13-004987PL Pam Stewart, As Commissioner Of Education vs. Jannett Amelda Pusey Status: Closed Recommended Order on Thursday, January 22, 2015.

Summary: Teacher did not attempt to obtain renewal of her certificate by fraud. Her actions of striking a student on the arm violated the principles of professional conduct. Recommend reprimand and 90 school day probationary period.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PAM STEWART, AS COMMISSIONER OF

EDUCATION,

Petitioner,

vs. Case No. 13 - 4987PL

JANNETT AMELDA PUSEY,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to n otice, a formal administrative hearing was

conducted before Administ rative Law Judge Mary Li Creasy by video

teleconference at sites in Tallahassee and Miami, Florida, on

October 15 , 2014.

APPEARANCES

For Petitioner: Charles T. Whitelock, Esquire

Charles T. Whitelock, P.A.

300 Southeast Thirteenth Street , Suite E

Fort Lauderdale, Florida 33316

For Respondent: Melissa C. Mihok, Esquire

Melissa C. Mihok, P.A.

1718 East Se venth Avenue , Suite 301

Tampa, Florida 33605

STATEMENT OF THE ISSUE S

Whether Respondent (a) pushed a ten - year - old

student against a wall and struck his arm with a closed fist;

and/or (b) falsely answered a question on the application f or

renewal of her educator certificate, as Petitioner alleges; if

so, whether (and what) disciplinary measures should be taken

against Respondent ' s educator certificate.

PRELIMINARY STATEMENT

On June 3, 2013, Dr. Tony Bennett, as Commissioner of

Educati on ( " Petitioner " ) , filed an Administrative Complaint with

the Education Practices Commission (EPC) seeking disciplinary

sanction of the ed ucator ' s certificate of Jannett Amelda Pusey

(Respondent). On December 26, 2013, R espondent filed a request

for forma l hearing , and the matter was referred to the Division

of Administrative Hearings (D O AH) on December 31, 2013. On

January 2, 2014 , DO AH assigned A dministrative Law J udge John Van

Laningham to conduct the proceeding.

The final hearing was originally set for February 20, 2014.

On January 17, 2014, the parties filed a Joint Motion to

Reschedule F ormal H earing. This motion was granted and the final

hearing was continued until April 8, 2014. Petitioner filed

Petitioner ' s M otion to C ancel H e aring on March 2 8, 2014 , because

R espondent ' s counsel had indicated that a substitution of counsel

was necessary , and the parties would be unable to go forward with

the hearing a s scheduled. This motion was granted , and the

hearing was reset for May 30, 2014. On April 9 , 2014, the

parties filed another Joint Motion for Continuance , in order to

conduct additional discovery , which was granted setting the

hearing for August 19, 2014.

The case was transferred to Administrative Law Judge

F. Scott Boyd on July 3 , 2014. The p arties filed another Joint

Motion for Continuance based upon the unavailability of deponents

over the summer school break and due to the press of other prior

pending matters. This motion was granted and the matter was

reset for October 15, 2014.

The mat ter was transferred to the undersigned on October 2,

2014, and heard as scheduled on October 15, 2014. At the

hearing, P etitioner presented the testimony of nine witnesses:

E.A. , a student; Sharon Gonzalez, Principal of West Hialeah

Gardens Elementary Sc hool (WHGES); Mary Pineiro, Assistant

Principal of WHGES; C.S., D.O., D.M., and A.L., students; 1/ Jose

Garcia, Instructional Certification with Miami - Dade School Board;

and Marian Lambeth, Chief of the Office of Professional Practices

Services (PPS) of the Department of Education (DOE).

Pet itioner ' s Exhibits 1 through 10 and 14 were admitted in

evidence.

Respondent testified on her own behalf. Respondent ' s

E xhibits 1, 2, and 4 through 8 were admitted.

A two - volume T ranscript of the pr o c e eding was filed wi th

DOAH on December 4, 2014. After a requested continuance was

granted, p roposed r ecommended o rders were timely filed by both

parties and have been given due consideration during the

preparation of this Recommended Order.

Unless otherwise indicated, all rule and statutory

references are to the versions in effect at the time of the

alleged violations.

