The Issue The issues to be determined are whether Respondent, Trudy M. Benson, violated section 1012.795(1)(j), Florida Statutes, and Florida Administrative Code Rules 6A-10.081(2)(a)1. and/or 6A-10.081(2)(a)5., as charged in the Administrative Complaint; and, if so, what disciplinary penalty should be imposed.
Findings Of Fact Based upon the credibility of the witnesses and evidence presented at the final hearing and on the entire record of this proceeding, the following Findings of Fact are made: Background At the time of the allegations in the Administrative Complaint, Respondent held Florida Educator’s Certificate 868131, covering the areas of elementary education and exceptional student education (ESE), which was valid through June 30, 2019. The Commissioner is the head of the state agency, the Florida Department of Education, responsible for investigating and prosecuting allegations of misconduct against individuals holding Florida educator certificates. Upon a finding of probable cause, Petitioner is then responsible for filing a formal complaint and prosecuting the complaint pursuant to chapter 120, Florida Statutes, if the educator disputes the allegations in the complaint. At all times pertinent hereto, Respondent was employed as a fourth grade teacher at Suwannee Intermediate School (SIS), a fourth and fifth grade intermediate school, in the Suwannee County School District (SCSD). Respondent began her teaching career with the SCSD during the 2016/2017 school year at Suwannee Middle School as an ESE teacher. For the 2018/2019 school year, Respondent was transferred to SIS where she taught fourth grade math and science. Respondent received two consecutive Highly Effective Evaluations as an ESE teacher, from two different principals in her first and second years teaching in the public school system. Respondent also offered in evidence letters of recommendation from both principals, Jerry Jolicoeur and Jimmy Wilkerson, the superintendent, Mr. Roush, and a newly retired veteran ESE teacher, Ms. Candy Vickers; a letter of praise from ESE director Elizabeth Simpson; and a letter of Ms. Benson's major accomplishments as both an ESE volunteer and ESE teacher. Respondent had not been the subject of any previous complaints or disciplinary actions during her period of employment and by all accounts was a very successful ESE teacher. Leigh Fountain was also a fourth-grade teacher at SIS. She taught reading and language arts. Respondent and Ms. Fountain had a combined total of 49 students and taught in adjoining classrooms. One class of students would be with Respondent in the morning, while the other class was with Ms. Fountain. They would then switch students for the second part of the day. Whoever had the students at the beginning of the day was the students’ homeroom teacher. Ms. Fountain had student N.C. at the beginning of the day and was therefore N.C.’s homeroom teacher. Toward the end of the school day, N.C. and his classmates would return to their homeroom teacher, Ms. Fountain. The Events of October 29 and 30, 2018 On October 29, 2018, N.C. was at home attempting to do math homework assigned by Respondent. N.C.’s older sister was assisting him. She thought the homework was a little difficult for a fourth grader. She asked their mother if she could write a note to Respondent regarding the difficulty of the homework. Their mother, Mrs. W., said yes. The note stated “Don’t you think this is a little advanced for fourth grade.” The note was written in a “bubble cloud” on the worksheet next to the math problem. On October 30, 2018, N.C. was in Respondent’s class along with 21 or more other students. This was a difficult class for Respondent to manage because of the behavior issues, disciplinary issues, and ESE issues. Respondent considered N.C. as one of the students who contributed to disruption in the classroom. Respondent asked the students to pass their math homework forward. N.C. came up to Respondent with his homework and told her “there’s a note from my mother you need to read.” Respondent told N.C., “I will read it later when I have a moment when we’re done with the lesson.” N.C. insisted that Respondent read the letter. Respondent read the note “out loud to myself.” The note stated that the homework was a bit difficult for 4th graders or too difficult for 4th graders. Respondent then told N.C. “Well, maybe we should write your mom a note and let her know that even though these might be a little difficult, that you’re up for the challenge and that we think you can handle it.” Though not directed to the class, Respondent’s statement could have been loud enough for some of the students (five to ten) in the classroom to hear her. What occurred next is at the heart of this dispute. According to the Material Allegations set forth in the Administrative Complaint: During October of the 2018-2019 school year, Respondent engaged in inappropriate conduct when she instructed her fourth grade class to write letters to the parent of N.C., a fourth grade student in her class. The purpose of the letters was to explain that an assignment N.C.’s parent had complained about being too difficult, was not actually difficult. N.C. was embarrassed by the assignment. (emphasis added). Thus, according to Petitioner, Respondent instructed her students to write letters to N.C.’s parent regarding the homework. To support this allegation, Petitioner called as witnesses several of the students who had been in class that day. Petitioner also introduced in evidence six of the students’ written accounts of the events of October 30, 2018, obtained by its investigator, Randy