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


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

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8BROWARD COUNTY SCHOOL BOARD,

12Petitioner,

13vs.

14Case No. 12-2859TTS

17RHEA COHEN,

19Respondent.

20PAM STEWART, AS COMMISSIONER OF

25EDUCATION,

26Petitioner,

27vs.

28RHEA PLAUT COHEN, Case No. 13-0704PL

34Respondent.

35/

36RECOMMENDED ORDER

38Pursuant to notice, a formal administrative hearing was

46conducted in Fort Lauderdale, Florida, on May 9, 2013, before

56Administrative Law Judge Claude B. Arrington of the Division of

66Administrative Hearings (DOAH).

69APPEARANCES

70For Petitioners: Charles T. Whitelock, Esquire

76Charles T. Whitelock, P.A.

80Suite E

82300 Southeast 13th Street

86Fort Lauderdale, Florida 33316

90For Respondent: Robert F. McKee, Esquire

96Kelly and McKee

99Post Office Box 75638

103Tampa, Florida 33675

106STATEMENT OF THE ISSUES

110As to DOAH Case No. 12-2859TTS, whether Rhea Cohen

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

128the Amended Administrative Complaint filed by Robert Runcie, as

137Superintendent of the Broward County Schools (Superintendent)

144and, if so, the discipline that should be imposed against

154Respondent’s employment.

156As to DOAH Case No. 13-0704PL, whether Respondent committed

165the acts alleged in the Administrative Complaint filed by Pam

175Stewart, as Commissioner of Education (Commissioner) and, if so,

184the discipline that should be imposed against Respondent’s

192teacher’s certificate.

194PRELIMINARY STATEMENT

196This is a consolidated proceeding pertaining to factual

204allegations relating to Respondent’s treatment of students. The

212Superintendent seeks to terminate Respondent’s employment in

219Case No. 12-2859TTS, and the Commissioner seeks to discipline

228Respondent’s teacher’s certificate in Case No. 13-0704PL.

235As will be discussed in the Conclusions of Law section,

245there are two different standards of proof. The Superintendent

254must prove his case by a preponderance of the evidence. The

265Commissioner must prove her case by clear and convincing

274evidence.

275All findings of fact set forth herein have been established

285by clear and convincing evidence. No factual dispute has turned

295on differences between the two standards.

301Separate discussions as to the School Board’s case and the

311Commissioner’s case are set forth in the Conclusions of Law

321section. Separate recommendations have also been made.

328At the times relevant to this proceeding, Respondent was

337employed by the Broward County School Board (School Board) as an

348Exceptional Student Education (ESE) teacher at Crystal Lake

356Middle School (Crystal Lake). At its regularly scheduled meeting

365on August 7, 2012, the School Board took action to suspend

376Respondent’s employment without pay and institute proceedings to

384terminate her employment. Respondent timely challenged the

391School Board’s action. The matter was referred to DOAH, where it

402was assigned DOAH Case No. 12-2859TTS.

408On December 10, 2012, the Superintendent filed “Petitioner’s

416Motion to Amend Administrative Complaint,” which the undersigned

425granted on December 11. The Amended Administrative Complaint,

433dated December 7, alleged certain facts pertaining to

441Respondent’s treatment of students and, based on those facts,

450alleged in three separate counts that Respondent was guilty of

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

469turpitude. The Superintendent relied on the following in

477bringing these charges: sections 1001.51, 1012.27(5), and

4841012.33, Florida Statutes, and Forida Administrative Code

491Rule 6B-4.009(2), (3) and (6). 1/

497By Administrative Complaint dated November 30, 2012, the

505Commissioner alleged certain facts pertaining to Respondent’s

512treatment of students and, based on those facts, alleged that

522Respondent was guilty of: (Count 1) gross immorality or an act

533involving moral turpitude in violation of section 1012.795(1)(d);

541(Count 2) personal conduct which seriously reduced her

549effectiveness as an employee of the school board in violation of

560section 1012.795(1)(g); (Count 3) violating the Principles of

568Professional Conduct for the Education Profession prescribed by

576State Board of Education rules in violation of

584section 1022.795(1)(j); (Count 4) failing to make reasonable

592effort to protect the student from conditions harmful to learning

602and/or to the student’s mental health and/physical health and/or

611safety in violation of rule 6A-10.081(3)(a) 2/ ; (Count 5)

620intentionally exposing a student to unnecessary embarrassment or

628harassing or discriminating against a student on the basis of

638race, color, religion, sexual orientation, or social and family

647background in violation of rule 6A-10.081(3)(g).

653Respondent timely challenged the allegations of the

660Commissioner’s Administrative Complaint. The matter was referred

667to DOAH, where it was assigned DOAH Case No. 13-0704PL.

677On March 13, 2013, the parties filed their Joint Motion to

688Consolidate, which the undersigned granted by order entered on

697March 13.

