17-006388PL Pam Stewart, As Commissioner Of Education vs. Elijah Richardson Status: Closed Recommended Order on Monday, April 16, 2018.

Summary: Petitioner failed to show intent to induce detrimental reliance necessary to show fraudulent submission, but proved Respondent failed to maintain honesty and used excessive discipline.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PAM STEWART, AS COMMISSIONER OF

EDUCATION,

Petitioner,

vs. Case No. 1 7 - 6388 PL

ELIJAH RICHARDSON ,

Respondent.

_______________________________/

RECOMMENDED ORDER

On February 1 6 , 201 8 , a final hearing was held by video

teleconference at sites in Lauderdale Lakes and Tallahassee ,

Florida, before F. Scott Boyd, an Administrative Law Judge

a ssigned by the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Charles T. Whitelock , Esquire

Charles T. Whitelock, P.A.

300 Southeast 13th Street

Fort Lauderdale , Florida 3 3316

For Respondent: Emily Moore , Esquire

Florida Education Association

2 13 S outh Adams Street

Tallahassee, Florida 3 2301

STATEMENT OF THE ISSUE S

The issues to be determined are whether Respondent violated

section 1012.795(1) (j) , Florida Statutes, and administrative

rules or section 1012.795(1)(a) , 1/ as alleged in the

Administrative Complaint ; and , if so, what is the appropriate

sanction .

PRELIMINAR Y STATEMENT

On or about April 10 , 201 5 , Pam Stewart, as C ommissioner

of the Department of Education (Petitioner or Commissioner),

filed an Administrative Complaint against M r . Elijah Mark

Richardson ( Respondent or M r . Richardson ) , allegi n g violations

of section 1012.795(1) ( a ) and (j) and administrative rules.

Respondent filed an Election of Rights form, disputing

allegations in the Administrative Complaint and requesting a

hearing pursuant to section 120.57(1) , Florida Statutes . On

November 21 , 201 7 , th e case was referred to the Division of

Administrative Hearings (DOAH) , where it was scheduled for final

hearing on January 24 , 201 8 .

After continuance upon joint motion of the parties, the

final hearing was held as re scheduled on February 1 6, 201 8 .

Through Joint Prehearing Stipulation , the parties stipulated to

certain facts, which were accepted and , where relevant, are

inc luded among the findings of fact below.

Petitioner offered the testimony of five witnesses:

Ms. Kristen Rodriguez, a media specialist at West Hollywood

Elementary School (WHE) in Broward County during the 2012 - 2013

school year ; Student A.C. , in the fourth grade at WHE during the

2012 - 2013 school year ; Student R.W. , a fifth grade r that school

year; Student J.G., a fourt h grader then ; and Ms. Mari a n

Lambeth, c hief of the Office of Professional Practices of the

Department of Education. Petitioner offered 11 exhibits , all

which were admitted , with the caveat that several were hearsay

and so could only be used to supplement or explain other

competent evidence an d w ere not sufficient in themselves to

support finding s of fact. Petitioner ' s Exhibit P - 1 0 was a

deposition of M r . Richardson , admitted under the party admission

exception to the hearsay rule .

Respondent testified on his own behalf and presented the

testimony of three other witnesses, all teachers at WHE during

the 2012 - 2013 school year : Ms. Ka l ima Carson ; Ms. Deborah

Khadaran ; and Ms. Diane Velasco - Ortiz. Respondent offered five

exhibits, all of whic h were admitted, and request ed official

recognition of two items. Recognition of the Florida District

Court case was granted. Recognition of an article that had been

published on an online professional educat ion journal, T he

Hechinger Report , offering reasons why African - American teachers

become frustrated with their profession , was denied as not

relevan t .

The one - volume Transcript of the proceeding was filed with

DOAH on March 9 , 201 8 . After an Order granting an extension of

time until April 9, 2018, b oth parties timely submit ted proposed

recommended orders , which were considered .

FINDINGS OF FACT

1. The Commissioner is responsible for investigating and

prosecuting allegations of misconduct against individuals

holding educat or ' s certificates .

2. Mr. Richardson holds Florida Educator ' s Certificate

696450, covering the areas of Elementary Education and English

for Speakers of Other Languages (ESOL), which is valid through

June 30, 2019.

