13-003641PL Dr. Tony Bennett, As Commissioner Of Education vs. Teresa Henson Status: Closed Recommended Order on Monday, March 24, 2014.

Summary: Petitioner proved that Respondent made inappropriate statements to a student in a challenging educational environment. All other allegations not proven. Recommend reprimand and probation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DR. TONY BENNETT, AS

COMMISSIONER OF EDUCATION,

Petitioner,

vs. Case No. 13 - 3641PL

TERESA HENSON,

Respondent.

_______________________________/

RECOMMENDED ORDER

On January 16, 2014, Administrative Law Judge Lisa Shearer

Nelson of the Florida Division of Administrative Hearings

conducted a duly - noticed hearing pursuant to section 120.57(1),

Florida Statutes, by video teleconference with sites in Panama

City and Tallahassee, Flori da.

APPEARANCES

For Petitioner: J. David Holder, Esquire

J. David Holder, P.A.

387 Lakeside Drive

DeFuniak Springs, Florida 32435

For Respondent: Emily Moore, Esquire

Florida Education Association

213 So uth Adams Street

Tallahassee, Florida 32301

STATEMENT OF THE ISSUE S

The issues to be determined are whet her Respondent violated

section 1012.795(d) and (j), Florida Statutes (2011), or Florida

Administrative Code Rule 6A - 10.081(3)(a) and (e), and if so, what

penalty should be imposed by the Education Practices Commission.

PRELIMINARY STATEMENT

On April 22, 2013, Tony Bennett, in his capacity as

Commissioner of Education (Petitioner or the Commissioner) , filed

an Administrative Complaint against Respo ndent, Teresa Henson,

alleging violations of section 1012.795(1)(d) and (j) and r ule

6A - 10.081(3)(a) and (e). Respondent executed an Election of

Rights form on June 5, 2013, requesting a hearing pursuant to

section 120.57(1). On September 18, 2013, the m atter was

referred to the Division of Administrative Hearings for the

assignment of an administrative law judge.

On September 26, 2013, a Notice of Hearing was issued

scheduling the hearing for November 21, 2013. Two continuances

were sought by Respondent and both were granted, with the hearing

eventually rescheduled for January 16, 2014 . The hearing

commenced as scheduled on that date, and concluded the same day.

Joint Exhibits 1 - 7 were admitted into evidence. Petitioner

presented the testimony of Nancy Davis, Jennifer Shea Saulmon ,

Patricia Lewis, Elizabeth Swedlund, Joseph Britt Smith, and Mike

Jones, and PetitionerÓs Exhibits 1 - 6 were admitted into evidence.

Respondent presented the testimony of Sharon Michalik, Glenda

Nouskhajian, Holly Allain, and Tiffany Lewis Campos, and

RespondentÓs Exhibits 1 - 3, 5 - 7 , and 9 were admitted into

evidence. Respondent was given the opportunity to file

RespondentÓs Exhibit 10 within seven days of the hearing;

however, the exhibit was never filed.

The hearing T ranscrip t was filed with the Division on

February 4, 2014. RespondentÓs unopposed Motion for Extension of

Time to File Proposed Recommended Orders was granted on

February 6, 2014, and the deadline for filing post - hearing

submissions was extended to February 24, 2 014. Proposed

Recommended Orders were timely filed by both parties and have

been carefully considered in the preparation of this Recommended

Order.

Petitioner withdrew the allegation contained in paragraph

3(d) of the Administrative Complaint. Accordingl y, no findings

of fact or conclusions of law will be made with respect to this

allegation. All references to Florida Statutes are to the 2011

codification unless otherwise indicated.

FINDING S OF FACT

1. Respondent is a teacher certified by the State of

F lorida, holding Florida EducatorÓs Certificate 958493, covering

the areas of Elementary Education, Exceptional Student Education

(ESE) , and Autism Spectrum Disorders, valid through June 30,

2014.

2. At all times material to the allegations in this case,

R espondent was employed by the Bay County School District as an

ESE teacher at Margaret K. Lewis Center (MKL Center) .

3. This is a second career for Respondent. She left a

business and technology career to pursue a career in education,

specifically workin g with students with special needs.

Respondent obtained her MasterÓs degree and a special designation

to work with special needs students. Respondent was motivated to

pursue teaching special education students because she had an

aunt with DownÓs syndrome who had limited educational

opportunities.