699At the final hearing, Petitioners presented the testimony of

708Kimberly Sorren (a former ESE teaching intern 3/ at Crystal Lake),

719Donna Taylor Rollins (ESE paraprofessional), Lisa Phillips (ESE

727paraprofessional), Ray Montalbano (ESE teacher), Darlene Hudson

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

742exception of Ms. Sorren, all of Petitioners’ witnesses were

751employed at Crystal Lake at the times relevant to these

761proceedings and at the time of the formal hearing. Petitioners

771entered into evidence 12 pre-marked exhibits pursuant to

779stipulation.

780Respondent testified on her own behalf, but offered no other

790testimony and no exhibits.

794A Transcript of the proceedings, consisting of one volume,

803was filed on May 23, 2013. The deadline for the filing of

815Proposed Recommended Orders was extended on an unopposed motion

824filed by Respondent. Thereafter, the parties timely filed

832Proposed Recommended Orders, which have been duly considered by

841the undersigned in the preparation of this Recommended Order.

850Unless otherwise noted, all statutory references are to

858Florida Statutes (2012), and all references to rules are to the

869version thereof in effect as of the entry of this Recommended

880Order.

881FINDINGS OF FACT

8841. At all times material hereto, the School Board has been

895the constitutional entity authorized to operate, control, and

903supervise the public schools in Broward County, Florida; and

912Robert Runcie was Superintendent of Schools.

9182. At all times material hereto, the Commissioner has been

928the head of the state agency responsible for certifying and

938regulating public school teachers in the State of Florida; and

948Pam Stewart was the Commissioner.

9533. Respondent has been employed by the School Board since

9632002 and holds a Professional Services Contract, issued in

972accordance with section 1012.33(3)(a). During the time relevant

980to this proceeding, Respondent was an ESE classroom teacher at

990Crystal Lake.

9924. During the 2007-2008 school year, Respondent was

1000employed as an ESE classroom teacher at Atlantic West Elementary

1010School teaching students on the autism spectrum. During that

1019school year, the Education Practices Commission (EPC) reprimanded

1027Respondent for sleeping in class while students were present and

1037for using restraints inappropriately to control or manage

1045autistic and exceptional student education students. The EPC

1053imposed an administrative fine against her in the amount of

1063$500.00. Thereafter, Respondent transferred to Crystal Lake.

10705. Respondent taught ESE students at Crystal Lake for the

10802010-2011 and 2011-2012 school years. The events at issue in

1090this proceeding occurred during either the 2010-2011 school year

1099or the 2011-2012 school year. Exact dates were available for

1109some of the events, but unavailable for other events.

11186. Respondent’s classroom at Crystal Lake for those two

1127school years was divided into two halves, separated by tables and

1138rolling chalkboards that did not form a solid wall.

11477. For the 2010-2011 school year, Respondent taught her

1156class of ESE students on one side of the divided classroom and a

1169Ms. Knighton taught on the other side.

11768. For the 2011-2012 school year Respondent shared the

1185classroom with Mr. Montalbano. On one side of the classroom was

1196Respondent’s class, consisting of 11 ESE students. On the other

1206side of the room was Mr. Montalbano’s class, consisting of seven

1217ESE students. Mr. Montalbano’s class was smaller because his

1226class functioned at a lower level than Respondent’s class.

12359. On October 4, 2011, student J., a non-verbal,

1244wheel chair-bound boy, and student D., a boy with Down’s

1254syndrome, were sitting next to each other in Respondent’s

1263classroom. Student D. did something to irritate student J.

1272Student J. balled up his fist as if to strike student D.

1284Respondent, in front of the entire class, Lisa Phillips (an ESE

1295paraprofessional), and Ms. Sorren, made the following statement:

1303“So is the cripple [student J.] going to beat up the retard

1315[student D.]”. /4 Other students in the classroom laughed at

1325student J. and student D.

133010. Student J.’s wheelchair is motorized. After making the

1339statement quoted above, Respondent attempted to move student J.

1348into a corner. When student J. moved the wheelchair away from

1359the corner, Respondent unplugged the wheelchair’s battery and

1367made the statement: “Now who has the power. I am in control,

1379not you.” The other students laughed at student J. Respondent

1389then moved student J. to the corner. /5

139711. On October 11, 2011, Respondent sent student J. to

1407bother.”

140812. One day at dismissal, student J. asked Respondent three

1418or four times to be taken to the bathroom. Respondent did not

1430respond to student J. The bus arrived, but the driver refused to

1442accept student J. because of his request to go to the toilet.

1454Mr. Montalbano, who overheard student J.’s requests to

1462Respondent, took over the responsibility for student J.

147013. Respondent became frustrated while helping student J.

1478with the computer after student J. got the wires to the

1489headphones tangled. Respondent ripped the headphones out of the

1498back of the computer leaving the male connection in the female

1509end of the computer.

151314. In a private discussion with Mr. Montalbano, Respondent

1522referred to student D. as being a “moron.”

