16-005844PL Pam Stewart, As Commissioner Of Education vs. Jannett Pusey Status: Closed Recommended Order on Wednesday, April 19, 2017.

Summary: Respondent's physical dragging of student to ground, instructing another student to pinch the student, and contacting parent of student to request positive, back-dated reference in violation of directive warranted revocation of certificate.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PAM STEWART, AS COMMISSIONER OF

EDUCATION,

Petitioner,

vs. Case No. 16 - 5844PL

JANNETT PUSEY,

Respondent.

_______________________________/

RECOMMENDED ORDER

This case came befor e Administrative Law Judge Darren A.

Schwartz of the Division of Administrative Hearings for final

hearing via video teleconference on February 14, 2017, at sites

in Tallahassee and Miami, Florida.

APPEARANCES

For Petitioner: Charles T. Whitelock, Esqui re

Charles T. Whitelock, P.A.

Suite E

300 Southeast 13th Street

Fort Lauderdale, Florida 33316

For Respondent: Melissa C. Mihok, Esquire

Melissa C. Mihok, P.A.

Suite 445

201 East Pine Street

Orlando, Florida 32801

STATEMENT OF THE ISSUE S

Whether Respondent Jannett Pusey (ÐRespondentÑ) , violated

the statutes and rules as alleged in th e Administrative

Complaint ; and, if so, what disciplinary measures should be taken

against her professional educator Ós certificate.

PRELIMINARY STATEMENT

By Administrative Complaint dated February 12, 2016, Pam

Stewart, as Commissioner of Education (ÐPet itionerÑ), seeks

disciplinary s anction s against RespondentÓs educatorÓs

certificate. On March 16, 2016, Respondent filed a request for a

formal administrative hearing to contest the allegations. On

October 7, 2016 , the Education Practices Commission (ÐEP CÑ)

referred the matter to the Division of Administrative Hearings

(ÐDOAHÑ) to assign an Administrative Law Judge to conduct the

final hearing.

This case was initially assigned to Judge F. Scott Boyd. On

October 14, 2016, an Order was entered setting th is matter for

final hearing on December 15, 2016. That same day, an Order was

entered transferring this matter to Judge Mary Li Creasy. On

November 21, 2016, this matter was transferred to the undersigned

for all further proceedings. On November 29, 201 6, Respondent

filed an unopposed motion to continue the final hearing. That

same day, the undersigned entered an Order granting the motion,

and reset the final hearing for February 14, 2017.

The final hearing commenced on February 14, 2017, as

s cheduled with both parties present. At the hearing, the

undersigned granted PetitionerÓs unopposed ore tenus motion for

official recognition of DOAH Case Nos. 13 - 4987 PL and 14 - 5940 TTS .

Petitioner presented the testimony of Luis Bello, Betty Pollard,

Kris ty Garcia, and S .C . PetitionerÓs Exhibits 1 through 5 were

received in evidence based on the stipulation of the parties.

Respondent testified on her own behalf. Respondent did not offer

any exhibits into evidence.

The final hearing Transcript was filed on February 28, 2017.

On March 2 0, 2017, Petitioner filed its proposed recommended

order. On March 21, 2017, Respondent filed an unopposed motion

for extension of time until March 27, 2017, to file her proposed

recommended order. On March 21, 2017 , the undersigned entered an

Order granting the motion. On March 27, 2017, Respondent filed

her proposed recommended order. The partiesÓ proposed

recommended orders were considered in the preparation of this

Recommended Order.

Unless otherwise indi cated, 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 investigat ing and

prosecut ing complaints against individuals who hold a Florida

EducatorÓs C ertificate and are alleged to have violated section

1012.79 5, Florida Statutes , and related administrative rules.

2. Respondent holds Florida EducatorÓs Certificate number

730057 (ÐcertificateÑ) . The certificate covers the areas of

Mathematics, Business Education , Teacher Coordinator of Work

Experience Programs , and Exceptional Student Education (ÐESEÑ)

and is valid through June 30, 2018.

3. At all times material to this case, Respondent was

employed as an Autism Spectrum Disorder (ÐASDÑ) t eacher at

Aven tura Waterways K - 8 Center (ÐAventuraÑ) in the Miami - Dade

County School District.

