17-005375PL Pam Stewart, As Commissioner Of Education vs. Vadis Parson Status: Closed Recommended Order on Tuesday, January 16, 2018.

Summary: Petitioner proved that Respondent violated the Principles of Professional Conduct for the Education Profession in Florida. Recommended penalty of two years' suspension and one year of probation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PAM STEWART, AS COMMISSIONER OF

EDUCATION,

Petitioner,

vs. Case No. 17 - 5375PL

VADIS PARSON,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a disputed fact hearing in this cause

was held by video t eleconference between sites in Fort Myers and

Tallahassee, Florida, on November 13 , 2017, before Linzie F.

Bogan, Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For P etitioner: Charles T. Whitelock, Esquire

Charles T. Whitelock, P.A.

300 Southeast 13th Street

Fort Lauderdale, Florida 33316

For Respondent: Robert J. Coleman, Esquire

Coleman and Cole man

Post Office Box 2089

Fort Myers, Florida 33902

STATEMENT OF THE ISSUE S

Whether Respondent committed the violations alleged in the

Administrative Complaint, and, if so, the penalty that should be

imposed .

PREL IMINARY STATEMENT

On or about November 29, 201 6 , Petitioner, Pam Stewart, in

her capacity as Commissioner of Education (Petitioner), filed an

Administrative Complaint against Respondent, Vadis Parson

(Respondent). Respondent timely filed h er request for

a dministrative hearing, and on September 26 , 201 7 , the matter was

referred to the Division of Administrative Hearings (DOAH) for a

disputed fact hearing.

During the disputed fact hearing, Petitioner offered the

testimony of Neketa Watson, Adrienne McDowel l, Joseph Restino,

Andrew Brown, and Jevon Matthews. Respondent testified on her

own behalf and called no other witnesses to testify on her

behalf. Petitioner's Exhibits 1 through 3 and 7 through 1 0 were

admitted into evidence. RespondentÓs Exhibits 1 t hrough 10 were

also admitted into evidence.

A Transcript of the proceeding was filed with DOAH on

December 11, 2017 . Respondent filed a Proposed Recommended Order

on December 20, 2017, and Petitioner did the same on January 2,

2018. T he proposed r ecommen ded o rders submitted by the parties

have been considered by the undersigned.

FINDING S OF FACT

1. During all times relevant hereto, Petitioner served as

head of the Florida Department of Education, the state agency

charged with the responsibility of invest igating and prosecuting

complaints of violations of section 1012.795, Florida Statutes

(201 5 ), 1/ against teachers holding Florida educator certificates.

2. Respondent holds Florida Educator Certificate 7 25789 ,

covering the areas of middle school integrate d curriculum and

physical education , which is valid through June 30, 20 20 .

3. During all times relevant hereto, Respondent was

employed as a physical education teacher at Lehigh Acres Middle

School in the Lee County School District. Respondent has been a

Flori da e ducator for 24 years , all with the Lee County School

District.

4. The Administrative Complaint, as to the material

allegations, contends that Ð[o]n or about February 18, 2016,

Respondent engaged in a physical altercation with 13 - year - old,

female student, A.O., when A.O. refused to give Respondent A.O.Ós

cellphone [and that] Respondent held A.O. to the ground during

the altercation.Ñ

A. The Video

5. The altercation in question took place in the school

gymnasium (gym). Activities in the gym are monitored by at least

a single video surveillance camera. The images captured by the

video camera are somewhat grainy, but it is possible to glean

from the images the general nature of the interaction between

Respondent and the student in question; there is , however, no

audio associated with the surveillance video.

6. Respondent is seen on the surveillance video walking

around the gym while students (approximately 40) are positioned

on the floor throughout the gym. The video shows student A.O.

sitting on the gym floor with her back against the bleachers. It

appears from the surveillance video that the nearest student to

A.O. is approximately eight to ten feet away. The video also

shows that Respondent appears to weigh at least twice as much as

A.O. and stand at least four inches taller.

7. It is undisputed that Respondent, while moving about the

gym, observed A.O. using her cellphone.