153015. Respondent sent her 11 students to Mr. Montalbano’s

1539side of the classroom, which housed ten computers. There was a

1550disturbance because one student did not have a computer.

1559Respondent came to Mr. Montalbano’s side of the classroom and

1569told student D. to give up his computer. Student D.’s first

1580language is Bulgarian. When student D. muttered in protest,

1589Respondent yelled at him to express himself in English. When

1599student D. left the computer, his place was quickly taken by

1610another student. Student D. began to cry. Respondent walked

1619back to her side of the classroom, leaving student D. crying in

1631Mr. Montalbano’s side of the classroom.

163716. On October 11, 2011, student Mi., an 11 year-old female

1648on the autism spectrum, was playing with a puzzle during free

1659time when she spotted an open computer. Student Mi. left the

1670puzzle pieces out to go to the computer. Respondent noted the

1681puzzle on the table and yelled out, “Who left this puzzle out?”

1694Student Mi. hid under a table in reaction to Respondent’s

1704statement. Respondent came to the table, roughly grabbed student

1713Mi., and pulled her out from under the table. Respondent led

1724student Mi. to the table with the puzzle and yelled in front of

1737the class: “I don’t know what your mother teaches you at home,

1749but you’re a little, spoiled brat and I am not going to clean up

1763after you.” Respondent then took student Mi.’s doll away from

1773her and put her in time out for the remainder of the day,

1786approximately 30 minutes.

178917. On another occasion, Respondent had the other members

1798of the class imitate student Mi., after student Mi. had engaged

1809in self-stimulatory behavior. The other students laughed at

1817student Mi.

181918. In October 2011, Ms. Hudson discovered Respondent and

1828student Mi. in Mr. Montalbano’s half of the classroom with the

1839lights dimmed. Ms. Hudson thought student Mi. had been crying.

1849Ms. Hudson reported the incident to her principal, but she did

1860not question Respondent, nor did Respondent volunteer to Ms.

1869Hudson an explanation of the circumstances that resulted in

1878Respondent being in the darkened classroom with student Mi. At

1888the formal hearing, Respondent explained that student Mi. had run

1898into traffic while waiting to be transported from school.

1907Respondent testified, credibly, that she was trying to calm down

1917student Mi. /6

192019. Ms. Sorren testified, credibly, that during the short

1929time she was in Respondent’s classroom (approximately three

1937school days), she heard Respondent address the students as

1946morons, monkeys, jungle monkeys, and animals. That testimony was

1955consistent with the other testimony as to the language used by

1966Respondent in her classroom.

197020. Petitioners established that Respondent repeatedly

1976yelled at her students to “shut up,” described a student’s

1987behavior as being “stupid,” and called at least one student a

1999“brat.”

200021. Student Mo., a female on the autism spectrum, was new

2011to Respondent’s class. On an unidentified date, Respondent

2019directed student Mo. to go to timeout. After student Mo. refused

2030to go to timeout, Respondent shoved student Mo. into the timeout

2041area.

204222. During the 2010-2011 school year, Respondent became

2050upset with student C., a female, and ordered her out of her

2062classroom. When student C. talked back to Respondent, Respondent

2071threw student C.’s backpack and her shoes over the chalkboard

2081that divided the classroom. Ms. Knighton and her class were in

2092the part of the classroom into which Respondent threw the

2102objects. Student C. became very upset.

210823. Respondent became upset with Ma., a male student. Ma.

2118had a snack on his desk. Respondent knocked the snack to the

2130floor and smashed it with her foot.

213724. Petitioners established that Respondent engaged in a

2145pattern of misconduct.

214825. Respondent’s effectiveness in the school system has

2156been impaired.

2158CONCLUSIONS OF LAW

216126. DOAH has jurisdiction over the subject matter of and

2171the parties to this case pursuant to sections 120.569 and

2181120.57(1).

2182THE SUPERINTENDENT’S BURDEN OF PROOF

218727. Because the School Board, acting through the

2195Superintendent, seeks to terminate Respondent’s employment, which

2202does not involve the loss of a license or certification, the

2213School Board has the burden of proving the allegations in its

2224Amended Administrative Complaint by a preponderance of the

2232evidence, as opposed to the more stringent standard of clear and

2243convincing evidence. See McNeill v. Pinellas Cnty. Sch. Bd. , 678

2253So. 2d 476 (Fla. 2d DCA 1996); Allen v. Sch. Bd. of Dade Cnty. ,

2267571 So. 2d 568, 569 (Fla. 3d DCA 1990); Dileo v. Sch. Bd. of Dade

2282Cnty. , 569 So. 2d 883 (Fla. 3d DCA 1990). 28. The preponderance of the evidence standard requires

2299proof by “the greater weight of the evidence,” Black’s Law

2310Dictionary 1201 (7th ed. 1999), or evidence that “more likely

2320than not” tends to prove a certain proposition. See Gross v.

