15-001884PL Pam Stewart, As Commissioner Of Education vs. Michael Ford Status: Closed Recommended Order on Monday, September 28, 2015.

Summary: There is not clear and convincing evidence that Respondent threatened student or placed him in a chokehold. Rather, evidence showed use of reasonable force. Recommend dismissal of Amended Administrative Complaint.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PAM STEWART, AS COMMISSIONER OF

EDUCATION,

Petitioner,

vs. Case No. 15 - 1884PL

MICHAEL FORD,

Respondent.

_______________________________/

RECOMMENDED ORDER

On June 11, 2015, Ad ministrative Law Judge Lisa Shearer

Nelson of the Florida Division of Administrative Hearings

conducted an evidentiary hearing pursuant to section 120.57(1),

Florida Statutes, in Green Cove Springs, Florida.

APPEARANCES

For Petitioner: Ron Weaver, Esquire

Post Office Box 5675

Douglasville, Georgia 30154 - 0012

For Respondent: Anthony D. Demma, Esquire

Meyer, Brooks, Demma and Blohm, P.A.

Post Office Box 1547

Tallahassee, Florida 32302

STATEMENT OF THE ISSUE S

The issues to be det ermined are whether Respondent violated

section 1012.795(1)(f),(g), and (j), Florida Statutes (201 5 ) , and

Florida Administrative Code Rule 6A - 10.081(3)(a) and (e), as

alleged in the Amended Administrative Complaint. If it is found

that Respondent has comm itted any of the statute or rule

violations alleged, the penalty that should be imposed must also

be determined.

PRELIMINARY STATEMENT

On December 4, 2014, Petitioner, as Commissioner of

Education for the State of Florida (Petitioner or the

Commissioner), filed an Administrative Complaint against

Respondent, Michael Ford (Respondent or Coach Ford) , alleging

violations of section 1012.795(1)(g) and (j), and rule 6A -

10.081(3)(a) and (e). Respondent timely filed an Election of

Rights form disputing the allega tions in the Administrative

Complaint and requested a hearing pursuant to section 120.57(1).

On April 8, 2015, the matter was referred to the Division of

Administrative Hearings (DOAH) for assignment of an

administrative law judge.

A Notice of Hearing iss ued on April 20 , 2015, scheduling the

case for hearing on June 11 and 12, 2015. On May 19, 2015,

Petitioner filed a motion for leave to amend the Administrative

Complaint , and also moved to continue the hearing. The motion

for continuance cited the summe r vacation plans of some of

PetitionerÓs witnesses, and noted that Respondent opposed the

continuance. On May 21, 2015, an Order was issued granting the

m otion to a mend the Administrative Complaint but denying the

motion to continue , noting that there app eared to be no

impediment to taking the depositions of any witnesses who would

be unavailable at hearing .

The parties filed a Joint Pre - hearing Stipulation on June 5,

2015, that included stipulat ed facts which, where relevant, have

been included in the f indings of fact below. The hearing

commenced and concluded on June 11, 2015. Joint Exhibit 1 was

admitted into evidence. Petitioner presented t he testimony of

Brett Rountree and Jessica Strunz, as well as the deposition

testimony of Mary Blazek, Bridget t Payne, Toni McCabe, and

Jennifer Zimmerman. PetitionerÓs Exhibits 2, 3, 5 - 7, 9 - 22, 25,

27 - 29, and 33 - 38 were admitted into evidence at hearing.

Respondent objected to PetitionerÓs Exhibits 4, 23 - 24, 26, and

30 - 32 . Ruling on the admissibility of these exhibits was

reserved in order to review the deposition testimony related to

them , and the parties were directed to address the admissibility

of these exhibits in their proposed orders. However, neither

party addressed the admissibility of these exhibits.

Accordingly, after review of all of the evidence, PetitionerÓs

Exhibit 4 is rejected as irrelevant; PetitionerÓs Exhibits 23 - 24

are admitted for the sole purpose of demonstrating that there was

media coverage with respect to the incident at issue in this

case; PetitionerÓs Exhibit 26 is admitted; and PetitionerÓs

Exhibits 30 - 32 are rejected. 1/

Respondent testified on his own behalf and presented the

testimony of Martin Powell, Bonny Lawrence, Janet Rowe, Edward

Huffman, Curtis Oliver, and Tracey Butler. RespondentÓs Exhibits

5 - 7 were also admitted into evidence.

The two - volume T ranscript of the proceedings was filed with

the Division on June 29, 2015. At the request of the parties,

the deadline for submitting proposed recommended orders was

extended to A ugust 5, 2015, by Order dated July 20, 2015. Both

partyÓs submissions were timely filed and have been carefully

considered in the preparation of this Recommended Order.

FINDING S OF FACT

Based on the demeanor and credibility of the witnesses, the

document ary evidence admitted and the record as a whole, the

following findings of fact are found:

1. Respondent holds Florida EducatorÓs Certificate 823554,

covering the area of physical education. His certificate is

valid through June 30, 2016.

2. At all time s material to the allegations in the Amended

Administrative Complaint, Respondent was employed as a physical

education (P.E.) teacher at Oakleaf Junior High School (Oakleaf)

in the Clay County School District (the District). Mr. Ford also

served as a trac k and field coach in the District and was heavily

involved in volunteer activities to encourage youth fitness . In

2008, the Education Practices Commission issued a final order

which adopted a settlement stipulation with respect to a prior

complaint agains t Respondent. The settlement stipulation

Ðneither admitted nor deniedÑ the factual allegations in the

Administ r ative Complaint giving rise to the disciplinary

proceeding in that case.

