The Issue Whether Respondent committed the violations alleged in the Administrative Complaint, and, if so, the penalty that should be imposed.
Findings Of Fact During all times relevant hereto, Petitioner served as head of the Florida Department of Education, the state agency charged with the responsibility of investigating and prosecuting complaints of violations of section 1012.795, Florida Statutes (2015),1/ against teachers holding Florida educator certificates. Respondent holds Florida Educator Certificate 725789, covering the areas of middle school integrated curriculum and physical education, which is valid through June 30, 2020. During all times relevant hereto, Respondent was employed as a physical education teacher at Lehigh Acres Middle School in the Lee County School District. Respondent has been a Florida educator for 24 years, all with the Lee County School District. The Administrative Complaint, as to the material allegations, contends that “[o]n or about February 18, 2016, Respondent engaged in a physical altercation with 13-year-old, female student, A.O., when A.O. refused to give Respondent A.O.’s cellphone [and that] Respondent held A.O. to the ground during the altercation.” The Video The altercation in question took place in the school gymnasium (gym). Activities in the gym are monitored by at least a single video surveillance camera. The images captured by the video camera are somewhat grainy, but it is possible to glean from the images the general nature of the interaction between Respondent and the student in question; there is, however, no audio associated with the surveillance video. Respondent is seen on the surveillance video walking around the gym while students (approximately 40) are positioned on the floor throughout the gym. The video shows student A.O. sitting on the gym floor with her back against the bleachers. It appears from the surveillance video that the nearest student to A.O. is approximately eight to ten feet away. The video also shows that Respondent appears to weigh at least twice as much as A.O. and stand at least four inches taller. It is undisputed that Respondent, while moving about the gym, observed A.O. using her cellphone. The video shows Respondent moving towards A.O. When she is approximately three feet from A.O., Respondent communicates in some way to A.O. that she needs to give Respondent her cellphone. The student, while continuing to sit on the floor, is then seen either placing or attempting to place the cellphone in the right- rear pocket of her pants. Respondent, without pausing, then positions herself over the student and attempts to remove the cellphone from either the student’s pocket or hand. The student then rolls onto her right side and positions herself so that her right rear pocket is pressed against the gym floor. At this time, the student is in a near fetal position. Respondent, while continuing to stand over the student, then tussles with the student for about 10 seconds while attempting to take the cellphone. The student then extricates herself from Respondent’s grasp, and while rising from the floor is then pushed in the back by Respondent, which then creates about an arms-length distance between Respondent and the student. The student, while standing, then turns towards Respondent and appears to swing at Respondent with her left hand. Respondent knocks away the student’s extended left arm and then pushes the student onto the lower bench portion of the bleachers. The student lands on her butt and then immediately rises and moves towards Respondent. Respondent and the student’s arms then become entangled. While their arms are entangled, Respondent pushes the student back several steps, forces the student into a seated position on the bleacher bench, and then pushes the student to the gym floor. Respondent then positions herself on top of the student and subdues her by pinning her to the gym floor with her right leg over the student’s left leg and her left leg across the student’s upper back and shoulder area. Respondent released the student after approximately 40 seconds. Before releasing A.O., the video shows that many of the students in class rushed to the area of the gym where the altercation occurred, formed a semi-circle around Respondent and A.O., and recorded the incident on their cellphones. A cellphone video capturing portions of the incident was admitted into evidence, and on this video, a student is heard suggesting to another student that the recording of the altercation should be posted to YouTube. Student A.O. A.O. was in the eighth grade when the incident with Respondent occurred. A.O. did not testify at the disputed fact hearing, but she did submit written statements to school officials following the altercation with Respondent.2/ On February 22, 2016, A.O. provided the following written statement: I was sitting down on my phone like some other kids were doing to, not knowing I wasn’t allowed to use it because it’s my first day in gym. So Ms. Parsons said give me the phone so I said no, I’m sorry Miss, and when I went to reach for my pocket to put it in and she reached down and pushed her elbow and arm up against my neck and chest so I was on the ground flat by that time and we ended up both getting up and trying to get the phone and she ended up pushing me and then somehow she ended up holding me down by holding my arms and sitting on top of me. After she had pushed me on the bleachers she had lightly hit my leg so I hit her in her head. On August 17, 2016, A.O. provided an additional written statement, which reads as follows: I would like to add, that when she was above me after she put her forearm on me I did not feel safe so I stood up. Also when she had pushed me on the bleachers and kept wrestling with me I had been kicking her so she could leave me alone. After I was escorted to ISS, then Mr. Restino’s office, I was brought to the clinic after he had seen the video and Ms. Garcia took pictures of all my red marks and some scratches, they weren’t deep though. Respondent’s Version of Events On February 18, 2016, the date of the altercation in question, Respondent prepared the following written statement: This afternoon as I was walking around the classroom monitoring the students, I was checking to make sure that the students were working on their projects. I saw that the young lady in question was on her phone. I asked her to give me her phone and I reached my hand out for the phone. She snatched it away and I continued to ask her for the phone. I took the phone and she said I wasn’t getting her phone and struggled with me. I got the phone and she stood up and punched me in my right ear. I pushed her back and she came at me again so I pushed her back again. She kicked me in the stomach. I grabbed one of her arms and her leg as she went to kick me again and I brought her down to the floor. I put my knee on her back as I held her arm and leg. I told her that I could not believe that she would do this over a phone [and] that I probably would have given it back to her at the end of the class period since it was near the end of the day. She said that she didn’t know that because she was new. I told her even if she was new that you don’t hit a grown-up or a teacher like that. I told her that I was going to let her up. She said okay. By that time coach McDowell came over and said th[at] coach Steidl had called for assistance. Deputy Matthews came in and I explained what happened. He talked with her for a few seconds. I asked him if I should give him the phone or give it back to her. He said to give it to her so I did and they left. Later, I noticed that I had some scratches and blood on my arm and I went to the clinic to get my arm treated. On June 30, 2016, Respondent sent an email to the human resources department for the School Board of Lee County. In this missive Respondent notes, in support of her belief that she did nothing wrong in this situation, that during the fracas with A.O. “students were cheering” for Respondent and that throughout the incident she was merely “responding to [A.O.’s] inappropriate and disrespectful behavior.” Respondent testified during the final hearing and her testimony was in material part consistent with her written statements. Cellphone Policy Ms. Neketa Watson was the principal of Lehigh Acres Middle School during the 2015-2016 school year. According to Ms. Watson, the Student Code of Conduct in effect at the time of the incident in question provides as follows: Students may possess cell phones and other personal electronic devices while on school grounds during regular school hours, however they must be turned off at all times unless utilized for an approved activity. Cell phone usage is allowed during non-instructional time or for an approved activity. Possession of all personal electronic devices, including cell phones, is done at the student’s own risk and the school assumes no responsibility, legal or otherwise, with regard to these items. During the 2015-2016 school year, Ms. Watson sent weekly emails to all school personnel reminding them about school policy and procedures. The weekly reminders would often include reference to the school’s cellphone policy, which provides that “if we see it, we hear it, we take the phone.” The cellphone policy reminders sent out by Ms. Watson also explained to school personnel that they should not use physical force when attempting to secure a cellphone from a student and that if a student refused to turn over a phone when requested, then personnel should “call for an administrative administrator who removes the student” and then processes the student for suspension. Ms. Watson explained that she did not include the reminder about the cellphone policy in each of her weekly emails to personnel, but she specifically recalled having done so the week of the incident in question. Ms. Watson testified that the reminder was sent on Sunday night (February 14, 2016). On February 18, 2016, Adrienne McDowell was employed by the School Board of Lee County as an educational paraprofessional for physical education and was assigned to Lehigh Acres Middle School. In explaining her understanding of the cellphone policy, Ms. McDowell testified as follows: A: What we were told via email a couple weeks prior to this event that Ms. Watson sent out, when a student has a cellphone out, if you see it or hear it, you need to ask for it. If they don’t place that phone in your hands willingly, then you call for a specialist to come and deal with that student. It is not our job to take a cellphone away from a student, we just call for a specialist. Q: By specialist, what do you mean? A: Security, administration, someone in the specialist team, guidance counselor, you know. There are different, -- like I said, a specialist is a security guard, administration or guidance counselor; anybody more equipped to handle the situation than we are. Respondent testified that she was unaware of Ms. Watson’s emails to personnel regarding the proper protocol for confiscating cellphones from non-compliant students. On June 17, 2016, Respondent, as part of the investigation conducted herein, sent an email to school board officials and stated therein that it was her belief that “[i]f I had not taken her phone, that the students would have disrespected and challenged me from that day forward.” In the same missive, Respondent, in an attempt to discredit one of the students who witnessed her altercation with A.O., noted that she disciplined the student witness “for his misbehavior by writing him a referral and having him escorted out of [her] classroom.” Given Respondent’s admitted general awareness of the school’s policy of referring misbehaving students to an appropriate administrator for disciplinary action, and her concerns about being challenged and disrespected, Respondent’s testimony that she was unaware of Ms. Watson’s directive regarding students who refuse to hand over their cell phones is not credible. Student Detention, Search and Seizure Lee County School Board Policy 4.03 sets forth procedures related to searching a student’s person and property. Numbered paragraph (3) of the policy provides in part that “[a]n administrative staff member or an instructional staff member designated by an administrator may search a student’s person [and] personal belongings . . . if there is reasonable suspicion to believe the search will result in evidence the student has violated Florida Statute or School Board Rule or if the student consents to such search.” Respondent was neither an administrative staff member nor an instructional staff member with authorization to conduct student searches, and therefore her actions of physically searching A.O. and taking her cellphone violated Lee County School Board Policy 4.03. Aggressor or Victim Respondent challenges the instant proceeding in part on the theory that the facts demonstrate that she was the victim and merely acted in self-defense against the actions of a combative student. Contrary to Respondent’s contention, the credible evidence, as captured by the surveillance video, establishes that Respondent committed the initial act of aggression when she, without hesitation, lorded over A.O. and physically grabbed the student in an unauthorized effort to confiscate A.O.’s cellphone. While it is true that the student, after initially being pinned to the gym floor by Respondent, eventually freed herself from Respondent’s grip and in her agitated state committed reflexive acts of aggression towards Respondent, the credible evidence establishes that these events would not have occurred but for Respondent’s initial use of unauthorized and unreasonable force. Respondent, without question, had the right to protect herself against the aggressive countermeasures initiated by the student. However, it is also the case that under the facts of this case the student equally had the right to protect herself against Respondent’s initial acts of aggression.3/
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 Respondent guilty of the violations alleged in counts one through three of the Administrative Complaint. It is further RECOMMENDED that the final order suspend Respondent's Florida Educator Certificate 725789 for a period of two years, to be followed by a one-year period of probation. The terms and conditions of Respondent's suspension and probation shall be established by the Education Practices Commission. DONE AND ENTERED this this 16th day of January, 2018, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN 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 16th day of January, 2018.
The Issue Whether Petitioner proved by clear and convincing evidence that Respondent left a kindergarten student, K.M., alone in her classroom on April 2, 2018, as alleged in Petitioner’s Administrative Complaint.
