10-001838PL Dr. Eric J. Smith, As Commissioner Of Education vs. Valerie Mccoy Schubert Status: Closed Recommended Order on Wednesday, December 8, 2010.

Summary: Petitioner failed to provide clear and convincing evidence that Respondent violated the Principles of Professional Conduct.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DR. ERIC J. SMITH, AS )

COMMISSIONER OF EDUCATION , )

)

Petitioner , )

)

vs. ) Case No. 10 - 1838PL

)

VALERIE MCCOY SCHUBERT , )

)

Respondent . )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case

on August 6, 2010, in St. Cloud, Florida, before Jeff B. Clark,

a duly - designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Todd P. Resavage, Esquire

Brooks, LeBoeuf, Bennett,

Foster & Gwartney, P.A.

909 East Park Avenue

Tallahassee, Florida 32301

For Respondent: Emily Moore, Esquire

Florida Education Association

300 East Park Avenue

Tallaha ssee, Florida 32301

STATEMENT OF THE ISSUE

Whether it is appropriate for Petitioner to discipline

Respondent's Florida educator's certificate for acts alleged in

Petitioner's Administrative Complaint dated November 19, 2009.

PRELIMINARY STATEMENT

On Nove mber 19, 2009, Petitioner, Dr. Eric J. Smith,

Commissioner of Education, filed an Administrative Complaint,

advising Respondent, Valerie McCoy Schubert, that he was seeking

disciplinary sanctions against her Florida educator's

certificate.

On December 4, 2 009, Respondent requested an administrative

hearing, if a settlement was not reached. On April 7, 2010,

Petitioner forwarded the case to the Division of Administrative

Hearings for assignment of an Administrative Law Judge.

On the same day, April 7, 2010, an Initial Order was sent

to both parties requesting, inter alia , mutually - convenient

dates for the final hearing. Based on the response of the

parties, on April 20, 2010, the case was scheduled for final

hearing on July 16, 2010, in St. Cloud, Florida. On June 10,

2010, Petitioner requested a continuance, and , on June 11, 2010,

the case was re - scheduled for August 6, 2010. On August 2,

2010, Petitioner requested a second continuance based on the

lack of availability of two witnesses. By O rder dated Au gust 3,

2010, the continuance was denied with the caveat that the

witnesses could be presented by deposition or at a later

hearing.

The hearing took place as scheduled on August 6, 2010.

Petitioner presented three witnesses; all were students, two

were 11 years old, and the third was 10 years old . At the time

of the alleged incident , the students would have been

approximately two years younger. Petitioner' s Composite

Exhibit 1 (5 parts - - A through E) was admitted into evidence.

Respondent testified in he r own behalf and presented the

testimony of Dr. Wayne Kennedy, who had served as a school

principal in Osceola County for 31 years before retiring .

Respondent also had four exhibits (the first containing several

documents) , which were admitted into evidence a s Respondent's

Exhibits 1 through 4. Respondent's Exhibits 3 and 4 are letters

from Eileen Webster and Brenda McNeal.

On August 10, 2010, Respondent requested that two letters

be admitted into evidence (Respondent's Exhibits 3 and 4) that

had inadvertently been omitted during the hearing. The motion

was unopposed. These letters were admitted by Order dated

August 11, 2010.

The Transcript of Proceedings was filed on August 24, 2010.

Both parties timely submitted Proposed Rec ommended Orders.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the

final hearing, the following Findings of Fact are made:

1. Petitioner is the head of the state agency responsible

for certifying and regulating public school tea chers in Florida.

2. Respondent holds Florida Professional Educator's

Certificate No. 931173, covering the area of Elementary

Education, which is valid through June 30, 2013. At the time of

the incident alleged in the Administrative Complaint, she was

em ployed at Poinciana Elementary School, in Osceola County,

Florida, where she had taught for six years.

3. Respondent has taught for approximately ten years. She

started teaching at Poinciana Elementary School in 2002.

Dr. Wayne Kennedy (Dr. Kennedy) , the principal at Poinciana

Elementary School, gave Respondent excellent evaluations. He

reported that Respondent did a very good job of teaching

students and that the students did well on academic tests. She

had good classroom control and management. She w as stern and

authoritarian with students, she expected them to do what they

could, and got good results. He did not recall any complaints

during his six years of supervision of Respondent.

4. Dr. Kennedy retired during the 2006 - 2007 school year.

He was replaced by Ms. Sherri Turchi (Ms. Turchi) . Ms. Turchi

gave Respondent the lowest performance evaluation she had while

teaching at Poinciana Elementary School. Ms. Turchi assigned

Respondent to teach a fourth - grade class even though Respondent

had taught first and se cond grade and had requested that

assignment .

5. Recognizing that Ms. Tu r chi harbored personal animosity

for her, Respondent requested a transfer after the 2007 - 2008

school year. Her request for transfer was denied.

6. Respondent began teach ing the fourth grade in August

2008. In September 2008, Ms. Turchi reassigned Respondent to

teaching a Mathematics B lock. Unlike a normal elementary school

classroom situation, students are rotated through block classes.

From September 10, 2008 , through November 5, 2008, the date of

the alleged incident, Respondent only saw the students involved

approximately six times.

7. The national election wherein President Barack Obama

was elected occurred on November 4, 2008. As a result of the

election, students, not unlike other Americans, were excited.