FINDING S OF FACT

1. Petitioner is responsible for the investigation and

prosecution of complaints against holders of Florida Educational

Certificates wh o are accused of viola ting section 1012.795,

Florida S tatutes, and related rules.

2. Respondent holds Professional Educators Certificate

730057 (certificate) . Valid through June 30, 2018, the

certificate covers the areas of Mathematics, Business Educatio n,

Teacher Coordinator of Cooperative Education, Teacher Coordinator

of Work Experience Programs, and Exceptional Student Education

(ESE).

3. At all times material to this proceeding, R espondent was

employed as an ESE teacher at WHGES in the Miami - Dade Co unty

School District (District) . Respondent has been employed by the

District in a variety of capacities for a total of 25 years and

in a teaching capacity for the last 17 years.

4. The charges against Respondent arise from an altercation

Respondent had with a then 11 - year - old fourth grade ESE student,

E.A. , on September 27, 2011.

5. On that date, E.A. returned to R espondent ' s classroom

after an in - school appointment with his therapist. Rather than

entering the classroom, E.A. stood outside the closed d oor and

knocked on the door intermittently for approximately five to ten

minutes. Several students in the classroom went to the door to

tell E.A. that the door was unlocked and to come in.

6. When E.A. continued to knock on t he door and disrupt the

class room, R espondent went to the door. Respondent was able to

open the door part of the way and get her hand and part of her

body in between the door and the door frame when E.A. pushed the

door closed on Respondent and held it shut with his foot.

Respondent shouted at E.A. to open the door and said repeatedly,

" it ' s the teacher, open the door! "

7. When E.A. removed his foo t from the door, the door swung

out toward s the wall , trapping E.A. in a corner between the open

door and the wall. Respondent yelled at E.A. to get into the

classroom and struck him on the upper arm at least two times.

Respondent also picked up E.A. ' s b ackpack and threw it in the

classroom.

8. According to R espondent, she made physical contact with

E.A. when he raised his arm and she be lieved he was about to hit

her. Respondent claims she used a " defensive move " to prevent

E.A. from striking her. Respondent ' s testimony is inconsistent

with that of E.A. and several students who witnessed the event ,

and deemed not credible by the undersi gned .

9. According to E.A. , R espondent definitely meant to hit

him although he was not hurt physically by the contact. E.A.

e ntered the classroom crying because he was very embarrassed that

this occurred in front of his fellow classmates.

10. This alter cation was witnessed by another teacher who

reported it immediately to administration. Assistant Principal

Mary Pineiro (Pineiro) was sent to the classroom to determine

what happened. Pineiro observed E.A. c rying and holding his arm.

Pineiro heard anoth er student say, " I cannot believe you did that

to my friend, " to Respondent . Respondent refused to answer

Pineiro ' s questions regarding the incident. The teacher and

other students who witnessed the event were sent to the office

and asked to provide writ ten statements of what they observed.

The statements were provided independently and students were

separated when they wrote their statements. They were not told

what to write and their statements were not edited. The

statements corroborated E.A. ' s vers ion of events that he was

playing around outside the door when Resp ondent came out and

struck him o n the arm several times.

11. On February 15, 2012, R espondent was suspended without

pay from her teaching position for 25 days which was later upheld

after a formal hearing (DOAH Case No. 12 - 0808 TTS ).

12. By certified letter dated March 14, 2012, Petitioner

informed Respondent that PPS open ed a case to investigate her use

of inappropriate discipline. 2/ On August 9 , 2012, another

certified letter was sent from Petitioner to Respondent advising

that Petitioner had " concluded its p reliminary investigation " and

wanted to provide Respondent an opportunity to review the

materials and respond to the allega tions. The letter states that

R espondent is not required to respond and that an informal

conference was scheduled for August 29, 2012.

13. Respondent wrote back to Katrina Hinson (Hinson) with

PPS on August 31, 2012 , thanking PPS for " putting me on this

pedestal of honor " and giving her the opportunity to refut e the

allegations of misconduct. Respondent asserts in this letter

that she is the victim of a " m afia - type, po sse ring " and the

victim of a conspiracy including Pineiro and others at WHGES.

Rather than respond to the allegations of misconduct,

Respondent ' s three - page letter appears to be a plea for help from

Respondent to protect her teaching position from the " obsessive

hate " of the alleged conspirators.

