17-003861PL Pam Stewart, As Commissioner Of Education vs. Adam Souilliard Status: Closed Recommended Order on Tuesday, November 21, 2017.

Summary: Petitioner proved that Respondent left students unsupervised, warranting a 30-day suspension of his educator's certificate.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PAM STEWART , AS COMMISSIONER OF

EDUCATION ,

Petitioner ,

vs. Case No. 1 7 - 3 861 PL

ADAM SOULLIARD ,

Respondent .

/

RECOMMENDED ORDER

This case was heard on September 6 , 201 7 , in Gainesville ,

Florida, before E. Gary Early, an Administrative Law Judge

assigned by the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Ron Weaver, Esquire

Post Office Box 770088

Ocala, Florida 34477 - 0088

For Respondent: Eric J. Lindstrom, Esquire

Egan, Lev, Lindstrom & Siwica, P.A.

Post Office Box 2231

Orlando, Florida 32802

STATEMENT OF THE ISSUE S

Whether Respondent violat ed section 1012.795 (1)(j) , Florida

Statutes , and Florida Administrative Code R ule 6A - 1 0.081 ( 2 )(a) 1 . ,

as alleged in the Administrative Complaint ; and, if so, the

appropriate penalty.

PRELIMINARY STATEMENT

On January 13, 2017 , the Commissioner of Education issued

an Administrative Complaint against Respondent which alleged :

3. Upon employment, Respondent was made

aware of the following Alachua County School

District Policy regarding supervision of

students:

Subject to the approval of the

principal or his designee, a teacher

may leave the campus of his

particular school if appropriate

arrangements are made to insure that

students are not left un supervised.

Approval is required for each

circumstance or situation. The

principal or his designee will not

unrea sonably deny such a request.

A teacher will use this privilege

only in unusual circumstances.

4. On or about April 7, 2016, Respondent

received an email from the school Principal

reminding teachers that Ðif you choose to

allow students in your room during lunch,

you are assuming responsibility for

supervising them.Ñ

5. Despite the policy and direction

described in paragraphs 3 and 4 her ein, on

or about May 12, 2016, Respondent left

students in his classroom unattended during

lunch for approximately 15 minutes.

Respondent left campus during that time for

purposes of buying his own lunch .

6. While unsupervised as alleged in

paragraph 5 herein, a male student, B.S.,

sexually assaulted a female student, B.H.,

in RespondentÓs classroom closet.

Respondent timely filed an election of rights by which he

exercised a settlement option and, if agreement could not be

reached, requested a formal hearing. 1 / On July 7, 2017, t he

matter was referred to the Division of Administrative Hearings

for a formal evidentiary hearing.

The hearing was scheduled for September 6, 2017. O n

August 28, 2017 , the parties filed their Joint Pre - hearing

Statement of Stipulated Facts, which contained two stipulations

of fact, each of which is ad opted and incorporated herein.

The final hearing was convened on September 6 , 201 7 , as

scheduled. At the final hearing, Petitioner presented the

testimony of David Shelnutt, p rincipal of Gainesville High

School ( GHS ) ; Candi Conyers, clerical assistant in the GHS

deanÓs office; Stephen C. Bauer, a physical education ( P.E. )

teacher at GHS ; Robin Gantt, d ean of s tudents at GHS ; Paul

White, a ssistant s uperintendent for Operations for Alachua

County Schools; William Calsam, III, supervisor of human

r esources for Alachua County Schools; and Syvetta Flowers,

mother of female student B.H. PetitionerÓs Exhibits 3, 4, 7, 8,

12 through 17 , 19 through 21, 25 , 28, and 29 were received into

evidence.

Respondent testified on his own behalf and presented the

testimony of Michael B. DeLucas, who was, at the time of the

alleged incident, a ssistant p rincipal for Student S ervices at

G HS ; Alison Nadelberg, an ESE teacher at GHS ; Kevin Kaufman, an

ESE teacher at G HS ; and Susan Gornto, an ESE teacher at G HS .

Respondent Ós Exhibit s 1 through 3 and 15 were received in

evidence .

