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.
The Issue Whether just cause exists for Petitioner to suspend without pay and terminate Respondent's employment.
Findings Of Fact Background The School Board is a duly-constituted school board charged with the duty to operate, control, and supervise the public schools within Miami-Dade County, Florida. Respondent began working for the School Board in August 2001. At all times material to this case, Respondent has been employed as a special education teacher at Homestead Senior High School, a public school in Miami-Dade County, Florida. Respondent teaches students with autism spectrum disorder. At all times material to this case, Respondent's employment with the School Board has been governed by Florida law, the School Board's policies, and the collective bargaining agreement ("CBA") between the School Board and the United Teachers of Dade ("UTD"). The Florida Alternative Assessment The School Board's first allegation against Respondent involves the Florida Alternative Assessment ("FAA"). The School Board alleges that Respondent is subject to suspension and termination because of "testing [ir]regularities involving Respondent and the Florida Alternative Assessment." As factual support of this contention, the School Board alleges in paragraph 11 of the Amended Notice of Specific Charges that "Respondent did not follow proper testing procedures since the testing booklets were submitted in blank." The FAA is the standardized test given to students with very significant cognitive disabilities, who are incapable of taking the "FCAT" standardized test or the Florida standards testing given by the school to regular education students. The scoring on the FAA is very different from traditional standardized tests. The test is divided into 20 items. Within each item, there are three separate questions. Depending on the students' performance, they may not be exposed to all of the questions. Whether or not a student has access to all three of the questions within an item depends upon whether the student correctly answers the previous question. For example, if a student correctly answers question one of item one, that student would then proceed to question two of item one. If the student answers question two correctly, the student would then proceed to question three of item one. The FAA can be administered over a number of days or weeks. The test must be completed, however, within a five-week testing period. In administering the test to students, the questions on the FAA are verbally read by the teacher to the student. The teacher gives a verbal prompt, and the student verbally responds with an answer. There is one correct answer out of three possible responses. After a student provides the teacher with a verbal answer to the question, the teacher should mark the student's answer in the test booklet. The student does not mark in the test booklet. Outside of the testing situation, the teacher should then transfer the scores from the test booklet into a separate student answer sheet, which is a "bubble sheet." Although a teacher's marking of students' answers to the questions on the test booklet is recommended, it is not mandatory. No test booklets involving Respondent's administration of the FAA to his students were offered into evidence. The evidence adduced at hearing does not establish that Respondent engaged in testing irregularities by submitting FAA test booklets in blank. In sum, the evidence at hearing fails to show that Respondent's conduct with regard to the submission of FAA test booklets constitutes misconduct in office, gross insubordination, or a violation of School Board policies. At hearing, the School Board did not argue that Respondent committed testing irregularities by submitting test booklets in blank. Rather, the School Board argued that Respondent committed testing irregularities because some students had identical responses to questions on the "bubble sheets." Despite the discussion at the hearing regarding the purported identical answers of some students on the "bubble sheets," that factual contention was not pled as a basis for Respondent's suspension and termination, and the School Board never sought to amend its Amended Notice of Specific Charges to assert this factual contention. Allegations Involving P.Z. The School Board alleges in paragraph 14 of the Amended Notice of Specific Charges that Respondent is subject to suspension and termination because he "held a student with his arm behind his back and allowed other students to hit him." At hearing, Respondent denied the allegation. At hearing, the School Board presented the testimony of P.Z., the alleged student victim. Without objection, P.Z. was accompanied by his mother at the hearing. P.Z. was a 10th-grade special education student in Respondent's class on the date of the alleged incident. P.Z. is a 15-year-old student with autism spectrum disorder. P.Z. has cognitive impairments which impact his ability to comprehend events and communicate with others. At hearing, the following exchange between the undersigned and P.Z. occurred after P.Z. was placed under oath by the court reporter at the hearing: THE ADMINISTRATIVE LAW JUDGE: Do you understand the difference between telling the truth and what would be considered a lie? Do you understand the