8. The video shows Respondent moving towards A.O. W hen she

is approximately three feet from A.O. , Respondent communi cates in

some way to A.O. that she needs to give Respondent her cellphone.

The student, while continuing to sit on the floor, is then seen

either placing or attempting to place the cellphone in the right -

rear pocket of her pants. Respondent, without paus ing, then

positions herself over the student and attempts to remove the

cellphone from either the studentÓs pocket or hand. The student

then rolls onto her right side and positions herself so that her

right rear pocket is pressed against the gym floor. A t this

time, the student is in a near fetal position. Respondent, while

continuing to stand over the student, then tussles with the

student for about 10 seconds while attempting to take the

cellphone.

9. The student then extricates herself from Responden tÓs

grasp, and while rising from the floor is then pushed in the back

by Respondent , which then creates about an arms - length distance

between Respondent and the student. The student, while standing,

then turns towards Respondent and appears to swing at Re spondent

with her left hand. Respondent knocks away the studentÓs

extended left arm and then pushes the student onto the lower

bench portion of the bleachers. The student lands on her butt

and then immediately rises and moves towards Respondent.

10. Res pondent and the studentÓs arms then become

entangled. While their arms are entangled, Respondent pushes the

student back several steps, forces the student into a seated

position on the bleacher bench, and then pushes the student to

the gym floor. Respond ent then positions herself on top of the

student and subdues her by pinning her to the gym floor with her

right leg over the studentÓs left leg and her left leg across the

studentÓs upper back and shoulder area. Respondent released the

student after appro ximately 40 seconds.

11. Before releasing A.O., the video shows that many of the

students in class rushed to the area of the gym where the

altercation occurred, formed a semi - circle around Respondent and

A.O., and recorded the incident on their cellphon es. A cellphone

video capturing portions of the incident was admitted into

evidence , and on this video , a student is heard suggesting to

another student that the recording of the altercation should be

posted to YouTube.

B. Student A.O.

12. A.O. was in the eigh th grade when the incident with

Respondent occurred. A.O. did not testify at the disputed fact

hearing , but she did submit written statements to school

officials following the altercation with Respondent. 2 /

13. On February 22, 2016, A.O. provide d the following

written statement:

I was sitting down on my phone like some

other kids were doing to, not knowing I

wasnÓt allowed to use it because itÓs my

first day in gym. So Ms. Parsons said

give me the phone so I said no, IÓm

sorry Miss, and when I w ent to reach for

my pocket to put it in and she reached

down and pushed her elbow and arm up

against my neck and chest so I was on

the ground flat by that time and we

ended up both getting up and trying to

get the phone and she ended up pushing

me and then somehow she ended up holding

me down by holding my arms and sitting

on top of me. After she had pushed me

on the bleachers she had lightly hit my

leg so I hit her in her head.

14. On August 17, 2016, A.O. provided an additional written

statement , which reads as follows:

I would like to add, that when she was

above me after she put her forearm on me

I did not feel safe so I stood up. Also

when she had pushed me on the bleachers

and kept wrestling with me I had been

kicking her so she could leave me

alo ne. After I was escorted to ISS,

then Mr. RestinoÓs office, I was brought

to the clinic after he had seen the

video and Ms. Garcia took pictures of

all my red marks and some scratches,

they werenÓt deep though.

C. RespondentÓs Version of Events

15. On February 18, 2016, the date of the altercation in

question, Respondent prepared the following written statement:

This afternoon as I was walking around

the classroom monitoring the students, I

was checking to make sure that the

students were working on the ir projects.

I saw that the young lady in question

was on her phone. I asked her to give

me her phone and I reached my hand out

for the phone. She snatched it away and

I continued to ask her for the phone. I

took the phone and she said I wasnÓt

getting her phone and struggled with me.

I got the phone and she stood up and

punched me in my right ear. I pushed

her back and she came at me again so I

pushed her back again. She kicked me in

the stomach. I grabbed one of her arms

and her leg as she went to kick me again

and I brought her down to the floor. I

put my knee on her back as I held her

arm and leg. I told her that I could

not believe that she would do this over

a phone [and] that I probably would have

given it back to her at the end of the

class period since it was near the end

of the day. She said that she didnÓt

know that because she was new. I told

her even if she was new that you donÓt

hit a grown - up or a teacher like that.

