19-006071PL Richard Corcoran, As Commissioner Of Education vs. Thomas Masters Status: Closed Recommended Order on Tuesday, April 28, 2020.

Summary: Petitioner proved some, but not all, of the violations charged in the Administrative Complaint. Respondent should receive a reprimand and be placed on probation.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

R ICHARD C ORCORAN , A S C OMMISSIONER

OF E DUCATION ,

Petitioner ,

vs. Case No. 19 - 6071PL

T HOMAS M ASTERS ,

Respondent .

/

R ECOMMENDED O RDER

On February 11 and 12, 2020, Administrative Law Judge W. David

Watkins of the Division of Administrative Hearings (Division) conducted a

hearing in this proceeding in St. Augustine, Florida.

A PPEARANCES

For Petitioner: Ron Weaver, Esquire

Post Office Box 770088

Ocala, Florida 34477 - 0088

For Respondent: Heidi B . Parker, Esquire

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

Post Office Box 2231

Orlando, Florida 32802

S TATEMENT OF T HE I SSUE S

The issues to be determined are whether Respondent, Thomas Masters,

violated section 1012.795(1)(j), Florida Statutes, and Florida Administrative

Code R ules 6A - 10.081(2)(a)1 and 6A10.081(2)(a)5, as charged in the

Administrative Complaint; and, if so, what disciplinary penalty should be

imposed.

P RELIMINARY S TATEMENT

On September 5, 2019, Petitioner , Richard Corcoran, as Commissioner of

Education (Petitioner or Commissioner), file d an Administrative Complaint

against Respondent, alleging violations of section 1012.795(1)(j) (Count 1),

rule 6A - 10.081(2)(a)1 . (Count 2) , and rule 6A - 10.081(2)(a)5 (Count 3).

Respondent timely filed an Election of Rights form, disputing the

allegations and requesting a hearing. On November 14, 2019, the Education

Practices Commission (EPC) referred this matter to the Division for

assignment of an administrative law judge. On December 6, 2019, the

undersigned noticed this matter for final hearing on Febr uary 11 and 12,

2020, in St. Augustine, Florida.

On February 11, 2020, at PetitionerÔs request, the hearing was held at

H.D. Hartley Elementary School (Hartley) for the convenience of the parents

and students called to testify. On February 12, 2020, the h earing was held at

the St. Johns County Courthouse.

Prior to the final hearing, the parties filed a Joint Pre - hearing Statement,

in which they stipulated to certain facts. To the extent relevant, the parties'

stipulated facts have been incorporated in the findings below.

On February 10, 2020, Petitioner filed a motion for leave to amend the

Administrative Complaint based upon newly discovered evidence.

Respondent opposed the motion. On the day of the final hearing, the

undersigned heard argument from coun sel for both parties. The motion was

denied.

On February 11 and 12, 2020, the undersigned conducted the final

hearing. Petitioner presented the testimony of: Catherine Hutchins

(Associate Superintendent for Human Resources), Antonio Scott (Principal),

Cry stal Poticny (Teacher), Kimberly Sikes (Teacher), Kathleen Baker

(Assistant Principal), parent S.P., student B.P., parent R.R., student T.R.,

parent J.R., student C.R., parent A.V., student M.V., Michael Dresback

(Associate Superintendent for Support Servi ces), and Dr. Paul Goricki

(Principal). The undersigned admitted PetitionerÔs Exhibits 1 through 7, 9,

15, 16, 18 , and 19 in evidence.

Respondent testified on his own behalf and presented the testimony of

Amber Rewis Phillips, Susan Jane Joyner, Danielle Sisk, Bettina

Timmerman, Trevor Wezkiewicz, Rhieanna DeGrande, Robert K. Mathis,

John Samuels, and Carolyn Dubowsky. The undersigned admitted

RespondentÔs Exhibits 1 through 11 in evidence.

The two - volume T ranscript was filed with the Division on March 9, 2020.

After one extension, the parties timely submitted P roposed R ecommended

O rders on March 30, 2020.

Except where otherwise indicated, all references to the Florida Statutes in

this Recommended Order are to the 2018 edition. See McCloskey v. DepÔt of

F in. Servs. , 115 So. 3d 441, 444 (Fla. 5th DCA 2013) (holding that statutes

and rules in effect at the time of the allegations apply, unless otherwise

specified).

F INDINGS OF F ACT

Based upon the credibility of the witnesses and evidence presented at the

fi nal hearing and on the entire record of this proceeding, the following

Findings of Fact are made:

Background

1 . Respondent holds Florida EducatorÔs Certificate 743504, covering the

areas of elementary education and physical education, which is valid thro ugh

June 30, 2024.

2 . The Commissioner is the head of the state agency, the Florida

Department of Education, responsible for investigating and prosecuting

allegations of misconduct against individuals holding Florida educator

certificates. Upon a finding of probable cause, Petitioner is then responsible

for filing a formal complaint and prosecuting the complaint pursuant to

chapter 120, Florida Statutes, if the educator disputes the allegations in the

complaint.

3 . Since 1994, Respondent has been responsi ble for the care and

development of el ementary school - aged children. He became certified to teach

elementary education in Florida in 1995 , and at that time began teaching

physical education (P . E . ) for the Archdiocese of Miami. In approximately

1999 , Respon dent was certified in P . E . He taught P . E . for 19 years and

theology for one year. He was the Athletic Dire ctor for 18 of those 20 years.