difference? THE WITNESS: Sometimes I can't tell what the difference is of the truth or a lie. At hearing, counsel for the School Board asked questions of P.Z. with regard to the alleged incident, as follows: Q: P., I'm going to ask you about something that happened at the beginning of this school year. Do you remember getting into trouble with Mr. Adams. A: Yeah, kind of. Q: Can you tell me--do you remember why you got into trouble with Mr. Adams? A: Yeah. It was for many reasons. Well, the last time, the last one, was when he twisted my arm on my back like a military guy, and let everyone hit me to this shoulder where I hit the student. Sometimes he--and not only me, it's other kids who do that, twisting my arm on the military thing. And when the misbehaved student cries, Mr. Adams and Ms. Poser just laugh. Q: And that happened to you because you got into trouble for hitting another kid? A: Yeah, I got in trouble for many different reasons sometimes. Q: But that last time was because you had hit another student? A: Yes. MS. MARKEN: Your Honor, if I could have one moment. Judge, I don't have any other questions. On cross-examination, P.Z. testified, however, as follows: Q: I do lead you to the bathroom or accompany you. But P., let me ask you, when I told you to come apologize, did I twist your arm or did I take you by your hand? MS. MARKEN: Objection, asked and answered. THE ADMINISTRATIVE LAW JUDGE: Overruled. THE WITNESS: I don't think you twisted it. It's hard to remember. MR. ADAMS: Judge, I have no more questions. THE WITNESS: It's hard to remember after you left. Because he had to make me do my work, and you even made me cry once. And you just left. MS. MARKEN: One moment, Judge. THE ADMINISTRATIVE LAW JUDGE: Okay, P., you answered the questions. MS. MARKEN: No further questions, Judge. At hearing, P.Z. was happy to see Respondent, and they exchanged pleasantries following P.Z.'s testimony. As he was leaving the hearing room following his testimony, P.Z. told Respondent: "Bye. I hope I see you again." At hearing, no witnesses other than Respondent and P.Z. testified regarding the alleged incident. At hearing, the undersigned had the opportunity to observe the testimony and demeanor of both P.Z. and Respondent. The testimony of Respondent is credited and is more persuasive than the testimony of P.Z., which is not credited or persuasive. The evidence does not establish that Respondent held a student with his arm behind his back and allowed other students to hit him as alleged in the Amended Notice of Specific Charges. In sum, the evidence at hearing fails to show that Respondent's conduct with regard to the incident in the classroom involving P.Z. constitutes misconduct in office, gross insubordination, or a violation of School Board policies.3/ Allegations Involving Respondent's Teaching Certificate Finally, the School Board alleges in paragraph 22 of the Amended Notice of Specific Charges that Respondent is subject to suspension and termination because his teaching certificate was suspended on February 17, 2015, until further notice, making Respondent ineligible for employment as a teacher with the School Board. After the School Board suspended Respondent and initiated dismissal proceedings, the Education Practices Commission notified the School Board on February 17, 2015, that Respondent's teaching certificate had been suspended, until further notice, for failure to pay child support. The evidence presented at hearing establishes that Respondent's teaching certificate was suspended by the Florida Department of Education on February 17, 2015. On March 30, 2015, Respondent received a letter from the Florida Department of Revenue, Child Support Enforcement ("DOR"), indicating that DOR directed the Department of Education to reinstate Respondent's certificate because Respondent was paying child support as agreed or ordered by the circuit court, or he was otherwise entitled to have his certificate reinstated. Following the hearing, the School Board filed its post- hearing Exhibit 30 (mis-numbered by the School Board as Exhibit 29), which consists of a letter from the Department of Education. The letter from the Department of Education was directed to Respondent and is dated June 17, 2015. The letter indicates that Respondent's teaching certificate is reinstated because the "Department of Revenue (DOR) has directed our office to reinstate your certificate because you are paying child support as agreed or ordered, or are otherwise entitled based on DOR's findings." The evidence establishes that Respondent's teaching certificate was suspended from February 17, 2015, until June 17, 2015. In sum, the evidence fails to show that the suspension of Respondent's teaching certificate from February 17, 2015, until June 17, 2015, constitutes misconduct in office, gross insubordination, or a violation of School Board policies justifying his suspension since October 7, 2014, and termination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a final order rescinding the proposed termination and suspension, and provide Respondent with back pay, except for the period of February 17, 2015, to June 17, 2015. DONE AND ENTERED this 4th day of September, 2015, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ 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 4th day of September, 2015.
