12-002859TTS Broward County School Board vs. Rhea Cohen Status: Closed Recommended Order on Monday, July 15, 2013.

Summary: Teacher's mistreatment of students constituted misconduct in office and justified termination of employment.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BROWARD COUNTY SCHOOL BOARD,

Petitioner,

vs.

Case No. 12-2859TTS

RHEA COHEN,

Respondent.

PAM STEWART, AS COMMISSIONER OF

EDUCATION,

Petitioner,

vs.

RHEA PLAUT COHEN, Case No. 13-0704PL

Respondent.

/

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was

conducted in Fort Lauderdale, Florida, on May 9, 2013, before

Administrative Law Judge Claude B. Arrington of the Division of

Administrative Hearings (DOAH).

APPEARANCES

For Petitioners: Charles T. Whitelock, Esquire

Charles T. Whitelock, P.A.

Suite E

300 Southeast 13th Street

Fort Lauderdale, Florida 33316

For Respondent: Robert F. McKee, Esquire

Kelly and McKee

Post Office Box 75638

Tampa, Florida 33675

STATEMENT OF THE ISSUES

As to DOAH Case No. 12-2859TTS, whether Rhea Cohen

(Respondent), a classroom teacher, committed the acts alleged in

the Amended Administrative Complaint filed by Robert Runcie, as

Superintendent of the Broward County Schools (Superintendent)

and, if so, the discipline that should be imposed against

Respondent’s employment.

As to DOAH Case No. 13-0704PL, whether Respondent committed

the acts alleged in the Administrative Complaint filed by Pam

Stewart, as Commissioner of Education (Commissioner) and, if so,

the discipline that should be imposed against Respondent’s

teacher’s certificate.

PRELIMINARY STATEMENT

This is a consolidated proceeding pertaining to factual

allegations relating to Respondent’s treatment of students. The

Superintendent seeks to terminate Respondent’s employment in

Case No. 12-2859TTS, and the Commissioner seeks to discipline

Respondent’s teacher’s certificate in Case No. 13-0704PL.

As will be discussed in the Conclusions of Law section,

there are two different standards of proof. The Superintendent

must prove his case by a preponderance of the evidence. The

Commissioner must prove her case by clear and convincing

evidence.

All findings of fact set forth herein have been established

by clear and convincing evidence. No factual dispute has turned

on differences between the two standards.

Separate discussions as to the School Board’s case and the

Commissioner’s case are set forth in the Conclusions of Law

section. Separate recommendations have also been made.

At the times relevant to this proceeding, Respondent was

employed by the Broward County School Board (School Board) as an

Exceptional Student Education (ESE) teacher at Crystal Lake

Middle School (Crystal Lake). At its regularly scheduled meeting

on August 7, 2012, the School Board took action to suspend

Respondent’s employment without pay and institute proceedings to

terminate her employment. Respondent timely challenged the

School Board’s action. The matter was referred to DOAH, where it

was assigned DOAH Case No. 12-2859TTS.

On December 10, 2012, the Superintendent filed “Petitioner’s

Motion to Amend Administrative Complaint,” which the undersigned

granted on December 11. The Amended Administrative Complaint,

dated December 7, alleged certain facts pertaining to

Respondent’s treatment of students and, based on those facts,

alleged in three separate counts that Respondent was guilty of

(I) immorality, (II) misconduct in office, and (III) moral

turpitude. The Superintendent relied on the following in

bringing these charges: sections 1001.51, 1012.27(5), and

1012.33, Florida Statutes, and Forida Administrative Code

Rule 6B-4.009(2), (3) and (6). 1/

By Administrative Complaint dated November 30, 2012, the

Commissioner alleged certain facts pertaining to Respondent’s

treatment of students and, based on those facts, alleged that

Respondent was guilty of: (Count 1) gross immorality or an act

involving moral turpitude in violation of section 1012.795(1)(d);

(Count 2) personal conduct which seriously reduced her

effectiveness as an employee of the school board in violation of

section 1012.795(1)(g); (Count 3) violating the Principles of

Professional Conduct for the Education Profession prescribed by

State Board of Education rules in violation of

section 1022.795(1)(j); (Count 4) failing to make reasonable

effort to protect the student from conditions harmful to learning

and/or to the student’s mental health and/physical health and/or

safety in violation of rule 6A-10.081(3)(a) 2/ ; (Count 5)

intentionally exposing a student to unnecessary embarrassment or

harassing or discriminating against a student on the basis of

race, color, religion, sexual orientation, or social and family

background in violation of rule 6A-10.081(3)(g).

