Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a Final Order dismissing the Petition for Administrative Hearing filed in this proceeding. DONE and ENTERED this 26th day of April, 1989, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 26th day of April, 1989. COPIES FURNISHED: Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Karen 0. Emmanuel Emmanuel, Sheppard and Condon 30 South Spring Street Pensacola, Florida 32596 Carl B. Morstadt Chief Counsel of Medicaid 1317 Winewood Boulevard Building 6, Room 233 Tallahassee, Florida 32399-0700
The Issue Whether Respondent violated section 1012.795(1)(g) and (j), Florida Statutes (2013),1/ and Florida Administrative Code Rule 6A-10.081(3)(a) and (e), while in a classroom at Neptune Beach Elementary School on September 19, 2013, and, if so, what penalty should be imposed.
Findings Of Fact Based on the demeanor of the witnesses, the documentary evidence presented, and the record as a whole, the following facts are found: The Florida Education Practices Commission (“the Commission”) is the state agency charged with the duty and responsibility to revoke or suspend, or take other appropriate action with regard to teaching certificates as provided in sections 1012.795 and 1012.796. § 1012.79(7), Fla. Stat. Petitioner, as Commissioner of Education, is charged with the duty to file and prosecute administrative complaints against individuals who hold Florida teaching certificates and who are alleged to have violated standards of teacher conduct. § 1012.796(6), Fla. Stat. At all times relevant to the instant case, Ms. Kennedy held Florida Educator Certificate 889874, covering the areas of Elementary Education and English for Speakers of Other Languages. Ms. Kennedy’s certificate is valid through June 30, 2017. Ms. Kennedy began her teaching career in 2001 after graduating with a bachelor’s degree in Elementary Education from the University of North Florida. The school district assigned Ms. Kennedy to Neptune Beach Elementary on September 9, 2013, approximately two weeks into the 2013-2014 school year. The principal of Neptune Beach Elementary, Elizabeth Kavanagh, then assigned Ms. Kennedy to a third-grade class being taught by Ms. Amber Rodenkirch. It is unclear whether the two teachers were equals in the classroom or if Ms. Rodenkirch gave direction to Ms. Kennedy. The students in Ms. Rodenkirch and Ms. Kennedy’s class (“the class”) sat at tables rather than in chairs with a writing surface attached thereto. As illustrated by Petitioner’s Exhibit 13, the chairs utilized by the students were of two types. One type consisted of a plastic seat resting on metal tubes. The metal tubes had four flat ends making contact with the floor. The second type of chair also consisted of a plastic seat resting on metal tubes. However, the second type of chair made contact with the floor by having two metal tubes lying flat on the floor. As a result, it would be much easier to slide the second type of chair along a carpeted floor than the first. When seated in the second type of chair, the children in the class would often lean forward. By doing so, they would cause the back portion of the metal tubes on which the seat rested to rise up off the floor. When working with a student, Ms. Rodenkirch and Ms. Kennedy would be standing behind or next to a seated student. If that student was seated in the second type of chair and leaning forward, there was a tendency for the metal tubes on which the seat rested to come down on a teacher’s foot once the student leaned or sat back in his or her chair. Because it was painful for a chair to come down on her feet, Ms. Kennedy greatly preferred the first type of chair to the second. On September 19, 2013, Ms. Kennedy had recently been in a surfing accident which left one of her feet black and blue. In all likelihood, Ms. Kennedy was particularly concerned that day with the children leaning forward in their chairs. On September 19, 2013, Ms. Rodenkirch was working with a student and was 10 to 14 feet away from Ms. Kennedy. A student, C.J., was leaning forward in his chair, and Ms. Rodenkirch witnessed Ms. Kennedy tip C.J. out of his chair. After getting up from the floor, C.J. sat back down in his chair and appeared to be startled. Ms. Rodenkirch asked Ms. Kennedy if C.J. fell out of his chair, and Ms. Kennedy responded by stating, “With a little help.” Ms. Rodenkirch interpreted that statement as confirmation that Ms. Kennedy intentionally tipped C.J. out of his chair. At a different time on September 19, 2013, Ms. Rodenkirch was again about 10 to 14 feet from Ms. Kennedy when she witnessed Ms. Kennedy tip another student, N.B., out of his chair. As was the case with C.J., N.B. fell to the floor and was startled. Ms. Rodenkirch did not say anything to Ms. Kennedy after witnessing the incident with N.B. However, she was very upset about what she witnessed that day and reported what she saw to Ms. Kavanaugh after the children left school. After hearing Ms. Rodenkirch’s description of what happened in the class earlier that day, Ms. Kavanaugh called her supervisor, the regional superintendant, and requested direction. The regional superintendant, Kelly Coker-Daniels, instructed Ms. Kavanaugh to contact the Department of Children and Families and the local school district’s investigative branch. Both of the aforementioned entities conducted investigations. The local school district concluded that there was “substantial evidence to sustain the charges of exercise of poor judgment and inappropriate physical contact with students against Robin Kennedy for her role in these incidents.” (emphasis in original). Based on the investigation conducted by the Department of Children and Families, the Duval County Public School System: (a) issued a letter of reprimand to Ms. Kennedy; and (b) notified her that, pending approval by the school board, she would be suspended for 15 consecutive working days without pay. Because of the events described above, the parents of C.J. and N.B. requested that their children be transferred to another third-grade class. At least one other student transferred to a different class because she was worried that Ms. Kennedy would pull a chair out from under her. During the final hearing in this matter, Ms. Kennedy denied ever intentionally doing anything that could injure a student. During cross-examination, she responded affirmatively when asked if Ms. Rodenkirch was lying when she testified that she saw Ms. Kennedy tip C.J. and N.B. out of their chairs. However, the undersigned finds that Ms. Rodenkirch was a much more credible and persuasive witness than Ms. Kennedy. Therefore, the undersigned credits Ms. Rodenkirch’s testimony and finds that Ms. Kennedy did tip over the chairs of C.J. and N.B. on September 19, 2013, at Neptune Beach Elementary. Without a doubt, tipping students out of their chairs reduced Ms. Kennedy’s effectiveness as a teacher. That is underscored by the fact that students were transferred to other third-grade classes due to Ms. Kennedy’s actions. Ms. Kennedy’s conduct demonstrates that she failed to make reasonable efforts to protect her students from mental and/or physical harm. While it is very fortunate that none of the students in the class suffered any serious physical injuries, that might not have been the case if a student had hit his or her head on a hard object after being tipped out of his or her chair. Also, it is obvious that tipping a student out of his or her chair could expose that student to unnecessary embarrassment or disparagement. Accordingly, Petitioner has proven by clear and convincing evidence that Ms. Kennedy violated section 1012.795(1)(g) and (j) and rule 6A-10.081(3)(a) and (e).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order suspending Robin Welch-Kennedy’s educator’s certificate for 12 months. DONE AND ENTERED this 5th day of December, 2016, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL 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 5th day of December, 2016.
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.
