16-005551PL Pam Stewart, As Commissioner Of Education vs. Patti Guadagno Status: Closed Recommended Order on Monday, June 12, 2017.

Summary: In light of subsequent teaching performance, Petitioner did not prove personal conduct which seriously reduces effectiveness, but proved that Respondent obtained a teaching certificate by fraudulent means, which warranted license suspension.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PAM STEWART, AS COMMISSIONER OF

EDUCATION,

Petitioner,

vs. Case No. 16-5551PL

PATTI GUADAGNO,

Respondent.

-------------- ---- I

RECOMMENDED ORDER

On May 2, 2017, a duly-noticed hearing was held by video

teleconference at sites in Miami and Tallahassee, Florida, before

F. Scott Boyd, an Administrative Law Judge assigned by the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Charles T. Whitelock, Esquire

Charles T. Whitelock, P.A.

300 Southeast 13th Street, Suite E

Fort Lauderdale, Florida 33316

For Respondent: Melissa C. Mihok, Esquire

Melissa C. Mihok, P.A.

201 East Pine Street, Suite 445

Orlando, Florida 32801

STATEMENT OF THE ISSUES

The issues to be determined are whether Ms. Patti Guadagno

(Ms. Guadagno or Respondent) violated sections 1012.795(1) (a),

(g), or (j), Florida Statutes, and administrative rules, 11 as

alleged in the Amended Administrative Complaint; and, if so, what

is the appropriate sanction?

PRELIMINARY STATEMENT

On July 15, 2014, Pam Stewart, as Commissioner of the

Department of Education (Petitioner or Commissioner), filed an

Administrative Complaint against Respondent, alleging violations

of sections 1012. 795 (1) (a), (g), and (j) and administrative rules

of the State Board of Education. Respondent filed an Election of

Rights form on or about July 27, 2014, disputing allegations in

the Administrative Complaint and requesting a hearing pursuant to

section 120.57(1), Florida Statutes. On January 12, 2015, the

case was referred to the Division of Administrative Hearings

(DOAH) for assignment of an Administrative Law Judge, where it was

assigned DOAH Case No. 16-1850PL.

DOAH Case No. 16-1850PL was closed following a motion

indicating that a proposed settlement had been reached. Then,

when the parties were unable to enter into settlement, the case

was re-opened on September 22, 2016, as Case No. 16-5551PL. The

case was initially noticed for hearing on December 16, 2016, but

was continued three times before being heard on May 2, 2017. An

Amended Administrative Complaint was substituted pursuant to Order

issued on April 6, 2017. At hearing, Petitioner presented the

testimony of six live witnesses: Rodolfo Rodriguez, former

principal at Marjorie Stoneman Douglas Elementary School

(Douglas); Ana Marie Rodriguez, a fifth-grade teacher at Douglas;

Aleida Lorenzo, a teacher at Douglas; Rita Lopez-Phillips, a

teacher at Douglas; and Students - and _ , formerly fifth-

grade students of Ms. Guadagno. Petitioner's Exhibits P-1

through P-11, P-13, and P-14 were admitted without objection.

Exhibit P-7, a composite exhibit consisting of written student

statements and a statement of an investigator, was admitted over

objection that it was hearsay. Exhibit P-6, the deposition of

Branden Vicari, was admitted in lieu of live testimony, the

deponent found to be unavailable for hearing. Objection to

Exhibit P-12 on the basis of relevance was sustained, and it was

not admitted.

Respondent testified herself and presented the testimony of

Jacqueline Bismark, a teacher at Edison High School. Respondent

offered two exhibits, admitted without objection as Respondent's

Exhibits R-3 and R-4.

The Transcript was filed with DOAH on May 22, 2017.

Following a Joint Motion for Extension of Time to File Proposed

Recommended Orders, the deadline was extended to June 5, 2017.

Both parties submitted proposed recommended orders on June 5,

2017, but Respondent's was submitted after close of business, and

so was filed as of the following day. No prejudice to Petitioner

was found, however, and both orders were considered in the

preparation of this Recommended Order.

FINDINGS OF FACT

1. The Commissioner is responsible for investigating and

prosecuting allegations of misconduct against individuals holding

educator's certificates.

2. Ms. Guadagno holds Florida Educator's Certificate 608587,

covering the area of elementary education with an endorsement for

English for speakers of other languages (ESOL), valid through

June 30, 2020.