Findings Of Fact Based on the record and evidence presented at the hearing, the undersigned makes the following findings of relevant and material fact: Stipulated Facts Respondent holds Educator Certificate 1168653, covering the areas of Elementary Education, English for Speakers of Foreign Languages, and Exceptional Student Education (“ESE”), valid through June 30, 2021. At all relevant times, Respondent was employed as a kindergarten teacher at Sunland Park Academy, in the school district of Broward County, Florida. Evidence Presented at the Hearing Samiyeh Nasser During the 2017-2018 school year, Samiyeh Nasser (“Nasser”) was employed as a Teacher’s Assistant at Sunland Park Academy in the Broward County School district. She worked with the kindergarten classes. Nasser “pulled out” students, removing them from a teacher’s class and bringing them to her own room to provide extra help with reading, spelling, and word pronunciation. She regularly went to Leger’s classroom during first period each day, at approximately 9:00 a.m., and would take four or five students to her own classroom. She would then bring them back to their regular class to attend “specials,” which are elective classes. On April 2, 2018, when Nasser returned children to Leger’s classroom, at 10:05 a.m. that day, she noticed that the other students had already left the room, but that there was one student, K.M., there alone. When Nasser found her, K.M. was crying. When Nasser asked her why she was alone, K.M. said that her classmates had gone to physical education class (“P.E.”), and that she had been told by her teacher, Respondent, to stay in the classroom. Based on other credible evidence, K.M.’s comment to Nasser regarding having to “stay in the classroom” referred to a counseling conversation which Leger had with K.M. earlier in the morning, prior to the class leaving for P.E. She did not mention anything to Nasser about Steven Bynes (“Bynes”), a pool substitute who had assumed responsibility for the class in Respondent’s absence. Nasser opened the back door to the classroom, saw the other students at P.E., and instructed the small group of students she brought back to the classroom to join them outside. She did not see either Leger or Bynes with the students at P.E. when she found K.M. Nasser remained with K.M. briefly, hugged her to calm her down, and then left her in the room as she went on to assume her other duties. She was in Leger’s classroom a total of approximately five to seven minutes. Steven Bynes, Jr. Steven Bynes, Jr., was employed as a pool substitute at Sunland Park Academy during the 2017-2018 school year. He provided coverage when teachers were absent or out, and no outside substitute was hired for the day. On April 2, 2018, he was instructed to cover Leger’s class while Leger attended a meeting.1 Bynes was in Respondent’s classroom for approximately 20 minutes. Leger returned to the classroom while Bynes was still there and advised him that the class had “specials.” Bynes claimed that he advised Leger that it was two minutes before the class was to go to P.E., and advised her that she “still had time” to take them there. 1 This was a meeting between Leger, the guidance counselor, and a parent mentioned later in this Recommended Order, paragraph 60 infra. He claimed that Leger did not say anything to him, and he left the classroom to return to the front office. After the fact, Bynes was told that a student had been left in the classroom, but he denied knowledge of it and denied responsibility for leaving K.M. in the classroom. He claimed he left the class with Leger. He also denied having any conversation with K.M. in the classroom. Bynes denied taking the class to P.E. and stated that when he left the classroom, he left the students with Leger.2 Nikia Ragin Nikia Ragin (“Ragin”) was the Assistant Principal at Sunland Park Academy during the 2017-2018 school year. She was told by the Principal that Nasser had reported an incident concerning a student, K.M. After speaking to Nasser, she spoke to K.M. Ragin spoke to K.M. approximately two hours after the event took place, and then reported to the Principal. Ragin was also present when Leger explained to the Principal that Bynes, not she, had taken the students to P.E. Other than Leger’s statement, Ragin found no other evidence to conclude that Bynes had taken the students to P.E. Ragin’s conclusion regarding the evidence, at that point, was misguided and affected because the school surveillance cameras that would likely show who took the students to P.E. were not operating properly.3 Leger elaborated and explained to Ragin that she was in a meeting with the guidance counselor when the students went to specials. 2 Notably, Bynes said he didn’t really remember what Leger said or did after he advised her that she still had time to take the class to specials. Curiously, after he said this, he testified that he simply “walked out of the classroom.” This description by Bynes was significantly at odds with Leger’s testimony and recollection of the same discussion. Bynes seemed vague and uncertain at times regarding the incident. Leger’s description of her encounter and discussion with Bynes when she returned, is more persuasive and credible, and is adopted. 3 The camera tapes had been reviewed by Ragin because of Leger’s claim about not taking the students to P.E. Had the surveillance cameras been working, there would have been clear images of the kindergarten hallways and other relevant areas. There were also other inoperative cameras, that if working properly, would have shown relevant views of the hallway leading to and from the office of the guidance counselor. Sharonda Bailey Sunland Park Academy Principal, Sharonda Bailey (“Bailey”), received a report from Nasser about a student in Leger’s class. She referred the matter to Ragin, and saw her speaking with Nasser and also with K.M. Bailey recalled that Bynes had been in the classroom that day to cover the class. She asked him if anything had occurred when he was in the classroom. Bynes told Bailey that Leger had returned to the classroom and said something about the students being late for specials. Bynes recounted to Bailey that he explained to Leger that they weren’t that late, that she should take them herself, and that he then walked out the front door. When she spoke with Respondent, Leger stated to her that she did not leave a student in the classroom and that Bynes was the person who took the students to P.E. Bailey also attempted to verify who took the students to P.E. through the school’s security cameras. However, because the camera system was antiquated, it had not captured or recorded what she needed to see. The security cameras glitched and froze, and the time stamp was off. In short, the cameras were not capable of adequately displaying Respondent’s location or movement in the hallways because its quality was so poor.4 4 The security videos of the kindergarten hallway and the area outside the office of the guidance counselor were requested by Leger during discovery. However, they were not provided to her and were not used or shown at the final hearing. Bailey contacted K.M.’s mother and told her that her child was left alone in the classroom while the rest of the class was taken to specials. She explained that she would investigate the incident. Because Bailey was not able to find anyone during the investigation to validate Respondent’s position that she did not leave the student behind, she issued a written reprimand to Leger. Bailey did not speak at length with K.M. about the incident, but merely asked if she was okay. Private Investigator William Miller William Miller (“Miller”) was retained by Leger’s counsel to attempt to locate K.M. He ultimately located her in Gulfport, Mississippi. He telephoned K.M.’s mother, Shirelle M. He reached her in her car on her way to pick up K.M. from school. Later that day, Miller was also able to speak directly to K.M.5 Miller asked K.M. if she remembered the incident. K.M. explained that Respondent went to a meeting, and that the class had been turned over to a substitute teacher by the name of Mr. Bynes. She told him Bynes took the class to P.E. outside the classroom. K.M. related to Miller that she told Bynes she had been bad, and that Respondent had told her she could not go outside for P.E. K.M. stated that Bynes then told her to “wait in the classroom” and he took the rest of the class to P.E. Miller testified that neither he nor K.M.’s mother provided her with any background, mentioned Bynes, or in any way suggested what information they wanted from her. Miller had work experience interviewing juvenile witnesses and testified that he “assiduously avoided” leading K.M., because they are so prone to being improperly led when questioned. 5 Shirelle M. had called back about 30 minutes later and Miller spoke to K.M. on her mother’s speaker phone while they were in the car together. Miller recounted that K.M.’s mother expressed surprise that K.M. recalled the name of Bynes, and assured Miller that she had not coached K.M. in any way.6 Based on his interviews over the phone, affidavits were prepared for K.M. and her mother, which documented the verbal information they had provided to Miller. The affidavits were given to K.M.’s mother. Miller explained to her that the affidavits should be their testimony, and not the testimony of either Miller or the attorney in the case. He also explained that if there were any changes that needed to be made, she should make the changes, send the affidavit back to him, and that the affidavits could be redone, if necessary. Miller asked the mother to read and go over the affidavit that K.M. was being asked to sign. Miller arranged to have a notary go to their apartment in Mississippi to have the mother and the child execute the affidavits. Before this occurred, he was able to reach Shirelle M. by telephone. She apologized and told him that the delay in executing the affidavit stemmed from the fact that she had changed jobs, and that the Gulf Coast had experienced three separate hurricanes since he had last spoken to her. Miller explained to her that he did not want it to be inconvenient and that he would make the arrangements necessary to get a notary to her to be able to notarize the affidavits. The notary was given specific instructions to tell Shirelle M. and K.M. that they did not have to sign the affidavits, and could make any changes to them that they wanted. Despite the delay in securing her signature, Miller still felt that the mother did not have any hesitation signing her affidavit. 6 K.M.’s mother had been told of the incident, but had not been told about Bynes at the time of the incident. Ruth Galliard Leger Respondent was K.M.’s kindergarten teacher at Sunland Park Academy during the 2017-2018 school year. She recalled that K.M. was a good student and they got along well. Sometime during the morning of April 2, 2018, Respondent requested an emergency meeting with the school’s guidance counselor and the parent of a male student. The male student had come in late to class that day. He became disruptive, knocking teaching items, like posters and magnets, to the floor.7 The meeting was scheduled by the guidance counselor. Respondent left for the meeting when Bynes arrived at her classroom to provide coverage. Earlier that morning, K.M. had also been disruptive. Respondent counseled her and told her that if she did it again, Respondent would take some time from her P.E., consistent with the class rules, and that she would have to stay behind in the classroom with Respondent for a few minutes of her P.E. time.8 On the day of the incident, the class had P.E. scheduled at 10:10 a.m. When Respondent left for her meeting, the class had not yet gone to P.E. During the meeting with the guidance counselor, Respondent excused herself and returned briefly to her classroom to retrieve a form that needed to be signed by those in attendance at the conference. Resp. Ex. 1. When she entered the room to get the form, Bynes was there with her students. Respondent explained to Bynes that she forgot the form, and that her meeting with the counselor and parent was not over. Respondent asked Bynes what time it was and when he told her that it was approximately 10:15 a.m., she reminded him that the class had specials at 10:10 a.m. 7 This was out character for him, prompting Respondent to request the emergency meeting. 