The Issue The issue is whether Respondent should withdraw its approval of a continuing education course that Petitioner offers to life, health, and variable annuity insurance agents.
Findings Of Fact Respondent is the state agency responsible, in relevant part, for regulating continuing education courses for insurance licensees, pursuant to Chapters 626 and 627, Florida Statutes (2008).1 Petitioner provides a course entitled, Reverse Mortgages, identified in the record by course number I.D. 64231 (the course). On June 12, 2008, Respondent approved the course for two hours of continuing education credit for licensed life, health, or variable annuity insurance agents. The course content addresses reverse mortgages rather than insurance. A reverse mortgage is a financing device. It is a special type of home loan that converts a portion of the equity in a home into cash. Unlike a traditional home equity loan or second mortgage, no repayment is required until the borrowers no longer use the home as their principal residence. References to life insurance in the course pertain to the use of a reverse mortgage as a funding mechanism for life insurance. The course does not have significant intellectual or practical content to enhance and improve the insurance knowledge of licensees who participate in the course. The course is not a formal program of learning which contributes directly to the professionalism, ethics, or competence of a licensee acting under the scope of his or her license. Respondent has statutory authority to regulate continuing education courses for insurance licensees. Respondent does not have statutory authority to regulate lending and financing, including financing through reverse mortgages. Withdrawal of approval for continuing education credit does not prevent an insurance agent from taking the course in addition to the required continuing education. If an insurance agent conducts financial transactions in conjunction with an insurance transaction, the agent should be sufficiently educated to avoid a breach of the fiduciary duty owed to the insurance consumer. Petitioner presented evidence of courses that Respondent has approved for continuing education, and those courses do not address insurance topics. Respondent approved those courses pursuant to rules that provide partial credit for certain non-insurance topics, such as communication or time management.2 Respondent is currently seeking to amend the rule to remove the partial credit provision because that provision is not consistent with national standards.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order withdrawing approval of the course. DONE AND ENTERED this 16th day of April, 2009, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 16th day of April, 2009.
Findings Of Fact Thomas Sundquist was a student enrolled in North Miami Junior High School, operated by the Petitioner, during the school years 1984-1985 and 1985- 1986. Respondent was a seventh grade student during those two school years. He was the subject of seven independent student case management referral forms initiated by school personnel for aberrant behavior. These included 3-1-85: Defiance of Authority; continuous disruptive behavior; failure to complete assignments; failure to bring assigned- materials; and leaving class without permission. 5-24-85: slapping the face of a female student and fighting with her in the classroom. 2-27-86: Assault on another student. 3-21-86: Late to school on test day; left holding area without permission, banged on classroom doors disturbing testees; and evading security and administrators. 5-29-86: Assault on another student; truancy; and defiance of authority. For the assaults on 2-27-86 and 5-29-86, Respondent was given 5 days outdoor suspension for the first and 10 days for the second, and for his misconduct on 4-29-86, was also suspended for 10 days. Counseling policy at this school calls for automatic counseling by the student's grade counselor as well as by a school administrator in the event of a case management referral and in each case, this policy was followed. Further, in each case referenced above except the first, parent contact was accomplished both verbally and in writing. No improvement was noted at any time. On May 30, 1986, Mr. W.G. Murray, a vice principal at the school, requested progress reports on the Respondent from each of his six teachers. These reports were, for the most part, uniformly uncomplimetary. They were: Science - Ms. Fernandez: "He does not do any work. Is never prepared for class. Is a discipline problem and exhibits unacceptable behavior." Music - Ms. Pena: "He has been absent so much he is very far behind on his instrument,but while in class, his conduct is good." P.E.- Ms. Jardine: Class work "F", conduct "D". Math - Mr. O'Keefe: "Was not seen in class after October 8, 1985. Class work "F", conduct "F". He is very disobedient, insultive [sic], and immature." English - Ms. Weber: " He usually sleeps in class. Occasionally will do a spelling list but is not in class long enough to do anything. His conduct is poor, challenging authority, answering back, bangs on door when not in class, and does not often show up for class." [This teacher indicated the student can do the work if he wants to.] Graphics - Mr. Machado: "Refuses to do any work, disruptive, will not stay in seat, talks out loud, hits and touches other students against their will." Mr. Machado and Ms. Fernandez amplified their written comments by testimony at the hearing and confirmed that he was always late for class, was never prepared when he came, and rarely did any work in class. He would chew gum, try to distract the other students, fail to follow instructions and class and safety rules, and would assault other students without provocation. He would try to hug or touch females or fight with males to the point that some students would leave class and go to the assistant principal's office just to get away from him. Both teachers repeatedly had to stop their classroom teaching, taking time away from other students, to attempt, most often unsuccessfully, to deal with the Respondent. Respondent's final report card for the 1985-1986 school year reflected a final grade of "F" for each of his subjects for the year. Out of 180 school days, he was absent: Science: 101 periods. Music: 97 periods. P.E.: 91 periods. Mathematics: 86 periods. English: 104 periods. Graphics: (second semester only) 65 periods. In the 3rd and 4th grading periods, his "effort" grades were uniformly "3" which signifies "insufficient." In the first two grading periods, he did earn 4 "C's" and 1 "D". His "conduct" grades are mostly "F" with some exceptions in Music, P.E., and, in the first grading period only, English, in which he got a "D" and Industrial Arts, in which he got a "C". All three witnesses who testified for Petitioner were of the opinion that Respondent's lack of interest and disruptive behavior cannot properly be handled within the regular class system where teachers have between 33 and 35 students per class. They do not have the time to devote to him and his behavior takes their attention away from other students whose education suffers thereby. They all agree, however, that in the opportunity school, where classes normally consist of 10 to 15 students, he would benefit from the more personalized attention he would receive and would undoubtedly do better. This seems to be a reasonable analysis of the situation and it is so found. Respondent is definitely not interested in school in the regular classroom setting and his behavior is decidedly disruptive.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED THAT: Petitioner enter a Final Order affirming the assignment of Respondent to its Opportunity School Program. DONE and ORDERED this 31st day of October, 1986 at Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 1986. COPIES FURNISHED: Jaime Claudio Bovell, Esquire 1401 Ponce de Leon Boulevard Coral Gables, Florida 33134 Ms. Sue Sundquist Stevens 11317 Northeast 11th Place Biscayne Park, Florida 33161 and 14155 West Dixie Highway North Miami, Florida 33161 Dr. Leonard Britton Superintendent of Dade County Public Schools 1450 Northeast Second Avenue Miami, Florida 33132 Honorable Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301 Judith Brechner, Esquire General Counsel Department of Education Knott Building Tallahassee, Florida 32301
The Issue The issue in this case is whether disciplinary action should be taken against the Respondent on the basis of her failure to timely comply with continuing education requirements established by Section 626.2815, Florida Statutes.
