Findings Of Fact Until his suspension in August 1983, Respondent has been continuously employed by the School Board since August 1983, as a teacher, psychologist, and Assistant Principal. He holds Florida Teacher's Certificate Number 232311 and has been on continuing contract with the School Board. During Respondent's 15 years of employment with the School Board, he was evaluated as average and above average as a teacher, psychologist, and Assistant Principal. He was particularly effective as an assistant principal and in diagnosing learning and behavioral problems experienced by kindergarten and first-grade children. On August 9, 1983, Respondent entered a guilty plea and was therefore convicted in the United States District Court for the Southern District of Florida of one count of conspiracy to transfer firearms in violation of Title 18, United States Code Section 371 because the subject firearms were not registered with the Secretary of the Treasury as required by the applicable federal laws. Respondent was originally sentenced to be confined to a minimum security institution for a period of six months with a subsequent period of two years probation. This sentence was then modified to four months in a community treatment center (halfway house) with a subsequent period of three years probation. Respondent is presently serving his probation period. This conviction forms the sole factual basis for the charges herein by both the School Board and the Department. Because the Specific Notice of Charges and the Administrative Complaint are based upon allegations involving Respondent's immorality, moral turpitude and his effectiveness as a teacher, the circumstances surrounding Respondent's arrest, plea, and conviction are extremely pertinent. Respondent's first involvement with the circumstances leading to his conviction stems from conversations he had with his neighbor Jose Lopez regarding the sale of hand guns. At all times material hereto, Respondent was the holder of a Federal Firearms License. Although Lopez knew that Respondent was a licensed gun dealer, Respondent did not know that Lopez was a paid federal informant. Lopez asked Respondent if Respondent could put him in touch with anyone who would sell unregistered firearms. Respondent knew a gun dealer named Zarraga who had previously introduced Respondent to a man named Navarro who owned a gun shop. Respondent told Lopez about these men and introduced them to each other. Lopez contacted Donald R. Kimbler, a Special Agent for the Bureau of Alcohol Tobacco and Firearms of the United States Treasury Department. Lopez, acting with Kimbler's knowledge, then entered into a deal with Navarro and Zarraga wherein Lopez was to purchase seven Ingram submachine guns and eight silencers. Lopez, Navarro, and Zarraga arranged to deliver the guns and silencers to Respondent's home where they were to be picked up by Lopez. Respondent earned no money from the transaction. He was willing to help Lopez locate the guns because he was under the belief that they were to be sent to Nicaragua to aid in the fight against the Communists in that country. Respondent believed that to be a worthy cause based upon Respondent's personal flight as a young man with his family from Communist Cuba. Respondent believed that the persons offering the guns for sale (Navarro and Zarraga) were the ones who had the responsibility to register them with the federal government. The first time Respondent realized he was involved in a serious crime was when he was confronted by Agent Kimbler at Respondent's school. At that meeting, Respondent cooperated with Kimbler and gave a voluntary statement regarding the transaction under investigation. In a subsequent meeting with Kimbler, Respondent gave another statement which constituted a complete account of the events regarding the sale of guns by Navarro and Zarraga in which Respondent was involved. At the time Respondent gave his cooperation and first statement to Kimbler, he was not under arrest and no arrest of Respondent was contemplated by Kimbler. Respondent's attitude throughout the investigative proceedings was one of total and above excellent cooperation with the authorities. His cooperation was based upon his desire to be honest and do what was right rather than on a desire to "make a deal" with the government. Based upon Respondent's cooperation and subsequent testimony, the federal government was able to indict and convict Zarraga and Navarro. Contrary to Agent Kimbler's recommendation, Respondent was also indicted. Although it is common knowledge that machine guns are used to kill people and silencers are used to muffle the sounds of such a weapon, there was no direct evidence as to what use these guns and silencers were to be put. Petitioner's only witness to testify that Respondent's effectiveness as a teacher has been reduced was Patrick Gray, Jr., the Executive Director for the School Board's Division of Personnel Control. That witness further admitted that he did not recall ever having seen a newspaper article regarding Respondent's arrest or conviction. Two other employees of the School Board who are involved in the actual school setting did not believe Respondent has lost his effectiveless.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is Recommended that Final Orders be entered: In Case No. 83-3017 suspending Respondent from his employment by the School Hoard without pay for a period of three years from the effective date of his suspension, and In Case No. 83-3447 suspending Respondent's Florida Teacher's Certificate for a period of three years from the effective date of his suspension by the School Board. Done and Recommended this 30th day of November 1984, in Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 30th day of November 1984. COPIES FURNISHED: Thomas Robertson, Esquire 3050 Biscayne Boulevard Third Floor Miami, Florida 33137 Wilson Jerry Foster, Esquire Suite 616, Lewis State Bank Building Tallahassee, Florida 32302 Harold M. Braxton, Esquire 45 SW 36 Court Miami, Florida 33135 Dr. Leonard Britton Superintendent School Board of Dade County 1410 NE Second Avenue Miami, Florida 33132 Ralph D. Turlington Commissioner Department of Education The Capitol Tallahassee, Florid 32301 ================================================================= AGENCY FINAL ORDER ================================================================= THE SCHOOL BOARD OF DADE COUNTY, FLORIDA SCHOOL BOARD OF DADE COUNTY, Petitioner. CASE NO. 83-3017 IVAN DANGER, Respondent. /
The Issue Whether Petitioner's actions on December 13, 1994, were in violation of Section 231.17(3)(c)6, Florida Statutes (1997), which requires the holder of a Florida Educator's Certificate to be of good moral character. Whether Petitioner has been guilty of gross immorality or an act involving moral turpitude, in violation of Section 231.28(1)(c), Florida Statutes (1997). Whether the Petitioner committed an act which would authorize the Education Practices Commission to revoke his teaching certificate, pursuant to Section 231.17(10)(a), Florida Statutes (1997).
