's class since the 2006-2007 school year. L.P.'s mother, T.P., testified that she enrolled L.P. at Kernan Trail after visiting Ms. Silver's class. T.P. hoped that the structured environment of the school would help L.P. learn to attend to different activities. L.P. entered Ms. Silver's class in late October 2006, just after he turned three. L.P. was completely nonverbal at the time. He could make some noises, but nothing that could be called the beginning of word formation. At the time of L.P.'s enrollment, T.P. had no expectations regarding potty training, because L.P. would not even sit on a toilet. During the summer of 2008, T.P. began working with L.P. and was able to get him to sit on the toilet, though he never actually voided. T.P. used gummy snacks and Skittles candies as reinforcers for the behavior of sitting on the potty. Due to the intensity of the potty training process, Ms. Silver trained only one child at a time. By the start of the 2008-2009 school year, T.P. and Ms. Silver agreed that L.P. was ready to begin potty training at school. There was a bathroom within Ms. Silver's classroom. The bathroom door was never closed unless an adult was using the bathroom. When the bathroom door was open, its interior could be viewed from the classroom. In addition to a changing table, a regular toilet, and a sink, the bathroom contained a Rifton "Blue Wave" potty chair. The Rifton chair is designed for children with physical infirmities. It is a full chair, with arms, legs and a back. The chair is adjustable for height, and has an opening in the seat for toileting, with a removable basin beneath the opening. The chair may also be placed directly over a toilet, but was not used this way in Ms. Silver's classroom. The Rifton chair has a belt at the waist and other straps to enable a disabled child to remain upright during toileting. The waist belt closes with a snap buckle such as that used on a bicycle helmet or a modern dog collar. It is easily fastened by snapping the male end into the female end, but requires the user to simultaneously squeeze the sides and pull the ends apart in order to unfasten it. Terrie Bennett, the School Board's autism specialist, testified that the autistic children in Ms. Silver's class would have no need of a Rifton chair. She stated that it would never be proper to use a Rifton chair as a means of restraint. Ms. Bennett testified that the School Board has no requirement that teachers be formally trained in how to conduct potty training. The School Board produced no evidence that it had a formal policy regarding the use of Rifton chairs during the period relevant to this proceeding. Ms. Silver testified that the chair was in her classroom when she arrived at Kernan Trail. In fact, there were two Rifton chairs in her classroom when she came to Kernan Trail. Ms. Silver had no idea why they were there. Ms. Cornell, who had been at Kernan Trail since the school opened, testified that the Rifton chairs had always been there. One of the chairs bore the letters "OT," indicating that it belonged to occupational therapy. Ms. Silver's original site coach at Kernan Trail, Paula Quirk, told Ms. Silver that pre-K autistic children were not to be restrained under any circumstances, and therefore the belts on the Rifton chairs or on a wooden occupational therapy chair that was also in the classroom were never to be used. Ms. Silver testified that she never used the belts and that she instructed her paraprofessionals never to use the belts to restrain the children. Ms. Silver recalled that in the 2007-2008 school year, one of her paraprofessionals, Mamie Byrd, had strapped a student into the Rifton chair that sat out in the classroom. One child in the class required a great deal of supervision. He could not be still. If Ms. Byrd was doing an activity with this child but needed briefly to walk across the classroom, she would strap the child into the Rifton chair. Ms. Silver told Ms. Byrd several times not to strap the child in the chair, but the problem persisted. Ms. Byrd was moved to a different classroom after the 2007-2008 school year. Ms. Cornell believed that the Rifton chairs were appropriate for the pre-K autistic children to use during potty training because the chairs had backs and arms, which allowed the children to sit safely and with more confidence than on a regular toilet. Ms. Cornell noted that some of the autistic children are afraid of the regular toilet flushing, whereas the Rifton chair does not flush. Ms. Silver told T.P. that the training plan would be to give L.P. plenty to drink and then bring him to the toilet every 15 minutes. Ms. Silver explained that, with four adults in the classroom, it would not be a problem to bring L.P. to the bathroom that often. Ms. Silver did not mention how long L.P. would be allowed to sit during each trip to the bathroom. T.P. testified that Ms. Silver did not mention a "Rifton chair," but did tell her that the classroom potty had a belt clasp that she would use to keep L.P. in position on the potty. T.P. stated that the booster chair in which L.P. ate his meals at home had a similar strap, and the strap on the potty therefore was not of great concern. Ms. Cornell testified that Ms. Silver would set aside a length of time that she termed a "session" during which frequent opportunities would be made for the child to sit on the potty. The potty training of L.P. was conducted in three-hour sessions. During these sessions, L.P. would be placed on the Rifton chair for 10 to 15 minutes at a time, after which he would get a 30-minute break. Ms. Silver and Ms. Cornell would watch the clock to make sure L.P. wasn't on the potty for too long. The idea was to place him on the Rifton chair frequently enough that L.P. would actually urinate and the adults could make a big fuss over his success.21/ Ms. Cornell explained that at the outset of potty training, the child is placed on the potty for three minutes, which is slowly built up to 15 minutes. The child is then taken off the potty for 15 to 20 minutes, or for an hour if he actually urinated. When the child first begins potty training, an adult stays in the bathroom with him. When the child becomes more comfortable with the process and is ready to move to the regular toilet, the adult may leave the bathroom while keeping the child in sight. Ms. Cornell testified that during the entirety of L.P.'s potty training, she never saw him on the Rifton chair for more than a 30-minute period that was interrupted by a five- minute break. J.J. is the mother of G.J., a child who was potty trained in Ms. Silver's class. J.J. testified that Silver encouraged her to wait on potty training until G.J. had the sensory capacity to know when he needed to go, because it takes autistic children longer to make the connection between brain and bodily function. J.J. did not rely entirely on Ms. Silver's expertise, but her outside research confirmed Ms. Silver's advice. J.J. testified that some experts advise setting aside a three-day weekend for potty training, or keeping the child on the potty for the better part of a day to get the child used to sitting on the toilet. J.J. and Ms. Silver talked specifically about the potty training method Ms. Silver would use. Ms. Silver showed J.J. the potty chair, which had a belt. G.J. would sit on the potty for a few minutes at first, to gain the habit. The emphasis would be less on urinating than on sitting on the potty. He would sit for five to seven minutes at a time, several times within a short period, in order to "imprint the pattern" of sitting on the toilet. J.J. testified that she was never told that Ms. Silver would be the only person in the bathroom with G.J., but she was assured that either Ms. Silver or a paraprofessional would be watching G.J. in the bathroom. Ms. Silver would send notes home with G.J. regarding his progress. By the spring of 2008, G.J. was potty trained. Ms. Cornell was not sure whether L.P. was capable of standing to urinate. L.P. did not appear to want to stand. He automatically went to the Rifton chair when he was told it was time to go potty. Ms. Cornell testified that L.P. would often go into the bathroom and sit on the Rifton chair without any prompting from an adult. Ms. Cornell testified that Ms. Silver was in charge of the potty training, but was seldom the person who actually accompanied L.P. to the bathroom. Most of the time, Ms. Cornell or Ms. Gale took L.P. to the bathroom. Ms. Cornell testified that L.P. would go into the bathroom with only a verbal instruction, because he knew that he would get a reward for going to the potty. Ms. Silver would keep one of L.P.'s favorite toys or books out of reach but where he could see it from the bathroom. If L.P. urinated, he would get the "big reward" of playing with the favored item. If he did not urinate, then he would get a smaller reward just for sitting, such as a Skittles candy. Ms. Cornell never saw Ms. Silver strap L.P. to the Rifton chair. Ms. Cornell testified that she herself strapped L.P. to the chair very briefly on one occasion. L.P. was jumping up and down as he was urinating, and another child entered the bathroom with his pants down. Ms. Cornell quickly strapped L.P. to the Rifton chair so that she could attend to the other child, then unstrapped L.P. Ms. Cornell characterized the belt as something to be used only in an emergency.22/ Ms. Cornell testified that L.P. was not afraid of the Rifton chair, that he was adept at strapping himself to the chair, and that he regarded doing so as a game.23/ He liked to play with the belt, but found it much easier to close the snap buckle than to open it. Ms. Cornell testified that she would make sure to un-strap L.P. if she heard the click of the buckle. If L.P. was on the Rifton chair for 10 to 15 minutes, Ms. Cornell would check to make sure he had not strapped himself into the chair. She never saw any indication that L.P. was able to take the belt off for himself. On one occasion, Ms. Silver told Ms. Cornell to leave L.P. on the chair after he had strapped himself on, in order to see whether he could unfasten the buckle for himself. After a few