Respondent timely challenged the allegations of the

Commissioner’s Administrative Complaint. The matter was referred

to DOAH, where it was assigned DOAH Case No. 13-0704PL.

On March 13, 2013, the parties filed their Joint Motion to

Consolidate, which the undersigned granted by order entered on

March 13.

At the final hearing, Petitioners presented the testimony of

Kimberly Sorren (a former ESE teaching intern 3/ at Crystal Lake),

Donna Taylor Rollins (ESE paraprofessional), Lisa Phillips (ESE

paraprofessional), Ray Montalbano (ESE teacher), Darlene Hudson

(guidance director), and Sabine Phillips (principal). With the

exception of Ms. Sorren, all of Petitioners’ witnesses were

employed at Crystal Lake at the times relevant to these

proceedings and at the time of the formal hearing. Petitioners

entered into evidence 12 pre-marked exhibits pursuant to

stipulation.

Respondent testified on her own behalf, but offered no other

testimony and no exhibits.

A Transcript of the proceedings, consisting of one volume,

was filed on May 23, 2013. The deadline for the filing of

Proposed Recommended Orders was extended on an unopposed motion

filed by Respondent. Thereafter, the parties timely filed

Proposed Recommended Orders, which have been duly considered by

the undersigned in the preparation of this Recommended Order.

Unless otherwise noted, all statutory references are to

Florida Statutes (2012), and all references to rules are to the

version thereof in effect as of the entry of this Recommended

Order.

FINDINGS OF FACT

1. At all times material hereto, the School Board has been

the constitutional entity authorized to operate, control, and

supervise the public schools in Broward County, Florida; and

Robert Runcie was Superintendent of Schools.

2. At all times material hereto, the Commissioner has been

the head of the state agency responsible for certifying and

regulating public school teachers in the State of Florida; and

Pam Stewart was the Commissioner.

3. Respondent has been employed by the School Board since

2002 and holds a Professional Services Contract, issued in

accordance with section 1012.33(3)(a). During the time relevant

to this proceeding, Respondent was an ESE classroom teacher at

Crystal Lake.

4. During the 2007-2008 school year, Respondent was

employed as an ESE classroom teacher at Atlantic West Elementary

School teaching students on the autism spectrum. During that

school year, the Education Practices Commission (EPC) reprimanded

Respondent for sleeping in class while students were present and

for using restraints inappropriately to control or manage

autistic and exceptional student education students. The EPC

imposed an administrative fine against her in the amount of

$500.00. Thereafter, Respondent transferred to Crystal Lake.

5. Respondent taught ESE students at Crystal Lake for the

2010-2011 and 2011-2012 school years. The events at issue in

this proceeding occurred during either the 2010-2011 school year

or the 2011-2012 school year. Exact dates were available for

some of the events, but unavailable for other events.

6. Respondent’s classroom at Crystal Lake for those two

school years was divided into two halves, separated by tables and

rolling chalkboards that did not form a solid wall.

7. For the 2010-2011 school year, Respondent taught her

class of ESE students on one side of the divided classroom and a

Ms. Knighton taught on the other side.

8. For the 2011-2012 school year Respondent shared the

classroom with Mr. Montalbano. On one side of the classroom was

Respondent’s class, consisting of 11 ESE students. On the other

side of the room was Mr. Montalbano’s class, consisting of seven

ESE students. Mr. Montalbano’s class was smaller because his

class functioned at a lower level than Respondent’s class.