Findings Of Fact The Respondent is currently licensed by the Florida Department of Insurance ("Department") as a General Lines (2-20) Agent. During the period from August 1, 1995, through July 31, 1997, the Respondent was licensed as a General Lines (2-20) Agent and as a Life, Health, and Variable Annuity (2-15) Agent. At all times material to this case, insurance agents licensed in Florida have been required to complete continuing education courses every two years. Licensed insurance agents can meet their continuing education requirements by attending seminars, taking classroom courses, or taking self-study courses. During the period from August 1, 1995, through July 31, 1997, the Respondent was required to complete 28 hours of continuing education courses. /3 The required courses could be taken and completed at any time during that two-year period. At all times material, the Respondent has been aware of the continuing education requirements applicable to licensed insurance agents. The Respondent resides in Key Largo, Florida, and has lived at the same address for at least 10 years. Miami, Florida, is about 60 miles from Key Largo. Key West is about 100 miles from Key Largo. During the period from August 1, 1995, through July 31, 1997, there were 11 continuing education courses offered in Key largo. During that same period there were 73 continuing education courses offered in Monroe County. During that same period there were approximately 3,000 continuing education courses offered in Dade County. The Respondent waited until July 16, 1997, which was 15 days before the end of her two-year continuing education deadline, before taking any action to comply with the continuing education requirements. On that day she ordered two self-study courses from a course provider named Noble. If an insurance agent chooses a self-study course to fulfill the continuing education requirements, the course is not considered to be completed until the agent has taken a monitored examination on the course material and has achieved a score of at least 70 percent. The Respondent finished her study of the course materials she bought from Noble by the end of July 1997, but she did not take and pass the examinations on those materials until the end of August 1997, which was three or four weeks past the end of her compliance deadline. In July of 1997, the Respondent was nursing an infant child. Although Noble had a testing site in Miami, the Respondent did not want to go to Miami to take the examinations for her self-study courses, because a trip to Miami would interfere with nursing her child. The Respondent waited until the end of August, because by that time Noble had opened a testing site in Key Largo. All insurance agents who failed to comply with the continuing education requirements for the period ending July 31, 1997, were sent a Preliminary Notice of Non-Compliance. All agents who did not respond to the Preliminary Notice of Non- Compliance were sent a Final Notice of Non-compliance. Both preliminary and final notices were sent to the Respondent. The Department initiated disciplinary action against all insurance agents who were found to have failed to comply with the continuing education requirements. The Department offered each of the non-compliant agents an opportunity to settle the disciplinary actions by payment of an administrative fine in the amount of $250.00. Numerous insurance agents settled on those terms. In one case, such a disciplinary action was resolved by a stipulated six-month license suspension.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Department of Insurance issue a final order concluding that the Respondent is guilty of failing to comply with statutory and rule provisions regarding continuing education, and imposing a penalty consisting of a six-month suspension of the Respondent's license. DONE AND ENTERED this 8th day of October, 1999, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 8th day of October, 1999.
The Issue The issue in this matter is whether Petitioners are entitled to attorneys’ fees pursuant to Section 120.595(3), Florida Statutes (2006), and Section 57.105, Florida Statutes (2006).
Findings Of Fact In Peter J. Singhofen, P.E., and Streamline Technologies, Inc. v. Board of Professional Engineers, DOAH Case No. 05-3674RX, Petitioner challenged the validity of Florida Administrative Code Rule 61G15-22.011(2), promulgated by Respondent. The Rule generally denied owners of technology, such as computer software programs the ability to qualify a course, taught by the owner on the technology, from qualifying for continuing education credit. The published purpose of the rule was to prevent a continuing education provider from having a conflict of interest. Petitioner filed an Affidavit detailing the hours and work performed in the rule challenge care and requesting fees in the amount of $15,750. Respondent also submitted an Affidavit from an expert supporting the hours, work, and fees requested as reasonable. In the underlying case, the record contained some evidence of some meaningful discussion by the Board supporting the Rule. The discussion primarily reflected that the Board’s desire was to prohibit and prevent “shill” courses from receiving continuing education credit. Significantly, the Board had previously denied applications for continuing education providers proposing to offer “shill” courses. However, the record did not contain any evidence that the Board considered whether the Rule was consistent with NCEES guidelines as required by statute. There was no discussion or finding by the Board prior to engaging in rulemaking that a continuing education provider who taught about technology over which he or she had a commercial interest would be engaging in a conflict of interest or be inconsistent with NCEES guidelines. Additionally, the published purpose for promulgating the Rule was admitted to be erroneous by Respondent’s Executive Director. This error alone was material and a sufficient ground to invalidate the rule. Petitioner’s courses met both the NCEES and Florida Administrative Code Rule 61G15-22.003 as a qualifying activity for purposes of continuing education credit. The Rule resulted in Petitioners’ being denied approval to teach such qualifying activity; and was therefore, inconsistent with NCEES guidelines. Such inconsistency was outside of the Board’s rulemaking authority. In this case, Respondent stipulated to the reasonableness and the amount of fees, subject to the statutory cap. Respondent presented no evidence showing that special circumstances existed which would make the award unjust. Therefore, Petitioner is entitled to attorneys’ fees and costs subject to the statutory cap.
