11-001772PL Dr. Eric J. Smith, As Commissioner Of Education vs. Deana Brown Status: Closed Recommended Order on Wednesday, September 14, 2011.

Summary: Failure to supervise students warrants suspension and probation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DR. ERIC J. SMITH, AS )

COMMISSIONER OF EDUCATION , )

)

Petitioner , )

)

vs. ) Case No. 11 - 1772PL

)

DEANA BROWN , )

)

Respondent . )

)

RECOMMENDED ORDER

On June 17, 2011, a formal administrative hearing was

conducted by video telecon ference in Lakeland and Tallahassee,

Florida, before William F. Quattlebaum, Administrative Law

Judge, Divisi on of Administrative Hearings.

APPEARANCES

For Petitioner: Bruce P. Taylor, Esquire

204 37th Avenue, Suite 190

St. Petersburg, Florida 33704

For Respondent: Mark Herdman, Esquire

Herdman and Sakellarides, P.A.

29605 U.S. Highway 19 , North, Suite 110

Clearwater, Florida 33761

STATEMENT OF THE ISSUE S

The issue s in this case are whether the allegations set

forth in the Administrative Complaint filed by the Petitioner,

Dr. Eric J. Smith , as Commissioner of Education, against the

Respondent, Deana Brown, are correct, and, if so, what penalty

should be i mposed.

PRELIMINARY STATEMENT

By an Administrative Complaint dated April 2, 2010, the

Petitioner alleged that the Respondent "engaged in a pattern of

failing to supervise her students during the 2006 - 2007 and 2007 -

2008 school years." The Respondent denied the allegation and

requested a formal administrative hearing. The Petitioner

forwarded the dispute to the Division of Administrative

Hearings , which scheduled and conducted the proceeding.

At the hearing, the Petitioner presented the testimony of

one witness and had Exhibits 1 throu gh 20 and 23 admitted into

evidence. The Respondent testified on her own behalf, presented

the testimony of one witness, and had Exhibits 2 through 6

admitted into evidence .

A T ranscript of the hearing was filed on July 29, 2011 .

Both parties filed Propo sed Recommended Orders that have been

considered in the preparation of this Recommended Order. A P re -

hearing S tipulation filed by the parties contained stipulations

of fact that have been incorporated herein as necessary.

FINDINGS OF FACT

1. At all times material to this case, the Respondent held

a Florida Educator's Certificate No. 801038 , covering the areas

of e lementary e ducation, English for s peakers of o ther l anguages

(ESOL), and v arying e xceptionalities, valid through June 30,

2013.

2. The Respondent was first employed by the Polk County

School District (District) as an e xceptional s tudent e ducation

( ESE ) teacher in 1998. She transferred to Spook Hill Elementary

School (SHES), a unit of the District, at the beginning of the

2003 - 2004 s cho ol year.

3. At the beginning of the 2005 - 2006 school year, the

Respondent was assigned by SHES Principal Matthew Burkett

(Mr. Burkett) to teach in the p re - k indergarten (Pre - K) ESE

class. Students in the classroom were three to five years of

age and ex hibited disabilities ranging from autism to being

educable mentally handicapped. This was the Respondent's first

experience teaching in the Pre - K ESE classroom.

4. The Respondent's classroom was a portable structure,

surrounded by a fence, with a ramp le ading from the classroom

door into a playground area. There was a restroom in the

portable classroom building. The classroom was staffed by the

Resp ondent and a paraprofessional.

5. M r. Burkett testified that he became concerned with the

Respondent's cl assroom performance based on contacts with

parents of students in the classroom. Mr. Burkett identified

the concerns as "sleeping, being on the cell phone, those types

of things." Mr. Burkett apparently made an effort to observe

the Respondent based on s uch concerns, and his observations

resu lted in disciplinary actions.

6. On January 19, 2007, Mr. Burkett issued a verbal

warning to the Respondent regarding the issue of sleeping in the

classroom and confirmed the verbal warning by letter dated

January 22 , 2007. The letter noted that the Respondent

explained that she had been modeling behavior for the children

during naptime. The letter advised that the Respondent's

sleeping at naptime was not appropriate, that she should not lie

down on the floor with h er students, and that any issue "that

jeopardizes the health and safety of the students will result in

further disciplinary action."