9. On October 4, 2011, student J., a non-verbal,

wheel chair-bound boy, and student D., a boy with Down’s

syndrome, were sitting next to each other in Respondent’s

classroom. Student D. did something to irritate student J.

Student J. balled up his fist as if to strike student D.

Respondent, in front of the entire class, Lisa Phillips (an ESE

paraprofessional), and Ms. Sorren, made the following statement:

“So is the cripple [student J.] going to beat up the retard

[student D.]”. /4 Other students in the classroom laughed at

student J. and student D.

10. Student J.’s wheelchair is motorized. After making the

statement quoted above, Respondent attempted to move student J.

into a corner. When student J. moved the wheelchair away from

the corner, Respondent unplugged the wheelchair’s battery and

made the statement: “Now who has the power. I am in control,

not you.” The other students laughed at student J. Respondent

then moved student J. to the corner. /5

11. On October 11, 2011, Respondent sent student J. to

bother.”

12. One day at dismissal, student J. asked Respondent three

or four times to be taken to the bathroom. Respondent did not

respond to student J. The bus arrived, but the driver refused to

accept student J. because of his request to go to the toilet.

Mr. Montalbano, who overheard student J.’s requests to

Respondent, took over the responsibility for student J.

13. Respondent became frustrated while helping student J.

with the computer after student J. got the wires to the

headphones tangled. Respondent ripped the headphones out of the

back of the computer leaving the male connection in the female

end of the computer.

14. In a private discussion with Mr. Montalbano, Respondent

referred to student D. as being a “moron.”

15. Respondent sent her 11 students to Mr. Montalbano’s

side of the classroom, which housed ten computers. There was a

disturbance because one student did not have a computer.

Respondent came to Mr. Montalbano’s side of the classroom and

told student D. to give up his computer. Student D.’s first

language is Bulgarian. When student D. muttered in protest,

Respondent yelled at him to express himself in English. When

student D. left the computer, his place was quickly taken by

another student. Student D. began to cry. Respondent walked

back to her side of the classroom, leaving student D. crying in

Mr. Montalbano’s side of the classroom.

16. On October 11, 2011, student Mi., an 11 year-old female

on the autism spectrum, was playing with a puzzle during free

time when she spotted an open computer. Student Mi. left the

puzzle pieces out to go to the computer. Respondent noted the

puzzle on the table and yelled out, “Who left this puzzle out?”

Student Mi. hid under a table in reaction to Respondent’s

statement. Respondent came to the table, roughly grabbed student

Mi., and pulled her out from under the table. Respondent led

student Mi. to the table with the puzzle and yelled in front of

the class: “I don’t know what your mother teaches you at home,

but you’re a little, spoiled brat and I am not going to clean up

after you.” Respondent then took student Mi.’s doll away from

her and put her in time out for the remainder of the day,

approximately 30 minutes.

17. On another occasion, Respondent had the other members

of the class imitate student Mi., after student Mi. had engaged

in self-stimulatory behavior. The other students laughed at

student Mi.

18. In October 2011, Ms. Hudson discovered Respondent and

student Mi. in Mr. Montalbano’s half of the classroom with the

lights dimmed. Ms. Hudson thought student Mi. had been crying.

Ms. Hudson reported the incident to her principal, but she did

not question Respondent, nor did Respondent volunteer to Ms.

Hudson an explanation of the circumstances that resulted in

Respondent being in the darkened classroom with student Mi. At

the formal hearing, Respondent explained that student Mi. had run

into traffic while waiting to be transported from school.

Respondent testified, credibly, that she was trying to calm down

student Mi. /6

19. Ms. Sorren testified, credibly, that during the short

time she was in Respondent’s classroom (approximately three

school days), she heard Respondent address the students as

morons, monkeys, jungle monkeys, and animals. That testimony was

consistent with the other testimony as to the language used by

Respondent in her classroom.

20. Petitioners established that Respondent repeatedly

yelled at her students to “shut up,” described a student’s

behavior as being “stupid,” and called at least one student a

“brat.”

21. Student Mo., a female on the autism spectrum, was new

to Respondent’s class. On an unidentified date, Respondent

directed student Mo. to go to timeout. After student Mo. refused

to go to timeout, Respondent shoved student Mo. into the timeout

area.