3. At all times relevant to the complaint, Ms. Guadagno was

employed by the Miami-Dade County School District (District) in

Florida, primarily as a teacher at either Douglas or Joe Hall

Elementary School.

4.

2/

5. Ms. Guadagno was notified by certified mail dated

March 6, 2012, that the Office of Professional Practices Services

of the Florida Department of Education (DOE) had opened

investigation Case Number 112-2307 into Ms. Guadagno's

The letter did not note that those

charges had been dropped about six months earlier.

6. There was testimony from Student - that on one

occasion during the academic year, Ms. Guadagno was

upset with - and pushed 11111 binder off of - desk . -

testified that when . stood up, she then "tossed" the chair to

the side. There was no testimony at hearing that a desk was

thrown . was asked about other incidents in which Ms. Guadagno

might have thrown a desk, but Student - had no direct

knowledge of any:

Q. You mentioned in your statement at

page 78 that she threw a desk. Was that the

same incident?

A. No.

Q. Okay. It was a separate incident?

A. That was, like, a rumor that I heard

or--it was a--because, like, all the classes

would talk about, like, her and what she

would do. So it was, like, someone had--was,

like, doing something with a desk and she,

like, pushed the desk into him.

Q. Okay.

A. But I didn't see it, so I don't know.

Although the allegation in the Amended Administrative Complaint

was that Ms. Guadagno "would throw binders and desks'' during

class--suggesting it was a repeated behavior--the only competent

witness on this allegation, Student _ , testified as to only

the throwing of a binder.

7. Ms. Guadagno slid or threw Student - •s binder to the

floor to embarrass 1111 or disparage 1111 in an attempt to get

Student - to resume working.

8. It was not clearly shown that Ms. Guadagno shoved paper

down Student - •s shirt, as alleged. Student - testified at

hearing that - saw Ms. Guadagno crumple up some paper and stuff

it down Student - •s shirt, saying "she just got frustrated

with .. ... This testimony was consistent with Student - •s

earlier written statement, provided on May 8, 2012. While -

Student - •s written statement, provided on April 9, 2013, did

state that Ms. Guadagno shoved a paper in - shirt, this was

hearsay and cannot be considered to supplement or explain the

live testimony of Student _ , which involved a different male

student. There is no competent evidence as to the allegation

involving Student -

9. On , while teaching her fifth-grade class

at Douglas, Ms. Guadagno instructed the students to rearrange

their desks. Later, when Ms. Guadagno pushed Student - •s desk

to get .. to move it back more quickly, some crayons fell.

Student - knelt down to pick up the crayons. Ms. Guadagno and

Student 1111 may have collided. Ms. Guadagno yelled at Student

- to get off of the floor and kicked - in the ribs. Student

- was not injured, stating that, "on a scale of one to ten, it

was a four, it wasn't really painful." Ms. Guadagno screamed at

the students, telling them they were ''animals" because they left

trash on the floor. She was angry, and her face was red.

10. On April 17, April 30, and May 8, 2012, student

statements regarding the events of , were taken by

police officers of Miami-Dade County Public Schools.

11. In a long letter dated June 20, 2012, addressed to the

Office of Professional Standards, Ms. Guadagno gave her version

of the events of While this letter, admitted as

Exhibit P-3, was identified by Petitioner as "Respondent's DOE

Letter," it is not at all clear that this letter was submitted to

DOE. In fact, considering when it was dated and how it was

addressed, it appears more likely that it was submitted to the

Office of Professional Standards of the Miami-Dade County Public

Schools rather than the Office of Professional Practice Services

of DOE. In this statement, Ms. Guadagno denied that she had

kicked a student. She stated that she was under the impression

that the investigation was to be closed due to inconclusive

findings. She pointed out several discrepancies in student

statements. She stated her belief that Student - made up the

incident in retaliation for earlier discipline taken against 111111 ,

specifically the writing of llll name on the board, which she

claimed had the effect of making 1111 ineligible to go on an end-

of-year trip to Disney World. She also noted that the students

had time to fabricate their statements.

12. In a "Conference for the Record" memorandum dated

June 29, 2012, Dr. Milagros Hernandez, district director,

reviewed Ms. Guadagno's employment history, summarized the

investigative report of the April 16, 2012, incident, and advised

Ms. Guadagno that District authorities would provide her with

formal notification of disciplinary action. The memorandum also

advised her that the investigative information would be provided

to DOE for possible licensure action.

