16-004600PL Pam Stewart, As Commissioner Of Education vs. Robin Welch Kennedy Status: Closed Recommended Order on Monday, December 5, 2016.

Summary: Petitioner proved by clear and convincing evidence that Respondent violated section 1012.795 (1)(g) and (j), Florida Statutes (2013), and Florida Administrative Code Rule 6A-10.081(3)(a) and (e).

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PAM STEWART, AS COMMISSIONER OF

EDUCATION ,

Petitioner ,

vs. Cas e No. 1 6 - 4600 PL

ROBIN WELCH KENNEDY ,

Respondent .

/

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case

on October 19 and 25 , 2016, in Jacksonville, Florida, before

Garnett W. Chisenhall, a duly - designated Administrative Law

Judge of the Division of Administrativ e Hearings (ÐDOAHÑ).

APPEARANCES

For Petitioner: Ron Weaver, Esquire

Post Office Box 770088

Ocala , Florida 34477 - 0088

For Respondent: Harold S. Lippes, Esquire

Lippes & Bryan, P.A.

70 0 Ponte Vedra Lakes B ou l e v ar d

Ponte Vedra Beach, Florida 32082

STATEMENT OF THE ISSUE S

Whether Respondent viola ted section 1012.795(1)(g) and (j),

Florida Statutes (2013) , 1/ and Florida Administrative Code Rule

6A - 1 0.081(3)(a) and (e), w hile in a classroom at Neptune Beach

Elementary School o n September 19 , 201 3 , and , if so, what

penalty should be imposed.

PRELIMINARY STATEMENT

On July 1 6 , 2015, Petitioner, Pam Stewart as Commissioner

of Education, filed an Administrative Complaint char ging

Respondent, Robin Welch Kennedy (ÐRespondentÑ or ÐM s . Kennedy Ñ)

with violating section 1012.795(1)(g) and (j) and rule 6A -

10.081(3)(a) and (e). M s . Kennedy disputed the allegations

in the Administrative Complaint and requested a formal

administrative hearing. On August 1 5 , 201 6 , the case was

referred to DOAH for assignment of an administrative law judge

(ÐALJÑ), and ALJ E. Gary Early scheduled the final hearing to

occur on October 19 , 201 6 , by video teleconference between

Jacksonville and Tallahassee , Florida.

On Octob er 11, 2016, Petitioner filed a ÐRequest for

Official RecognitionÑ asking ALJ Early to officially recognize

a news article and television report regarding arrests of

Ms. Kennedy. ALJ Early denied the Request for Official

Recognition v ia an Order issued on October 13, 2016. However,

ALJ Early stated that his denial was without prejudice to

Petitioner seeking to have the news article and video admitted

into evidence through some other means.

O n October 18 , 201 6 , M s . KennedyÓs attorney filed a Motion

re quest ing that the final hearing be continued due to a death in

his family. After convening the final hearing as scheduled , ALJ

Early considered the aforementioned Motion to Continue and

issued an Order on October 19, 201 6 , continuing the final

hearing to October 25, 201 6 . In addition, ALJ Early specified

that the re - scheduled final hearing would be conducted as a live

hearing in Jacksonville rather than as a video teleconference

hearing .

On October 24 , 2016, this case was transferred to the

undersigned , and t he final hearing was held as scheduled on

October 25 , 2016.

Duri ng the final hearing, the undersigned accepted

PetitionerÓs E xhibits 2 through 5, 7, 11, and 13 into evidence.

Petitioner presented the testimony of C.J., R.B., E lizabeth

K ava naugh, Amber Rodenkirch, Kathleen Meyer, and Ivy Johnson .

C.J. and R.B. are minors, and the undersigned will refer to them

herein by their initials in order to protect their privacy.

Petitioner renewed her request that a news article

rega rding arrests of Ms. Kennedy be admitted into evidence. The

undersigned denied the renewed request but specified that

Petitioner could file a motion for reconsideration directing the

undersigned to relevant authorities .