I told her that I was going to let her

up. She said okay. By tha t time coach

McDowell came over and said th[at] coach

Steidl had called for assistance.

Deputy Matthews came in and I explained

what happened. He talked with her for a

few seconds. I asked him if I should

give him the phone or give it back to

her. He s aid to give it to her so I did

and they left. Later, I noticed that I

had some scratches and blood on my arm

and I went to the clinic to get my arm

treated.

16. On June 30, 2016, Respondent sent an email to the human

resources department for the School Board of Lee County. In this

missive Respondent notes, in support of her belief that she did

nothing wrong in this situation, that during the fracas with A.O.

Ðstudents were cheeringÑ for Respondent and that throughout the

incident she was merely Ðrespond ing to [A.O.Ós] inappropriate and

disrespectful behavior.Ñ

17. Respondent testified during the final hearing and her

testimony was in material part consistent with her written

statements.

D. Cellphone Policy

18. Ms. Neketa Watson was the principal of Le high Acres

Middle Sch ool during the 2015 - 2016 school year. According to

Ms. Watson, the Student Code of Conduct in effect at the time of

the incident in question provides as follows:

Students may possess cell phones and

other personal electronic devices while

on school grounds during regular school

hours, however they must be turned off

at all times unless utilized for an

approved activity. Cell phone usage is

allowed during non - instructional time or

for an approved activity. Possession of

all personal electronic devices,

including cell phones, is done at the

studentÓs own risk and the school

assumes no responsibility, legal or

otherwise, with regard to these items.

19. During the 2015 - 2016 school year, Ms. Watson sent

weekly emails to all school perso nnel reminding them about school

policy and procedures. The weekly reminders would often include

reference to the schoolÓs cellphone policy , which provides that

Ðif we see it, we hear it, we take the phone.Ñ The cellphone

policy reminders sent out by Ms. Watson also explained to school

personnel that they should not use physical force when attempting

to secure a cellphone from a student and that if a student

refused to turn over a phone when requested, then personnel

should Ðcall for an administrative adm inistrator who removes the

studentÑ and then processes the student for suspension.

20. Ms. Watson explained that she did not include the

reminder about the cellphone policy in each of her weekly emails

to personnel , but she specifically recalled having do ne so the

week of the incident in question. Ms. Watson testified that the

reminder was sent on Sunday night (February 14, 2016).

21. On February 18, 2016, Adrienne McDowell was employed by

the School Board of Lee County as an educational paraprofessional

for physical education and was assigned to Lehigh Acres Middle

School. In explaining her understanding of the cellphone policy,

Ms. McDowell testified as follows:

A: What we were told via email a

couple weeks prior to this event that

Ms. Watson sent ou t, when a student has

a cellphone out, if you see it or hear

it, you need to ask for it. If they

donÓt place that phone in your hands

willingly, then you call for a

specialist to come and deal with that

student. It is not our job to take a

cellphone away from a student, we just

call for a specialist.

Q: By specialist, what do you mean?

A: Security, administration, someone in

the specialist team, guidance counselor,

you know. There are different, -- like

I said, a specialist is a security

guard, admin istration or guidance

counselor; anybody more equipped to

handle the situation than we are.

22. Respondent testified that she was unaware of

Ms. WatsonÓs emails to personnel regarding the proper protocol

for confiscating cellphones from non - compliant st udents. On

June 17, 2016, Respondent, as part of the investigation conducted

herein, sent an email to school board officials and stated

therein that it was her belief that Ð[i]f I had not taken her

phone, that the students would have disrespected and cha llenged

me from that day forward.Ñ In the same missive, Respondent, in

an attempt to discredit one of the students who witnessed her

altercation with A.O., noted that she disciplined the student

witness Ðfor his misbehavior by writing him a referral and h aving

him escorted out of [her ] classroom.Ñ Given RespondentÓs

admitted general awareness of the schoolÓs policy of referring

misbehaving students to an appropriate administrator for

disciplinary action, and her concerns about being challenged and

disresp ected, RespondentÓs testimony that she was unaware of Ms.