4 . Respondent taught at Oscar Patterson Elementary for the

2006 - 2007 school year, and then transferred to MKL Center

beginning in the 2007 - 2008 school year.

5. After Respondent received her state educational

ce rtification in autism spectrum disorders, she requested to be

assigned to teach an ESE class beginning with the 2010 - 2011

school year. That year, she was voted as ÐTeacher of the YearÑ

by her peers.

6. The class to which Respondent was assigned was a

c hallenging class. It was not unusual for students in this

classroom to bite, kick, hit, pinch, and trip staff. During the

2010 - 2011 school year , the number of students was reduced from

eight to four, and the number of paraprofessionals was increased

from two to three. During the 2011 - 2012 school year, there were

four students in her classroom: C.B., J.B., K.M., and D.C. One

paraprofessional, Patricia Lewis, was assigned specifically to

D.C. The other two paraprofessionals, Jennifer Shea Saulmon and

Nan cy Davis, worked with all of the children, and when able to,

Patricia Lewis did as well. Ms. Da vis, Ms. Saulmon, and

Ms. Lewis have seven, fourteen and twenty - seven years of

experience, respectively.

7. C.B. ha d a severe mental disability with a limite d

ability to comprehend verbal communications and a limited ability

to communicate. C.B.Ós communication involved single words,

sounds, and gestures. He could discern the speaker Ós mood , but

might not fully understand the content of what wa s said. For

e xample, C.B. might not understand that someone was saying hello ,

but would understand that the speaker was friendly towards him.

C.B. also had problematic behaviors including biting, pinching,

scratching, and hitting. C.B. had an awkward gait and wore an kle

orthotics (AFOÓs), a type of plastic brace, over his shoe and

lower leg to provide stability from the foot to the leg, and to

assist in improving his ability to walk. C.B. was ten years old.

8. J.B. was approximately 11 years old in January 2012, and

was diagnosed with Autism Spectrum Disorder . He also had a

limited ability to communicate using single words, sounds and

utterances, and gestures. J.B. also used an iPad to communicate.

Over time, someone working with J.B. would develop a greater

abili ty to understand and communicate with him. J.B.Ós difficult

behaviors included spitting, hitting, kicking, and pinching.

9. K.M. was 11 in January 2012. K.M. was diagnosed with

DownÓs syndrome , and had previously suffered a stroke which

limited her use of one arm. She also had significant

intellectual limitations. However, K.M.Ós ability to communicate

was greater than the other members of the class, and she could

understand verbal communications. In addition, K.M. was more

independent than her classm ates, and was a risk for elopement

from both the classroom and the campus. As stated by one of the

paraprofessionals, K.M. Ðwas a runner.Ñ By all accounts, K.M.Ós

behaviors were consistently disruptive, and managing her in a

classroom took a significant effort.

10. D.C. was also 11 in January 2012. D.C. was diagnosed

as autistic and engaged in repeated self - injurious behaviors.

When upset, D.C. would repeatedly strike himself in the head and

face, and he often wore a football helmet as a protective

mea sure. D.C. was very strong, and attempts to prevent him from

hurting himself could often result in staff members being hurt.

There was testimony at hearing that his behavior plan addressed

how many he times he was allowed to hit himself or how long he

wa s allowed to hit himself without intervention. However, the

behavior plan for D.C. was not in evidence. A portion of the

classroom was designed specifically for D.C., with padded walls

and a padded floor, in light of D.C.Ós tendency to hit his head

again st hard surfaces as well. He had some beads that he played

with that sometimes calmed him.

11. At some point during the 2011 - 2012 school year,

Respondent began to show signs that the stresses of her very

challenging classroom were having an effect on her . After the

Christmas break, her stress seemed to have intensified.

Respondent was having trouble sleeping, suffered from high blood

pressure and pain from injuries sustained in the classroom, and

was experiencing some depression. Respondent began to Ðs elf -

medic ateÑ with alcohol at night. There was no credible evidence

that Respondent ever drank during the day or was under the

influence of alcohol during work hours.

12. At the end of the scho ol day on January 30, 2012 ,

Ms. Lewis approached assistant pr incipal Elizabeth Swedlund to

voice some concerns about RespondentÓs behavior in the classroom.