8 Four other students had also been counseled that morning about their conduct and the consequences before Respondent went to her meeting with the counselor. Bynes said that they had only missed five minutes, and the class could still go to P.E. Respondent retrieved the form she needed, went out the front door into the kindergarten hallway, and back to her meeting. The class was in the room with Bynes when Respondent departed to go back to the meeting. However, she did not see Bynes take the students to P.E. After the meeting with the counselor and the parent, Respondent left the counselor’s office. Respondent and the student’s parent stood in the first- grade hallway talking for several minutes.9 Respondent then walked the mother to the front door of the school, where there are more cameras, and parted company with her. Leger then proceeded down the hallway back to her classroom. When she got back, she was shocked to find K.M. standing in the room by herself. When she asked K.M. why she was in the room, K.M. explained that she had remembered that Leger previously told her that she owed time from P.E. for misbehaving. As a result, she decided to stay behind in the room when the others went to P.E. Respondent did not recall telling K.M. to “stay back” from P.E. Leger told K.M. that she did not have to remain behind, that she wasn’t upset with her, and that she should have gone to P.E. with the rest of the kids. Since there were five minutes left in the P.E. class, Respondent took K.M. out to P.E. When Respondent picked up her students from P.E. five minutes later, K.M. was fine and the class went to lunch. The next day, at the end of school, Principal Bailey handed Respondent a letter advising her that she was under investigation for leaving a child unattended. 9 This hallway was covered by the same faulty security cameras previously mentioned. At her disciplinary meeting, Respondent told Bailey that she did not leave K.M. in the classroom, and that she was at a meeting with the guidance counselor and a parent at the time. To support her defense, Respondent asked Bailey for the school videos which would show her in different hallways, entering the counselor’s office, and speaking with and walking the mother to the front door when her students went to P.E. Leger later asked her first lawyer on two separate occasions to obtain the relevant videos from the Broward County School District through a Freedom of Information Act request. Resp. Exs. 12a and 12b. She wanted the security videos to be subpoenaed for this case.10 K.M. remained in Respondent’s class for the balance of the year and Respondent had a good year with her. Leger never spoke to K.M. or her mother about the incident. Shirelle M. Shirelle M. is the mother of K.M. She recalled Miller calling and speaking to her and K.M. on the speaker phone. She heard K.M. tell Miller that it was Bynes that had left her in the classroom. She heard K.M.’s entire conversation with Miller. The affidavit that K.M. signed was an accurate recitation of the phone conversation she heard between Miller and her daughter in the car. She also signed her own affidavit that accurately set forth her conversation with Miller. Resp. Ex. 8. She knew that she could make any changes to her affidavit before signing it. 10 The undersigned took administrative notice of the DOAH file, which included Respondent’s subpoena to the Broward County School District seeking the videos, the District’s response, and Respondent’s Motion to Compel seeking access to the videos. Shirelle M. was there when K.M. signed her affidavit, and read it with her beforehand. She testified that no person forced her daughter to sign the affidavit. She explained the long period of time that elapsed between the time that she got the affidavit and the time that she signed. The delay was due to her work schedule, which involved four or five jobs, since the COVID-19 pandemic. She testified that she had no hesitation executing her affidavit, and did so freely and voluntarily, since it was accurate and correct. Concerning the day of the classroom incident, she saw her daughter before speaking with the Principal when she picked K.M. up from aftercare. She did not get much detail from the Principal, who said that the matter was still under investigation. The Principal never told her that it was Respondent who left K.M. in the room. She never overheard K.M. tell anyone that Respondent had left her in the classroom. K.M. Before beginning her testimony, eight-year-old K.M. was questioned by the undersigned. She was polite, alert, and calm. She understood the oath and the importance of telling the truth. She remembered when she lived in Florida. She also recalled Respondent as her kindergarten teacher and the incident of being left in the classroom. K.M. testified that it was Bynes who left her in the classroom when Respondent was at a meeting. 11 She recalled that when Bynes arrived at the classroom, Respondent then left for a meeting. 11 The Transcript mistakenly phonetically wrote Barnes. It should have been Bynes. K.M. stayed behind when the rest of the class went to P.E. She did so because Respondent had told her earlier that morning to stay behind because of minor discipline issues with her. More specifically, as the class left to go to P.E., K.M. told Bynes that she was supposed to remain in the classroom, and Bynes said “okay” and took the remainder of the class to P.E. K.M. remained in the classroom while the class was at P.E., until Respondent returned from her meeting. When asked by Leger why she was there alone, K.M. reminded Respondent that she had previously told her to stay in the class. K.M. executed an affidavit that she read and that her mother read to her. It accurately reflected what happened. Resp. Ex. 13b. K.M. recalled speaking to a man on the phone (Investigator Miller), and told him the same thing as what she testified to in court. K.M. unequivocally stated twice during the hearing that she never told anyone that Respondent, Leger, had left her in the classroom. Nobody told K.M. what to say in the hearing, and she remembered on her own that to which she testified. K.M. liked Respondent and stated that she was “a pretty good teacher.”
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a Final Order dismissing the Administrative Complaint and the charges contained therein. DONE AND ENTERED this 10th day of February, 2021, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of February, 2021. COPIES FURNISHED: Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Mark S. Wilensky, Esquire Dubiner & Wilensky, LLC 1200 Corporate Center Way, Suite 200 Wellington, Florida 33414-8594 Randy Kosec, Jr., Chief Office of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 Charles T. Whitelock, Esquire Charles T. Whitelock, P.A. 300 Southeast 13th Street Fort Lauderdale, Florida 33316 Lisa M. Forbess Interim Executive Director Education Practices Commission Department of Education Turlington Building, Suite 316 325 West Gaines Street Tallahassee, Florida 32399-0400
Findings Of Fact Petitioner was employed by Respondent as a dormitory teacher I for approximately four years prior to his dismissal in May, 1987. The incident which resulted in his dismissal occurred on May 2, 1987, on the second floor of James Hall, a dormitory for deaf students, where he worked as a dormitory teacher. At approximately 11:15 p.m., Petitioner told Tommy Downing, a student at the school and resident of James Hall, to go to bed. Downing was in another student's room at the time and was wearing a fabric vest used as a target for a toy laser gun. The testimony conflicts as to exactly what happened, but from a review of all the evidence and after considering the witnesses' demeanor, it is found that Downing, who was thirteen years old at the time, threw the vest at Petitioner, hitting him in the eye. Petitioner sustained no injury. As a result of the surprise of being hit with the vest, Petitioner threw a clip board he was holding in his hand in Downing's direction. Downing and Petitioner were approximately twelve feet apart at the time. The clip board struck Downing just below his elbow causing severe pain and swelling for which he required attention in the school infirmary. Downing became extremely upset as a result of the incident and it took staff some time to calm him down. Petitioner's action was grossly negligent and reckless, and exhibited an extreme disregard for the safety of Downing, as well as another student who was also in close proximity to the incident. At the time of this incident, Petitioner was rated as "below" standards, with unsatisfactory communication skills and knowledge of his job. Good communication skills are very important when dealing with deaf students, and Petitioner's inabilities in this aspect of his job had been a repeated cause for his poor job performance and evaluations. Petitioner's personnel file reveals that he was placed on ten days administrative leave in December 1986, and was reprimanded in January, 1987 for failure to report to work. After investigating the incident involving Downing and Petitioner, Respondent dismissed Petitioner from employment on May 30, 1987 "for violation of Article 26 of the Florida School for the Deaf and Blind Standards of Conduct." Article 26 provides a definition of "student abuse" and employee disciplinary standards relating thereto, as follows: Treatment under which a student is deprived, or allowed to be deprived, of necessary treatment, habilitation, care, sustenance, clothing, shelter, supervision, or medical services essential to his well- being; is permitted to live in an environment in which such deprivation or environment causes, or is likely to cause, impairment of physical or emotional health; or is subject to physical or psychological injury. First occurrence 3-day suspension to Dismissal Second occurrence Dismissal (Emphasis supplied.) Respondent does not contest that Petitioner has timely sought a hearing to review the decision to terminate his employment. According to Respondent's Personnel Director, Sam Visconti, the severest employee disciplinary action of dismissal is taken when an employee's action causes harm to a student, and the consequences or harm are severe. In this case, Petitioner's action did cause harm, with severe pain and swelling to Downing, and showed an extreme disregard for the possible consequences of his action.
Recommendation Based upon the foregoing, it is recommended that Respondent enter a Final Order dismissing Petitioner as an employee. DONE AND ENTERED this 5th day of May, 1988, in Tallahassee, Florida. DONALD D. CONN 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 5th day of May, 1988. COPIES FURNISHED: Robert T. Dawson, President Florida School for the Deaf and the Blind 207 North San Marco Avenue St. Augustine, Florida 32084 Barbara Staros Harmon, Esquire Department of Education Knott Building Tallahassee, Florida 32399 Samuel White 94 South Street St. Augustine, Florida 32082