4. Prior to assignment to Aventura, Respondent worked at

various positions for the Miami - Dade County School District,

including life skills secretary, administrative position s,

treasurer, secretary - treasurer, outreach specialist, substitute

teacher, regular education teacher, ESE teacher, interventionist,

tutor, entrepreneur teacher, business teacher, career exploration

teacher , and math teacher. In total, Respondent was empl oyed by

the school district as a teacher for 22 years.

2014 - 2015 School Year

5 . During the 2014 - 2015 school year, Responden t worked at

Aventura as an ASD t eacher. RespondentÓs class consisted of

students in grades four through seven . M.C. was a fou rth grade

autistic student in RespondentÓs class. For the most part, M.C.

was non - verbal. K. and R. were two other autistic students in

RespondentÓs class, but they were higher functioning students

than M.C.

6 . Once a week, RespondentÓs students atten ded a special

area art class for one hour . The art class was taught by an

eleven - year educator, K risty Garcia.

September 17, 2014, Art Class Incidents

7 . On September 17, 2014, RespondentÓs students attended

Ms. GarciaÓs art class. During class, M.C . was sitting at a desk

coloring and t hrew some crayons on the floor. Thereafter,

Respondent came up from behind M.C., reached over him, grabbed

both of his arms, forcibly dragged him down to the floor, grabbed

both of his hands by placing her hands over his hands, and made

him pick up the crayons. Ms. Garcia was appalled at RespondentÓs

treatment of M.C.

8 . After picking up the crayons, M.C. returned to his

chair , put crayons in his mouth, and began to spit on the floor .

Thereafter, Respondent got a wipey, again grabbed M.C. by the

arms, pulled him out of chair, forcibly dragged him down to the

floor, grabbed both of his hands by placing her hands over his

hands, and made a large wiping motion to make him clean up the

spit.

9 . By the end of class, M .C. was upset and agitated. While

the students were lined up , about to depart the art class , and

return to RespondentÓs class , M.C. pinched K. Upon observing

this, Respondent told K . to pinch M.C. back. Ms. Garcia was

a ppalled and intervened, stating, Ð n o, we canÓt do that . . .

thatÓs not okay, especially in my class.Ñ K . was stunned ,

hesitated for a moment, but nevertheless followed RespondentÓs

order and reluctantly pinched M.C. In response, M.C. went a nd

pinched another student, R., who became upse t and started hitting

M.C.

10 . Ms. Garcia was shocked by what she witnessed. She

verbally responded by telling Respondent that she would not

tolerate RespondentÓs behavior in her classroom. Ms. Garcia

admonished Respondent that t he students should not be taught to

retaliate against each other. In response, Respondent simply

remained silent.

1 1 . RespondentÓs conduct on September 17, 2014, was

inappropriate , abusive , and seriously reduced her effectiveness

as a teacher . Respondent could certainly have projected

authority and corrected M.C.Ós behavior without the need to

resort to grabbing his arms, forcibly dragging him down to the

floor, and instructing another student to pinch M.C. in

retaliation for M.C. pinching another student.

1 2 . The persuasiv e and credible evidence adduced at hearing

clearly and convincingly establishes that Respondent is guilty of

conduct in violation of section 1 012.795(1)(g) and Florida

Administrative Code Rules 6A - 10.081(3)(a) and (e).

1 3 . By grabbing M.C.Ós arms, forcib ly dragging him to the

ground, and directing another student to pinch M.C., in

retaliation for M.C. pinching another student, Respondent

violated section 1012.795(1)(g) by engaging in conduct that

seriously reduced her effectiveness as a teacher.

1 4 . Re sp ondent also violated rule 6A - 10.081(3)(a) by

failing to make reasonable effort to protect her students from

conditions harmful to learning and/or to the studentÓs mental

and/or physical health and/or safety . Respondent also violated

rule 6A - 10.081(3)(e) by intentionally exposing a student to

unnecessary embarrassment or disparagement.

1 5 . The persuasive and credible evidence adduced at he a ring

fails to clearly and convincingly establish that Respondent is

guilty of violating rule 6A - 10.081(3)(b).