minutes, Ms. Cornell unstrapped L.P. T.P. testified that, even as of the date of the hearing, L.P. had trouble unfastening the kind of snap buckle found on the Rifton chair. She was certain that L.P. would not have been able to unfasten the buckle in September and October of 2008. Ms. Silver testified that L.P. had been in her classroom longer than any of the other children, and that she had a rapport with him. She told T.P. about her use of the Rifton chair, and offered T.P. the use of the second Rifton chair at home. Ms. Silver believed that having a Rifton chair at home would make things more consistent for L.P., whose small size made it difficult for him to hold himself up on a regular toilet. The Rifton chair was smaller, with arms and a back, and L.P. could sit comfortably on it. Ms. Silver recalled telling T.P. that the Rifton chairs have belts but denied telling T.P. that L.P. would be strapped into the chair. To the contrary, Ms. Silver told T.P. that school personnel are not allowed to use the buckle on the Rifton chair. Ms. Silver stated that she was not the primary potty trainer, in the sense of hands-on participation in taking L.P. to the bathroom. Ms. Silver was usually too involved with teaching the class to perform the potty training duty, though she did keep her eye on the bathroom. Once Ms. Dowell took over circle time, Ms. Silver was able to help with L.P. during that portion of the day. The Rifton chair had a short step up to the seat, and L.P. could easily seat himself. Ms. Silver did not physically place L.P. on the potty chair. L.P. pulled his own pants up and down. The basic procedure was that Ms. Silver would tell him it was time to go to the potty, and L.P. would go into the bathroom and get on the Rifton chair by himself. Sometimes Ms. Silver would walk to the bathroom with him, and sometimes she would merely watch him. Ms. Silver testified that she tried never to let L.P. sit on the potty for more than 15 minutes, though she conceded there may have been times when he spent between 15 and 20 minutes on the potty. Ms. Silver stated that L.P. liked going to the potty, but that he had a very short attention span and would not have fun on the potty, or doing anything else, for 20 minutes. Ms. Silver testified that as the potty training progressed into October, the adults were able to observe L.P. from outside the bathroom. Ms. Silver stated that the goal in potty training is for the attending adult to get farther and farther away so that the child can become independent in toileting. Ms. Silver testified that, prior to October 22, 2008, the only problem of which she was aware regarding L.P.'s potty training was a direction from Ms. Turner to cease allowing L.P. to run around the classroom in his shirt and underpants during the training sessions. Ms. Silver's prior site coaches had allowed the practice, and Ms. Silver saw no harm in allowing a very young child to discard his shorts and wear only underpants, which made it easier for L.P. to help himself on and off the potty. Though she disagreed with Ms. Turner's order to put on L.P.'s pants, Ms. Silver complied immediately. Notes written by Ms. Flotkoetter (who was the first to see L.P. and reported the situation to Ms. Turner) indicate that this incident occurred on September 5, 2008, the Friday before Ms. Silver allegedly commenced strapping L.P. to the Rifton chair.24/ Ms. Dowell was the chief accuser in this case, the only witness who unequivocally stated that she saw Ms. Silver strap L.P. to the Rifton chair. Ms. Dowell testified that on September 8, 9, and 10, 2008, Ms. Silver strapped L.P. to the Rifton chair for virtually the entire day, letting him up only for lunch. She left open the possibility that the strapping also occurred on September 11, 2008, but the general thrust of her testimony limited those occurrences to the three previous days.25/ Ms. Dowell's testimony as to the dates is directly contradicted by T.P., L.P.'s mother. Contemporaneous notes made by T.P. were introduced into evidence. These notes indicated that L.P. was not in school at all on September 9 and 10, 2008. At the hearing, T.P. affirmed the accuracy of these notes. Ms. Dowell testified that the longest continuous stretch of L.P.'s being strapped to the chair was three hours, from the end of breakfast at 8:45 a.m. until lunch at 11:45, when Ms. Cornell allowed him off the chair to eat. Ms. Silver strapped L.P. right back onto the chair after lunch. Ms. Dowell testified that L.P. often struggled to get off the chair. One day, Ms. Cornell said something to Ms. Silver about L.P.'s struggles. Ms. Silver responded by pulling a curtain across the bathroom door so that no one could see into the bathroom and L.P. could not see out. Ms. Dowell stated that Ms. Cornell eventually pushed the curtain back open. Out of a dozen faculty and parent witnesses who were familiar with Ms. Silver's classroom, Ms. Dowell was the only one to mention there being a curtain across the bathroom door. Ms. Dowell testified that she made no move to unstrap L.P. because Ms. Silver made it clear that this was "her deal" and she was going to be the one to take care of L.P. This was Ms. Silver's way of doing toilet training and Ms. Dowell and the paraprofessionals were not to interfere. Ms. Dowell testified that on the first day, September 8, she saw Ms. Silver walk L.P. to the bathroom, but did not see her strap him to the Rifton chair. On the second day, she was more attentive and saw Ms. Silver strap the child to the chair, both in the morning after breakfast and then after lunch. On the first day, L.P. remained strapped to the chair for the three hours between breakfast and lunch. As to the second day, Ms. Dowell could not be certain how long L.P. was strapped to the chair because she was busy "running the classroom." See Findings of Fact 49-53, supra, for a discussion of the credibility of Ms. Dowell's claim that she ever "ran the classroom." Ms. Dowell testified that she was in charge of the classroom, and had no help from the teacher because Ms. Silver was too busy with the potty training of L.P. This testimony is directly contradicted by Ms. Silver and Ms. Cornell, both of whom testified that Ms. Silver's hands-on participation in the potty training process was minimal, except during the short periods when Ms. Dowell was in charge of circle time. The testimony of Ms. Silver and Ms. Cornell is credited. The greater weight of the evidence establishes that Ms. Dowell never ran the classroom, and certainly not as early as September 8, after a mere two weeks on the job. Ms. Dowell asserted that this sequence of events, strapping L.P. to the chair after breakfast and again after lunch, became the "routine," and was repeated on the third day. Ms. Dowell stated that by the third or fourth day, L.P. caught on to urinating in the potty, and therefore was not forced to sit for hours at a time. Ms. Dowell testified that on one of the days, Ms. Cornell commented that L.P. was getting a red mark around his waist, presumably from the strap on the Rifton chair. Ms. Gale reported this to Ms. Flotkoetter, who in turn stopped Ms. Dowell in the hall and told Ms. Dowell to come get her if she saw Ms. Silver strapping the child to the Rifton chair.26/ Ms. Flotkoetter flatly denied having such a conversation with Ms. Dowell, and denied knowing anything about allegations of Ms. Silver strapping L.P. to the Rifton chair until long after September 10, 2008. Ms. Flotkoetter testified that she saw L.P. walking in and out of the bathroom during this period. Ms. Flotkoetter did recall bumping into Ms. Gale in the hallway and Ms. Gale telling her in passing that she believed L.P. was spending too much time on the potty. Ms. Gale made no allegation that the child was strapped onto the potty. Ms. Gale did not seek out Ms. Flotkoetter to tell her about L.P. This was not a "big moment," in Ms. Flotkoetter's words, but a brief conversation in the hallway. Ms. Flotkoetter could not recall precisely when Ms. Gale told her about L.P. on the potty, but remembered that she immediately reported the matter to Ms. Turner. Ms. Turner testified that her first inkling of any allegations of Ms. Silver committing any kind of abuse came in mid-October. Ms. Silver's only recollection of anything being said about marks on L.P.'s waist was her own statement, made when she noticed such marks on a day when the child wore pants with a tight elastic waistband. At the hearing, T.P. agreed that the elastic on L.P.'s shorts would leave a mark on his waist, an "indentation." Ms. Dowell asserted that one reason Ms. Silver stopped strapping L.P. to the chair was that Ms. Turner and Ms. Flotkoetter were increasing their vigilance over the classroom due to the reports from Ms. Dowell and Ms. Gale. Ms. Dowell testified as to one incident in which Ms. Turner was walking into the classroom, and Ms. Cornell "sprinted to the bathroom" to unstrap L.P. before Ms. Turner could see him. No other witness corroborated Ms. Dowell's testimony on this point. As noted above, neither Ms. Turner nor Ms. Flotkoetter had any contemporaneous knowledge of allegations regarding Ms. Silver's strapping L.P. to the chair. Ms. Flotkoetter testified that she was given no instructions to be extra watchful of Ms. Silver's classroom. Ms. Turner had no recollection of seeing a paraprofessional rush into the bathroom and emerge with a child. Neither Ms. Flotkoetter nor Ms. Turner witnessed anything in September 2008 that would have led them to suspect that any abuse was occurring in Ms. Silver's classroom. Ms. Turner testified that on one occasion she went into Ms. Silver's classroom and saw a little boy on the potty seat. She did not recall the boy's name, but it is undisputed that L.P. was the only child being potty trained at the start of the 2008-2009 school year. (The child also could have been G.J., who was already potty trained.) Ms. Turner asked Ms. Silver how long the boy had been on the seat, and Ms. Silver responded that he had just gotten on. Ms. Turner stayed to see how long the little boy sat on the seat. He finished and got right off the seat. No adult went into