The Scene

3. Oakleaf is a junior high with sixth through eighth - grade

students. During the 2012 - 2013 school year, there were six P . E .

teachers who typically had classes of at least 40 students each

class period. T hese classes made use of the b aseball and

softball fields, tennis and basketball courts , and the gymnasium

for class time . All of the students shared what were described

as small girlsÓ and boysÓ locker rooms adjacent to the gymnasium.

4. Students and teachers have approximately ten minutes at

the end of each class period to get to their respective locker

rooms, change clothes , and get ready to move to the next class

period. Usually one male and one female P . E . teacher were

assigned to open the gender - specific locker rooms. Until the

locker rooms were opened and after students finished dressing,

the students con gregated in the P . E . building hallway. The space

where students waited was cramped at best, and not adequate to

accommodate the large numbers of students.

5. During the 2012 - 2013 school year , students were expected

to wait in the hallway near the double doors closest to the P . E .

fields for the ringing of the class bell. Students typically

stayed as close to the doorway as possible in order to e nsure a

quick exit. While students were supposed to sit aga inst the

wall, they often either stood near the doub le doors or sat with

their legs stretched out into the aisle - wayaversing the area

could be a challenge under the best of circumstances. A typical

day c ould be described as loosely - organized chaos. As described

by Bonnie Lawrence, OakleafÓs physical education department head,

Ðit Ó s not that the kids are so bad; itÓs just that youÓve got a

large amount of students th at are hot . . . theyÓre worked up.

. . . [A] lot of them are very competitive, so theyÓre still

bringing it into the hallway, and it ju st . . . is a problem and

it still is a problem.Ñ

6. In the first week of April 2013, one of the students

attending Oakleaf was a seventh grader named D.O. 2 / D.O. was a

relatively tall student, described as a big boy between 5Ó8Ñ to

5Ó10Ñ . D.O. received exceptional education services for

emotional behavioral disorder (EBD). EBD students are placed in

EBD special education classrooms because of emotional and/or

medical issues that render them unusually disruptive and volatile

in a traditional classroom s etting.

7. D.O. participated in regular P . E . classes and was

assigned to Coach RountreeÓs class. D.O. was a difficult stu dent

and had been removed from P . E . class the week before s pring break

because of behavioral issues. D.O. wa s easily agitated and

unpredictable. When angry, he use d a lot of profanity and walk ed

very quickly. D.O. had at least three disciplinary referrals

processed during the school year for his misbehavior. One P . E .

teacher admitted that she had been verbally attacked by him and

found him intimidating . Ms. Lawrence stated that while she had

never seen D.O. attack another student, she had witnessed him

hitting the walls with his fists.

8. Because EBD students can be prone to frequent outbursts

and sometimes violent behavior, they are often escorted around

campus and directly monitored by a behavioral aide when the

student s go to lunch, travel to and from bus areas, or

participate in any regular education classes. Jessica Strunz was

the aide assigned to escort D.O. during the time frame relevant to

this proceeding. Petitioner relies on her testimony almost

exclusively concerning what happened with respect to the incident

alleged in the Amended Administrative Complaint .

9. April 2, 2013, was the first school day after spring

break. D.O. had been removed from P . E . for misbehavior the week

before spring break, but on April 3 , he was back in the gym.

D.O. was assigned to Coach RountreeÓs class. C oaches Ford and

Rountree observed paint on D.O.Ó s shoes, consistent with some

paint used in recent vandalism of cars in the area. They asked

D.O. about the paint, and talked to him about making better

decisions , and the consequences that flow from making poor

choices . Coach Ford used his own vehicle as an example, and told

D.O. if someone w ere to spraypaint his wifeÓs truck, there would

be damages that would have to be paid, as an illustration of the

consequences of bad decisions. He indicated that a perpetratorÓs

parents would be responsible for those damages as one of those

consequences. Ms. Strunz was present during this discussion.

The Incident

10. On April 3, 2013, D.O. was again present for P.E.

Ms. Strunz escorted D.O. to P.E. but soon after left the area to

assist another aide, believing that D.O. was fine with Coach

Rountree.

11. Coach RountreeÓs class was going to be playing f risbee

on the baseball field. However, Coach Rountree would not allow

D.O. to be paired with his partner of choice, because they had

previously caused disruptions in the class. When Coach Rountree

told hi m he would have to partner with someone else, D.O. became

angry and sta rted using profanity and questioning Coach

RountreeÓs authority. As a result, Coach Rountree told D.O. to

take a seat in a chair that was on the baseball infield as a

time - out. Instea d, D.O. flung the back of the chair over, and

Coach Rountree spoke to him in an attempt to calm him down.

Eventually, D.O. sat in the chair and Coach Rountree went back to

supervising the rest of his class.

1 2 . Sitting in the chair , however, did nothing to calm D.O.

Instead, he became angrier, kicked the chair, and started yelling

insults and profanity at the other students in the class . He was

apparently trying to provoke a reaction from another student by

making statements such as, ÐyouÓre gay, and yo ur fatherÓs gay,Ñ

in addition to the profanity . At some point, he got up and threw

the chair down rather than sit on it.