22. During the 2010-2011 school year, Respondent became

upset with student C., a female, and ordered her out of her

classroom. When student C. talked back to Respondent, Respondent

threw student C.’s backpack and her shoes over the chalkboard

that divided the classroom. Ms. Knighton and her class were in

the part of the classroom into which Respondent threw the

objects. Student C. became very upset.

23. Respondent became upset with Ma., a male student. Ma.

had a snack on his desk. Respondent knocked the snack to the

floor and smashed it with her foot.

24. Petitioners established that Respondent engaged in a

pattern of misconduct.

25. Respondent’s effectiveness in the school system has

been impaired.

CONCLUSIONS OF LAW

26. DOAH has jurisdiction over the subject matter of and

the parties to this case pursuant to sections 120.569 and

120.57(1).

THE SUPERINTENDENT’S BURDEN OF PROOF

27. Because the School Board, acting through the

Superintendent, seeks to terminate Respondent’s employment, which

does not involve the loss of a license or certification, the

School Board has the burden of proving the allegations in its

Amended Administrative Complaint by a preponderance of the

evidence, as opposed to the more stringent standard of clear and

convincing evidence. See McNeill v. Pinellas Cnty. Sch. Bd. , 678

So. 2d 476 (Fla. 2d DCA 1996); Allen v. Sch. Bd. of Dade Cnty. ,

571 So. 2d 568, 569 (Fla. 3d DCA 1990); Dileo v. Sch. Bd. of Dade

Cnty. , 569 So. 2d 883 (Fla. 3d DCA 1990). 28. The preponderance of the evidence standard requires

proof by “the greater weight of the evidence,” Black’s Law

Dictionary 1201 (7th ed. 1999), or evidence that “more likely

than not” tends to prove a certain proposition. See Gross v.

Lyons , 763 So. 2d 276, 289 n.1 (Fla. 2000)(relying on American

Tobacco Co. v. State , 697 So. 2d 1249, 1254 (Fla. 4th DCA 1997)

quoting Bourjaily v. United States , 483 U.S. 171, 175 (1987)).

THE COMMISSIONER’S BURDEN OF PROOF

29. In this proceeding the Commissioner seeks to discipline

Respondent’s Florida Educator Certificate. Consequently, the

Commissioner has the burden of proving by clear and convincing

evidence the allegations against Respondent. See Ferris v.

Turlington , 510 So. 2d 292 (Fla. 1987) and McKinney v. Castor ,

667 So. 2d 387 (Fla. 1st DCA 1987)

THE SUPERINTENDENT’S ALLEGED VIOLATIONS

30. Section 1012.33(1)(a) includes the following as just

cause to terminate a teacher’s professional services contract:

. . . Just cause includes, but is not

limited to, the following instances, as

defined by rule of the State Board of

Education: immorality, misconduct in office

or being convicted or found guilty of, or

entering a plea of guilty to, regardless of

adjudication of guilt, any crime involving

moral turpitude.

31. The Superintendent’s Amended Administrative Complaint

alleged that Respondent was guilty of:

(Count 1) immorality,

(Count 2) misconduct in office, and

(Count 3) moral turpitude.

THE COMMISSIONER’S ALLEGED VIOLATIONS

32. Section 1012.795(1) provides, in relevant part, as

follows:

(1) The Education Practices Commission may

suspend the educator certificate of any

person as defined in s. 1012.01(2) or (3) for

up to 5 years, thereby denying that person

the right to teach or otherwise be employed

by a district school board or public school

in any capacity requiring direct contact with

students for that period of time, after which

the holder may return to teaching as provided

in subsection (4); may revoke the educator

certificate of any person, thereby denying

that person the right to teach or otherwise

be employed by a district school board or

public school in any capacity requiring

direct contact with students for up to 10

years, with reinstatement subject to the

provisions of subsection (4); may revoke

permanently the educator certificate of any

person thereby denying that person the right

to teach or otherwise be employed by a

district school board or public school in any

capacity requiring direct contact with

students; may suspend the educator

certificate, upon an order of the court or

notice by the Department of Revenue relating

to the payment of child support; or may

impose any other penalty provided by law, if

the person:

* * *

(d) Has been guilty of gross immorality or

an act involving moral turpitude as defined

by rule of the State Board of Education.

