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 just cause exists to suspend Respondent without pay for a total of ten days, based on two separate incidents.
Findings Of Fact Mr. Marshall has been a teacher in Broward County for approximately 20 years. At all times pertinent to the instant case, Mr. Marshall was employed as a math teacher at McArthur High School. Prior to working at McArthur High School he had taught math at Hollywood Hills High School, and then at Flanagan High School. During his tenure at Hollywood Hills High School, Mr. Marshall was placed on a Performance Development Plan (PDP), which required Mr. Marshall to remediate and reteach math lessons in an effort to obtain 70 percent comprehension in his classes. During his tenure at Flanagan High School, Mr. Marshall was once again placed on a PDP, which included the same requirements as the previous PDP at Hollywood Hills. Mr. Marshall was next transferred to McArthur High School for the 2007-2008 school year. Because Mr. Marshall had not completed the second PDP while at Flanagan High School, he was placed on a PDP and 90-day probationary period to start his tenure at McArthur High School. He successfully completed the PDP. During the fall of 2010, Mr. Marshall complained about Mr. Jose Gonzalez, the assistant principal who supervised the math department at the time. Mr. Marshall was then permitted to choose which assistant principal would supervise him. He chose Shawn Aycock, who at the time worked as the assistant principal for the language arts department. On November 5, 2010, Ms. Aycock observed Mr. Marshall in his classroom. Ms. Aycock noticed the following deficiencies: Mr. Marshall did not have the students start an activity as soon as the students entered the room, he had the students perform a task that had no educational value and was not tied to the day's activity, he gave inappropriate responses to students' questions, the students were confused with the lesson, he did not provide proper feedback to the students, he did not provide complete answers to student questions, he used vocabulary that was beyond the students' ability, he gave the students a sample problem but did not work through the problem with the students, and he made no attempt to re-teach the lesson or remediate in any way. On November 16, 2012, Ms. Aycock met with Mr. Marshall to discuss the observation. Mr. Marshall was confrontational, denied that the observation of hers was accurate, and accused Ms. Aycock of lying. Ms. Aycock had observed many teachers before she observed Mr. Marshall, but had never seen the need to write up notes after a meeting with a teacher. But after her meeting with Mr. Marshall, she did. Since then, she has not seen the need to write notes arising from a meeting with any other teacher. During the meeting, Mr. Marshall indicated that he would not water down his instruction for any student, and that he would have no problem with observations that were done ethically and did not consist of lies that were made by unqualified individuals. On November 19, 2010, Ms. Aycock provided Mr. Marshall with a memo detailing her concerns and expectations: Concerns: Students were asked upon entering the class to copy the day's objective. Students did not understand all of the math vocabulary used to explain the lesson. A student seeking further explanation on a problem was told,"If you didn't get it not to worry. It will not be on the quiz." Students were referred back to their notes when they questioned the lesson. Only two math problems were worked during a half an hour review. Expectations: All student activities should be of value and tied to the day's activity. Teacher will use math vocabulary consistent with student ability level and explain lessons in multiple ways. Insinuating that lessons are learned only for a test is inappropriate. All student questions will be answered and explained in full. During a review a minimum of five review problems will be worked per concept. Additionally, we discussed the importance of you checking your email. I am directing you to check your email prior to the conclusion of first period and again prior to the conclusion of fourth period. It is important for you to know and understand that these are the same issues that you have had in previous years. Your previous Performance Development Plans (PDPs) have addressed these same concerns. You have received hours upon hours of assistance in these areas. My expectation is that you will follow the directives listed above immediately. If you feel you need assistance, please see me. Next, Ms. Aycock requested that Principal LaPace, who had an extensive math background, observe Mr. Marshall. He did so on January 7, 2011. Mr. LaPace's extensive notes regarding the observation detail Mr. Marshall's failure to have a proper lesson plan, his scattered presentation manner, and his ineffective management of the classroom. Mr. LaPace prepared a memo detailing his concerns and expectations: Concerns: Students were not given clear directions causing confusion among the students. The