13. Coach Ford was in the area supervising his students,

who were split between the basketball and tennis courts. He

approached D. O. and told him that he thought D.O. was supposed be

sitting in the chair. Eventually , D.O. sat back down, but

continued to spew profanities directed at another student in his

class.

14. Ms. Strunz returned to the field at this point and

found D.O. sitti ng in the time - out chair. As she put it, D.O.

was angry at the world, upset, yelling , and cursing. Rather than

approach him directly, Ms. Strunz stayed on the other side of the

fence and tried to calm him down by talking to him, but D.O.

ignored her. At hearing, Ms. Strunz did not seem overly

concerned about the propriety of D.O.Ós behavior, saying, Ðhe

just does that.Ñ

15. D.O.Ós tirade continued, and he stood and threw the

chair down the baseline from first base toward home plate. At

that point, he l eft the infield to sit in the bleachers behind

home plate. As he passed the gate near the dugout , he reached up

and pulled Coach RountreeÓs grade book from where it was wedged

between the fence sections and threw it up into the air . D.O.

then sat down bu t continued to curse and yell.

16. Coach Ford came back over to speak to D.O., attempting

to calm him down and talking to him about making better choices.

He also called Coach Rountree on his radio about D.O. moving from

the seat where Coach Rountree h ad directed him to sit. Coach

Rountree came over to the area and spoke with both Coach Ford and

Ms. Strunz, who told him that D.O. had stood up out of his seat,

kicked the chair, and thrown Coach RountreeÓs grade book. At

this point, D.O. was sitting in the bleachers and for the moment

was calmer, so Coach Rountree went back to the rest of the class,

believing Ms. Strunz had the situation under control. Ford,

likewise, went to direct his class to line up and go in the

building.

17. D.O.Ós mood fluctuate d between calm and anger . It was,

at best, unpredictable. After Coach Rountree went back to the

rest of his class, D.O. got up from his seat in the bleachers and

started walking quickly to t he doors of the P.E. building, with

Ms. Strunz following behind. 3 / D.O. was yelling, cursing, and

saying how much he hated the school. Coach Ford followed him in

in an attempt to calm him down, continuing to talk to him about

the need to make better choices. D.O. was not interested.

Instead, as he approached the bu ilding, D.O. told Coach Ford to

Ðshut the f **k up , Ñ 4 / slammed his hand against the left side of

the double doors , and started to swing open the door to the

hallway.

18. At this point, Coach Ford reached out and restrained

D.O. from behind to prevent him f rom going into the hallway.

Coach Ford put his right arm around D.O.Ós chest and used his own

left arm to secure D.O.Ós left forearm to keep D.O. from swinging

it, and pulled D.O . away from the door . D.O. attempted to pull

away from Coach Ford, and Coach Ford had to jerk him up slightly

so as to keep him from falling off balance and into the eroded

area next to the sidewalk. The momentum of keeping both of them

out of the eroded area propelled them over to a railing near the

walkway, beside an adjacent p or table. Th e entire maneuver by all

accounts lasted a matter of seconds. Coach Ford then told D.O.

he was going to release him and that D.O. needed to stay calm and

stand next to the building. Coach FordÓs purpose in having D.O.

stand next to the buildi ng was to minimize the interaction

between D.O. and the other students in Coach RountreeÓs class,

who were approaching from the baseball field in order to enter

the hallway. D.O. stood next to the building as instructed .

19. D.O. was not injuring himse lf and was not attacking any

other student before attempting to enter the building. He was,

however, about to enter a crowded area full of students in an

angry and agitated state soon after kicking and throwing a chair

and throwing a teacherÓs grade book, and while shouting

profanities and what could be interpreted as derogatory comments

toward other students.

20 . Shortly there after, Coach Rountree and his students

caught up to Coach Ford , and Coach Rountree , Coach Ford, and D.O.

stood at the side of th e building while Ms. Strunz was standing

at the railing by the walkway. Once Coach Rountree caught up to

them, Ms. Strunz went inside to coordinate with another aide, and

Coach Rountree directed his o ther students to go inside. When

Coach Rountree approa ched, both Coach Ford and D .O. appeared to

be fairly calm. However, as was the case earlier, D.O.Ós moo d

fluctuated between extremely agitated to calm to agitated again ,

and he started saying he was going to sue the school . Coach Ford

continued to try an d calm him, but dismissed D.O.Ós threat of

litigation by saying something to the effect that D.O. did not

know what teachers are allowed to do.

21. Ms. Strunz returned and Coach Ford left the area to

attend to his students. D.O.Ós mood continued to fl uctuate, and

he made a statement to the effect of, ÐyouÓre all screwed, and

this place is going down , Ñ and that the school was in big trouble

because he was going to sue the school . When Coach Rountree

asked him what he meant, D.O. was not listening to hi m, but kept

repeating that they were all screwed. At some point during this

tirade , which lasted about five minutes, D.O. noticed that he had

a small scrape on his elbow about the size of a nickel, with a

small amount of blood. This observation upset him all over

again, and he started walking quickly to the administrative

offices, with Coach Rountree and Ms. Strunz following behind.

2 2 . D.O. made his way to Assistant Principal Bridget

PayneÓs office, with Coach Rountree and Ms. Strunz following

behind. D.O. told her, Ðlook at what one of your teachers did to

me.Ñ He proceeded to show her his arm and to tell her that Coach

Ford had put him in a chokehold and threatened to put him in the

hospital . Ms. Payne asked him to pull down his shirt, and he did

s o, showing that there was some redness below the AdamÓs apple.