Kosec, Jr. Neither the testimony of the students at hearing, nor their written statements, persuasively corroborate Petitioner’s version of the events that transpired that day. The Testimony of the Students N.C. was the first of the students to testify. On direct examination N.C. testified that when he gave his homework sheet to Respondent “She said to everyone, don’t you think this---she thinks y’all are a little---my mom thinks you all are stupid.” He further testified that after making this statement, Respondent told the students to write a letter to his mother, and then made N.C. “sit in the back at this little circle table while the kids asked me questions.” N.C. further testified on direct examination that Respondent put his homework sheet under a projector in order to show all of the other students what was written there. On cross examination N.C. conceded that after reading the note on N.C.’s homework, Respondent told him that “maybe we should write your mom a note and let her know that it is a little challenging, but we think you are up for it.” N.C. also confirmed that while Respondent was discussing the note with N.C. at the front of the classroom, another student, A.P., jumped up saying “yeah, let’s do that, let’s write her a letter.” After that, several other students chimed in and said, “yeah, let’s do it.” This version of events was corroborated by students D.P. and A.P., including the statement by A.P. that Respondent was having a conversation with N.C. only, and was not addressing the class. The written account of student A.G. includes the statement “I don’t remember writing a letter to anybody about the homework.” The written account of student A.J. includes the statement “I didn’t have to right [sic] any letter to a parent.” The written account of student J.P. includes the statement “I never have to write a letter to anyone [sic] parent.” The written account of student A.P. includes the statement that “One day she told us to write a letter to [N.C.’s] mom about my class because he and his mom said the homework [was too] easy so we all wrote letters to his mom and he took them home that day.” However, on cross-examination at hearing A.P. agreed that Respondent did not tell the class to write a letter. She was also emphatic that N.C. took the letters home with him that day because “I remember him stuffing all of them—trying to fit them into his bookbag.” Neither the written accounts of the students, nor their testimony at hearing, credibly support a finding that Respondent instructed her fourth grade class to write letters to N.C.’s parent about the homework assignment. To the contrary, the students’ testimony is conflicting and self-contradictory in many instances. By this, the undersigned does not mean to suggest that the students were intentionally being untruthful in their testimony, but rather that the precise events of that day, nearly two years earlier, had become vague in their memories. More significantly, the written accounts recorded by Investigator Kosec approximately seven months after the day in question, do not support a finding that the students were instructed to write letters to N.C.’s mom, since three of the six written accounts state that the students did not write such a letter. At hearing, Respondent credibly testified that she never instructed her fourth grade class to write letters to N.C.’s mother, as follows: I never assigned this to the students to do. I never told the students to write a letter. It was not my job for the students to write assignments. As I told Ms. Fountain and as she testified, I had never given them a writing assignment prior. Why on earth would I give them a writing assignment now? The credible evidence of record establishes that some of the students overheard Respondent’s conversation with N.C. and took it upon themselves to write a letter to N.C.’s mother. Respondent told the students “if you are going to write a letter, it needs to be respectful and polite.” While N.C. was still in front of Respondent, some of the students jumped up for paper. Others pulled out paper. It was a “hectic situation.” Some of the students wrote letters to N.C.’s mother. After the students wrote the letters, Respondent retrieved the letters. There were about ten letters. Respondent allowed the students 2 - 3 minutes to write the letters. After the students wrote the letters, N.C. went back to his seat. After the class, Respondent had a planning period. Respondent called and spoke with N.C.’s mother by telephone. Respondent “explained to her what had taken place.” N.C.’s mother was angry. Respondent shredded the letters at the end of the school day. As to why Respondent even permitted the students to write the letters, Respondent cited to the Principles of Professional Conduct for the Education Profession in Florida, which provides in part that Florida educators “Shall not unreasonably restrain a student from independent action in pursuit of learning.” Fla. Admin. Code R. 6A-10.081(2)(a)2. According to Respondent, she was attempting to avoid violating this provision when she allowed some of the students to write letters. As Respondent testified at hearing: They overheard a conversation I was having with a student who insisted I read the note and insisted on a response, and they took it upon themselves to say, yes, let’s write her a letter. It is not for the undersigned to determine whether Respondent did, or did not, exercise good judgment in allowing some of the students to write letters to N.C.’s mother. Rather, it is the undersigned’s task to determine whether the Material Allegations set forth in the Administrative Complaint have been proven by clear and convincing evidence in this record. Based upon the competent substantial evidence of record, the undersigned finds that Petitioner has failed to prove, by clear and convincing evidence, the sole material allegation of the Administrative Complaint, to wit, that Respondent engaged in inappropriate conduct when she instructed her fourth grade class to write letters to the parent of N.C., a fourth grade student in her class. Rather, the evidence clearly and convincingly established that no such instruction was ever given by Respondent to her students.