lesson was not sequential. The objective on the board did not match the lesson being taught. Modeling sample problems were ineffective. Expectations: Always give clear and concise directions to students. Plan and deliver lessons so that are presented in sequential order. The lesson presented in class will align with the objective posted for the day. During a lesson a minimum of three sample problems will be worked per concept. It is important for you to know and understand that these are the same issues that you have had in previous years. Your previous Performance Development Plans (PDPs) have addressed these same concerns. You have received adequate assistance in these areas. My expectation is that you will follow the directives listed above starting immediately. When Mr. LaPace met with Mr. Marshall regarding his observation, Mr. Marshall disagreed with Mr. La Pace's observations, but did not indicate why he did. Mr. Marshall also declined all types of support from other staff members. The administration asked Mr. Marshall to provide documentation of remediation and retesting of students if he had over 35% of his students earning Ds or Fs. The documentation needed to be specific information regarding times that Mr. Marshall sat down with students in small group settings, or phone logs regarding communication with parents, or any type of specific information regarding steps that Mr. Marshall was taking to raise the level of success of his students. Mr. Marshall was never observed remediating or re-teaching, despite the fact that all teachers were asked to allot the final 30 minutes of a class to these activities. On February 17, 2011, Ms. Aycock, Mr. Gonzalez, and Mr. Marshall met for a Pre-Disciplinary Meeting. Mr. Marshall was given a verbal reprimand for insubordination. In the memorandum which documented the verbal reprimand, Ms. Aycock directed Mr. Marshall to: Reduce the number of students in your class receiving D's [sic] and F's [sic] to at or below thirty-five percent through re-teaching and remediating of those students. Check your school email throughout the day, a minimum of twice per day. Follow all directives given by and with proper authority. Failure or refusal to follow the above directives will result in further disciplinary action. On September 20, 2011, Ms. Aycock again met with Mr. Marshall to discuss concerns and expectations, and also to conduct a Pre-Disciplinary Meeting, wherein Mr. Marshall was issued a second verbal reprimand for insubordination. On September 22, 2011, Ms. Aycock wrote a memorandum detailing the conversation during the meeting, and reminding Mr. Marshall that from June 2010 through September 2011, he had attended seven meetings regarding the high percentage of students in his classes that were receiving Ds and Fs. At each meeting, he had been directed to reduce the number of students receiving Ds and Fs to at or below 35 percent, through remediation and re-teaching. Because Mr. Marshall had failed to comply with these directives, and had failed to provide a reason why he should not be disciplined, he was issued the second verbal reprimand. He was also directed to: Reduce the number of students in your class receiving Ds and Fs to at or below thirty-five percent through re-teaching and remediation of those students. Follow all directives given by and with proper authority. Stemming from the same meeting, Ms. Aycock documented her concerns and expectations: Concerns: You are receiving a large number of student and parental complaints in relation to your teaching practices. Students are not being graded in a fair and consistent manner. The department grading policy is not being followed. Meaningful assignments are not being given to students. Students are not receiving corrective and immediate feedback as it relates to their assignments. Expectations: You will model lessons for students. You will differentiate instruction to meet the needs of all the students. You will develop and implement rubrics so students have clear expectations of class participation and effort requirements. All assignments will correlate to the standards as tested by the Geometry EOC. Students will receive corrective feedback within seventy-two hours. It is important for you to know and understand that these are the same issues that you have had in previous years. Your previous Performance Development Plans (PDPs) have addressed these same concerns. You have received adequate assistance in these areas. My expectation is that you will follow the directives listed above starting immediately. Around December 2011, Ms. Aycock was promoted to the position of Principal for a middle school, and Ms. Arnita Williams became Mr. Marshall's supervising Assistant Principal. Ms. Williams and Ms. Aycock once again conducted a classroom observation of Mr. Marshall, and Ms. Williams documented her concerns and expectations as follows: Concerns: Students were not given clear directions causing confusion among the students. The lesson was not sequential. You did not address students' questions and concerns. Modeling