13. In a letter dated August 30, 2012, Ms. Guadagno advised

Ms. Ana Rasco, administrative director of the Office of

Professional Standards of the Miami-Dade County Public Schools,

that she agreed to accept a 30-workday suspension without pay in

lieu of dismissal.

14. On September 5, 2012, the Miami-Dade County School

Board voted to suspend Ms. Guadagno from her teaching position at

Douglas for a period of 30 workdays .

15. It is not clear from the evidence at exactly what point

the DOE case was expanded beyond the allegation of

to include the incident of

However, Mr. Clinton Albritton, investigator for the Department

of Education, witnessed several student statements that were

executed on April 9, 2013. On June 10, 2013, Principal Rodriguez

provided an e-mail to Mr. Albritton, briefly describing what he

knew of the kicking allegation and advising that Student - was

a standard academic student with no outstanding behavior issues,

but noting that Ms. Guadagno had prior issues that had been

addressed through the Miami-Dade Office of Professional

Standards.

16. Then, by certified letter from DOE signed by

Mr. Albritton dated June 12, 2013, Ms. Guadagno was afforded the

opportunity to review materials collected and prepared in the

investigation of Case Number 112-2307 and to submit documents to

refute, explain, or mitigate the charges of misconduct against

her. The letter also advised that an informal conference had

been scheduled on July 1, 2013, to give her an opportunity to

respond to the allegations. However, the letter did not describe

the nature of the charges being investigated by DOE. While there

is no evidence that she participated in an informal conference on

July 1, 2013, Ms. Guadagno testified in her deposition that she

participated in some sort of conference on July 12, 2013, and

testified that she did submit a response. No copy of any

submission by Ms. Guadagno in response to this opportunity

appears in the record.

17. About seven months later, on January 17, 2014,

Ms. Guadagno signed an application for renewal of her educator's

certificate, which was scheduled to expire on June 30, 2015. The

application included numerous questions to be answered by checking

blocks marked "Yes" or "No." Ms. Guadagno's application indicated

a "no" response to the following two questions:

Do you have any current investigative action

pending in this state or any other state

against a professional license or certificate

or against an application for a professional

license or certificate?

Do you have any current disciplinary action

pending in this state or any other state

against a professional license or certificate

or against an application for a professional

license or certificate?

18. The final page of the legal disclosure portion of the

application for renewal contains the statements:

I do hereby affirm by my signature that all

information provided in this application and

supplement is true, accurate, and complete.

Warning: Giving false information in order to

obtain or renew a Florida Educator's

Certificate is a criminal offense under

Florida Law. Anyone giving false information

on this affidavit is subject to criminal

prosecution, as well as disciplinary action by

the Education Practices Commission.

It is uncontested that Ms. Guadagno signed her name in the space

provided immediately below these statements, and dated the form

January 17, 2014.

19. In her deposition of March 3, 2015, Ms. Guadagno

testified that she knowingly answered these questions in the

negative:

Q: I would refer you to the last two

questions.

A. Uh-huh, which I know, absolutely.

Q: And the no box is checked; is that

correct?

A: Uh-huh, that is correct.

Q: That was your intention at the time?

A: That was my intention. I had phoned my

attorney and asked him what I would check in

that situation and he had required that

checking no was absolutely correct.

Q: Which attorney was this?

A: Branden Vicari.

20. Later, following a ruling that Ms. Guadagno had waived

any attorney-client privilege with respect to communications from

or to her attorney regarding her responses to these two

questions, 31 Mr. Branden Vicari testified that he could not recall

whether or not he had a conversation with Ms. Guadagno regarding

the renewal of her application. The following colloquy then took

place:

Q: Okay. Well, the bottom line here is that

she claims that you told her to answer those

questions in the application. Do you recall

telling her-giving her advice to that effect?

A: I could say with 100 percent certainty

that I did not give her advice to check off no

on the two questions in question.

Q: And why is that?

A: I - I - well, I could tell you what I

would have advised her if I did have a

conversation with her.

Q: All right.

A: That would've been

Q: But you would not have advised her to

answer no?

A: That's correct .

21. Ms. Guadagno's testimony that Mr. Vicari advised her to

answer the two questions "no" is not credible, and his testimony

that he would not have given her that advice is credited.