Respondent has received no prior Department of Education (DOE) discipline.

4 . RespondentÔs duties as Athletic Director for the Archdiocese included

recruiting volunteer coaches, setting schedules, making sure that the teams

were outfitted, securing referees, designing uniforms, improving play spaces,

begging for equipment, soliciting donations, and making sure the coaches did

a good job.

5 . In 2015, Respondent relocated from south Florida to St. Johns County

to assist with the care of his moth er after his fatherÔs passing. He taught PE

in the St. Johns County School District (SJCSD) from 2015 through 2019.

6 . In the 2015 - 2 016 school year, Respondent worked at PVPV - Rawlings

Elementary School (PV) in a half - day position and in the after - care program.

The principal of PV, Kathleen Furness, eva luated Respondent as Ñeffective . Ò

At the conclusion of the school year , Ms. Furness r ecommended Respondent

to the pri ncipal at Hartley, Joy Taylor. Ms. Furness did not want him to leave

PV, but the school di d not have an opening for him. Ms. Furness told Susan

Joyner, a third grade teacher at Hartley, that Hartley was getting Ñthe best

of the best.Ò

7 . At the time of the allegations in the Administrative Complaint,

Respondent was employed as a P.E. teacher at Hartley in the SJCSD. He was

the P.E. teacher for kindergarten through fifth grade and the on ly P.E.

teacher at the school. Teachers would take their students to P.E. at various

times during the week, leave them with Respondent , and come back to get

them after their P.E. session. During his time at Hartley, Respondent had a

new principal each year. During the 2016 - 2017 school year, Hart leyÔs

principal was Joy Taylor. During the 2017 - 2018 school year, HartleyÔs

principal was Antonio Scott. During the 2018 - 2019 school year, HartleyÔs

principal was Dr. Paul Goricki.

The 2016 - 2017 School Year

8 . In the 2016 - 2017 school year, Respondent wa s hired as the P.E. teacher

at Hartley after the schoolÔs long - time P.E. instructor, Coach Beech, retired.

When Respondent was hired at Hartley, he noticed that the teachers there

were physically affectionate with the stude nts, hugging regularly. School

ad ministrators and teachers testified that students regularly hugged

teachers. Hartley administration accepted the practice of student - teacher

hugs.

9 . Amber Phillips holds a degree in elementary education and holds a

teaching certif icate in elementary educa tion. Ms. Phillips has been teaching

first and secon d grade at Hartley since 2012. Ms. Phillips testified that the

younger the students, the more affectionate they are. Children wanted to be

comforted and loved. Ms. Phillips testified that appropriate touc h is beneficial

to student mental health and learning. Respondent was told when he was

hired that he fit in at Hartley because he was warm and caring.

10. Respondent immediately helped to increase the studentsÔ s activity

level and interest in physical acti vity. By all accounts, Respondent created an

excellent P . E . program for his students. He emphasized the importance of

physical fitness standards, and instituted the Presidential Physical Fitness

Award Program which involved rigorous physical fitness traini ng and testing.

Respondent competed with his students by racing and challenging them, and

by telling them he could do more sit - up s or push - ups than they could.

Respondent played basketball with the students during recess.

11 . Joy Taylor, HartleyÔs Princip al, evaluated Respondent as effective in

his 2016 - 2017 evaluation stating, ÑYou have been one of my Ómost valuable

acquisitions.Ô You have brought so much positive energy and fitness to

Hartley for which I am so grateful. From fund raising to field day, ph ysical

fitness tests to basketball team È you have gone out of bounds to bring fun

and fitness to our school. I appreciate all your hard work, care and

commitment to our students, staff and school!Ò

12. According to Amber Lewis, a second grade teacher at Hartley during

this school year, when Respondent started teaching at Hartley, Ñhe really

instilled physical fitness back into them and just wanted them [sic] to be

healthy and get plenty of exercise but also encourage them by coaching the

kidsÔ [sic] baske tball team and going to kidsÔ [sic] events after school, and

really pitching [sic] in wherever he needed to be. Doubling up and tripling up

in classes and they were all happy to go with him any time.Ò

13 . Respondent Ô s P.E. classes were loud, fast - paced , an d action packed.

The indoor routines included s it - ups, push - ups , or stretches. The outdoor

routines included dynamic or static stretching, jogging, skipping , or

galloping.

14 . Respondent was a physical and hands on P.E. teacher and coach. He

paired student s to do sit - ups. One student acted as an anchor to hold the

other studentÔs feet down. Anchoring activated more muscle groups to help

the student perform the activity. Respondent helped hold a studentÔs feet

down , lightly touching his feet to assist the st udent in doing sit - ups.

15 . Respondent frequently gave his students high - fives and handshakes.

When his students hugged him, he tried to redirect them by telling them to

let go, raising his arms to get them to release their hug, continuing to walk

until th ey let go, or r edirecting them to a side hug. Occasionally he would

have to put his hand on their head in an attempt to let them know that they

should let go of him.

16 . In P.E. class there was more of a risk of harm from physical contact.

Respondent Ô s st udents played sports, including flag football and basketball.

Respondent prevented collisions between his students, sometimes using

physical contact. Students ran into him and he caught them when they would

bounce off of him. Respondent would occasionally have to break up

altercations between students in his P.E. classes. Respondent was concerned

with safety in his class and went over the rules and expectations and gave

instruction on the safe use of equipment.