Findings Of Fact On or about September 9, 1997, Petitioner filed an application for Florida Educator's Certificate. Petitioner taught a drop-out prevention class at Cypress Lake High School in Ft. Myers, Florida, for approximately half of the 1997-98 school year. After the Notice of Reasons was issued in February 1998, Petitioner continued to work at Cypress Lake High School. He was transferred to a non-instructional position in the in-school suspension program, where he worked for the remainder of the 1997-98 school year. Petitioner returned to that position for the 1998-99 school year. Both before and after the Notice of Reasons was issued, Petitioner worked as a coach for football and baseball at Cypress Lake High School during the 1997-98 school year, and during the 1998-99 school year. Petitioner has a Bachelors of Arts Degree in English Education from Wright State University in Ohio. He completed the Beginning Teacher Program in Florida while working at Cypress Lake High School. All other requirements for certification have been completed by the Petitioner. After Petitioner applied for his Florida Teachers' Certificate, he was informed by Respondent's investigators that he needed to provide additional information regarding an arrest that had occurred in Key West, Florida, in 1994. Petitioner provided the Respondent's investigators with a letter explaining that he was arrested in Key West on a domestic battery charge involving his girlfriend at that time, Dory Catahan. Petitioner entered into a Pre-trial Intervention agreement with the local State Attorney's office. At the end of his probation term, on or about November 30, 1995, the State Attorney filed a Nolle Prosse dismissing the charges against him. Petitioner has not been convicted of a crime or had adjudication withheld in any jurisdiction in the United States. On or about December 13, 1994, Petitioner came home from work to the apartment he shared with his live-in girlfriend, Catahan. Catahan was angry at Petitioner because a young lady, whose name was either Stephanie or Carolyn, had called the apartment looking for him. Catahan was jealous, and she began yelling and screaming at Petitioner, accusing him of cheating on her. Petitioner tried to ignore her to get her to calm down, but instead Catahan became more enraged, and began pushing and hitting Petitioner. She tried to kick him in the groin area, and he took steps to hold her back, in an attempt to protect himself from being hurt by her attack. One of the steps Petitioner took to protect himself was to hold her arm and try to keep her from kicking him. He also had one hand on her neck area to hold her off as she repeatedly tried to kick him in the groin. On one of her kicks, he caught her foot, and told her, "Stop this or I'll break your damn ankle." Petitioner used that threat to try to get her to stop kicking before she hurt him. He did not do any harm or damage to her ankle, letting go after holding on to it for a minute or so. Catahan became even angrier when he pinned her against the wall to stop her attacks. Petitioner was still trying to get her to calm down. She finally said she was going to call the police. Petitioner dialed the police for her. When the police arrived, Petitioner was arrested and charged with Domestic Battery against Catahan. He spent the night of December 13, 1994, in jail, and was released the following day. Subsequently, Petitioner moved out of the couple's apartment for a few weeks. After a few weeks apart, Petitioner and Catahan resumed their relationship without further incident, until they broke up when he left Key West and moved back to Ohio in 1996. Petitioner felt responsible for Catahan becoming angry at him because he knew she was a jealous and possessive woman. He felt he should not have been trying to "cheat" on her. When he went to court Petitioner was assigned a public defender. His attorney advised him that the State's Attorney was willing to offer him a Pre-Trial Intervention as a disposition of his case, if he was willing to undergo a period of probation, community service, and attend an anger management class. Petitioner accepted the Pre-trial Intervention because he was informed that he would not have any permanent record and would not go to jail. Petitioner's testimony relating to the incident on December 13, 1994, is credible. No witness testified contrary to the version of the events