Ms. Guadagno's testimony during both her deposition and at hearing

was argumentative, evasive, and generally not at all credible .

22. At the time Ms. Guadagno was completing her renewal

application, it is unclear whether the investigation was still

ongoing or whether the investigation phase had ended and the

decision to take disciplinary action had already been made. More

significantly, there is no evidence in this record to indicate

that Ms. Guadagno knew the status of the case against her. It

was clearly shown, however, that Ms. Guadagno gave those answers

in her application in order to obtain her license renewal with

reckless disregard for the truth.

23. Although Ms. Guadagno had already been suspended

without pay for 30 days by Miami-Dade County Public Schools for

the April 16, 2012, incident, and had completed that suspension

over a year before, she knew at the time of her application that

the District and DOE were separate entities.

PRIOR HISTORY

24. Ms. Guadagno has been employed by Miami-Dade County

Public Schools for about 29 years. During that time , she has

received many positive comments and accolades from her superiors

in observation reports and performance reviews . The only

"developing/needs improvement" rating in evidence was received by

Ms . Guadagno in the category of "professionalism'' during the 2011-

2012 academic year, based upon district disciplinary action for

some of the incidents discussed here. Since her subsequent

transfer , at her request, to Joe Hall Elementary School, she has

received only "effective" and "highly effective" ratings . Several

letters were admitted into evidence from appreciative students and

parents from various times throughout her teaching career ,

praising her for her teaching skills and dedication to students .

CONCLUSIONS OF LAW

25. The Division of Administrative Hearings has jurisdiction

over the parties and subject matter of this case pursuant to

sections 120.569 and 120 . 57(1) , Florida Statutes (2016).

26. Petitioner is responsible for filing complaints and

prosecuting allegations of misconduct against instructional

personnel. 1012.795(1) & 1012.796(6), Fla. Stat.

27. Petitioner seeks to take action against Respondent's

educator ' s certificate as provided in sections 1012.795 and

1012.796. A proceeding to impose discipline against a

professional license is penal in nature, and Petitioner bears the

burden to prove the allegations in the Amended Administrative

Complaint by clear and convincing evidence. Dep't of Banking &

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

v. Turlington, 510 So. 2d 292 (Fla. 1987).

28. The Florida Supreme Court has stated:

[C]lear and convincing evidence requires that

the evidence must be found to be credible;

the facts to which the witnesses testify must

be distinctly remembered; the testimony must

be precise and explicit and the witnesses

must be lacking in confusion as to the facts

in issue. The evidence must be of such

weight that it produces in the mind of the

trier of fact a firm belief or conviction,

without hesitancy, as to the truth of the

allegations sought to be established.

In re Henson, 913 So. 2d 579, 590 (Fla. 2005) (quoting Slomowitz v.

Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983)).

29. Respondent is substantially affected by Petitioner's

intended decision to discipline her Florida educator's certificate

and has standing to maintain this proceeding.

Count 1

30. Petitioner alleges in Count 1 that Respondent is in

violation of section 1012. 795 (1) (a). In January 2014, this

statute provided that the Education Practices Commission could

impose penalties if a person obtained, or attempted to obtain, an

educator certificate by fraudulent means.

31. The term ''fraudulent" is not defined by statute or rule.

In a civil case, the elements of fraud are: (1) a false statement

of material fact; (2) the maker of the false statement knew or

should have known of the falsity of the statement; (3) the maker

intended that the false statement induce another's reliance; and

(4) the other party justifiably relied on the false statement to

its detriment. See Cong. Park Off. II, LLC v. First-Citizens Bank

& Trust Co., 105 So. 3d 602, 606 n.4 (Fla. 4th DCA 2013) (quoting

Prieto v. Smoak, Inc., 97 So. 3d 916, 917 (Fla. 4th DCA 2012)).

In an administrative discipline context, the Education Practices

Commission need not license an applicant and wait for injury to

actually occur; the purpose of license discipline is to prevent

future injury to the public. Ma j or v. Dep't of Prof'l Reg., 531

So. 2d 411, 414 (Fla. 3d DCA 1988).

32. A fraudulent act does require deliberative intent,

however. See Fla. Bar v. Forrester, 818 So. 2d 477, 483 (Fla.

2002) (in order to show fraud, intent must be shown; intent may be

shown by conduct that is deliberate or knowing).