The Issue The issue in this case is whether just cause exists for Petitioner to suspend Respondent without pay from her employment as a teacher for 30 work days.
Findings Of Fact The Parties Petitioner is 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 Florida Constitution Article IX, section 4(b), and section 1012.23, Florida Statutes. At all times material to this proceeding, Respondent was a teacher of emotionally/behaviorally disturbed ("E/BD") students at Jose de Diego Middle School, a middle school within the Miami-Dade County Public Schools. At all times material to this proceeding, Respondent's employment with Petitioner was governed by the collective bargaining agreement between Miami-Dade County Public Schools and the United Teachers of Dade, Petitioner's policies and rules, and Florida law. Background The incident giving rise to this proceeding occurred on or about January 12, 2012. On that day, three male students in Respondent's class engaged in play fighting and video-recorded their actions on cell phones and an MP-3 recording device. As a result, Mr. Fernandez, the principal of Jose de Diego Middle School, determined that Respondent did not follow established policies and procedures in stopping or attempting to stop the play fighting, and that her failure to do so endangered the safety of the students involved. Accordingly, he recommended that she be suspended from her employment for 30 work days without pay. On May 16, 2012, Petitioner suspended Respondent from her employment for 30 work days without pay. Incident Giving Rise to Charge The incident giving rise to this proceeding occurred during the last instructional block of the day, while the students were engaged in language arts and reading. There were a total of eight or nine students in Respondent's classroom, and they were divided into two groups, consisting of four or five students each, for reading exercises. They were situated in the back of the classroom where they had access to computer terminals. Respondent and a paraprofessional, Ms. Larkin, were also situated in the back of the classroom, working with the students. During this instructional time, Respondent received three separate calls on the classroom telephone from her department head asking about paperwork on one of Respondent's students. The classroom phone is located in the front of the classroom. Each of these calls took Respondent away from her teaching and supervision of the students. Ms. Larkin continued to supervise the groups, but then excused herself to use the restroom. This left the students at least momentarily unsupervised. At this time, three male students, instigated by one student, began to play fight. The persuasive evidence indicates that the students engaged in three separate incidents of play fighting over a period of time lasting several minutes. The other students in the class looked on and did not engage in play fighting. Respondent credibly testified that as soon as she saw what was happening, she immediately hung up the phone and went to the back of the classroom to stop the play fighting, yelling at the students to stop and threatening to write disciplinary referrals to the office; however, they ignored her. Her testimony was closely corroborated by that of D.M., one of the students engaged in the play fighting. D.M. credibly testified that Respondent repeatedly attempted to get the students to stop by yelling at them and threatening to write referrals, but they ignored her. They continued to play fight and recorded the play fighting on two cell phones and an MP-3 device with the stated intention of posting the videos on Facebook, YouTube, and Twitter. Once Respondent saw that the students would not stop, she stepped into the hall to see if a security monitor was on the first floor, where her classroom was located. Seeing none, she called George Coakley, the Dean of Students, to come to her classroom. An emergency button is located in each classroom. This button transmits a call to the main office, which is responsible for responding to the call. Respondent did not use the emergency button to call for assistance because, in her experience, such calls often are not answered. Respondent used the classroom phone to call Mr. Coakley's cell phone. Mr. Coakley had given her and other teachers his cell phone number to, among other things, be used in such situations. At the time of Respondent's call, Mr. Coakley was involved with another matter, and said he would be there as soon as he was finished with that matter. He and Respondent both estimated it took approximately five minutes for him to arrive at Respondent's classroom. At that time, the students disengaged and ran to sit down as he entered the classroom. Before Mr. Coakley's arrival, Respondent wrote referrals on all of the students involved in the play fighting. These referrals were turned over to the main office for disciplinary purposes. Mr. Coakley took the students involved in the play fighting from Respondent's classroom to the main office and turned them over to Principal Fernandez, who confiscated the phones and MP-3 device and ultimately suspended the students from school. The persuasive evidence establishes that there were three separate videos of three discrete episodes of play fighting taken on three separate recording devices.2/ In one of the videos, Respondent and Ms. Larkin are seen sitting at the desk in the front of the classroom while the play fighting is taking place in the back of the classroom.3/ It is undisputed that the videos depict only a portion of the entire incident. The persuasive evidence establishes that Respondent first made efforts, not captured on the videos, to get the students to stop play fighting. Those efforts consisted of going to the back of the room and yelling at the students to stop fighting, then threatening to write and writing disciplinary referrals. She took these actions before looking for a security monitor, then calling Mr. Coakley and awaiting his arrival. Based on the video, Principal Fernandez concluded that Respondent's efforts to stop the play fighting did not conform to the E/BD Crisis Plan Jose de Diego Middle School 2011/2012 ("Crisis Management Plan") protocol applicable to student fights. The Crisis Management Plan requires, in pertinent part, that the teacher immediately contact security via emergency call button, the school administrator, and nearby staff. Principal Fernandez determined that Respondent did not comply with this requirement because she did not use the emergency call button to summon school security to her classroom. However, the persuasive evidence establishes that Respondent did contact school administration——specifically, Mr. Coakley——as soon as she determined that she was unable to get the students to stop the play fighting. Respondent credibly testified that she contacted Mr. Coakley directly instead of using the call button specifically because, in her experience, school security often did not respond to the emergency call button. The Crisis Management Plan also requires the teacher to "separate and isolate" students involved. It does not specifically describe how this should or must be done. Respondent testified that she repeatedly attempted to get the students to stop play fighting by going to