17. Respondent built relationships with his s tudents. He listened to them

and took an interest in their activities outside of class. He let his students

know that they were important and special. The evidence established that

the vast majority of students appeared to enjoy P . E . , and liked Respondent .

18 . Several Hartley teachers and parents of Hartley students testified on

RespondentÔs behalf. Those witnesses testified that they observed only

positive interactions between Respondent and the students. All agreed

Respondent had made many positive contri butions to HartleyÔs culture and

was a positive influence on the students. These witnesses never observed

anything inappropriate between Respondent and any students, and none saw

Respondent tickle students or pull their hair.

19 . Rhieanna DeGrande , a pare nt of two Hartley students, testified that

she saw Respondent every day from 2016 through 2019 during the school

year. She never saw him do anything unsafe or inappropriate. However, she

did see him give the students high - fives and hugs, and sometimes the

stude nts would Ñlatch onto his legs È they loved him.Ò Ms. DeGrande heard

from other parents and some teachers that Respondent was doing a great job,

that he brought a lot of new activities to Hartley, and that he was very

involved and loved the kids.

20 . Retired St. Johns County Circuit Court Judge and State Attorney

Robert Mathis met Respondent in 2016. Judge Mathis volunteered to help

coach the basketball team that his grandson joined , and witnessed

Respondent regularly interact with the students.

21 . Ju dge Mathis testified that Respondent took care of the kids when

they were injured and did not call children babies and tell them to stop

crying. He never yelled at the childre n or was mean to the children. He did

not p ull their hair or tickle them. He pick ed them up when they fell down.

Respondent patted the kids on the back when they did a good job, and he

touched them when he showed them playing technique. Judge Mathis heard

good things from the parents; they liked the way their kids responded to

Responde nt Ô s coaching. When Judge Mathis heard rumors about Respondent ,

he wrote a letter to Tim Forson, the Superintendent of SJCSD , and to

HartleyÔs Principal Goricki. In his letter, Judge Mathis wrote about the

positive relationships that he witnessed between t he students and

Respondent, and about RespondentÔs positive impact as a coach.

22. But Respondent was not without his detractors. Crystal Poticny is a

kindergarten teacher at Hartley. Ms. Poticny testified that during the

2016 - 2017 school year, she observ ed Respondent on numerous occasions

Ñinappropriately interacting with students: touching their neck, shoulders,

tickling, picking students up like a sack of potatoes, ca rrying students on his

waist.Ò She further testified that she saw Respondent poking and squeezing

students, and that sometimes the students were cry ing and yelling Ñput me

down!Ò Ms. Poticny told Respondent Ñplease stop, put them down, they donÔt

like that.Ò

23 . Ms. Poticny testified that it made her uncomfortable to watch

Respondent int era ct with students like that. Although Ms. Poticny warned

Respondent about his behavior with students, it continued through out the

2016 - 2017 school year. She reported her concerns to their principal, Joy

Taylor.

The 2017 - 2018 School Year

24 . Ms. Poticny al so testified that during the 2017 - 2018 school year,

Respondent Ô s behavior with students was the same. She observed Respondent

carrying a student on his hip while the student was yelling and screaming.

Sometimes the students would be pushing him away and cr y ing and yelling

Ñput me down!Ò She reported her concerns to their principal, Antonio Scott.

25 . Kimberly Sikes is a first - grade teacher at Hartley. When Respondent

started at Hartley, Ms. Sikes thought he was a good fit. She testified that

Respondent Ñd i d a lot for the P.E. program. Ò However, Ms. Sikes observed

Respondent force a student to the ground several times, then tell other

students, ÑEverybody come over and look at so and so, heÔ s crying like a two -

year old.Ò Ms. Sikes repor ted the incident to Mr . Scott. Later in the year,

Ms. Sikes observed Respondent standing over the same boy, as the boy was

crying, point in his face and say to the boy, ÑYouÔre nothing but a little baby.Ò

Ms. Sikes told Respondent , ÑThatÔs enough.Ò She thought that after she

re ported her concerns to Mr. Scott during the 2017 - 20 18 school year, the

matter would be resolved.

26 . During the week of February 26, 2018, several kindergarten teachers

spoke with Mr. Scott regarding what they perceived to be inappropriate

interactions be tween Respondent and some of the students. On March 2,

2018, Mr. Scott met with Respondent to discuss those concerns. One of the

matters Mr. Scott addressed was an incident involving a student reporting

that Respondent choked him. Respondent explained to M r. Scott that Ñhe had

his hand on the childÔs neck, and the child held his hands, and then he could

pic k them up like a magic stick.Ò Mr. Scott told Respondent he could not in

jest touch children and play around, Ñwe canÔt treat children like they are our

nieces and nephews or our own children.Ò

27 . At the conclusion of the March 2, 2018 , meeting, Mr. Scott believed he

had forcefully made his point with this verbal warning to Respondent abo ut

such contact with students. However, just a week later, on March 9, 2018,

Mr. Scott had to address another matter regarding Respondent touc hing a

student. A student reported that Ñ Respondent had taken her and forced her

to the ground.Ò Mr. Scott asked Respondent about what the student reported.

Respondent told Mr. Scott that the student was going to throw mulch at

another student, therefore he felt it was necessary to do a Ñtakedown moveÒ

on the student in order to disarm the student. The student was eight years

old.

28 . As a result of these March 2 and March 9 incidents , on March 9, 2018,

Mr. Scott gave Respondent a letter of improv ement. In the letter, Mr. Scott

stated, among other things:

As we move forward, I expect you to:

1. An apology is to be given to the student who was

forced to be seated.