14. Petitioner sent a memo to Respondent on August 30,

2012 , enclosing a copy of the materials assem bled during the

preliminary investigation conducted by PPS. The purpose of this

memo appears to be to notify Respondent to keep the materials

confidential during the proceedings. This memo and the materials

were received by Respondent on September 8, 201 2 .

1 5 . On September 17, 2012, Respondent wrote another letter

to Hinson at PPS in which she states, " to be in compliance with

your office ' s investigation, I am writing for professional

guidance in regard to curtailing the constant bar e - faced

humiliation a nd bait - and - switch torture by Dade County Public

School ' s [sic] employees, as my soul is longing for peace to have

sol a ce to grieve my loss in every respect of life fulfillment. "

Respondent asks whether PPS is part of the DOAH process,

complains about the union attorney and the school boar d attorney

and asserts that the " mafia - type posse wants me to be on an

accelerated program for homelessness and malnutrition. " T his

letter , and its reference to an " investigation, " is not a

response to allegations of mis conduct but rather appears to be

Respondent ' s attempt to seek help from PPS with regard to the

DO AH proceeding.

16 . The final hearing in the DOAH proceeding regarding

R espondent ' s suspension without pay occurred before

Administrative Law Judge Stuart M. L erner on September 24, 2012.

17. On October 1, 2012, Re spondent wrote another letter to

Hinson which states in the opening paragraph:

To be in compliance with your office ' s

investigation, I am writing for professional

guidance in regard to my mental facul ty due

to my mild malnourished and homeless states,

as I am constantly being deprived of rightful

income due to a group of vicious, hateful,

and jealous so - called professional educators

and so - called professional administrators of

Dade County public school s.

18. This letter states, " I am being sanctioned (mentally

slaved [sic] ) that if I return to employment of Dade County

Public Schools. I cannot communicate further with your office,

neither through writing or telephone. " In this letter,

Respondent ass erts that E.A. and the stude nt witnesses were

" coached to give false witness against me. " Regarding the

incident wi th E.A . , Respondent states , " the student kidnapped me

between the door and the door jamb, and battered me with the door

to my head and upper torso, that left me with a mild head

trauma. "

19. A similar letter was written by Respondent to Hinson on

October 5, 2012. Respondent does not mention any " investigation "

but again asks for help from Hinson stating:

May you please go another extra mile to help

me? I beg of you. My grasp to hope is

weakening as my resilience to these evil ones

has been for many, many years. They have

cornered me by attacking my every phase of

bottom line. Please, do not allow evil to

have dominion over good.

20. A final letter by Respondent to Hinson was written on

October 19, 2012, in which Respondent complains that she is being

unfairly harassed by the principal at her new assigned school,

Aventura Waterway K - 8 Center.

21. Notably, Hinson did not reply to any of the

correspondence from Respondent. According to Hinson, PPS has no

authority to address concerns or complaints about harassment or

discrimination. This information was not communicated by PPS to

Respondent. What is clear from these letters i s that Respondent

had no understanding that she was under investigation by DOE.

Rather, Respondent erroneously believed that PPS would intervene

on her behalf with regard to her then - pending matter before DOAH

or with her assigned schools .

22. The f inal order upholding Respondent ' s suspension

without pay was issued by the D istrict on February 13, 2013.

Respondent alleges that , at that time , she was advised by her

union representative that the matter was concluded and that she

did not have to worry a bout this incident any further.

23. On March 18, 2013, Respondent filed her annual

application for renewal of her educator ' s professional

certificate with the District . In response to the question, " D o

you have any current investigative action pendi ng in this state

or any other state against a professional license or certificate

or against an application for professional license or

certificate? " Respondent answered " N o. " Respondent certified by

her application signature that all information provided in the

application was " true, accurate and complete. "

24 . When the District received and reviewed the

application, a computerized alert was received from Petitioner

indicating that an investigation was pending with PPS. Jose

Garcia, Certification Office r for the District, notified

Respondent by memorandum dated April 17, 2013, that Respondent

needed to return a corrected application.

25. Respondent did not believe she was under investigation

and thought that by indicating " yes " on the form, she would be

incriminating herself. Respondent wrote Governor Scott an email

on May 17, 2013, alleging that PPS and the District Certification

Office were wrongfully preventing the renewal of her application

in an attempt to prevent her from working with children wit h

disabilities.