3. At all pe rtinent times , Mr. Richardson was employed as

a f ourth and f ifth - g rade r eading t eacher at W HE .

4 . As Ms. Kristen Rodriguez later testified, during the

2012 - 2013 school year , she encountered several students who

asked her to let them remain with her in the media center at

WHE rather than return to their scheduled class with

Mr. Richardson. Based upon their accounts of Mr. Richardson ' s

behavior in the classroom, she took the students to the school

office and asked them to talk to the principal. The Broward

County School District (District) subsequently conducted an

investigation.

5 . Student A.C. credibly testified at hearing that during

the 2012 - 2013 school year, when she was a fourth - grade student

in his class , Mr. Richardson would sometimes scream at students

who were not behaving , but did not scream at the well - behaved

students . She testified that on a loudness scale of 1 to 10,

he was a " 7 , " while she rated other teachers at " 5. "

6 . Student A.C. ' s testimony was supplemented and

explained by the written statements of other students in that

class : Student G.R. wrote that Mr. Richardson screamed at him

close to his face ; Student H.T. wrote that Mr. Richardson

would scream if he was mad ; Student J.G. wrote that when

Mr. Richardson yelled at some students, he put his face within

inches of the student s ' face s ; Student T.W. wrote that he would

yell in students ' faces ; and Student M.D. wrote that

Mr. Richardson would yell in s tudents ' faces from inches away .

7 . The evidence was clear and convincing that when

students were misbehaving, Mr. Richardson would sometimes yell

or scream at them, placing his face close to theirs.

8 . Student J.G. credibly testified that if a student

" wouldn ' t do like the work or behaved bad , he [Mr. Richardson]

would grab them by their shoulders and yell at them and shake

them. " Student J.G. went on to clarify , " I mean not that bad,

but like to get ahold. "

9. Student J.G. ' s testimony was supplemented and

explained by the written statements of other students: Student

G.R. report ed that Mr. Richardson " grabbed this kid and shook

him " ; and Student A.C. wrote that Mr. Richardson would shake

students who were being bad , writing that " [w]hen he shaked

[sic] kids he would shake them by the shoulders, on a scale

from 0 to 5 he would shake kids like about a 2. "

10 . The Department of Education (DOE) was notified of the

allegations against Mr. Richardson . On or about April 5, 2013,

Mr. Richardson received notice from Chief Marian Lambeth that

the Office of Professional Practices of DOE had opened a case

for purposes of investigating Mr. Richardson ' s alleged

inappropriate conduct ; and , if founded, the allegations could

lead to discipl inary action against Mr. Richardson ' s Florida

Educator ' s Certificate.

11 . On April 18, 2013, Mr. Richardson ' s attorney sent

written notice to Chief Lambeth informing the DOE of her

representation of Mr. Richardson in their investigation and

requesting a copy of their investigative report upon its

completion. Mr. Richardson was copied on the correspondence.

12 . As documented by letter later sent to Mr. Richardson ,

the Professional Standards Committee of the Browar d County

Public Schools met on May 8, 2013 , and determined that there

was no probable cause to support a charge of battery . However,

the letter stated, " [l]et this correspondence serve as

reprimand that any future violation of the Code of Ethics and

Principles of Professional Conduct of the Education Profession

will result in a recommendation for further disciplinary action

up to and including termination. " 2 /

13 . Mr. Richardson successfully filed a grievance

regarding th e letter of reprimand imp osed by the District . By

letter dated March 26, 2014, Mr. Lerenzo Calhoun, e mployee and

l abor r elations s pecialist of the District, advised the Broward

Teachers Union , " [I]t has been determined that the written

reprimand issued to the grievant be re scinded. "

14 . On April 16, 2014, Mr. Richardson completed a " GC - 10R

Renewal Application Form rev 06/10 Legal Disclosure 1 - District

Version " to initiate renewal of his Florida Educator

Certificate , which was due to expire on June 30, 2014 .