the back of the room where they were located, yelling at them to stop, and threatening to write referrals on them. Principal Fernandez testified that Respondent should have said "stop"——which Respondent did. He also testified that she should have "separated and isolated" the students but he did not articulate any specific means that Respondent should have employed short of physically intervening to break up the play fights——an action that arguably may itself have violated Petitioner's corporal punishment policies or may have resulted in Respondent herself being physically injured. Robin Morrison, an Instructional Supervisor with Petitioner's Division of Special Education, testified that Respondent could have used "proximity control" to separate the students, and that in her opinion, based on her viewing of the videos, Respondent did not do this and therefore did not respond appropriately in trying to break up the play fighting. However, as previously discussed, the videos do not depict the entire incident. Thus, Ms. Morrison's testimony is deemed unpersuasive. The persuasive evidence establishes that Respondent did go to the back of the room where the play fighting was occurring and attempted to get the students to stop. Only after it became apparent that they would not comply did she go to the front of the room, where she looked down the hallway to see if a security monitor was immediately available, then called Mr. Coakley on the classroom phone. Findings of Ultimate Fact Misconduct in Office Petitioner has charged Respondent with committing misconduct in office. Misconduct in office is defined in Florida Administrative Code Rule 6A-5.056(3)4/ as: violation of the Code of Ethics of the Education Profession as adopted in Rule 6B- 1.001, F.A.C., and the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule 6B- 1.006, F.A.C., which is so serious as to impair the individual's effectiveness in the school system. The Code of Ethics of the Education Profession in Florida, rule 6B-1.001, provides: The educator values the worth and dignity of every person, the pursuit of truth, devotion to excellence, acquisition of knowledge, and the nurture of a democratic citizenship. Essential to the achievement of these standards are the freedom to learn and to teach and the guarantee of equal opportunity for all. The educator's primary professional concern will always be for the student and for the development of the student's potential. The educator will therefore strive for professional growth and will seek to exercise the best professional judgment and integrity. Aware of the importance of maintaining the respect and confidence of one's colleagues, of students, of parents, and of other members of community, the educator strives to achieve and sustain the highest degree of ethical conduct. The Principles of Professional Conduct for the Education Profession in Florida, rule 6B-1.006, provides in pertinent part: The following disciplinary rule shall constitute the Principles of Professional Conduct for the Education Profession in Florida. Violation of any of these principles shall subject the individual to revocation or suspension of the individual educator's certificate, or the other penalties as provided by law. Obligation to the student requires that the individual: Shall make reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental and/or physical health and/or safety. * * * The greater weight of the evidence establishes that Respondent made reasonable efforts to protect the students in her classroom from conditions harmful to learning and to their mental and physical health and safety. As addressed above, the persuasive evidence establishes that instead of doing nothing—— as the incomplete video record of the incident appears to depict——Respondent did, in fact, immediately attempt to stop the students from play fighting by going to the back of the room where they were located, ordering them to stop, and threatening to subject them to disciplinary action by referring them to the office. When it became apparent the students were not going to stop despite these measures, Respondent went to the front of the room and looked to see if a security monitor was immediately available. Seeing none, and based on her prior experience of emergency calls going unanswered, she elected to call the Dean of Students, who had given his cell phone number to her and to other teachers specifically for such use. Accordingly, it is determined, as a matter of ultimate fact, that Respondent did not violate rules 6B-1.006 or 6B-1.001, and, therefore, did not commit misconduct in office in violation of rule 6A-5.056(3). Policy 3210 - Standards of Ethical Conduct School Board Policy 3210, Standards of Ethical Conduct, provides in relevant part: All employees are representatives of the District and shall conduct themselves, both in their employment and in the community, in a manner that will reflect credit upon themselves and the school system. A. An instructional staff member shall: * * * 3. make a reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental and/or physical health and/or safety[.] * * * As previously discussed, Respondent's actions in attempting to break up the play fighting and contacting the school administration constituted reasonable effort to protect her students from conditions harmful to learning and to their mental health and physical health and safety. Petitioner's sole evidence that Respondent sat by and did nothing consists of an incomplete video record of the incident that was contradicted by the persuasive, consistent testimony of Respondent and D.M., who were present when the incident occurred. Accordingly, it is determined that Respondent did not violate School Board Policy 3210. Policy 3210.01 - Code of Ethics School Board Policy 3210.01, Code of Ethics, provides in pertinent part: All members of the School Board, administrators, teachers and all other employees of the District, regardless of their position, because of their dual roles as public servants and educators are to be bound by the following Code of Ethics. Adherence to the Code of Ethics will create an environment of honesty and integrity and will aid in achieving the common mission of providing a safe and high quality education to all District students. As stated in the Code of Ethics of the Education Profession in Florida (State Board of Education F.A.C. 6B-1.001): The educator values the worth and dignity of every person, the pursuit of truth, devotion to excellence, acquisition of knowledge, and the nurture of democratic citizenship. Essential to the achievement of these standards are the freedom to learn and to teach and the guarantee of equal opportunity for all. The educator's primary professional concern will always be for the student and for the development of the student's potential. The educator will therefore strive for professional growth and will seek to exercise the best professional judgment and integrity. Aware of the importance of maintaining the respect and confidence of one's colleagues, students, parents, and other members of the community, the educator strives to achieve and sustain the highest degree of ethical conduct. * * * Fundamental Principles The fundamental principles upon which this Code of Ethics is predicated