2331Lyons , 763 So. 2d 276, 289 n.1 (Fla. 2000)(relying on American

2342Tobacco Co. v. State , 697 So. 2d 1249, 1254 (Fla. 4th DCA 1997)

2355quoting Bourjaily v. United States , 483 U.S. 171, 175 (1987)).

2365THE COMMISSIONER’S BURDEN OF PROOF

237029. In this proceeding the Commissioner seeks to discipline

2379Respondent’s Florida Educator Certificate. Consequently, the

2385Commissioner has the burden of proving by clear and convincing

2395evidence the allegations against Respondent. See Ferris v.

2403Turlington , 510 So. 2d 292 (Fla. 1987) and McKinney v. Castor ,

2414667 So. 2d 387 (Fla. 1st DCA 1987)

2422THE SUPERINTENDENT’S ALLEGED VIOLATIONS

242630. Section 1012.33(1)(a) includes the following as just

2434cause to terminate a teacher’s professional services contract:

2442. . . Just cause includes, but is not

2451limited to, the following instances, as

2457defined by rule of the State Board of

2465Education: immorality, misconduct in office

2470or being convicted or found guilty of, or

2478entering a plea of guilty to, regardless of

2486adjudication of guilt, any crime involving

2492moral turpitude.

249431. The Superintendent’s Amended Administrative Complaint

2500alleged that Respondent was guilty of:

2506(Count 1) immorality,

2509(Count 2) misconduct in office, and

2515(Count 3) moral turpitude.

2519THE COMMISSIONER’S ALLEGED VIOLATIONS

252332. Section 1012.795(1) provides, in relevant part, as

2531follows:

2532(1) The Education Practices Commission may

2538suspend the educator certificate of any

2544person as defined in s. 1012.01(2) or (3) for

2553up to 5 years, thereby denying that person

2561the right to teach or otherwise be employed

2569by a district school board or public school

2577in any capacity requiring direct contact with

2584students for that period of time, after which

2592the holder may return to teaching as provided

2600in subsection (4); may revoke the educator

2607certificate of any person, thereby denying

2613that person the right to teach or otherwise

2621be employed by a district school board or

2629public school in any capacity requiring

2635direct contact with students for up to 10

2643years, with reinstatement subject to the

2649provisions of subsection (4); may revoke

2655permanently the educator certificate of any

2661person thereby denying that person the right

2668to teach or otherwise be employed by a

2676district school board or public school in any

2684capacity requiring direct contact with

2689students; may suspend the educator

2694certificate, upon an order of the court or

2702notice by the Department of Revenue relating

2709to the payment of child support; or may

2717impose any other penalty provided by law, if

2725the person:

2727* * *

2730(d) Has been guilty of gross immorality or

2738an act involving moral turpitude as defined

2745by rule of the State Board of Education.

2753* * *

2756(g) Upon investigation, has been found

2762guilty of personal conduct that seriously

2768reduces that person’s effectiveness as an

2774employee of the district school board.

2780* * *

2783(j) Has violated the Principles of

2789Professional Conduct for the Education

2794Profession prescribed by State Board of

2800Education rules.

280233. The Superintendent’s Administrative Complaint alleged

2808that Respondent was guilty of:

2813(Count 1) gross immorality or an act

2820involving moral turpitude,

2823(Count 2) personal conduct which seriously

2829reduced her effectiveness as an employee of

2836the school board,

2839(Count 3) violating the Principles of

2845Professional Conduct for the Education

2850Profession prescribed by State Board of

2856Education,

2857(Count 4) failing to make reasonable effort

2864to protect the student from conditions

2870harmful to learning and/or to the student’s

2877mental health and/physical health and/or

2882safety,

2883(Count 5) intentionally exposing a student

2889to unnecessary embarrassment or

2893disparagement, and

2895(Count 6) harassing or discriminating

2900against a student on the basis of race,

2908color, religion, sexual orientation, or

2913social and family background.

2917IMMORALITY AND MORAL TURPITUDE

292134. Count 1 of the Superintendent’s Amended Administrative

2929Complaint charges, in relevant part, that:

2935. . . Respondent’s acts constitute acts of

2943immorality, that is, conduct inconsistent

2948with the standards of public conscience and

2955good morals. Respondent’s conduct is

2960sufficiently notorious to bring Respondent

2965and/or the educational profession into public

2971disgrace or disrespect, and impair

2976Respondent’s service in the community.

298135. Count 3 of the Superintendent’s Amended Administrative

2989Complaint charges, in relevant part, that:

2995. . . Respondent’s acts constitute acts of

3003moral turpitude, that is, acts of baseness,

3010vileness or depravity in the private and

3017social duties, which, according to the

3023accepted standards of the time, a person owes

3031to his fellow human or to society in general,

3040and the doing of the act itself and not its

3050prohibition by statute fixes the moral

3056turpitude.