Ms. Lewis related some events that had occurred in the classroom

that day, as well as some general concerns regarding treatment of

the students in the classr oo m. She voiced the following

concerns: that Respondent took away D.C.Ós beads and would allow

him to hit himself for a period of time longer than allowed by

his treatment plan; that she made statements to K.M. such as ÐI

could kill youÑ or Ðgo play in the streetÑ; and that she hit C.B.

with a closed hand and kicked him while working in Ð circle time. Ñ

13. On January 31, 2012, Ms. Swedlund notified her

principal, Britt Smith, of the conversation with Ms. Lewis. She

decided to speak with the other paraprofe ssionals in the

classroom and after doing so, to report the information to the

abuse registry. Principal Smith notified Sharon Michalik, the

DistrictÓs Executive Director of Human Resources, of the issue

with respect to Respondent. As a result, Mike Jone s, Chief of

Safety, initiated an investigation.

14. Mike Jones visited the campus the following day. All

three paraprofessionals were interviewed and asked to provide

written statements. He took Respondent for a drug and urine

test, which came back nega tive . On Friday, February 3, 2012 ,

Respondent was notified to meet with Ms. Michalik and other

administrators to review the allegations. After this meeting,

Respondent was suspended with pay, and the School District

planned to proceed with a recommendati on for termination.

However, instead the parties entered an agreement executed on

March 30, 2012, through which Respondent would take a medical

leave of absence and would only be allowed to return to a

position with the School D istrict if she was found fi t for duty.

If she returned, she would be required to submit to random drug

and alcohol testing.

15. On March 30, 2012, the Department of Children and

Families issued a letter to Respondent stating that it found no

indicators of physical injury and no indicators of bizarre

punishment. On April 27, 2012, Respondent was evaluated by

psychologist David J. Smith who opined that at that time, she was

not fit for duty. She was re - evaluated on July 26, 2012, and

cleared to return to work. At that time , she was assigned to a

different school.

16. One of the issues raised by Ms. Lewis was that

Respondent permitted D.C. to hit himself more frequently than

allowed by his behavior plan. The Administrative Complaint

specifically charges that she allowed D.C. t o hit himself

repeatedly for up to ten minutes, while his behavior plan

indicated that he should be allowed to hit himself up to three

times.

17. The behavior plan was not entered into evidence. The

evidence was unclear as to what the plan actually req uired, and

it was equally unclear exactly what Respondent was doing. For

example, there was testimony that she would attempt to redirect

him once he started hitting himself, but did not physically

intervene for ten minutes. There was other testimony that there

was never a time when he was allowed to simply hit himself with

no one doing anything. Without being able to examine the

behavior plan, and without being able to specify the exact

incident or incidents at issue, it is not possible to determine

whet her Respondent was varying from the requirements of the

behavior plan , or if any variation was significant .

18. Ms. Davis reported to Ms. Swedlund that on or about

Friday, January 27, 2012, J.B. was in time - out because of bad

behaviors. While he was in t ime - out, he was sitting behind a

rolling partition, and Respondent was holding the partition in

place so that J.B. would have to remain in place. J.B. spat at

Respondent , which is something he did often . Ms. Davis reported

that while holding the partitio n Respondent spat back at him, an

action that shocked Ms. Davis. Respondent denies ever spitting

on J.B. She testified via deposition that J.B. was spitting

while in time - out , and she was holding the barrier while talking

to him. She responded to his be havior by saying Ðyou do not

spit.Ñ Respondent testified that it was possible that some

spittle may have fallen on J.B., but that she never intentionally

spit on him.

19. The only person who testified regarding the spitting

was Ms. Davis. While she was a very credible witness, there was

no testimony regarding how close she was to Ms. Henson or to

J.B., or that J.B. reacted in any way. Neither of the other

paraprofessionals in the room testified that they saw or heard

about the incident, and it is implau sible to think that such

behavior would go without comment. It is conceivable that in

saying, Ðyou do not spit,Ñ that spittle would result. Given the

high burden of proof for this proceeding, the allegation has not

been proven by clear and convincing evi dence.