A one - volume Transcript of the proceedings was filed on

October 5 , 201 7 . By rule, parties are allow ed 10 days after

filing of the t ranscript at DOAH to submit proposed recommended

orders (PROs). On October 9, 2017, Respondent filed an

unopposed motion to extend the time for filing PROs by 10 days.

The motion was granted . B oth parties timely filed their PROs on

October 25, 2017, and both have been considered in the

preparation of this Recommended Order .

The actions that form the basis for the Administrative

Complaint occurred o n Ma y 12, 201 6 . This proceeding i s governed

by the law in effect at the time of the commission of the acts

alleged to warrant discipline. See McCloskey v. DepÓt of Fin.

Servs. , 115 So. 3d 441 (Fla. 5th DCA 2013). Accordingly, all

statutory and regulatory references are to the version s in

effect on that date , unless otherwise specified.

FINDINGS OF FACT

1. The Florida Education Practices Commission is the state

agency charged with the duty and responsibility to revoke or

suspend, or take other appropriate action with regard to

teachi ng certificates , as provided in sections 1012.795 and

1012.796 , Florida Statutes . § 1012.79(7), Fla. Stat . (2017).

2. Petitioner, as Commissioner of Education, is charged

with the duty to file and prosecute administrative complaints

against individuals who hold Florida teaching certificate s and

who are alleged to have violated standards of teacher conduct.

§ 1012.796(6), Fla. Stat . (2017).

3 . Respondent holds Florida Educator's Certificate 880641,

covering the areas of Middle Grades Integrated Curriculum,

Physical Education, Social Science , and Exceptional Student

Education (ESE) , which is valid through June 30, 2022. At all

times pertinent hereto, Respondent was employed as an ESE

t eacher at GHS in the Alachua County School D istrict.

4 . Respondent began his teaching career at GHS in 2002

teaching ESE classes.

5 . The incident that forms the basis for this proceeding

occurred on May 12 , 2016, during the 2015 - 2016 school year.

6 . T eachers employed by the Alachua County School Board

are subject to the Collective Bargaining Agreement between the

Alachua County School Board and the Alachua County Education

Association, the local teachersÓ union. Article IX,

Section 21 (a) , of the Collective Bargaining Agreement , which was

in effect during the 2015 - 2016 school year, provides that :

Subject to the approval of the principal or

his designee, a teacher may leave the campus

of his particular school if appropriate

arrangements are made to insure that

students are not left unsupervised.

Approval is required for each circumstance

or situation. The principal or his designee

will not unreasonably deny such a request.

A teacher will use this privilege only in

unusual circumstances.

7 . At the beginning of each school year, before students

report, a faculty pre - planning meeting is held at GHS to go over

information provided by the school district. Supervision of

students is among the topics of discussion , and teachers are

advised that they are not to leave students unsupervised in

their classrooms. The reason for the instruction is obvious --

GHS, being responsible for the safety of its students, should

take all reasonable measures to ensure their safety on campus.

8 . In addition to the instruction provided at the pre -

planning meeting, GHS sent periodic emails to teachers

throughout the year reiterating that students were not to be

left unsupervised in classrooms.

9 . On April 5, 2016, an email was sent directed to the

general problem of unsupervised students Ðwalking around A, B,

and C hallwaysÑ during the lunch periods. The email noted that

some teachers allowed students to come to their classrooms

during the lunch period for mentoring, which was recognized as a

laudable activity. One teacher responded the next day

expressing appreciation for the reminder, noting that Ð[t]here

are students all over upstairs in A & B wings . They also hang

out in the stairwells, especially on the West end.Ñ

10 . On April 7, 2016, Mr. Shelnutt sent an email to all

teachers reiterating that it was ÐfantasticÑ that teachers

allowed students in their classrooms during the lunch period,

but that students were not to be Ðroaming around . Ñ The email

emphasized that Ði f you chose to allow students in your

classroom during your lunch, you are assuming responsibility for

supervising them.Ñ 2 /

11 . During the lunch shifts, school employees were

routinely stationed in areas where general education students

were allowed to eat lunch in order to provide adult supervision

while their teachers took their 30 - minute lunch break . As will

be described herein, ESE students were subject to a different

lunchtime regimen.