provided by the Petitioner. The evidence failed to prove Petitioner battered his girlfriend or make any threat to do bodily harm to her in an offensive or aggressive way on December 13, 1994. The only touching or threats made by Petitioner to the shoulders and neck of Catahan were defensive in nature, and designed to prevent his girlfriend from harming him. Back in Ohio, Petitioner was a substitute for a short period of time. He then moved to Ft. Myers, Florida, in June of 1997. In August of 1997, Petitioner was hired as a teacher and coach at Cypress Lake High School, in Ft. Myers, Florida. Petitioner had been pursuing a career in teaching since his graduation from college, with a degree in English Education. In fact, when he moved to Key West in 1994, he was trying to find work as a teacher, but the job market was very difficult in Monroe County, and he ended up working in a marina. Petitioner is dedicated to teaching. He wants to make it his career. Petitioner cares about children; he feels he can make a difference. He believes he is a good teacher. His co-workers and peers at Cypress Lake High School have given positive references and reported that Petitioner is a good teacher, with a good demeanor with children, including those students who have difficult discipline problems at school. Two vice-principals at Cypress Lake High School were very supportive of Petitioner. They had positive recommendations about his character, his teaching skills and aptitude, as well as his demeanor around children. Petitioner has been recommended for a permanent teaching position at Cypress Lake. Through the efforts of persons in the administration, Petitioner has stayed on at Cypress Lake in the non-instructional position in the In- School Suspension program. David LaRosa is the Athletic Director at Cypress Lake High School. He hired Petitioner as a football and baseball coach. LaRosa was also the teacher whose class Petitioner took over during the 1997-98 school year. In his dealings with Petitioner, he found him to be very competent, and trustworthy with freshman football players. They are a very special group of athletes which require coaches with special abilities. In spite of his knowledge about Petitioner's arrest in Key West, LaRosa had no misgivings whatsoever about Petitioner's character and abilities as a teacher and coach. Rose Marie Bobbs is a parent of a student that was on Petitioner's football team. She is also an employee at Cypress Lake High School. She was active in the booster program at Cypress Lake and was very comfortable and satisfied with Petitioner's work as a football coach of her child. She had no qualms about having her children in Petitioner's classes or athletic teams. Michael Cooper, a Sergeant with the Sanibel Police Department, with 14 years experience in law enforcement, has known Petitioner since they were coaches together for the Cypress Lake High School freshman football team during the 1997-98 school year. Through his dealings with Petitioner, he found him to be a very honest person, and one who was very caring for his students. Petitioner did not engage in any acts of moral turpitude that should prevent him from teaching in the State of Florida. Petitioner did not engage in any acts that would justify or authorize the Commissioner to deny his teaching certificate. Petitioner is competent and morally fit to teach students in the State of Florida.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered by the Education Practices Commission granting the Petitioner a Florida Teacher's Certificate. DONE AND ENTERED this 23rd day of October, 1998, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of October, 1998. COPIES FURNISHED: David Brooks Kundin, Esquire 906 Thomasville Road Tallahassee, Florida 32302 Charles T. Whitelock, Esquire Whitelock and Williams, P.A. 300 Southeast Thirteenth Street Ft. Lauderdale, Florida 33316 Kathleen Richards, Executive Director Professional Practices Services Department of Education 224-E Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Jerry W. Whitmore, Program Director Professional Practices Services Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400 Michael H. Olenick, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400
The Issue The issue in this case is whether to impose sanctions against Respondent, Brooke Braly, up to, and including, revocation of her Educator’s Certificate.