20. As previously stated, K.M. presented a classroom

management problem. She had a tendency to run around the

classroom, take her clothes off, or run out of the classroom and

sometimes out of the building. She also would tear up items in

the clas sroom and could be very disruptive. Ms. Lewis felt that

Respondent had a hard time getting past her dislike of the child.

She had heard her say things like, ÐI could just kill you right

now,Ñ and Ðgo ahead and go into the street.Ñ While Ms. Lewis

believ ed K.M. could understand such statements, she did not react

to them, except perhaps to run faster. Ms. Lewis did not believe

that Ms. Henson was serious when she made the statements, but

more likely made them when frustrated by K.M.Ós behavior.

Responden t did not recall ever making such statements.

21. Neither Ms. Lewis nor t he Administrative Complaint

identified exactly when Respondent was to have made these

statements , although Ms. Lewis specified that they were

statements made at different times . Whi le Ms. Lewis testified

that she believed Respondent did not like K.M., it is just as

likely that she did not dislike the child, but was extremely

frustrated by her behavior. All of the paraprofessionals

testified that Respondent truly loved the children s he worked

with, but that she was frustrated and overwhelmed in the very

challenging classroom in which she taught. While the evidence

was clear and convincing that Respondent made the statements,

even Ms. Lewis testified that she did not believe Responden t was

serious when she made them. Regardless, the statements were not

appropriate statements to make to a child , especially a child

with limited intellectual abilities that might not be able to

discern whether Respondent was serious . They are, by their

n ature, disparaging statements.

22. Finally, the incident which caused Ms. Lewis to

approach Ms. Swedlund about Respondent involved RespondentÓs

reactions to C.B. C.B. liked to work on the computer. He would

play computer games, such as Dora the Explorer , and wa s rewarded

with computer time for good behavior and finishing all of his

assigned work.

23. On Friday, January 27, 2012, C.B. had a rough day, and

had been hitting, pinching, and kicking staff. Respondent had

spoken with his mother about his beha viors to see if there had

been any changes at home that might have contributed to his

aggressive behavior. Respondent had told C.B.Ós mother that they

would have to try some different methods to get C.B. to comply,

and that his playing on the computer all day would have to stop.

24. The paraprofessionals testified that o n Monday,

January 30, 2012, Respondent seemed agitated all day. One said

she seemed to carry the frustrations of Friday into Monday. That

morning Jennifer Shea Saulmon went to the cafete ria to pick up

C.B. , who had walked from the parent pickup area without

incident, and seemed to be in a good mood. When they reached the

classroom, C.B. went straight to the computers. Respondent

immediately told him that he could not have computer time.

25. Ms. Saulmon was upset by this, because C.B. had not

misbehaved that morning. She questioned Ms. HensonÓs decision,

and Respondent responded that he could not play on the computer

all the time. He then completed his morning work without any

disrup tion, and then walked over to the computers. Ms. Saulmon

told him he could not play on the computer at that time.

26. At about 9:15 a.m., the class began Ðcircle time.Ñ

During this time, the students sit on the outside of a u - shaped

table while Responde nt sits on the inside of the Ðu.Ñ C.B. d id

not like circle time. On this particular day, he was sitting at

the end of the u - shaped table, to RespondentÓs left. He began,

as he often d id , to hit and bite. According to Ms. Saulmon , this

behavior usually subsides after about five minutes. This day,

however, it did not. C.B. continued to pinch and hit Respondent.

27. In response, Respondent put her arm up with a closed

hand (so that the child could not pull and bend back a f inger) in

a blocking motion, a s the teachers and paraprofessionals had been

taught to do in order to protect themselves. She said out loud,

ÐIÓm blocking, IÓm blocking.Ñ However, rather than simply

holding her arm up to block against any blows, she would swing

her arm toward him to s top the blow , and in doing so, made

contact with his arm . Although to Ms. Davis it looked like

Respondent was hitting him, she never thought Respondent was

trying to hurt C.B. Each time Respondent blocked C.B., he

pinched her again, and she blocked him a gain, which made him

angrier. He then started kicki ng her, and Ms. Davis and

Ms. Saulmon believed she kicked him back. However, neither

paraprofessional could say that Respondent actually made contact

with C.B. T hey were pretty certain that C.B. was kic king

Respondent, and they could see movement toward him by Respondent,

and C.B. responded angrily by squealing as he usually did when

frustrated or angry . It is just as likely that Respondent was

using her leg or f oo t to try to block C.B.Ós kicks , as she stated

in her deposition , and that C.B. was angry because she was

blocking him .