12 . During the 2015 Î 16 school year, Respondent was

assigned to teach a self - contained class of 4 to 7 students with

intellectual disabilities. The Ðself - containedÑ setting means

that s tudents generally remained in the Gaines building on the

GHS campus with other students with disabilities.

13 . Re spondentÓs students were intellectually disabled,

but functioned at a higher level than their ESE peers in other

classrooms, who had more severe disabilities. RespondentÓs

students identified more with general education students, and

were much more likely to interact with general education

students than with those in the other ESE classrooms. 3 /

14 . The Gaines building was a Ðcommunity of classrooms,Ñ

in that a teacher could request and receive assistance from

teachers or paraprofessionals in the other two classrooms in the

building.

15 . The ESE classrooms surround a small courtyard at the

Gaines building. The courtyard has a table and seating , and

students would most often sit there to eat their lunch. On e of

the three ESE teachers usually oversaw the courtyard , and the

courtyard could be seen from the ESE classroom windows . There

is also a basketball court and track behind the Gaines building,

which were occasionally used by ESE students before and after

school, and during lunch period.

16 . The school day at GHS has six periods. Respondent

taught ESE students for five of the six daily periods. During

the period when RespondentÓs ESE students were at their P.E.

class, Respondent was assigned to teach a general education

history class.

17 . Mr. Shelnutt indicated that Ð[e]very teacher [at GHS]

should have a 30 - minute duty free lunch in addition to a

planning period.Ñ Mr. De L ucas testified that Respondent was in

Ða very unique s ituation . The other self - contained rooms had

multiple paraprofessionals . He did not have multiple

paraprofessionals. Ñ 4 / Consequently, Respondent was the only

teacher in his classroom and was assigned students every period

of the school day with no planning period .

18 . Because of the circumstances, if it became necessary

for Respondent to leave the classroom, he would ask one of the

teachers or paraprofessionals from the other ESE classrooms to

watch his class.

19 . Unlike the situation that was the subject of the

April 5, 2017 and April 7, 2017 , emails referenced above, which

appears to describe a general education student lunch period ,

ESE Ðself - containedÑ students were allowed to get their lunches

and then r eturn to their classrooms, to avoid the crowds and the

lines. It was apparently not uncommon for special needs

students to go to the cafeteria during the 20 - minute break

between the end of A - Lunch at around 11:55 a.m. and the

beginning of B - Lunch at 12:15 p.m. when there is not a standard

lunch shift.

20. RespondentÓs only break in the school day was during

his studentsÓ lunch period, from 12:15 p.m. to 12:45 p.m . Since

ESE students typically had lunch in the Gaines building

courtyard or their classrooms, ev en RespondentÓs Ð duty free

lunch Ñ was not free of duties.

21 . On May 12, 2016, Respondent released his students --

which on that day were only B.S., B.H., and N.C. -- around

12:05 p.m. to get lunch from the cafeteria. RespondentÓs

students had been watc hing a movie, and wanted to finish the

movie during the lunch period. Respondent agreed to let the

students return to his classroom to finish watching the movie.

22 . Before the students returned to the classroom,

Respondent received a telephone call from the baseball booster

club president regarding an upcoming banquet. When the students

returned to the classroom, Respondent continue d the tele phone

call outside .

23 . When Respondent end ed the tele phone call, he realized

that the lunc h period was Ðcounting down.Ñ Respondent left the

Gaines Building , with the students unattended in his classroom,

and drove to a sandwich shop several blocks away . There was no

explanation as to why Respondent did not ask one of the other

ESE teachers or paraprofessionals to watch his classroom.

24 . During RespondentÓs absence from the classroom,

a nother of RespondentÓs students, J.H., entered the classroom

and saw male ESE student , B.S. , emerging from a storage closet

in RespondentÓs classroom , and thereafter discovered female ESE

student, B.H., in the closet crying. J.H. went to the office

and told Ms. Conyers what he had seen. Ms. Conyers radioed for

a dean or an administrator to report to RespondentÓs classroom.

