19-006373PL Richard Corcoran, As Commissioner Of Education vs. Lashon Jeniece Miller Status: Closed Recommended Order on Wednesday, March 31, 2021.

Summary: Petitioner proved Respondent violated Florida Statutes and rules in her role as an educator. Recommend 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 ,

Case No. 19 - 637 3PL

vs.

L ASHON J ENIECE M ILLER ,

Respondent .

/

R ECOMMENDED O RDER

On December 8 and 9, 2020, Administrative Law Judge Yolonda Y. Green,

of the Division of Administrative Hearings (ÑDOAHÒ), conducted a hearing

pursuant to section 120.57(1), Florida Statutes (2020), via Zoom c onference.

A PPEARANCE S

For Petitioner: Ron Weaver, Esquire

Post Office Box 770088

Ocala, Florida 34477 - 0088

For Respondent: Emily Moore, Esquire

Florida Education Association

213 South Adams Street

Tallahassee, Florida 3 23 01

S TATEMENT OF T HE I SSUE S

Wheth er Respondent violated section s 1012.795(1)(g) and 1012.795(1)(j),

Florida Statutes, and Florida Administrative Code Rules 6A - 10.081(2)(a)1 .

and 6A - 10.081(2)(c)1 . , as alleged in the Administrative Complaint; and, if so,

what disciplinary penalty should be imposed.

P RELIMINARY S TATEMENT

On August 14, 2019, Petitioner, Richard Corcoran, as Commissioner of

Education (ÑPetitionerÒ or ÑCommissionerÒ), filed an Administrative

Complaint against Lashon Jeniece Miller ( ÑRespondentÒ or ÑMs. MillerÒ ),

alleging viol ations of sections 1012.795(1)(g) and 1012.795(1)(j) and r ule s 6A -

10.081(2)(a)1 . and 6A - 10.081(2)(c)1. Respondent timely filed an Election of

Rights form, disputing the allegations and requesting a hearing.

On December 2, 2019, Petitioner referred this matter to DOAH for

assignment of an ALJ. This matter was initially scheduled for hearing for

March 17, 2020. After four continuances, the final hearing in this matter was

held on December 8 and 9, 2020.

Prior to the final hearing, the parties filed a Joi nt Pre - hearing Statement.

To the extent relevant, the parties' stipulated facts have been incorporated in

the Findings of Fact below.

At the final hearing, Petitioner presented the testimony of: Joy Baxley,

Leda L. Davis, Jennifer J. Foster, Gina Gazzani ga, Kendra K. Hamby, Irenia

Hawthorne, Nancy Manning, Nancy P. Neal, Troy Sanford, and Candice R.

Scott. The undersigned admitted PetitionerÔs Exhibits 1 through 26 into

evidence. Respondent testified on her own behalf and presented the

testimony of Patric ia L. Poag. RespondentÔs E xhibits 1 through 8 were

admitted into evidence.

The t hree - volu me Transcript was filed with DOAH on January 14, 2021.

After a request for extension of time was filed and granted, the parties timely

filed Prop osed Recommended Ord ers (PROs). The PROs have been considered

in preparation of this Recommended Order.

Except where otherwise specified, all references to the Florida Statutes

and Florida Administrative Code in this Recommended Order are to those in

effect in 2018. See McCl oskey v. DepÔt of Fin. 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 on the evidence, testimony , and stipulated facts, th e following

Findings of Fact are made.

1. 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

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

for filing a formal complaint and prosecuting the complaint pursuant to

chapter 120, if the educator disputes the allegations in the complaint.

2 . Respondent holds Florida Educator Cer tificate No. 834897, covering the

areas of e lementary e ducation, E nglish for S peakers of O ther L anguages

(ÑESOLÒ) , and v arying e xceptionalities, which is valid through June 30, 2023.

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

Resp ondent was employed as an e xceptional student education (Ñ ESE Ò)

t eacher at Wyomina Par k Elementary School (ÑWPES Ò) in the Marion County

School District ( Ñ MCSD Ò ).

4 . Ms. Miller has served as an elementary education teacher since the

2000 - 01 school year. Th us, sh e has a 20 - year career with MCSD. From 2008

to 2018, Respondent taught t hird, f ourth, and f ifth g rades at Reddick Collier

Elementary (ÑReddick CollierÒÔ) . Since she holds certification in ESE, she also

taught ESE inclusion students in her g eneral e du cation classrooms. However,

she has never taught a classroom of only ESE students.

5 . In 2018, RespondentÔs value - added model (commonly referred to as

VAM ) scores rendered he r ineligible to continue teaching at Reddick Collier

because it was one of the D istrictÔs lowest performing schools. As a result, she

was involuntarily transferred to WPES.