N o motion for reconsideration wa s forthcoming after the

final hearing, and the previous denial is reaffirmed . In doing

so, the undersigned concludes that t he relevance of the

information within the news article to the allegations at issue

is questionable at best. See generally § 120.56 9(2)(g), Fla.

Stat. (providing that Ð[ i ] rrelevant, immaterial, or unduly

repetitious evidence shall be excluded, but all other evidence

of a type commonly relied upon by reasonably prudent persons in

the conduct of their affairs shall be admissible, whethe r or not

such evidence would be admissible in a trial in the courts of

Florida.Ñ). Moreover, to whatever event tha t the information at

issue is relevant, the potential for unfair prejudice outweighs

any probative value. See £ 90.403 (providing that Ð[r]e levant

evidence is inadmissible if its probative value is substantially

outweighed by the danger of unfair prejudice, confusion of

issues, misleading the jury, or needless presentation of

cumulative evidence.Ñ). But see State v. Burrell , 772 N.W.2d

459 , 4 67 (Minn. 2009)(stating that Ð[t]he distinction between a

jury trial and a bench trial is important. The risk of unfair

prejudice to Burrell is reduced because there is comparatively

less risk that the district court judge, as compared to a jury

of layper sons, would use the evidence for an improper purpose or

have his sense of reason overcome by emotion.Ñ).

M s . Kennedy offered no exhibits and testified on her own

behalf.

Petitioner ordered a transcript and filed a timely Proposed

Recommended Order on Friday, November 18 , 2016 . The undersigned

considered PetitionerÓs Proposed Recommended Order in the

preparation of this Recommended Order.

DOAHÓs computerized filing system notes that Ms. KennedyÓs

attorney filed a Proposed Recommended Order at 8: 00 a.m. on

Monday, November 21, 2016. Due to a lack of prejudice to

Petitioner and because it is possible that Ms. KennedyÓs

Proposed Recommended Order was timely filed prior to the close

of business on Friday, November 18, 2016, the undersigned also

cons idered Ms. KennedyÓs Proposed Recommended Order in the

preparation of this Recommended Order.

FINDING S OF FACT

Based on the demeanor of the witnesses, the documentary

evidence presented, and the record as a whole, the following

facts are found:

1. Th e Florida Education Practices Commission (Ð the

Commission Ñ) is the state agency charged with the duty and

responsibility to revoke or suspend, or take other appropriate

action with regard to teaching certificates as provided in

sections 1012.795 and 1012.7 96 . § 1012.79(7), Fla. Stat.

2. Petitioner, as Commissioner of Education, is charged

with the duty to file and prosecute administrative complaints

against individuals who hold Florida teaching certificates and

who are alleged to have violated standards of teacher conduct.

§ 1012.796(6), Fla. Stat.

3. At all times relevant to the instant case, Ms. Kennedy

held Florida Educator Certificate 889874, covering the areas of

Elementary Education and English for Speakers of Other

Languages . Ms. KennedyÓs c ertificate is valid through June 30,

2017.

4. Ms. Kennedy began her teaching career in 2001 after

graduating with a bachelorÓs degree in Elementary Education from

the University of North Florida.

5. The school district assigned Ms. Kennedy to Neptune

Be ach Elementary on September 9, 2013 , approximately two weeks

into the 2013 - 20 14 school year .

6. The principal of Neptune Beach Elementary, Elizabeth

Kavanagh, then assigned Ms. Kennedy to a third - grade class being

taught by Ms. Amber Rodenkirch. It is unclear whether the two

teachers were equals in the classroom or if Ms. Rodenkirch gave

direction to Ms. Kennedy.

7. The students in Ms. Rodenkirch and Ms. KennedyÓs class

(Ðthe classÑ) sat at tables rather than in chairs with a writing

surface attach ed thereto.