28. Nonetheless, RespondentÓs clear agitation in the

cla ssroom that day led to Ms. Lewis Ó conversation with

Ms. Swedlund about RespondentÓs behavior. While all of the

parap rofessionals stated concerns about Ms. HensonÓs ability to

handle that particular class, all were very supportive of her

continuing to teach in the special education area. All three

seemed to think that the environment of that particular class,

which by a ny measure would be extremely challenging, is one that

overwhelmed Respondent , and that she had been in that setting too

long .

29. When Respondent returned to work at the beginning of

the 2012 - 2013 school year, she was transferred to Beach

Elementary Scho ol. The principal at the new school is Glenda

Nouskhajian.

30. Ms. Nouskhajian considers Respondent to be one of her

lead teachers in the ESE department, and has no performance -

related concern s about her. The only issue Respondent has had

since coming t o Beach Elementary wa s a minor paper - work issue

related to transferring schools within the district. Respondent

is not working in a stand - alone classroom like she was before.

She is what Ms. Nouskhajian referred to as a Ðpush - in,Ñ meaning

that she goes i nto other teachersÓ classrooms and works with

students in small groups in an inclusion setting. She works with

the lowest quartile of students, and helps with all of these

student s Ó interventions. Ms. Nouskhajian testified that the

students with whom Res pondent works are making Ðgreat strides,Ñ

and Respondent is an educator she would ÐabsolutelyÑ seek to

retain.

31. Ms. Nouskhajian knew that there was an issue at

RespondentÓs prior school, but did not investigate the details.

She stated that Respondent had been placed at Beach Elementary by

Sharon Michalik, and ÐI knew that if she was a danger to

students, Sharon Michalik would not have placed her at my school

. . . . That she went through the counseling and everything she

had to do so when she came to my school it was a total fresh

start.Ñ Since coming to Beach Elementary, RespondentÓs

evaluation for the 2012 - 2013 school year was overall effective,

with all categories rated as effective or highly effective.

32. In sum, there is clear and convincing ev idence that

Respondent made inappropriate remarks to student K.M. There is

not clear and convincing evidence that Respondent spat on J.B.,

or that she hit or kicked C.B. Likewise, there is not clear and

convincing evidence that she varied significantly f rom D.C.Ós

behavioral plan or acted in a way that allowed him to hurt

himself. There is clear and convincing evidence that Respondent

was frustrated and overwhelmed in the autistic classroom and,

despite having asked for the assignment, had been teaching in

that environment for too long to be effective, given the violent

tendencies of the children in that setting. There is clear and

convincing evidence that she took a leave of absence in lieu of

termination and could only return to the classroom after an

evaluation found her fit for duty. A change of setting was

needed and has served to re - invigorate Respondent.

CONCLUSIONS OF LAW

3 3 . The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to this

action in acco rdance with sections 120.569 and 120.57(1).

34. The Florida Education Practices Commission is the state

agency charged with the certification and regulation of Florida

educators pursuant to chapter 1012, Florida Statutes.

35. This is a proceeding in whic h Petitioner seeks to

suspend RespondentÓs educator certification. Because

disciplinary proceedings are considered to be penal in nature,

Petitioner is required to prove the allegations in the

Administrative Complaint by clear and convincing evidence. De pÓt

of Banking & Fin. v. Osborne Stern & Co. , 670 So. 2d 932 (Fla.

1996); Ferris v. Turlington , 510 So. 2d 291 (Fla. 1987).

36. Clear and convincing evidence Ðrequires more proof than

a Òpreponderance of the evidenceÓ but less than Òbeyond and to

the excl usion of a reasonable doubt.ÓÑ In re Graziano , 696 So.

2d 744, 753 (Fla. 1997). As stated by the Florida Supreme Court,

the standard:

[e]ntails both a qualitative and

quantitative standard. The evidence must be

credible; the memories of the witnesses mu st

be clear and without confusion; and the sum

total of the evidence must be of sufficient

weight to convince the trier of fact without

hesitancy.