6 . Ms. Baxley testified that Respondent was initially assigned to teach

students with academic issues, not behavioral issues. The initial assignment

was consisten t with her experience and previous work with ESE inclusion

students. Respondent had maintained certification in ESE so that she could

better serve academically low - performing ESE students in a g eneral

e ducation inclusion environment.

7 . While Respondent had training in an inclusion environment, she did

not have training or certification in Treatment and Education of Autistic and

Com munication Handicapped Children (ÑTEACCHÒ) or Crisis Prevention

Intervention de - escalation techniques for use with stude nts w ith behavioral

issues. Ms. Baxley believed that Respondent had been train ed to work with

children with behavioral issues.

8 . After the initial assignment, students were reassigned between

Ms. Miller and Patricia Poag . Respondent became responsible for on ly

students with behavioral issues. Some of the students assigned to

Respondent had extensive behavioral issues to the extent they required

medication treatment.

9 . RespondentÔs new assignment was a k indergarten through s econd

g rade s elf - c ontained ESE cl ass of 12 to 13 students. Generally, a self -

contained ESE classroom is a group environment with students who have

special needs. RespondentÔs students required increased supervision,

structure, visuals, and very specific direct instruction. Respondent,

Ms. Davis, and Ms. Poag testified that the classroom assignment was very

Ñ challenging, overwhelming, and distressing.Ò

10. The new classroom structure included six or seven more students t han

previously assigned. Respondent had one paraprofessional to assis t with

supervision of the students. Respondent requested additional staff support,

but never received it.

11 . In addition to learning to navigate the struggles with the studentÔs

behavioral issues, Respondent was struggling with paperwork. Respondent

made the effort to get help with completing necessary documents and

learning how to complet e IEPÔs and behavior plans. She had no experience in

completing these documents, or in working with Ñsevere maladaptive

behaviorsÒ before being assigned to WPES.

Alleg ations Involving Classroom Management

12 . As an ESE instructor, Ms. MillerÔs primary responsibility was to

ensure compliance with services or accommodations required for ESE

students assigned to her classroom .

13 . Gina Gazzaniga is the MCSD ESE s pecialis t. Her primary

responsibility is to ensure compliance with services/accommodations required

for all ESE students. Ms. Gazzaniga visited RespondentÔs classroom. While in

RespondentÔs classroom, Ms. Gazzaniga observed students run on tables,

throw items , and elope from the classroom unsupervised.

14 . Ms. Gazzaniga testified that w hile students were engaged in this

conduct, Respondent did not intervene. Ms. Gazzaniga also testified that

w hen students eloped from the classroom, they would typically go to the

Guidance office or the DeanÔs office.

15. Ms. Gazzaniga had the Behavior Team (behavior tech, behavior

specialist and analyst, and school academic coaches) assist with structure

and behavior/classroom management strategies in RespondentÔs classroom .

The team implemented p rocedures to help prevent students from eloping.

However, Respondent would change the practices the behavior team

implemented. Respondent testified that some of the practices put into place

were not effective. For example, when tables wer e lowered, the students

increased their jumping from table to table. In addition, the assistance button

was not within the reach of the teachers in the classroom. Ms. Gazzaniga Ôs

overall assessment was that she saw Ñlimited improvement, or refusal to

follo w taught strategies.Ò

16 . Other members of the WPES administration expressed concerns about

RespondentÔs classroom management. While visiting RespondentÔs classroom,

Ms. Baxley, along with Kendra Hamby, saw student W . H . pulling the hair of

M . D. W . H . , a ma le student, dragged M . D . , a female student , by her hair as

she screamed. Ms. Baxley testified that she heard Respondent say Ñ stop. Ò

Ms. Baxley then approached the students and removed W . H . Ôs hand from

M . D . so that he would Ñstop pulling M . D . around like a caveman on the floor.Ò

Ms. Baxley testified that Respondent did not intervene to help M . D . , but

rather Ñshe just stood there.Ò Ms. Hamby testified that ÑMs. Miller was

standing there, not intervening, not saying or doing anything. So that was

extremely con cerning.Ò

17 . On another occasion, while in RespondentÔs classroom, Ms. Baxley saw

students hitting each other with containers. Ms. Baxley testified that

Respondent did nothing to intervene. Respondent testified that she

approached the students and instr ucted them to return the containers.

18 . Jennifer Foster was a paraprofessional assigned to RespondentÔs

classroom. On one occasion t wo students were running around the room,

fighting , and chasing each other. Ms. Foster tried to Ñget in the middle to

sep arate them and they both ran behind the big solid wooden table.Ò When

Ms. Foster went in front of the table in an effort to separate them, the two

students picked up the table and tossed it over on the side. Ms. Foster was

able to move one foot out of the way, but the table landed on her other foot.