8. As illustrated by PetitionerÓs Exhibit 13, t he chairs

utilized by the students were of two types . One type consisted

of a plastic seat resting on metal tubes . The metal tubes had

four flat ends making contact with the floor. The second type

of chair also consisted of a plastic seat resting on metal

tubes . However, the second type of chair made contact with the

floor by having two metal tubes lying flat on the floor. As a

result, it would be much easier to slid e the second type of

chai r along a carpeted floor than the first.

9. When seated in the second type of chair, t he children

in the class w ould often lean forward . By doing so, they would

cause the back portion of the metal tubes on which the seat

rested to rise up off the floor .

10. When working with a student, Ms. Rod enkirch and

Ms. Kennedy would be standing behind or next to a seated

student. If that student was seated in the second type of chair

and leaning forward, there was a tendency for the metal tubes on

which the se at rested to come down on a teacherÓs foot once the

student leaned or sat back in his or her chair.

11. Because it was painful for a chair to come down on her

feet, Ms. Kennedy greatly preferred the first type of chair to

the second.

12. On September 1 9, 2013, Ms. Kennedy had recently been

in a surfing accident which left one of her feet black and blue.

In all likelihood, Ms. Kennedy was particularly concerned that

day with the children leaning forward in their chairs.

13. O n September 19, 2013 , Ms. Rodenkirch was working

with a student and was 10 to 14 feet away from Ms. Kennedy. A

student, C.J., was leanin g forward in his chair, and

Ms. Rodenkirch witnessed Ms. Kennedy tip C.J. out of his chair.

14. After getting up from the floor, C.J. sat back down in

his chair and appear ed to be startled.

15. Ms. Rodenkirch asked Ms. Kennedy if C.J. fell out of

his chair, and Ms. Kennedy responded by stating, ÐWith a little

help.Ñ

16. Ms. Rodenkirch interpreted that statement as

confirmation that Ms. Ken nedy intentionally tip ped C.J. out of

his chair.

17. At a different time on September 19, 2013,

Ms. Rodenkirch was again about 10 to 14 feet from Ms. Kennedy

when she witnessed Ms. Kennedy tip another student, N.B., out of

his chair.

18. As was the ca se with C.J., N.B. fell to the floor and

was startled.

19. Ms. Rodenkirch did not say anything to Ms. Kennedy

after witnessing the incident with N.B. However, she was very

upset about what she witnessed that day and reported what she

saw to Ms. Kavanau gh after the children left school .

20. After hearing Ms. RodenkirchÓs description of what

happened in the class earlier that day, Ms. Kavanaugh called her

supervisor, the regional superintendant, and requested

direction.

21. The regional superintendant, Kelly Coker - Daniels,

instructed Ms. Kavanaugh to contact the Department of Children

and Families and the local school districtÓs investigative

branch.

22. Both of the aforementioned entities conducted

investigations . The local school district concluded that there

was Ðsubstantial evidence to sustain the charges of exercise of

poor judgment and inappropriate physical contact with students

against Robin Kennedy for her role in these incidents.Ñ

(emphasis in original ). Ba s ed on the investigation conducte d by

the Department of Children and Families, the Duval County Public

School System : (a) issued a letter of reprimand to Ms. Kennedy ;

and (b) notified her that, pending approval by the school board,

she would be suspended for 15 consecutive working days w ithout

pay.

23. Because of the events described above, the parents of

C.J. and N.B. requested that their children be transferred to

another third - grade class. At least one other student

transferred to a different class because she was worried that

M s. Kennedy would pull a chair out from under her.

24. During the final hearing in this matter, Ms. Kennedy

denied ever intentionally do ing anything that could injure a

student. During cross - examination, she responded affirmatively

when asked if M s. Rod enkirch was lying when she t estified that

she saw Ms. Kennedy tip C.J. and N.B. out of their chair s .

25 . However, the undersigned finds that M s. Rodenkirch was

a much more credible and persuasive witness than Ms. Kennedy.

26 . Therefore, the undersigned credits M s. RodenkirchÓs

tes timony and finds that Ms. Kennedy did tip over the chairs of

C.J. and N.B. on September 19, 2013, at Neptune Beach

Elementary.