2. It is recommended you enroll in a Crisis

Prevention (CPI) course which is offered

periodically by the district.

3. The administration is to be contacted for

assistance if a student is causing a disruption or

unsafe environment.

29 . Mr. Scott also warned Respondent by tel ling him specifically, Ñyour

livelihood is in jeopardy, make sure that you act accordingly so that this does

not force some other steps in terms of progressive discipline.Ò

30 . Approximately five weeks later, Mr. Scott prepared his written

evaluation of Re spondent for the 2017 - 2018 school year, commenting as

follows:

Tom:

Your commitment to elevating the schoolÔs PE

program and willingness to go above and beyond

has not gone unappreciated. In preparation for a

successful 2018 - 2019 school year you are

encou raged to carefully reflect on all feedback given

to you either in person or in I - Observation. I t has

been a pleasure to work alongside you and to

support you this year.

Antonio

31 . Mr. Scott assigned a Final Summative Score of 3.39, a score placing

Respo ndent on the high end of the effective scale.

The 2018 - 2019 School Year

32 . In early November 2018, while in Respondent P.E. classroom,

Ms. Sikes heard Respondent say to one of her students, B.P., ÑHey, Big Head,

Big Head.Ò Ms. Sikes believed that B.P. h ad been in Respondent class long

enough for Respondent to know his name. Ms. Sikes asked B.P. how it makes

him feel for Respondent to call him ÑBig Head . Ò B.P. responded, ÑIt makes me

sad.Ò Ms. Sikes testified that to call a stu dent ÑBig HeadÒ is Ñdegradin g, itÔs

humiliating.Ò ÑWould you call the overweight kid, the fat kid in class. ItÔs

really no different than that.Ò

33 . While doing a writing assignment, B.P. and C.R. told Ms. Sikes that

Respondent pulled their hair Ñto get them from one place to another and that

he roughs them up or jacks them up and grabs hi s shirt and pulls it real

fast. . . and it sh akes them up back and forth.Ò These statements were

consistent with what she had seen in the past. Ms. Sikes reported the

students Ô statements to their par ents and to A ssistant P rincipal Kathleen

Baker.

34 . On October 31, 2018, Ms. Baker went to the playground to see

Respondent regarding a behavior incident involving a student on his

basketball team. While they were speaking, three female kindergarten

studen ts came up to Respondent to tell him that one of the girls (T.R.) was

sad and was crying. Respondent took the little girl and tipped her upside

down, holding her by the waist and told her to Ñtip that frown upside down.Ò

He then put her back down. T.R. was not laughing, but she stopped crying.

35 . Ms. Baker wrote in a statement after the incident Ñ [w] hile I was

uncomfortable with this, I could tell he meant it to be in jest and that he

thought it would cheer the girl up. I did not talk to him about the situ ation at

the time due to multiple issues that had to be addressed immediately.Ò

36 . Susan Joyner taught elementary school for 37 years, and holds a

degree in early child hood and elementary education. She taught

kindergarteners for ten years. She retired at the end of the 2016 - 2017 school

year. That year she taught third grade at Hartley and interacte d frequently

with Respondent . Ms. Joyner testified that her students loved Respondent ,

although he was a tough teacher and had high expectations of his studen ts.

According to Ms. Joyner, her students could n o t wait to go to P.E. class with

Respondent , and after class were very excited about what they had done and

what they had accomplished.

37 . At hearing, Ms. Joyner was questioned on cross - examination about he r

reaction to the Ñturn tha t frown upside downÒ incident. She testified as

follows:

A. Let m e turn that frown upside down. I think

thatÔs pretty creative. And itÔs also Ð and I also

think itÔs a distraction Ð so many problems are so

minimal and for somebody to turn somebody upside

down, a five - year - old and just have fun with th em

and Ð Listen, IÔm old school. I started teaching a

long time ago when every little remark and every

little thing that we said to students wasnÔt such a

big deal.

Q. So that scenario tha t I just gave you, thatÔs okay

with you; is that right?

A. Well, you know, I would have had to have been

there to witness it. Can you give me more details?

So afterwards did the little girl stop crying and go

off and play with the rest of her class and co ntinue

in th e activity? What happ ened afterwards? I donÔt

know. Did she go screaming to her teacher w hen

the teacher picked her up? Was she balling her eyes

up. You know, ÑWhy did you pick me up and put me

upside down.Ò What did the other kids -- I donÔt

kno w. ThereÔs so many details that you are not

telling me that I am not going to judge a teacher for

trying to a make a five - year - old happy. IÔm not

g oing to negatively judge them. If their intent was

to turn their frown upside down, IÔm not going to

trash th at teacher.

38 . According to Ms. Sikes, even if it is not done with malice or intent to

hurt the child, turning a student upside down ÑitÔs crossing the barrier of

inapp ropriately touching students.Ò ItÔs common sense È Ñas teachers we

donÔt interact with children that way.Ò 1

39 . The next day, November 1, 2018, Ms. Baker received an email from

Ms. Sikes. The email stated:

I am writing this letter on behalf of Nichole Poticny

and myself with concerns of situations that have

been occurring during our class' P.E. block. Two of

my students have made me aware that Tom

Masters has pulled their hair in an effort to move

them to the corner of the room after getting out in a

game, or touching other friends during a game.