Instructions on the bottom of the form direct the applicant to

pr ovide additional detailed information on a Legal Disclosure

Supplement if any of the preceding 21 questions on the page are

answered affirmatively. Mr. Richardson, having correctly

answered " no " to 20 of these questions that deal with sealed

records, criminal records, and license sanctions , but " yes " to

the single question that asks if there is a " current

investigative action " pending, turned to th e supplementary page ,

" GC10R Application Form rev 06/10 Legal Disclosure 2 - District

Version. "

15 . Other than the applicant ' s name, however, the

supplementary form solicited information about only three

topics , each in its own section: " Sealed or Expunged Records " ;

" Criminal Offense Records " ; and " Professional License or

Certificate Sanctions. " Mr. Richardson had no sealed or

expunged records and so could not provide any supplementary

information in response to the questions in that section. He

had no criminal offense records and thus si mi larly could not

provide responses to the questions in that section. He had no

professional license or certificate sanctions and so could not

answer th ose questions either . There were no questions

pertaining to ongoing investigations. He logically left the

supplement ary page blank, and submitted the renewal application

to the District ' s office, which was authorized to reissue the

certificate. On the application, he made full disclosure of the

pending investigation, complete with a handwritten notation

indicating that there was no decision as of yet and including

the investigation case number for easy reference ( he volunteered

this , for remarkably there is no question or blank space to

include this info rmation anywhere on the form s ).

16 . The renewal application was reviewed on behalf of the

District by Ms . Sheila Gipson, a certification specialist for

the District . Ms . Gipson, dutifully implementing the policy

reflected in the form ' s directions to complete the supplemental

disclosure , refused to process the renewal application, deeming

it incomplete. On April 23, 2014, Ms. Gipson sent an e - mail to

Mr. Richardson illogically re peating the instruction on the form

that if any question on page 4 wa s answered in the affirmative,

that page 5 (the supplement) must be completed, and directed him

to do so.

17 . If Mr. Richardson Ï eager to have his license

renewed Ï was baffled by Ms. Gipson ' s e - mail and nonplussed at

the impossible guidance it contained, h is bewilderment might be

excused. As previously noted, h e had already provided complete

details about the ongoing investigation to the District and

could provide absolutely no information re sponsive to any of the

supplemental questions.

18 . In any event, it is clear that strict enforcement of

this " catch - 22 " 3 / has the practical effect of preventing anyone

under investigation but awaiting determination f rom completing

an application at all . It is not clear if this structure

results from accident or disingenuous design .

1 9. Mr. Richardson testified that he telephoned Ms. Gipson

and explained his dilemma. According to Mr. Richardson,

Ms. Gipson concluded that he should not have said " yes " to the

investigation question if no sanctions had been imposed , again

explaining to him that any " yes " response meant that the

application could not be processed without sanctions

information . He testified that s he directed him to chang e his

answer on page 4 and resubmit the application so it could be

considered complete. Mr. Richardson ' s testimony as to what

Ms. Gipson told him was unrefuted. Ms. Gipson ' s instruction to

Mr. Richardson did not make sense, any more than the form itself

did.

20 . Mr. Richardson d id as Ms. Gipson had instructed and

filled out a second application form, which he dated April 26,

2014, indicat ing no " current investigati ve action pending " as he

was told to do . He executed the Affidavit, which in bold print

states: " Giving false information in order to obtain or renew a

Florida Educator ' s Certificate is a criminal offense under

Florida law. A nyone giving false in formation on this affidavit

is subject to criminal prosecution, as well as disciplinary

action by the Education Practices Commission. " 4 /

21 . On or about April 23, 2014, notice had been sent to

both Mr. Richardson and his attorney that the DOE ' s preliminary

investigation was completed and available for review. An

Informal Conference was scheduled for May 22, 2014. Both

Mr. Richardson and hi s attorney acknowledged receipt of the

notice on April 28, 2014.

22 . After some delays, reflected in e - mail communications,

Mr. Richardson hand - delivered the second application to

Ms. Gipson, who received it on May 2, 2014.

23 . T he Commissioner has failed to show that

Mr. Richardson gave false information with the intent to deceive

or defraud the District or D O E. Mr. Richardson ' s alternative

explanation of his intent is plausible given the i rrational

structure of the application form and the fact th at he had

already fully disclosed the existence of the investigation to

the District in the earlier application dated April 16, 201 4 .

His insistence that his only intent was to break the

bureaucratic logjam and allow his application to be considered

complete, as the District ' s c ertification s pecialist , Ms.