26. As a result of this email, the alert was removed from

Respondent ' s certificate and it was reissued by the District.

Respondent never acknowledged the DOE investigation in her

application for renewal. Petitioner consider s Respondent ' s

refusal to acknowledge the pending PPS investigation as an

attempt to renew her certificate by fraudulent means.

27. The Administrative Complaint charges Respondent as

follows :

STATUTE VIOLATIONS

COUNT 1: The Respondent is in violation of

Section 101 2.795(1 )(a), Florida Statutes, in

that Respondent obtained or attempted to

obtain a teaching certificate by fraudulent

means.

COUNT 2: The Respondent is in violation of

Section 1012.795(1 )(d), Florida Statutes, in

that Respondent has been guilty of gro ss

immorality or an act involving moral

turpitude as defined by rule of the State

Board of Education.

COUNT 3: The Respondent is in violation of

Section 1012.795(1 )(g), Florida Statutes, in

that Respondent has been found guilty of

personal conduct whic h seriously reduces her

effectiveness as an employee of the school

board.

COUNT 4: The Respondent is in violation of

Section 1012.795(1 ) (j ), Florida Statutes, in

that Respondent has violated the Principles

of Professional Conduct for the Education

Prof ession prescribed by State Board of

Education rules .

RULE VIOLATIONS

COUNT 5: The allegations of misconduct set

forth herein are in violation of Rule 6A -

10.081 (3)(a), Florida Administrative Code, in

that Respondent has failed to make reasonable

effort to protect th e student from conditions

harmf ul to learning and/or to the student ' s

mental health and/or physical health and/or

safety.

COUNT 6: The allegations of misconduct set

forth herein are in violation of Rule 6A -

10.081(3)(e), Flor i da Administra tive Code, in

that Respondent has intentionally exposed a

student to unnecessary embarrassment or

disparagement.

COUNT 7: The allegations of misconduct set

forth herein are in violation of Rule 6A -

10.081(5)(a), Florida Administrative Code, in

that Resp ondent has failed to maintain

honesty in all professional dealings.

28. Respondent filed a Motion for a Formal Hearing on

December 26, 2013, with the EPC in which she disputed all of the

allegations of the Administrative Complaint.

CONCLUSIONS OF LAW

a. Jurisdiction

29 . The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding pursuant to sections 120.569 and 120.57(1), Florida

Statutes (2014) .

b. Burden of Proof; Standard of Proof

30 . Petitioner has the burden of proof in this disciplinary

proceeding. The " disciplinary " nature of the proceeding requires

that the standard of proof Petitioner must meet is " clear and

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

(Fla. 1987) , and McKinney v. Castor , 667 So. 2d 3878 (Fla. 1st

DCA 1995).

c. Clear and Convincing

31 . The " clear and convincing " standard of proof and its

components are described by the Florida Supreme Court in In re

Davey , 645 So. 2d 398 (Fla. 1994). The Co urt held :

Cl ear 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 testimony must

be precise and explicit and the witnesses

must be lacking in confusi on as to the facts

in issue. The evidence must be of such

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.

Id. at 404 (quoting with app roval, Slomowitz v. Walker , 429

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

32 . Although the " clear and convincing " standard of proof

may be met where the evidence is in conflict, In re Guardianship

of Browning , 543 So. 2d 258, 273 (Fla. 2d DCA 1989), approved ,

568 So. 2d 4 (Fla. 1990), it precludes evidence that is

ambiguous. Westinghouse Elec. Corp. v. Shuler Bros. , 590 So. 2d

986 (Fla. 1st DCA 1991).

d. Application of Standard of Proof in This Case

33 . Respondent argues that her denials of the allegations

concerning the incident with E.A. , including those made under

oath at the hearing, have been unchanged from the start. In

contrast, she points to disagreement among E.A. and the

eyewitnesses as to the exact details of the incident as proof of

a conspirac y against her and that the student s ' statements were

coached and false.

34. Although the students ' testimony varied slightly

regardin g the recollection of events, it was consistent with

the ir prior written statements and the testimony of E.A. The

minor i nconsistencies between the students can be attributed to

their different perspectives when reviewing the incident and the

more than three years which passed since it occurred.