305736. Count 1 of the Commissioner’s Administrative Complaint

3065charges, in relevant part that:

3070. . . Respondent has been guilty of gross

3079immorality or an act involving moral

3085turpitude as defined by rule of the State

3093Board of Education.

309637. Rule 6A-5.056(1) contains the following definition of

3104the term immorality:

3107(2) “Immorality” means conduct that is

3113inconsistent with the standards of public

3119conscience and good morals. It is conduct

3126that brings the individual concerned or the

3133education profession into public disgrace or

3139disrespect and impairs the individual’s

3144service in the community.

314838. “Gross immorality” has been defined to mean an act of

3159misconduct that is serious, rather than minor in nature; it is a

3171flagrant disregard of proper moral standards. See Educ.

3179Practices Comm’n v. Knox , 3 FALR 1373-A (Fla. Dept. of Educ.

31901981) and Frank T. Brogan v. Eston Mansfield , Case No. 96-0286

3201(Fla. DOAH Aug. 1, 1996; Fla. Educ. Practices Comm’n Oct. 18,

32121996).

321339. Florida Administrative Code Rule 6A-5.056(a)-(j) lists

3220the serious crimes that constitute crimes involving moral

3228turpitude. Both Petitioners and Respondent cite rule 6B-4.009(6)

3236for the following definition of the term “moral turpitude”:

3245Moral turpitude is a crime that is evidenced

3253by an act of baseness; vileness or depravity

3261in the private and social duties, which,

3268according to the accepted standards or the

3275time a man owes to his or her fellow man or

3286to society in general, and the doing of the

3295act itself and not its prohibition by statute

3303fixes moral turpitude.

330640. Rule 6B-4.009 has been amended and transferred to rule

33166A-5.056. The quoted definition of “moral turpitude” is no

3325longer a part of the Rule.

333141. As will be discussed below, Petitioners proved that

3340Respondent engaged in misconduct. Neither Petitioner proved that

3348Respondent’s misconduct rose to the level of “immorality” or

3357“acts involving moral turpitude.” Consequently, Respondent is

3364not guilty of the violations alleged in Count 1 and 3 of the

3377Superintendent’s Amended Administrative Complaint. Respondent is

3383also not guilty of the violation alleged in Count 1 of the

3395Commissioner’s Administrative Complaint.

3398MISCONDUCT IN OFFICE

340142. Rule 6A-5.056(2) defines the term “Misconduct in

3409Office” as follows:

3412(2) “Misconduct in Office” means one or

3419more of the following:

3423(a) A violation of the Code of Ethics of

3432the Education Profession in Florida as

3438adopted in [Rule 6A-10.080];

3442(b) A violation of the Principles of

3449Professional Conduct for the Education

3454Profession in Florida as adopted in

3460[Rule 6A-10.081];

3462(c) A violation of the adopted school

3469board rules;

3471(d) Behavior that disrupts the student’s

3477learning environment; or

3480(e) Behavior that reduces the teacher’s

3486ability or his or her ability to effectively

3494perform duties.

349643. Rule 6A-10.081, set forth the “Principles of

3504Professional Conduct for the Education Profession in

3511Florida,” and provide, in relevant part, as follows:

3520(3) Obligation to the student requires

3526that the individual:

3529(a) Shall make reasonable effort to

3535protect the student from conditions harmful

3541to learning and/or to the student’s mental

3548and/or physical health and/or safety.

3553(b) Shall not unreasonably restrain a

3559student from independent action in pursuit of

3566learning.

3567(c) Shall not unreasonably deny a student

3574access to diverse points of view.

3580(d) Shall not intentionally suppress or

3586distort subject matter relevant to a

3592student’s academic program.

3595(e) Shall not intentionally expose a

3601student to unnecessary embarrassment or

3606disparagement.

3607(f) Shall not intentionally violate or

3613deny a student’s legal rights.

3618(g) Shall not harass or discriminate

3624against any student on the basis of race,

3632color, religion, sex, age, national or ethnic

3639origin, political beliefs, marital status,

3644handicapping condition, sexual orientation,

3648or social and family background and shall

3655make reasonable effort to assure that each

3662student is protected from harassment or

3668discrimination.

3669* * *

3672(5) Obligation to the profession of

3678education requires that the individual:

3683(d) Shall not engage in harassment or

3690discriminatory conduct which unreasonably

3694interferes with an individual’s performance

3699of professional or work responsibilities or

3705with the orderly processes of education or

3712which creates a hostile, intimidating,

3717abusive, offensive, or oppressive

3721environment; and, further, shall make

3726reasonable effort to assure that each

3732individual is protected from such harassment

3738or discrimination.

374044. Count 2 of the Superintendent’s Amended Administrative

3748Complaint alleges that Respondent is guilty of Misconduct in

3757Office within the meaning of section 1012.33 because she violated

3767the above-quoted portions of rule 6A-10.081. The Superintendent

3775failed to establish that Respondent was guilty of violating rule

3785misconduct below is not premised on those alleged violations.