* * *

(g) Upon investigation, has been found

guilty of personal conduct that seriously

reduces that person’s effectiveness as an

employee of the district school board.

* * *

(j) Has violated the Principles of

Professional Conduct for the Education

Profession prescribed by State Board of

Education rules.

33. The Superintendent’s Administrative Complaint alleged

that Respondent was guilty of:

(Count 1) gross immorality or an act

involving moral turpitude,

(Count 2) personal conduct which seriously

reduced her effectiveness as an employee of

the school board,

(Count 3) violating the Principles of

Professional Conduct for the Education

Profession prescribed by State Board of

Education,

(Count 4) failing to make reasonable effort

to protect the student from conditions

harmful to learning and/or to the student’s

mental health and/physical health and/or

safety,

(Count 5) intentionally exposing a student

to unnecessary embarrassment or

disparagement, and

(Count 6) harassing or discriminating

against a student on the basis of race,

color, religion, sexual orientation, or

social and family background.

IMMORALITY AND MORAL TURPITUDE

34. Count 1 of the Superintendent’s Amended Administrative

Complaint charges, in relevant part, that:

. . . Respondent’s acts constitute acts of

immorality, that is, conduct inconsistent

with the standards of public conscience and

good morals. Respondent’s conduct is

sufficiently notorious to bring Respondent

and/or the educational profession into public

disgrace or disrespect, and impair

Respondent’s service in the community.

35. Count 3 of the Superintendent’s Amended Administrative

Complaint charges, in relevant part, that:

. . . Respondent’s acts constitute acts of

moral turpitude, that is, acts of baseness,

vileness or depravity in the private and

social duties, which, according to the

accepted standards of the time, a person owes

to his fellow human or to society in general,

and the doing of the act itself and not its

prohibition by statute fixes the moral

turpitude.

36. Count 1 of the Commissioner’s Administrative Complaint

charges, in relevant part that:

. . . Respondent has been guilty of gross

immorality or an act involving moral

turpitude as defined by rule of the State

Board of Education.

37. Rule 6A-5.056(1) contains the following definition of

the term immorality:

(2) “Immorality” means conduct that is

inconsistent with the standards of public

conscience and good morals. It is conduct

that brings the individual concerned or the

education profession into public disgrace or

disrespect and impairs the individual’s

service in the community.

38. “Gross immorality” has been defined to mean an act of

misconduct that is serious, rather than minor in nature; it is a

flagrant disregard of proper moral standards. See Educ.

Practices Comm’n v. Knox , 3 FALR 1373-A (Fla. Dept. of Educ.

1981) and Frank T. Brogan v. Eston Mansfield , Case No. 96-0286

(Fla. DOAH Aug. 1, 1996; Fla. Educ. Practices Comm’n Oct. 18,

1996).

39. Florida Administrative Code Rule 6A-5.056(a)-(j) lists

the serious crimes that constitute crimes involving moral

turpitude. Both Petitioners and Respondent cite rule 6B-4.009(6)

for the following definition of the term “moral turpitude”:

Moral turpitude is a crime that is evidenced

by an act of baseness; vileness or depravity

in the private and social duties, which,

according to the accepted standards or the

time a man owes to his or her fellow man or

to society in general, and the doing of the

act itself and not its prohibition by statute

fixes moral turpitude.

40. Rule 6B-4.009 has been amended and transferred to rule

6A-5.056. The quoted definition of “moral turpitude” is no

longer a part of the Rule.

41. As will be discussed below, Petitioners proved that

Respondent engaged in misconduct. Neither Petitioner proved that

Respondent’s misconduct rose to the level of “immorality” or

“acts involving moral turpitude.” Consequently, Respondent is

not guilty of the violations alleged in Count 1 and 3 of the

Superintendent’s Amended Administrative Complaint. Respondent is

also not guilty of the violation alleged in Count 1 of the

Commissioner’s Administrative Complaint.