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned hereby RECOMMENDS that the Education Practices Commission enter a final order dismissing the Administrative Complaint against Respondent. DONE AND ENTERED this 20th day of October, 2020, in Tallahassee, Leon County, Florida. S W. DAVID WATKINS 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 20th day of October, 2020. COPIES FURNISHED: Trudy Benson 19378 County Road 250 Live Oak, Florida 32060 (eServed) Ron Weaver, Esquire Post Office Box 770088 Ocala, Florida 34477-0088 (eServed) Lisa M. Forbess, Interim Executive Director Education Practices Commission Department of Education Turlington Building, Suite 316 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Randy Kosec, Jr., Chief Office of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
The Issue The issues in these consolidated cases are as follows: (1) whether Respondents employed Lorene Walker, who had contact with scholarship students and who did not meet the requisite criteria to pass the Level 2 background screening as required by section 1002.421(1)(m) and (p), Florida Statutes (2019), and if so, what is the appropriate remedy; and (2) whether Respondents engaged in fraud in violation of section 1002.421(3)(d) and, if so, whether Petitioner should revoke Respondents' participation in several Florida Scholarship Programs.1
Findings Of Fact Parties, People, and Programs The Department is the government agency charged with administering numerous state scholarship programs pursuant to section 1002.421, Florida Statutes. The Department operates or has administrative responsibilities for the Gardiner Scholarship Program, the John M. McKay Scholarships for Students with Disabilities Program, the Florida Tax Credit (FTC) Scholarship Program, and the Family Empowerment Scholarship Program. See §§ 1002.385, 1002.39, 1002.394, and 1002.395, Fla. Stat. The Gardiner, McKay, FTC, and Family Empowerment scholarships defray tuition and other qualified educational expenses for eligible students who attend charter, private, or other eligible schools in the state of Florida. The Department also operates or administers the Hope Scholarship Program, which provides tuition assistance to victims of school bullying so that they can enroll in another school. See § 1002.40, Fla. Stat. The scholarship funds are awarded to eligible students to be used at eligible schools. The Commissioner is the agency head of the Department and has the authority to revoke or suspend a school's eligibility to receive scholarship monies on behalf of eligible students. The Independent Education and Parental Choice Office, also referred to as the School Choice Office (Office), is a section of the Department which oversees several school choice options outside Florida's public school system. The Office also oversees the administration of various scholarships programs under chapter 1002. The Office is in regular contact with schools that participate in these scholarship programs. Respondents have been operating as private schools for approximately six years. Since the 2013/2014 school year, they have been found eligible and participated in numerous scholarship programs pursuant to section 1002.421. Respondents operate two campuses: (1) School Code No. 4015 located at 1056 North Pine Hills Road, Orlando, Florida (Pine Hills Campus); and (2) School Code No. 8827 located at 5308 Silver Star Road, Orlando, Florida (Silver Star Campus). The Schools serve 40 to 50 scholarship students and receive approximately $200,000 per year in scholarship funds. Judith Shealey is the owner of the Schools. She carries the title of Executive Director, Principal, Headmistress, and/or Owner. Ms. Shealey has family members who are students and teachers at the Schools. Compliance Requirements As explained by RaShawn Williams, the Office, parents, and eligible schools work closely together to access the scholarship funds. The parents apply for the scholarships through the designated agency and enroll their students directly with an eligible school. The school is responsible for enrolling the student in the scholarship program awarded to that student. Essentially, the student must be deemed eligible to receive scholarship funds, and the school must be eligible to receive those scholarship funds. If a private school is deemed ineligible by the Office for participation in a scholarship program, the students at that school do not lose their eligibility for scholarship funds. Rather, they simply cannot use those funds to enroll in the ineligible school. As private school participants in the Florida Scholarship Programs, the Schools were required to register with the State through the submission of a Private School Annual Survey; and then apply for eligibility through the submission of a yearly Scholarship Compliance Form (Compliance Form). The Compliance Form specifies numerous governing statutory requirements including: (1) submitting background screenings for officers, directors, or other