are as follows: * * * F. Kindness – Being sympathetic, helpful, compassionate, benevolent, agreeable, and gentle toward people and other living things. * * * Respect – Showing regard for the worth and dignity of someone or something, being courteous and polite, and judging all people on their merits. It takes three (3) major forms: respect for oneself, respect for other people, and respect for all forms of life and the environment. Responsibility – Thinking before acting and being accountable for their actions, paying attention to others and responding to their needs. Responsibility emphasizes our positive obligations to care for each other. Each employee agrees and pledges: To abide by this Code of Ethics, making the well-being of the students and the honest performance of professional duties core guiding principles. To obey local, State, and national laws, codes and regulations. To support the principles of due process to protect civil and human rights of all individuals. To treat all persons with respect and to strive to be fair in all matters. To take responsibility and be accountable for his/her actions. To avoid conflicts of interest or any appearance of impropriety. To cooperate with others to protect and advance the District and its students. To be efficient and effective in the performance of job duties. Conduct Regarding Students Each employee: A. shall make reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental and/or physical health and/or safety[.] Petitioner did not prove that Respondent violated Policy 3210.01. The persuasive evidence establishes that Respondent immediately responded to the play fighting by going to the back of the room and attempting to get the students to stop by yelling at them and threatening disciplinary action through office referrals. When these measures were not successful, Respondent followed proper protocol by expeditiously contacting the school administration regarding the matter. As previously discussed, Respondent's conduct did not violate Rule 6B-1.001, the Code of Ethics of the Education Profession in Florida, or the pertinent Fundamental Principles set forth in Policy 3210.01. Also as previously discussed, Respondent's conduct constituted a reasonable effort to protect her students from conditions harmful to their learning and to their mental and physical health and safety. For these reasons, it is determined that Respondent did not violate Policy 3210.01, Petitioner's Code of Ethics. Accordingly, there is no just cause, as required by subsections 1012.33(1)(a) and (6),5/ for Petitioner to suspend Respondent from her employment as a teacher for 30 work days.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Miami-Dade County School Board, enter a Final Order rescinding the suspension of Respondent, Thelma Mobley, from her employment as a teacher for 30 work days without pay, and paying Respondent's back salary for the 30-day period for which she was suspended. DONE AND ENTERED this 17th day of April, 2013, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS 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 17th day of April, 2013.
The Issue Whether just cause exists to suspend Respondent without pay for 30 days from her employment as a paraprofessional II with the Miami-Dade County School Board.
Findings Of Fact Petitioner is the duly constituted School Board charged with the duty to operate, control, and supervise all free public schools within Miami-Dade County, Florida, pursuant to Article IX section 4(b), Florida Constitution, and section 1001.32, Florida Statutes. At all times material to this proceeding, Respondent was employed as a paraprofessional II at Gateway Environmental K-8 Learning Center (Gateway), a public school in Miami-Dade County, Florida. Respondent has been employed in the public school system for approximately 25 years. Beginning in September 2012, Respondent was assigned to provide classroom support to a second and third grade combined special education class for students with learning disabilities. Her duties included assisting the classroom teachers and physical education (P.E.) instructors with the students as needed, assisting the students when moving from one part of the school to another, and assisting with the sanitary needs of some disabled students. On January 28, 2013, during the second interval class of the school day, Respondent escorted her students to P.E. and stayed with them to assist. Shortly after the P.E. class began, Respondent had a verbal altercation with a student, J.D. Prior to the altercation with Respondent, J.D. was standing with her classmates while receiving warm up exercise instruction from Coach Darryl Nattiel (Nattiel). J.D. was not observed disturbing other students or being disruptive in any way. Nattiel did not tell Respondent that J.D. was forbidden from participating in class or that J.D. was refusing to respond to his instructions, nor did he instruct Respondent to move J.D. to sit by the wall.1/ Respondent directed J.D. to "go sit by the wall." When J.D. did not respond, Respondent repeated the directive several times in a stern manner. This was heard by Coach Juan J. Fernandez (Fernandez) who was present on the playground and was taking attendance when the altercation began. Fernandez said something to J.D. in an attempt to get her to sit in order to end the confrontation. When J.D. refused to follow Respondent's directive, Respondent grabbed J.D. by the arm, swung her around, and pulled J.D. to a point where J.D.'s back was against the wall. Respondent continued aggressively directing J.D. to sit. J.D. did not immediately sit. While facing J.D., Respondent bent forward, grabbed J.D. by the legs, pulled them forward, and forced her into a sitting position on the ground. Although Fernandez observed this interaction from a short distance away, he did not address it with Respondent immediately because he did not want to overstep Respondent's authority. J.D. appeared to be upset by the incident. The incident between Respondent and J.D. was recorded by a video camera which overlooks the playground area where this occurred. In the video, the view is partially obstructed by a column. However, the interaction between Respondent and J.D. immediately before J.D. is placed against the wall is clearly visible in the video. J.D. does not appear to be disrupting the class in any way and does not physically show aggression towards Respondent. The recording does not contain audio. Prior to the end of the class, Respondent filled out an incident report in which she complained that J.D. failed to respond to her instructions, was aggressive towards Respondent, and used profanity directed at Respondent. The alleged aggression and use of profanity by J.D. was not observed by Fernandez or Nattiel. When the class was returning to the classroom, Fernandez notified J.D's teacher about the incident with Respondent. The teacher advised Fernandez to report the situation to the main office. Fernandez reported the situation to Carmen Gutierrez (Gutierrez), who was principal of Gateway at that time. On March 20, 2013, a conference for the record (CFR) was held with Respondent and her union representative. Respondent was apprised of the probable cause finding against her for violations of the following