Findings Of Fact The Commissioner is responsible for monitoring each person who holds a Florida Educator Certificate and who is working in any school district within the State. Part and parcel of the Commissioner’s duties is the determination of whether any teacher violated any of the Principles of Professional Conduct for the Education Profession. At all times relevant hereto, Ms. Braly held Florida Educator Certificate No. 1106771, covering the areas of elementary education and English for speakers of other languages. The certificate is valid through June 30, 2021. Ms. Braly is employed as a teacher in the Volusia County School System, teaching at the School in the area of Modified ESE with Varying Exceptionalities. Her students were those with physical and/or mental disabilities which resulted in learning difficulties. Ms. Braly had served in that position for seven years as of the date of final hearing, including the 2017-2018 school year. An incident occurred at the School on December 5, 2016, i.e., the 2016-2017 school year, involving the Student. Based on that incident, the Commissioner issued an Administrative Complaint on November 21, 2017 (some 10 months later), which contained the following allegations: On or about December 5, 2017, [Ms. Braly] failed to notify school administrators after she confiscated a BB gun from a student at the beginning of the school day. [Ms. Braly] also failed to properly secure the BB gun to prevent the student from regaining possession of it while still on school property. The Salient Facts From the evidence presented, it is clear that on December 5, 2016, the Student approached Ms. Braly at the beginning of the school day. The Student told Ms. Braly that he had inadvertently failed to remove his BB/airsoft pistol from his backpack before leaving for school that morning. He asked her what he should do, and Ms. Braly took the gun from him to secure it for the day. At no time was she worried that the Student had intentions of using the BB gun or that it was a serious problem. In fact, Ms. Braly did not even believe it was a BB gun, but thought it was a plastic toy gun. At the end of the day, the Student took the gun home with him. As the Student was exiting the school bus at his stop that afternoon, another student sitting on the bus saw the BB gun, which the Student had stuck into his waistband under his shirt. The Student’s shirt was lifted for some reason and the other student spotted the gun. That student went home and immediately sent an email to several School administrators to report what he had seen. The administrators reviewed surveillance videos from the bus and identified the Student as the person carrying the gun. An investigation ensued and the Administrative Complaint was filed. The less clear and/or less persuasive “facts” of this case are set forth below. The Gun The Commissioner presented a picture of a BB gun at final hearing which was purported to be the same gun Ms. Braly had confiscated from the Student on December 5, 2016. The black and white picture shows a replica Smith & Wesson handgun of small to average size. Ms. Braly says that the gun depicted in the picture is not the gun she took from the Student. The Student’s father brought a handgun to final hearing that he said was the gun at issue. It was plastic, lightweight, and tan and black in color. There was a clip (presumably for holding BBs) that could slide into the handle of the gun. The father demonstrated how to insert the clip and how to “cock” the gun by sliding back the top portion. That action would engage a spring that would release once the trigger was pulled, i.e., it was a spring-fired pistol, not a recoil action weapon. According to the Student, the gun fired plastic pellets rather than BBs. Ms. Braly, who only saw the gun for a few moments on the morning of December 5, 2016, remembers it to be black with an orange tip, unlike the gun produced at final hearing. At some point, the Student was asked to identify the gun from a picture depicting several different handguns. The Student pointed out to an investigator which of the depicted guns looked most like his BB pistol. The photographic line-up was not offered or admitted into evidence, so no finding is made as to what it may have shown, vis-à-vis what the gun looked like. At the final hearing, the Student’s father acknowledged that he had previously told School administrators he had destroyed his son’s gun back in December when the event occurred. The gun he produced at final hearing was obviously not destroyed; in fact, it looked very new and barely used. The Student said the gun produced at hearing was the same gun he gave to Ms. Braly on December 5, 2016. Mr. Starin, an investigator for the Volusia County School District, was tasked with looking into the incident. He did not speak to the Student’s parents nor did he attempt to locate the gun (other than having the Student identify what the gun looked like from the pictorial lineup). The most persuasive evidence is that the gun given to Ms. Braly on December 5, 2016, was the same as or similar to the one depicted in the Commissioner’s exhibit and proffered at final hearing. It was very light and obviously a toy, but was designed to resemble a real gun. Though it looked somewhat like a real weapon from afar, it is hard to believe anyone who held the gun or saw it up close would think it real or capable of causing serious harm to a person. December 5, 2016 As the Student was walking to his bus stop, he told his sister he had forgotten to remove the BB gun from his backpack after carrying it with him to the park the night before. His sister advised the Student to give the gun to his teacher so as not to get in trouble at school. Upon arrival at the School, the Student immediately approached Ms. Braly, who he trusted and believed would help him do what was most appropriate in this situation. When no other students were nearby, the Student told her about the gun. Ms. Braly took the gun and placed it in her office in a desk drawer. The Student remembers her placing the gun in a cardboard soda can box. Ms. Braly remembers just placing it in a desk drawer. It is patently obvious by his actions that the Student had no intentions of displaying the gun at school for any purpose. He very intentionally tried to diffuse any danger or unease that might have arisen due to his mistake. Ms. Braly took the Student’s actions and demeanor into account when deciding what to do. Ms. Braly thought the toy gun would be safe in her locked office as that was where she kept her purse and car keys during the school day. Normally no one had access to the office during the day, except that construction was going on and some of the workers did have access to the office. Ms. Braly did not consider those workers a threat to steal anything or to rifle through her desk during the day. She also did not consider the toy gun