12-003648PL Gerard Robinson, As Commissioner Of Education vs. Jennifer Marie Langan Status: Closed Recommended Order on Monday, April 8, 2013.

Summary: It was proven that teacher did not make reasonable effort to protect ESE student who had a knife, but mitigating factors made letter of reprimand and adidtional training appropriate.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GERARD ROBINSON, AS )

COMMISSIONER OF EDUCATION , )

)

Petitioner , )

)

vs. ) Case No. 12 - 3648PL

)

JENNIFER MARIE LANGAN , )

)

Respondent . )

)

REC OMMENDED ORDER

On January 30, 2013, a final administrative hearing in this

case was held by video teleconference in Tallahassee and Fort

Myers , Florida, be fore J. Lawrence Johnston, Administrative Law

Judge, Division of Administrative Hearings (DOAH) .

APP EARANCES

For Petitioner: A. Dean Johnson, Esquire

Brooks, LeBoeuf, Bennett,

Foster and Gwartney, P.A.

909 East Park Avenue

Tallahassee, Florida 32301

For Responden t: Jennifer Langan , pro se

1201 Solana Road, No. 7

Naples, Florida 34103

STATEMENT OF THE ISSUE

The issue in this case is whether, and how, Respondent

should be disciplined for failing to take appropriate acti on

regarding a middle school student who brought a knife to school.

PRELIMINARY STATEMENT

On May 11, 2012, Petitioner filed an Administrative

Complaint against Respondent for violating Florida Administrative

Code Rule 6B - 1.006(3)(a) 1/ by failing to " 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. "

The matter initially was presented to a teacher panel of the

Education Practices Commission, which identifie d a factual

dispute and referred it to DOAH for a hearing.

At the hearing, Petitioner called three witnesses from

Bonita Springs Middle School and had eleven exhibits admitted in

evidence. Respondent testified in her own behalf and had one

exhibit admit ted in evidence. A Transcript of the hearing was

filed, and the parties filed proposed recommended orders, which

have been considered.

FINDINGS OF FACT

1. Respondent holds Florida Educator Certificate 1063574

and is licensed in the fields of English, Eng lish for Speakers of

Other Languages (ESOL), Reading, and Exceptional Student

Education. She began teaching at Bonita Springs Middle School in

Lee County in September 2011, after the start of the 2011 - 2012

school year.

2. During instruction in her fourth period class on

February 13, 2012, Respondent heard a student ask another

student, who was an Exceptional Student Education (ESE) student

with emotional issues, " was that a knife? " The ESE student

responded, " Drama! " When Respondent looked up, she saw t he ESE

student place something in her lap, out of Respondent ' s view.

Respondent did not see what it was but saw a flash of silver or

metal. The class started to " act up, " and Respondent decided to

diffuse the incident and quiet the class by telling the E SE

student to " put it away. " The ESE student then put the object in

her back pack.

3. When the class ended, Respondent approached the ESE

student and asked if she had a knife. The student denied it.

Respondent told the student, if she had a knife, tha t would be

unacceptable, but Respondent did not pursue the matter any

further at the time and allowed the student to leave for her next

class.

4. During Respondent ' s eighth period class, the last period

of the day, Respondent asked her student - aide, who also was a

student in her fourth period class, about the incident during

fourth period. The student - aide told Respondent that it was a

knife, like a small steak knife, and that the ESE student had

been licking it.

5. After speaking with her student - ai de, Respondent sent

the school ' s ESE director, who also was the ESE student ' s

caseworker, an electronic message simply asking to discuss the

student with her when she had a moment. No details about the

incident were included in the message out of Responde nt ' s concern

that it would be a public record. Respondent did not receive a

response by the end of the school day. The ESE director received

the message after hours.

6. The next morning, Respondent saw the ESE director at a

teacher ' s meeting and explain ed the previous day ' s incident. The

ESE director was concerned about the delay in doing anything else

about it and immediately went to the school principal, who was in

the cafeteria, as were several other students, including

Respondent ' s ESE student. The principal immediately went to the

student and asked if she had a knife. The student admitted she

did and thought it was no big deal since Respondent did nothing

about it the day before. The student later stated that she was

depressed and was considering cutting herself with the knife.