controlling persons; (2) certifying all staff with direct student contact have passed an FDLE Level 2 background screening; and (3) terminating or denying employment to all persons who cannot meet this requirement. The Compliance Form is completed by applicant schools online, and then a signed and notarized hard copy is mailed to the Office. The relevant portions of the Compliance Form are found in "Section 4," and involve background checks: * Has each Owner, Operator, and Chief Administrative Officer undergone a Level 2 background screening through the Florida Department of Law Enforcement and submitted the results to the Florida Department of Education in accordance with section 1002.421(1)(m), Florida Statutes? (Reports must be filed with the private school and made available for public inspection). * * * * Have all employees and contracted personnel with direct student contact submitted their fingerprints to the Florida Department of Law Enforcement for state and national background screening in accordance with section 1002.421(1)(m), Florida Statutes? * In accordance with section 1002.421(1)(m), Florida Statutes, does the school deny employment to or terminate an employee or contracted personnel with direct student contact if he or she fails to meet the background screening standards under section 435.04, Florida Statutes? * In accordance with section 1002.421(1)(m), Florida Statutes, does the school disqualify instructional personnel and school administrators from employment in any position that allows direct contact with students if the personnel or administrators are ineligible under section 435.40, Florida Statutes? A "No" answer on any of the above questions would, if unresolved, result in a private school's ineligibility for scholarship funds. The evidence establishes that the Schools answered "Yes" for sections 4A, 4C, 4D, and 4E on the notarized Compliance Forms that were submitted on December 18, 2018, and December 11, 2019. In addition to certifying the information above on the Compliance Forms every year, an eligible school must submit to the Office screening documentation for directors, principals, board members, administrators, and officers as part of the renewal of participation in the scholarship programs. Screening documentation related to other employees must be maintained by the schools and is usually only reviewed by the Office during an audit or a site visit of the school. There is no dispute that the Schools never listed Lorene Walker as an administrator for the Schools. There is no dispute the Schools never submitted any background screening information for Ms. Walker until specifically requested by the Office in November 2019. Employment of Lorene Walker Lorene Walker was hired by the Schools in 2013.3 She had children and/or grandchildren who attend the Schools. The Schools claim Ms. Walker was hired from an entity known as "Career Source." Although Ms. Walker believed that she had been cleared to work at the Schools, there is no employment file or documentation that she had undergone the Level 2 background screening required by law before being employed at the Schools. Originally, Ms. Walker worked as a "floater." As a floater, Ms. Walker cooked, cleaned, and did whatever the school needed at the time. It is unclear whether she had direct contact with students in this position. 3 Ms. Walker testified she began working there in 2015, but later stated she started in 2013. Ms. Shealey indicated by 2014, Ms. Walker had transitioned into the current position. Regardless, in 2014, Ms. Walker transitioned into a more active role at the Schools. Although the Schools claim in response to the Complaints that she was simply an administrative assistant to Ms. Shealey, the evidence establishes that Ms. Walker was the Administrator for the Schools during the time relevant to the Complaints. She reminded teachers to send out grades, attended meetings, oversaw the lunch program, and prepared school-related and financial documentation. Ms. Walker was also responsible for the Schools' students' enrollment into the scholarship programs. As Administrator, Ms. Walker also had authority, either explicit or implicit, from the Schools' owner, Ms. Shealey, to represent the Schools when dealing with the Office. She worked directly with Ms. Williams on compliance issues, including fire safety, health inspections, and completion of the Annual Survey and Compliance Form for the Schools. Ms. Walker also responded to requests for information from Ms. Williams and others in the Department. It was clear Ms. Walker was integral to the operation of the Schools. Ms. Shealey and Ms. Walker were the only two individuals with access to the Schools' email accounts that were used to correspond with the Department. The emails from one of the email addresses usually contained Ms. Shealey's signature block indicating either the title of "Principal" or "Headmistress." Ms. Walker's signature line identified her title as "Administrator." Before being hired by the Schools, Ms. Walker had been arrested for numerous offenses between 1978 and 2001 in Florida. Although most of these offenses were dismissed, dropped, and/or abandoned, she pled nolo contendere to and was found guilty of a 1994 charge for unlawful purchase of a controlled substance, a second-degree felony in violation of section 893.13, Florida Statutes (1993). The 1994 charge is a disqualifying offense which rendered Ms. Walker ineligible to be a school employee.4 There was no evidence that Ms. Walker had obtained an exemption for this qualification. As noted above, the Schools never disclosed Ms. Walker's