No vember 2014, Saturday Night Phone Call Incident

1 6 . On October 27, 2014, a conference - for - the - rec ord was

held between Respondent; Mr. Jose Bueno, Administrative Director

North Region Office; Mr. Lu is Bello, Principal of Aventura;

Ms. Hiralda Cruz - Ricot, Re spondentÓs union representative; and

Ms. Helen Pina, District Director. The purpose of the conference

was to address the Investigative Report of the School BoardÓs

Civilian Investigative Unit, which had established probable cause

for RespondentÓs allege d violations of various school board

policies relating to the aforementioned incidents which occurred

in Ms. GarciaÓs art class on September 17, 2014.

1 7 . Before the conference, Respondent was directed to

Ð[r]efrain from contacting, in person or by any ot her means, any

of the parties involved in this Investigation at any time.Ñ

Ms. Pina reiterated this directive in a written summary of the

conference issued October 29, 2014.

1 8 . Shortly after the conference - for - the - record, the

Department of Educatio nÓs Professional Practices Services

notified Respondent of their investigation into the M.C. matter.

1 9 . Notwithstanding th e aforementioned specific directive,

Respondent interfered with the investigation into her conduct on

September 17, 2014, by telep honing M.C.Ós mother ( Ð S.C. Ñ ) at

8:00 p.m., on the Saturday evening before Thanksgiving in

November 2014 . Dur ing this call, Respondent told S.C. that she

was going to lose her job . Respondent requested that S .C. have

her ex - husband write a favorable let ter on RespondentÓs behalf

and back date the letter to August 2014. The ca ll went on for

almost two hours -- such length that S.C . Ós phone battery ran out

of power.

20 . RespondentÓs contention that she contacted S.C. at the

behest of a Department of Educa tion employee in an effort to

obtain better educational services for M.C. is rejected as

unpersuasive and not credible.

2 1 . The persuasive and credible evidence adduced at hearing

clearly and convincingly establishes that RespondentÓs

effectiveness as a teacher was seriously reduced in violation of

section 1012.795(1)(g) because of RespondentÓs call to S.C .

2 2 . On December 10, 2014, RespondentÓs employment was

terminated by the Miami - Dade County School Board , because of the

incidents occurring in Ms. GarciaÓs art class on September 17,

2014, and the subsequent call by Respondent to S.C. on the

Saturday evening before Thanksgiving in November 2014 .

RespondentÓs termination was upheld following an evidentiary

hearing , and the issuance of the Recommended and Final O rders on

January 26, 2015 , and October 20, 2015, respectively, in the DOAH

case styled, Miami - Dade County School Board v. Jannett Pusey ,

Case No. 14 - 5940TTS.

2 3 . RespondentÓs certificate has also been the subject of

prior discipline. On June 3, 2013, Dr. Tony Bennett, as

Commissioner of Education, filed an Administrative Complaint

seeking disciplinary sanctions against RespondentÓs educatorÓs

certificate. The charges against Respondent arose from an

altercation Respondent had with a then 11 - y ear - old fourth grade

ESE student, E.A., on September 27, 2011.

2 4 . Following an evidentiary hearing in the DOAH case

styled Pam Stewart, as Commissioner of Education v. Jannett

Amelda Pusey , Case No. 13 - 4987PL , Judge Creasy found , in a

R ecommended O rder issued January 22, 2015, that Respondent failed

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

mental health and intentionally exposed E.A. to unnecessary

embarrassment and disparagement by yelling at E.A. loud enough to

be heard by anothe r class, punching E.A. in the arm which was

seen by students in another class, and throwing E.AÓs book bag

into her classroom.

2 5 . Taking into consideration that RespondentÓs conduct, in

striking the student, was inappropri ate under any circumstance ,

but also placing the conduct in perspective in relation to

RespondentÓs Ðotherwise incident - free teaching career,Ñ Judge

Cr easy recommended in a Recommended O rder that a written

reprimand be placed in RespondentÓs certification file and she be

placed on proba tion for a period of 90 school days. On

Septembe r 17, 2015, the EPC issued its Final Order upholding

Judge CreasyÓs Recommended O rder.

CONCLUSIONS OF LAW

2 6 . DOAH has jurisdiction over the parties and subject

matter of this case pursuant to secti ons 120.569 and 120.57(1),

Florida Statutes.

2 7 . Petitioner seeks to take action against RespondentÓs

educatorÓs certificate as provided in section 1012.795. A

proceeding to impose discipline against a professional license is

penal in nature, and Petiti oner bears the burden 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. Turlington , 510 So. 2d

292 (Fla. 1987).