Ms. Payne testified that the red area was about half an inch to

three quarters of an inch wide, and that she could not see it

until he pulled down his shirt. After D.O. finished telling his

s tory to Ms. Payne, Ms. Strunz was asked to confirm it or say

anything about it, and she confirmed D.O.Ós story.

The Aftermath

2 3 . Both Coach Rountree and Ms. Strunz were asked to write

statements, and both did so. Only Ms. StrunzÓs statement refers

to a chokehold. Ms. Payne call ed D.O.Ós mother and informed her

of the incident, and D.O.Ós mother , in turn , called the police .

Ms. Payne then notified Coach Ford that the police were coming

but did not talk to him about the incident .

2 4 . Ms. Payne also sent D.O. to Mary Blazek, the school

nurse, who examined his arm and neck . She treated the arm with

Bactine and a Band - Aid , which she described as Ðnot major first -

aid treatment.Ñ Ms. Blazek also observed some redness on D.O.Ós

neck. She had been told that he was restrained around his neck

so she was looking for redness. She did not inquire as to any

other reasons that might have caused his neck to be red , and

there was no evidence indicating that Ms. Blazek or anyone else

observed scratches, welts, or bruising on his neck, or that the

redness extended around to either side of his neck . Ms. Blazek

filled out an incident report , but not until eight days after the

incident when she was asked to do so.

2 5 . OakleafÓs principal contacted Toni McCabe, the

a ssistant superintendent for the District, and Ms. McCabe began

an investigation into the incident. Coach Ford was suspended

with pay on April 4, 2013, pending completion of the

investigation.

2 6 . Ms. McCabe did not interview D.O. as part of her

investi gation and did not review his disciplinary referrals other

than the one issued to him regarding his behavior the day of the

incident. She only spoke to those staff members who were

directly involved in the incident and could provide eyewitness

testimony. Based upon her investigation, she recommended to the

superintenden t that Coach Ford be terminated, and although it is

not clear when , Coach Ford eventually resigned.

2 7 . Ms. McCabe testified that when she spoke to Coach Ford,

he stated that he had used a Safe Crisis Management (SCM) hold,

and that a chokehold is not a SCM hold. SCM training is

generally provided to administrators and those teachers working

in special education. Coach Ford had taken SCM training but was

not currently certified. P.E. tea chers at Oakleaf had requested

SCM training repeatedly , but it was not provided to them. Coach

Ford denied stating that he used SCM in dealing with D.O. , and

denied using a chokehold. Tracey Butler is the Florida Education

Association representative who attended both meetings Respondent

had with Ms. McCabe regarding the incident with D.O. Ms. Ware , a

District employee, took notes of the meetings, as did Ms. Butler.

Ms. Butler did not recall Coach Ford ever telling Ms. McCabe that

he used a SCM hold. Th e only mention of the term in her notes

was one indicating Ms. McCabe asked if Coach Ford had SCM

training. Her review of Ms. WareÓs notes indicate d the same

question and response, but no indication that Respondent stated

he used a SCM hold. The undersig ned finds that Coach Ford did

not state to Ms. McCabe that he was using a SCM hold.

The Criminal Proceedings

2 8 . As noted previously, the Clay County SheriffÓs Office

also investigated the inciden t. The statements taken by Coach

Rountree and Ms. Strunz were also provided to the SheriffÓs

Office. On April 8, 2013, Coach Ford was arrested for child

abuse/simple battery as a result of the incident. On May 6,

2013, h e was officially charged with violating section

827.03( 1)(b), Florida Statutes . 5/ His cas e was docketed as Case

No. 2013 - CF - 000686.

2 9 . On June 4, 20 1 3, Respondent entered an agreement to go

into a pretrial intervention program (PTI) . Consistent with the

requirements for entry into the program in the Fourth Judicial

Circuit, he signed a docu ment entitled ÐPlea of Guilty and

Negotiated Sentence.Ñ The State Attorney in the circuit required

that in order to enter into a pretrial diversion program,

defendants were required to sign a guilty plea agreement which

would not be entered on the docket of the court. Upon successful

completion of the requirements of the PTI, the S tate A ttorney Ós

O ffice would dismiss the charges. However, if a defendant fail ed

to complete the PTI requirements, the guilty plea would be filed

and the defendant would be sen tenced based on the guilty plea.

30 . The form that Respondent signed states in part:

Specific Terms of Negotiated Sentence:

My sentence has been negotiated in this case

in that I will be:

Adjudicated guilty

Adjudication of guilt withheld

And I w ill be sentenced to: (Please print )

31 . In the blank space provided, the following agreement is

hand - written :

Post - plea PTI: upon completion of anger

management and no contact with the victim,

D.O., the state attorney will dismiss

charges. If unsuccessful, plea will be an

open plea to the court.

3 2 . The entry into the PTI program was discussed in open

court, but the evidence did not establish that the trial judge

engaged in a traditional colloquy regarding the voluntary nature

of the plea, and the document that Respondent signed was not

docketed in the court record. On June 6, 2013, a Diversion

Referral Notice was sent to the Clerk of Court by the Assistant

State Attorney advising that the case was being referred to the

Felony Pre - Trial Intervention Program, and that the State would

file a final disposition at the time of successful completion.

3 3 . On July 19, 2015, the Director of the PTI program

notified the Clerk of Courts that the case had been accepted into

the PTI program. On October 10, 2013, the State AttorneyÓs

Office filed a Diversionary Nolle Prosequi dismissing the

charges.