7. At 12:45 p.m. on February 2, 2007, Mr. Burkett returned

to the Respondent's classroom to talk to the Respondent. He

fo und the classroom dark and quiet, with the students, some of

whom were asleep, lying on the floor. The Respondent was not

asleep but was lying on the floor. Mr. Burkett reminded the

Respondent that she had been directed to refrain from lying on

the floor with students, and , on February 8, 2007, he issued a

written reprimand to the Respondent for disregarding the

directive.

8. On February 9, 2007, Mr. Burkett issued a "letter of

concern , " wherein he referenced issues discussed during

conferences with the Respondent o n February 2, 5, and 8, 2007.

9. The letter noted the presence in the classroom of the

Respondent's niece, an unapproved volunteer, and stated that the

girl was prohibited from being in the classroom until the niece

applied for and recei ve app roval to be a volunteer.

10. The letter noted the presence of an adult male in the

classroom, an air - conditioning technician employed by the

county, with whom the Respondent was planning a class reunion.

The letter directed the Respondent to refrain from conducting

personal business in the classroom.

11. The letter noted the Respondent's frequent use of a

telephone earpiece and her cell phone on personal business

during school hours.

12. The letter indicated the Respondent had explained that

the calls w ere to the parents of her students and were school

related, that the Respondent had been instructed not to wear the

earpiece, and that the Respondent had subsequently been observed

using her cell phone and earpiece. The letter directed the

Respondent to d iscontinue having her cell phone "on your person

during the school day from 7:30 am to 3:15 pm. "

13. The letter noted concern that the Respondent was not

"engaged" with her students and that the Respondent had claimed

to have been "busy" at times a parent had observed the

classroom. The letter directed the Respondent to assign "busy"

tasks to her paraprofessional so that the Respondent could

remain engaged with her students.

14. The letter noted another discussion regarding napping

and advised the Re spondent that students were to nap for only

one hour, rather than from 12:45 p . m . to 2:00 p . m.

15. The letter noted the Respondent had not been

supervising her students during playground time and had stayed

inside to clean the classroom. The letter state d that the

custodian was responsible for clea ning the room and would do so.

16. The letter noted that various educational items

hanging from the classroom ceiling were a violation of the fire

code and needed to be removed.

17. The letter noted that the R espondent had chosen to

allow parents to drop students off at school prior to 7:15 a . m.

The Respondent testified that she did so to accommodate parents

whose schedules were difficult. The letter advised the

Respondent that students were not to be dropped off at school

prior to 7:15 a . m . and that the p rincipal would interv ene with

parents if necessary.

18. Also on February 9, 2007, Mr. Burkett issued a verbal

warning to the Respondent for leaving the school campus during

working hours on February 7, 2007, without obtaining prior

approval from the school administration. He documented the

verbal warning by separate letter dated September 9, 2007,

wherein he noted that the SHES assistant principal had been

required "to assist with the safety and supervision of your

students" during the unapproved absence. The letter noted that

the Respondent had explained she left school to take her niece

to work. The letter advised that further incidence of leaving

the school grounds during working hours without approval w ould

result i n further disciplinary action.

19. On March 1, 2007, Mr. Burkett observed the

paraprofessional in the playground, sitting on a swing set,

holding a child, and yelling at other students who were running

on the ramp. Both the portable door and the fence gate were

"wide open." Mr. Burkett returned the students to the classroom

where he observed other students playing in the teacher's chair

while the Respondent talked on her personal cell phone, unaware

that Mr. Burkett had entered the room.

20. On March 6, 2007, Mr. Burkett issued a written

reprimand for the Respondent's continued use of her personal

cell phone during school hours. The Respondent asserted that

she was talking to the parent of a student who had called a few

seconds prior to Mr. Burkett's entrance into the classroom

(despite his directive of February 9, 2007, prohibiting her

possession of her personal cell phone on campus during school

hours ) .

21. By letter dated March 14, 2007, the District

s uperintendant issued a letter suspe nding the Respondent without

pay for one day (March 22, 2007) based o n the events of March 1,

2007.