35. The students were credible, did not exaggerate, and

support ed the factual a llegations of the Administrative C omplaint

regarding the E.A. incident. The testimony of E.A. and the

students constitutes " clear and convincing " evidence.

36. With regard to the allegation that Respondent

intentionally failed to disclose the PPS investi gation when

renewing her certificate, the evidence presented was less than

clear and convincing.

37. While Petitioner certainly communicated in writing with

Respondent regarding the pendency of an investigation,

Respondent ' s denial of awareness of such an investigation is

credible. Her failure to grasp the reality of the ongoing PPS

investigation is evident in this series of letters, albeit

rambling and suspicious , written by Respondent to Hinson.

38. Although Petitioner ' s letters to Hinson refer to an

" investigation, " the letters repeatedly refer to the proceedings

at Respondent ' s old school, new school , and with DOAH.

Respondent ser ved her suspension in February 2012. It is not

unreasonable that she was confused by correspondence referencing

a " prelim inary investigation " in August 2012 regarding an

incident from the beginning of the prior school year for which

she had already gone through the administrative appeal process

and been disciplined .

39. In light of Respondent ' s genuine confusion regarding

t he status of any investigation by PPS, Petitioner failed to

demonstrate by clear and convincing evidence that Respondent

attempted to renew her certificate by fraud.

e. Attemp t to Obtain Certificate b y Fraud and Failure to

Maintain Honesty in All P rofessi onal Dealings

40. Fraud is not defined in section 1012.795 (1)(a) , Florida

Statutes . However, Florida courts have consistently held that

the elements of common law fraud include: (1) a false statement

of fact; (2) known by the person making the statemen t to be false

at the time it was made; (3) made for the purpose of inducing

another to act in reliance thereon; (4) action by the other

person in reliance on the correctness of the statement; and (5)

resulting in damage to the other person. Gandy v. Tran sworld

C omputer Tech. Group , 787 So. 2d 116, 118 ( Fla. 2d DCA 2001),

citing Mettler, Inc. v. Ellen Tracy, Inc. , 648 So. 2d 253 (Fla.

2d DCA 1994).

41. In this case, Petitioner failed to prove elements two

through five by clear and convincing evidence. A s discussed

above, Respondent did not understand her statement , that she was

not currently under investigation , to be false at the time she

completed the application for recertification.

42. T here was no intent to surreptitiously obtain a renewal

of R espo ndent ' s certificate. The evidence demonstrates that both

P etitioner and the D istrict were well aware of the EPC ' s pending

investigation against R espondent. The District was actively

engaged in litigating the issue of Respondent ' s disciplinary

suspension and knew it had referred the matter, as required by

law, to Petitioner. Petitioner, as the party initiating the

investigation , clearly was aware it was pending against

Respondent at the time she filed her applicat ion for renewal.

Although the D istrict ma y not have been aware of the exact status

of the investigation at all times, it received notification that

an investigation was pending at the critical juncture when

P etitioner ' s application was received.

43. No " fraud " occurs when the entity to which the alleged

fraudulent statement is made is already aware of the correct

facts and takes no action in reliance upon the alleged fraudulent

statement. See Dep ' t of Bus. & Prof ' l Reg. v. Mitulinsky , Case

No . 96 - 1864 (Fla. DOAH Sept. 30, 1996)( A fraudulent act requires

a defrauded party. Even where an intent to defraud exists,

someone must be defrauded for fraud to take place; something must

be concealed for concealment to take place . ).

44. Similarly, Petitioner failed to demonstrate by clear

and convincing ev idence that Respondent failed to maintain

honesty in her professional dealings. Respondent did not

understand that despite going through the hearing process for her

disciplinar y suspension and serving the 25 - day suspension without

pay that there was a sep arate and independent investigation by

EPC. 3/

45. Accordingly, R espondent is not guilty o f violation of

section 1012.795 (1)(a) or Florida Administrative Code R ule 6A -

10.081(5)(a).

f. Gross Immorality or a n Act Involving Moral Turpitude

46. Count 2 alleg es a violation of section 1012.795(1)(d):

gross immorality or an act involving moral turpitude as defined

by rule of the State Board of Education.