7. Respondent now understands that she did not take the

appropriate action on February 13, 2012. However, she contends

that there are mitigating factors to consider, and any discipline

should be constructive (such as, a dditional training), not

punitive.

8. Respondent attempts to defend herself to an extent by

saying she did not actually see the knife during fourth period.

However, it is clear that Respondent heard students asking about

a knife, and saw something silv er or metallic that could have

been a knife, and was aware of the student ' s emotional issues.

In light of those circumstances, Respondent should not have been

satisfied with the student ' s denial that she had a knife; she

should have involved the school ' s administrators and resource

officer at that point. When she learned during eighth period

that the student in fact had a knife, she should not have been

satisfied with an unacknowledged electronic message to the ESE

director.

9. Respondent also attempts to deflect some blame onto the

school for not making sure she knew what to do about incidents

like the one that confronted her on February 13, 2012. It may

well be true, as she testified, that Respondent did not get a

copy of the Parent Guide and Code of Conduct for Students,

normally distributed to teachers at the beginning of the school

year, which identifies a kitchen knife as a weapon and prohibits

it . Petitioner attempted to impeach Respondent ' s denial of

receipt of the document by citing a handful of student discipline

referrals by Respondent that use incident types taken from that

document. One incident type, albeit not used by Respondent in

any of her referrals, was possession of weapons; however, the

form does not define weapons. Respondent tes tified convincingly

that she used the forms without reference to the source document.

Nonetheless, she knew it would be unacceptable for a student to

have a knife at school.

10. When Respondent started teaching at the school, she was

offered an opportuni ty to take the APPLES program for new

teachers, which provides information and training on codes of

conduct, including provisions to protect the safety of students

and faculty. Respondent opted out, stating that she took the

APPLES program during her prev ious employment in Collier County.

11. While perhaps not handed to Respondent when she started

teaching at Bonita Springs Middle School, the Parent Guide and

Code of Conduct for Students was easily accessible from

Respondent ' s school computer via a prog ram called SharePoint that

was a link on the home page. Respondent denies ever accessing

the material from her computer. However, Respondent prepared a

professional development plan shortly after she started teaching

at the school in October 2011. It in cluded a plan to train on

how to download documents from SharePoint, but Respondent had not

yet followed through on that plan by the time of the incident.

12. Information also was available to Respondent in the

form of an Agenda book that she was given. The Agenda book

contained the school ' s rules, including one prohibiting weapons

as nuisances and providing that they would be confiscated.

13. It is not clear whether any of the information provided

or available to Respondent would have told her what to do in

circumstances where she suspected, but was not certain, that a

student had a knife, and the student denied it.

14. Based on the facts of this case, additional training is

appropriate and actually is desired by Respondent. On the other

hand, Re spondent would rather not be reprimanded, submit to

supervised probation, and pay a $500 fine and pay costs, as

Petitioner proposes. Under the facts and circumstances of this

case, Petitioner ' s proposal would be harsh, not constructive, and

possibly demor alizing. The evidence is clear that Respondent

will follow the rules she is given and take appropriate action in

a situation if she knows what is expected of her. A repeat of

the failure to act appropriately in a situation similar to the

incident on Febr uary 13, 2012, is not likely.

CONCLUSIONS OF LAW

15. Since this is a license discipline action, Petitioner

has the burden to prove its allegations by clear and convincing

evidence. Dep ' t of Banking & Fin. v. Osborne Stern & Co. , 670

So. 2d 932 (Fla. 19 96); Ferris v. Turlington , 510 So. 2d 292

(Fla. 1987). The Supreme Court has stated:

Clear and convincing evidence requires that

the evidence must be found to be credible;

the facts to which the witnesses testify must

be distinctly remembered; the testi mony must

be precise and lacking in confusion as to the

facts in issue. The evidence must be of such

a weight that it produces in the mind of the

trier of fact a firm belief or conviction,

without hesitancy, as to the truth of the

allegations sought to be established.