379445. Counts 2 and 3 of the Commissioner’s Administrative

3803Complaint are as follows:

3807Count 2. The Respondent is in violation of

3815[section 1012.795(1)(g)] in that Respondent

3820has been found guilty of personal conduct

3827which seriously reduces her effectiveness as

3833an employee of the school board.

3839Count 3. The Respondent is in violation of

3847[section 1012.795(1)(d)] in that Respondent

3852has violated the Principles of Professional

3858Conduct for the Education Profession

3863prescribed by State Board of Education rules.

387046. Counts 4, 5, and 6 of the Commissioner’s Administrative

3880Complaint allege that Respondent violated the rules that are now

3890found in the above-quoted rule 6A-10.081(3)(a), (e), and (g).

389947. Petitioners failed to prove that Respondent harassed or

3908discriminated against any of her students as alleged in Count 6

3919of the Commissioner’s Administrative Complaint and as alleged in

3928Count 2 of the Superintendent’s Amended Administrative Complaint.

3936The finding of misconduct which follows is not premised on the

3947allegations of discrimination and/or harassment of students.

395448. Petitioners proved that Respondent was guilty of

3962misconduct in office by repeatedly violating the following

3970Principles of Professional Conduct for the Education Profession

3978in Florida set forth in rule 6A-10.081(3)(a) and (e), as alleged

3989in Counts 2 and 3 of the Commissioner’s Administrative Complaint

3999and in Count 2 of the Superintendent’s Amended Administrative

4008Complaint.

400949. Respondent’s reduced effectiveness may be inferred from

4017the nature and seriousness of the conduct. See Walker v.

4027Highlands Cnty. Sch. Bd. , 752 So. 2d 127 (Fla. 2 DCA 2000) and

4040Purvis v. Marion Cnty. Sch. Bd. , 766 So. 2d 492 (Fla. 5th DCA

40532000). Respondent’s pattern of mistreating her students

4060established that her effectiveness as a school board employee has

4070been impaired.

407250. In making the recommendation that follows as to

4081Case No. 13-0704PL, the undersigned has considered the

4089Disciplinary Guidelines set forth in rule 6B-11.007 and

40976B-11.008.

409851. The undersigned has accepted the recommended

4105dispositions of these matters as set forth in the respective

4115proposed recommended orders submitted by the Commissioner and the

4124Superintendent.

4125RECOMMENDATION

4126The following recommendations are based on the foregoing

4134findings of fact and conclusions of law:

4141As to Case No. 12-2859TTS, it is RECOMMENDED that the School

4152Board of Broward County, Florida, enter a final order adopting

4162the findings of fact and conclusions of law set forth in this

4174Recommended Order. It is FURTHER RECOMMENDED that the final

4183order uphold the suspension without pay of Rhea Cohen’s

4192employment and terminate that employment.

4197As to Case No. 13-0704PL, it is RECOMMENDED that the

4207Education Practices Commission enter a final order adopting the

4216findings of fact and conclusions of law set forth in this

4227Recommended Order. It is FURTHER RECOMMENDED that the final

4236five years, to be followed by probation for three years with

4247conditions to be set by the Education Practices Commission.

4256DONE AND ENTERED this 12th day of July, 2013, in

4266Tallahassee, Leon County, Florida.

4270CLAUDE B. ARRINGTON

4273Administrative Law Judge

4276Division of Administrative Hearings

4280The DeSoto Building

42831230 Apalachee Parkway

4286Tallahassee, Florida 32399-3060

4289(850) 488-9675

4291Fax Filing (850) 921-6847

4295www.doah.state.fl.us

4296Filed with the Clerk of the

4302Division of Administrative Hearings

4306this 12th day of July, 2013.

4312ENDNOTE

43131 / The Superintendent’s Amended Administrative Complaint cited

4321Rule 6B-4.009, which has been transferred to Rule 6A-5.056.

43302/ The Commissioner’s Administrative Complaint cited

4336Rule 6B-1.006, which was renumbered as 6A-10.081 after the

4345Administrative Complaint was filed.

43493 / Ms. Sorren is an experienced classroom teacher who had

4360returned to college to become qualified to teach ESE students.

4370Her internship was part of her college curriculum. At the time

4381of the formal hearing, Ms. Sorren was employed as an ESE teacher

4393at a private school.

43974/ This matter was thoroughly investigated by the School Board.

4407Petitioner gave a statement to a school detective, attended an

4417informal conference with a Department of Education

4424representative, and was deposed by Petitioners in preparation for

4433the formal hearing. At the formal hearing, for the first time,

4444Respondent testified that it was Lisa Phillips who made the

4454quoted comment. Respondent’s contention that Lisa Phillips made

4462the comment is rejected as lacking credibility. The evidence

4471established clearly, and convincingly, that Respondent made the

4479statement.