47. " Immorality " is defined in rule 6A - 5.056(1) as:

" Immorality " means conduct that is

inconsistent with t he standards of public

conscience and good morals. It is conduct

that brings the individual concerned or the

education profession into public disgrace or

disrespect and impairs the individual ' s

service in the community.

There is no definition of " gross i mmorality " in statute or rule

nor is there any definition in statute or rule of the term

" gross " in relation to the rule ' s definition of " immorality "

quoted above.

48. While one might infer that " gross immorality " is

misconduct that is more egregious than mere " immorality, " absent

definition in a rule of the State Board of Education, the charge

against Respondent cannot be lodged. See Pam Stewart, as Comm ' r

of Educ. v. Scheumeister , Case No. 14 - 10 52PL, (Fla. DOAH Sept. 8,

2014 ) ; Arroyo v. Dr. Eric J. Smith, as Comm ' r of Educ. , Case

No. 11 - 2799 (Fla. DOAH May 31, 2012; Fla. EPC Nov. 5, 2012);

Torreya Landrea Davis v. Pam Stewart, as Comm ' r of Educ. , Case

No. 13 - 2501 (Fla. DO AH Dec. 13, 2013; Fla. EPC Mar. 28, 2014);

Pam Stewart, as Comm ' r of Educ. v. Elaine Anderson , Case No. 13 -

1347PL (Fla. DO AH Dec. 16, 2013; Fla. EPC Mar. 28, 2014);

Dr. Tony Bennett, as Comm ' r of Educ. v. Doreen Whitfield , Case

No. 13 - 3360PL (Fla. DOAH Jan. 8, 2014; Fla. EPC May 20, 2014).

49. Even if the definition of " immor ality " was applicable

as the st andard for gross immorality, Petitioner has not met its

burden to establish that Respondent ' s conduct rose to the

requisite level. No evidence was presented to support a finding

that Respondent ' s conduct was sufficiently not orious to bring the

Respondent or the education profession into public disgrace or

disrespect. Similarly, there was no evidence presented that

Respondent ' s conduct impaired her service in the community.

50. The term " moral turpitude " is defined in r ule 6A - 4.009,

which has been transferred to rule 6A - 5.056. The incident with

E.A. occurred prior to a substantial rewording of rule 6A - 5.056

on July 8, 2012. Thus, whether the incident constituted ones

involving moral turpitude must be gauged against the standar d in

effect at the time the act giving rise to this proceeding

occurred, i.e., that version of the rule as it existed prior to

its 2012 amendment. Childers v. Dep ' t of Envtl. Prot. , 696 So.

2d 962, 964 (Fla. 1st DCA 1997)( " The version of a statute in

effect at the time grounds for disciplinary action arise

controls. " ).

51. Prior to its 2012 amendment, rule 6A - 5.056(6) defined

" moral turpitude " as " a 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. "

52. A finding that an individ ual has engaged in moral

turpitude requires a finding of intent. See Pearl v. Fla . B d . of

Real Estate , 394 So. 2d 189, 191 (Fla. 3d DCA 1981). There is no

evidence to establish that Respondent intended to hurt E.A., or

to otherwise commit a crime.

5 3. Petitioner failed to demonstrate by clear and

convincing evidence that R espondent engaged in gross immorality

or an act of moral turpitude.

g. Reduction of Effectiv eness a s a School Board Employee

54. Count 3 alleges that Respondent has be en found guilty

of conduct which seriously reduces her effectiveness as a school

board employee.

55. However, the witnesses from WHGES explained that

because Respondent was immediately removed from their school

after the incident with E.A., they coul d not assess her on - going

effectiveness (or lack thereof). No administrators from

Respondent ' s current school placement testified about her

effectiveness as a district employee. Therefore, Petitioner

failed to meet its burden as to Count 3.

h. Violation of the Principles of Professional Conduct

56. Count 4 ' s charge of a violation of section

1012.795(1)(j) for violations of the Principles of Professional

Conduct for the Educational Profession prescribed by the State

Board of Education involve s two rules.