Ms. Foster testified ÑI eventually got up and hobbled over to push the panic

button and asked for assistance.Ò Her foot was injured as a result of the

incident involving the students. Ms. Foster indicated that R espondent did not

assist her.

Allegations Involving Failure to Supervise S tudents

19. In addition to concerns about classroom management, t he

Administrative Complaint alleged Respondent failed to supervise students.

One of those incidents involved K.C.

20. K.C. was one of RespondentÔs kindergarten students. He is an ESE

student with a medical condition. On September 6, 2018, a teacher informed

Assistant Principal Troy Sanford that RespondentÔs student, K.C., was found

standing at the exit door of a hall way that opens to the playground.

21. Mr. Sanford saw K.C. approaching the exit doors to the playground

alone at 11:24 a.m. K.C. stood there alone until 11:29 a.m., at which time the

teacher spoke to K.C. A fter consulting with another teacher, Ms. Hawtho rne,

about where K.C. belonged, the teacher took him to RespondentÔs classroom.

22. Respondent denied allowing K . C . to stand alone in the hallway for

several minutes. She testified that while standing at her classroom door,

awaiting the arrival of student s coming from the restroom, K . C . began to

walk from Ms. Davis toward her. This was customary for her students if

children needed additional time in the restroom. As K . C . got close to

Respondent, L . G . R . began climbing on the top shelf of a bookcase in the

c lassroom. Since their routine was for the students to come into the

classroom, she assumed K . C . would follow the customary practice and enter

the classroom . Respondent testified that she made a judgment call to turn

her attention to L . G . R . to ensure his sa fety and prevent harm to him. Instead

of entering the classroom, K.C. walked down the hallway. Based on the

totality of the circumstances, RespondentÔs actions were reasonable.

23. A second incident involved a different student . Two first - grade

teachers, Nancy P. Neal and Ireina Hawthorne , were outside on the

playground with their students. When recess was over, they were gathering

their students and doing a head count to go back inside to their classrooms

when they noticed there was Ñan extra childÒ in li ne. The student did not

belong in their classroom. The student was nonverbal so they could not

determine to which classroom he belonged. Ms. Hawthorne assumed that he

belonged in RespondentÔs class and took the student to RespondentÔs

classroom. When Ms. H awthorne took the student to RespondentÔs classroom,

Respondent Ñushered him into the classroom.Ò

24. Respondent testified that she was in the hallway, counting her

students before going to her classroom. She explained that she had a

substitute paraprofe ssional , Ms. Foster, who did not know all of her students.

In addition, t his was the first time she had Ms. Foster serve as a substitute.

To help remedy the issue regarding the student left outside , Respondent

asked her assigned p araprofessional not to tak e breaks or lunch during

recess. Whether Respondent was in her classroom (as stated by

Ms. Hawthorne) or in the hallway, the student was left outside without her

supervision, which could be harmful to the studentÔs safety.

25. A third incident related to supervision involved student L . G . R. On

October 19, 2019, L . G . R . entered Ms. GazzanigaÔs office and hid under a

table. The evidence offered at hearing demonstrated that when the student

eloped from the classroom , Respondent immediately followed the student into

the guidance office. However, s he did not see the L.G.R. , so she continued to

search for him. A minute or so later, Ms. Gazzaniga saw Respondent walk

down the hallway towards the main office. Respondent later learned the

student was in the guidance of fice at the time she initially searched that

location. However, Ms. Gazzaniga did not alert Respondent that L . G . R . was

in her office. Ms. Gazzaniga testified that she Ñkept an eye on him while he

was there.Ò After a short time, Ms. Gazzaniga went over to L . G . R . and spoke

to him. He came from under the table and went to the doorway of the office.

At the same time, Respondent was walking back down the hallway and saw

L . G . R. and took him back to her classroom. The credible evidence

demonstrates that Respondent made reasonable efforts to locate the student

by searching for him immediately after his elopement from the room.

DP - 3 Assessment

26 . On September 10, 2018, Ms. Scott gave Respondent a Developmental

Profile Third Edition (ÑDP - 3Ò) to complete for student A . M . S.

27 . Students who are developmentally delayed must have a DP - 3

completed for re - evaluation to determine what ESE services need to be

continued. A DP - 3 is an assessment tool used to evaluate nonverbal or low

achieving students that have not reached the cognitive level to take an IQ

test. MCSD uses the DP - 3 to assess the studentÔs level of achievement.