Clear and convincing evidence

re quires that the evidence must be

found to be credible; the facts to

which th e witnesses testify must

be distinctly remembered; the

testimony 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, withou t hesitancy, as

to the truth of the allegations

sought to be established.

In re Davey , 645 So. 2d 398, 404 (Fla. 1994)(quoting, with

approval, Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4 th DCA

1983)); see also In re Henson , 913 So. 2d 579, 590 (Fla. 2005).

ÐAlthough this standard of proof may be met where the evidence is

in conflict, it seems to preclude evidence that is ambiguous.Ñ

Westinghouse Elect. Corp. v. Shuler Bros. , 590 So. 2d 986, 989

(Fla. 1991).

37. Section 1012.796 describes the disci plinary process for

educators, and provides in pertinent part:

(6) Upon the finding of probable cause, the

commissioner shall file a formal complaint

and prosecute the complaint pursuant to the

provisions of chapter 120 . An

administrative law judge shall be assigned

by the Division of Administrative Hearings

of the Department of Management Services to

hear the complaint if there are disputed

issues of material fact . The administrative

law judge shall make recommendations in

accordance with the provisions of subsection

(7) to the appropriate Education Practices

Commission panel which shall conduct a

formal review of such recommendations and

other pertinent information and issue a

final order . The commission shall consult

with its legal counsel prior to is suance of

a final order.

(7) A panel of the commission shall enter a

final order either dismissing the complaint

or imposing one or more of the following

penalties:

(a) Denial of an application for a teaching

certificate or for an administrative or

sup ervisory endorsement on a teaching

certificate. The denial may provide that

the applicant may not reapply for

certification, and that the department may

refuse to consider that applicantÓs

application, for a specified period of time

or permanently.

(b) R evocation or suspension of a

certificate.

(c) Imposition of an administrative fine

not to exceed $2,000 for each count or

separate offense.

(d) Placement of the teacher,

administrator, or supervisor on probation

for a period of time and subject to such

c onditions as the commission may specify,

including requiring the certified teacher,

administrator, or supervisor to complete

additional appropriate college courses or

work with another certified educator, with

the administrative costs of monitoring the

pro bation assessed to the educator placed on

probation. An educator who has been placed

on probation shall, at a minimum:

1. Immediately notify the investigative

office in the Department of Education upon

employment or termination of employment in

the state in any public or private position

requiring a Florida educatorÓs certificate.

2. Have his or her immediate supervisor

sub mit annual performance reports to the

investigative office in the Department of

Education.

3. Pay to the commission within the first 6

months of each probation year the

administrative costs of monitoring probation

assessed to the educator.

4. Violate no law and shall fully comply

with all district school board policies,

school rules, and State Board of Education

rules.

5. Satisfactorily perform his or her

assigned duties in a competent, professional

manner.

6. Bear all costs of complying with the

terms of a final order entered by the

commission.

(e) Restriction of the authorized scope of

practice of the teacher, administrator, or

supervisor.

(f) Reprimand of the teacher,

administrator, or supervisor in writing,

with a copy to be placed in the

certifica tion file of such person.

(g) Imposition of an administrative

sanction, upon a person whose teaching

certificate has expired, for an act or acts

committed while that person possessed a

teaching certificate or an expired

certificate subject to late renewal, which

sanction bars that person from applying for

a new certificate for a period of 10 years

or less, or permanently.

(h) Refer the teacher, administrator, or

supervisor to the recovery network program

provided in s. 1012.798 under such terms and

conditions as the commission may specify.

38. Charges in a disciplinary proceeding must be strictly

construed, with any ambiguity construed in favor of the licensee.

Elmariah v. DepÓt of Prof. Reg. , 574 So. 2d 164 , 165 (Fla. 1 st DCA

1990); Taylor v. DepÓt of Prof. Reg. , 534 So . 2d 782, 784 (Fla.

1 st DCA 1988). Disciplinary statutes must be construed in terms

of their literal meaning, and words used by the Legislature may

not be expanded to broaden their application. Beckett v. DepÓt of

Fin. Servs. , 982 So. 2d 94, 99 - 100 (Fla. 1 st DCA 2008); Dyer v.

DepÓt of Ins. & Treas. , 585 So. 2d 1009, 1013 (Fla. 1 st DCA 1991) .