Ms. Gantt and Mr. Bauer arrived at the classroom at about the

same time. Ms. Gantt questioned B.H. as to what had happened,

and Mr. Bauer went to the nearby basketball court where B.S. had

been reported to have gone. B.H. and B.S. were taken to the

DeanÓs office for questioning. At so me point after Ms. Gantt

and Mr. Bauer arrived at RespondentÓs classroom, and

approximately 15 minutes after his departure from campus,

R espondent returned from the sandwich shop.

25 . There was considerable evidence devoted to the events

that occurred in RespondentÓs classroom closet during his

absence. All of the evidence was hearsay. However, what was

established (and agreed upon) is this: On May 12, 2016 , while

Respondent was absen t from his classroom, during which time

students were left unsuper vised in the classroom, an event

occurred that was of sufficient severity that the police were

called in, that the police conducted an investigation, and that

the police ultimately completed a sworn complaint charging B.S.

with lewd and lascivious molestat ion of B.H.

26 . Alachua County Public S chools charged Respondent with

violating school board policies regarding student supervision ,

specifically a policy that required teachers to obtain the

permission of the school principal before leaving school campus ,

and recommended his termination from employment .

27 . Respondent contested the recommendation of

termination. On February 16, 2017, the Alachua County School

Board , the Alachua County Education Association, and Respondent

executed a settlement a greement, providing that : (1) the

superintendent would rescind the recommendati on for RespondentÓs

termination; (2) Respondent would take an unpaid leave of

absence beginning March 1, 2017 , until June 6, 2017 ;

(3) Respondent would agree to complete Safe S chools online

training regarding classroom supervision and school safety ; and

(4) upon completion of the Safe Schools training, Respondent

would be returned to paid status as an employee of Alachua

County Schools.

28 . Respondent fulfilled the terms of the settlement

agreement and, with regard to the Safe Schools training,

exceeded the required courses.

29 . For the 2017 Î 2018 school year, Respondent has been

assigned as a P . E . teacher at the Sidney Lanier Center, a K - 12

public school in Alachua County. Sidney Lanier is a specialized

school for ESE students. The principal of Sidney Lanier was

aware of the events of May 12 , 201 6 , when Respondent was

assigned .

30 . It should be acknowle d ged that Respondent taught ESE

classes at GHS for 14 years without incident. He had no prior

discipline and received uniformly good evaluations. He was well

regarded as a teacher and a coach, and was generally

acknowledged to have had a positiv e impact on s tudents Ó lives .

Respondent expressed genuine remorse about leaving students

unattended in his classroom, and credibly testified that he

would never again do so . The incident did not involve

Respondent denigrating or disparaging students, or improperly or

abusively making physical con tact with student s .

31 . Nonetheless, Respondent violated a clear and direct

requirement that he not leave students unattended. Although he

believed his students would not engage in the activity

de scribed, such action on the part of a high school student was

certainly not unforeseeable.

32 . There was conflicting evidence as to whether B.H.Ós

mental health was actually affected by the incident. A

preponderance of the evidence indicates that it h ad some

negative effect. However, rule 6A - 10.081( 2 )(a) 1. Ðdoes not

require evidence that Respondent actually harmed [ a student ]'s

health or safety. Rather, it requires a showing that Respondent

failed to make reasonable efforts to protect the student fro m

such harm.Ñ Gerard Robinson, as CommÓ r of Educ. v . William

Randall Aydelott , Case No. 12 - 0621PL , RO at 76 (Fla. DOAH

Aug. 29, 2012; Fla. EPC Dec. 19, 2012). Under the circumstances

described herein, Petitioner proved that Respondent, though

without specific intent or malice, failed to make reasonable

effort to protect his students from conditions harmful to their

mental or physical health, or safety, pursuant to rule 6A -

10.081(2)(a)1.

CONCLUSIONS OF LAW

A. Jurisdiction

33 . The Division of Admini strative Hearings has

jurisdiction over the subject matter of this proceeding and of

t he parties thereto pursuant to s ections 120.569 and 120.57(1),

Florida Statutes (201 7 ) .