the bathroom to hurry the child off the potty seat. Ms. Cornell recalled an incident in which she went in to check on L.P. just as Ms. Turner was walking into the room, but stated that it was merely a coincidence. L.P. had been in the bathroom for about 15 minutes, and no one else was checking on him. Ms. Cornell noticed that L.P. was not running back and forth as he tended to do when in the bathroom, and she feared that he might have buckled himself into the Rifton chair. Ms. Turner happened to walk into the room just as Ms. Cornell entered the bathroom. Ms. Cornell's testimony is credible on this point. Ms. Dowell conceded that there were times during L.P.'s potty training when she saw L.P. off the potty and peeking around the corner of the bathroom, or coming out of the bathroom on his own after Ms. Silver had taken him in. Ms. Dowell attributed these incidents to L.P.'s ability to unfasten the buckle on the Rifton Chair's strap. As noted above, Ms. Cornell never saw L.P. unbuckle the strap. L.P.'s mother was certain that he was incapable of unbuckling the strap. Ms. Dowell made no contemporaneous mention of the potty chair situation to her supervising professor, Dr. Karen Patterson of the University of North Florida.27/ Ms. Dowell explained her failure to report obvious child abuse by stating that Ms. Silver had claimed to be a close friend of Dr. Patterson. Ms. Dowell stated that this fact made her hesitant to confide in Dr. Patterson. Ms. Silver denied telling Ms. Dowell that Dr. Patterson was her friend, and was at a loss to explain how Ms. Dowell could have had that impression. In her discussions with Ms. Dowell, Ms. Silver never even referred to Dr. Patterson by her first name. Ms. Silver knew Dr. Patterson through their professional contacts in the Jacksonville autism community, but never presumed to think of Dr. Patterson as her friend. Dr. Patterson confirmed that she knew Ms. Silver professionally, but had no social relationship whatever with Ms. Silver. In her initial e-mail correspondence with Ms. Dowell, Dr. Patterson referred to the teacher as "Ms. Silva." A couple of years before these events, Dr. Patterson had had another intern placed in Ms. Silver's class. Dr. Patterson testified that the intern had a great experience and no complaints. Ms. Dowell's testimony was inconsistent as to what and when she reported prior to mid-October 2008. She stated that during the first two weeks of school, prior to the potty incidents with L.P., she had talked to Ms. Flotkoetter about problems in Ms. Silver's classroom, in particular Ms. Silver's habits of "screaming and yelling" at the children and of spending an inordinate amount of time on the computer rather than teaching the class.28/ Ms. Dowell stated that Ms. Flotkoetter told her to keep a log of these incidents. However, before she could commence work on the log, word was relayed to her via Ms. Turner that the principal of Kernan Trail, David Gilmore, did not think it was a good idea to write anything down.29/ At another point in her testimony, Ms. Dowell testified that she reported the toileting issues to Ms. Flotkoetter on September 18. She also insisted that she spoke to Ms. Turner about the toileting issues well before October 22, 2008.30/ Ms. Dowell stated that Ms. Turner and Ms. Flotkoetter separately told her to come to one of them if she ever again saw Ms. Silver strap a child to the Rifton chair. Ms. Dowell told Detective Arflin that, on or about September 20, she had told Ms. Turner that she was afraid Ms. Silver would give her a bad grade on her internship because she disagreed with much of what Ms. Silver did in the classroom. Ms. Turner told Ms. Dowell not to worry, that she and Ms. Flotkoetter would back her up. Ms. Flotkoetter told Ms. Dowell that they were trying to make Ms. Silver mad enough to resign from her job. Ms. Flotkoetter denied telling Ms. Dowell that the administration of Kernan Trail was trying to goad Ms. Silver into resigning. Ms. Turner denied having a conversation with Ms. Dowell in which she promised to back up Ms. Dowell if she received bad grades from Ms. Silver. Ms. Turner denied that Mr. Gilmore ever directed her to tell Ms. Dowell not to keep a written record of events in Ms. Silver's class, and stated that Mr. Gilmore would never do such a thing. Ms. Turner repeatedly, and with force, stated that neither she nor Mr. Gilmore would ever tell an employee not to report abusive conduct. Ms. Turner further testified that in her visits to Ms. Silver's room, she never saw anything to support any of the allegations made against Ms. Silver.31/ Ms. Turner testified that the first time she heard allegations regarding Ms. Silver strapping a child to a toilet seat was on October 22, 2008. This is in direct conflict with Ms. Dowell's testimony that she reported to Ms. Turner several times to inform her of what she was seeing and hearing in Ms. Silver's class, including details about L.P.'s potty training.32/ Ms. Flotkoetter testified that every time she went into Ms. Silver's classroom, she asked Ms. Dowell how things were going. With the exception of the one time she complained about the animals, Ms. Dowell's response was invariably that everything was fine. Ms. Dowell comes forward On October 13, 2008, Z.G.'s mother, S.G., was in the classroom to pick up her child. According to S.G., she and Ms. Silver were chatting when Z.G. bent down to pull out a cubby shelf. Ms. Silver snapped her finger and said, "Don't touch." S.G. testified that her son jolted as if he had been shocked, then wrapped himself around her leg and covered his ears. As S.G. was walking with her child, she saw Ms. Dowell and Ms. Gale walking children to the bus. When asked by S.G. what was going on between Ms. Silver and Z.G., Ms. Dowell replied that he was "terrified" of Ms. Silver. Ms. Dowell urged S.G. to speak up, because Ms. Silver was "always screaming and yelling" at the children. Ms. Gale "butted in" to confirm Ms. Dowell's statements, saying that Ms. Silver was "mean," that she "yanks the kids around all the time and all she does is scream." Ms. Dowell told S.G. that she had tried to talk to Ms. Silver, "but she wasn't getting anywhere." S.G.'s testimony establishes that before Ms. Dowell brought her allegations against Ms. Silver to her superiors at Kernan Trail, she began making the allegations to the parents of children in the classroom, undermining Ms. Silver's authority before any official investigation could even commence. In her own testimony, Ms. Dowell acknowledged that her responsibility as an intern teacher was to report abuse to the school administration before going to the parents. On October 15, 2008, Ms. Dowell came to Ms. Flotkoetter to lodge a complaint about Ms. Silver's actions in the classroom. At that moment, Mr. Gilmore was in a meeting with his assistant principals, Ms. Turner and Ms. Mackey. Ms. Flotkoetter told Ms. Dowell to go into that meeting and make her complaint to the school's administrators. Ms. Dowell entered the meeting and stated that there were problems in Ms. Silver's classroom. Her sworn testimony was that she discussed "more than just [Ms. Silver's] yelling," but was otherwise unspecific as to the details of the conversation.33/ Ms. Turner recalled that Ms. Dowell accused Ms. Silver of screaming in children's faces and holding them down during nap time, without specifying when or how often these events occurred. Mr. Gilmore recalled Ms. Dowell stating that Ms. Silver yelled at the children and grabbed their hands. Mr. Gilmore stated that Ms. Dowell repeatedly voiced her concerns about the yelling. "That was the large amount of her conversation." Mr. Gilmore testified that Ms. Dowell may have mentioned that Ms. Silver strapped a child to the potty chair.34/ Ms. Dowell testified that Mr. Gilmore reiterated his advice not to put anything on paper. She stated that she asked Mr. Gilmore what she should do if parents asked her questions about the abuse occurring in the classroom. Mr. Gilmore replied that she should tell the parents she didn't notice anything. Ms. Dowell testified that she refused to lie outright to the parents, and informed Mr. Gilmore that she would answer "yes" or "no" questions put to her by the parents. Both Ms. Turner and Mr. Gilmore strongly denied that the latter ever gave Ms. Dowell any general instruction to keep quiet about her allegations. John D. Williams, the School Board's director of professional standards, testified that he knew Mr. Gilmore was displeased at hearing that Ms. Dowell had discussed these matters with parents. If Ms. Dowell were having conversations with one parent about confidential matters concerning another parent's child, it would have been entirely appropriate for Mr. Gilmore to caution Ms. Dowell to cease such conversations.35/ While it is plausible that Mr. Gilmore made some cautionary statement to Ms. Dowell, it is not plausible that he told her to pretend that she hadn't seen anything and to affirmatively lie to the parents. Ms. Dowell stated that, a day or so after this meeting, she inquired as to the status of the investigation she presumed was occurring. Ms. Flotkoetter told Ms. Dowell, in reference to Ms. Silver, that they were preparing to "rock her world." Ms. Flotkoetter denied telling Ms. Dowell that they were going to "rock her world," and was incredulous that any such unethical and unprofessional statement was attributed to her by Ms. Dowell. Ms. Flotkoetter's testimony is credited on this point.36/ Both Ms. Dowell and Ms. Gale testified that they believed Mr. Gilmore, Ms. Turner, and Ms. Flotkoetter were engaged in a cover-up of Ms. Silver's actions. Ms. Gale believed they were "covering their butts." Ms. Dowell stated that the administrators were initially on her side, but that at some point they decided that she "[knew] too much." Because they were "going down with the teacher," they intended to "screw" Ms. Dowell.37/ Ms. Turner testified that no one at the school was trying to hurt Ms. Dowell or keep her from finishing her internship. Ms. Turner, Ms. Silver, and Mr. Gilmore all agreed to help Ms. Dowell if she wanted to go to a different classroom