27 . Without a doubt, tipping students out of their chairs

reduced Ms. KennedyÓs effective ness as a teacher. Th at is

underscored by the fact that students were transferred to other

third - grade classes due to Ms. KennedyÓs actions .

28. Ms. KennedyÓs conduct demonstrates that she failed to

make reasonable efforts to protect her students from mental

a nd/or physical harm . While it is very fortunate that none of

the students in the class suffered any serious physical

injuries, that might not have been the case if a student had hit

his or her head on a hard object after being tipped out of his

or her ch a ir.

29. Also, it is obvious that tipping a student out of his

or her chair c ould expose that student to unnecessary

embarrassment or disparagement.

30. Accordingly, Petitioner has proven by clear and

convincing evidence that Ms. Kennedy violated secti on

1012.795(1)(g) and (j) and rule 6A - 10.081(3)(a) and (e).

CONCLUSIONS OF LAW

31 . D OAH has jurisdiction over the subject matter and the

parties to this action in accordance with sections 120.569 and

120.57(1), Florida Statutes (201 6 ).

32 . The Commissi on is the state agency charged with the

certification and regulation of Florida educators pursuant to

chapter 1012.

3 3 . This is a proceeding in which Petitioner seeks to

impose discipline against 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.

DepÓt of Banking & Fin. v. Osborne Stern & Co. , 670 So. 2d

932 (Fla. 1996); Ferris v. Turl ington , 510 So. 2d 292 (Fla.

1987).

3 4 . 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 stat ed by the Florida Supreme

Court:

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 t he facts in issue. The

evidence must be of such a weight that it

produces in the mind of the trier of fact a

firm belief or conviction, without

hesitancy, as to the truth of the

allegations sought to be established.

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

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

1983) ) ; S ee 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 evid ence that is

ambiguous.Ñ Westinghouse Elec. Corp. v. Shuler Bros. , 590 So.

2d 986, 989 (Fla. 1991).

3 5 . Section 1012.796 describes the disciplinary process

for educators and provides in pertinent part:

(6) Upon the finding of probable cause, the

commi ssioner 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 comp laint if there are

disputed issues of material fact. The

administrative law judge shall make

recomme ndations 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 issuance of a final order.

(7) A panel of the commission shall enter a

final order either dismissing the

complain t 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 teaching

certificate. The denial may provide

that the applicant may not reapply for

c ertification, 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 may specify, including

requiring the certified teacher,

administrator, or superv isor to

complete additional appropriate

college courses or work with another

certified educator, with the

administrative costs of monitoring the

probation assessed to the educa tor

placed on probation . . . .

(e) Restriction of the authorized scope of

prac tice of the teacher, administrator,

or supervisor.

(f) Reprimand of the teacher,

administrator, or supervisor in

writing, with a copy to be placed in

the certification file of such person.

(g) Imposition of an administrative

sanction, upon a person who se teaching

certificate has expired, for an act or

acts committed while that person

possess ed 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 y ears or

less, or permanently.

(h) Refer the teacher, administrator,

or supervisor to the recover y

network program provided in section

1012.798 under such terms and

conditions as the commission may

specify.

3 6 . PetitionerÓs Administrative Complaint a llege s in

Count 1 that M s . Kennedy v iolated section 1012.795(1)(g) , which

subjects a holder of an educator certificate to discipline if he

or she Ðhas been found guilty of personal conduct that seriously

reduces that personÓs effectiveness as an employee o f the

district school board.Ñ As found above, tipping students out of

their chairs undoubtedly reduced Ms. KennedyÓs effective nes s as

a teacher. Students were transf erred from the class due to

Ms. KennedyÓs actions. Accordi ngly, Petitioner proved

Count 1 by clear and convincing evidence.

3 7 . Count 2 of the Administrative Complaint alleges that

M s . Kennedy violated section 1012.795(1)(j) , which subjects a

holder of an educator certificate to discipline for violating

Ðthe Principles of Professional Con duct for the Education

Profession prescribed by State Board of Education rules.Ñ Those

Principles a re set forth in rule 6A - 10.081.