Gipson , advised him to do , is plausible .

24. Mr. Richardson ' s testimony that Ms. Gipson advised him

to fill ou t the second application as he did was not a new

assertion: he had said so nearly two years prior to the hearing

in his deposition. The Commissioner did not list Ms. Gipson as

a witness , and she did not testify. Mr. Richardson ' s testimony

regarding the April 26 , 2014, application was unrefuted. The

Commissioner failed to prove fraudulent intent.

2 5 . There was no competent evidence presented at hearing

that Mr. Richardson ever used profanity in the classroom.

2 6 . Although there was considerable testimo ny at hearing

about a clinic pass associated with an injury to Student N.M.

on an occasion when Mr. Richardson ' s class was engaged in

" indoor P . E . , " it was not shown tha t Mr. Richardson in any way

caused th at injury , and he was not charged with doing so in the

Administrative Complaint . T here was no competent evidence that

Mr. Richardson or any other person ever threw a book at Student

N.M. , as was charged .

2 7 . Mr. Richardson has been employed by the District for

a lmost 21 years. He has never before had any discipline imposed

against his license. He has taught successfully at Challenger

Elementary S chool for almost five years after the 2012 - 2013

school year, without incident.

2 8 . Ms. Kalima Carson testified that she co - taught with

Mr . Richardson. As s h e testified , he was a good classroom

manager . Ms. Carson also credibly testified that he was a good

teacher and that his students showed tremendous academic gains.

As Ms. Diane Velasco - Ortiz credibly testified , Mr. Richardson

was good at motivat ing his students , and he did well with

students who faced challenges at home.

C ONCLUSIONS OF LAW

2 9 . DOAH has jurisdiction over the parties and subject

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

Florida Statutes (201 7 ) .

30 . Petitioner i s responsible for filing complaints and

prosecuting allegations of misconduct against instructional

personnel . § 1012.796(6) , Fla. Stat .

3 1 . P etitioner seeks to take action against Respondent ' s

ed ucator certificate as provided in section 1012.795. A

proceeding to impose discipline against a professional license

is penal in nature, and P etitioner bears the burden to prove the

allegations in the Administr a tive 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).

3 2 . The Florida Supreme Court has stated that the c lear

and convincing standard require s that :

[T] he 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)).

3 3 . Before consider ing the individual counts against

Respondent , preliminary issue s related to the wording of the

Administrative Complaint are addressed . First, the

Administrative Complaint alleged that R espondent grabbed and

shook " fifth grade " students , disciplined his " fifth grade "

students by yelling in their faces, and threw a book at a " fifth

grade " student, N.M. , striking her . However, evidence at

hearing indicated that Student N.M. was actually in Respondent ' s

fourth - grade class during the 2012 - 2013 school year , an d the

evidence introduced to show th es e other alleged facts similarly

involved fourth graders. 5 / While Student R.W. Ï who testified

that Respondent was yelling while perched atop a desk in her

class Ï was a fifth grade r during the 2012 - 2013 school year , it

was not clear how her testimony relate d to any of the

allegations of the Administrative Complaint.

3 4 . However, Petitioner ' s fail ure to show that the

students were fifth graders does not mean that none of the se

charges in the Administrative Complaint were clearly proved .

While including the school grade of the students might help

identify the students involved , it was not an essential element

of any of the charged offenses . Even in criminal cases, failure

to prove specific facts alleged in a charging document is

permitted so long as those facts are not essential elements.

Mitchell v. State , 888 So. 2d 665, 668 (Fla. 1st DCA

2004)(conviction affirmed because language identifying a

specific means by which a victim was put in fear was not an

essential element , so that proof of fear by another means was

sufficient); Ingleton v. State , 700 So. 2d 735 (Fla. 5th DCA

1997)(conviction was affirmed although the language charged that

defendant had been murdered " by strangling " when evidence showed

tha t murder was actually committed through a cocaine overdose,

because the method by which the murder was committed was

surplusage ); In the Interest of W.M. , 491 So. 2d 1263 (Fla. 4th

DCA 1986)(conviction for aggravated assault was affirmed on

proof that the defendant used a BB gun, despite the charge of

using a handgun, because the type of weapon used was not an

essential element ) . An administrative hearing does not require

more. The grade level of the students alleged in the

Administrative Complaint w as unnecessary surplusage . It was not

necessary for Petitioner to prove th e students ' grade level.