or finish her internship at another school. Ms. Turner, Ms. Flotkoetter, and Mr. Gilmore all acknowledged that as school personnel they were mandatory reporters under section 39.201, Florida Statutes, meaning that if one of them knew or had reasonable cause to suspect that a child was being abused, he or she would be required to report the suspected abuse to the Department of Children and Family Services ("DCF") central abuse hotline. D.G.'s allegations Ms. Turner explained that, up to this point, nothing said by Ms. Gale or Ms. Dowell had established reasonable cause for her to suspect Ms. Silver of child abuse. In Ms. Turner's mind, Ms. Silver had been accused only of being too loud and too abrupt with the children. Ms. Turner testified that this changed when a parent named D.G. came forward with new allegations. D.G. is the mother of B.G., an autistic boy who turned three in mid-September 2008. D.G. and her husband were both experienced registered nurses at a local hospital, and were able to adjust their schedules so that one of them was always with B.G. D.G. worked one day during the week, and weekends. B.G. entered Ms. Silver's class on October 2, 2008, after visits to four other schools. D.G. testified that Ms. Silver was very cordial, and discussed the fact that she had adopted a son with Asperger's and was very active in the autistic community. D.G. stated that this made her and her husband more comfortable, because Ms. Silver was the only teacher who seemed so involved and knowledgeable on the subject of the autism spectrum. D.G. also liked the fact that the children in Ms. Silver's class were smaller and more under control than the children in other classes. B.G. was small for a three-year-old, and D.G. admitted to being extremely anxious about leaving him at school for the first time. D.G. testified that she had a telephone conversation with Ms. Silver on the day before B.G. entered the class. The conversation itself involved feeding and frequently giving juice to B.G., which Ms. Silver assured D.G. would not be a problem because she had two paraprofessionals in the room with her. However, D.G. found it disconcerting that Ms. Silver would interrupt the conversation to yell at the children "in a very loud voice, very boisterous." Because B.G. was sensitive to sudden loud noises, which often made him crouch and cover his ears or cry, Ms. Silver's loud voice caused D.G. some concern. D.G. testified that on the first day, October 2, she and her husband stayed for over an hour, observing the class. Two boys were playing with trucks on the floor. Suddenly, Ms. Silver yelled at the boys to "get over here right now." D.G. stated she "jumped out of her skin" at the sound of Ms. Silver's voice. D.G. stated that she thought she should have taken her son out of the school that second, but she did not. B.G. actually attended Kernan Trail for only about ten days. He was sick on October 17, 2008, and D.G. never brought him back. He never attended a full day because D.G. took him out at 1 p.m. every day for applied behavior analysis ("ABA") therapy. D.G. testified that, "I had suspicions from day one from all of the screaming and yelling there's more going on." This was due to her "mother's instinct." Because of her work schedule, D.G. was able to watch Ms. Silver's classroom extensively, perhaps obsessively. D.G. knew that Ms. Silver had an open door policy, but she did not want Ms. Silver to know she was watching. D.G. would drop off B.G. in the classroom, walk down the hallway to make Ms. Silver believe she had left the premises, wait outside on a bench for about an hour, then slip back inside the hallway and surreptitiously watch the classroom from the outside. She testified that she left the campus on only one day during B.G.'s tenure at Kernan Trail. D.G. testified that one day she came early to pick up B.G. for his ABA therapy, and the class was still in naptime. She quietly entered the darkened room and waited for her eyes to adjust. She could see a little boy's legs kicking. She moved for a better look and could then see that Ms. Silver had her feet on the child's chest, as he kicked and flailed with his arms and legs. When D.G. asked what was going on, Ms. Silver immediately lifted her feet off the child. Ms. Silver said she was holding the boy, T.D., down because she didn't want him to "bulldoze" any of the other children. Ms. Silver told D.G. that T.D. was fond of rolling over the children who were sleeping, and she was acting to prevent him from engaging in that form of horseplay.38/ On another day, D.G. stated that she saw Ms. Cornell holding a child in a headlock. D.G. testified that she saw student G.J. alone in a small wooden chair outside of the classroom "many times." On one occasion, she saw G.J. sitting in the hallway, and saw him again when she returned two hours later. D.G. said that when she returned, she mentioned that G.J. was still sitting out in the hallway. She stated that Ms. Silver "kind of snickered" and said "we forgot he was out there." D.G. did not find the situation funny. D.G. testified that on another occasion, she came in at nap time to see G.J. lying still on one of the floor mats with one foot a few inches off the mat. Ms. Silver walked over and told him to get his foot on the mat immediately. She repeated her order, but G.J. did not move. Ms. Silver "went over, grabbed his foot, yanked it up, and threw it down on the mat." G.J. immediately started crying. Ms. Silver grabbed him up by the hand and yanked him off the mat. She held him up so that his toes barely touched the ground and dragged him on his tiptoes to go out the door. G.J. was saying, "Owie, owie." Ms. Silver was telling him not to wake up his friends. She opened the classroom door and threw G.J. into the wooden chair so hard that it tipped backwards. D.G. stated that if the chair hadn't been against the wall, it would have flipped over. G.J. was crying. Ms. Silver told him to sit there until he stopped crying, and went back into the classroom. On yet another day, D.G. saw G.J. standing over the sink, holding his hand under a slow drip from the faucet. Ms. Silver yelled at him to take his hand out of the water, but G.J. was not attending to her. Ms. Silver ran over to him and said, "You heard what I said." She grabbed him by the right side of his shirt and shoulder and yanked him backwards, and flipped a small chair around and threw him into it. G.J. just sat there whimpering. D.G. testified that she brought her concerns to school officials from the first day B.G. attended. She went to Ms. Flotkoetter on the first day, because she had been told that the site coach is the first person with whom to address any classroom problems. She told Ms. Flotkoetter that she understood the need to be stern with the children and to redirect them, but that Ms. Silver was screaming at them, which was inappropriate. Ms. Flotkoetter told D.G. that she was aware that there were "issues" in Ms. Silver's classroom, but that the school was taking care of the matter. Upon D.G.'s further inquiry, Ms. Flotkoetter declined to elaborate on the meaning of "issues." D.G. testified that after the first day, she told her husband that she wanted to pull B.G. out of the school, but they decided to give it another chance. On the second day, D.G. received the same treatment: she complained, and Ms. Flotkoetter supposedly checked on things. D.G. tried to see Ms. Turner, but was only able to leave messages. On the next day, Ms. Turner returned D.G.'s call. Ms. Turner told D.G. that the administration was fully aware of what was going on the Ms. Silver's class and was investigating the matter. Ms. Turner denied that child abuse was being committed in Ms. Silver's classroom. D.G. asked her about Mr. Gilmore, and why he was not returning her calls. Ms. Turner told D.G. that Mr. Gilmore was aware of the matter and had charged Ms. Turner with handling the situation. D.G. met Ms. Dowell on October 2, B.G.'s first day at Kernan Trail. D.G. testified that, towards the end of B.G.'s enrollment at the school, she asked Ms. Dowell to step out into the hall and speak with her. Ms. Dowell told D.G. that she could not give D.G. specifics about what was happening in the classroom because she did not want to jeopardize her internship. Ms. Dowell advised D.G. to go to Ms. Turner. D.G. responded that she had already spoken to Ms. Turner and Ms. Flotkoetter, to no avail. D.G. testified that she could tell Ms. Dowell wanted to say something, but felt that she could not. D.G. asked Ms. Dowell if she would answer "yes" or "no" questions, and Ms. Dowell agreed. D.G. asked if Ms. Silver constantly yells. Ms. Dowell said, "Yes." D.G. asked whether Ms. Silver and Ms. Cornell "manhandle" the children all the time. Ms. Dowell said, "Yes." D.G. asked about Ms. Cornell squeezing the children's hands, and Ms. Dowell said, "Yes." D.G. testified that she began to cry at the responses Ms. Dowell made. As Ms. Dowell attempted to calm her, Ms. Flotkoetter and Ms. Turner came out a door into the hallway. D.G. testified that she told Ms. Flotkoetter she was appalled that they were doing nothing and by their lack of concern. D.G. testified that she spoke with Ms. Turner four or five times on the telephone and talked to her at the school three times in early October. She left messages for Mr. Gilmore of increasing anger and intensity. On October 22, after she had pulled her son out of the school, D.G. left Mr. Gilmore a message "that I now was his worst nightmare.39/ You should have returned my phone calls. You should have helped me. You should have helped these children." On the next day, October 23, 2008, D.G. made the report to the JSO that precipitated Detective Arflin's investigation. Ms. Flotkoetter recalled that D.G. met her in the hallway and said that she had concerns about Ms. Silver's classroom. However, D.G.'s only complaint was that Ms. Silver was too loud. Ms. Flotkoetter stated that Ms. Turner was walking down the hall as she was talking to D.G., and that she told D.G. that Ms. Turner was the person to address complaints about Ms. Silver's class. D.G. did not speak to Ms. Turner