Recognizing this as an educational opportunity, a discussion

about the election occurred in Respondent's classroom.

8. Responding to questions and statements from students,

Respondent recalls advising them that she voted for John McCain,

who m she respected for his character and integrity ; that she was

neither a Democrat n or Republican ; and that voting should not be

made based on a candidate 's physical appearance. Respondent

specifically denied having m ade statements or used the language

referred to in the Administrative Complaint. Respondent's

testimony regarding the essential facts and tenor of the

classroom discussion about the presidential election is

credible.

9. After leaving Respondent's classro om, several students

authored statements wherein they reported elements of the

discussion that had occurred in Respondent's classroom. It is

suggested that the students did this spontaneously or that the

exercise was an effort to allow the students to exp ress concern

regarding their confusion about the political discussion. The

statements were done under the supervision of a second teacher

and were the genesis of the allegations in the A dministrative

C omplaint.

10. Petitioner's only witnesses were three students who

had participated in the post - election discussion and had

authored the referenced statements. Their testimony reflects

little specific recollection of the "inappropriate and

embarrassing comments" referred to in the Administrative

Complaint. Not surprisingly, given their age, lack of

recollection , and the passage of time, their testimony and their

statements are not accorded significant credibility by the

undersigned.

11. On November 6, 2008, Respondent was removed from the

classroom and reas signed to the Administration Building. She

essentially had no responsibility, but her employment continued.

On March 4, 2009, Respondent met with Osceola County School

Board officials. She requested transfer to another school where

she knew there was an opening for a second - grade teacher. She

was advised that transfer was not an option and that she was to

return to Poinciana Elementary School. Respondent resigned from

her teach ing position the following day.

CONCLUSIONS OF LAW

12. The Division of Admi nistrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. § 120.57, Fla. Stat. (2010) ; Sublett v. District

School Board of Sumter County , 617 So. 2d 374, 377 (Fla. 5th DCA

1993).

1 3 . Section 1012.795, Florida Statutes (2009) , 1 reads, in

pertinent 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 other wise be

employed by a district school board or a

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 ten years, with

reinstatement subject to the provisions of

s ubsection (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

sus pend 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:

* * *

( g) Upon investigation, has been fou nd

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 the State Board of

Education rules.

1 4 . Florida Administrative Code Rule 6B - 1.006 states, in

pertinent part, as follows:

(1) The following disciplinary rule shall

constitute the Principles of Professional

Conduct for the Education Profession in

Florida.

(2) Violation of any of these principles

shall subject the individual to revocation

or suspension of the individual educator's

certificate, or the other penalties as

provided by law.

(3) Obligation to the student requires that

the individual:

(a) Shall mak e 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.

* * *

(e) Shall not intentionally expose a

student to unnecessary embarrassment or

disparagement.

(4) Obligation to the public requires that

the individual:

(a) Shall take reasonable precautions to

distinguish between personal views and those

of any educational institution or

o rganization with which the individual is

affiliated.

1 5 . Because Resp ondent's Florida educator's certificate is

at risk of being sanctioned, Petitioner bears the burden of

proving the allegations in the Administrative Complaint by clear

and convincing evidence. Ferris v. Turlington , 510 So. 2d 292

(Fla. 1987). The definit ion of clear and convincing evidence is

found in the case of Slomowitz v. Walker , 429 So. 2d 797 (Fla.

4th DCA 1983).

1 6 . Because the statute and rules providing grounds for

disciplining Respondent's Florida educator's certificate are

penal in nature, they must be construed in favor of Respondent.

Rosario v. Burke , 605 So. 2d 523 (Fla. 2d DCA 1992); Lester v.

Department of Professional Regulations , 348 So. 2d 923 (Fla. 1st

DCA 1977).

1 7 . Petitioner has failed to prove by "clear an d

convincing evidence" that Respondent violated any of the

enumerated Principles of Professional Conduct for the Education

Profession or that, "[u] pon investigation, has been found guilty

of personal conduct that seriously reduces that person's

effectivene ss as an employee of the district school board. "

§ 1012.795(1)(g), Fla. Stat. In fact, the evidence is scant as

it relates to the allegations in the Administrative Complaint.

The credible evidence suggests that Respondent was an effective

elementary scho ol teacher who had a personality conflict with a

new principal and suffered as a result.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered finding that

Respondent, Valerie McCoy S chubert, is not guilty of the

violations alleged in the Administrative Complaint and that no

disciplinary action be taken.

DONE AND ENTERED this 8th day of December, 2010 , in

Tallahassee, Leon County, Florida.

S

JEFF B. CLARK

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 Administra tive Hearings

this 8th day of December , 2010 .

ENDNOTE

1/ All statutory references are to Florida Statutes (2009),

unless otherwise noted.

COPIES FURNISHED :

Emily Moore, Esquire

Florida Education Association

300 East Park Avenue

Tallahassee, Florida 32301

Todd P. Resavage, Esquire

Brooks, LeBoeuf, Bennett,

Foster & Gwartney, P.A.

909 East Park Avenue

Tallahassee, Florida 32301

Kathleen M. Richards, Executive Director

Education Practices Commission

Department of Education

Turlington Building, Sui te 224 - E

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Deborah K. Kearney, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Marian Lambeth, Bureau Chief

Bureau of Pr ofessional 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.