33. In the Amended Administrative Complaint, Petitioner

charged Respondent with answering two different questions

falsely. The first question was essentially "Do you have any

investigative action pending?'' The second was essentially "Do

you have ani disciplinary action pending?" Even assuming perfect

knowledge on the part of Respondent, it is hard to conclude that

her "no" answers to these two questions could BOTH have been

false. The two questions seem mutually exclusive with respect to

Case Number 112-2307: that is, her case would not be

simultaneously in both the investigative and disciplinary stages.

34. No evidence was introduced to clearly show whether the

investigation was still pending on January 17, 2014, or to the

contrary, whether the investigation phase was complete and

disciplinary action was pending. 41 Further, there was no evidence

as to Respondent's knowledge of the status of the case against

her. While it seems logical that the determination to initiate

disciplinary action might have been made immediately upon the

completion of the investigation, this is only speculation, for it

is possible that there was in fact a hiatus after the

investigation was completed, during which the question of whether

to pursue discipline or not was considered, before any decision

was made. No evidence was presented on the process that was

followed, or the dates of these phases. 51 In short, there was no

evidence from which it could be determined which one of

Respondent's two representations was actually false or (if there

was a hiatus, and through a timing coincidence) both were true.

35. However, as stated in Ocean Bank of Miami v. Inv-Uni

Investment Corp., 599 So. 2d 694, 697 (Fla. 3d DCA 1992:

To prove fraud a plaintiff must establish that

the defendant made a deliberate and knowing

misrepresentation which was designed to cause

detrimental reliance. Scienter, or guilty

knowledge, is an element of intentional

misconduct, which can be established by

showing actual knowledge, or that the

defendant was reckless or careless as to the

truth of the matter asserted. (Citations

omitted).

36. In the application for her renewed educator's

certificate completed on January 17, 2014, Respondent indicated

that there was no "current investigative action pending" and that

there was no "current disciplinary action pending." While

Respondent maintains she did not intend to file a fraudulent

application, it was shown that she received an initial notice of

the DOE investigation by certified mail dated March 6, 2012, and

then, by certified letter dated June 12, 2013, was afforded an

opportunity to review the investigative materials and to submit a

response to the charges of misconduct. Although there was scant

evidence that she availed herself of the scheduled hearing or the

opportunity to submit a response, she was clearly aware that an

investigation was ongoing as late as June of 2013.

37. Under these circumstances, Respondent had a clear duty

to ascertain the current status of the DOE case against her

before simply answering both questions in the negative. Without

this inquiry, her "no" answers to the questions--even though at

least one answer was probably technically correct--showed a

reckless disregard for the truth of her answers. She intended

for DOE to rely upon these representations to renew her license.

Her reckless action evinces the ''scienter" necessary to make these

representations on her application fraudulent.

38 . Petitioner proved by clear and convincing evidence that

Respondent attempted to obtain a renewed educator certificate by

fraudulent means, in violation of section 1012 . 795 ( 1) (a).

Count 2

39 . In Count 2 , Petitioner alleges violation of section

1012.795(1) (g). During the 2011-2012 academic year, this statute

provided for discipline if a teacher, upon investigation, was

found guilty of personal conduct that seriously reduced the

teacher ' s effectiveness as an employee of the district school

board.

40 . In some instances , serious reduction in effectiveness

may be inferred simply from the nature of the misconduct. Purvis

v. Marion Cnt y . Sch. Bd., 766 So. 2d 492 (Fla. 5th DCA 2000) (lying

under oath and resisting arrest was misconduct that supported

inference that effectiveness was impaired); Walker v. Hi g hlands

Cnty. Sch. Bd., 752 So . 2d 127 (Fla. 2d DCA 2000) (commotion in

class, including intoxicated student, showed class was out of

control such that no evidence of impaired effectiveness was

necessary; misconduct ''spoke for itself") . But here, the evidence

taken as a whole suggests only isolated instances of

inappropriate actions, in conjunction with effective teaching.

Any inference of impaired effectiveness is refuted by the direct

evidence. The record contains praise for Respondent's

effectiveness as a teacher from students and parents, and

importantly, a positive track record after the incidents. The

District, convinced Respondent was still an effective teacher,

returned her to the classroom in a different school after a 30-day

suspension. That conclusion was evidently correct, for her

performance reports during the several years following the

incidents indicate only "effective" and "highly effective"

ratings.