at that time, and Ms. Flotkoetter did not know if they ever spoke to one another. Ms. Flotkoetter denied telling D.G. that she was aware of "issues" in Ms. Silver's room. The only "issue" Ms. Flotkoetter knew of prior to October 22 was the animals in Ms. Silver's classroom. Ms. Flotkoetter had no memory of an incident in which she and Ms. Turner came upon Ms. Dowell and D.G. in the hallway. Ms. Dowell confirmed the gist of her conversation in the hallway with D.G., but she did not confirm D.G.'s testimony regarding the subsequent meeting with Ms. Flotkoetter and Ms. Turner. Ms. Turner testified that she spoke with D.G. only one time in any detail. This conversation occurred on October 20, 2008, when B.G. was sick and out of school.40/ Ms. Turner recalled that D.G. complained her son was holding his ears when he came home. D.G. also stated that she had seen Ms. Silver "put a child down in a timeout chair outside of the room very hard." In response to Ms. Turner's counseling, D.G. confessed that she may be a little overprotective, and needed to give the school experience a little more time. Ms. Turner told D.G. that she was welcome to observe Ms. Silver's classroom at any time, without an appointment. Ms. Turner also promised to monitor the classroom more closely. Ms. Turner specifically promised to listen for yelling from inside the classroom. D.G. did not complain in so many words about Ms. Silver's yelling, but Ms. Turner inferred such a complaint from D.G.'s statement about B.G. holding his ears. Ms. Turner testified that she followed through on her promise to D.G., and started monitoring Ms. Silver's classroom more frequently. Ms. Turner heard or saw nothing to substantiate the complaint. Later that week, Ms. Turner had a brief telephone conversation with D.G. about making an appointment for D.G. to meet with Mr. Gilmore. D.G. demanded a meeting with Mr. Gilmore. She stated there were things going on in the classroom that she wanted to discuss with Mr. Gilmore. D.G. was upset. She refused to discuss the matter with Ms. Turner on the telephone. She stated that she would go to the police if she could not meet with Mr. Gilmore. On or about October 20, when D.G. made allegations that could be construed as child abuse, Ms. Turner immediately called the DCF hotline, in order to have an outside agency investigate the matter. Ms. Turner told Mr. Gilmore that she had made a report to the DCF hotline, but saw no need to tell anyone else about it at the preliminary stage. As to the substance of D.G.'s allegations, it is noted that D.G. contemporaneously made the same allegations regarding Ms. Silver41/ to another parent, S.G., the mother of Z.G.: Ms. Silver did nothing but "scream and yell" at the children; she placed a child in the hallway unsupervised; she roughly handled children and slammed them into chair and onto their nap mats; and she placed her feet on a child at nap time. Ms. Silver acknowledged that D.G. was frequently in her classroom, and stated that she was welcome to be there. Ms. Silver denied that D.G. ever confronted her about anything that was going on in the classroom. There was general agreement among the witnesses that Ms. Silver could be loud. However, Ms. Silver denied that she "yelled" or "screamed" at the children, because "yelling" or "screaming" implies that there is rage or anger underlying the high volume. Ms. Silver testified that she grew up in a loud family, that she had always been loud, and that she sometimes doesn't even realize that she is being loud. She stated that if she finds a need to be "dramatic" with the children, she makes every effort to convey the drama through her tone of voice rather than through volume. Ms. Kavanaugh testified that she constantly counseled Ms. Silver about her loudness when she taught at Lone Star, but that she never heard Ms. Silver "yelling" at the children or found her to be inappropriate with the children in any way. Neither Ms. Flotkoetter nor Ms. Turner ever heard anything they could describe as "yelling" or "screaming" emanating from Ms. Silver's classroom. Ms. Silver's attorney, Mr. Sheppard, has a deep, booming voice, and would ask the witnesses who accused Ms. Silver of "yelling" or "screaming" if they believed he was yelling or screaming. In one example, Ms. Tupper, the occupational therapist, agreed that Mr. Sheppard was "screaming" when the undersigned perceived only increased volume. The School Board presented as axiomatic the proposition that autistic children are extraordinarily sensitive to loud noises, and that this sensitivity caused children in Ms. Silver's class to cover their ears at her loudness. However, the evidence presented at hearing established that some autistic children, such as G.J., have a low sensory threshold. J.J. testified that G.J. required more sensory input than other children. When he was younger, G.J. would not respond to a normal speaking voice. J.J. had to raise her voice to a level that most people would consider inappropriate in order to get his attention. D.G. testified that her son's problem was sudden loud noises, not merely increased volume. According to Ms. Dowell, Z.G. and L.P. were "hypersensitive" to sound. However, S.G., Z.G.'s mother, testified that while he would cover his ears when he was startled or a noise was too loud, he would also cover his ears "when he didn't want to do something." S.G. agreed that Z.G.'s first IEP at Kernan Trail noted that "he will often cover his ears in response to commands he does not like." L.P.'s mother testified that he is not unusually sensitive to loud noises. In fact, L.P. will turn up the volume on things he likes and make them very loud. He covers his ears only when he doesn't want something to be loud. In summary, the School Board failed to demonstrate that the mere "loudness" of Ms. Silver's voice had any pervasive negative effect on the children in her classroom. The evidence failed to demonstrate that, by any objective standard, Ms. Silver engaged in "screaming" or "yelling" at the young children in her classroom. Ms. Silver denied ever placing her feet on a child. Ms. Cornell stated that she had never seen Ms. Silver place her feet on a child or hold a child down on a mat. Ms. Cornell testified that Ms. Silver used a technique that she called "London Bridge" to calm a restless child at naptime. Ms. Silver would place her legs over the child, making a sort of tent over the child. This would restrict the child's movement but did not involve direct physical contact.42/ Ms. Dowell made no mention of the "London Bridge" technique in her testimony. While acknowledging that she could be too loud in the classroom, Ms. Silver denied ever being physically rough with any of the children. She testified that she would walk children to the timeout chair. She would hold their wrists, because some autistic children do not like having their hands held. Ms. Silver denied ever "grabbing" a child or throwing a child into a chair. She stated that G.J. would sometimes throw himself into the timeout chair, and that one time he threw himself with sufficient force to tip over the chair. Ms. Silver immediately phoned G.J.'s mother to tell her about the incident. Ms. Cornell testified that "redirection sometimes became very loud and would be hand on hand, and those things sometimes were more that I liked or-- or didn't want to happen." By "hand on hand," Ms. Cornell meant that Ms. Silver would take a child by the arm to the timeout chair. While conceding that Ms. Silver may have been acting for dramatic effect, Ms. Cornell believed that "it was a little too loud, a little too close, a little too firm possibly." Ms. Cornell remembered that Ms. Silver once placed a child in the timeout chair with enough force to tip over the chair. She later clarified that she did not see Ms. Silver push the child into the chair; rather, she heard the clatter of the chair tipping over and turned to see the child on the floor. The child was not injured. Ms. Dowell testified that she saw Ms. Silver roughly place children in the timeout chair. She made no mention of a chair tipping over. S.G., the mother of Z.G., testified that she was in the class one day and student T.D. was feeling her hair. He accidentally pulled hard on her hair and she said, "Ouch." Ms. Silver "grabbed him by his arm and yanked him away from me and, you know, forcefully put him in the timeout chair and told him, we don't pull hair. . . " As to the allegation that she placed G.J. in a chair outside the classroom, Ms. Silver herself admitted that she did this on a single occasion. G.J. had been in Ms. Silver's class for two years, and she knew him very well. G.J. was being loud during nap time, and Ms. Silver did not want him to wake up the other children. She asked G.J. to sit in the chair outside the classroom until he calmed down. Ms. Silver testified that G.J. was the only child she would have put outside the classroom because she knew G.J. would stay in the chair. Ms. Silver watched him from inside the classroom to make sure he stayed in the chair. See Finding of Fact 278, infra, regarding J.J.'s general approval and adoption of the timeout chair method employed by Ms. Silver. Ms. Dowell testified that during naptime one day, G.J. was moving around and not lying still. Ms. Silver "yanked him up off the mat, drug [sic] him outside, slammed him in a chair, and left him out there and forgot about him."43/ Ms. Dowell did not recall G.J. being put out of the classroom more than once. Ms. Cornell recalled one incident in which Ms. Silver placed a child in a chair outside the door of the classroom. D.G.'s overall credibility was impaired by the overwrought and emotionally labile presentation she made at the hearing. She exaggerated her efforts to work with school personnel in pursuing her complaints. D.G. testified that she made frequent, frantic efforts to get the attention of Ms. Flotkoetter and Ms. Turner. Ms. Flotkoetter recalled only that D.G. complained about Ms. Silver's being loud. Ms. Turner recalled only one conversation with D.G., after which Ms. Turner immediately phoned the DCF hotline. Ms. Bennett, the School Board's