The Issue The issues in this proceeding are whether Respondent should be subject to discipline as a result of the violations of section 1012.795(1)(j), Florida Statutes and Florida Administrative Code Rule 6A-10.081(2)(c)1. and 8., alleged in the Administrative Complaint and, if so, what is the appropriate sanction for those violations.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: The Education Practices Commission is the state agency charged with the duty and responsibility to revoke or suspend, or take other appropriate action with regard to teaching certificates as provided in sections 1012.795 and 1012.796. § 1012.79(7), Fla. Stat. Petitioner, as Commissioner of Education, is charged with the duty to file and prosecute administrative complaints against individuals who hold Florida teaching certificates and who are alleged to have violated standards of teacher conduct. § 1012.796(6), Fla. Stat. Respondent, Ivonne Ortiz, holds Florida Educator’s Certificate 1258585, covering the areas of Pre-kindergarten/Primary Education, which is valid through June 30, 2022. At the time of the allegations in the Administrative Complaint, Ms. Ortiz was employed as a third-grade teacher by KIPP, a charter school organization in Duval County. She was assigned to KIPP Voice, one of three academies operated by KIPP. Ms. Ortiz was employed at KIPP Voice from July 18, 2016, through November 8, 2018. When a KIPP employee is injured on the job, the employee must notify his or her manager and complete an Employee Accident Report form. The form is an official KIPP document used to assist management and their insurance carrier in determining eligibility for workers’ compensation benefits. On October 24, 2018, Ms. Ortiz reported to Assistant School Leader Brittany Brooks that she was injured when a student “rammed” into her, and that she needed to see a doctor. Ms. Brooks asked Ms. Ortiz to complete an Employee Accident Report detailing the incident. The report would be forwarded to KIPP’s Human Resources Department (“HR”) for further consideration. In the Employee Accident Report that she completed on October 24, 2018, Ms. Ortiz wrote that “[Student M.S.] was throwing a tantrum. He ran down the stairs and rammed into me to push me out of his way. He then took a snack from the bin and slammed it on the floor. I am in intense pain right now.” Ms. Ortiz told Ms. Brooks that she was in a lot of pain due to the interaction with the student and needed to see a doctor. After her discussion with Ms. Brooks, Ms. Ortiz left school for the day. After receiving the written report from, and discussing the incident with Ms. Ortiz, Ms. Brooks informed Dean of School Operations Jessica Brown about the incident as reported by Ms. Ortiz. Ms. Brooks advised Ms. Brown that the student would have to be suspended for injuring a teacher. Ms. Brown informed Ms. Brooks that she was a witness to the incident and that it did not happen as Ms. Ortiz reported. On October 25, 2018, Ms. Brown submitted a written statement about the incident. In her statement, Ms. Brown wrote that Ms. Ortiz came down the stairs carrying a large black crate. M.S. came down the stairs behind her. M.S. was visibly upset. Ms. Brown took M.S. aside and learned that he was upset because Ms. Ortiz would not unlock the classroom to let him retrieve his backpack and homework. M.S. had been in in-school suspension all day and wanted to get his things so his mother would not be upset with him. Ms. Brown took M.S. upstairs to get his backpack. Ms. Brown wrote, “I was shocked when Brooks came to me because Ortiz never made contact with the student [M.S.]. [M.S.] never hit her and never touch her [sic] he was just upset that Ortiz would not allow him to get his backpack so that he could do his homework.” Due to the discrepancy in the accounts of Ms. Ortiz and Ms. Brown, Ms. Brooks asked Campus Manager Leighton Roye to pull video footage of the incident from the school surveillance camera. Due to the technical limitations of the school’s surveillance system, Mr. Roye was forced to record the footage with his cell phone and forward that recording to Ms. Brooks. The silent video footage was entered into evidence in two parts. The first part was an eight second clip that shows Ms. Ortiz carrying a wheeled crate down the stairs near the building entrance. At the bottom of the stairs, she stopped and sat the crate on the ground. A table faced the stairs. On the table was a crate containing snacks. As students passed between the stairs and the table on their way out of the building, they could pick up a snack. Ms. Brown stood at the table. She was directly facing the stairs. Two other teachers, Hannah Hughes and Madelaine Riley, were at, or near, the table but neither had the unobstructed, direct view of the stairs that Ms. Brown had. The video shows that as Ms. Ortiz was placing her crate on the ground, M.S. came down the stairs behind her. As M.S. passed, Ms. Ortiz appeared to recoil slightly with her right arm, but it is unclear whether this movement was in response to a touch from M.S. or simply an adjustment of her arm after releasing the weight of the crate. The angle of the video is to the side of the participants, making it impossible for the viewer to state definitely whether or not M.S. made contact with Ms. Ortiz. It is possible to state that any contact was minimal, no more than a brushing as M.S. went past. Ms. Brown, who was directly facing Ms. Ortiz and M.S., credibly testified that M.S. did not touch Ms. Ortiz. The second part of the video was 81 seconds long. It began a second or two before the end of the first video and showed what occurred in the subsequent minute or so. M.S. picked up a snack and started to go outside. He dropped a portion of the snack, apparently without realizing it. An adult stepped in to pick up the dropped snack as M.S. proceeded to the door. M.S. stopped at the door and walked back into the building to an area out of camera range. Ms. Brown followed him. As this was happening, Ms. Ortiz remained standing at the bottom of the stairs with her crate at her feet. She turned her head to see where Ms. Brown was going. A few seconds after Ms. Brown passed out of camera range, Ms. Ortiz began to roll her crate toward the building entrance, then stopped and turned around to hug another woman who walked into camera range. After the hug, Ms. Ortiz rolled her crate out of the building. Roughly 45 seconds later, Ms. Brown and M.S. walked back into the frame. Ms. Brown had her arm around the child’s shoulder as they walked back up the stairs. The second video ended as they walked up and out of the frame. Mr. Roye testified that he first recorded the eight second segment and sent that to Ms. Brooks. After viewing the video, Ms. Brooks asked Mr. Roye to go back and retrieve more footage to ensure that nothing was missed.1 Mr. Roye was uncertain whether he provided the 81-second video to Ms. Brooks later the same day, but was certain that he provided it no later than the next day. Ms. Brown’s testimony was consistent with the videos. She was looking directly at both Ms. Ortiz and M.S. as they were coming down the stairs. Ms. Brown testified that M.S. did not touch Ms. Ortiz in any way when he came down the stairs. M.S. “absolutely” never touched Ms. Ortiz. He never came within six inches of her. Ms. Brown noted Ms. Ortiz’s recoiling gesture as M.S. passed. Ms. Brown believed that Ms. Ortiz gestured because she was “aggravated with him.” Ms. Ortiz alleged that M.S. reached the bottom of the stairs, turned to face her, and kicked the crate at her feet. Ms. Brown testified that this did not happen. Ms. Brown was positive about it because “I was standing right there.” The videos do not show M.S. turning back to face Ms. Ortiz at the bottom of the stairs. The other adult witnesses to the incident, Ms. Hughes and Ms. Riley, provided written statements. Neither of these individuals was called as a witness at the hearing. Their hearsay written statements were not offered into evidence. 1 The record is unclear whether Ms. Brooks directly asked Mr. Roye for the videos or whether Ms. Brown acted as an intermediary. The difference is irrelevant because the record is clear that Ms. Brooks was the initiator of the request. Ms. Ortiz testified that the incident occurred as follows: MS came down the stairs. I went to the bottom of the stairs. I never said that he pushed me. I never said that he hit me. He came down. He was very close to me. It was very quick. He came -- he took a snack, threw it on the floor. He stood in front of me. I felt the kick. It was like a ram kick. And that's how I explained it. No one ever asked me to explain what a ram kick was. But that's what I felt. He went and got a second snack and then went through the blue curtains where they receive -- the packages that come in are received. I gasped for air. I felt a little dizzy. I felt my body leaning towards the left. I was trying as best I could to deal with the pain because there were still students there and, as a teacher you don't want the students to see you weak. But I never said that he hit me. I felt a ram kick as if to push me. * * * He turned and stood directly in front of me, kicked the crate that hit my foot, that sent the shock pain up my leg to my thigh, my waist. Caused me to feel dizzy. It caused me to feel I was losing my balance and feel my body shifting to the left side. Ms. Ortiz conceded that the video did not corroborate her testimony that M.S. kicked her or the crate in front of her. She contended that the video only shows “clips,” not the sequence of events as they actually occurred. Ms. Brown testified that the videos showed the sequence of events exactly as they occurred. Mr. Roye testified that he had no ability to edit or alter the surveillance footage. After repeated viewings of the videos, the undersigned accepts the testimony of Ms. Brown and Mr. Roye on this point. While the videos do not include time stamps that would definitively establish their continuity, there is nothing about them that causes suspicion of alteration or editing. Ms. Ortiz’s testimony is not credible. M.S. did not kick her crate. On the video, Ms. Ortiz gives no outward indication that she is in pain. She hugs the other woman and appears to easily roll her crate out the building’s entrance. As noted above, Ms. Ortiz stated in her Employee Accident Report that “[M.S.] ran down the stairs and rammed into me to push me out of his way.” Based on all the evidence presented, it is found that Ms. Ortiz made a false statement on the Employee Accident Report. Dr. Melissa Peoples-Fullmore is the Chief of Schools at KIPP, functioning essentially as an assistant superintendent. After reviewing the videos, Dr. Peoples-Fullmore and Ms. Brianna Odom, KIPP’s HR Associate, notified the worker’s compensation carrier that they did not think Ms. Ortiz’s accident claim was legitimate. In consultation with KIPP attorneys and the workers’ compensation carrier’s attorney, Dr. Peoples-Fullmore made the decision to deny Ms. Ortiz’s claim. Dr. Peoples-Fullmore also made the decision to terminate Ms. Ortiz’s employment because of the false statements in the Employee Accident Report. Dr. Peoples-Fullmore testified that while the false report was significant, it was not the most important factor in her termination decision. Dr. Peoples-Fullmore was more concerned that Ms. Ortiz was willing to allow her false report to cause M.S. to be wrongfully disciplined by the school. “Lying on a child” was the worst ethical infraction committed by Ms. Ortiz and a firing offense in the opinion of Dr. Peoples-Fullmore. On November 7, 2018, Ms. Odom communicated with her HR superior regarding Ms. Ortiz’s continued employment. On the same day, a Notice of Denial was issued on Ms. Ortiz’s workers’ compensation claim. On November 8, 2018, Ms. Ortiz’s employment with KIPP was terminated. At the hearing, Petitioner presented documentary evidence and testimony regarding past workers’ compensation claims filed by Ms. Ortiz. There was no assertion that any of Ms. Ortiz’s prior claims were false or fraudulent. Mere evidence of past claims has no bearing on whether Ms. Ortiz’s claim in this case was credible and has played no part in the findings of this Recommended Order. Petitioner has demonstrated, by clear and convincing evidence, that Ms. Ortiz gave a false statement to her superiors, accusing a student of actions that could have had serious detrimental consequences for the student and resulting in the filing of a false workers’ compensation claim.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the undersigned hereby RECOMMENDS that the Education Practices Commission enter a final order finding that: Respondent violated the statutes and rules listed above; Respondent’s educator’s certificate be suspended for a period of two years from the date of the final order; Respondent be placed on probation for a period of two years after her suspension, with conditions to be determined by the Education Practices Commission; and prior to the reinstatement of her educator’s certificate, Respondent be required to take a college level course in professional ethics for educators. DONE AND ENTERED this 19th day of January, 2021, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 19th day of January, 2021. COPIES FURNISHED: Steve Rossi, Esquire Law Offices of Steve Rossi Suite 2 533 Northeast 3rd Avenue Fort Lauderdale, Florida 33301 (eServed) Ron Weaver, Esquire Post Office Box 770088 Ocala, Florida 34477-0088 (eServed) Lisa M. Forbess, Interim Executive Director Education Practices Commission Department of Education Turlington Building, Suite 316 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Randy Kosec, Jr., Chief Office of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
The Issue The issues are whether Respondent verbally disparaged students or grabbed their clothing and, in one case, stepped on a student's foot, so as to fail to protect students from conditions harmful to learning, in violation of Florida Administrative Code rule 6A-10.081(2)(a)1., or to intentionally expose students to unnecessary embarrassment or disparagement, in violation of rule 6A-10.081(2)(a)5., and thus violate section 1012.795(1)(j), Florida Statutes; if so, an additional issue is what penalty should be imposed, pursuant to section 1012.795(1).