WatsonÓs directive regard ing students who refuse to hand over

their cell phones is not credible.

E. Student Detention, Search and Seizure

23. Lee County School Board Policy 4.03 sets forth

procedu res related to searching a studentÓs person and property.

Numbered paragraph (3) of the p olicy provides in part that Ð[a]n

administrative staff member or an instructional staff member

designated by an administrator may search a studentÓs person

[and] pers onal belongings . . . if there is reasonable suspicion

to believe the search will result in evidence the student has

violated Florida Statute or School Board Rule or if the student

consents to such search.Ñ Respondent was neither an

administrative staff m ember nor an instructional staff member

with authorization to conduct student searches, and therefore her

actions of physically sea rching A.O. and taking her cell phone

violated Lee County School Board Policy 4.03.

F. Aggressor or Victim

24. Respondent challenges the instant proceeding in part on

the theory that the facts demonstrate that she was the victim and

merely acted in self - defense against the actions of a combative

student. Contrary to RespondentÓs contention, the credible

evidence, as captured by the surveillance video, establishes that

Respondent committed the initial act of aggression when she,

without hesitation, lorded over A.O. and physically grabbed the

student in an unauthorized e ffort to confiscate A.O.Ós cell phone.

While it is true th at the student, after initially being pinned

to the gym floor by Respondent, eventually freed herself from

RespondentÓs grip and in her agitated state committed reflexive

acts of aggression towards Respondent, the credible evidence

establishes that these e vents would not have occurred but for

RespondentÓs initial use of unauthorized and unreasonable force.

Respondent, without question, had the right to protect herself

against the aggressive counter measures initiated by the student.

However, it is also the case that under the facts of this case

the student equally had the right to protect herself against

RespondentÓs initial acts of aggression. 3 /

1 2

CONCLUSIONS OF LAW

25. DOAH has jurisdiction over the subject matter of and

the parties to this proceeding pursuant to sections 120.569 and

120.57(1), Florida Statutes (201 7 ).

26. Petitioner seeks disciplin ary action against the

Florida educator c ertificate held by Respondent. Petitioner,

therefore, has the burden of proving by clear and convincing

evidence t he allegations against Respondent. See Ferris v.

Turlingto n , 510 So. 2d 292 (Fla. 1987) ; Evans Packing Co. v.

Dep't of Agric. & Consumer Servs. , 550 So. 2d 112 (Fla. 1st DCA

1989); and Inquiry Concerning a Judge , 645 So. 2d 398 (Fla.

1994).

27. Count I o f the Administrative Complaint alleges that

Respondent violated section 1012.795(1)(j). Section 1012.795(1)

provides, in relevant part, as follows:

(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 holde r 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 sc hool 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 pe nalty 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.

28. Counts II and III of the Administrative Complaint

allege that Respo ndent violated the Principles of Professional

Conduct for the Education Profession in Florida, as set forth in

Florida Administrative Code Rule 6A - 10.081( 2 )(a) 1 . and 5. 4 /

29. Rule 6A - 10.081(2) provides, in part, as follows:

(2) Florida educators shall co mply 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 stu dent 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.

* * *

5. Shall not intentionally expose a

student to unnecessary embarrassment or

disparagement.

30. As to Count II, RespondentÓs physical mistreatment of

A.O., as demonstrated most vividly by the video evidence, clearly

and convincingly proves that Respondent subjected A.O. to a

physical attack , which c ompromised A.O.Ós physical health and

safety. RespondentÓs conduct violates r ule 6A - 10.081(2)(a)1. , as

alleged in the Administrative Complaint.

31. As to Count III, rule 6A - 10.081(2)(a)5. prohibits a

Florida ducator from intentionally exposing a student to

unnecessary embarrassment or disparagement.

32. The clear and convincing evidence demonstrates that

Respondent, by resorting to physical force to extricate the cell

phone from A.O.Ós possession, was motivated by her belief that

A.O. had disrespected a nd challenged her authority, and that if

she did not immediately respond to A.OÓs challenge then the other

students Ðwould have disrespected and challenged [her] from that

day forward.Ñ This evidence demonstrates that Respondent acted

intentionally with r espect to her interaction with A.O.