B. Standards

34 . Section 1012.795(1), which establishes the violations

that subject a holder of an educator certificate to disciplinary

sanctions , provides , in pertinent part, that :

(1) The Education Practices Commission may

suspend the educator certificate of any

perso n 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, afte r which the holder may return

to teaching as provided in subsection (4);

may revoke 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 for up to 10 years, with

reinstatement subject to the provisions of

subsection (4); may revoke 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 certificate, 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:

* * *

(j) Has violated the Principles of

Professional Conduct for the Education

Profession prescribed by State Board of

Education rules.

35 . Rule 6A - 10.081( 2 )( a ) 1. provides that:

(2) Florida educators shall comply with the

following disciplinary principles.

Violation of any of these principles shall

subject the individual to revocation or

suspension of the individual educatorÓs

certificate, or the other penalties as

provided by law.

(a) Obligation to the student requires that

the individual:

1. Shall make reasonable effort to protect

the student from conditions harmful to

learning and/or to the studentÓs mental

and/or physical health and/or safety.

C. Burden and Standard of Proof

36 . Petitioner bears the burden of proving the specific

allegations of wrongdoing that support the charges alleged in

the Administrative Complaint by clear and convincing evidence

before disciplinary action may be taken against the professional

license of a teacher . Tenbroeck v. Castor , 640 So. 2d 164, 167

(Fla. 1 st DCA 1994); § 120.57(1)(j), Fla . Stat . ; see also DepÓt

of Banking & Fin. , Div. of Sec. & Inv. Prot. v. Osborne Stern

and Co. , 670 S o. 2d 932 (Fla. 1996); Ferris v. Turlington ,

510 So. 2d 292 (Fla. 1987); Pou v. DepÓt of Ins. and Treasurer ,

707 So. 2d 941 (Fla. 3d DCA 1998).

37 . 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). The clear and convincing

evidence level of proof :

[E] ntails both a qualitative and

quantitative standard. The evidence must be

credible; the memories of the witnesses must

be clear and without confusi on; and the sum

total of the evidence must be of sufficient

weight to convince the trier of fact without

hesitancy.

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

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

1983) ) ; see also In re Henson , 913 So. 2d 579, 590 (Fla. 2005).

"Although this standard of proof may be met where the evidence

is in conflict, it seems to preclude evidence that is

ambiguous." Westinghouse Elec . Corp., Inc. v. Shuler Bros.,

Inc. , 590 So. 2d 986, 989 (Fla. 1st DCA 1991).

38 . Sec tion 1012.795 is penal in nature and must be

strictly construed , with any ambiguity construed against

Petitioner. Penal statutes must be construed in terms of their

lite ral meaning, and words used by the Legislature may not be

expanded to broaden the application of such statutes. Latham v.

Fl a . CommÓ n on Ethics , 694 So. 2d 83 (Fla. 1st DCA 1997);

see also Beckett v. DepÓt of Fin. S ervs . , 982 So. 2d 94, 100

(Fla. 1st DCA 2008 ) ; Dyer v. DepÓt of Ins. & Treas . , 585 So. 2d

1009, 1013 (Fla. 1st DCA 1991).

39 . The allegations set forth in the Administrative

Complaint are those upon which this proceeding is predicated.

Trevisani v. DepÓt of Health , 908 So. 2d 1108, 1109 (Fla. 1st

DCA 2005) ; s ee also Cottrill v. DepÓt of Ins. , 685 So. 2d 1371,

1372 (Fla. 1st DCA 1996). Due process prohibits the imposition

of disciplinary sanctions based on matters not specifically

alleged in the noti ce of charges. See Pilla v. Sch. Bd. of Dade

Cnty. , 655 So. 2d 1312, 1314 (Fla. 3d DCA 1995); Texton v.

Hancock , 359 So. 2d 895, 897 n.2 (Fla. 1st DCA 1978); see also

Sternberg v. Dep't of Prof'l Reg. , 465 So. 2d 1324, 1325 (Fla.

1st DCA 1985) ( Ð For the h earing officer and the Board to have

then found Dr. Sternberg guilty of an offense with which he was

not charged was to deny him due process. Ñ ). Thus, the scope of

this proceeding is properly restricted to those issues of fact

and law as framed by Petitio ner. M.H. v. DepÓt of Child. & Fam.