They also mentioned that he "pushes and shove s

them." I have heard him directly call one of my

students "big head," and when questioned he said,

1 Respo ndent alleged that Ms. Poticny and Ms. Sikes had mou nted a ÑcampaignÒ against him.

However, there is no evidence of any animus by these fellow teachers against him, nor

evidence of any other motivation for them to mount such a campaign.

"I don't know his name. He has a big head so I call

him big head." There are other instance that we

have observed and we would like to further discuss

with you in private.

Nichole and I would like to meet with you at your

earliest convenience.

40 . Ms. Baker met with Ms. Sikes on the morning of November 2, 2018.

Ms. Sikes told Ms. Baker about what she observed and what the students had

reported to her. Later that morning, the parents of B.P. arrived at the school

and wanted to speak with an administrator. They told Ms. Baker that

Respondent called B.P. ÑBig Head,Ò that he is pulling B.P.Ôs hair and this is

unacceptable and administration needed to do somethin g about it.

41 . C.R.'s mo ther also requested a meeting with Ms. Baker . They talked

over the phone about Respondent pulling her sonÔs hair.

42 . On November 2, 2018 , Ms. Baker interviewed Ms. Poticny regarding

h er concerns about Respondent . During that inter view, Ms. Poticny told

Ms. Baker that:

"Yesterday he took a little girl's head with both

hands and shook her face because she said she had

a headache.

He makes the Kindergarteners do 30 push - ups at

the beginning of each class. If they don't have a

partner , he is their partner and stands on their

feet. If they don't do 30 push - ups, he puts them in

the corner.

He is tickling kids all the time - their stomach,

their neck, under their arms. He will grab them

around the waist.

He has picked kids up and carrie d them under his

arm.Ò

43 . Two hours following her interview with Ms. Poticny, Ms. Baker (and

Kyle Dresback, an administrator with the District Office), met with

Respondent to discuss the allegations. According to Ms. BakerÔs notes, at the

meeting Respond ent admitted to calling B.P. ÑBig Head,Ò but stated he did

not recall pulling students' hair. However, he did acknowledge patting

students on the head and shoulder and grabbing basketball players by the

shirt while demonstrating technique.

44 . On November 5, 2018, Catherine Hutchins, the Director of Human

Resources, received two telephone calls from parents regarding Respondent ' s

interactions with their children. On November 6, 2018, Ms. Hutchins met

with Respondent . When asked about turning T.R. upside dow n, Respondent

admitted that he did it and stated that he Ñwent too farÒ by doing that. When

asked about calling B.P. ÑBig Head, Ò Respondent told Ms. Hutchins Ñhe had

forgotten the boyÔs name so he just said ÑHey, 'Big Head . ÔÒ

45 . On November 7, 2018, Cathe rine Hutchins issued Respondent a letter

of reprimand. The letter of reprimand reminded Respondent of the incidents

of March 2, 2018 (putting his hands around a studentÔs neck), March 9, 2018

(doin g a Ñtake downÒ move on an eigh t - year - old student), October 31, 2018

(turning student upside down), and reports of calling a student ÑBig HeadÒ

and pulling students' hair. The letter of reprimand informed Respondent that

he was suspended without pay for two days, among other things, and directed

Ñyou will not put your hands on students during any P.E. class or when

coaching students for any reason.Ò

46 . On December 14, 2018, Dr. Goricki issued Respondent a letter of

reprimand for tickling a student Ñreally hardÒ on his neck. This incident

occurred at or around the same time Respondent received the November 7,

2018, letter of reprimand.

47 . On January 15, 2019, Dr. Goricki issued Respondent a Final Letter of

Reprimand. The letter of reprimand alleges that on January 9, 2019,

Respondent forcefully pushed a student dur ing a physical education class.

When presented the letter and requested to acknowledge receipt in writing,

Respondent wrote at the bottom of the letter , ÑI do not agree with many parts

o f the content of this letter . Ò The Administrative Complaint reflects t hat

Respondent successfully grieved the Final Letter of Reprimand and the letter

was rescinded. The evidence of record does not support a finding that

Respondent inappropriately pushed a student during a P.E. class.

48 . In March 2019, Dr. Goricki informed Respondent that he would not be

rene wed for employment for the 2019 - 2020 school year. Respondent left that

meeting angry, and then began to contact parents and tell elementary school

students that Dr. Goricki Ñfired himÒ and petitioned for their support.

B ecause Respondent ' s communications were disruptive to the school

environment, he was removed from campus before the end of the school year.

49 . Despite being non - reappointed, and being removed from campus prior

to the end of the school year, Principal Gori ckiÔs performance evaluation of

Respondent, dated April 9, 2019, rated Respondent in the high range of

Ñeffective . Ò

The Child Witnesses

50 . Among the students who testified at the hearing wer e B.P. and T.R.

During the 2018 - 2019 school year, these students were in kindergarten. It

was obvious that these young children were shy and nervous about

participating in this process. Some of the students became emotional during

questioning, but the undersigned concludes that this was the result of being

Ñplaced in t he spotlightÒ in a room full of serious - looking adults, as opposed to

their feelings toward Respondent , who was also in the room.

51 . When asked by his mother whether Respondent ever calls him by his

name, B . P . said, ÑNo, he only calls me ÓBig Head.ÔÒ Ms. Sikes was a witness to

at least one such incident. B.P. also told his parents tha t Respondent pulled

his hair. B.P. credibly testified Respondent called him ÑBig Head . Ò

52 . Petitioner has established by clear and convincing evidence that

Respondent called B.P. ÑBig Head , Ò instead of his given name.