39. The Administrative Complaint al leges the following

factual base s for imposing discipline against Respondent:

3. During the 2011/2012 school year

Respondent inappropriately disciplined

students in her Exceptional Student

Education (ESE) class as evidence d by the

following:

(a) On or about J anuary 27, 2012, J.B. an

eleven - year - old ESE Student, spit in

RespondentÓs face and Respondent reacted by

spitting in the studentÓs face.

(b) On or about January 30, 2012, C.B., a

ten - year - old male ESE student, pinch ed, hit,

and kicked Respondent and Respondent kicked

C.B. and hit him with a closed hand.

(c) During the 2011 / 2012 school year,

Respondent told K.M. ÐI could just kill youÑ

and Ðyou know I just want to kill you right

nowÑ or words to that effect.

* * *

(e) During the 2011/2012 school year,

Respondent allowed D.C. an eleven - year - old

male ESE student, to hit himself repeatedly

for up to ten minutes, contrary to his

behavior plan which indicated D.C. should be

allowed to hit himself up to three times.

4. On or about April 6, 2012, Respondent

entered into an agreement with the Bay

County School District whereby Respondent

would take a medical leave of absence and

submit to a fitness for duty evaluation.

The results of RespondentÓs evaluation were

that sh e was unfit for duty at that time.

40. The Department has proven the allegations in paragraphs

3(c) and 4 of the Administrative Complaint by clear and convincing

evidence. With respect to the other allegations, there are other,

equally plausible explan ations of what happened in the classroom

that render the evidence less than clear and convincing.

41 . The Administrative Complaint alleges in Counts 1 and 2

that Respondent violated sections 1012.795(1)(d) and (j), which

state:

(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 schoo l 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 n otice 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.

* * *

(j) Has violated the Principles of

Professional Conduct for the Education

Profession prescribed by State Board of

Educat ion rules.

42 . With respect to Count 1, section 1012.795(1)(d)

requires a finding that Respondent h as been guilty of gross

immorality or an act involving moral turpitude Ð as defined by

rule of the State Board of Education. Ñ (emphasis added).

43 . The E thics in Education Act, chapter 2008 - 108, section

32, Laws of Florida, amended section 1012.795(1)(d) to add the

phrase Ðas defined by rule of the State Board of Education,Ñ

creating the statute as it presently appears.

44 . Judge F. Scott Boyd analyzed t he effect of the 2008

legislative amendment in Arroyo v. Smith , Case No. 11 - 2799, ¶ 109

(Fla. DOAH May 31, 2012; Fla. EPC Nov. 13, 2012), as follows:

The Ethics in Education Act, Chapter 2008 -

108, Laws of Florida, added the phrase Ðas

defined by rule of th e State Board of

EducationÑ to what now appears as section

1012.795(1)(d). It is unclear whether this

new language modifies only Ðan act involving

moral turpitudeÑ or if it instead modifies

the entire phrase Ðgross immorality or an

act involving moral tur pitude.Ñ The absence

of a comma after the word Ð immoralityÑ

suggests that it modifies the entire phrase.

In any event, when construing penal

statutes, any statutory ambiguity should be

resolved in favor of [the Respondent] . .

. . This portion of the s tatute is thus

only violated if an educator is guilty of

gross immorality as defined by rule of the

State Board of Education.

45 . The Final Order in Arroyo v. Smith considered the

Recommended Order and it was Ðadopted in full and becomes the

Final Ord er of the Education Practices Commission.Ñ The Final

Order in Arroyo and the conclusions of Judge Boyd adopted in that

Final Order must be applied here as well.

46 . As noted by Judge Boyd, Ð[t]he State Board of Education

has not defined the term Ògross immoralityÓ by rule.Ñ Arroyo v.

Smith , at ¶ 110.

47 . Petitioner does not address the failure to define gross

immorality by rule, instead relying on cases construing the term

that were decided prior to the 2008 legislative amendment to

section 1012.795( 1)(d). Given the amendment, those cases are

inapplicable to the current standard established by the

Legislature.

48 . Rule 6A - 5.056 defines the terms ÐimmoralityÑ (not gross

immorality) and Ðmoral turpitude.Ñ Because the acts alleged in

the Administrati ve Complaint occurred before the most recent

amendment to rule 6A - 5.056, the conduct proven must be measured

against the rule as it existed at the time of the offenses.