Servs. , 977 So. 2d 755, 763 (Fla. 2d DCA 2008).

D . Count s 1 and 2 - Section 1012.795(1)(j) and Rule 6A -

10.081( 2 )( a ) 1.

40 . Count 1 of the Administrative Complaint charge d

Respondent with violating section 1012.795(1)(j) by having

violated the Principles of Professional Conduct for the

Education Profession prescribed by State Board of Education

r ules. Thus, Count 1 does not constitute an independent

violation, but rather i s dependent upon a corresponding

violation of the rules constituting the Principles of

Professional Conduct.

41 . Count 2 of the Administrative Complaint charge d

Respondent with violating rul e 6A - 10.081( 2 )( a ) 1. by failing to

make reasonable effort to protect h is students from conditions

harmful to their mental or physical health , or to their safety .

42 . T he evidence in this case demonstrates that Respondent

left students unsupervised in his classroom for a period that

was more than momentary, and tha t a reasonably foreseeable event

occurred that resulted in negative effects as to at least one of

the students. By so doing, Respondent breached his duty to

supervise the students under his care as established by the

collective bargaining agreement and th e statutes and rules that

govern Florida teachers. See , e.g. , Doe v. Escambia C nty . Sch .

Bd. , 599 So. 2d 226 , 227 - 228 (Fla. 1st DCA 1992). A s such,

Respondent failed to make reasonable effort to protect his

students from conditions harmful to their mental or physical

health, or safety.

E. Penalty

43 . Florida Administrative Code Rule 6 B - 11.007(2)

establishes the range of penalties for violations of various

statutory and regulatory provisions as follows:

(2) The following disciplinary guidelines

shall apply to violations of the below

listed statutory and rule violations and to

the described actions which may be basis for

determining violations of particular

statutory or rule provisions. Each of the

following disciplinary guidelines shall 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 with applicable terms thereof as

additional penalty provisi ons. The terms

ÐsuspensionÑ and ÐrevocationÑ shall mean any

length of suspension or revocation,

including permanent revocation, permitted by

statute, and shall include a comparable

period of denial of an application for an

educatorÓs certificate.

44 . S ection 1012.795(1)(j) is not one of the specific

statutory provisions listed in the penalty guidelines . Rather,

it is incorporated in r ule 6B - 11.007(2) (j) , as among the

Ð [o] ther violations of Section 1012.795, F.S. ,Ñ with a guideline

penalty of Ð Probation Î Revocation or such penalty as is

required by statute . Ñ

45 . R ule 6B - 11.007(2) (i)16. lists a guideline penalty of

ÐProbation Î Revocation Ñ for Ð[f] ailure to protect or supervise

students Ñ in violation of rule 6A - 10.081 (3)(a) . 5 /

46 . Rule 6B - 11.007(3) establishes aggravating and

mitigating factors to be applied to penalties calculated under

the guidelines . As set forth by the parties in their PROs ,

there are both aggravating and mitigating factors evident in

this case. Although there are several mitigating factors, and

fewer ( though significant due to the consequences ) aggravating

factors , on the whole they balance themselves out in this case.

Thus, no deviation from the established penalty range is

warranted. 6 /

47 . Petitioner has suggested the penalty appropriate in

this case to be suspension of RespondentÓs educatorÓs

certificate for a period of six months, that he be issued a

letter of reprimand, that Respondent be require d to take a

college level course in classroom management, and that he be

placed on probation for a period of two years following his

suspension , citing Brogan v. Sanders , Case No. 98 - 0705 ( Fla.

DOAH Aug. 26, 1998 ; Fla. EPC Mar. 31, 1999) as a comparable

case.

48 . The situation in Brogan v. Sanders shares a number of

similarities to the situation here, but with some important

differences. While both teachers left children without

supervision, Mr. Sanders was in charge of an in - school

suspension class, with children already determined to be

discipli nary problems. Of equal or greater importance , as found

by the Brogan v. Sanders adminis trative law judge, was that

Mr. Sanders lied about his actions on the day in question (RO at

28) ; that Mr. Sanders had received a relatively minor prior

disciplinary p enalty (written reprimand) from the school board

for the incident (RO at 4 1 ) ; and that Mr. Sanders was not

forthright concerning his responsibility in th at matter , did not

admit his responsibility to stay with the students , and

a ttempted to lay the blame elsewhere (RO at 45.k.) .