38. Count 3 alleged that M s . Kennedy violated rule 6A -

10.081(3)(a) by failing to Ðmake reasonable effort to protect

the st udent from conditions harmful to learning and/or to the

studentÓs mental and/or physical health and/or safety.Ñ

39. Count 4 alleged that M s . Kennedy violated rule 6A -

10.081(3)(e) by intentionally exposing Ða student to unnecessary

embarrassment or disp aragement.Ñ

40 . Petitioner proved the al legations in Counts 2, 3,

and 4 , by clear and convincing evidence. As found above,

M s . Kennedy Ós conduct demonstrates that she failed to make

reasonable efforts to protect her students from mental and/or

physical harm, and it is very fortunate that none of the

students in the class suffered any serious physical injuries due

to her actions. Moreover, tipping a student out of his or her

chair obviously exposes that student to unnecessary

em barrassment or disparagem ent.

41 . The State Board of Education has adopted Florida

Administrative Code R ule 6B - 11.007 to provide certificate

holders with notice of what penalties can be expected for

violations of section 1012.795 and the Principles of

Professional Conduct.

4 2 . Petitioner is seeking a 1 2 - month suspension of

Ms. KennedyÓs educator certificate.

4 3 . Rule 6B - 11.007(2) (f) 2/ provide d penalties ranging from

probation to revocation for a violation of section

1012.795( 1)(g). The same penalty range applie d for vi olation s

of rule 6A - 10.081(3)(a) and (e). See Fla. Admin. Code R. 6 B -

11.007(2)( i)22.

4 4 . Given the circumstances of the instant case and the

applicable penalty ranges, a 12 - month suspension is appropriate.

4 5 . Furthermore, there are no mitigating factors

s ufficiently compelling or credible to persuade the undersigned

that a lesser penalty should be imposed .

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Education Practices Commissio n

ente r a final order suspending Robin Welch - KennedyÓs educatorÓs

certificate for 12 months .

DONE AND ENTERED this 5 th day of December , 2016 , in

Tallahassee, Leon County, Florida.

S

G. W. CHISENHALL

Administrative Law Ju dge

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 5 th day of December , 2016.

ENDNOTES

1/ Unless stated otherwise, all statutory references will be to

the 2013 version of the Florida Statutes . That was the version

in effect when the conduct at issue occurred and applies to

the instant case . Likewise, all ref erences to the Florida

Administrative Code will be to the version of the rules in

effect when the conduct at issue occurred. See Delk v. DepÓt of

ProfÓl Reg . , 595 So. 2d 966 , 967 (Fla. 5 th DCA 1992)(agreeing

with the appellantÓs argument that he could not Ðbe found guilty

of violating statutes effective in 1986 by virtue of conduct

occurring in 1984 and 1985.Ñ).

2/ The applicable version of rule 6B - 11.007(2)(f) refers to

section 1012 . 795(1)(f) as subjecting a teacher to discipline f or

Ñ[e]ngaging in per sonal conduct which seriously reduces

effectiveness as a district school board employee . Ñ Th e rule

should be referring to section 1012.795(1)( g) , which subjected a

teacher to discipline for being Ðfound guilty of personal

conduct that seriously reduces th at personÓs effectiveness as an

employee of the district school board.Ñ

COPIES FURNISHED:

Gretchen K. Brantley, Executive Director

Education Practices Commission

Department of Education

Turlington Building, Suite 316

325 West Gaines Street

Tal lahassee, Florida 32399 - 0400

(eServed)

Ron Weaver, Esquire

Post Office Box 770088

Ocala, Florida 34477 - 0088

(eServed)

Harold S. Lippes, Esquire

Lippes & Bryan, P.A.

700 Ponte Vedra Lakes B ou l e v ard

Ponte Vedra Beach, Florida 32082

(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

Turling ton Building, Suite 224 - E

325 West Gaines Street

Tallahassee, Florida 32399 - 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 excep tions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.