autism specialist, testified as to a strange telephone conversation with D.G., whom she had never met in person: "[D.G.] told me that Rhona told her that she had been artificially inseminated with a turkey baster." D.G. was clearly bent on getting Ms. Silver out of the school system at any cost. She told the police officer who took her report that she "want[ed] that woman on the five o'clock news." The evidence established that D.G. was not above inventing preposterous stories to achieve her aim. Nonetheless, some of D.G.'s allegations were corroborated in part by other credible testimony. Ms. Silver did not "yell and scream all the time," but she did have a loud voice and stern presentation that an overprotective parent could construe as "yelling." Ms. Silver was at times more physical with the children than some observers, even Ms. Cornell, found appropriate. Ms. Silver did once place G.J. in a chair in the hallway outside the classroom, which was very poor judgment even in light of Ms. Silver's attempt to explain and extenuate the circumstances. The evidence was not sufficient to establish that Ms. Silver placed her feet on a child to hold him in place, though even the "London Bridge" technique as described by Ms. Cornell might give rise to parental objections. John D. Williams, the director of professional standards for the School Board, testified that the School Board generally applies progressive discipline in four steps: verbal reprimand; written reprimand; written reprimand with suspension; and termination. In this case, the School Board decided to proceed straight to termination because Ms. Silver had been subject to a felony arrest for child abuse, in violation of section 827.03(1)(a), Florida Statutes, in relation to the allegation that she strapped L.P. to the Rifton chair. Mr. Williams testified that the Rifton chair allegation was the central charge against Ms. Silver, even under the School Board's theory of the case. The other behaviors included in the allegations against Ms. Silver happened over a period of time. Mr. Williams stated that these behaviors--yelling, grabbing and rough handling of children, and placing children unsupervised in the hallway--would have lent themselves to progressive discipline. Ms. Dowell's departure At the October 15, 2008 meeting with Ms. Dowell, Ms. Turner became aware for the first time that there were serious problems between Ms. Silver and Ms. Dowell. On October 20, Ms. Turner spoke to D.G. and then reported D.G.'s allegations to the DCF hotline. As of the morning of October 22, Ms. Turner had decided that it would be appropriate to remove Ms. Dowell from Ms. Silver's classroom.44/ At approximately 8:30 a.m., Ms. Turner spoke with Stephanie Smith, who taught a self-contained class for students with autism, grades four and five, to ask whether Ms. Dowell could complete her internship in Ms. Smith's room. Ms. Smith agreed that Ms. Dowell could come into her classroom. Ms. Smith testified that Ms. Turner only told her that Ms. Dowell was having "problems" in Ms. Silver's class that necessitated the move. Sometime between 8:30 and 9:00 a.m., Ms. Flotkoetter came down to Ms. Silver's classroom to bring Ms. Dowell to Ms. Turner's office. As it happened, however, Ms. Silver had chosen the same morning to have a discussion with Ms. Dowell about the precariousness of her internship. At about 8:00 a.m., Ms. Silver asked Ms. Dowell to walk with her down to the media center, which Ms. Silver knew would be quiet and deserted at that early hour. Ms. Silver wanted to point out to Ms. Dowell that she had less than a month and a half left in her internship, and that she had a lot left to do if she intended to complete the requirements set forth in the FSU Handbook. Ms. Silver began to talk about these matters when Ms. Dowell blurted out that Ms. Cornell was abusing L.P. Ms. Dowell then started crying. Ms. Silver was dumbfounded. She had worked with Ms. Cornell for several years and knew her to be "very gentle" with the children. Ms. Silver asked, "How can that be?" Ms. Dowell answered that Ms. Cornell would squeeze L.P.'s arms when Ms. Silver was not looking. Before Ms. Silver could respond, several people walked into the media center. Because she felt this conversation should be private, Ms. Silver said to Ms. Dowell that they should walk back toward the classroom. It was now time for children to start arriving, and the room was full of people. Before there was any opportunity to resume the conversation, Ms. Flotkoetter came into the classroom for Ms. Dowell. Ms. Dowell agreed that she and Ms. Silver had a private conversation in the media center early on October 22, but she disagreed as to all the other particulars. According to Ms. Dowell, Ms. Silver wanted to talk about the previous day, when Ms. Cornell "got caught using the children's lunch cards and taking their food or something like that." Ms Dowell could not imagine why Ms. Silver wanted to talk to her about it.45/ She denied crying or accusing Ms. Cornell of abusing L.P. Ms. Dowell did acknowledge that Ms. Flotkoetter came to the classroom for her at around 8:30 and took her to Ms. Turner's office, where Ms. Turner informed Ms. Dowell that she was being transferred to Ms. Smith's class for the remainder of her internship. According to Ms. Flotkoetter, Ms. Turner did not reference Ms. Dowell's allegations or the conflict between Ms. Dowell and Ms. Silver. Ms. Turner simply stated that Ms. Dowell should go and have a new experience in a different classroom. Ms. Flotkoetter testified that it was clear Ms. Dowell did not want to change classrooms and seemed concerned about why she was being transferred. Ms. Dowell testified that she was upset because she did not want to leave the children in Ms. Silver's classroom. Ms. Smith testified that Ms. Dowell came to her class during morning rotations, which began at 9:30 a.m. Ms. Smith estimated that Ms. Dowell arrived between 10:15 and 10:30. Ms. Dowell stayed for no more than 30 minutes. She told Ms. Smith that she had to go meet with her professor. Ms. Smith told her that she could go, and Ms. Dowell left the classroom. Ms. Smith never spoke to Ms. Dowell again. Ms. Smith was an immensely credible witness, matter of fact and thoughtful in her recollection of events. She testified that she had only encountered Ms. Dowell a handful of times. Ms. Smith welcomed Ms. Dowell to her class and told her she was welcome to finish her internship there. Ms. Dowell's response was "very blah." She did not say "thank you" or "that would be nice." She only responded that she needed to speak with her professor. Ms. Smith stated that it was apparent from the moment Ms. Dowell entered her classroom that Ms. Dowell did not want to be there. Ms. Smith got the sense that "she was done . . . She was there because she was told that she could complete her internship in my room but she didn't in any way want to be in there . . . My impression was that she had other things on her mind and she did not want to be in my room at that time." At about 11:15 a.m., Ms. Dowell left a note for Ms. Flotkoetter stating that she was going to have a phone conference with her Florida State supervisor and dean of education, and that "I will call you and let you know what they want me to do." Ms. Dowell testified that she left Kernan Trail because she did not want to move permanently to Ms. Smith's class. She believed that her internship required her to stay in one classroom throughout, though she could not point to a provision of the FSU Handbook setting forth such a requirement. She wanted to consult with someone from Florida State before consenting to the move to Ms. Smith's class. Ms. Silver testified that she was very concerned that Ms. Dowell had been removed from her classroom without explanation. Such a thing had never happened in her many years of having interns in her class. Ms. Silver was confused and upset over the entire situation. Ms. Silver telephoned Dr. Patterson, reasoning that the school would not have moved Ms. Dowell without consulting Ms. Dowell's supervising professor. However, Dr. Patterson had no idea what was happening with Ms. Dowell. On the morning of October 21, 2008, she had received an e-mail from Ms. Dowell stating as follows: "I just wanted to check in and let you know everything is still going well. I have started taking over direct instruction and I also do circle time--I am pretty much running the classroom--as per my internship schedule. Hope all is well on your end." Early on the morning of October 22, Dr. Patterson responded with an e-mail informing Ms. Dowell that she intended to come to Kernan Trail on October 23 to observe Ms. Dowell in the classroom. Also on the morning of October 22, Dr. Patterson received the telephone call from Ms. Silver, who told her that the Kernan Trail administration had removed Ms. Dowell from her class. Ms. Silver was crying, and told Dr. Patterson she didn’t know what was going on. Dr. Patterson told Ms. Silver to have Ms. Dowell phone her. As far as Dr. Patterson knew, Ms. Dowell was still at Kernan Trail but in another teacher's classroom. After speaking with Dr. Patterson, Ms. Silver called the school office and requested a meeting with Mr. Gilmore. A meeting was scheduled for 1:00 p.m. At this meeting, which was also attended by Ms. Turner, Ms. Silver learned for the first time of the allegations that were being made against her. Ms. Turner testified that Ms. Silver answered Mr. Gilmore's questions forthrightly and without hesitation. Ms. Silver was shocked at the allegations. She denied ever yelling at a child or hitting a child. She denied ever strapping a child to a chair. Ms. Silver stated that she would hurt herself before she would hurt a child. She could not imagine what D.G. thought she saw, but Ms. Silver denied grabbing G.J. or harming him in any way. She stated that she had had a dozen interns before, and never been accused of harming a child. Ms. Silver stated, "I have lost control of my class and I don't know how to get it back." Ms. Turner testified that this statement was in reference to the number of adults in the classroom. Ms. Silver