Findings Of Fact At all material times, Respondent has held educator certificate 989254. For over 13 years, she has been employed as a teacher by the Miami-Dade County School District. During the 2016-17 school year, Respondent was teaching fifth grade at a Miami-Dade County elementary school. Approximately 28 students were assigned to her class. On October 11, 2016, Respondent walked her students from the basketball court to her classroom in preparation for the start of instruction at 8:35 a.m. One or more of a small group of students sitting with S.L., also a student, complained to Respondent that S. L. was bothering other students. Directing herself to the class in general, Respondent told the students to stop disrupting and settle down for class. She warned the class that, if she received one more complaint, the misbehaving student would have to change seats. After receiving this warning, another student complained about S.L., so Respondent directed him to take a seat at an empty table. S.L. initially refused to move, but eventually did so. However, he continued to disrupt other students by calling them names, exhibiting aggressive body language, and even getting out of his seat, as though to charge a student. Respondent directed S.L. to stop misbehaving. He retorted, "you're not smart, and the kids are dumb." Trying to restore order, Respondent approached S.L.'s table with a mirror used for science class. Placing it within his reach and extending his comment that his classmates were "not smart," Respondent said words to the effect, "if you could see your behavior, you'd know it's not smart." By using "not smart," rather than a negative term, such as "stupid," to describe misbehavior, Respondent attempted to convey a positive message while trying to reshape S.L.'s behavior. Without permission, S.L. got up from his desk; walked to the door; announced that he was going to the principal's office to complain that Respondent had disparaged him, adding that the principal had told him to come anytime, so she could fire Respondent; defiantly stuck out his buttocks toward the class; and left the classroom. By the time that Respondent was able to call the office to advise that S.L. was headed their way, the principal's secretary advised that he was already there. Having lodged his complaint with the principal, S.L. returned to class, resumed his seat, and, using a sharp object, carved onto the desktop, "Stupid Anderson popo." "Popo" is slang for "police," although Respondent thought that it meant something about shooting. Respondent never abused the children with demeaning terms, such as "pig," "dumbass," "fat," or "ugly," although S.L. used some of these terms when verbally assaulting his classmates. The facts set forth in the preceding six paragraphs track Respondent's testimony, which has been credited. In opposition to this version of events, Petitioner called a single eyewitness, T.F., who was a student in the classroom during the incident in question. By the time of the hearing, T.F. was attending a Miami-Dade middle school, and S.L.'s school assignment was not disclosed in the record. T.F. gave two statements. The first statement, which was typewritten by a Department of Education investigator, was given on October 28, 2016. The second statement, which is in T.F.'s handwriting, was given on October 14, 2016, and the purpose for which this statement was made is undisclosed in the record. The typewritten statement consists of questions and answers. In this statement, with the questions and one irrelevant answer omitted, T.F. asserts: [Respondent] is always calling [S.L.] names. She calls him fatty and ugly. She even put a mirror in front of his face and said, "Look at your ugly face." She did this in front of all of us and I felt really bad for him. She also calls us names. She calls us dumb, stupid and ugly. She even called me dumb and stupid. I went to the bathroom to cry. She made me feel bad. She also calls the boys pigs. * * * . . . she curses at us when she is mad and says we are doing crap, screams and yells a lot, and she told [S.L. and another student identified only as H.] to shut up their fat lips. She also hit [J.F.] and [M.B.] all the time. She grabbed [J.F.] hard by the arm and squeezed his arm and she also hit [M.B.] hard on the head with a closed fist. * * * When she is really mad at us she screams, yells, calls us names, and hits the students. She hits the boys on the head and the arm. * * * . . . I am afraid of her, and she makes me feel bad when she calls me stupid and dumb. I cry all the time. We are all happy in the class when she does not come to school. [S.L.] was the one she mistreated the most. When [S.L.] was in a fight and bleeding, she was laughing because he was hurt. The handwritten statement states in its entirety: The Class/P.E. Court in the class [S.L.] came out of nowhere and start crusing [cursing] my mom my family and puting his body in my face and saying kiss his body and lick his private part. Saying nasty stuff in creol calling me pig stink bug [doudon?] head hiting me. In P.e. he got a stick and treating [threatening] that he is going to cut my neck of [off] and pock [poke] my eyes. whene I don't give him something he get's mad and say lick his boody [body? booty?] and he Hit me with a basketball. when I wrote the bully fomr [form] he got mad and took the form and rip it and he spit in my face whenever I talk to [S., another student] or other people some time he makes me cry. T.F.'s direct testimony consisted entirely of her agreeing with everything in the typewritten statement, although it was unclear, during her testimony, if she independently recalled the comments and actions described in the statement. Also, most of the questions posed to T.F. on direct were leading. On cross examination, T.F. identified her signature on the handwritten statement and recalled some, but not all, of its contents. Specifically, she admitted that S.L. had bullied her and made her cry. Initially, T.F. denied that S.L. had spit in her face, but then recalled that he had done so by accident. She testified that she could not recall that S.L. had threatened to cut her neck with a stick, even though such an action would typically be memorable to the victim. The reference in the handwritten statement to a bully form is a form that T.F. and a few other students submitted, at the urging of Respondent, a few days after the October 11 incident, but the record does not disclose what action, if any, the school or district administrators took in response to these complaints about S.L.'s bullying. In testifying, T.F. withdrew her typewritten statement about Respondent's calling her dumb and stupid and instead stated that she liked Respondent as a teacher. Also, T.F. testified that S.L. had called the entire class dumb, as Respondent testified. On redirect, T.F. admitted, evidently as to the handwritten statement, "most of this stuff I don't remember." As noted above, the hearing took place three years after the earlier of the two alleged incidents, and it is obvious that the 2016-17 school year had presented some challenges for T.F. T.F. impressed the administrative law judge as a child who was trying to tell the truth, but was under considerable pressure in October 2016 and continuing pressure, even through the time of the hearing. When T.F. testified that she had cried, not from Respondent's actions, but from the bullying of S.L., her father interjected by asking his daughter why she had not told him about this, and she replied that "you wouldn't care." T.F.'s father was not a witness, and his statement is not noted to support a finding that T.F. did not tell him about the bullying; however, his interjection and T.F.'s response depicted some of the stress to which T.F. has been subjected over the matters described above. In general, the typewritten statement lacks the spontaneity and inattention to grammar and diction that characterize the handwritten statement. It is questionable whether one word in the typewritten statement--"mistreated"-- would be a word chosen by T.F. It is not so much that the word requires an advanced vocabulary, but the word requires a level of abstraction that is not evidenced in the handwritten statement, which is graphically episodic. It is impossible to find by clear and convincing evidence that the typewritten statement records the words of T.F., free of substantial editing by the investigator. Additionally, the handwritten statement effectively impeaches the typewritten statement. S.L. bullied T.F. to the point of making her cry at school. The handwritten statement suggests the possibility that S.L. forcefully tried to intimidate T.F. in her effort to report his bullying. Significantly, S.L. still had daily access to T.F. when she gave the typewritten statement. Lastly, T.F.'s testimony was unpersuasive. She did not appear to recall independently what she testified to on direct. It did not appear that she was even willing to read aloud her typewritten statement, as she was willing only to agree to it in response to a series of leading questions. For reasons undisclosed in the record, Respondent, who was represented by a union representative, agreed to a suspension of 25 workdays without pay for the October 11 events. Respondent did not try to explain her choice not to contest the charges, nor is it necessary to infer one, because any weight that could be assigned to such a choice, on these facts, does not establish or help to establish clear and convincing evidence of wrongdoing. This suspension seems to have followed an earlier job action removing her from student contact for 90 days, based on a verified finding of mental injury to S.L. by a protective investigator employed by the Department of Children and Families (DCF)--an administrative action that is entitled to no weight for the reasons set forth in the Conclusions of Law. Petitioner has failed to prove by clear and convincing evidence any of the allegations arising out of the October 11, 2016, incident. Respondent testified that she did not grab students by their collars or step on their feet. The only evidence to the contrary is the discredited evidence provided by T.F. As was the case with the October 11 incident, Petitioner did not call as witnesses the alleged victims in this April 6, 2017, incident. The Miami-Dade County School District issued a reprimand for the alleged April 6 incident. Nothing in the record suggests that Respondent had a right to contest this charge, and, given the mildness of the punishment, it is impossible to infer that she did; but, again, a choice not to contest this charge would not support an inference of guilt by clear and convincing evidence. Petitioner has failed to prove by clear and convincing evidence any of the allegations involving grabbing students by their collars or stepping on the foot of a student.
Recommendation It is RECOMMENDED THAT the Education Practices Commission enter a final order finding Respondent not guilty of the allegations set forth in the Administrative Complaint, as amended. DONE AND ENTERED this 10th day of December, 2019, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 10th day of December, 2019. 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) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Randy Kosec, Jr., Chief Office of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Branden Vicari, Esquire Herdman & Sakellarides, P.A. 29605 U.S. Highway 19 North, Suite 110 Clearwater, Florida 33761 (eServed) Charles T. Whitelock, Esquire Charles T. Whitelock, P.A. 300 Southeast 13th Street Fort Lauderdale, Florida 33316 (eServed)
The Issue The issue here presented concerns the challenge by the Petitioner, State of Florida, Department of Professional Regulation, to the Respondent, State of Florida, Department of Professional Regulation, Board of Real Estate's video tape course rule, i.e., Rule 21V-3.08(5), Florida Administrative Code, in that portion which states: "A licensed instructor must he in attendance to conduct each quiz and review session." The stated authority for this rules challenge is in accordance with Section 120.54, Florida Statutes, and Section 455.211, Florida Statutes. In particular, the Petitioner has alleged that: The proposed rule goes beyond the statutory authority of the Board of Real Estate. The proposed rule has not been accompanied by adequate economic impact statements as required by Subsection 120.54(2), Florida Statutes. The proposed rule does not protect the public from any significant and discernible harm or damages. The proposed rule unreasonably restricts competition or the availability of professional services in the state. The proposed rule unnecessarily increases the cost of professional services by the corresponding or equivalent public benefit.