22. On March 19, 2007, the Respondent became engaged in an

altercation with her niece, who was again on the SHES campus

during school hours. During the al tercation, the Respondent

argued with her niece and slapped her niece on the face. When

the niece left the campus, the Respondent got into her personal

vehicle and followed her niece. The Respondent failed to follow

SHES procedure when she left the campu s during school hours.

23. By letter dated April 18, 2007, the District

s uperintendant issued a letter suspending the Respondent without

pay for one day (April 25, 2007) based on the events of

March 19, 2007.

24. By letter dated May 8, 2007, Mr. Burkett referenced

the creation on March 8, 2007 , of a Professional Development

Plan (PDP) to "address the learning environment" in the

Respondent's classroom. Among the performance deficiencies

identified in the PDP and noted in the letter was the failur e to

circulate around the classroom during activities, engaging and

interacting with students, rather than sitting at the teacher's

desk. Additional deficiencies included a failure to comply with

the students' Individual Education Plans (IEPs), posting a daily

classroom schedule, and classroom safety issues.

25. On August 31, 2007, the Respondent strapped a

misbehaving student into a 24 - inch tall high chair and then left

the classroom to use a laminating machine and a non - classroom

restroom. The paraprofessional remained in the room with the

students. The student's IEP did not allow for use of a high

chair as a restraining or "time - out" device. Mr. Burkett

entered the classroom approximately ten minutes after the

Respondent left and observed that both the high chair and the

student had fallen over. The student was not injured. The

Respondent returned to the classroom about five minute s after

Mr. Burkett entered the room and explained where she had been.

26. By letter dated September 10, 2007, the District

s uperintendant issued a letter suspending the Respondent without

pay for five days (September 17 through 21, 2007) based on the

R espondent's disciplinary history and the events of August 31,

2007. Prior to the suspension period, the dates of suspension

were amended to September 20 , 21 , and 14 through 16, 2007.

27. On January 17, 2008, the Respondent again left the

SHES campus prio r to the conclusion of her working hours without

obtaining approval from school officials. At approximately

2:30 p . m . , on that date, a Pre - K student failed to appear at the

designated time and location for bus transportation from the

school to home. Mr. Burkett attempted to locate the Respondent

to resolve concerns about the student's location and determined

that the Respondent was not present on campus. After the

Respondent was eventually located, she told school officials

that she placed the student on a different bus on that date and

then left the campus. She had not advised anyone at the school

of the alternative transportation arrangements prior to her

unapproved departure from campus. After confirming that the

child was indeed on the other bus, hi s regular bus departed late

from the school campus.

28. By letter dated January 30, 2008, the District

s uperintendant issued a letter suspending the Respondent without

pay for five days (February 6 through 12, 2008) based on the

Respondent's disciplinary history and the events of January 17,

2008.

29. On February 21, 2008, an assistant principal at SHES

went into the Respondent's classroom for an informal

observation. The Respondent was seated at her computer when the

assistant principal entered the ro om. After looking around the

room, the assistant principal believed that not all of the

Respondent's students were present in the room. The assistant

principal took a head count, determined that one child was

missing from the classroom, and inquired of t he Respondent as to

the location of the missing student. The child was subsequently

found, unharmed, in the portable classroom bathroom. The

Respondent had been unaware of the missing child prior to the

assistant principal's observation that the child wa s not present

and had no idea of the child's location.

30. By letter dated March 3, 2008, the District

s uperintendant issued a letter immediately suspending the

Respondent with pay and stating that the s uperintendant would

recommend to the Polk County Sch ool Board that the Respondent's

employment be terminated. The grounds for the proposed

termination included the Respondent's "continuing pattern of

violating school and district policies" and a "pattern of

failing to properly superv ise students under your care."

31. The Respondent's employment with the District ended

after an unsuccessful administrative challeng e to the proposed

termination.

CONCLUSIONS OF LAW

32. The Division of Administrative Hearings has

jurisdiction over the parties to and subject ma tter of this

proceeding. §§ 120.569 & 120.57(1), Fla . Stat . (201 0 ). 1/

33. In this case, the Petitioner is seeking to revoke the

Respondent's teaching certification. License revocations are

penal in nature. The Petitioner must demonstrate the

truthfulness of the allegations in the Administrative Complaint

by clear and convincin g evidence. Dep ' t of Banking & Fin . v.