importance in their operations in their Compliance Forms. Prior to November 2019, the Schools had never provided any screening documentation for Ms. Walker to the Office as part of the yearly compliance process. Investigation and Complaints On or around October 14, 2019, the Department received a complaint from another state agency concerning possible abuse by an employee of the School at the Pine Hills campus. Although the abuse investigation was handled outside of the Office, the Office opened an inquiry into the Schools' compliance with background check requirements and other issues. Whitney Blake conducted the investigation on behalf of the Office. The first step in this inquiry was a letter from Ms. Blake's supervisor, dated October 25, 2019, requesting (among other things) a list of all employees (including both teachers and other personnel) and results of current FDLE Level 2 background screenings for all employees. 4 Section 435.04, Florida Statutes, provides the following in relevant part: (2) The security background investigations under this section must ensure that no persons subject to the provisions of this section have been arrested for and are awaiting final disposition of, have been found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty to, or have been adjudicated delinquent and the record has not been sealed or expunged for, any offense prohibited under any of the following provisions of state law or similar law of another jurisdiction: * * * (ss) Chapter 893, relating to drug abuse prevention and control, only if the offense was a felony or if any other person involved in the offense was a minor. On November 4, 2020, Ms. Walker sent the Department a list of all the Schools' staff, including herself as "Administrator," along with the results of her background screening, revealing her previous disqualifying offense. On November 15, 2019, Ms. Blake attempted to contact Ms. Shealey by phone because she was concerned that Ms. Walker, who was the disqualified employee, was the person sending the information from the School. When she called the Schools and requested to speak with the owner (Ms. Shealey), the person who answered purportedly claiming to be the Schools' owner did not have a distinguishable accent. Ms. Shealey was known to have a strong accent, whereas Ms. Walker did not. Regardless, on this call, Ms. Blake instructed the person on the other end of the phone line that the Schools would need to terminate Ms. Walker immediately because of her disqualifying offense. On that same day, Ms. Blake then sent a follow-up email to the Schools (at both email addresses utilized by the Schools) indicating there were outstanding items that had not been provided as requested in the October 25 letter. She also specifically requested proof Ms. Walker was no longer at the Schools. Specifically, the Department stated: Upon review of the Level 2 background screenings, it was determined Lorene Walker has disqualifying offenses pursuant to section 435.04, F.S. An employee or contracted personnel with direct student contact means any employee or contracted personnel who has unsupervised access to a scholarship student for whom the private school is responsible. To certify compliance with this requirement, please submit a signed statement indicating Lorene Walker's employment at your school has been terminated or that individual's role with your school no longer puts he/she in proximity to scholarship students. Your attention to this in the next five days will preempt any further action on our part. (emphasis added). That same date, November 15, 2019, the Schools emailed one of the items requested by Ms. Blake, an abuse poster, to the Office. Although Ms. Walker testified she did not send the email, it had her signature block and was from one of the Schools' two email accounts to which she had access. The undersigned finds Ms. Walker sent this email to Ms. Blake. On November 18, 2019, the Schools sent another item previously requested by Ms. Blake, the teaching qualifications for a teacher, to the Office. Again, although Ms. Walker claimed she did not send the email, it had her signature block and was from one of the Schools' two email accounts to which she had access. The undersigned finds Ms. Walker sent this email to Ms. Blake. Ms. Blake did not receive any proof that the Schools had removed Ms. Walker from her position within five days as requested in the November 15 email to the Schools. As a result, on November 22, 2019, Ms. Blake emailed the Schools reiterating the requirements of section 1002.421, and repeating her request for a signed statement that Ms. Walker had been terminated or had no contact with scholarship students. Ms. Blake also added: "Failure to turn in the requested documentation could impact your school's ongoing participation in the Scholarship Program." During this time, Ms. Blake spoke to Ms. Shealey numerous times on the phone regarding the outstanding requests related to another teacher and the signed documentation that Ms. Walker had been removed from her position. Ms. Shealey indicated it would be difficult to remove Ms. Walker due to Ms. Walker's oversight of the school and her familiarity with the scholarship student information. After Ms. Blake did not receive the requested proof of Ms. Walker's removal from the Schools and two other items related to a teacher, the Office issued a Notice of Noncompliance on December 5, 2019. On December 19, 2019, Ms. Shealey sent to Ms. Blake one of the outstanding items related to the teacher by email. There was no mention of Ms. Walker and no signed proof that Ms. Walker