Findings Of Fact On June 26, 1980, the Respondent filed a Notice of Rule Adoption of Rule 21V-3.08, Florida Administrative Code. The general text of that rule may be found in the Petitioner's Exhibit No. 1 admitted into evidence. Within that rule is found Subsection 21V-3.08(5), which establishes the requirement that a licensed instructor must conduct the quiz and review sessions of the video tape course envisioned by the subject rule. 1/ The quiz and review sessions are held in the fourth, eighth, twelfth and sixteenth sessions, with each session being constituted of a three-hour program for a total of twelve hours of live instructor time. Rule 21V-3.08, Florida Administrative Code, was published in the Florida Administrative Weekly on July 3, 1980, in the form shown through Petitioner's Exhibit No. 1. The rule in question had been the subject of discussion in the Respondent's monthly meeting in June, 1980, preliminary to its adoption. Again, in the meeting of July 28, 1980, the rule was discussed and offered for public comment by those parties interested in stating their positions in support of or opposition to the rule. Petitioners Exhibit No. 4 admitted into evidence is a transcript of that meeting. In the course of the July 28, 1980, meeting, David W. Dalton, President of the Bert Rogers School of Real Estate, Inc., an organization that would be substantially affected by the proposed rule, was allowed to state his opposition to the passage of that portion of the rule mandating twelve hours of live instructor time. In essence, Dalton, in behalf of his corporation, was opposed to any mandatory requirement of more than three hours of live instructor time based upon the belief that Chapter 80-51, Section 1, Laws of Florida (1980) which created Subsection 475.451(7) Florida Statutes, did not allow for the requirement of more than three hours of live instructor time in a video tape real estate course. In the July, 1980, meeting the Petitioner through its legal staff was also allowed to make known its opposition to the establishment of the requirement far live instructors in excess of three hours. This opposition was made known prior to the time that the final decision was reached to implement the rule's provision in question. One of the Respondent's board members also made known her opposition to passage of the rule, that being Virginia Bishop, who stated that she was in accord with the principle of having more than three hours of live instruction but was required to act in deference to the wishes of the Florida House of Representatives, member, Carl Ogden, Vice Chairman, Regulatory Reform Committee, who expressed his opinion that the legislation, Chapter 80-51, Section 1, Laws of Florida (1980), instituting Subsection 475.451(7), Florida Statutes, would not allow for more than three hours of live instruction to be mandated by the Board of Real Estate. Notwithstanding Mrs. Bishop's vote against the passage, the decision of the others members of the Board of Real Estate deliberating this matter, was to go forward with Rule 21V-3.08, Florida Administrative Code, leaving intact the twelve-hour requirement for live instruction. Rule 21V-3.08, Florida Administrative Code, as it appears in Petitioner's Exhibit No. 1 was filed with the Secretary of State Office, State of Florida, on August 4, 1980. On that same date, the Petitioner petitioned the Division of Administrative Hearings for a rules challenge hearing in accordance with the provision Section 120.54, Florida Statutes, and the further authority found in Section 455.211, Florida Statutes. Rule 21V-3.08, Florida Administrative Code, became effective on August 24, 1980. The rule as adopted had an economic impact statement and the statement addressed the concerns of Section 455.211, Florida Statutes, and the language of the economic impact statement may be found in Petitioner's Exhibit No. 1. The economic impact statement was prepared by the staff of the Respondent and the Board of Real Estate relied on the staff's information in adopting the rule in question, and the overall Chapter 21V-3, Florida Administrative Code. In addition to the comments found in the economic statement appended to the rule, testimony was elicited from certain witnesses presented by the Petitioner in the course of the hearing in its effort to attack the adequacy of the economic impact statement. The Commissioners who testified in behalf of the Petitioner, namely, Arthur M. Hamel and Virginia Bishop, did not have an in-depth knowledge of the steps which the staff undertook in preparing the economic impact statement. Hamel did indicate that from his knowledge of the situation, that if there were any increase in cost to the course participants due to the utilization of a live instructor as opposed to a video tape monitor, that he felt this would be money well spent, intimating that there would be some higher quality presentation through live instruction. Hamel also expressed concern that some of the schools that were offering real estate courses were turning out students who might not have sufficient expertise to act as a real estate professional; instead, they might be perceived as people who were able to answer examination questions only. Hamel had a concern about how this affected the public. Mrs. Bishop testified that she felt that a live instructor should be utilized in teaching participants in the courses. Carlos Brian Stafford testified in the hearing. Mr. Stafford is the Executive Director of the Board of Real Estate. Although Mr. Stafford was privy to the opinions expressed by Representative Ogden on the propriety of enacting a rule which would require more than three hours of live instructor participation in the real estate courses, and, made known Mr. Ogden's opinion to the Board of Real Estate prior to the adoption of the rule in question, he was nonetheless persuaded as Executive Director that the limitation of the number of live instructor hours would enure to the detriment of the applicants for registration. Taking the course using video tape as a primary emphasis as compared to live instruction might be cheaper in initial costs, but was outweighed in the mind of Stafford because he felt that the higher number of individuals taking a real estate salesman examination would fail, thereby requiring them to purchase and participate in a two or three day review course in addition to the general course of video instruction in order to pass the examination. The two courses in turn would cost more than a general course with greater emphasis on live instruction. In response to the Petitioner's inquiry, Stafford said that no statistical study was done to determine economic impact because there was "nothing to base the study on". The witness indicated that the decision to employ twelve hours of live instruction came about through staff discussion within the Board of Real Estate. Charles H. Hoeck, real estate education coordinator for the Petitioner, testified as witness for the Petitioner. Mr. Hoeck was the individual most responsible for the preparation of Rule 21V-3.08, Florida Administrative Code. Hoeck acknowledges that no specific comment was offered on the question of the economic impact of Rule 21V-3.08, Florida Administrative Code; however, he goes on to say that a wide range of information was reviewed on the cost and methods of preparation of video tapes. This information revealed that the cost of professionally developing a 48-hour block of technical material could run as much as $150,000.00 as contrasted with a less sophisticated operation which might cost $5,000.00. Where the actual cost for the creation of the program might be established eventually could not be determined according to Hoeck, because the type course contemplated by the rule had not been prepared before the rule adoption. As a consequence, the cost figures were not available to make the determination. Nonetheless, Hoeck concedes that twelve hours of live instruction in the video tape course will cost more than three hours of live instruction on a unit basis. This cost could be passed on to the student in the proprietary school course; not necessarily so in the community college type course. According to Hoeck, whatever the method of instruction, the Board of Real Estate would prescribe the course content, to include 16 three-hour sessions. Hoeck examined other instructional experiences prior to the draft of the economic impact statement related to the overall Chapter 21V-3, Florida Administrative Code, an attempt to ascertain effectiveness of live presentations as contrasted with video tape presentations. This effort was not successful in the sense that the programs reviewed at the University of Florida and University of Central Florida indicated that a video tape technique was used by way of supplement or augmentation to the live instruction as opposed to an alternative method of instruction. Other material which Hoeck was familiar with and looked to in making the decisions related to the rule in question convinced Hoeck that video tape was less effective than live instruction. This is particularly true of persons who have less education and are older students. In this respect, 55 percent of the applicants have a high school education or less, and approximately 45 percent of those persons are over forty years old, and the latter group typically has not been involved in the educational process for a number of years. To Hoeck those persons with the limited educational background have more difficulty with video tape instruction than they do with live instruction which allows you question and answer periods. The above referenced percentages are as applied to 50,000 persons who took the salesman's license examination in 1979 of the 75,000 people who took the introductory course in that same year. As the petitioner's witness, Hoeck also discussed briefly the experience that the State of Georgia had with the utilization of video tapes in lieu of the traditional live instruction. Georgia found that the percentage of those passing the real estate examination went down significantly when video tapes were used. (This information about the experience in Georgia was not personally verified by Hoeck.) If the Georgia experience were indicative of what would occur in Florida, the applicant for registration would be required to stand examination again and this would cost more money for registration and examination and it would be expected, in Hoeck's opinion, that the applicant for re-examination would take the review course in addition to the general video tape course, which would again cost more money. The same David W. Dalton who had testified in the public hearing prior to the adoption of the rule gave testimony in the course of the hearing in the rules challenge matter. In Dalton's opinion, the video tape instruction would not achieve the same level of quality of instruction as a live instructor of the highest caliber, but it would be considerably better than what Mr. Dalton considered to be the lowest quality of live instruction, that low range being typical of the market place. Dalton stated that video tape instruction can be offered at substantial savings because of the ability to use unskilled individuals to run the video equipment as opposed to paying live instructors. Although this cost savings could be made available to the course participant, Dalton stated that the savings would be at the option of tee cool, in that the school might elect to take the savings tit the cost of the preparation of the course in the way of additional profits. Again, Dalton expressed his opinion that the enabling legislation as found in Chapter 80-51, Section 1, Laws of Florida (1980) creating Subsection 475.451(7), Florida Statutes, restricted the Board of Real Estate to a three-hour mandatory requirement for live instruction, with additional hours of live instruction being at the option of the real estate school.
The Issue The issue in this case is whether Respondent violated misconduct rules relating to educators and, if so, whether discipline, up to and including dismissal, should be imposed by Petitioner.
Findings Of Fact Petitioner, Orange County School Board, is responsible for the operation of all public schools within the Orange County Public School system. Petitioner is responsible for hiring and monitoring qualified individuals who teach students within the OCPS system. Teachers may be either Professional Service Contract employees or employed under an annual contract. Professional service contract employees are entitled to all rights, privileges, and responsibilities set forth in the Contract Between [Petitioner] and The Orange County Classroom Teachers Association. Respondent received his teaching certificate in the State of Florida in 1985 and has taught school in Orange County since that time. At all times material hereto, Respondent was employed as a Professional Service Contract employee with OCPS. Respondent transferred to WPHS at the beginning of the 2003-2004 school year. Prior to that time, Respondent had been a teacher at Jones High School, also within the OCPS system. Jones High School is a predominantly African-American school which had received two consecutive "F" grades from the Department of Education due to student achievement (or lack thereof) on the Florida Comprehensive Assessment Test (FCAT). WPHS, on the other hand, was a predominantly white school which had not received "F" grades relating to the FCAT.1 Respondent was transferred to WPHS to teach Algebra I, primarily to students who were struggling with Algebra. His students were, by and large, tenth graders who were taking Algebra I, which normally is a ninth grade class. Some of the students had previously failed Algebra; others were taking the class for the first time. When Respondent was assessed by an assistant principal for school year 2004-2005, he received an "ER" grade in planning and delivering instruction. "ER" meant effective, but with recommendations. A comment to his assessment stated, "Mr. DeShay needs to work on motivating his students so they will want to perform to higher standards within his class." The following year (2005-2006), Respondent received another "ER" grade in planning and delivering instructions. This time, the comment stated, "Mr. DeShay needs to plan his instructional time so that students are constantly engaged during the period. This will also assist in classroom management problems." Because Respondent received two consecutive "ER" grades, he was placed on a Professional Improvement Plan (PIP) for the 2006-2007 school year. The PIP targeted three areas of competencies: classroom management and discipline; planning and delivery of instruction; and professional responsibility. The PIP commenced on October 26, 2006, and was to run for a period of 90 school days, i.e., until April 19, 2007. At the end of the PIP period, Respondent had not made improvements in the areas of "planning and delivery of instruction" and "classroom management and discipline." As a result, Respondent received a grade of "NI" on his final assessment. "NI" means the instructor needs improvement in order to meet expected standards. The PIP was then extended another 30 school days, commencing at the start of the 2007-2008 school year. Respondent had never received an "NI" grade on an evaluation before the final assessment in April 2007. Respondent had never been disciplined during the course of his employment with the OCPS system prior to coming to WPHS. He had a reputation as an effective and respected teacher while at Jones High School and previously. During the 2007-2008 school year, while Respondent was still under the extended PIP, Eric Close, a technology coordinator at WPHS, had occasion to log on to Respondent's school computer. Close was, at the request of another teacher, seeking to retrieve a copy of math software believed to exist on Respondent's H drive, located on the school network. While Close was retrieving the software, he noticed a Word document entitled, "Your Neighbor is Watching You." Upon a quick scan of the Word document, Close ascertained that it contained potentially inappropriate material. Close reported his finding to his superior and to administration. When administration reviewed the "Neighbor" story, it was determined to be objectionable and inappropriate due to its content. The story was about a somewhat benign voyeuristic encounter between neighbors, but was certainly not appropriate for high school students. It did, in fact, violate administration's interpretation of OCPS Management Directive A-9. Management Directive A-9 is a work rule prohibiting employees from using school computers for certain specified activities or purposes. Pertinent portions of Management Directive A-9 state: Employee Access to Network * * * District employee shall not conduct a private enterprise, defined as offering or providing goods or services for personal use on school time. District equipment or supplies, including technology, computers and other equipment . . . may not be used for private business . . . unless expressly authorized by the Superintendent . . . The District authorizes employees to use District computer technology resources and data bases for assigned responsibilities. These resources shall be used by employees to enhance job productivity as it relates to District business. These resources shall be used for District-related purposes and not for personal use or gain or for the benefit of private, "for profit" or "not for profit" organizations. Network Security and Acceptable Use a. Employees shall not use the Web or FTP to search or download obscene or inappropriate material from the Internet. Employees using District computers who discover they have connected with a web site that contains sexually explicit, racist, violent or other potentially offensive material must immediately disconnect from that site. The ability to connect with a specific web site does not in itself imply that