3 4 . The Case Summary for Case N o. 2013 - CF - 000686 indicates

that the following documents were filed on the criminal docket:

a notice t o appear; a notice of cash bond; the affidavit for

arrest warrant; warrant returned served; arrest and booking

report; notice of appearance, waiver of arraignment, not guilty

plea and demand for trial; information; stateÓs discovery exhibit

and demand for reciprocal discovery; victim information form;

diversionary program referral notice; diversionary program

referral (accepted); cash bond release; and diversionary nolle

prosequi.

3 5 . The document entitled Plea of Guilty and Negotiated

Sentence was not f iled on the docket in the criminal proceedings.

The Nature of the Restraint

3 6 . Throughout these proceedings, Petitioner has referred

to the restraint of D.O. as a chokehold . The unfortunate use of

the term originated with D.O.Ós comments to Ms. Payne. D.O. did

not testify in this case.

3 7 . The only witnesses to the actual incident that

testified in these proceedings are Coach Rountree, Coach Ford,

and Ms. Strunz. Coach Rountree candidly stated that he did not

see the entire i ncident. He demonstrated what he observed of the

interaction between Coach Ford and D.O. His demonstration

indicates that Coach Ford had his arm across D.O.Ós upper chest.

3 8 . Jessica Strunz was de s cribed as being somewhere between

three feet and 30 feet away from Coach Ford a nd D.O. Given the

testimony regarding D.O.Ós size and pace as he walked toward the

gym, the mo st plausible conclusion is that she was somewhere

bet w een 10 and 15 feet behind him. 6/ It is Ms. StrunzÓs testimony

that places FordÓs arm around D.O.Ós neck. That testimony is not

credited.

3 9 . First, Ms. Strunz is shorter than D.O. and possibly

shorter than Coach Ford. If she was behind Coach Ford, who was

behind D.O. when he started to go through the door of the gym, it

would be difficult , if not impossib le , for her to see where Coach

FordÓs arm was located in front of D.O.

40 . Second, the height difference between Coach Ford and

D.O. also weighs in favor of a restraint across the chest, as

both Coach Ford and Coach Rountree demonstrated. Third, the

redn ess on D.O.Ós neck was reported to be just above his

collarbone at the front of his neck. He had to pull down his

shirt in order for the red mark to be seen. Had Coach Ford had

D.O.Ós neck in the crook of his arm, as Ms. Strunz testified, it

seems that a ny redness would have extended to at least one side

of his neck, and no one testified that was the case. Moreover,

D.O. had been outside on a baseball field on a warm day. He was

angry, had been yelling, had kicked a chair , and had thrown a

chair in the 30 minutes leading up to this event. There is not

clear and convincing evidence that the redness on his neck was

caused by the restraint at all. The same can be said for the

small scrape on his elbow.

41 . The more persuasive testimony indicated, and it is

found, that Coach Ford restrained D.O. by placing his arm across

the upper chest area. He did so not because D.O. had hurt

himself or anyone else at that point, but based upon his concern

that should this demonstrably angry young man enter the crowded

hallway, the normally chaotic atmosphere with close to 100

waiting students would turn into a dangerous one with a real

possibility of injury to D.O., to other students in the hallway,

or both .

Reasonable Use of Force

4 2 . The District has adopted a defini tion of the reasonable

use of force for teachers, as required by section 1006.11,

Florida Statutes. The DistrictÓs policy states the following:

CLAY COUNTY SCHOOL BOARD POLICY 6GX - 10 - 2.32

2.32 USE OF REASONABLE FORCE

As provided by Florida Statute 1006 .11, this

policy establishes the standards for the use

of reasonable force by Clay County school

personnel. Such use shall be for the

purpose of establishing and maintaining a

safe and orderly environment and shall

provide guidance to school personnel in

dealing with disruptions to that

environment.

A. Definition of Terms: The following

definitions apply to terms used in this

policy:

Learning Environment : All events and

activities authorized by the School

Board requiring an employee to be on

duty in/out of the classroom setting.

Orderly : Devoid of disruption or

violence; peaceful. An orderly

environment is one in which learning can

take place.

Disruption : An interruption of or

impediment to the usual course of

harmony .

Reasonable Force : A ppropriate

professional conduct including

reasonable force as necessary to

maintain a safe and orderly learning

environment.

Safe : Preventing injury or loss of

life, a safe environment is one in which

persons are protected from injury or

threat of injur y .

School personnel : Employee/individual

hired by the School Board.

B. Conditions that may require use of

reasonable force:

While use of physical force may be

needed at times to ensure a safe and

orderly learning environment,

alternatives to such fo rce should be

attempted, time permitting.

The use of reasonable force is permitted

to protect students from:

1 . conditions harmful to learning;

2. conditions harmful to studentsÓ

mental health;

3. conditions harmful to studentsÓ

physical health;

4. conditions harmful to safety;

5. other conditions which, in the

judgment of on - site employee(s) ,

threaten the safety and welfare of

students or adults.

C. Guidelines for the determination of

ÐreasonablenessÑ of force:

When school personnel emp loy physical

force in order to maintain or restore

safety and/or order to a situation,

determinants as to the reasonableness of

force shall include, but not be limited

to:

1 . severity of the offense(s);

2. size and physical condition of

participant(s );

3. patterns of behavior;

4. potential danger; physical and

other;

5. availability of assistance;

6. other circumstances surrounding the

offense; and

7. actions taken prior to use of

physical force.