35. Respondent notes that contrary to the wording of the

allegations in the Administrative Complaint, it is

uncontroverted that : ( 1) Respondent did not submi t his renewal

application to D OE , but instead to the District ( which was

purportedly authorized to renew applications on behalf of the

State of Florida ) ; and ( 2) the renewal application at issue was

in fact submitted on April 26, 2014, not April 26, 2013.

36. Again, however, these errors in the A dministrative

C omplaint reflect careless preparation and drafting rather than

legitimate failures of proof at hearing. It is well - settled

that an administrative complaint need not be cast with that

degree of " technical nicety " required in a criminal

prosecution. Libby Investigations v. Dep ' t of State , 685 So. 2d

69 (Fla. 1st DCA 996). An a dministrative c omplaint need only

s et out the acts complained of with sufficient specificity to

allow a r espondent a fair chance to prepare a defense. Davis v.

Dep ' t of Prof ' l Reg. , 457 So. 2d 1074 (Fla. 1st DCA 1984). It

was not suggested at hearing, and it is not fo und, that

Respondent was in any way surprised by Petitioner ' s evidence .

The parties agreed on both the fact that the renewal application

had been filed with the District and the actual date on which it

had been filed in their Joint Prehearing Stipulation ; there was

no objection at hearing to the evidence offered on either of

these points ; and Respondent proceeded with a full understanding

of the nature and substance of the charges against him .

Respondent was not prejudiced in his defense by these

discrepancies in the Administrative Complaint .

Count 1

3 7 . Petitioner alleges in Count 1 that Respondent is in

violation of section 1012.795(1)(a), which in April 201 4

provided that the Education Practices Commission could impose

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

educator certificate by fraudulent means.

3 8 . T he Administrative Complaint alleges that Petitioner ' s

April 26, 201 4 , application was fraudulent because he gave a

false answer to the question, " Do you have any current

investigative action pending in this state or in any other state

against a professional license or certificate or against an

application for a professional license or certificate? " While

Petitioner proved that a false answer was given, this does not

end the analysis.

3 9 . " F raudulent " is not defined by the statute or by

rule. The parties did not cite, and research did not reveal,

any cases interpreting the term in t his context . The

dictionary definition of " fraudulent " is " done to trick

someone for the purpose of getting something valuable. "

Merriam - Webster Online Dictionary , https://www.merriam -

webster.com/dictionary/fraudulent .

40 . A fraudulent act r equire s deliberative intent. As

stated in Ocean Bank of Miami v. Inv - Uni Investment Corporation ,

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 design ed

to cause detrimental reliance.

41 . It is not at all clear that Respondent ' s

misre p resentation was designed to trick the District into giving

him his license by concealing the ongoing investigation.

Respondent ' s unrefuted testi mony was that he was only complying

with instructions from Ms. Gipson, the certification specialist

employed by the District, in order to have the application

processed. This version of events is plausible given that it is

clear from the evidence that he had alre ady fully disclosed the

fact of the investigation to the District ten days earlier in

the application dated April 16, 2013 . There was also no

evidence to suggest that Respondent had any reason to believe

that simply being under investigation was grounds for denial of

a renewal application.

42 . Respondent ' s contention that it was Ms. Gipson who

told him to fill out the second application as he did was not a

new assertion at hearing. He had given this version of events

in his deposition taken nearly two y ears before the hearing.

Petitioner did not list Ms. Gipson as a witness or call her to

testify at hearing.

4 3 . Contrary to Petitioner ' s assertion in her Proposed

Recommended Order , Respondent ' s testimony as to what Ms. Gipson

told him was not hearsay. It was not offered to prove the truth

of the content of Ms. Gipson ' s admittedly unsound communications

to Respondent . Rather , it was offered only to show that the

statement was made, as evidence of Respondent ' s intent in

subsequently making a false statement on his second application ,

a critical iss ue in this case. See, e.g. , King v. State ,

684 So. 2d 1388, 1389 - 90 (Fla. 1st DCA 1996)(an out - of - court

statement offered for a purpose other than proving the truth of

its contents is not h earsay and is admissible when otherwise

relevant to a material issue in the case ) . Even if it had been

hearsay, it would have come under the exception for party

admissions under section 90.803(18)(d), Florida Statutes.