permission is granted to visit that site. * * * Due Process a. Any employee failing to comply with this Management Directive may be subject to disciplinary action as well as civil liability or criminal charges. Searches and Seizures Employees have limited privacy expectation in the contents of their personal files on the District Network. . . At any time and without prior notice, the District reserves the right to examine electronic mail messages, files on personal computers, web browser cache files, web browser bookmarks, and other information stored on or passing through District computers. Routine maintenance and monitoring of the Network may lead to discovery that a user has violated this Management Directive or the law. An individual search in collaboration with the employee's supervisor or Employee Relations will be conducted if there is a reasonable suspicion that a user has violated the law or this Management Directive. All employees are expected to be aware of and adhere to Management Directive A-9. Each time a user logs on to a District computer, a "pop-up" appears that includes a warning against improper use. The pop-up says in pertinent part: NOTICE TO USERS This is an Orange County Public Schools owned computer. It is for authorized use only. You are responsible for all access that occurs using your logon and password. . . Unauthorized or improper use of this system may result in disciplinary action as specified in Management Directive A-9 . . . as well as civil and/or criminal penalties. [Site to Management Directive A-9 is provided.] The log-on pop-up appeared on Respondent's screen each time he logged on at school. Respondent was aware of Management Directive A-9, but doesn't know if he ever read the entire five- page directive in its entirety. He does, however, acknowledge that he is bound by the terms of that directive. After Close found the seemingly incriminating document on Respondent's computer, Administration conducted a full review of Respondent's H drive and computer in its entirety. Numerous personal files were found which, in the view of school administration, violated Management Directive A-9. A partial list of the questioned files and documents follows: Stories entitled, "Your Neighbor is Watching You" and "Life Changes Quickly" (about a male business executive's sexual interest in his newly hired secretary), and "Luvystory." Security reports for a job where Respondent had worked part time. On-line business (money-making) opportunities. Information about an on-line business (www.Getestore.com). Shopping from internet retailers, including www.Amazon.com, www.Perfume.com, www.Walmart.com and others. Digital pictures of scantily clad women related to a proposed business venture by Respondent. A social networking site called www.blackmembervoices.com with Respondent's profile, photo and contact information. Numerous non-educational sites relating to funny videos, court TV, vacation sites, golf sites, etc. Personal correspondence written by Respondent. It is clear Respondent used his school computer on many occasions to at least visit suspect web sites, engage in business and/or work on non-school-related documents. What is less clear is the extent to which those sites or documents were accessed during classroom periods. Petitioner's technology personnel were able to identify all of the sites and documents existing on Respondent's computer. An exhaustive list of each site, including when each had been accessed, was provided at final hearing. The list clearly shows that Respondent accessed sites or opened questionable files during classroom periods, during Respondent's planning period, and before and after school. The technology people could not, however, ascertain how long each site or document remained on Respondent's screen once it was opened. Respondent maintains that he only worked on documents for brief periods of time and perhaps only accessed them to transfer from a pen drive or diskette to his H drive without working on them at all. He says that he did not open any inappropriate documents in the presence of students. No students, as far as he knows, ever accessed Respondent's computer. It is clear that Respondent's school computer contained documents and materials that violated Management Directive A-9. It is clear those documents, materials and questionable web sites were accessed numerous times. It is not clear how much time Respondent spent on the documents, viewing the sites, or engaging in personal business on the computer. "Willful neglect of duty" has been defined as a constant and continuing intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority. See Fla. Admin. Code R. 6B-4.009(4). Respondent's continued use of his school computer for personal reasons, however brief each use might have been, constitutes willful neglect of duty under this definition. By having objectionable and potentially harmful information and documents on his computer, Respondent breached his employment agreement. Respondent was not protecting students from conditions harmful to their learning. Although no students were known to actually see the material, its mere existence was in violation of Respondent's obligations. Further, by taking time out of his work day to engage in personal business and other interests, Respondent has subordinated his professional obligation to his students. Respondent's explanations about his use of the computer bear some discussion. The explanations do not deny the existence of the materials or access to web sites, but seek to minimize the significance of the use (or misuse). As for the short stories on the computer, Respondent says he was taking an on-line literature class and the stories were part of his assignments. He would submit stories and they would be evaluated by instructors. Respondent's intent was to receive some sort of certification of completion from the class and submit that to his employer (OCPS) as evidence that he was attempting to enhance his education. Respondent never finished the on-line course.2 As for use of the school computer, Respondent says (at page 444 of the hearing Transcript), "So anytime I'd use those things, I would--if I had some spare time, I'd pop it in and work on it, and I'd save it on my H drive." This testimony somewhat contradicts Respondent's claim that the documents were only accessed when he was downloading them from a pen drive. The pictures of scantily clad women were explained by Respondent as merely advertisements that had been part of a web sites (Men's Health magazine) he had accessed during school hours. He did not download the pictures to his H drive. Also appearing on the computer were some pictures described as "modeling photos." Respondent says those were pictures he accessed from a modeling site with the intent of creating a DVD or PowerPoint presentation for use by the models in marketing themselves. Respondent says he did not know any of the models and that this proposed business never came to full fruition. Respondent says he worked on that project using his school computer, but during after-school hours. Respondent says that although he had documents and information about his personal businesses on the school computer, he never used the computer to order supplies for his business. He admits ordering some Beanie Babies, but says those were ordered as gifts for people, not as replacement goods for his vending company business. Respondent did draft contracts on his school computer, but says he never used them in conjunction with his business. The security logs on Respondent's computer were done for a friend. Respondent had worked as a part-time security guard at an apartment complex. When he could no longer do so because of the requirements of his teaching job, Respondent was able to turn the job over to a friend. That friend could not write well, so Respondent would do the friend's weekly logs for him on the computer. In total, it is clear that Respondent did utilize his school computer for personal matters and that some of the personal matters were not appropriate for high school students in his charge. The fact that no students saw the inappropriate material--as far as anyone knows--does not minimize the seriousness of Respondent's actions.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Orange County School Board finding Respondent guilty of misconduct in office and imposing the following sanctions: Uphold Respondent's suspension to date; reinstate Respondent's professional services contract commencing as soon as practicable; and require Respondent to complete remedial training concerning professionalism and use of school property. DONE AND ENTERED this 19th day of December, 2008, in Tallahassee, Leon County, Florida. 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 19th day of December, 2008.
The Issue The issue for determination at hearing was whether just cause exists to sustain Respondent’s dismissal from employment with the Miami-Dade County School Board (“School Board” or “Petitioner”).
Findings Of Fact At all times material hereto, Petitioner was a duly constituted School Board charged with the duty to operate, control, and supervise all free public schools within the School District of Miami-Dade County, Florida (“School District”), pursuant to article IX, section 4(b) of the Florida Constitution and section 1012.23, Florida Statutes. At all times material hereto, Respondent was employed as an elementary school teacher at Van E. Blanton Elementary School (“Blanton”) by the School Board and held a professional services contract. She began working for the School District as a substitute teacher in 1994 and has been employed as a full-time teacher for 14 years. On April 20, 2016, Respondent was issued a Professional Responsibilities Memorandum regarding student discipline. The purpose of the memo was to remind Respondent of how to properly treat children who are misbehaving after she was observed sending two students to stand in the corner after blurting out answers. On or about April 25, 2016, Respondent hit a student with her hand on the student’s arm, leaving the student’s arm visibly red and welted. A summary of a conference-for-the-record from May 18, 2016, was admitted into evidence. Pedro Cedeno, the principal at Blanton for the past three years, stated that he considered the current incidents similar in nature to this prior incident from 2016. On May 19, 2016, Respondent was issued a written reprimand relating to the April 25, 2016, incident. On April 18, 2017, the Education Practices Commission (“EPC”) filed an Administrative Complaint against Respondent based on the April 25, 2016, incident under EPC Case No. 17-0457-RT. On December 14, 2017, a Final Order was entered in the EPC case, adopting the parties’ Settlement Agreement, which issued Respondent a letter of reprimand and placed her on one year’s probation. Throughout Respondent’s tenure with the School Board prior to the instant matter, the only discipline she received was the reprimand described above. Three incidents, occurring on March 8, 13, and May 23, 2019, respectively, gave rise to these proceedings. Respondent worked at Blanton as a first-grade teacher. On March 8, 2019, Mr. Cedeno was standing near the main office when he saw Respondent and her class coming in from the hallway. Mr. Cedeno saw Respondent pull a student, C.J., who was kneeling on the ground at the back of the line. Respondent said something to the student, but Mr. Cedeno could not hear it. Mr. Cedeno saw Respondent pull the student by the arm. He testified that Respondent was “pulling her to move her whole body over to the back of the class … it was more of a pull, which is what caught my attention.” Mr. Cedeno approached Respondent and asked, “What’s going on?” He also told Respondent that they cannot pull students like that. He advised Respondent it would be better to leave the child there and call for attention or assistance. Apparently, the video cameras were not working on March 8 because no video footage was available for Mr. Cedeno, Respondent, or the undersigned to review after the incident or at hearing. On March 13, 2019, Mr. Cedeno saw via video that Respondent had her students lined up as they were coming or going into the classroom. Mr. Cedeno observed Respondent grab and pull a student into the class. That caught his attention. It was not an appropriate way for Respondent to have handled the situation. Both the March 8 and 13, 2019, incidents involved C.J. The March 13, 2019, video showed that C.J. was moving slowly in the hallway while the rest of Respondent’s students were already in the classroom. Respondent waved at C.J. and said something to the effect of “let’s go.” When C.J. did not respond, Respondent went to C.J., took her by the arm, and walked her into the classroom. While the video does not show excessive force being used to pull C.J. up from the floor where she was tying her shoe, it did show more than Respondent reaching out her hand, then waiting for C.J. to take her hand to be led. There was a small amount of force involved in getting C.J. up and moving. Respondent testified she was not mad at C.J., but she was firm in telling C.J. she needed to get going and into the classroom. From the video, C.J. did not seem embarrassed and was not crying when she was physically urged up and into the classroom. The video does not evidence violence, anger, or aggression. It does evidence a teacher pulling a young student up from the floor and walking her briskly into the classroom. At hearing, however, C.J. testified credibly that she was both embarrassed and sad by the incident. Following the March 13, 2019, incident, Mr. Cedeno filed a personnel investigative form with the School District’s Office of Professional Standards. No action was taken to remove Respondent from her position or to impose any discipline. J.E., a student, testified regarding the May 23, 2019, incident. He said Respondent was his teacher during the prior school year. He watched the video of the incident and identified both himself and Respondent in the video. J.E. had asked Respondent if he could go to the bathroom. Respondent did not allow J.E. to use the bathroom at that time. Then, J.E. tried to get into the classroom to use the bathroom and Respondent pushed J.E. The video shows Respondent push J.E. J.E. fell and then got up. His leg was hurting and it made him feel mad. J.E., a large child for his age, appeared somewhat distracted while testifying, and his mother had to prompt him once or twice to pay attention to the questions being asked and to give audible answers. However, his recollection of the May 23, 2019, incident was clear. He admitted that he was acting up, which was confirmed by Respondent, but was “mad” at being pushed into the classroom where he landed on one of his classmates. He was only mildly injured and did not require first aid or medical care as a result of his fall. Respondent noted that J.E. was a disruptive student who is disobedient, bigger than the rest of the students in the class, and is known for pushing and bullying the other students. Respondent testified that on May 23, 2019, rather than entering the classroom when he was supposed to, J.E. doubled back, grabbed another student, and spun the student around, which caused that student to cry. Respondent was obviously frustrated by J.E.’s behavior and gave him a push into the room. J.E. bumped into his best friend, which sent the two of them sprawling onto the ground. According to Respondent, J.E. fell to the ground laughing and clowning around, after which they all sat down and started class. J.E. did not appear embarrassed or upset by the incident, Respondent testified. The May 23, 2019, incident was captured on video and was personally witnessed by a teacher, Alissa Bennett, who was coming down the hall with her class at the time. Ms. Bennett is a fifth-grade teacher at Blanton and was employed as such during the incidents giving rise to these proceedings. Ms. Bennett knows of Respondent but does not know Respondent personally. Ms. Bennett testified regarding the May 23, 2019, incident and reviewed the video of the incident during her testimony. On May 23, 2019, Ms. Bennett was walking her class to lunch. It was about 11:30 or 11:35 a.m. She came out of the stairwell and saw a big commotion in front of her. There was a lot of yelling and kids in the hallway. When Ms. Bennett walked closer, she saw Respondent push a student into the classroom. Ms. Bennett kept walking and heard one of her students exclaim, “[w]ow, that teacher just pushed that student.” Ms. Bennett said, “I was kinda like, oh, my God. Did that just happen? Did I just see that?” She recognized this as a serious incident. She took her students to lunch. Later that night, she told her boyfriend about the events she witnessed at school. She was a new teacher and was not sure what to do about it. Her boyfriend encouraged her to report the incident. The following day, on May 24, 2019, Ms. Bennett reported the incident via text to the counselor. She also spoke to Mr. Cedeno about what she saw. Mr. Cedeno acknowledged speaking with Ms. Bennett about the incident. He explained that Respondent could have avoided the situation by using a call button, an emergency button that immediately notifies the office, or she could have asked another person in the hallway for assistance. For example, there are always security and staff in the hallway, and they are present in the video evidence submitted. The security and other staff members have radio access. Mr. Cedeno testified that there was no excuse, based upon what he saw in the video, for Respondent to push J.E. The School Board and the United Teachers of Dade, the classroom teachers union, have agreed to be bound by the principle of progressive discipline, and that discipline imposed shall be consistent with that principle. Accordingly, they have agreed that the degree of discipline shall be reasonably related to the seriousness of the offense.