had been removed from her position. The next day, Ms. Blake wrote an email to Ms. Shealey indicating that she did not have authority to exempt Ms. Walker from the background screening requirements. She again asked for the outstanding information related to the other teacher and a signed statement indicating Ms. Walker had been removed and no longer had proximity to scholarship students. On December 23, 2019, Ms. Shealey emailed Ms. Blake that the teacher for which there was an outstanding request had resigned and no longer worked for one of the Schools. Ms. Blake responded with yet another request for the signed statement indicating Ms. Walker had been terminated or was no longer in proximity to scholarship students. In response, Ms. Shealey sent an email to Ms. Blake with an attached letter. The letter titled "Termination of your employment" and dated December 9, 2019, indicates that Ms. Shealey terminated Ms. Walker during a meeting held on December 9, 2019. The letter is unsigned. Ms. Shealey indicated in the text of the email that it was the hardest letter she had to write. Being concerned that they had not received a signed statement, Ms. Blake and Ms. Williams requested that a site visit be conducted at the Pine Hills Campus. A visit was scheduled for February 5, 2020, and the Schools were provided notice of the site visit by certified mail, email, and telephone. Additionally, the Schools were provided a checklist of the documents that should be provided to the inspector during the site visit. On February 5, 2020, Scott Earley from the Office conducted the site visit at the Pine Hills Campus. When he arrived, Ms. Shealey was not there and none of the documentation previously requested had been prepared for review. Mr. Earley testified that once Ms. Shealey arrived, she did not know where all the requested documents were, nor could she produce all of them. For example, when asked about a necessary health form, Ms. Shealey indicated that Ms. Walker would know where the document was, but she could not locate it. Mr. Earley did not recall Ms. Shealey stating during the inspection that Ms. Walker was working from home, but she gave Mr. Earley the impression that Ms. Walker's background screening issue had been resolved. Regardless, the Site Visit Staff/Consultant Worksheet filled out for the February 5 site visit does not disclose Ms. Walker as a member of staff or contracted personnel with the Pine Hills Campus. Although Ms. Walker was not at the Pine Hills Campus during the site visit, Mr. Earley believed based on his observations and conversations with Ms. Shealey that Ms. Walker was still employed by the Schools as a director or principal. Almost two weeks later on February 20, 2020, Petitioner filed the Complaints against the Schools. It was not until March 11, 2020, in response to the Complaints that the Schools submitted for the first time a signed copy of a termination letter dated December 9, 2020. Even after the Complaints had been served on the Schools, however, it was unclear what Ms. Walker's involvement was with the Schools. There may have been some confusion because Ms. Walker had been seen after her purported termination on campus. Ms. Walker claimed she was on campus only to pick up her children and grandchildren. Testimony from two of the Schools' teachers indicated that they noticed Ms. Walker was no longer at the Schools, but knew she was taking care of the Schools' paperwork from her home. Neither teacher could establish a date certain for when Ms. Walker stopped working on campus and/or when she began working at home. Prior to the filing of the Complaints in these proceedings, there was no evidence that the Schools ever reported to the Office that Ms. Walker had been working from home. Nothing in the Petition filed on March 4, 2020, indicates Ms. Walker was still employed at the Schools. It was not until March 11, 2020, in response to the Complaints that the Schools submitted for the first time a signed copy of a termination letter dated December 9, 2020. As part of the March 11 submission, Ms. Shealey sent a signed statement indicating she had not terminated Ms. Walker, but rather "had her work from home." This was the first time Ms. Shealey indicated to the Office that Ms. Walker was still working for the Schools. In the Motion filed April 10, 2020, the Schools indicated they were unaware of the specifics of the Level 2 background screening requirement, and that, once aware, "we took action immediately and terminated the employee in question." There was no indication in the body of the Motion the Schools continued to employ Ms. Walker to work at her home. Attached to the Motion, however, was the same letter submitted on March 11 indicating Ms. Walker was working from home. In the Amended Petition filed on May 15, 2020, the Schools state Ms. Walker was terminated: "I terminated Ms. Lorene Walker due to the Department's information in order to come into compliance with the Florida Department of Education." "I rectified this deficiency by terminating Ms. Walker." "Ms. Lorene Walker was terminated on December 9, 2019, as advised by Whitney Blake." Although the Amended Petition does not explicitly state Ms. Walker continued to work for the Schools at home, it does leave room for this interpretation: "As of December 9, 2019, Ms. Lorene Walker no longer works in the Lion of Judah facility." It is unclear on what date Ms. Walker stopped working from home for the Schools. What is clear is that at the time of the final hearing she was no longer working at the Schools in any location or in any capacity. ULTIMATE FACTUAL DETERMINATIONS