D. Other factors:

1 . Reasonable for ce cannot be excessive

or cruel or unusual in nature.

2. Physical force being used should

cease upon the restoration of a safe and

orderly environment.

3. Nothing in this policy should be

construed as addressing Clay County

School Board polic(ies) on corporal

punishment.

4. Use of these guidelines shall

provide guidance to school personnel in

receiving the limitations on liability

specified by Florida Statutes.

(Emphasis added) .

4 3 . There was testimony that under Clay CountyÓs policy on

reaso nable force, restraint should be used only in the most

extreme cases, such as when a student is going to seriously

injure himself or someone else. None of those espousing this

view indicated that they had ever had 40 students on a P.E. field

or had ever t aught P.E. Ms. Payne and Ms. Zimmerman both

acknowledged that they had never done so. While such an example

is certainly covered by the policy, the plain language of the

policy is not that restrictive. Coach Ford testified, and

maintained consistently t hroughout the various inquiries related

to this incident, that his concern was for the safety of both

D.O. and the other students in the hallway, should D.O. enter

this crowded area at the level of crisis he was exhibiting in the

period immediately prior t o his approach to the door. Every P.E.

instructor who testified emphasized that student safety is their

primary concern. He re, Coach Ford was concerned about anyone

getting run over or injured given D.O.Ós clearly agitated state.

This concern fits squar ely within the policyÓs directive to

Ðmaintain a safe and orderly learning environment,Ñ including an

environment which is Ðdevoid of disruption or violenceÑ and where

Ðpersons are protected from injury or threat of injury.Ñ 7/ It is

found that Coach FordÓ s actions fell within the confines of , and

was not prohibited by, the DistrictÓs policy on the use of

reasonable force.

The Alleged Threat

4 4 . Ms. Strunz testified that Coach Ford threatened D.O.

almost immediately prior to the restraint, saying that if he found

paint on his car, he would come look for D.O. and would put him in

the hospital; and that D.O. did not know what he was capable of.

Coach Ford adamantly denied this allegation. These alleged

threats were supposedly made just moments after, accor ding to

Ms. Strunz, Coach Ford was telling D.O. he needed to make better

choices and was trying to calm him down.

4 5 . That anyone, including Coach Ford, would make such a

statement immediately after working repeatedly to calm D.O. and

after talking to him about better choices, simply strains

credulity. It was not clear where Ms. Strunz was when Coach Ford

told D.O. that D.O. was not aware what teachers were allowed to

do. It may be that she misinterpreted this statement as a threat.

In any event , the re is not clear and convincing evidence that

Coach Ford made any threat to D.O.

Diminished Effectiveness

46 . Petitioner presented evidence of news accounts of the

incident, in support of the allegation that RespondentÓs

effectiveness had been reduced , along with the opinion of

Ms. McCabe (who believed t hat Respondent had used a choke hold) to

that effect . On the other hand, Bonny Lawrence, the department

head for the P.E. department at Oakleaf, testified that she would

Ðabsolutely notÑ have a problem with Coach Ford coming back on her

staff. Janet Rowe, the athletic director and a P.E. teacher at

Oakleaf, considers Ford to be a highly - effective P.E. coach.

Edward ÐSmittyÑ Huffman, who has taught physical education for

most of his 20 years in educatio n, considers Coach Ford to be one

of the better teachers he has ever known. It is found that

Petitioner did not establish by clear and convincing evidence that

RespondentÓs effectiveness as a teacher has been reduced.

CONCLUSIONS OF LAW

47 . The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to this

action in accordance with sections 120.569 and 120.57(1) , Florida

Statutes (2015) .

48 . The Florida Education Practices Commission is the state

agency charged with the certification and regulation of Florida

educators pursuant to chapter 1012, Florida Statutes.

49 . This is a proceeding in which Petitioner seeks to

revoke RespondentÓs educator certificat ion . Because disciplinary

proceedings are considered to be pena l in nature, Petitioner is

required to prove the allegations in the Amended Administrative

Complaint by clear and convincing evidence. DepÓt of Banking &

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

v. Turlington , 510 So. 2d 291 (Fla. 1 987).

50 . Clear and convincing evidence Ðrequires more proof than

a Òpreponderance of the evidenceÓ but less than Òbeyond and to

the exclusion of a reasonable doubt.ÓÑ In re Graziano , 696

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

Cou rt :

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 testimony

must be precise and lacking in confusion as

to the facts in issue. The evidenc e 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 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

Westin ghouse Elec t . Corp. v. Shuler Bros. , 590 So. 2d 986, 989

(Fla. 1991). Moreover, the allegations against Respondent must be

measured against the law in effect at the time of the commission

of the acts alleged to warrant discipline. McCloskey v. DepÓt of

F in. Servs. , 115 So. 3d 441 (Fla. 5 th DCA 2013).

51 . Section 1012.796 describes the disciplinary 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 Dep artment 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

Commissi on 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 issuance 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

supervisory endorsement on a tea ching

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) Revocation 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

conditions as the commission m ay 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

probation assessed to the educat or 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.

52 . Charges in a disciplinary proceeding must be strictly

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

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

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

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

terms of the ir 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).