4 4 . Petitioner did not show that Respondent had any intent

other than to overcome the bureaucratic impass e preventing the

legitimate processing of his application. Petitioner failed to

prove 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).

C ount 2

4 5 . Count 2 alleges that Respondent is in violation of

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

of Professional Conduct for the Education Profession. Counts 3

through 6 go on to allege specific violations of these

principles. Count 2 does not constitute a distinct disciplinary

violation.

C ount 3

4 6 . Count 3 alleges that Respondent violated Florida

Administrative Code Rule 6B - 1.006(3)(a) , 6 / which from A ugust to

December of 2012 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.

4 7 . Petitioner showed that Respondent yelled at

misbehaving students, with his face in close proximity to

theirs , and that he grabbed them by the shoulders and shook

them. In these actions, Respondent fail ed to make reasonable

effo rt to protect h is students from conditions harmful to their

mental health .

4 8 . Petitioner prove d by clear and convincing evidence

that Respondent violated rule 6B - 1.006(3)(a) .

C ount 4

4 9 . Count 4 alleges that Respondent violated r ule 6 B -

1 .006(3) (e) , which from August to December 2012 provid ed that an

educator sh all not intentionally expose a student to unnecessary

embarrassment or disparagement.

50 . While Respondent has authority for the control and

discipline of students, his specific actions were somewhat

excessive and intentionally exposed students to unnecessary

emba r rassment and disparagement .

51 . Petitioner prove d by clear and convincing evidence

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

Count 5

52 . Petitioner alleges in Count 5 that Respondent violated

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

April 2014 provided that an individual shall maintain honesty in

all professional dealings.

53. Dishonesty is defined as: (1) " lack of honesty

or integrity: disposition to defraud or deceive " ; (2) " a

dishonest act: fraud. " Merriam - Webster Online Dictionary ,

https://www.merriam - webster.com/dictionary/dishonesty.

54. It is quite clear that filing for renewal is within

the scope of an applicant ' s professional d ealings and that under

most circumstances , making a false statement on the application

constitutes dishonesty .

55. Here, however, while it was stipulated that Respondent

falsely answered " No " on his April 26, 2014, application,

viewing this second applica tion in isolation, out of the context

of its submission, would be simplistic and unfair. The first

application had already provided full disclosure of the

investigation. Respondent ' s action, and the " complicity " of

Ms. Gipson, was not to deceive the Dist rict to obtain some

undeserved benefit, 7/ but only to obtain the review of the

application to which Respondent was entitled. Under the unique

circumstances here, it cannot be said that R espondent ' s

representations, when considered as a whole, were dishone st or

intended to deceive.

56. Petitioner failed to prove by clear and convincing

evidence that Respondent violated rule 6A - 10.081(5)(a) .

Count 6

5 7 . Count 6 alleges that Respondent violated

rule 6A - 10.081(5)(h) , which on April 26, 2014 , provided that

an individual:

Shall not submit fraudulent information on any

document in connection with professional

activities.

5 8 . As discussed above, there was no proof that

Respondent ' s submission was fraudulent. It was never alleged or

shown that the D istrict could decline to process a renewal

application solely because an investigation ha d been initiated

or that Respondent submitted the information to cause any

detriment al reliance by the District . The clear evidence

instead showed that the District ' s representative was fully

informed that an investigation was pending . Respondent ' s

testimony that Ms. Gipson instructed him to fill out the

application as he did in an attempt to further the appropriate

processing of the application , g iven that no sanctions had been

imposed , was unrefuted .

5 9 . Petitioner failed to prove by clear and convincing

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

Penalty

60 . The Education Practices Commission adopted

disciplinary guidelines for the imposition of penalties

authorized by section 1012.795 in Florida Administrative Code

R ule 6 B - 11.007.

6 1 . Rule 6B - 11.007(2)( i ) 16. provide d that probation to

revocation wa s 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. "

6 2 . R ule 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.