The greater weight of the evidence establishes Ms. Walker, in her role as Administrator, should have been disclosed to the Office as an "operator" or "a person with equivalent decision making authority." The Schools were required to send her background screening documentation to the Office as required by the Compliance Form and section 1002.421(1)(p), and they did not. The Schools employed a person with a disqualifying offense in violation of sections 1002.421(1)(m) and 435.04(2)(ss). Specifically, the Schools employed Ms. Walker from 2014 (if not earlier) through December 2019 (if not later) in a position in which she was in the vicinity of scholarship students, knowing that she had been found guilty of a felony and without obtaining or providing documentation related to a Level 2 background clearance. The Schools continued to allow Ms. Walker to remain in a position that placed her in the vicinity of scholarship students after receiving notification of her ineligibility for almost a month (if not more). The greater weight of the evidence establishes the Schools engaged in fraudulent activity, to wit: (1) Ms. Shealey falsely represented to the Office that the Schools complied with Section 4 of the Compliance Form for 2018 and 2019; (2) the Schools falsely obscured Ms. Walker's role at the School and her criminal background; and (3) the Schools failed to honestly disclose Ms. Walker's employment status when they claimed to terminate her on December 9, 2020, but failed to inform the Office that they had retained (or rehired) her to work at home. The Schools made these statements of material fact either knowing they were false or in reckless disregard of the truth or falsity of the representations, which were false.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commissioner enter a final order (1) upholding the suspension; and (2) revoking the eligibility of Lion of Judah Academy (4015) and Lion Of Judah Academy (8827) to participate in the following Florida Scholarship Programs: John M. McKay Scholarships for Students with Disabilities Program, Florida Tax Credit Scholarship Program, Gardiner Scholarship Program, Hope Scholarship Program, and/or Family Empowerment Scholarship Program. DONE AND ENTERED this 3rd day of November, 2020, in Tallahassee, Leon County, Florida. S HETAL DESAI 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 3rd day of November, 2020. COPIES FURNISHED: Jason Douglas Borntreger, Esquire Department of Education Suite 1544 325 West Gaines Street Tallahassee, Florida 32310 (eServed) Judith Shealey Lion of Judah Academy 1056 North Pine Hills Road Orlando, Florida 32808 Shawn R. H. Smith, Esquire Law Office of Shawn R. H. Smith, P.A. Post Office Box 547752 Orlando, Florida 32854 (eServed) Chris Emerson, Agency Clerk Department of Education Turlington Building, Suite 1520 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Richard Corcoran Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
Findings Of Fact Based upon the evidence submitted, the following facts are determined: On August 29, 1979, John A. Hall filed with the DEPARTMENT an application for a Florida teaching certificate. Official records indicate that HALL was convicted and found guilty of assault to commit murder in the second degree on November 19, 1970. He was sentenced to 13 1/2 years in the State Prison, and released on a two-year parole in 1977. (R.E. 1.) On January 4, 1980, HALL was employed as a substitute teacher at Beasley Middle School in Palatka, Florida. The only qualifications for being employed as a substitute teacher in Putnam County are that the individual be of age and hold a high school diploma. At his request, HALL's name had been placed on the Beasley Middle School list of available substitutes although it does not appear that anyone at the school was acquainted with him. (Testimony of Meredith Barker.) On January 4, 1980, Harry Willis was a 13-year-old student in the seventh grade math class where HALL was assigned as a substitute teacher. HALL saw him in the back of the room, told him to go to his seat, and pushed him into his chair. When the bell rang, Harry got up and tried to go out the door. HALL told him he wasn't going anywhere, pushed him back, and struck him in the jaw with his fist. Harry pleaded with him to let him go and, finally, pushed him out of the way as he rushed to the principal's office. It took several hours for Harry, with the support of the principal and assistant principal, to regain his composure; he was visibly shaken by the incident. He had never been a disciplinary problem at the school. (Testimony of Ivey, Barker, Lamoreaux). HALL was directed to report to the office of the school principal, Meredith Barker. There, he admitted striking Harry, but defended it was necessary to "uphold discipline." He said he wanted to apologize to Harry and return to his class. Ms. Barker, however, dismissed HALL, telling him to gather his belongings and leave the school grounds. HALL's effectiveness as a teacher at Beasley Middle School has been seriously reduced due to the notoriety of the incident and the expressed desire by parents that he not be allowed to teach there again. (Testimony of Barker.) Immediately prior to the opening of hearing, HALL informed counsel for the DEPARTMENT that the hearing could be cancelled since he was withdrawing his application for a teaching certificate; HALL then abruptly left the hearing room. However, since HALL's statement was not made in writing or on the record, Respondent asserted that the application remained in effect and requested that the hearing be conducted, as scheduled.