worthy of anyone’s interest. She believed her response to the situation was reasonable, based on all the circumstances and her knowledge of the Student. At the end of the day, the Student retrieved the gun. How that occurred is not entirely clear from the evidence. The Student says that he asked Ms. Braly at the end of the day if he could get his gun. She was very busy at the time and just told him, “yes,” so he went into the office and retrieved it. He remembers Ms. Braly telling him to put it in his backpack so that no one else would see it. He did so, but then transferred it to his waistband later. An ESE co-teacher with Ms. Braly remembers Ms. Braly being completely absorbed in the preparation of an Individual Education Plan for another student that afternoon. The co-teacher had instructed students not to bother Ms. Braly and does not remember the Student or anyone else talking to Ms. Braly that afternoon. Ms. Braly does not remember being asked by the Student whether he could get his gun from the office. She simply did not even think about the gun after acquiring it that morning. To her, the gun was a toy and did not warrant much attention. Sometime the next day, she realized the gun was gone and surmised that the construction workers must have left the door open so that the Student was able to get his gun. She did not explain why she thought the Student – rather than the workers – had taken the gun from her office. At any rate, the Student retrieved his gun before he left for home. As he was exiting the school bus, the other student noticed the gun in his waistband and notified School administrators. That action is very understandable considering the school shootings across the nation in recent times. December 6, 2016 Once the school administrators got word about the gun and identified the Student, they contacted Ms. Braly. The School resource officer, Deputy Abato, went to Ms. Braly’s class and asked to talk to her. They went into her office, away from the students, and she was asked about the gun. The conversation lasted only a few moments. Deputy Abato was only concerned with whether the gun was real or not. Convinced it was not, he did not pursue the matter. Later, Ms. Braly was asked by assistant principal Feltner to write a statement concerning the incident. Her statement reiterated what had happened, i.e., the Student showed her the gun, she identified it as a toy and placed it in her office, and the Student later retrieved it. Again, how she knew that the Student retrieved the gun rather than someone else getting it is not clear. Deputy Abato’s statement from that same day mirrored Ms. Braly’s statement. Deputy Abato said that if a student pulled a gun on him that looked like the one in the picture offered into evidence, he would order the student to put the gun down. If they did not do so, he would likely shoot them. Whether the gun the Student had was like the picture is not clearly established in the record. The best evidence is that the gun could have looked like that, but even that evidence is neither clear nor convincing. The gist of the Commissioner’s argument in this case is that: IF an armed deputy saw the Student with the gun, and IF the deputy ordered him to put it down, BUT the student did not immediately comply, THEN the deputy MIGHT be inclined to fire on the student. Though completely plausible in general terms, that eventuality seems very unlikely under the facts of this case. Later Developments On December 15, 2016, Investigator Starin issued an “Investigative Summary” describing his findings after conducting a brief investigation. The report did little more than recite what other people had said. Mr. Starin concluded that the Student brought the gun to school, gave it to his teacher, and retrieved it at the end of the day. The summary provides little substantive information and makes no recommendation or assertion of wrongdoing by Ms. Braly. The investigator only talked to three people as part of his minimal investigation into the incident on December 5, 2016: Ms. Braly; Deputy Abato, who had only secondhand knowledge; and the Student. It is remarkable that Mr. Starin did not interview Ms. Braly’s co-teacher or her paraprofessional, both of whom were in the classroom that day, or the Student’s parents. The overall level of the investigation is consistent with the degree of seriousness of the events. That is, there was a slight breach of protocol, but no probability of harm to the Student or others at the School. The Board decided that the incident nonetheless warranted some discipline. The School Board notified Ms. Braly that a letter of reprimand would be issued and she would be suspended for three days without pay. Although this was a fairly low level of discipline, Ms. Braly has challenged it; the matter is currently in arbitration. Notwithstanding the discipline imposed, the Board has re-hired Ms. Braly for the 2018-2019 school year in the same position she has held for the past seven years. In fact, she has continued teaching at the School since the December 5, 2016, incident. She is an effective teacher and has not had any other disciplinary actions against her, and the School recognizes her as an effective ESE teacher. The Commissioner also seeks to discipline Ms. Braly, noting that she failed to report the incident and did not adequately secure the toy gun. Both of these allegations are true, whether they violate any particular policy or not. The Commissioner proposes a letter of reprimand, suspension of Ms. Braly’s Educator Certificate for six months, and two years of probation. However, based on the best evidence available, Ms. Braly’s conduct was both reasonable and essentially benign. If any sanction against Ms. Braly was warranted, it should be minimal at worst.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Pam Stewart, as Commissioner of Education, dismissing the Administrative Complaint filed against Respondent, Brooke Braly, in its entirety. DONE AND ENTERED this 22nd day of August, 2018, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 22nd day of August, 2018. COPIES FURNISHED: Gretchen Kelley Brantley, Executive Director Education Practices Commission Department of Education Turlington Building, Suite 316 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Branden M. Vicari, Esquire Herdman & Sakellarides, P.A. Suite 110 29605 U.S. Highway 19 North Clearwater, Florida 33761 (eServed) Ron Weaver, Esquire Post Office Box 770088 Ocala, Florida 34477-0088 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Marian Lambeth, Bureau Chief Bureau of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
The Issue Whether Respondent violated section 1012.795(1)(g) and (j), Florida Statutes (2015),1/ or Florida Administrative Code Rule 6A-10.081(3)(a), (e), or (i),2/ as charged in the Amended Administrative Complaint, and, if so, what is the appropriate sanction.