2 8 . The "clea r and convincing evidence" standard requires

that the evidence be found 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 confusion as to the f acts 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. In re Davey , 645 So.

2d 398, 404 (Fla. 1994) ; Slomowitz v. Walker , 429 So. 2d 797, 800

(Fla. 4th DCA 1983).

2 9 . Whether Respondent committed the charged offenses is a

question of ultimate fact to be determined by the trier of fact

in the context of each alleged violation. Holmes v. Turlington ,

48 0 So. 2d 150, 153 (Fla. 1985); McKinney v. Castor , 667 So. 2d

387, 389 (Fla. 1st DCA 1995); McMill an v. Nassau Cnty. Sch. Bd. ,

629 So. 2d 226, 228 (Fla. 1st DCA 1993).

30 . Section 1012. 795 provide s in pertinent part that :

(1) The Education Practices Commission may

suspend the educator certificate of any

person as defined in s. 1012.01 (2) or (3) for

up to 5 years, thereby denying that person

the right to teach or otherwise be employed

by a district school board or public school

in any capacity requiring direct contact with

students for that period of time, after which

the holder may return to teaching as provided

in subsection (4); may revoke the educator

certificate of any person, ther eby denying

that person the right to teach or otherwise

be employed by a district school board or

public school in any capacity requiring

direct contact with students for up to 10

years, with reinstatement subject to the

provisions of subsection (4); may r evoke

permanently the educator certificate of any

person thereby denying that person the right

to teach or otherwise be employed by a

district school board or public school in any

capacity requiring direct contact with

students; may suspend the educator

ce rtificate, upon an order of the court or

notice by the Department of Revenue relating

to the payment of child support; or may

impose any other penalty provided by law, if

the person:

* * *

( g) Upon investigation, has been found

guilty of persona l conduct that seriously

reduces that personÓs effectiveness as an

employee of the district school board.

* * *

(j) Has violated the Principles of

Professional Conduct for the Education

Profession prescribed by State Board of

Education rules.

3 1 . Section 1001.02(1), Florida Statutes, grants the State

Board of Education authority to adopt rules pursuant to

s ections 120.536(1) and 120.54 to implement provisions of law

conferring duties upon it.

3 2 . Consistent with this rulemaking authority, th e State

Board of Education promulgated rule 6A - 10.081 , Principles of

Professional Conduct for the Education Profession in Florida.

Rule 6A - 10.081(3) p rovides, in pertinent part:

(3) Obligation to the student requires that

the individual:

(a) S hall make reasonable effort to protect

the student from conditions harmful to

learning and/or to the studentÓs mental

and/o r physical health and/or safety.

(b) Shall not unreasonably restrain a

student from independent action in pursuit of

learning.

* * *

(e) Shall not intentionally expose a student

to unnecessary embarrassment or

disparagement.

3 3 . Turning to the present case, Petitioner proved by clear

and convincing evidence that Respondent i s guilty of conduct in

violation of sections 1012.795(1)(g) and (j) , and rule s 6A -

10.081(3)(a) and (e) . As detailed above, Petitioner proved by

clear and convincing evidence that Respondent is guilty of

violating sections 1012.795 (1) (g) and (j), and rules 6A -

10.081(3)(a) and ( e ) , in that s he engage d in conduct that

seriously reduced her effectiveness as a teacher, failed to make

reasonable effort to protect a student from conditions harmful to

learning and/or to the studentÓs mental and/or physical health

and/or safety, and engaged in conduct which intentionally exposed

a student to unnecessary embarrassment or disparagement.

3 4 . Petitioner failed to prove by clear and convincing

evidence that Respondent is guilty of violating rule 6A -

10.081(3)(b).

Penalty

3 5 . The EPC adopte d disciplinary guidelines for the

imposition of penalties authorized by se ction 1012.79 5 in Florida

Administrative Code R ule 6B - 11.007 .

3 6 . Rule 6B - 11.007(2)(f) provides a range of penalties from

probation to revocation for a teacher , such as Respo ndent, who

violates section s 1012.795(1)(g ) and (j) .