Conclusions Petitioner failed to establish entitlement to the requested teaching certificate; moreover, the Respondent Department established two grounds for denial of Petitioner's application: (1) his conviction of a felony, and (2) his having engaged in personal conduct which seriously reduces his effectiveness as an employee of the school board. Petitioner's application for a teaching certificate should, therefore, be DENIED.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That John A. Hall's application for a Florida teaching certificate be DENIED. DONE AND ORDERED this 20th day of November, 1980, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of November, 1980.
The Issue The issue in this case is whether Petitioner is eligible for a Bright Futures scholarship even though he did not take foreign language classes in high school.
Findings Of Fact At the time of the final hearing, Petitioner Daniel B. Gopman ("Gopman") was a fulltime college student enrolled in the Harriet L. Wilkes Honors College of Florida Atlantic University ("FAU"). Respondent Department of Education ("Department") administers the Florida Bright Futures Scholarship Program ("Bright Futures"), among other responsibilities. Before graduating from Dr. Michael M. Krop Senior High School ("Krop") in June 2003, Gopman had applied for a Bright Futures scholarship. Specifically, Gopman had sought a Florida Academic Scholars Award, which is the most generous——and selective——of the several types of scholarship available under Bright Futures. The Department had found him ineligible for a Bright Futures scholarship because Gopman had not earned two high-school credits in a foreign language.1 To his credit, Gopman had taken many academically challenging courses in high school, including honors and advanced placement courses, and had done quite well, despite having a learning disability that had resulted in his being provided special education services pursuant to an individual education plan ("IEP"). He had not, however, taken any foreign language courses in high school. Instead, after graduating from high school (and before beginning his studies at FAU), Gopman successfully completed two courses of Russian at Miami-Dade Community College ("M-DCC"). In the present case, Gopman has suggested that his failure to study a foreign language in high school was due, wholly or in part, to (a) taking the courses prescribed in his IEP, which, coupled with other subjects required for graduation, completely filled his scholastic schedule every semester; and (b) never receiving from school district personnel complete or accurate information concerning the need to take foreign language courses as a condition of qualifying for a Bright Futures scholarship. Lending some support to the first of these purported impediments is a "To Whom It May Concern" letter dated May 30, 2003, which George Nunez, then the principal of Krop, sent to the Department around that time. In this letter, Mr. Nunez urged the Department to grant Gopman an "academic waiver" of the foreign language requirement, arguing that Gopman's failure to take "a second year of a foreign language"——actually, he had not taken even a first year——"was not due to a conscious oversight on [Gopman's] part" but happened because "the mandates of his IEP" had required him to take an "additional elective" instead "of what would have been other academic electives including the second year of his foreign language." Even if scheduling conflicts had made it impossible for Gopman to take foreign language courses in high school, however, and even if he had been given poor advice regarding the requirements for a Bright Futures award (which Mr. Nunez pointedly did not suggest had occurred), Gopman's eligibility to receive a scholarship would be unchanged, for legal reasons that will be discussed below. In any event, though, the evidence in its entirety does not support Gopman's claims in this regard; rather, it disproves them. Based on the greater weight of the persuasive evidence, it is found that Gopman could have taken two foreign language classes in high school, special education services notwithstanding, had he wanted to do that.2 It is found, as well, that Gopman was not misinformed or misled regarding the requirements to qualify for a Bright Futures award. To the contrary, his guidance counselor advised Gopman, in the tenth grade, to start taking foreign language classes soon, while there was still time to complete two years of study before graduating from high school. Gopman told the guidance counselor that, because he planned to attend an out-of-state college, he would not need foreign language credits for admission (as is generally required for admission to a Florida state university) and was not concerned with Bright Futures eligibility.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED Daniel B. Gopman's application for a Bright Futures scholarship be denied because he failed to meet the foreign language requirement, and that the Department enter a final order consistent herewith. DONE AND ENTERED this 25th day of January, 2008, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 25th day of January, 2008.