Findings Of Fact Petitioner is responsible for the investigation and prosecution of complaints against holders of Florida Educator Certificates who are accused of violating section 1012.795 and related rules. At all times material to the allegations in this case Respondent held Florida Educator’s Certificate 1023593. The certificate covers the area of chemistry, and is valid through June 30, 2019. Respondent became a full-time high school teacher in the Seminole County School District (SCSD) during the 2006-2007 school year. At all times material to the allegations, Respondent was employed by the SCSD as a teacher at Seminole High School (High School). In or around October 2013, Respondent was asked if she would be interested in working with the Hospital Homebound program (HH).6/ The HH offered to compensate Respondent for the time she spent assisting students. Respondent agreed to be involved with the HH. Respondent was assigned to tutor C.P. During the 2013-2014 school year, C.P. attended the High School, and was a student in one of Respondent’s classes. C.P. candidly testified that he had scoliosis.7/ In late November 2013, C.P. had surgery to correct his spine. The surgery included placing rods in his back to straighten it. In early December 2013, Respondent went to C.P.’s home to begin the tutoring. On her initial visit to C.P.’s home, she brought C.P. a Slurpee, and found him resting in his bed. C.P. understood that Respondent was to help him keep current in all of his classes. C.P. did not show Respondent his back and did not tell Respondent that he had rods or wires in his back. C.P. did not discuss with Respondent a need for food or that he needed a new mattress. A short time later, Respondent left C.P.’s residence, and later returned with fried chicken, books, Cheez-it crackers, and a poinsettia flower. Respondent went to Principal Collins and expressed concerns about C.P.’s health and his family’s financial situation. Respondent opined that C.P.’s family was “poor.” Respondent told Principal Collins she had taken food and other items to the family. Respondent also told Principal Collins there were wires coming out of C.P.’s back and thought a better mattress would help C.P. Respondent wanted to know if the school could help the family. Principal Collins appreciated the concern Respondent had for C.P.’s circumstances, but it was not something the High School could provide. Ms. Guy works in the front office of the High School. Respondent told Ms. Guy there was no food in C.P.’s home. Ms. Guy did not inquire about C.P., and did not know why Respondent discussed private student information with her. D.D. was in Respondent’s sixth-period class at the High School during the 2013-2014 school year. D.D. credibly testified that Respondent spoke of a student whom she was tutoring. Respondent told the class that the student was ill, could not walk and did not have any food in the home, so she brought chicken to the family. D.D. heard that Respondent spent $40 on C.P.’s family. Respondent later stated C.P.’s name to the students. C.M. was in Respondent’s first-period class at the High School during the 2013-2014 school year. C.M. is not one of C.P.’s “immediate friends” and had no knowledge of C.P.’s surgery before Respondent spoke of it. C.M. credibly testified that Respondent told students that C.P. did not look well, and she could see wires on C.P.’s back. M.R. was in one of Respondent’s classes at the High School during the 2013-2014 school year. M.R. credibly testified that while other students were in the classroom, Respondent told the students that C.P.’s family did not have food, and he was too weak to get out of his bed. M.R. testified that she, E.B., C.P., Student J, and Student C were friends. M.R. also testified that C.P. shared with his friends about his upcoming back surgery. E.B. was in Respondent’s sixth-period class at the High School during the 2013-2014 school year. E.B. credibly testified that Respondent told the class about C.P.’s physical condition. E.B. acknowledged that he and C.P. were friends, almost like brothers. After Respondent made the statements in class concerning C.P., E.B. immediately texted C.P. regarding her comments. Following Respondent’s comments in class, E.B. had other students coming to him, inquiring about C.P.’s well- being. When C.P. heard what Respondent had said in her classes, C.P. was “saddened, a little bit angry and upset.” C.P. then texted his mother at work, who became upset upon hearing what information was shared about her son. Ms. C.P. is a single working mom. The family lives in a four-bedroom, two-bath, and two-living room house. Ms. C.P. has paid the mortgage on the house for over 20 years. Ms. C.P. took time off from work to go to the High School. Initially Ms. C.P. spoke with Ms. Guy and expressed her rage at the private information shared about her son. Ms. C.P. spoke with an assistant principal about what Respondent had said in her classes. Ms. C.P. and C.P. went to the High School after C.P. heard more of what Respondent had said about C.P. Prior to going to the High School, Ms. C.P. went to the bank, withdrew $40 and gave it to C.P., so he, in turn, could give the money to Respondent. While on the High School campus, C.P. went to Respondent’s classroom, and gave the $40 to Respondent. C.P. wanted to give Respondent the $40 as he did not want to be portrayed as poor. C.P. credibly testified that “I’m not poor in my eyes so I felt it was necessary to reimburse her [Respondent] for what she claimed that she spent in food for me.” As part of an