33. The clear and convincing evidence also demonstrates that

several students recorded the incident on their respective

cellphones, that at least one student suggested posting video of

the incident to YouTube, and that students were cheering for

Respondent while she pinned A.O. to the gym floor. From these

facts, it is reasonable to infer that A.O. was exposed to

unnecessary embarrassment or disparagement.

34. The clear and convincing evidence demonstrates

that Resp ondent violated rule 6A - 10.081(2)(a)5. , as alleged in

Count III of the Administrative Complaint.

35. Count I of the Administrative Complaint charges

Respondent with violating the Principles of Professional Conduct

for the Education Profession. Because th e evidence clearly and

convincingly establishes that Respondent violated the Principles

of Professional Conduct for the Education Profession, as

demonstrated above with respect to Counts II and III, it is

therefore determined that Respondent also violated section

1012.795(1)(j) as charged.

36. Petitioner recommends that RespondentÓs educator

certificate be suspended for a period of three years. Given the

circumstances present in the instant matter, which are mitigated

by RespondentÓs length of time as an educator and the fact that

A.O. received only minor physical injuries, it is reasonable that

Respondent's educator certificate be suspended for a period of

two years, followed by one year of probation. 5 / PetitionerÓs

recommendation of three years seems ex cessive. The Education

Practices Commission shall establish the terms and conditions for

both the suspension and probation. In making this

recommendation, the undersigned considered the Disciplinary

Guidelines set forth in Florida Administrative Code Rul e 6B -

11.007.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Education Practices Commission

enter a final order finding Respondent guilty of the violations

alleged in c ounts o ne through three of the Administrative

Complaint.

It is further RECOMMENDED that the final order suspend

Responde nt's Florida Educator C ertificate 7 25789 for a period of

two year s , to be followed by a one - year period of probation. The

terms and conditions of Respondent's suspen sion and probation

shall be established by the Education Practices Commission.

DONE AND ENTERED this this 16th day of January, 2018 , in

Tallahassee, Leon County, Florida.

S

LINZIE F. BOGAN

Administrative Law Judge

Divisi on 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 16th day of Januar y , 2018 .

ENDNOTE S

1/ All subsequent references to Florida Statutes will be to

2015, unless otherwise indicated.

2 / Section 120.57 (1) (c), Florida Statutes, provides, in part,

that Ð[h]earsay evidence may be used for the purpose of

supplementing or ex plaining other evidence.Ñ Since A.O.Ós

statements supplement and help to explain what is depicted on the

surveillance video, appropriate consideration has been given to

the statements by the undersigned.

3 / ÐIt can hardly be argued that either students or teachers shed

their constitutional rights . . . at the schoolhouse gate.Ñ

Tinker v. Des Moines Indep. Cmty. Sch. Dist. , 393 U.S. 503, 506

(1968).

4 / Rule 6A - 10.081 was amended on March 23, 2016. The altercation

occurred on February 18, 2016. Regard ing the instant

allegations, the substance of the rule was unaffected by the

amendments. For purposes of consistency between the

Administrative Complaint and this Recommended Order, reference to

rule 6A - 10.081(2)(a)1 . and 5 . is used. However, based on th e

date of the altercation, the correct rule citation is 6A -

10.081(3)(a) and (e).

5 / If Respondent has reached the point in her career where she

lacks the ability to control her emotions and appropriately

absorb, process and respond to disrespectful acts by students

wh ich challenge her perceived or actual authority, then for the

safety of herself and her students , Respondent should consider an

alternative form of employment.

COPIES FURNISHED:

Gretchen Kelley Brantley, Executive Director

Education Practi ces 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

Fort Lauderdale, Florida 33316

(eSe rved)

Robert J. Coleman, Esquire

Coleman and Coleman

Post Office Box 2089

Fort Myers, Florida 33902

(eServed)

Marian Lambeth, Bureau Chief

Bureau of Professional Practices Services

Department of Education

Tu r lington Building, Suite 224 - E

325 West Gaine s Street

Tallahassee, Florida 32 3 99 - 0400

(eServed)

Matthew Mears, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32 3 99 - 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.