School Board Policies: 4210, Standards of Ethical Conduct; 4210.01, Code of Ethics; 4213, Student Supervision and Welfare; and 5630, Corporal Punishment and Use of Reasonable Force. A 30-day suspension without pay was the recommended discipline. Respondent contends that she was merely trying to redirect a disruptive student who had cursed at her and is known for kicking others. Respondent's claims, that the student was not allowed to participate in class, failed to follow Nattiel's instructions, was disruptive and verbally abusive towards Respondent, and needed to be placed against the wall, were not persuasive in light of the more credible testimony of the other witnesses and the video recording of the incident. Ultimate Factual Determinations The greater weight of the evidence establishes that Respondent was guilty of misconduct in office. The greater weight of the evidence establishes that Respondent violated the Standards of Ethical Conduct. The greater weight of the evidence establishes that Respondent violated the Code of Ethics in the Education Profession. The School Board failed to prove by a preponderance of the evidence that Respondent violated School Board Policy 3214 regarding student supervision and welfare. The greater weight of the evidence establishes that Respondent, when dealing with the student, used excessive force.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Miami-Dade County School Board, enter a final order sustaining the suspension of Respondent's employment without pay for 30 days. DONE AND ENTERED this 14th day of October, 2013, in Tallahassee, Leon County, Florida. S MARY LI CREASY 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 14th day of October, 2013.
The Issue The issue is whether Respondent failed to comply with the continuing education requirements for his massage therapy license and, if so, what penalty should be imposed.
Findings Of Fact At all material times, Respondent has been licensed as a massage therapist in Florida, holding license number MA 0006561. On or about January 31, 1993, Respondent signed and submitted to the Board of Massage a Renewal Notice stating in part that he has complied with all applicable requirements for relicensure and that his file may be subject to audit to determine his eligibility for relicensure. The renewal period covered the 25 months ending January 31, 1993. Petitioner randomly selected Respondent's file for audit. In response to a request for information, Respondent indicated, by form dated January 7, 1994, that he had attended 18 hours of classes in acupuncture and three hours of classes in HIV/AIDS. Both classes were taken during the relevant period, but at Huntsville Hospital in Ontario, Canada. By written response dated January 28, 1994, Petitioner rejected the proffered coursework because Huntsville Hospital is not an approved provider. The record does not disclose what, if anything, took place following the issuance of the January 28, 1994, notification, which went to Respondent's Canadian address. On March 2, 1994, Petitioner sent a letter to Respondent, at his Canadian address, warning him of Petitioner's intent to initiate disciplinary action. The March 2 letter "warns" that Respondent must respond by February 23, 1994, or else "this matter will be closed." The deadline had already passed when the letter was sent. The unclear reference to closing the file does not defeat the warning contained elsewhere in the letter that, if Petitioner did not receive adequate documentation, it would submit the audit information to the probable cause panel for consideration of possible disciplinary action. There is no evidence that Respondent submitted false or forged documentation to Petitioner or the Board of Massage. It would appear that Respondent attended courses, but the courses were unapproved. There is no evidence that he submitted the courses for approval by the Board of Massage. There is no evidence that he has taken other courses to satisfy these requirements, although he claimed in a responsive pleading to have satisfied the HIV/AIDS course requirement.
Recommendation Based on the foregoing, it is RECOMMENDED that the Board of Massage enter a final order dismissing Counts II and III of the Administrative Complaint, finding Respondent guilty of violating Rule 61G11-28.009, and suspending his license until he demonstrates proof of completion of all coursework presently required for license renewal. ENTERED on July 5, 1995, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings on July 5, 1995. COPIES FURNISHED: Susan E. Lindgard Senior Attorney Department of Business and Professional Regulation 1940 North Monroe Street Northwood Centre, Suite #60 Tallahassee, FL 32399-0792 Joseph Baker, Executive Director Board of Massage Department of Business and Professional Regulation 1940 North Monroe Street Northwood Centre, Suite #60 Tallahassee, FL 32399-0792 William P. Mills 2069 Gulf of Mexico Drive Longboat Key, FL 34228 William P. Mills RR #4, Box 62 Huntsville, Ontario Canada POA IKO
The Issue Whether Respondent, Herman L. Tyler, failed to fulfill provisions of a Stipulation and Settlement Agreement entered into between the parties, dated February 22, 2005, that became part of a Final Order of Petitioner, Department of Law Enforcement, Criminal Justice Standards and Training Commission; and, if so, what discipline should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of fact are made: Respondent is a state-certified law enforcement officer and instructor holding certificates in each area of certification. On May 10, 2005, Petitioner issued a Final Order adopting a Stipulation and Settlement Agreement between the parties. The Stipulation and Settlement Agreement specifically states in paragraph 2, the following: The Respondent agrees as a condition of settlement of this cause to a one-year period of probation of his Instructor Certificate beginning fifteen days following entry of a final order in this cause. The Stipulation and Settlement Agreement specifically states in paragraph 3, the following: As a condition of probation, the Respondent shall enter into and provide Staff with proof of successful completion of Criminal Justice Standards and Training Commission or Staff-approved course in ethics prior to the expiration of the term of his probation. As noted above, the Final Order required Respondent to provide proof of his completion of an approved ethics course within a one-year period of probation. The Respondent failed to provide proof of completion of an approved ethics course as required.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Department of Law Enforcement, Criminal Justice Standards and Training Commission, enter a final order revoking Respondent, Herman L. Tyler's, instructor certificate. DONE AND ENTERED this 11th day of June, 2007, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of June, 2007. COPIES FURNISHED: Linton B. Eason, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Herman L. Tyler Michael Crews, Program Director Division of Criminal Justice Professionalism Services Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue Whether Respondent committed the violations alleged in the subject Administrative Complaint, and, if so, the penalties that should be imposed.