53 . T.R. told her parents that Respondent tickled her and turned her

upside down. She also told them that it scared her. It is undisputed that

Respondent picked T.R. up by her waist and turned her upside down.

Ms . Baker witnessed i t and Respondent admitted it. T.R. testified that

picking her up and turning her upside down made her a little scared. While

the possibility exists that Respondent could have dropped T.R. when

inverting her, he did not, and she was not h armed. Rather, she was startled,

and stopped crying.

54 . Petitioner has established by clear and convincing evidence that

Respondent picked T.R. up by her waist and turned her upside down.

Corrective Measures

55 . In the 2017 - 2018 school year, Principal Sc ott recommended that

Respondent enroll in a crisis interve ntion prevention (CPI) course. However,

when Respondent tried to enroll during the 2017 - 2018 school year, he was

told that he could not enroll because Ñhe was not on the team . Ò The school

administra tion decided who was on th e behavior management team.

Mr. Scott did not know that he needed to facilitate Respondent Ô enrollment in

the CPI course.

56 . In the 2018 - 2019 school year, Respondent was permitted to take the

CPI course. In the course, Respondent was taught appropriate techniques to

use on students when they were out of control. Those techniques included

physical touch under certain circumstances. Ms. Hutchins agreed that there

were circumstances when it was appropriate to touch students to keep t hem

from harming themselves or other students. Ms. Sikes also testified that

there were circumstances when touching students was appropriate.

57 . Following his receipt of the November 7, 2018 , reprimand, Respondent

had a conversation with all of his Second to Fifth grade classes about the

student/teacher relationship, boundaries , and appropriate touch.

58 . Respondent attended six mandatory counseling sessions through th e

Employee Assistance Program. The purpose of the sessions was to assist

Respondent with understanding the proper boundaries between student and

teacher.

The Allegations in the Administrative Complaint

59 . The Administrative Complaint alleges the following:

Just prior to and during the 2018/2019 school year,

Respondent was put on notice not t o touch students

inappropriately multiple times when he received

the following warnings and/or discipline:

a) On or about March 9, 2018, Respondent received

a Letter of Improvement for putting hands on

students.

b) On or about November 11, 2018, Responde nt

received a Letter of Reprimand for inappropriate

hands on students.

c) On or about December 14, 2018, Respondent

received a Letter of Reprimand for inappropriately

touching a kindergarten student.

d) On or about January 15, 2019, Respondent

received a Final Letter of Reprimand for pushing a

second grade student. Respondent successfully

grieved this discipline and the letter was rescinded.

During the 2018/2019 school year, Respondent

ignored all warnings and inappropriately put his

hands on students. R espondent's conduct included

but may not have been limited to:

a) Respondent aggressively tickled students.

b) Respondent pulled students Ô hair in efforts to

direct the students.

c) Respondent grabbed students by their shirts and

pushed them against a w all.

d) Respondent lifted a female student off the

ground and turned her upside down in an attempt

to get her to stop crying.

During the 2018/2019 school year, Respondent

repeatedly embarrassed B.P., a six - year - old, male

student, by referring to B.P. as "Big Head."

60 . It is found that Petitioner proved by clear and convincing evidence

that Respondent inappropriately lifted a female student off the ground and

turned her upside down in an attempt to get her to stop crying. Petitioner

also proved by clear and convincing evidenc e that during the 2018 - 2019

school year, Respondent repeatedly embarrassed B.P., a six - year - old male

student, by ref erring to B.P. as "Big Head." None of the other allegations

contained in the Administrative Complaint were proven by c lear and

convincing evidence. 2

C ONCLUSIONS OF L AW

61 . The Division of Administrative Hearings has jurisdiction over the

parties and the subject matter of this case pursuant to sections 120.569 and

120.57(1), Florida Statutes (2019).

2 Respondent defended his actions by arguing that there was a double standard for male

teachers. This was implicitly acknowledged by Ms. Poticny, who testified ÑHeÔs a male

teacher interacting with other students.Ò And Respondent being male was significant

because the re was a Ñhistory of incidences that have happened with students and [male]

teachers. And itÔs the caution that we take, and itÔs spoken about amongst parents, amongst

teachers, that you just never know. And so when I first went to Tom, I was kind of like

looking out for him, donÔt do it, somebody could be watching, you just never know, just donÔt

do it È.Ò Even if Respondent is correct that a double - standard exists based on gender, the

actions proven herein would constitute violations, whether committed by a male or female

teacher.

62 . Respondent is subs tantially affected by PetitionerÔs intended decision

to discipline his Florida educatorÔs certificate and has standing to maintain

this proceeding.

63 . The Florida Education Practices Commission is the state agency

charged with the certification and regula tion of Florida educators pursuant to

chapter 1012.

64 . This is a proceeding in which Petitioner seeks to impose discipline

against Respon dentÔs educator certification. Because disciplinary proceedings

are considered to be penal in nature, Petitioner is re quired to prove the

allegations in the Administrative Complaint by clear and convincing

evidence. DepÔt of Banking & Fin. v. Osborne Stern & Co. , 670 So. 2d 932

(Fla. 1996); Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987).