In re Henson , 913 So. 2d 579, 590 (Fla. 2005) (quoting Slomowitz

v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983)).

16. In its P roposed R ecommended O rder, Petitioner treats

Counts I and II of the Administrative Complaint as two separa te

charges. They actually combine to make up a single charge.

Count I charges Respondent with violating section 1012.795(1)(j),

Florida Statutes (2011), 2/ by violating the Principles of

Professional Conduct for the Education Profession prescribed by

Stat e Board of Education rules. Count II charges Respondent with

violating r ule 6B - 1.006(3)(a). Rule 6 B - 1.006(3)(a) requires

teachers to " 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. "

17. Petitioner proved by clear and convincing evidence that

Respondent violated rule 6 B - 1.006(3)(a) by not taking appropriate

action on February 13, 2012.

18. Petitioner ' s P roposed R ecommended O rder asserts that

Respondent is guilty of incompetence and personal conduct that

seriously reduces her effectiveness as an employee under

section 1012.795(1)(c) and (g). Those charges were not pled in

the Administrative Complaint and cannot be added now. See

Trevisani v. Dep ' t of H ealth , 908 So. 2d 1108 (Fla. 1st DCA

2005); Aldrete v. Dep ' t of Health, Bd. of Med. , 879 So. 2d 1244

(Fla. 1st DCA 2004); Ghani v. Dep ' t of Health , 714 So. 2d 1113

(Fla. 1st DCA 1998); Willner v. Dep ' t of Prof ' l Reg., Bd. of

Med. , 563 So. 2d 805 (Fla. 1st DCA 1990). While those case s all

involve physicians, the principle is grounded in due process

considerations and applies to any license discipline case. See,

e.g. , A g. for P ers. with D isab. v. Amanda & Co. , Case No. 08 - 1812

(Fla. DOAH Oct. 29, 2008; Fla. APD Feb. 3, 2009).

19. According to the disciplinary guidelines in

rule 6B - 11.007(2), the range of penalties for Respondent ' s

violation is from probation to revocation. Under subsection (2)

of the rule, discipline can include probation, referral to th e

Recovery Network Program, a letter of reprimand, a restriction on

scope of practice, a fine, and " administrative fees and/or costs "

as additional penalty provisions, as appropriate. Subsection (3)

of the rule sets out aggravating and mitigating factors that

justify discipline outside the disciplinary guideline range.

20. Considering the aggravating and mitigating factors in

section (3) of the rule, it is appropriate to discipline

Respondent with a letter of reprimand and a short term of

unsupervised p robation conditioned on the completion of

ap propriate additional training.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Education Practices Commission

find Respondent guilty of violating r ule 6 B - 1.006(3)(a), issue a

letter of reprimand, and place her on a short term of probation

conditioned on the completion of appropriate additional training.

DONE AND ENTERED this 8th day of April , 2013 , in

Tallahassee, Leon County, Florida.

S

J. LAWRENCE JOHNSTON

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 8th day of April , 2013 .

ENDNOTES

1/ Rule 6B - 1.006 was the State Board of Education rule that

codified the Principles of Professional Conduct for the Education

Profession in effect on February 13, 20 12. Those rules now have

been transferred to Florida Administrative Code R ule 6A - 10.081.

2/ All statutory references are to Florida Statutes (2011), the

codification in effect on February 13, 2012.

COPIES FURNISHED:

Kathleen M. Richards, Executive Di rector

Education Practices Commission

Department of Education

Turlington Building, Suite 224

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Jennifer Langan

1201 Solana Road, No. 7

Naples, Florida 34103

A. Dean Johnson, Esquire

Brooks, LeBoeuf, Bennett,

Foster and Gwartney, P.A.

909 East Park Avenue

Tallahassee, Florida 32301

Matthew Carson, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399

Marian Lambeth, Bureau Chief

Bureau of Professional Practices Services

Department of Education

Turlington Building, Suite 244 - E

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions withi n

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.