sample problems was ineffective. You did not provide and use the correct mathematical vocabulary. Expectations: Always give clear and concise directions to students and check for understanding. Plan and deliver lessons so they are presented in sequential order. Students' questions and concerns need to be addressed. Mathematical vocabulary on student's level should be used. In previous memos additional directives were given. Below were the following expectations: You will develop and implement rubrics so students have clear expectations of class participation and effort. Provide a copy of your participation rubric to Ms. Aycock by the close of business on Friday, September 26, 2011. Differentiate instruction every day the last 30 minutes of class the [sic] meet the needs of ask [sic] your students. Student will receive corrective feedback within seventy-two hours on all graded work. Reduce the number of students receiving Ds and Fs to at or below thirty-five percent through re-teaching and remediation of those students. Daily indicate in your lesson plans interventions and strategies used to differentiate instruction. A minimum of two grades each week must be entered into pinnacle per student. Vocabulary used in class must be consistent with student's ability. Check your school email throughout the day, a minimum of twice daily (before and after school). During a lesson a minimum of three sample problems will be worked per concept. Follow all directives given by and with proper authority. You have been given the above directions numerous times in the past. It is my expectation that all directives will be implemented immediately. On December 12, 2011, Ms. Williams issued a written reprimand for failing to meet the performance standards required of his position as a math teacher. As grounds for the written reprimand, Ms. Williams focused on Mr. Marshall's repeated failure to reduce the number of students receiving Ds and Fs to at or below 35 percent through remediation and re-teaching, and his failure to follow all other directives given by and with proper authority. School administration consistently directed Mr. Marshall to remediate and re-teach daily; he advised the administration that he would do so on one particular day of the week. The administration denied that request. As a result of Mr. Marshall's non-compliance, students were moved from Mr. Marshall's class to other classes, which resulted in a disparate amount of students in other classes. While most math teachers had from 30-35 students in their classes, Mr. Marshall's class was reduced to about 17 students. On January 5, 2012, Ms. Williams conducted a pre-disciplinary meeting with Mr. Marshall, for failure to provide daily re-teaching and remediation for students the last 30 minutes of class, as he had been instructed to do numerous times. He was informed by letter that he was being recommended to the School Board for a three-day suspension. On October 10, 2012, approximately nine weeks into the next school year, Ms. Williams sent Mr. Marshall a memorandum that stated: Due to the large number of complaints, schedule changes, high failure rate and conferences, you are hereby directed to provide the following documentation for each of the 93 students (Juniors) who presently have a grade of F in your class at interims by October 15, 2012. Please provide copies to Ms. Williams and Ms. DiPaolo by 2:45 p.m. Interventions and strategies for each student Parent phone contact log On that same date, Mr. Marshall responded to this request by giving Ms. Williams a document that read as follows: MATHEMATICAL RUBRIC Tests/Quizzes Correct Problems 10pts. Completely Wrong 0pts. Total is 100% Please note that the total number of questions can affect the outcome. Since the reply by Mr. Marshall was completely lacking in usefulness and did not supply the information requested by Ms. Williams, she attempted once again to solicit the proper information from Mr. Marshall by sending an e-mail to him on October 15, 2012, at 6:03 a.m., giving him a second notice that the deadline for production of the requested information was that same day. Mr. Marshall never complied with the directive to provide information on each student who was failing his class. He never asked for more time to collect the information, and despite that fact that he admitted it would have been easy to retrieve his phone log and submit it, he never did so. Ms. Williams met with Mr. Marshall, informing him that he would be recommended to the School Board for a seven-day suspension. The greater weight of the evidence established that Mr. Marshall is guilty of gross insubordination for his conduct before and after July 2012.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Broward County School Board issue a final order suspending Mr. Marshall without pay for a total of ten days, based on his conduct before and after July 2012. DONE AND ENTERED this 28th day of August, 2013, in Tallahassee, Leon County, Florida. S JESSICA E. VARN 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 28th day of August, 2013.