57. The first is rule 6A - 10.081(3)(a) as cited in Count 5 .

It requires that the holder of an educational certificate " 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. "

58. The second is rule 6A - 10.081(3)(e) as cited in Count 6 .

It requires that the holder of an educational certificate " shall

not intentionally expose a student to unnecessary embarassment or

disparagement. "

59. Respondent ' s conduct with regard to E.A. constituted a

failure to protect E.A. from conditions harmful to learning and

to his mental he alth . Respondent ' s yelling at E.A. loud enough

to be heard by another class, punching E.A. in the arm which was

seen by students in another class , and throwing E.A. ' s book bag

into her classroom intent ionally exposed E.A . to unnecessary

embarrassment a nd disparagement. Respondent is guilty of t he

charges contained in Counts 4, 5 , and 6 of the Administrative

Complaint.

i . Penalty Assessment

60. S ection 1012.796(7) provides a range of penalties for a

teacher who violates section 1012.795, including denial of an

application for a teaching certificate, revocation or suspension

of a certificate, written reprimand, an administrative fine , and

probation . See also Fla. Admin. Code R. 6B - 11.007.

61 . It should be noted that the incident involving E.A.

occurred more than three years ago. E.A. was not physically

injured ; however, Respondent suffered minor physical injury

during the incident as a result of being temporarily stuck

between the door and the door frame. Respondent has been

employed with the District as a teacher for over 17 years.

Respondent already served a 25 - day suspension without pay as a

result of the District ' s disciplinary process. No evidence was

presented at the final hearing of any prior or subsequent

discipline against Respondent fo r the same or similar conduct.

62. Under these circumstances, the undersigned recommends

Respondent be pl aced on probation for 90 school days with a

wri tten reprimand to be placed in her certification file . This

penalty takes into account that Respondent ' s conduct, in striking

the student , was inappropriate under any circumstances , but also

places the conduct in perspective in rel ation to Respondent ' s

ot herwise incident - free teaching career .

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Education Practices Commission

enter a final order reprimanding Respondent for the incident with

E.A. , with a c opy to be placed in Respondent ' s certification

file , and placing Respondent on probation for a period of

90 school days .

DONE AND ENTERED this 22nd day of January , 2015 , in

Tallahassee, Leon County, Florida.

S

MARY LI C REASY

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administra tive Hearings

this 22nd day of January , 2015 .

ENDNOTE S

1/ The students who participated at the hearing were between 1 2

and 14 years old. Each student was individually questioned by

the undersigned prior to testifying to discern their recollection

of t he relevant events and their capacity to tell the truth. All

but one student, A.L., were deemed competent to testify.

Although A.L. initially answered the questions of the

A dministrative L aw J udge coherently, it was evident upon direct

examination that s he had no clear memory of the events in

question and, as a selective mute, had great difficulty

testifying. Accordingly, her testimony was not considered in the

drafting of this Recommended Order.

2/ No evidence was presented at hearing that this letter was

received by Respondent .

3/ I t is not clear from the Administrative Complaint whether

Count 7, charging Respondent with a failure to " maintain honesty

in all professional dealings, " refers only to the alleged

fraudulent application or includes Respon dent ' s statements that

she only touched E.A. in an effort to defend herself. Although

the undersigned did not find R espondent ' s testimony regarding her

altercation with E.A. to be credible, it is apparent that

Respondent truly believes her version of even ts is what occurred.

One only needs to examine the series of letters written to Hinson

from Respondent to realize Respondent suffers from significant

misperceptions regarding the potential nefarious intentions of

others.

COPIES FURNISHED:

Gretchen Kell ey Brantley, Executive Director

Education Practices Commission

Department of Education

325 West Gaines Street , Suite 316

Tallahassee, Florida 32399 - 0400

(eServed)

Charles T. Whitelock, Esquire

Charles T. Whitelock, P.A.

300 Southeast Thirteenth Street , S uite E

Fort Lauderdale, Florida 33316

(eServed)

Melissa C. Mihok, Esquire

Melissa C. Mihok, P.A.

1718 East Seventh Avenue , Suite 301

Tampa, Florida 33605

(eServed)

Matthew Mears, General Counsel

Department of Education

325 West Gaines Street, Suite 12 44

Tallahassee, Florida 32399 - 0400

(eServed)

Marian Lambeth, Bureau Chief

Bureau of Professional Practices Services

Department of Education

325 West Gaines Street, Suite 224 - E

Tallahassee, Florida 32399 - 0400

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTI ONS

All parties have the right to submit written exceptions within

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

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.