49 . In stark contrast to the actions of Mr. Sanders,

Respondent was forthright about the event, accepted

responsibility for his action, and expressed sincere remorse.

Respondent has already accepted a de facto suspension from

teaching of more than three months, 7 / and met or exceeded the

other disciplinary penalties , including educational coursework,

meted out by the Alachua County School Board.

50. The general penalty suggested by Petitioner is not

unreasonable in isolation , but there should be recognition and

consideration of the de facto suspension already served, the

completion of educational coursework, and of RespondentÓs

unwavering acceptance of responsibility and remorse.

RECOMMENDATION

Upon consideration of the F in dings of F act and C onclusions

of L aw reached herein , it is RECOMMENDED that the Education

Practices Commission enter a final order finding that Respondent

violated rule 6A - 10.081( 2 )( a ) 1 . It is further recommended that

Respondent Ós educatorÓs certificate be suspended for a period of

30 days , that he be issued a letter of reprimand, and that he be

placed on probation for a period of two years following his

suspension , which penalty is within the range of penalties

established in rule 6B - 11.007(2) .

DONE AND ENTERED this 21st day of Nov ember , 201 7 , in

Tallahassee, Leon County, Florida.

S

E. GARY EARLY

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 21st day of Nov ember, 201 7 .

ENDNOTE S

1 / The Election of Rights form bore no date stamp or other

indicia of the date of its receipt by Petitioner. However,

there was no suggestion that the Election of Rights was

u ntimely, and its referral to DOAH suggests that it was not.

2 / Although the April 7, 2016 email was entitled Ð A - Lunch

S tudents, Ñ whose lunch period ended at 11:49 a.m., there would

be no reasonable or plausible reason to believe that it did not

apply equally to all lunch periods , nor would it be reasonable

to believe that the duty to s upervise described in the email

applied to fewer than all of the students at GHS.

3 / There was evidence that RespondentÓs students were a subset

of Community - Based Training (CBT) students. CBT students are

high - functioning ESE students who, though not on a regular

diploma track, spent part of their school day working in the

community in order to acquire skills that would allow them to be

sel f - sufficient after leaving high school. RespondentÓs

students were not ready to go out into the c ommunity, but were

able to do things around campus where there was more control and

focus.

4 / Mr. Kaufman, whose class of five students included the most

severely disabled children, had four paraprofessionals, for a

student to staff ratio of 1:1.

5 / Rule 6A - 10.081 was transferred from Florida Administrative

Code R ule 6B - 1.006 on January 11, 2013. T he penalty guidelines

rule continues to cite to rule 6B - 1.006 in setting penalty

ranges. R ule 6A - 10.081( 2 )(a) 1. is substantively identical to

the last i teration of rule 6B - 1.006(3)(a). Since the facts

alleged and the text of the rule allegedly violated were clear

for Count 2, and since there is no evidence that Respondent was

misled or harmed by the citation in the penalty guidelines to a

rule that is no longer in effect as numbered, the penalty

guideline in rule 6B - 11.007(2)(i)16. shall be applied to the

violation of rule 6A - 10.081( 2 )(a) 1 .

6 / Given the very broad penalty range of probation to revocation,

there is little deviation available.

7 / There was discussion that the leave without pay from March 1,

2017 until June 6, 2017 was not a Ðsuspension,Ñ but it

nonetheless had the same effect, i.e., t o prevent Respondent

from teaching and from being paid.

COPIES FURNISHED :

Gretchen Kelley Brantl ey, Executive Director

Education Practices Commission

Department of Education

Turlington Building, Suite 316

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Eric J. Lindstrom, Esquire

Egan, Lev, Lindstrom & Siwica, P.A.

Post Office Box 2 231

Orlando, Florida 32802

(eServed)

Ron Weaver, Esquire

Post Office Box 770088

Ocala, Florida 34477 - 0088

(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.