6 3 . Rule 6B - 11.007(2) provided that in addition to

penalties listed in the disciplinary guidelines, each should be

interpreted to include " probation, " " Recovery Network Program , "

" letter of reprimand, " " restrict scope of practice, " " fine, " and

" administrati ve fees and/or costs " as additional penalty

provisions.

6 4 . Rule 6B - 11.007(3) provide d :

(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 violatio n;

(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;

( l ) Employment status;

(m) Attempts by the educator to correct or

stop the violation or refusal by the

educator to correct or stop the violation;

(n) Related violations against the educator

in another state including findings of guilt

or innocence, penalt ies 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 ph ysical 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.

6 5 . Without minimizing any mental harm to a student, t here

are significant factors in this case that dictate that the

penalty be set at the low end of the range established by the

guidelines. Th e events took place f our and one - half years ago .

Respondent engaged in i nappropriate , but nevertheless relatively

moderate behaviors in order to discipline misbehaving students

and had an excellent record of improving the performance of even

the most challeng ed students . There is no evidence that

Respondent caused , or intended to cause, physical harm to any

student . Further, t he District returned Respondent to the

classroom, and his subsequent performance at Challenger

Elementary School has been effective . There is no indication of

other discipline over a period of nearly 21 years , either before

or after the se events . T here is no evidence of a long pattern

of discipline that might otherwise justify sanctions uniquely

available to the Education Practices Commission in fulfilling

its statewide respon sibilities under section 1012.795, such as

suspension or revocation of Respondent ' s teaching certificate.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that the Education Practices Commission enter a

final order finding M r . Elijah Mark Richardson in violation of

section 1012 .795(1 ) ( j), Florida Statutes , through h is violation

of Florida Administrative Code Rule s 6B - 1.006(3)(a) and

6B - 1.006(3)(e) ; issuing h im a letter of reprimand ; and placing

him on probation for a period of one employment year.

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

Tallahassee, Leon County, Florida.

S

F. SCOTT BOYD

Administrative Law Judge

Div ision 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 April , 2018 .

ENDNOTES

1/ All references to Florida Statutes or administrative rules

are to the versions in effect during the 2012 - 2013 school year ,

except as otherwise indicated.

2/ Though not directly implicated in this case, it should be

noted that the wording of the letter, signed by the Chief of

Police, is somewhat confusing, seeming to indicate at one point

that it represents the Professional Standards Committee ' s

recommendatio n to the Superintendent and at another point that

it is itself a l etter of r eprimand. It is not clear from the

record whether procedures set forth in Broward County School

Board Policy 4.9 were followed, or other procedures.

3/ A catch - 22 is a paradoxical situation from which an

individual cannot escape because of contradictory rules. The

term was coined by Joseph Heller in his 1961 novel of the same

name.

4/ This warning on th e form is an oversimplification of the law,

as explored further in the Conclusions of Law.

5/ Some confusion as to the students ' grade in school may stem

from the fact that several written statements taken by the D O E

investigator were dated in November 2013 and indicate that the

students are in the fifth grade. However, the statements

themselves show that the events they were recounting had taken

place during the preceding academic year, when they were in the

fourth grade.

6/ Petitioner actually cited Florida Administrative Code

R ule 6A - 10.081(3)(a), yet again failing to correctly identify

the rule number in effect at the time of alleged misconduct.

The rule was not renumbered until January 11, 2013; the

testimony referred to events which allegedly to ok place prior to

December 17, 2012. However, the text of the rule was set out in

the Administrative Complaint , and Respondent was not prejudiced

by this error.

7/ Cf. , Gootee v. Sch. Bd. , 201 So. 3d 115, 118 (Fla. 3d DCA

2015)(submission of falsified t ime records to obtain unearned

pay was a dishonest professional act notwithstanding that

supervisor approved and condoned it).

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)

Emily Moore, Esquire

Florida Education Association

213 South Adams Street

Tallahassee, Florida 32301

(eServed)

Charles T. Whitelock, Esquire

Charles T. Whit elock, P.A.

300 Southeast 13th Street

Fort Lauderdale, Florida 33316

(eServed)

Matthew Mears, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Marian Lambeth, Bureau Chief

Bureau of Professional

Practices Services

Department of Education

Turlington Building, Suite 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.