65 . Clear and convincing evidenc e Ñrequires more proof than a

Ópreponderance of the evidenceÔ but less than Óbeyond and to the exclusion of a

reasonable doubt.ÔÒ In re Graziano , 69 6 So. 2d 744, 753 (Fla. 1997). As stated

by the Florida Supreme Court:

Clear and convincing evidence require s 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

lacking in confu sion as to the facts in issue. The

evidence must be of such a weight that it produce s

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 , 91 3 So. 2d 579, 590 (Fla. 2005). ÑAlthough this standard of proof may

be met where the evidence is in conflict, it seems to preclude evidence that is

ambiguous.Ò Westinghouse Elec. Corp. v. Shuler Bros. , 590 So. 2d 986, 989

(Fla. 1991).

66 . Section 1012.796 describes the disciplinary process for educators, and

provides in pertinent part:

(6) Upon the finding of probable cause, the

commissioner shall file a formal complaint and

prosecute the complaint pursuant t o the provisions

of chapter 120. An administrative law judge shall

be assigned by the Division of Administrative

Hearings of the Department of Management

Services to hear the complaint if there are dispu ted

issues of material fact. The administrative law

j udge shall make recommendations in accordance

with the provisions of subsection (7) to the

appropriate Education Practices Commission panel

which shall conduct a formal review of such

recommendations and other pertinent information

and issue a final order. The commission shall

consult with its legal counsel prior to issuance of a

final order.

(7) A panel of the commission shall enter a final

order either dismissing the complaint or imposing

one or more of the following penalties:

(a) Denial of an applica tion for a teaching

certificate or for an administrative or supervisory

endorsem ent on a teaching certificate. The denial

may provide that the applicant may not reapply for

certification, and that the department may refuse

to consider that applicantÔs appl ication, for a

specified period of time or permanently.

(b) Revocation or suspension of a certificate.

(c) Imposition of an administrative fine not to

exceed $2,000 for each count or separate offense.

(d) Placement of the teacher, administrator, or

supe rvisor on probation for a period of time and

subject to such conditions as the commission may

specify, including requiring the certified teacher,

administrator, or supervisor to complete additional

appropriate college courses or work with another

certified educator, with the administrative costs of

monitoring the probation assessed to the educator

placed on probation.

* * *

(e) Restriction of the authorized scope of practice

of the teacher, administrator, or supervisor.

(f) Reprimand of the teacher, administrator, or

supervisor in writing, with a copy to be placed in

the certification file of such person.

(g) Imposition of an administrative sanction, upon a

person whose teaching certificate has expired, for

an act or acts committed while that person

possessed a teaching certificate or an expired

certificate subject to late renewal, which sanction

bars that person from applying for a new certificate

for a period of 10 years or less, or permanently.

(h) Refer the teacher, administrator, or supervisor

to the recovery network program provided in

s. 1012.798 under such terms and conditions as the

commission may specify.

67 . Charges in a disciplinary proceeding must be strictly construed, with

any ambiguity construed in favor of the licensee. Elmariah v. DepÔt of ProfÔl

Reg. , 574 So. 2d 164, 165 (Fla. 1st DCA 1990); Taylor v. DepÔt of ProfÔl Reg. ,

534 So. 2d 782, 784 (Fla. 1st DCA 1988). Disciplinary statutes and rules must

be construed in terms of their literal meaning, and words used by the

Legislature may not be expanded to broaden their application. Beckett v. DepÔt

of Fin. Servs. , 982 So. 2d 94, 99 - 100 (Fla. 1st DCA 2008); Dyer v. DepÔt of Ins.

& Treas. , 585 So. 2d 1009, 1013 (Fla. 1st DCA 1991).

68 . The allegations set forth in the Admini strative Complaint are those

upon which this proceeding is predicated. Trevisani v. DepÔt of Health , 908 So.

2d 1108, 1109 (Fla. 1 st DCA 2005); Cottrill v. DepÔt of Ins. , 685 So. 2d 1371,

1372 (Fla. 1st DCA 1996). Due process prohibits Petitioner from taki ng

disciplinary action against a licensee based on matters not specifically alleged

in the charging instruments, unless those matters have been tried by consent.

See Shore Vill. Prop. OwnerÔs AssÔn v. DepÔt of Envtl. Prot. , 824 So. 2d 208, 210

(Fla. 4th DC A 2002); Delk v. DepÔt of ProfÔl Reg. , 595 So. 2d 966, 967 (Fla. 5th

DCA 1992).

69 . Count 1 of the Administrative Complaint seeks to discipline

Respondent on charges that he violated section 1012.795(1)(j), which states:

(1) The Education Practices Commiss ion 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 direc t

contact with students for that period of time, after

which the holder may return to teaching as

provided in subsection (4); may revoke the educator

certificate of any person, thereby denying that

person the right to teach or otherwise be employed

by a di strict 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 th at 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 Revenu e 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.

Count 1 cannot constitute an independent violation, but rather is dependent

upon a corresponding violation of the rules constituting the Principles of

Professional Conduct.

70 . Counts 2 and 3 of the Administrative Complaint seeks to discipline

Respondent on charge s that he violated rule 6A - 10.081(2)(a)1 . and

rule 6A - 10.081(2)(a)5 . , which states:

(2) Florida educators shall comply with the

following disciplinary principles. Violation of any of

these principles shall subject the individual to

revocation or suspensio n of the individual

educatorÔs 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 stu dentÔs mental and/or physical health

and/or safety.

* * *

5. Shall not intentionally expose a student to

unnecessary embarrassment or disparagement.