41. Petitioner failed to show by clear and convincing

evidence that Respondent was found guilty of personal conduct that

seriously reduced her effectiveness, in violation of section

1012. 795 (1) (g)

Count 3

42. Count 3 alleges that Respondent is in violation of

section 1012.795(1) (j), in that she has violated the Principles of

Professional Conduct for the Education Profession. Counts 4

through 7 go on to allege the specific violations of these

principles. Count 3 does not constitute a distinct disciplinary

violation.

Count 4

43. Count 4 alleges that Respondent violated Florida

Administrative Code Rule 6B-1.006(3) (a), 61 which at the time of

the alleged offenses provided that an educator:

Shall make reasonable effort to protect the

student from conditions harmful to learning

and/or to the student's mental and/or

physical health and/or safety.

44. The evidence showe d only a single instance of throwing a

binder, and the allegation that Respondent shoved paper down

Student - •s shirt was not clearly shown. However, Petitioner

clearly and convincingly showed that Respondent kicked Student

- in the ribs. No less than ten student statements 71

substantially corroborated Student - •s dire c t testimony.

Respondent's contention that Student - and the other children

in the class conspired to fabricate the entire incident in

retaliation for Respondent's action in placing Student - •s name

"on the board" is rejected. Student - told the teacher in the

immediately following class what had happened. While there were

minor discrepancies in the testimony as to the number of kicks,

whether the kick was to the ribs, stomach, or back, and in other

details, there is little doubt as to the truth of the material

allegati o n. Petitioner did not clearly establish that there was

more than one kick, but this is irrelevant to the charge in the

Amended Administrative Complaint.

45. Petitioner proved by clear and convincing evidence that

Respondent violated rule 6B-1. 006 (3) (a).

Count 5

46. Count 5 alleges that Respondent violated rule 6B-

1.006(3) (e), which provided that an individual shall not

intentionally expose a student to unnecessary embarrassment or

disparagement.

47. This rule requires a finding of intent on the part of

the teacher. The throwing of Student - 's binder onto the

floor was an act that Ms. Guadagno intended to cause embarassment

and disparagement to Student - to make llll resume working.

48. The courts have held that a violation of this rule

occurs when a teacher makes a "conscious decision not to comply

with the rule." Langston v. Jamerson, 653 So. 2d 489, 491

(Fla. 1st DCA 1995).

49. Petitioner proved by clear and convincing evidence that

Respondent violated rule 6B-1.006(3)(e).

Count 6

50. Petitioner alleges in Count 6 that Respondent violated

Florida Administrative Code Rule 6A-10.081(5) (a), which since

January 11, 2013, has provided that an individual shall maintain

honesty in all professional dealings.

51. Respondent's submission of a renewal application with

reckless diregard for the truthfulness of her representations

that there was no investigative action or disciplinary action

pending against her professional license failed to maintain

honesty in her professional dealings.

52. Petitioner proved by clear and convincing evidence that

Respondent violated rule 6A-10. 081 (5) (a).

Count 7

53. Count 7 charges Respondent with violation of rule 6A-

10. 081 (5) (h). In January 2014, this rule provided that an

individual shall not submit fraudulent information on any

document in connection with professional activities.

54. As discussed earlier, Respondent's reckless disregard

for the truthfulness of her representations constituted a

fraudulent submission on her renewal application document,

submitted in connection with her professional activities.

55. Petitioner proved by clear and convincing evidence that

Respondent violated rule 6A-10.081 (5) (h) .

Penalty

56. The Education Practices Commission adopted disciplinary

guidelines for the imposition of penalties authorized by section

1012.795 in Florida Administrative Code Rule 6B-ll.007.

57. In January 2014, rule 6B-11.007(2) (a)l. provided that

probation to revocation was the appropriate range of penalty for

obtaining or attempting to obtain a Florida educator's

certificate by fraudulent means in violation of section

1012. 795 (1) (a).

58. In April 2012, rule 6B-11.007(2) (i)16. provided that

probation to revocation was the appropriate range of penalty for

"[f]ailure to protect or supervise students in violation of

paragraph 6B-1.006(3) (a), F.A.C."

59. In January 2014, rule 6B-11.007(2) (i)22. provided that

probation to revocation was the appropriate range of penalty for

other violations of the Principles of Professional Conduct and

the Florida Administrative Code.