Osborne Stern & Co . , 670 So. 2d 932 (Fla. 1996); Ferris v.

Turlington , 510 So. 2d 292 (Fla. 1987). In order to be "clear

and convincing," the evidence must be "of such weight that it

produces in the mind of the trie r of fact a firm belief or

conviction, without hesitancy, as to the truth of the

allegations sought to be established." See Slomowitz v. Walker ,

429 So. 2d 797, 800 (Fla. 4th DCA 1983). In this case, the

burden has been met.

34. Section 1012.795(1), Flo rida Statutes, provides in

relevant part as follows:

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

per son, 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 ed ucator 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 found

guilty of personal conduct that seriously

reduces that personÓs 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.

35. The evidence established that the Respondent's failure

to comply with directives from the principal regarding use of

her personal cell phone and lying on the floor during naptime

reduced her effectiveness as an employee of the D istrict. The

Respondent's physical altercation with her niece while on school

campus and during employment hours reduced her effectiveness as

an employee of the D istrict . Restraining a student in a high

chair and then leaving the classroom for upwards of 15 minutes,

d uring which time the child and the chair fell over, reduced her

effectiveness as an employee of the D istrict. Leaving the

campus without permission during employment hours reduced her

effectiveness as an employee of the D istrict. Placing a child

on a sch ool bus different from the child's usual bus without

notifying anyone at SHES and then, yet again, leaving campus

early without permission reduced her effectiveness as an

employee of the D istrict. Failing to supervise students or to

be aware of their loca tion reduced her effectiveness as an

employee of the D istrict. Accordingly, the Respondent has

violated s ection 1012.795(1)(g).

36. The Petitioner has charged that the Respondent

violated the Principles of Professional Conduct for the

Education Professio n as prescribed by State Board of Education

rules. Such principles are set forth at Florida Administrative

Code Rule 6B - 1.006, which provides , in relevant part , as

follows:

(1) The following disciplinary rule shall

constitute the Principles of Profession al

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 educatorÓs

certificate, or the other penalties as

provided by law.

(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 studentÓs mental

and/or physical health and/or safety.

37. The evidence established that the Respondent

restrained a student in a high chair and left the classroom for

approximately 15 minutes, during which time the child and the

chair fell over. The evidence also established that the

Respondent failed to supervise her students or to be aware of

their locations. In so doing, the Respondent failed to make a

reasonable effort to protect students from conditions harmful to

learning and/or to the student ' s mental and/or physical health

and/or safety. The Respondent has violated r ule 6B - 1.006(3)( a)

and , accordingly , has violated s ection 1012.795(1)(j).

38. Florida Administrative Code Rule 6B - 11.007 sets forth

the disciplinary guidelines applicable to this proceeding. The

Petitioner's Proposed Recommended Order included a proposed

penalty in comp liance with the guidelines, which is reasonable

under the facts of this case.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Education Practices Commission

enter a f inal o rder imposing a two - year s uspension of the

Respondent's teaching certificate followed by a three - year

probationary period , including such terms and conditions,

including appropriate additional educational requirements, as

the Education Practices Commission may choose to impose.

DO NE AND ENTERED this 14th day of September, 2011 , in

Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

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 14th day of September, 2011 .

ENDNOTE

1/ References to Florida Statutes are to the 2010 version,

unless otherwise stated.

COPIES FURNISHED :

Mark Herdman, Esquire

Herdman and Sakellarides, P.A.

29605 U.S. Highway 19 , North, Suite 110

Clearwater, Florida 33761

Bruce P. Taylor, Esquire

204 37th Avenue, Suite 190

St. Petersburg, Florida 33704

Kathleen M. Richards, Executive Director

Education Practices Commission

Department of Education

Turlington Building, Suite 224 - E

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Lois Tepper, Interim General Counsel

Department of Education

T urlington Building, Suite 1244

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, Flor ida, 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 iss ue the Final Order in this case.