3 7 . Rule 6B - 11.007(2)(i)6. provides a range of penalties

from reprimand to revocation for a teacher , such as Respondent,

who misuses corporal punishment/inappropriate methods of

discipline in vio lation of rules 6 A - 10.081 (3)(a) and (e). 1/

3 8 . Rule 6B - 11.007(2) provides that in addition to the

other disciplinary guidelines set forth in the rule, each should

be interpreted to include Ðprobation,Ñ ÐRecovery Network

Program,Ñ Ðletter of reprimand ,Ñ Ðrestrict scope of practice,Ñ

Ðfine,Ñ and Ðadministrative fees and/or costsÑ as additional

penalty provisions.

39. Rule 6B - 11.007(3) provide s :

(3) Based upon consideration of aggravating

and mitigating factors present in an

individual case, the Commission may deviate

from the penalties recommended in

subsection (2). The Commission may consider

the following as aggravating or mitigating

factors:

(a) The severity of the offense;

(b) The danger to the public;

(c) The number of repetitions of offenses;

(d) The length of time since the violation;

(e) The number of times the educator has been

previously disciplined by the Commission;

(f) The length of time the educator has

practiced and the contribution as an educator;

(g) The actual d amage, physical or otherwise,

caused by the violation;

(h) The deterrent effect of the penalty

imposed;

(i) The effect of the penalty upon the

educator's livelihood;

(j) Any effort of rehabilitation by the

educator;

(k) The actual knowledge of the educator

pertaining to the violation;

(l) Employment status;

(m) Attempts by the educator to correct or

stop the violation or refusal by the educator

to correct or stop the violation;

(n) Related violations against the educator

in another state inclu ding findings of guilt

or innocence, penalties imposed and penalties

served;

(o) Actual negligence of the educator

pertaining to any violation;

(p) Penalties imposed for related offenses

under subsection (2) above;

(q) Pecuniary benefit or self - gain inuring to

the educator;

(r) Degree of physical and mental harm to a

student or a child;

(s) Present status of physical and/or mental

condition contributing to the violation

including recovery from addiction;

(t) Any other relevant mitigating or

aggr avating factors under the circumstances.

40. In the instant case, there was no actual physical

injury caused to M.C. , and Respondent was a teacher for the

Miami - Dade County School Board for 22 years. On the other hand,

Respondent has demonstrated a pattern of improper behavior and

the improper use of force against defenseless, elementary - age

students in an effort to impose discipline. Moreover, in the

instant case, Respondent instructed another student to impose

physical force upon M.C. Such condu ct has absolutely no place in

the classroom. Finally, Respondent contacted S.C. , in violation

of a specific directive, in an effort to have S.CÓs ex - husband

write a positi ve letter of reference and back date the letter to

August 2014.

41. For a p rior incident in September 2011, involving the

improper use of force against a student, RespondentÓs educatorÓs

certificate was subjected to discipline in the form of a written

reprimand , and she was placed on 90 days Ó probation. For the

multiple incident s in Ms. GarciaÓs classroom in September 2014

and for RespondentÓs contacting S.C. in November 2014,

RespondentÓs employment with the School Board was terminated.

42. No aggravating or mitigating circumstances are present

in the instant case to th e extent necessary to warrant deviation

from the wide range of penalties already permitted within the

guidelines .

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Education Practices Commission

enter a final order revoking RespondentÓs educatorÓs certificate.

DONE AND ENTERED this 19th day of April , 2017 , in

Tallahassee, Leon County, Florida.

S

DARREN A. SCHWARTZ

Administrative Law Judge

Division of Administra tive 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 19th day of April , 2017 .

ENDNOTE

1/ Rule 6B - 11.007(2)(i)6. references Florida Administrative Code

R ule 6B - 1.006(3)(a) and (e). Rule 6B - 1.006 was transferred to

rule 6A - 10.081, effective January 11, 2013. At all times

material hereto, the substantive provisions of the rules were the

s ame.

COPIES FURNISHED:

Melissa C. Mihok, Esquire

Melissa C. Mihok, P.A.

Suite 445

201 East Pine Street

Orlando, Florida 32801

(eServed)

Charles T. Whitelock, Esquire

Charles T. Whitelock, P.A.

Suite E

300 Southeast 13th Street

Fort Lauderdale, Flori da 33316

(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 2 2 4 - E

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Gretchen Kelley Brantley, Executive Director

Education Practices Commission

Department of Education

Turlington Building, Suite 316

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to subm it written exceptions within

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

to this Recommended Order sho uld be filed with the agency that

will issue the Final Order in this case.