MISCONDUCT IN OFFICE

42. Rule 6A-5.056(2) defines the term “Misconduct in

Office” as follows:

(2) “Misconduct in Office” means one or

more of the following:

(a) A violation of the Code of Ethics of

the Education Profession in Florida as

adopted in [Rule 6A-10.080];

(b) A violation of the Principles of

Professional Conduct for the Education

Profession in Florida as adopted in

[Rule 6A-10.081];

(c) A violation of the adopted school

board rules;

(d) Behavior that disrupts the student’s

learning environment; or

(e) Behavior that reduces the teacher’s

ability or his or her ability to effectively

perform duties.

43. Rule 6A-10.081, set forth the “Principles of

Professional Conduct for the Education Profession in

Florida,” and provide, in relevant part, as follows:

(3) Obligation to the student requires

that the individual:

(a) Shall make reasonable effort to

protect the student from conditions harmful

to learning and/or to the student’s mental

and/or physical health and/or safety.

(b) Shall not unreasonably restrain a

student from independent action in pursuit of

learning.

(c) Shall not unreasonably deny a student

access to diverse points of view.

(d) Shall not intentionally suppress or

distort subject matter relevant to a

student’s academic program.

(e) Shall not intentionally expose a

student to unnecessary embarrassment or

disparagement.

(f) Shall not intentionally violate or

deny a student’s legal rights.

(g) Shall not harass or discriminate

against any student on the basis of race,

color, religion, sex, age, national or ethnic

origin, political beliefs, marital status,

handicapping condition, sexual orientation,

or social and family background and shall

make reasonable effort to assure that each

student is protected from harassment or

discrimination.

* * *

(5) Obligation to the profession of

education requires that the individual:

(d) Shall not engage in harassment or

discriminatory conduct which unreasonably

interferes with an individual’s performance

of professional or work responsibilities or

with the orderly processes of education or

which creates a hostile, intimidating,

abusive, offensive, or oppressive

environment; and, further, shall make

reasonable effort to assure that each

individual is protected from such harassment

or discrimination.

44. Count 2 of the Superintendent’s Amended Administrative

Complaint alleges that Respondent is guilty of Misconduct in

Office within the meaning of section 1012.33 because she violated

the above-quoted portions of rule 6A-10.081. The Superintendent

failed to establish that Respondent was guilty of violating rule

misconduct below is not premised on those alleged violations.

45. Counts 2 and 3 of the Commissioner’s Administrative

Complaint are as follows:

Count 2. The Respondent is in violation of

[section 1012.795(1)(g)] in that Respondent

has been found guilty of personal conduct

which seriously reduces her effectiveness as

an employee of the school board.

Count 3. The Respondent is in violation of

[section 1012.795(1)(d)] in that Respondent

has violated the Principles of Professional

Conduct for the Education Profession

prescribed by State Board of Education rules.

46. Counts 4, 5, and 6 of the Commissioner’s Administrative

Complaint allege that Respondent violated the rules that are now

found in the above-quoted rule 6A-10.081(3)(a), (e), and (g).

47. Petitioners failed to prove that Respondent harassed or

discriminated against any of her students as alleged in Count 6

of the Commissioner’s Administrative Complaint and as alleged in

Count 2 of the Superintendent’s Amended Administrative Complaint.

The finding of misconduct which follows is not premised on the

allegations of discrimination and/or harassment of students.

48. Petitioners proved that Respondent was guilty of

misconduct in office by repeatedly violating the following

Principles of Professional Conduct for the Education Profession

in Florida set forth in rule 6A-10.081(3)(a) and (e), as alleged

in Counts 2 and 3 of the Commissioner’s Administrative Complaint

and in Count 2 of the Superintendent’s Amended Administrative

Complaint.

49. Respondent’s reduced effectiveness may be inferred from

the nature and seriousness of the conduct. See Walker v.