investigation into the allegations made by Ms. C.P. and C.P., Principal Collins invited students from Respondent’s classes to provide statements regarding any comments made by Respondent about C.P. The statements, written by individual students who testified at the hearing, and which were ratified as true when written, demonstrated that Respondent had specifically referenced C.P., his medical condition, Respondent’s thoughts that C.P. was poor, and that Respondent had brought food and a flower to him. During the 2013-2014 school year, Mr. Bevan served as an Assistant Principal (AP) at the High School. Following reports of confidential student information being shared with other students, AP Bevan interviewed several students. He then attempted to provide Respondent with an opportunity to discuss the circumstances from her perspective. Respondent became somewhat distraught and AP Bevan offered to obtain coverage for her class. Respondent calmed down and declined the offer of coverage. Respondent left AP Bevan’s office and went to the media center where her class was to meet. Respondent did not stay with the class, but instead left the campus. Following the investigation, Principal Collins determined there were inappropriate confidential matters about C.P. shared with other students and staff. As a result, on December 18, 2013, Principal Collins issued a letter of reprimand to Respondent. The Superintendent recommended and the SCSB approved a two-day suspension as a result of Respondent’s conduct. Respondent was on medical leave beginning on January 7, 2014, through March 10, 2014. Respondent served the suspension on April 15 and April 22, 2014. Respondent’s disciplinary history also includes an October 25, 2013, letter of reprimand for using profanity with a student.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding that Respondent violated section 1012.795(1)(g) and (j), and rule 6A-10.081(3)(a), (e), and (i). It is further RECOMMENDED that the Education Practices Commission place Respondent’s educator certificate on probation for two years. The Education Practices Commission shall establish the terms and conditions of Respondent’s suspension and probation, which may include the cost of monitoring the probation. DONE AND ENTERED this 13th day of May, 2016, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 May, 2016.
The Issue The issue for determination is whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, what action should be taken.
Findings Of Fact Respondent holds Florida Educator's Certificate No. 697227. The Certificate covers the areas of Social Science and Educational Leadership and was valid through June 30, 1999.2 At all times material hereto, Respondent was employed by Petitioner as an Assistant Principal at Crystal Lake Middle School (Crystal Lake).3 Respondent was employed at Crystal Lake pursuant to an annual contract. On or about January 3, 1999, Respondent arranged for someone other than himself to take the Florida Department of Education's Florida Educational Leadership Examination (FELE) and for that person to submit the answers to the FELE as if Respondent wrote them. Respondent engaged in a fraudulent scheme to receive a passing score on the FELE in order to receive a Florida Educator's Certificate for which he did not qualify.4 The fraudulent conduct was discovered. The Florida Department of Education invalidated all scores assigned to Respondent and, therefore, no score was assigned to Respondent for the FELE. Respondent was not issued a certificate. Prior to January 3, 1999, Respondent had taken the FELE approximately 10 or 12 times without receiving a passing score. If he had not received a passing score on the FELE in January, Respondent would have lost his Certificate and would have been ineligible to remain an assistant principal. He "panicked" and obtained the services of the individual to take the FELE for him. The local community became aware of Respondent's incident. The local news media printed articles regarding the incident. Petitioner received three or four telephone calls from concerned parents regarding the image that was being portrayed to students if Respondent was not punished. Respondent subsequently hired tutors, took the FELE, and received a passing score. He was issued a certificate which expires June 30, 2004. The EPC filed an administrative complaint against Respondent for the misconduct. Respondent did not contest the allegations of fact and requested an informal hearing. The EPC issued a Final Order on April 17, 2001, imposing the following penalty: a reprimand; suspension of Respondent's certificate from the end of Petitioner's 2000-2001 school year to the day before the beginning of Petitioner's 2001-2002 school year; and probation, with conditions, for three employment years upon obtaining employment which required a certificate. Having been notified by EPC regarding Respondent's conduct as to the FELE, Petitioner launched an investigation. As part of the investigation, Respondent was notified by Petitioner's Executive Director of Professional Standards and Special Investigative Unit that he was required to provide a statement to Petitioner's Investigative Unit and Respondent was given a date and time certain to provide an oral statement. Respondent was represented by counsel and several meetings for Respondent to provide the oral statement were scheduled to accommodate Respondent's counsel. Respondent failed to provide an oral statement due to the inability of his then counsel to attend the meetings. Respondent was also provided an opportunity