53 . The Amended Administrative Complaint alleges the

following factual bases for imposing discipline against

Respondent:

3. On or about July 7, 2005, the

Commissioner of Education determined

probable cause to sanction the RespondentÓs

Florida Educator Ce rtificate for a 2004

Driving Under the Influence with Property

Damage. On or about May 12, 2006, the

Education Practices Commission issued a

Final Order accepting a settlement agreement

with the Respondent.

4. On or about April 3, 2013, the

Respondent i nappropriately and unreasonably

restrained a thirteen - year - old male student

while making a threatening comment to him .

5. This was reported in the local media.

6. On or about April 4, 2013, the

Respondent was suspended with pay.

7. On or about Apr il 9, 2013, the

Respondent was arrested and charged with

Child Abuse (Simple Battery/Assault).

8. On or about May 17, 2013, the

RespondentÓs employment with Clay County

School District was terminated.

9. Subsequently, the Respondent pled guilty

and ent ered into a pre - trial diversion

program.

10. On or about October 10, 2013, the

Assistant State Attorney entered a Nolle

Prosequi with respect to the charge.

54 . The evidence established that in 2005, Respondent

entered into a settlement stipulation wi th the Florida Education

Commission to resolve charges from 2004 (which is relevant only in

terms of possible penalties) , and that on April 3, 2013,

Respondent restrained a student after several minutes of trying to

calm the student in order to prevent him from entering a congested

area. The evidence did not establish that the restraint used was

a Ðchoke holdÑ or an unreasonable restraint: to the contrary, the

evidence indicated that the restraint was within parameters

identified in the written use of reas onable force policy for the

Clay County School District . The evidence did establish that the

incident was reported in the media; that Respondent was suspended

with pay; and that , ultimately , RespondentÓs employment with the

District was concluded. Finall y, the evidence demonstrated that

Respondent was charged with child abuse/simple battery; that he

entered and successfully completed a PTI ; and that the criminal

charges were nolle prossed.

55 . Count 1 charges Respondent with violating section

1012.795(1 )(f) , which makes it a basis for discipline when an

educator Ð[h]as been convicted or found guilty of, or entered a

plea of guilty to, regardless of adjudication of guilt, a

misdemeanor, felony, or any other criminal charge, other than a

minor traffic viol ation.Ñ Respondent was not convicted or found

guilty of any criminal violation. The issue for determination is

whether the document used for entry into the PTI constitutes

having ÐenteredÑ a plea of guilty. The undersigned concludes that

it does not.

5 6 . Florida Rule of Criminal Procedure 3.170(k) provides

that Ð[n]o plea of guilty or nolo contendere shall be accepted by

the court without the court first determining, in open cou r t, with

means of recording the proceedings stenographically or

mechanicall y, that the circumstances surrounding the plea reflect

a full understanding of the significance of the plea and its

voluntariness and that there is a factual basis for the plea of

guilty. A complete record of the proceedings at which a defendant

pleads sh all be kept by the court.Ñ Formal acceptance of the plea

occurs when the court affirmatively states to the parties in open

court that the court accepts the plea. Until the court formally

accepts the plea, it is not binding on anyone. Collucci v. State ,

903 So. 2d 333, 334 (Fla. 5 th DCA 2005).

57 . In A.D.W. v. State , 777 So. 2d 1101 (Fla. 2d DCA 2001),

a juvenile entered an agreement called a rehabilitation plan that

included a provision similar to the one at issue here, requiring

the petitioner to ent er a plea of guilty if he did not comply with

the rehabilitation planÓs conditions. A.D.W. did not comply with

the agreement and a guilty plea was entered pursuant to the

agreement. A.D.W. filed a petition for writ of prohibition and

the Second District granted the writ, stating:

Here, the parties have not indicated to this

court that at the time of the agreement the

trial court initiated a plea colloquy or

established that A.D.W. was knowingly,

intelligently, and voluntarily waiving his

right to an adjud icatory hearing on this

charge, and no plea was entered by A.D.W. at

the time the agreement was filed.

The stipulation to enter a plea cannot

validly act as a plea without a

contemporaneous plea colloquy indicating

that the defendant knowingly, intelli gently,

and voluntarily waived his rights. Any

error in the plea colloquy would be

correctable on appeal, but a complete

absence of a knowing, intelligent, and

voluntary waiver vitiates the agreement to

enter a plea. The fact that the executory

agreement was accepted by the court did not

transform this executory agreement into a

plea agreement due to the requirement that a

plea to waive any constitutionally protected

right must be knowingly, intelligently, and

voluntarily entered by the defendant with an

adequate inquiry by the trial court.

777 So. 2d at 1104.

58 . The same rationale applies here. In this case, the

agreement was entered for the purpose of entry into the PTI

program. The trial judge did not engage in a traditional plea

colloquy and no g uilty plea was entered into the record of the

criminal proceeding. Accordingly, the evidence does not

demonstrate by the clear and convincing standard that Respondent

violated section 1012.795(1)(f).

59 . Count 2 charged Respondent with violating section

1012.795(1)(g) by being found guilty of Ðpersonal conduct which

seriously reduces effectiveness as an employee of the school

board. Ñ While Ms. McCabe offered the opinion that Coach FordÓs

effectiveness was negatively affected, she also believed, based

up on her limited investigation, that Coach Fo rd restrained D.O.

with a choke hold and threatened him, both allegations that are

rejected as contrary to the greater weight of the evidence. On

the other hand, teachers who had worked closely with Coach Ford

tes tified that he was a very effective teacher and they would not

hesitate to work with him again. Count 2 has not been proven by

clear and convincing evidence.