44805/ In making these findings, the undersigned has considered

4489Respondent’s version of the events. Respondent contends that she

4498unplugged the wheelchair from its battery because the wheelchair

4507did not have an on/off power switch and because student J was

4519moving the wheelchair in an unsafe manner. Even if those factors

4530motivated the act of unplugging the battery, there is no excuse

4541for Respondent exposing student J to ridicule, as she clearly did

4552by her comment.

45556 / The undersigned accepts this explanation. While Respondent

4564showed poor judgment in being with any student under the

4574circumstances observed by Ms. Hudson, there was no evidence of

4584improper contact between Respondent and the student.

4591Consequently, the undersigned declines to find Respondent guilty

4599of misconduct in office based on this incident.

4607COPIES FURNISHED:

4609Robert F. McKee, Esquire

4613Kelly and McKee

4616Post Office Box 75638

4620Tampa, Florida 33675

4623Charles T. Whitelock, Esquire

4627Charles T. Whitelock, P.A.

4631Suite E

4633300 Southeast 13th Street

4637Fort Lauderdale, Florida 33316

4641Kathleen M. Richards, Executive Director

4646Education Practices Commission

4649Department of Education

4652Turlington Building, Suite 224

4656325 West Gaines Street

4660Tallahassee, Florida 32399-0400

4663Matthew Carson, General Counsel

4667Department of Education

4670Turlington Building, Suite 1244

4674325 West Gaines Street

4678Tallahassee, Florida 32399-0400

4681Robert Runcie, Superintendent

4684Broward County School Board

4688600 Southeast Third Avenue

4692Fort Lauderdale, FL 33301

4696Dr. Tony Bennett

4699Commissioner of Education

4702Department of Education

4705Turlington Building, Suite 1514

4709325 West Gaines Street

4713Tallahassee, Florida 32399-0400

4716Marian Lambeth, Bureau Chief

4720Bureau of Professional

4723Practices Services

4725Department of Education

4728Turlington Building, Suite 224-E

4732325 West Gaines Street

4736Tallahassee, Florida 32399-0400

4739NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

4745All parties have the right to submit written exceptions within

475515 days from the date of this Recommended Order. Any exceptions

4766to this Recommended Order should be filed with the agency that

4777will issue the Final Order in this case.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 10/25/2013
Proceedings: Agency Final Order filed.
PDF:
Date: 10/23/2013
Proceedings: Agency Final Order
PDF:
Date: 10/10/2013
Proceedings: Respondent's Exceptions to Amended Recommended Order filed.
PDF:
Date: 10/10/2013
Proceedings: Agency Final Order filed.
PDF:
Date: 10/08/2013
Proceedings: Agency Final Order
PDF:
Date: 07/16/2013
Proceedings: Amended RO
PDF:
Date: 07/16/2013
Proceedings: Amended Recommended Order cover letter identifying the hearing record referred to the Broward County School Board.
PDF:
Date: 07/16/2013
Proceedings: Amended Recommended Order cover letter identifying the hearing record referred to the Education Practrices Commission.
PDF:
Date: 07/16/2013
Proceedings: Amended Recommended Order.
PDF:
Date: 07/15/2013
Proceedings: Recommended Order
PDF:
Date: 07/15/2013
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Education Practices Commission.
PDF:
Date: 07/15/2013
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Broward County School Board.
PDF:
Date: 07/15/2013
Proceedings: Recommended Order (hearing held May 9, 2013). CASE CLOSED.
PDF:
Date: 06/19/2013
Proceedings: Respondent's Proposed Recommended Order filed.
PDF:
Date: 06/19/2013
Proceedings: Petitioner's Proposed Recommended Order (filed in Case No. 13-000704PL).
PDF:
Date: 06/19/2013
Proceedings: Petitioner's Proposed Recommended Order filed.
PDF:
Date: 06/12/2013
Proceedings: Order Granting Extension of Time.
PDF:
Date: 06/11/2013
Proceedings: Unopposed Motion for Extension of Time to File Proposed Recommended Orders filed.
PDF:
Date: 05/28/2013
Proceedings: Letter to Judge Arrington from C. Whitelock regarding filing the proposed recommended order on June 14, 2013 filed.
Date: 05/23/2013
Proceedings: Transcript (not available for viewing) filed.
Date: 05/13/2013
Proceedings: Petitioner's Proposed Exhibits filed (exhibits not available for viewing).
Date: 05/09/2013
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 04/29/2013