Highlands Cnty. Sch. Bd. , 752 So. 2d 127 (Fla. 2 DCA 2000) and

Purvis v. Marion Cnty. Sch. Bd. , 766 So. 2d 492 (Fla. 5th DCA

2000). Respondent’s pattern of mistreating her students

established that her effectiveness as a school board employee has

been impaired.

50. In making the recommendation that follows as to

Case No. 13-0704PL, the undersigned has considered the

Disciplinary Guidelines set forth in rule 6B-11.007 and

6B-11.008.

51. The undersigned has accepted the recommended

dispositions of these matters as set forth in the respective

proposed recommended orders submitted by the Commissioner and the

Superintendent.

RECOMMENDATION

The following recommendations are based on the foregoing

findings of fact and conclusions of law:

As to Case No. 12-2859TTS, it is RECOMMENDED that the School

Board of Broward County, Florida, enter a final order adopting

the findings of fact and conclusions of law set forth in this

Recommended Order. It is FURTHER RECOMMENDED that the final

order uphold the suspension without pay of Rhea Cohen’s

employment and terminate that employment.

As to Case No. 13-0704PL, it is RECOMMENDED that the

Education Practices Commission enter a final order adopting the

findings of fact and conclusions of law set forth in this

Recommended Order. It is FURTHER RECOMMENDED that the final

five years, to be followed by probation for three years with

conditions to be set by the Education Practices Commission.

DONE AND ENTERED this 12th day of July, 2013, in

Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 12th day of July, 2013.

ENDNOTE

1 / The Superintendent’s Amended Administrative Complaint cited

Rule 6B-4.009, which has been transferred to Rule 6A-5.056.

2/ The Commissioner’s Administrative Complaint cited

Rule 6B-1.006, which was renumbered as 6A-10.081 after the

Administrative Complaint was filed.

3 / Ms. Sorren is an experienced classroom teacher who had

returned to college to become qualified to teach ESE students.

Her internship was part of her college curriculum. At the time

of the formal hearing, Ms. Sorren was employed as an ESE teacher

at a private school.

4/ This matter was thoroughly investigated by the School Board.

Petitioner gave a statement to a school detective, attended an

informal conference with a Department of Education

representative, and was deposed by Petitioners in preparation for

the formal hearing. At the formal hearing, for the first time,

Respondent testified that it was Lisa Phillips who made the

quoted comment. Respondent’s contention that Lisa Phillips made

the comment is rejected as lacking credibility. The evidence

established clearly, and convincingly, that Respondent made the

statement.

5/ In making these findings, the undersigned has considered

Respondent’s version of the events. Respondent contends that she

unplugged the wheelchair from its battery because the wheelchair

did not have an on/off power switch and because student J was

moving the wheelchair in an unsafe manner. Even if those factors

motivated the act of unplugging the battery, there is no excuse

for Respondent exposing student J to ridicule, as she clearly did

by her comment.

6 / The undersigned accepts this explanation. While Respondent

showed poor judgment in being with any student under the

circumstances observed by Ms. Hudson, there was no evidence of

improper contact between Respondent and the student.

Consequently, the undersigned declines to find Respondent guilty

of misconduct in office based on this incident.

COPIES FURNISHED:

Robert F. McKee, Esquire

Kelly and McKee

Post Office Box 75638

Tampa, Florida 33675

Charles T. Whitelock, Esquire

Charles T. Whitelock, P.A.

Suite E

300 Southeast 13th Street

Fort Lauderdale, Florida 33316

Kathleen M. Richards, Executive Director

Education Practices Commission

Department of Education

Turlington Building, Suite 224

325 West Gaines Street

Tallahassee, Florida 32399-0400

Matthew Carson, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399-0400

Robert Runcie, Superintendent

Broward County School Board

600 Southeast Third Avenue

Fort Lauderdale, FL 33301

Dr. Tony Bennett

Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399-0400

Marian Lambeth, Bureau Chief

Bureau of Professional

Practices Services

Department of Education

Turlington Building, Suite 224-E

325 West Gaines Street

Tallahassee, Florida 32399-0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.