The Issue Whether Respondent violated section 1012.795, Florida Statutes (2015),1/ and implementing administrative rules, as charged in the 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 701877. The certificate covered the areas of elementary education, English for Speakers of Other Languages (ESOL), and world language- Spanish. The certificate was valid through June 30, 2015. Respondent has been a teacher for over 20 years. At all times material to this proceeding, Respondent was employed by the Osceola County School District (OCSD) as a teacher at Michigan Avenue Elementary School (Elementary School). The allegations against Respondent arise from Respondent transporting an Elementary School student home after school one day. Tammy Cope-Otterson is the chief human resource officer for the OCSD. OCSD has a policy that requires school personnel to have approval from the principal before transporting a student. OCSD has a rule that requires written consent from a parent before a student can be transported in a private vehicle. Respondent admitted that he was aware that it was against school district rule to transport students in a personal vehicle without permission from the school district or the student’s parents. During the 2008-2009 school year, K.N. was a student in Respondent’s second-grade class at the Elementary School. While K.N. was in Respondent’s class, M.N. (K.N.’s mother) expressed that she was not fond of Respondent’s teaching methods. During the 2010-2011 school year, K.N. was ten years old and in fourth grade at the Elementary School. Following the completion of the 2010-2011 regular school year, K.N. enrolled in the Elementary School summer enrichment program, called the Spirit Program. Respondent served as a physical education instructor for the Spirit Program. When M.N.’s work hours changed, she and K.N. walked to and from the Elementary School to establish K.N.’s daily route. K.N. was allowed to walk or ride her bike to the Elementary School. M.N and K.N. lived on 10th Street, approximately 15 blocks from the Elementary School. On July 6, 2011, K.N. started to ride her bike to the Elementary School. During the ride, she noticed that a tire was becoming flat. K.N. stopped at a local convenience store and attempted to put air in the tire, to no avail. She walked the rest of the way to the Elementary School, parked her bike in the bike rack, and left a voice message for M.N. that she had arrived at the Elementary School. After the Spirit Program ended for the day on July 6, K.N. left her bike at school and started walking home via the established route. K.N. walked to the corner of Michigan and 10th Street and crossed over Michigan to be on the south side of 10th Street. Because it was a hot day, K.N. rested in some shade, a little south of the corner. Respondent stopped his car close to K.N. Respondent used his authoritative teacher voice and told K.N. to get in the car. K.N. got into Respondent’s car. Respondent admitted that K.N. got into his private car. He then drove a block south on Michigan Avenue, turned west on 11th Street, drove two blocks, turned right on Indiana Avenue, drove two blocks, turned east on 9th Street, drove one block, turned south on Illinois Avenue and stopped at the corner of Illinois Avenue and 10th Street. K.N. got out of Respondent’s car and walked to her home on 10th Street. Respondent testified that he wanted to let K.N. out on her home’s (north) side of the street so she could use the sidewalk to safely get home. There was no sidewalk on the north side of 10th street. K.N. credibly testified that as Respondent was driving her around, he placed his hand on her left thigh and rubbed it. K.N. was “upset,” “very uncomfortable,” and “wanted to crawl out of [her] own skin.” K.N. also credibly testified that Respondent asked if she wanted to go for ice cream, which she declined. Later that same day, Respondent was questioned about whether he had any interaction with K.N. after school on July 6. Initially Respondent denied any interaction with K.N., but later admitted that he had picked K.N. up and taken her home. Respondent did not take K.N. home, but merely dropped her off down the street from her home. Respondent’s selective memory about the events of July 6 lessens his credibility and his testimony is deemed unreliable. Respondent was arrested and criminally charged. While he awaited his court date, OCSD initially suspended and later terminated Respondent’s employment. There was extensive media coverage. Respondent was acquitted or found not guilty in the criminal matters. PRIOR CONDUCT On November 10, 2000, a Final Order was entered by the Education Practices Commission of the State of Florida (EPC) involving Respondent. Respondent was alleged to have allowed an ineligible player to participate in a soccer game. Respondent did not contest the allegations and entered a Settlement Agreement that was accepted by the EPC. Respondent agreed to be reprimanded, placed on probation for one year, refrain from violating any laws, fully comply with all district school board regulations, rules and State Board of Education rule 6B-1.006, pay $150 to defray the costs of his monitoring while on probation, and satisfactorily perform his assigned duties. The allegations in the 2000 matter are not similar to the allegations in the instant case, were resolved in 2000, and Respondent successfully completed his probation.
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 sections 1012.795(1)(g) and (j), and rule 6A-10.081(3)(a), and that he did not violate section 1012.795(1)(d), and rule 6A-10.081(3)(e). It is further RECOMMENDED that the Education Practices Commission suspend Respondent’s educator certificate for five years, followed by five years of probation. The Education Practices Commission shall establish the terms and conditions of Respondent’s suspension and probation, which may include the cost of monitoring the suspension and probation. DONE AND ENTERED this 17th day of December, 2015, 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 17th day of December,2015.