to provide a written statement but Respondent's then counsel was unable to advise Respondent on the statement due to trial commitments. Respondent failed to provide a written statement. It is not disputed that Respondent was required to provide a statement, which is considered a direct order. Furthermore, it is not disputed that the direct order was reasonable and that it was given by and with proper authority. However, it is reasonable for Respondent to follow the advice of his lawyer and to not provide an oral statement without the presence of his lawyer. Likewise, it is reasonable for Respondent to not act on submitting a written statement without his counsel advising him on the written statement. Respondent's failure to provide the oral or written statement was justifiably excused. Respondent was also provided an opportunity to attend a pre-disciplinary meeting on two or three different occasions. Respondent failed to attend the pre-disciplinary meetings due to the inability of his then counsel to attend. Respondent obtained new counsel and provided a statement to Petitioner, albeit during discovery in the instant case. Petitioner suspended Respondent, without pay, beginning March 20, 2001 and ending June 30, 2001. Respondent's annual contract was not renewed by Petitioner for the 2001-2002 school year.5 Petitioner seeks termination of Respondent's 1999-2000 annual contract. Respondent is a highly regarded educator and several character witnesses testified on his behalf. Each witness was aware of Respondent's conduct regarding the FELE. Respondent began his teaching career in 1992 in Tallahassee, Florida, at Fairview Middle School. He was promoted in 1994 to the position of Dean at Fairview Middle School. In 1995, Respondent was hired as assistant principal by John Civettini who was the principal at Crystal Lake. Respondent was recommended to Mr. Civettini by Petitioner's former Superintendent of Schools and Respondent was recommended to the former Superintendent by Florida's then Governor Lawton Chiles. Crystal Lake had serious disciplinary problems and was in a "disruptive chaotic" state. Within two months of Respondent's arrival at Crystal Lake, he had implemented a program that had changed Crystal Lake for the better. Mr. Civettini retired in the third year of Respondent's tenure at Crystal Lake but Respondent's program continued under the new principal and Crystal Lake became one of the top middle schools in Broward County. Respondent had done an "excellent" job at Crystal Lake with the school children and had the admiration of the parents. Mr. Civettini would again hire Respondent without reservation even knowing the circumstances of the conduct with which Respondent is charged. Furthermore, Mr. Civettini is not against punishing Respondent for his conduct but he believes that termination of Respondent's annual contract is too severe. If Respondent is terminated by Petitioner, according to Mr. Civettini, Respondent will not be hired by another school district. Respondent's Associate Superintendent, Everette Abney, Sr., Ph.D., has "a great deal of admiration" for what Respondent accomplished at Crystal Lake. Respondent made a "difference in the lives" of the children at Crystal Lake. Dr. Abney would welcome the return of Respondent to Petitioner's employ and would return Respondent to working with children. Dr. Abney does not view the conduct with which Respondent is charged as lessening Respondent's effectiveness with the children. Dr. Abney is aware of principals and other assistant principals who had engaged in more serious misconduct but who were not terminated by Petitioner. However, he was not able to give specifics regarding the incidents. Respondent worked with a South Florida Pizza Hut franchise owner, Alfredo Salas, in helping minority children. Mr. Salas has great respect for the way Respondent worked with and mentored the children. Mr. Salas has no hesitation in supporting the return of Respondent to Petitioner's employ and would continue to work with Respondent with children. Petitioner has imposed less severe punishment for conduct committed which was equally or more serious. One principal was arrested in the year 2000 for marijuana possession in a foreign state while on a recruiting trip for Petitioner. The incident received local publicity. Petitioner removed the principal from his position, re-assigned him to administrative procedures from August 31, 2000 to August 21, 2001, and, after the re-assignment, imposed a three-month suspension, without pay, and a reduction to an annual contract. In another incident, a principal solicited business at her school in order for her father to become a vendor at her school. Her conduct was determined to be a conflict of interest.6 Petitioner suspended the principal for two weeks. Also, the EPC reprimanded her and placed her on probation for one year; and Florida's Ethics Commission reprimanded her and imposed a $500 fine. Taking into consideration the totality of the circumstances presented, the punishment sought by Petitioner, termination of employment, is too severe.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Broward County School Board enter a final order: Sustaining the suspension, without pay, of Oscar Harris, Jr., beginning March 20, 2001 and ending June 30, 2001. Imposing other terms and conditions deemed appropriate. Not terminating the annual contract of Oscar Harris, Jr. for the 1999-2000 school year. DONE AND ENTERED this 31st day of October, 2001, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 31st day of October, 2001.