asked if she could get Ms. Dowell and Ms. Gale out of the classroom, and work with Ms. Cornell alone. At the hearing, Ms. Silver testified that four adults in a room with only six or seven students was unwieldy and made for poor dynamics in the class. Ms. Silver said that she "can't handle this anymore." She stated that she had a friend who worked at Quantum Leap Tutoring, and that she might try to go to work there. She asked whether she could stay until December, and what she needed to do to resign her position. Ms. Silver testified that these statements were reflections of her distress at the outrageousness of the allegations that had just been sprung upon her, not an admission that she had done anything wrong. Ms. Turner declined to speculate as to what Ms. Silver was thinking, but testified that Ms. Silver was crying and upset with everything that was going on. At 1:41 p.m. on October 22, Ms. Dowell responded to Dr. Patterson's e-mail. She wrote, "There has been so much drama going on in my classroom. [Tomorrow] is probably not a good day to come and observe. Please call me so I can explain the situation to you!" Ms. Dowell testified that she had already decided not to come back to Kernan Trail at the time she wrote this e-mail. She also testified that she was sending e-mails about the situation to one of her professors at Florida State, but made no mention of her intention not to return to Kernan Trail. At 2:10 p.m. on October 22, Ms. Dowell phoned-in for a teleconference with Mr. Gilmore, Ms. Mackey, and Ms. Turner. Ms. Dowell asserted that Ms. Silver was friends with Dr. Patterson, which she believed created an inappropriate situation regarding her internship. Ms. Dowell stated that she was "being punished for being an advocate." She stated that she had spoken with D.G. on the phone and answered questions about Ms. Silver's classroom. Ms. Dowell alleged that the "situation" in Ms. Silver's classroom had existed in previous years and was known to the administration. Ms. Dowell stated that Ms. Smith told her, "I think that it's gotten worse this year." Ms. Turner testified that she subsequently talked to Ms. Smith about this statement. Ms. Smith denied ever making such a statement.46/ Ms. Dowell alleged that Ms. Silver used physical force against the children and screamed in their faces. According to Ms. Turner's notes of the meeting, Ms. Dowell asserted that Ms. Silver was "strapping in kids." Ms. Turner testified that Ms. Dowell was alleging that Ms. Silver had strapped more than one child to the toilet. With unintended irony, Ms. Dowell stated, "I'm not going to get into some huge drama." Mr. Gilmore told her that he did not want to put Ms. Dowell back in Ms. Silver's classroom. He advised her to "talk to us in the morning," presumably when she reported for work as scheduled. The conference was adjourned. Ms. Dowell phoned Dr. Patterson at around 4:30 or 5:00 p.m. on October 22. Ms. Dowell said that things were happening in the classroom. Ms. Silver had left a child on the potty for a long time. Ms. Dowell gave few details. Ms. Dowell stated that she was not comfortable with things that were going on in Ms. Silver's classroom and that she had reported them to the principal. Dr. Patterson was surprised. Based on what Ms. Dowell said, it appeared these things had been happening over a period of time, but Ms. Dowell had said nothing to her until now. Dr. Patterson testified that she had never before had an intern who did not come to her when something was wrong. She told Ms. Dowell that she still intended to come to Kernan Trail the next day to observe Ms. Dowell's class.47/ On the morning of October 23, 2008, Ms. Dowell returned to Kernan Trail to collect her belongings, having decided not to return to her internship position at the school. She told Ms. Turner that her Florida State professors had pulled her from the school. This statement by Ms. Dowell was not true. Ms. Dowell testified that Ms. Turner told her to leave, without saying why. Ms. Turner said, "Here are your things and we wish you the best of luck." Ms. Turner may well have wished Ms. Dowell good luck, but only after Ms. Dowell made it clear that she had decided to abandon her position at Kernan Trail. Ms. Turner did not eject Ms. Dowell from the Kernan Trail campus. Ms. Dowell then telephoned Dr. Patterson and told her not to bother coming to Kernan Trail to observe her. Ms. Dowell told Dr. Patterson that when she went into the office to sign in that morning, she was told to leave the campus and not come back. This statement by Ms. Dowell was not true.48/ Believing that Ms. Dowell had been ejected from Kernan Trail, Dr. Patterson brainstormed with some colleagues at UNF as to a placement in which she could save her internship. A private tutorial school, the Jacksonville School for Autism ("JSA"), was suggested. The JSA was contacted and agreed to take Ms. Dowell. Her professors at Florida State okayed the reassignment. Ms. Dowell commenced work at the JSA during the first week of November, completed her internship in December, and graduated from Florida State on December 13, 2008. At the hearing, Ms. Dowell testified that Kernan Trail told her that she could not come back to the school. Ms. Turner denied unequivocally that Kernan Trail terminated Ms. Dowell's internship. Mr. Gilmore testified that he understood Ms. Dowell voluntarily resigned after her professors pulled her from the school. D.G. testified that Ms. Dowell phoned her on October 23. Ms. Dowell was crying. She told D.G. that Mr. Gilmore had fired her and therefore she would not be there for B.G. D.G. responded that Ms. Dowell should not be concerned because she was not sending B.G. back to the school. Investigation and charges filed On October 23, 2008, after she had learned that Ms. Dowell was leaving Kernan Trail, apparently against her will, D.G. filed the police report that commenced the criminal investigation of Ms. Silver. D.G. testified that she later phoned Ms. Dowell to tell her that she had filed a police report against Ms. Silver. On or about October 23, 2008, Mr. Gilmore referred the allegations against Ms. Silver to the School Board's Office of Professional Standards for an investigation. However, once the School Board's investigator learned that a criminal investigation by JSO was underway, the Office of Professional Standards suspended its investigation pending the outcome of the JSO investigation. Ms. Silver was removed from her classroom assignment at Kernan Trail and assigned to the School Board's Consolidated Services Center on November 5, 2008, pending the outcome of the JSO investigation, as well as an investigation by DCF based on the hotline call by Ms. Turner. At the hearing, it was established that the JSO investigation was conducted solely by Detective Arflin, who made the decision to arrest Ms. Silver and charge her with child abuse on his own. The investigation lasted for over five months. Detective Arflin did not consult the state attorney before making the "probable cause" arrest. Michael Sanders, a JSO detective whose autistic son was tutored by Ms. Silver, testified that in an investigation of this length, he would never make a probable cause arrest. He would have the state attorney "by my side" when he went to the courthouse to secure an arrest warrant, particularly in a high profile case such as this one. Ms. Silver was arrested and charged with a violation of section 827.03(1)(a), Florida Statutes, simple child abuse, a third-degree felony. On March 20, 2009, the Professional Standards Office issued a memorandum indicating that Ms. Silver's case had been "cleared by arrest." The term "cleared by arrest" means that the School Board's preliminary agency action in terminating Ms. Silver's employment was based entirely on the JSO investigation conducted by JSO Detective Bransom Arflin. The School Board conducted no independent investigation of the facts of this case, aside from the discovery forced upon it by Ms. Silver's defense. The School Board proceeded against her as described in the Preliminary Statement above. Ms. Silver waived her right to a speedy trial on the criminal charges. The state attorney for the Fourth Judicial Circuit has deferred any decision on whether to proceed on the criminal allegations pending the completion of this administrative matter. Character witnesses Ms. Silver presented the testimony of several witnesses regarding her history, character and reputation as a teacher. Ms. Kavanaugh, who was Ms. Silver's principal at Lone Star for several years, observed Ms. Silver's classroom on several occasions and found that Ms. Silver did a good job with difficult children who would kick, scream, hit or try to run away if something seemed unfair or they didn't understand a rule. Ms. Kavanaugh found Ms. Silver to be a professional in the classroom. Ms. Silver was knowledgeable about her students and about their disabling conditions. She cared deeply about the students and would not do anything inappropriate to them. Ms. Silver would not hesitate to approach Ms. Kavanaugh regarding problems in the classroom. Ms. Kavanaugh noted that Ms. Silver's normal speaking voice is loud, and she would frequently ask Ms. Silver to work on controlling her voice level. Ms. Kavanaugh stated that Ms. Silver's loudness bothered her, but was not necessarily inappropriate for the children in her classroom. Dr. Diane Gillespie, now retired, was a teacher, administrator and Professor of Special Education for 42 years. She worked as a professor at Virginia Tech, UNF, and Jacksonville University. On two occasions, she served as the School Board's director of ESE. She also served as principal of two schools in Jacksonville, including Justina Elementary School ("Justina"). For approximately four or five years, Dr. Gillespie was the state director of ESE. Dr. Gillespie testified that she first observed Ms. Silver teaching EH students at Lone Star, when Dr. Gillespie was the principal at Justina. Dr. Gillespie was so impressed that she sent one of her teachers to Ms. Silver for coaching in teaching disabled children of early elementary age. According