Childers v. DepÓt of Envtl. Prot. , 696 So. 2d 962 , 964 (Fla. 1st

DCA 1997).

49 . Prio r to its 2012 amendment, rule 6A - 5.056(6) defined

Ðmoral turpitudeÑ as Ða crime that is evidenced by an act of

baseness, vileness or depravity in the private and social duties,

which, according to the accepted standards of 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 the

moral turpitude.Ñ Moral turpitude has also been defined by the

Supreme Court in a similar fashion. See State ex rel. Tullidge

v. Hollingswo rth , 108 Fla. 607, 611, 146 So. 660, 661 (1933).

50 . The only factual allegations proven by Petitioner are

that Respondent made inappropriate comments to student K.M.; that

she entered into an agreement with the School District to take a

leave of absence ; and that her first fitness for duty evaluation

indicated that at that time, she was not fit to return to duty.

While there was evidence presented in support of the other

allegations, it was not of the weight so as to Ðproduce[] 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.Ñ Slomowitz v. Walker , 429 So. 2d at 800. Given

this limited factual basis, Petitioner did not prove a violation

of section 1012.795(1)(d) .

51 . Count 2 is not truly a separate count, but lays a

statutory predicate for violations of rule 6A - 10.081(3)(a) and

(e).

52 . Counts 3 and 4 allege violations of Florida

Administrative Code Rule 6A - 10.081(3)(a) and (e), which provide s :

(3) Obligati on 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.

* * *

(e) Shall not intentionally expose a

student to unnecessary embarrassment or

disparagement.

53 . Based upon the facts proven, Petitioner has not proven

the violation alleged in Count 3 , but has proven the violation

alleged in Count 4 by clear and convincing evidence.

54 . Disciplinary guid elines for the imposition of penalties

against educators are found in rule 6B - 11.007. There does not

appear to be a specific guideline for a violation of rule 6A -

10.081(3)(e) , for conduct such as that alleged in this case. In

fact, the rule still refers to rule 6B - 1.006 and does not

reference 6A - 10.081 at all. However, a ÐcatchallÑ provision for

Ðother violations of the Principles of Professional Conduct and

the Florida Administrative CodeÑ gives a range from probation to

revocation. Fla. Admin. Code R. 6B - 11.007(2)(i)22.

55 . Consideration ha s been given to the conduct actually

proven, the statements of the paraprofessionals with whom the

Respondent worked, and the testimony of her principal at the

school where she currently teaches. All of the paraprofessionals

with whom Respondent worked em phasized that she is a good teacher

who needed help, not discipline. As stated by Ms. Davis in her

February 29, 2012, statement, ÐMy point is that in my opinion

this is not a teacher that needs to lose her job! She needs a

break in a classroom with less violence on a daily/hourly basis .

. . . I invite anyone who sits on this committee to come spend a

day with us in our room before you render a decision on this

teacher who needs some understanding and help, not a termination

notice.Ñ

56 . According to M s. Nouskhajian, Respondent is flourishing

in a new environment. Those who have worked with her closely

have concluded that not allowing her to teach would be a loss to

the teaching profession. By the same token, safeguards need to

be in place to make sur e she continues to flourish.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Educati on Practice s Commission

enter a final o rder finding that Respondent has violated rule 6A -

10.081(3)(e) . It is fu rther recommended that Respondent be

reprimanded and placed on probation for a period of two years,

subject to such terms and conditions as the Commission in its

discretion m a y impose.

DONE AND ENTERED this 24th day of March , 2014 , in

Tallahassee, Leon Cou nty, Florida.

S

LISA SHEARER NELSON

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.doa h.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 24th day of March , 2014 .

COPIES FURNISHED:

David Holder, Esquire

J. David Holder PA

387 Lakeside Drive

Defuniak Springs, Florida 32435

Emily Moore, Esquire

Florida Edu cation Association

213 South Adams Street

Tallahassee, Florida 32301

Gretchen Kelley Brantley, Executive Director

Education Practices Commission

Department of Education

325 West Gaines Street , Suite 224

Tallahassee, Florida 32399

Matthew Carson, Gen eral 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 224 - E

325 West Gaines Street

Tallahassee, Florida 32399

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 file d with the agency that

will issue the Final Order in this case.