60 . Count 3 charges Respondent with violating section

1012.795(1)(j), by violating the Principl es of Professional

Conduct for the Education Profession prescribed by the State Board

of Education rules. This charge rests on the ability to prove the

violations alleged in Counts 4 and 5. Given the re commended

disposition of those c ounts, Count 3 shoul d be dismissed.

61 . Count 4 charges a violation of rule 6A - 10.081(3)(a), for

failure to Ðmake reasonable effort to protect the student from

conditions harmful to learning and/or the studentÓs mental health

and/or physical health and/or safety.Ñ In order to evaluate

RespondentÓs conduct, it must be determined whether his conduct

was reasonable, i.e., whether a reasonable person would consider

that he was making an effort to protect not only D.O., but other

students. If the evidence had demonstrated that Respondent

actually used a choke hold or threatened D.O., then of course a

violation would be demonstrated. However, the evidence sho wed a

young man who had been angry and agitated for an extended length

of time. He had already called out insults and prof anity to

students and teachers alike, kicked and thrown a chair, and thrown

a teacherÓs grade book. D.O. had already ignored verbal

directives, and in this agitated state was about to enter a

congested area filled with students. Coach FordÓs actions were

designed to prevent, not cause, harm to both D.O. and the other

students in the hallway. While there may have been other methods

to a ddress the situation, it cannot be said that no reasonable

person would have taken the actions that Coach Ford took to

pr event the situation from escalating further. Count 4 has not

been proven by clear and convincing evidence.

62 . Finally, Count 5 charges Respondent with violating rule

6A - 10.081(3)(e) , alleging that he Ðintentionally exposed a student

to unnecessary em barrassment or disparagement.Ñ D.O. did not

testify, so we cannot know whether he was actually embarrassed.

However, a review of the evidence indicates that any negative

statements made about D.O. were more likely made as a result of

the behavior he exhi bited as opposed to the actions of Respondent .

Further, Respondent made an effort to have him stand away from the

other students in order for him to calm down without others making

fun of him. There is not clear and convincing evidence to support

a viola tion of rule 6A - 10.081( 3)(e).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Education Practices Commission

enter a Final Order dismissing the Amended Administrative

Complaint.

DONE AND ENTERED this 28th day of September , 2015 , in

Tallahassee, Leon County, 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.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 28th day of September , 2015 .

ENDNOTE S

1/ PetitionerÓs Exhibits 30 - 32 are letters regarding a prior

alle ged in cident in 2008. They are not only hearsay, but seek to

establish prior bad acts by Respondent. It was not established

that notice of the intent to offer evidence of prior bad acts, as

required by section 120.57(1)(d), Florida Statutes , was provided.

2 / D.O. is identified by his initials because of his status as

both a student and a minor. D.O. did not testify at hearing.

3 / While Ms. StrunzÓ exact height is unknown, she is several

inches shorter than the height described for D.O. She

acknowledged t hat when D.O. was walking to Ms. PayneÓs office, he

was walking so fast that she had to run to keep up with him. Her

testimony was not consistent regarding D.O.Ós pace, but the more

credible testimony was that when D.O. is angry, as he was during

most of this sequence of events, he walked fast. The more

credible evidence is that Ms. Strunz was lagging behind D.O. and

Coach Ford, and was not as close as the three feet she described.

4 / No purpose is served by repeating the language used, but it is

noted that the testimony was uniform that this particular

language was a frequently - used term in D.O.Ós tirade s on both

this day and other days. It is further noted that D.O.Ós use of

profanit y was not sparing, but constant during the course of this

incident.

5/ The charging document erroneously states that the offense took

place on April 20, 2013.

6/ Ms. Strunz stated that she was approximately three feet behind

D.O. as they walked toward the gym. She later states that she

was next to D.O. as he approached the door. Ms. Strunz also

testified that D.O. walks fast when he is angry and that he was

angry as he approached the gym, but that he was not walking fast

at that time. The more persua sive and plausible evidence is that

D.O. was walking fast and that Ms. Strunz was still some distance

behind him as he approached the door.

7/ One wonders what ramifications there would have been had D.O.

entered the hallway and the situation had escalat ed as Coach Ford

feared. It seems entirely possible that someone, including Coach

Ford, would have been subject to the charge that he or she did

nothing to protect D.O. and the students in the hallway from

conditions harmful to their safety. Of course, t his conclusion

would be different had the evidence supported the allegation that

Coach Ford actually used a chokehold, no matter the legitimacy of

his concerns for safety. However, no such finding is warranted

where the evidence does not support the alleg ation that a

chokehold was used.

COPIES FURNISHED:

Gretchen K. Brantley, Executive Director

Education Practices Commission

Department of Education

325 West Gaines Street , Suite 316

Tallahassee, Florida 32399 - 0400

(eServed)

Anthony D. Demma, Esquire

Me yer, Brooks, Demma and Blohm, P.A.

Post Office Box 1547

Tallahassee, Florida 32302

(eServed)

Ron Weaver, Esquire

Post Office Box 5675

Douglasville, Georgia 30154 - 0012

(eServed)

Matthew Mears, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Marian Lambeth, Bureau Chief

Bureau of Professional

Practices Services

Department of Education

Turlington Building, Suite 224 - E

325 West Gaines Street

Tallahassee, Florida 32 399 - 0400

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

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

to this Recommended Order should be filed with the agency that

will i ssue the Final Order in this case.