Proceedings: Court Reporter Scheduled (filed in Case No. 13-000704PL).
PDF:
Date: 04/25/2013
Proceedings: Protective Order.
PDF:
Date: 04/25/2013
Proceedings: Joint Motion for a Protective Order Regarding Student-Identifying Information Disclosure Pursuant to Florida Statues Section 1002.22 filed.
PDF:
Date: 04/25/2013
Proceedings: Joint Pre-hearing Stipulation filed.
PDF:
Date: 04/24/2013
Proceedings: Amended Notice of Hearing (hearing set for May 9 and 10, 2013; 9:00 a.m.; Fort Lauderdale, FL; amended as to Address).
PDF:
Date: 04/01/2013
Proceedings: Order Granting Continuance and Re-scheduling Hearing (hearing set for May 9 and 10, 2013; 9:00 a.m.; Fort Lauderdale, FL).
PDF:
Date: 03/13/2013
Proceedings: Respondent's Unopposed Motion to Continue (hearing until May 2013) filed.
PDF:
Date: 03/13/2013
Proceedings: Order of Consolidation (DOAH Case Nos. 12-2859TTSand 13-0704PL).
PDF:
Date: 03/13/2013
Proceedings: Joint Motion to Consolidate filed.
PDF:
Date: 02/27/2013
Proceedings: Order Granting Continuance and Re-scheduling Hearing (hearing set for April 25 and 26, 2013; 9:00 a.m.; Fort Lauderdale, FL).
PDF:
Date: 02/21/2013
Proceedings: Joint Motion to Continue Hearing (for Purposes of Consolidation) filed.
PDF:
Date: 01/30/2013
Proceedings: Notice of Taking Depositions (of D. Rollins and K. Sorren) filed.
PDF:
Date: 12/12/2012
Proceedings: Order Re-scheduling Hearing by Video Teleconference (hearing set for March 14 and 15, 2013; 9:00 a.m.; Lauderdale Lakes, FL).
PDF:
Date: 12/11/2012
Proceedings: Amended Joint Response to Initial Order filed.
PDF:
Date: 12/11/2012
Proceedings: Order Granting Continuance (parties to advise status by December 17, 2012).
PDF:
Date: 12/11/2012
Proceedings: Order Granting Motion to Amend Administrative Complaint.
PDF:
Date: 12/10/2012
Proceedings: Petitioner's Motion to Amend Administrative Complaint filed.
PDF:
Date: 12/10/2012
Proceedings: Second Unopposed Motion to Continue Hearing filed.
PDF:
Date: 12/05/2012
Proceedings: Notice of Taking Depositions (of R. Montalbano and L. Phillips) filed.
PDF:
Date: 11/28/2012
Proceedings: Notice of Petitioner's Response to Respondent's First Set of Interrogatories filed.
PDF:
Date: 11/28/2012
Proceedings: Notice of Petitioner's Response to Respondent's First Request for Production filed.
PDF:
Date: 11/07/2012
Proceedings: Respondent's Responses to Request for Production filed.
PDF:
Date: 11/07/2012
Proceedings: Respondent's Answers to Petitioner's First Set of Interrogatories filed.
PDF:
Date: 10/16/2012
Proceedings: Amended Notice of Hearing (hearing set for January 8 and 9, 2013; 9:00 a.m.; Fort Lauderdale, FL; amended as to Date and Location).
PDF:
Date: 10/05/2012
Proceedings: Respondent's Responses to Request for Admissions filed.
PDF:
Date: 09/28/2012
Proceedings: Notice of Service of Petitioners Request for Admissions to Respondent filed.
PDF:
Date: 09/28/2012
Proceedings: Notice of Service of Petitioner's First Set of Interrogatories to Respondent filed.
PDF:
Date: 09/28/2012
Proceedings: Notice of Service of Petitioner's Request for Production to Respondent filed.
PDF:
Date: 09/13/2012
Proceedings: Order Granting Continuance and Re-scheduling Hearing (hearing set for December 20 and 21, 2012; 9:00 a.m.; Lauderdale Lakes, FL).
PDF:
Date: 09/07/2012
Proceedings: Unopposed Motion to Continue Hearing filed.
PDF:
Date: 09/04/2012
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 09/04/2012
Proceedings: Notice of Hearing by Video Teleconference (hearing set for December 5 and 6, 2012; 9:00 a.m.; Lauderdale Lakes and Tallahassee, FL).
PDF:
Date: 08/31/2012
Proceedings: Joint Response to Initial Order filed.
PDF:
Date: 08/30/2012
Proceedings: Petitioner's Notice of Filing filed.
PDF:
Date: 08/29/2012
Proceedings: Agency Action filed.
PDF:
Date: 08/28/2012
Proceedings: Initial Order.
PDF:
Date: 08/24/2012
Proceedings: Referral Letter filed.
PDF:
Date: 08/24/2012
Proceedings: Request for Administrative Hearing filed.
PDF:
Date: 08/24/2012
Proceedings: Agency action letter filed.

Case Information

Judge:
CLAUDE B. ARRINGTON
Date Filed:
08/24/2012
Date Assignment:
08/28/2012
Last Docket Entry:
10/25/2013
Location:
Fort White, Florida
District:
Northern
Agency:
ADOPTED IN TOTO
Suffix:
TTS
 

Counsels

Related DOAH Cases(s) (3):

Related Florida Statute(s) (6):

Related Florida Rule(s) (6):