71 . Petitioner established, by clear and convincing evidence, that

Respondent violated rule 6A - 10.081(2) (a)1 . , in that Respondent failed to make

a reasonable effort to protect the student from conditions harmful to the

studentÔs mental health, physical health, and safety. Turning a student

upside down without her permission and calling a student ÑBig HeadÒ r ather

than his given name violates rule 6A - 10.081(2)(a)1.

72 . The rule that Respondent is charged with violating in Count 3 requires

a finding that the teacher "intentionally" exposed students to unnecessary

embarrassment or disparagement. There can be no violation in the absence of

evidence that the teacher made a conscious decision not to comply with the

rule. See Langston v. Jamerson , 653 So. 2d 489, 491 (Fla. 1 st DCA 1995;

Jenkins v. State Bd . of Educ . , 399 So. 2d 103 (Fla. 1st DCA 1981). There was

no evidence whatsoever in the record to support such a conclusion regarding

RespondentÔ s intent. While it was unprofessional to refer to a student as Ñ B ig

H eadÒ rather than his given name, or to physically invert a child, there is no

evidence to support the c onclusion that Respondent intended to embarrass or

dispar age the students. Accordingly, Respondent is not guilty of the rule

violation charged in Count 3 of the complaint.

Recommended Penalty

73 . Florida Administrative Code Rule 6B - 11.007(2)(j)1. establis hes the

range of penalties for various violations of section 1012.795(1)(j) and

rule 6A - 10.081(2)(a)1., 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 Ñprobation,Ò ÑRecovery Network Program,Ò

Ñrestrict scope of practice,Ò Ñfine,Ò a nd

Ñadministrative fees and/or costsÒ with applicable

terms thereof as additional penalty provisions in

each case in which neither a suspension or

revocation is imposed, the penalty shall include a

letter of reprimand. The terms ÑsuspensionÒ and

Ñrevocatio nÒ shall mean any length of suspension or

revocation, including permanent revocation,

permitted by statute, and shall include comparable

denial of an application for an educatorÔs

certificate.

* * *

(j) Violating the Principles of Professional Conduct

in violation of Section 1012.795(1)(j), F.S., by:

1. Failing to make reasonable effort to protect the

student from conditions harmful to learning and/or

to the studentÔs mental and/or physical health

and/or safety [subparagraph 6A10.081(2)(a)1.,

F.A.C.] Rep rimand Ï Revocation.

74 . In its Proposed Recommended Order, Petitioner urges the undersigned

to recommend a penalty of suspension of RespondentÔs educatorÔs certificate

for a period of 12 months from the date of the final order, and that

Respondent be plac ed on probation for a period of 12 months after his

suspension, with conditions to be determined by the E PC. PetitionerÔs

proposed penalty assumes that all three counts of the Administrative

Complaint have been proven, which they have not. Petitioner did n ot prove

Count 3, the count that requires the violator to have intentionally exposed a

student to unnecessary embarrassment or disparagement. PetitionerÔs

proposed penalty is too severe, given the facts found herein.

7 5 . In addition, rule 6B - 11.007(3) esta blishes aggravating and mitigating

factors to be applied to penalties ca lculated under the guidelines. Under the

facts found herein, the penalty to be imposed on Respondent is mitigated by

three factors set forth in rule 6B - 11.007(3):

(e) The number of tim es the educator has been

previously disciplined by the Commission;

(f) The length of time the educator has practiced

and the contribution as an educator;

(j) Any effort of rehabilitation by the educator.

76 . The unrebutted evidence established that R espondent has not

previously been disciplined by the E PC. In addition, the evidence established

that during his 20 years teaching under the Archdiocese of Miami ,

Respondent was never the subject of discipline for actions similar to those at

issue herein.

7 7 . Including his three years teaching for the SJCSD, Respondent ha s

been a teacher for 23 years. The evidence established that throughout his

teaching career , Respondent has been a caring and dedicated educator, and

has richly contributed to the lives of h is students.

78 . Respondent made efforts at rehabilitation, including attending a crisis

intervention program, counseling through the Employee Assistance Program,

and discussing the student/teacher relationship, boundaries, and appropriate

touch with his s tudents .

R ECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, the

undersigned hereby R ECOMMENDS that the Education Practices Commission

enter a final order finding that Respondent violated section 1012.795(1)(j),

and rule 6A - 1 0.081(2)(a)1 . , that Respondent receive a Reprimand, and that

he be placed on probation for a period of 12 months from the date of the final

order, with conditions of probation to be determined by the Education

Practices Commission.

D ONE A ND E NTERED this 2 8 th day of April , 2020 , in Tallahassee, Leon

County, Florida.

S

W. D AVID W ATKINS

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 2 8 th day of April , 2020 .

C OPIES F URNISHED :

Eric J. Lindstrom, Esquire

E gan , L ev , L indstrom & S iwica , P.A.

Post Office Box 2231

Orlando, Florida 32802

(eS erved)

Ron Weaver, Esquire

Post Office Box 770088

Ocala, Florida 34477 - 0088

(eServed)

Lisa M. Forbess, Interim Executive Director

Education Practices Commission

Department of Education

Turlington Building, Suite 316

325 West Gaines Street

Tallahassee, F lorida 32399 - 0400

(eServed)

Heidi B . Parker, Esquire

Egan , L ev, Lindstrom & S iwica , P.A.

Post Office Box 2231

Orlando, Florida 3280 2

(eServed)

Matthew Mears, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Randy Kosec, Jr., Chief

Office of Professional Practices Services

Department of Education

Turlington Building, Suite 224 - E

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

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.