60. Rule 6B-11.007(3) provided:

(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 damage, 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;

(1) 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 including 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

aggravating factors under the circumstances.

61. No aggravating or mitigating circumstances are present

here to the extent necessary to warrant deviation from the wide

range of penalties already permitted within the guidelines.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of

Law , it is

RECOMMENDED that the Education Practices Commission issue a

final order finding Respondent, Patti Guadagno , in violation of

sections 1012.795(1) (a) and (j), Florida Statutes , and Florida

Administrative Code Rules 6B-1. 006 (3) (a) and (e) and 6A-

10. 081 (5) (a) and (h). It is FURTHER RECOMMENDED that the

Education Practices Commission suspend her educator's certificate

for a period of one year.

DONE AND ENTERED this 12th day of June, 2017, in

Tallahassee, Leon County , Florida.

F . SCOTT BOYD

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee , Florida 32399-3060

[phone]

Fax Filing [phone]

www . doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 12th day of June, 2017 .

ENDNOTES

1 1 References to Florida Statutes or administrative rules are to

the versions in effect at the time of the alleged offenses in the

spring of 2012 through early 2014, except as otherwise indicated.

Section 1012.795 was not amended during this time period and the

language found in the 2011 compilation of the Florida Statutes

remained effective. Respondent's assertion that Florida

Administrative Code Rule 6A-5.056 was amended effective July 8,

2012, is correct, but irrelevant to these proceedings involving

intended action by the Education Practices Commission.

21 This information from the Conference for the Record

memorandum, as well as other information relating to the

_ , is considered solely as it bears upon the possibility that

Ms. Guadagno might not have been aware of the existence, scope, or

duration of the Department's later investigation, and not to prove

the truth of the allegation. Ms. Guadagno was not charged with

in this case.

3/ See Andrade v. State, 773 So. 2d 1238 (Fla. 3rd DCA 2000).

41 It may be that DOE does not track the specific dates on which

an investigative action is completed or when a disciplinary action

begins, or even operate with these as distinct phases. See

Stewart v. Annette Jones Walker, Case No. 14-2705PL (Fla. DOAH

Feb. 6, 2015; Fla. EPC May 18, 2015), in which the Commissioner's

witness could offer no explanation of what constituted "pending

discipline." The Final Order there affirmed the Administrative

Law Judge's conclusion that it "was not unreasonable, given the

structure of the application, for her to answer 'no' to the

question as phrased, especially in light of the information

sought in the legal disclosure supplement." If there are not

distinct phases in a DOE case against an educator, or if the

transition dates between these phases are not documented and

conveyed to applicants, perhaps the questions on the application

should be revised, as further discussed below.

51 This tedious analysis of the different "phases'' of the DOE

case against Respondent seems irrelevant from a policy perspective

(because it would seem that DOE would want applicants to reveal

the existence of any DOE case against them, without regard to the

phase it might be in), but is compelled by the current wording of

the application, which specifically requires an applicant to

consider these distinct phases, under penalty of criminal and

administrative sanction.

6 1 In counts 4 and 5, the Commissioner yet again has failed to

charge violations of Florida Administrative C o de rules that were

actually in effect on the date of the alleged conduct. Florida

Administrative Code Rule 6A-10.081, referenced in the Amended

Administrative Complaint, was not effective until January 11,

2013, after the end of the 2011-2012 academic year. Rule 6B-

1.006 was still in effect during the relevant time, and is cited

here. The language of the rule was not materially changed and

was set out sufficiently in the Amended Administrative Complaint.

No prejudice to Respondent is found.

71 The written statements of the students are hearsay, but under

section 120.57(1) (c) may be used in an administrative hearing to

supplement or explain other competent evidence, as discussed at

hearing.

COPIES FURNISHED:

Gretchen Kelley Brantley, Executive Director

Education Practices Commission

Department of Education

Turlington Building, Suite 316

325 West Gaines Street

Tallahassee, Florida 32399-0400

(eServed)

Charles T. Whitelock, Esquire

Charles T. Whitelock, P.A.

300 Southeast 13th Street, Suite E

Fort Lauderdale, Florida 33316

(eServed)

Melissa C. Mihok, Esquire

Melissa C. Mihok, P.A.

201 East Pine Street, Suite 445

Orlando, Florida 32801

(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 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 exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.