Findings Of Fact Respondent holds Florida Educator's Certificate 776701, covering the areas of Elementary Education and English for Speakers of Other Languages, which is valid through June 30, 2010.3 At all times pertinent hereto, Respondent was employed as a fifth grade teacher at Fairlawn Elementary School (Fairlawn Elementary) in the Dade County School District. On or about October 27, 2006, Respondent submitted an application for national certification through the NBPTS. Respondent's application fee to the NBPTS was subsidized by state funds designated for that purpose. If Respondent had received national certification, she would be eligible for annual salary bonuses. During 2006/2007, Respondent, in an attempt to qualify for national certification, submitted two portfolio entries, titled Entry 2 and Entry 3, to NBPTS that were not entirely her own work. On or about July 8, 2008, NBPTS disqualified Respondent's Entry 2 and Entry 3 because the two portfolio entries had an unacceptable high degree of overlap to two portfolio entries submitted by a previous national board certification candidate. NBPTS is a nationwide, advanced teaching credential that complements, but does not replace, a teaching certificate issued by a state, in this case, the State of Florida. The rigorous evaluation process includes the submission of four portfolio entries. The issues in this case pertain to Ms. Malvar's portfolio Entry 2 and her portfolio Entry 3. Both portfolio entries were submitted to NBPTS by Ms. Malvar in March 2007. Materials provided to candidates for certification by NBPTS include specific instructions for Entry 2 and Entry 3. Both portfolio entries required detailed written comments from the candidate as to his or her teaching methodologies and strategies. The following is found in Part 1 of the General Portfolio Instructions under the heading of "Ethics and Collaboration": Collaboration with colleagues is a valued part of the process: engage them in professional discussions about the NBPTS Standards; have them help you video record, watch, and analyze the video recordings; and have them read and comment on your analyses and on the student work you have chosen.. However, the work you submit as part of your response to each portfolio entry must be yours and yours alone. Your written commentaries, the student work you submit, and your video recordings must all feature teaching that you did and work that you supervised. (Emphasis is in the original.) Ms. Malvar knew that the work a candidate submits as part of the candidate's response to each portfolio entry, including the written comments, must be the candidate's work and only the candidate's work. Ms. Ileana Saenz is a classroom teacher at Fairlawn Elementary. Ms. Saenz has been a teacher for 20.5 years. Ms. Saenz has been a NBPTS certified teacher in reading literacy since December of 2006. Ms. Malvar has been a teacher for 11 years. Ms. Malvar taught at Fairlawn Elementary until October 2009, when she was appointed to supervise the School District's Bilingual Parent Outreach Program, which was the position she held as of the date of the formal hearing. Ms. Saenz and Ms. Malvar have known each other for 15 years. Ms. Elizabeth Gonzalez is also a classroom teacher at Fairlawn Elementary. Ms. Malvar, Ms. Saenz, and Ms. Gonzalez were candidates for NBPTS certification in the 2005-2006 school year. In March 2006, Ms. Saenz and Ms. Gonzalez submitted their entries to NBPTS. Ms. Malvar did not complete her portfolio entries and dropped out of the application process. In December 2006, NBPTS notified Ms. Saenz that she had attained certification. While the three teachers were in the application process, Ms. Saenz gave to Ms. Malvar her four portfolio entries to proofread and to provide feedback. In the fall of 2006, Ms. Malvar reapplied for NBPTS certification. Ms. Malvar submitted her four portfolio entries, including Entry 2 and Entry 3, to NBPTS in March 2007. While packing her portfolio entries for submission to NBPTS, Ms. Malvar inadvertently gave Ms. Saenz a copy of each of her four portfolio entries. As will be discussed below, Ms. Saenz did not realize that she had a copy of these portfolio entries until February 2008. In November 2007, Ms. Malvar received her score report from NBPTS. Ms. Malvar received a passing score on her Entry 3, but she did not receive a passing score for her other three portfolio entries, including Entry 2. The score Ms. Malvar received for her Entry 3 was identical to the score Ms. Saenz had received for her Entry 3 the year before. Ms. Saenz and Ms. Gonzalez encouraged Ms. Malvar to redo and submit the portfolio entries for which she had not received a passing grade. They offered to act as mentors. In January 2008, Ms. Saenz asked Ms. Malvar to give her Ms. Malvar's Entry 1 and Entry 2 that had been submitted to NBPTS in March 2007, so that Ms. Saenz could review them and provide feedback to Ms. Malvar. Ms. Malvar complied with that request, but, as will be discussed below, Ms. Saenz did not have time to read the portfolio entries until the following month. In February 2008, Ms. Saenz read a few pages of the draft of Ms. Malvar's new Entry 2 and noticed that the portfolio entry was very similar to the Entry 2 Ms. Saenz had submitted in March 2006. The strategies were the same and the wording was similar. Shortly thereafter, Ms. Saenz retrieved the copy of the Entry 2 that Ms. Malvar had submitted to NBPTS in March 2007. (This was one of the two portfolio entries that Ms. Malvar had given Ms. Saenz in January 2008 to review and provide feedback.) There was a great deal of overlap between the Entry 2 