to Dr. Gillespie, Ms. Silver's program was "exemplary." The classroom was well structured. The children were given a clear idea of what was expected and of the consequences if they had difficulty following the classroom rules or had inappropriate interactions. Dr. Gillespie observed: A teacher who can sort out the reason the child is having difficulty with behavior in a classroom after a period of time that they have been in a structured appropriate environment, sort out the child that needs a more intensive program versus the child who's ready to go into a regular classroom . . . is a teacher who knows the individual child, who knows how to direct an IEP, who knows how to appropriately work with parents. That's the kind of teacher you want, who is well-rounded, to work with any children who have difficulties and behavior. And Rhona had those skills and was very structured and very loving but firm and specific and worked with parents so that parents knew how to follow through. That's the kind of teacher I want. Ms. Silver helped Ms. Gillespie's teacher set up her own classroom with zones and a more definite structure. Dr. Gillespie subsequently took other teachers from Justina to observe the structure and functioning of Ms. Silver's classroom. Dr. Gillespie testified that that she and Ms. Silver "became a team and I had a great deal of respect for her skills." Ms. Silver "absolutely" worked well with her professional colleagues. Dr. Gillespie hired Ms. Silver to work at Justina's summer school for children with disabilities. T.T. is the mother of an autistic child whom Ms. Silver taught during the 2005-2006 and 2006-2007 school years in the pre-K autistic classroom at Kernan Trail. At the time of the hearing, the child was in the second grade. T.T. testified that when her daughter started in Ms. Silver's class, her vocabulary was about 5 words. The child would scream or “get physical” in order to indicate her wants. After two years in Ms. Silver's class, T.T.'s daughter was speaking in three and four word sentences. T.T. testified that before her daughter entered Ms. Silver's class, the child was constantly aggravated and would get physical over almost any provocation, biting and scratching T.T. Within four or five months of being in Ms. Silver's class, the child's speech was clearer and her behaviors were beginning to subside. After being in Ms. Silver's class, the child expressed her wants and needs verbally and was much more affectionate. T.T. also testified that, prior to entering Ms. Silver's class, her daughter paid no attention to other children around her. She made several good friends in Ms. Silver's class with whom she now interacts quite well. T.T. would spend a half hour or so in the classroom in the mornings when she dropped off her daughter. Ms. Silver would take time out to explain to T.T. what they were doing and what was working. Ms. Silver was always very open about the parents coming into the classroom, more so than any other teacher T.T. has encountered. T.T. observed that Ms. Silver was affectionate to the students. She treated the children as if they were her own. T.T. knew that Ms. Silver would go out of her way to do anything for her students. T.T. heard Ms. Silver raise her voice a few times to keep the children in line, but heard nothing that could be called "yelling." T.T. testified that Ms. Silver was very knowledgeable in her field.49/ J.J., the mother of G.J., testified that when her son G.J started in Ms. Silver's classroom in November 2006, he had no verbal skills and was not potty trained. G.J.'s primary means of communication were screaming and sitting down. When he was frustrated, G.J. would sweep every object from any surface in front of him. G.J. would not acknowledge people around him, had poor fine motor skills, and could not focus. J.J. joked that she called him "my bump on a log" because of his complete lack of responsiveness. In Ms. Silver's class, between November 2006 and May 2007, G.J. went from a word set of zero to a vocabulary of 50 to 100 words. G.J. was trying to articulate his wants through words rather than screaming. He was developing social skills, learning to take turns and to listen to what he was being told. Ms. Silver used blocks to work with G.J. on his motor skills. J.J. noted that G.J. began playing with toys at home, and even pretending in his play, unusual for an autistic child. Ms. Silver would use a timeout or "break" chair with G.J. She would have him sit in the chair when he was "overloaded." A few minutes in the break chair would calm him down. He caught on quickly to the pattern: I sit, I relax, I'm ready to get up. As a result, G.J. never had to be in the break chair for long. J.J. wholly approved of Ms. Silver's use of the break chair, and testified that she began using it successfully at home. J.J. would consult Ms. Silver as to problems she was having with G.J. at home. Ms. Silver made suggestions that worked. For example, Ms. Silver told J.J. that her son responded well to positive feedback. Even when G.J. was doing something wrong, it was better to couch the instruction in positive terms. J.J. testified that she would frequently watch the classroom from outside, without letting G.J. or the teachers know she was there, because she liked to watch G.J. do his class work. J.J. never saw anything inappropriate occurring in the classroom. J.J. testified that she saw no negative impact on G.J. from his time in Ms. Silver's classroom. She believed that some of the parents of children in the 2008-2009 class were "pretty stressed" about leaving their children in the classroom. J.J. observed that these parents babied their children too much and that they seemed to expect the teacher to be "warm and fuzzy and cooing and calm and quiet."50/ J.J. opined that such a technique would be fine in a normal classroom, but that Ms. Silver's stricter technique seemed more appropriate to autistic children, and was certainly more appropriate for G.J. Kimberly Bloor, a first grade teacher at Kernan Trail, testified that as a teacher, Ms. Silver was "fantastic, outstanding, very dedicated. . . [E]very day that she would come in, she was always like she was ready to get in there, excited." Ms. Bloor believed that Ms. Silver saw teaching as her vocation, not a job. Ms. Bloor has recommended Kernan Trail to parents entirely because of Ms. Silver. Ms. Bloor even attempted to place her own daughter, a regular education student, in Ms. Silver's class because she believed it would be a positive experience for her daughter and the autistic children in the class. Ultimate findings As to the single allegation set forth in the Notice, the School Board has failed to prove by a preponderance of the evidence that Ms. Silver "put autistic student, L.P. on a Rifton chair and used straps that are attached to the chair to hold him on the chair from approximately 9:15 a.m. until 2:00 p.m. releasing him only for lunch" on September 8, 9, 10, and 11, 2008. The Notice asserts that there were "three adult witnesses" to this alleged strapping. These adult witnesses were Ms. Cornell, Ms. Gale, and Ms. Dowell. At the hearing in this case, only Ms. Dowell continued to claim, without equivocation, that she witnessed Ms. Silver strap L.P. to the Rifton chair. Ms. Cornell denied that she saw Ms. Silver strap L.P. to the Rifton chair, and denied that L.P. ever spent hours at a time on the chair. Ms. Gale's testimony on the question changed so often as to be worthless. Ms. Silver denied strapping L.P. to the potty chair. The evidence at the hearing established that Ms. Silver is a special education teacher with more than 30 years' experience with the School Board, that she had never been subject to disciplinary action by the School Board prior to this incident, and that she was patient and forbearing enough to endure a black eye from a student and to advocate that the student receive lenient disciplinary treatment. The evidence at the hearing established that Ms. Dowell was a seriously underperforming intern in Ms. Silver's class. She became friendly with Ms. Gale, an extremely unsatisfactory paraprofessional in the same classroom. Ms. Silver was actively trying to move Ms. Gale out of her classroom, at a time when Ms. Turner had said there was nowhere else to put her. Ms. Silver was also voicing concerns to Ms. Dowell regarding her poor performance as an intern in Ms. Silver's classroom. Ms. Dowell and Ms. Gale each had ample motive to discredit Ms. Silver in the eyes of the Kernan Trail administration. Ms. Gale was a thoroughly untrustworthy witness. Ms. Dowell malingered on the job, was openly insubordinate, and failed to progress to the point of running the classroom as an intern teacher should. She did not report the abuse she claims to have witnessed until October 15 at the earliest, some five weeks after Ms. Silver allegedly began strapping L.P. to the Rifton chair. Ms. Dowell's testimony was riddled with exaggerations and outright misstatements. As to the four adults who were in the classroom when this abuse is alleged to have occurred, Ms. Silver and Ms. Cornell were far more credible than Ms. Dowell and Ms. Gale. The evidence established that L.P. was not even at the school on two of the days when the School Board alleged the strapping occurred. Ms. Flotkoetter and Ms. Turner were more believable than Ms. Dowell and Ms. Gale as to the chronology of events, including when and what was reported to the Kernan Trail administration regarding the alleged incidents in Ms. Silver's classroom. There was no evidence, beyond the bare assertions of Ms. Dowell and Ms. Gale, that the Kernan Trail administration engaged in a cover-up of Ms. Silver's alleged misconduct.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order that dismisses the Notice of Termination of Employment Contract and Immediate Suspension Without Pay and reinstates the Respondent, Rhona Silver, to her position as a contract employee of the Duval County School Board, with back pay and benefits. DONE AND ENTERED this 10th day of January, 2011, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 10th day of January, 2011.