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 suspending Respondent for ten days without pay and awarding her back pay from the date her employment was terminated, except for the ten days of suspension. DONE AND ENTERED this 4th day of December, 2020, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 December, 2020. COPIES FURNISHED: Cristina Rivera, Esquire Miami-Dade County School Board Office of the School Board Attorney 1450 Northeast 2nd Avenue, Suite 430 Miami, Florida 33132 (eServed) Mark Herdman, Esquire Herdman & Sakellarides, P.A. 29605 U.S. Highway 19 North, Suite 110 Clearwater, Florida 33761-1526 (eServed) Michele Lara Jones, Esquire Miami-Dade County School Board 1450 Northeast 2nd Avenue, Room 430 Miami, Florida 33132 (eServed) Alberto M. Carvalho, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 912 Miami, Florida 33132 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Richard Corcoran, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
Findings Of Fact Respondent holds Certificate Number 227135, regular, valid through June 30, 1982, covering the areas of biology, science and social studies. Respondent received a bachelor's degree in history, zoology and education from Parson's College in 1967, and a Master of Science degree from the Florida Institute of Technology in 1980. During the 1976-77 school year, Respondent was employed as a science teacher at Nims Middle School in Tallahassee, Florida. Respondent, a licensed professional photographer, also worked with the photography club at Nims Middle School during the school years from 1975 through 1978. On or about May 30, 1977, while Respondent was employed as a science teacher at Nims Middle School, two students, Linda McKenzie and Linda Underwood, were excused from their regularly scheduled sixth period classes to go to Respondent's classroom to look at laboratory animals kept there. At all times material hereto, Respondent aid the two students mentioned above were the only occupants of the classroom. Respondent and the two students engaged in conversation, during which Respondent discussed taking photographs of the two students. As the two students began to leave the classroom, Respondent placed his hands on Linda Underwood's waist and "French-kissed" her. Ms. Underwood was shocked and embarrassed, and quickly left the classroom. The incident was not reported to Ms. Underwood's parents, but was reported to school officials by Ms. Underwood several days after the incident occurred. Prior to the above-described incident, Ms. Underwood had called Respondent on the telephone at his home, and had also written him letters. None of these letters were introduced into evidence in this proceeding. Ms. Underwood apparently also made several telephone calls to Respondent after the incident occurred. Neither the content of these telephone conversations nor any other evidence of record in this proceeding is sufficiently clear to demonstrate that Ms. Underwood was so biased against Respondent to have fabricated her testimony. Having observed the demeanor of the several witnesses testifying on this issue, and having considered their interest, if any, in the outcome of this proceeding, Ms. Underwood's version of the incident is accepted as persuasive. While Respondent was employed as a science teacher at Nims Middle School, he drove to the home of Mrs. Juanita Jackson accompanied by two Nims Middle School students, Carlotta Wolfe and Lori Taylor. The two students were dressed in either bathing suits or shorts, and rode in the front seat with Respondent. had offered the two students a ride when he observed them walking, and was asked by them to drive to the Jackson home. Respondent did not know the purpose of the visit to the Jackson home. One of the students apparently requested that Mrs. Jackson's daughter be allowed to get into the car with Respondent and the other students, but Mrs. Jackson refused to allow her daughter to do so. Although Mrs. Jackson testified that she observed Respondent's arm on the back of the seat while Carlotta Wolfe was seated next to him, there is insufficient evidence of record from which to conclude that any impropriety was intended by Respondent, or in fact occurred. Respondent was granted a leave of absence by the Leon County School Board for the 1979-80 school year, and was reassigned to Godby High School for the 1980-81 school year. On August 4, 1980, Respondent met with William J. Montford, principal of Godby High School, and other administrative personnel. During that meeting Respondent was specifically warned about inappropriate and improper comments and behavior directed toward students. During the 1980-81 school year Ms. Kelly Moore was one of Respondent's students. On one occasion when Ms. Moore was tardy to class and was in the process of signing a late sheet in compliance with school policy, Respondent told her to put her telephone number by her name "...in case I get horny one day." On another occasion, when Respondent inquired and was told that Ms. Moore worked in the lingerie department at Maas Brothers department store, he observed to Ms. Moore that he "...could really get into panties, especially yours." Each of these comments was made in Respondent's classroom, in the presence of other students, and for no appropriate reason. Respondent denies making these remarks, but it is specifically concluded that the testimony of Ms. Moore is more persuasive concerning these incidents. While employed as a teacher at Godby High School, Respondent engaged in a conversation with Dorothy Bryant, Yolanda Jenkins and Kendra Green, three of his students. During the course of this conversation, Respondent told these students that he would like to take them out and get something to drink and smoke with them. During the course of this conversation, Respondent either used or agreed to the use of the term "orgy" in connection with the above-described offer, and wrote a mathematical equation on the blackboard, and inquired of the students "How many times can one go into three?" During the 1980-81 school year at Godby High School, Traci Lingel was another of Respondent's female students. On one occasion when Ms. Lingel sought a pass to leave Respondent's classroom, Respondent remarked to her "Just because I'm your teacher and because I'm older than you doesn't mean that we can't go to bed together." On another occasion, Respondent remarked to Ms. Lingel that he had met her sister, also a student at Godby High School, and that he knew that it was her sister because she had "sexy eyes" just like Ms. Lingel. Further, Respondent observed to Ms. Lingel that he would award her an "A" in his course if she could arrange a date for him with her sister. On still another occasion, Respondent inquired of Ms. Lingel's boyfriend if Respondent could blow in Ms. Lingel's ear. On other occasions Respondent told two of his students, Debbie McCauley and Leeann Nelson, during class periods that he thought they had "nice legs." In addition, Respondent on one occasion told Ms. Nelson that he would like to go to bed with her. On several occasions during his tenure at Godby High School, Respondent related to various of his students that he was "hung over," had gotten drunk the preceding weekend and/or had smoked marijuana. On at least one other occasion, upon sending a male student to Respondent's vehicle to retrieve some items left there by Respondent, Respondent told the student that a bottle of liquor was under the seat in the truck, and the student could take a drink if he wished to do so. This latter remark was made in the presence of other students. Respondent spoke on the telephone with another of his students, Theresa Tran, about taking photographs of her. Respondent inquired of Ms. Tran concerning her favorite alcoholic beverages, and remarked to her that he could take her photographs and afterwards take her out for a drink. Respondent also on one occasion remarked to Traci Lingel, another of his students mentioned earlier in this order, that he and Ms. Lingel could get drunk or high and he could take her photographs. Respondent received a written reprimand dated February 10, 1981, from his principal, William J. Montford, concerning his improper conduct with female students. Respondent was again reprimanded by his principal by written reprimand dated March 17, 1981. On or about June 6, 1981, a presentation designed to inform high school students about the dangers of drug abuse was made in Respondent's classroom. A student attending a drug abuse program outside Godby High School participated in the program to share his negative experiences with drugs with other students. During a break in the program, Respondent engaged in a conversation in which the above-mentioned student and a representative of the Florida Alcohol and Drug Abuse Association participated. During the course of this conversation, Respondent related that he obtained high-quality cocaine through his girlfriend from the New York or Boston areas, and that the quality of drugs so obtained was better than could be obtained in the Tallahassee area. Respondent's remarks to female students were often made openly in a classroom setting so that the students who were the subject of the remarks were embarrassed before their peers and Respondent's predilection for making such remarks became common knowledge among his students. As a result, many of his students were uncomfortable attending his classes. Because of the frequently open and notorious nature of his conduct as hereinbefore related, Respondent's effectiveness as an instructional employee has been seriously reduced. Respondent generally denies that the incidents related above ever occurred. There is, accordingly, a sharp divergence in the various accounts of these activities as related by several of the witnesses. In resolving these testimonial discrepancies, the Hearing Officer observed the demeanor of the witnesses while testifying and considered the interests, if any, of these witnesses in the outcome of this proceeding in determining which of the various versions of these occurrences were the more credible. Both counsel for Petitioner and Respondent have submitted proposed findings of fact for consideration by the Hearing Officer during the course of this proceeding. To the extent that those proposed findings of fact are not included in this Recommended Order, they have been rejected either as not having been supported by evidence of record or as being irrelevant to the issues involved in this proceeding.
Recommendation Pursuant to notice, the Division of Administrative Hearings, through its undersigned Hearing Officer, William E. Williams, held a public hearing in this cause on September 17 and 18, 1981, in Tallahassee, Florida.