Ms. Saenz submitted in March 2006 and the Entry 2 Ms. Malvar submitted in March 2007. Ms. Saenz highlighted the overlap with a marker. Ms. Malvar plagiarized parts of Ms. Saenz's Entry 2. Ms. Saenz confronted Ms. Malvar and asked to see Ms. Malvar's other portfolio entries. Ms. Malvar told Ms. Saenz that she would provide her with a copy of the other portfolio entries. The next morning, Ms. Saenz wanted more assurances from Ms. Malvar that her work would no longer be used. Shortly thereafter, Ms. Malvar informed Ms. Saenz that she had decided to drop out of the certification process. That afternoon, Ms. Malvar filled out the form to drop out of the certification process, faxed it in to NBPTS, and gave a copy to Ms. Saenz. Later Ms. Saenz discovered the copy of Ms. Malvar's Entry 3 that had been submitted to NBPTS by Ms. Malvar in March 2007. This is the copy that Ms. Malvar had inadvertently given Ms. Saenz when Ms. Malvar and Ms. Gonzalez were packing Ms. Malvar's submissions to NBPTS in March 2007. There was a great deal of overlap between the Entry 3 Ms. Saenz submitted in March 2006 and the Entry 3 Ms. Malvar submitted in March 2007. Ms. Saenz highlighted the overlap with a marker. Ms. Malvar plagiarized parts of Ms. Saenz's Entry 3. After learning that Entry 2 and Entry 3 had been plagiarized, Ms. Saenz was justifiably upset that Ms. Malvar had used her work. Ms. Saenz had received additional compensation as a result of her certification from NBPTS certification. Ms. Malvar's use of Ms. Saenz's work could have cost Ms. Saenz her certification from NBPTS and the loss of her additional compensation. After consulting her assistant principal and her direct supervisor, Ms. Saenz held a conference call with the person who is head of the national boards for the Miami-Dade County School District. Following that conference call, Ms. Saenz reported to NBPTS her observations as to the similarities between her own Entry 2 and Entry 3 submitted in March 2006, and the Entry 2 and Entry 3 that Ms. Malvar submitted in March 2007. On April 28, 2008, a representative of the NBPTS advised Ms. Malvar that NBPTS had identified "a high degree of overlap" between her portfolio entries and those of "another current or former candidate." The letter invited Ms. Malvar to explain no later than May 12, 2008, how the overlap could have occurred. Because Ms. Malvar did not timely respond to the April 28, 2008, letter, a second letter was sent to her by the same representative of NBPTS extending the response time to May 19, 2008. By letter dated May 19, 2008, Ms. Malvar responded to NBPTS with the following after she had referenced the two letters she had received: In response to the aforementioned letters, I would like to state that all the implemented lessons were my original ideas, I did all the research as well as planning that it took to create them and I was the only person involved in their implementation. At the same time, I do acknowledge that the way some of the lessons were expressed on paper were not my original words. This was done without malice and without the consent of the other person. I do regret this unfortunate incident since I did put many hours of hard work in the creation of the lessons. By letter dated July 8, 2008, the president of NBPTS notified Ms. Molvar of his decision. The letter provided, in part, as follows: Before making my decision I closely reviewed the various materials regarding this case, while taking into consideration the obligation that NBPTS has to maintain an assessment that is fair to all teachers seeking certification. This is a serious issue, and I did not make my decision lightly. After reviewing all of the documentation regarding this situation, I find unacceptable the high degree of overlap between [Ms. Sanez's 2006 entries and Ms. Malvar's 2007 entries]. While collegial teamwork is valued by the National Board, the guidelines set forth in the portfolio directions are in place to ensure all candidates seeking certification submit original work and analyses that are a result of personal reflection on their individual teaching practices. In your situation, I find that the overlap is significant enough to cause concern. Therefore, it is my decision to disqualify your current scores for the above-mentioned portfolio entries and to remove the scores from your score report. It is also my decision to grant you the opportunity to retake these portfolio entries and any other entries/exercises you choose to retake. Ms. Malvar had not reapplied for certification as of the date of the formal hearing. Ms. Malvar has never received any letters of reprimand, letters of direction, or verbal warnings at any time during her professional career as an educator. Ms. Malvar has received numerous certificates of achievement. Ms. Malvar has always received high marks on her evaluations as an educator and has never received an unsatisfactory evaluation. Ms. Malvar presented the testimony of three current or former educators as character witnesses. These character witnesses testified, credibly, that Ms. Malvar enjoys a good reputation in the teaching community. Ms. Malvar knew, or should have known, that her use of Ms. Sanez's work constituted cheating. Ms. Malvar testified, credibly, that she was ashamed of what she had done.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent guilty of Counts I, II, III, and IV of the Administrative Complaint. It is further recommended that the final order suspend Respondent's educator's certificate for a period of one year. DONE AND ENTERED this 13th day of September, 2010, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of September, 2010.