28 . The DP - 3 assesses five areas of development, including the childÔs

cognitive functioning, physical development, communication skills, social ,

emo tional, and adaptive skills. The assessment is completed by completing a

series of questions on whether a student can or cannot perform a particular

task.

29 . Respondent returned the DP - 3 to Ms. Scott on September 25, 2018.

30 . Respondent circled items indicating a ÑyesÒ response . D uring the

hearing, however, Respondent acknowledged the student would not be

capable of performing the task s . In addition, Ms. Scott did not believe A . M . S .

could perform the skills for which Respondent answered yes.

31 . Base d on the evidence offered at hearing, s ome of the responses

Respondent provided on the DP - 3 were inaccurate.

Performance Assessments

32 . Throughout her career , Respondent ha d been assessed as progressing

or effective related to instructional practice a s an educator.

33 . For the 2018 informal classroom teacher instructional assessment

performed by Ms. Baxley, Ms. Cino, and Mr. Sanford, Ms. Miller was

assessed as unsatisfactory in multiple areas. 1 However, in the areas of

criticism, it was also noted th at Ms. Miller was engaged in instruction of

students. Interestingly, she was criticized for a child wandering to her desk,

and then, criticized for leaving the group of students she was working with to

redirect the wandering student. In another instance, t he observers were

critical of a Positive Behavioral Interventions Support plan but Ms. Miller

was never trained in the area of behavioral management.

34 . For the 2019 informal classroom teacher evaluation, Ms. Miller was

assessed effective in each catego ry, including areas where she was assessed

unsatisfactory in 2018.

Disciplinary Action at WPES

35 . For the first time in her career, Respondent received disciplinary

action while working at W PES .

3 6 . On or about September 10, 2018, Respondent was issued an oral

reprimand for purported failure to supervise the students assigned to her.

37 . On or about September 26, 2018, Respondent was issued a written

reprimand for misconduct for purported falsification of documents.

38 . On or about October 26, 2018, Respondent was issued a written

reprimand for alleged failure to supervise a student assigned to her.

39 . On or about November 26, 2018, Respondent was issued Step O ne

progressive discipline for substandard performance due to behavioral

concerns in her classroom and failure to report grades.

40 . On or about December 11, 2018, Respondent was issued a Step T wo

verbal reprimand regarding substandard performance.

1 In 2018, Ms. Miller was as sessed unsatisfactory in the following areas: 2b . establishing a

culture for learning, managing student behavior ; 3b . using questioning and discussion

techniques ; and 3c . engaging students in learning.

41 . On or about December 18, 2018, Respondent was issued a Step T hree

progressive discipli ne written reprimand regarding substandard

performance.

42 . RespondentÔs educat or certificate has no prior discipline.

C ONCLUSIONS OF L AW

4 3. The Division has jurisdiction over the parties and the subject matter of

this case pursuant to sections 120.569 and 120.57(1), Florida Statutes.

44 . Respondent is substantially affected by PetitionerÔs intended decision

to discipline her Florida educatorÔs certificate and has standing to maintain

this proceeding.

45 . Petitioner is the state agency charged with th e certification and

regulation of Florida educators pursuant to chapter 1012.

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

against RespondentÔs educator certification. As a result, Petitioner bears the

burden of proving the spe cific allegations of wrongdoing that support the

charges alleged in the Administrative Complaint before disciplinary action

may be taken against the professional license of a teacher. Tenbroeck v.

Castor , 640 So. 2d 164, 167 (Fla. 1st DCA 1994). Because di sciplinary

proceedings are considered penal in nature, Petitioner must 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).

47. Clear and convincing evidence 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 , 696 So. 2d 744, 753 (Fla. 1997). As stated

by th e Florida Supreme Court:

Clear and convincing evidence requires that

the evidence must be found to be credible;

the facts to which the witnesses testify must

be distinctly remembered; the testimony

must be precise and lacking in confusion as

to the facts i n issue. The evidence must be of

such a weight that it produces in the mind of

the trier of fact a firm belief or conviction,

without hesitancy, as to the truth of the

allegations sought to be established.

In re Davey , 645 So. 2d 398, 404 (Fla. 1994) (quo ting, with approval,

Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983)); see also In re

Henson , 913 So. 2d 579, 590 (Fla. 2005). 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. Inc. , 590 So. 2d 986,

989 (Fla. 1991).

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

provides in pertinent part:

a. Upon the finding of probable cause, the

commissioner sh all file a formal complaint and

prosecute the complaint pursuant to 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 th ere are disputed

issues of material fact. The administrative law

judge 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

recomm endations and other pertinent information

and issue a final order. The commission shall

consult with its legal counsel prior to issuance of a

final order.

b. A panel of the commission shall enter a final

order either dismissing the complaint or imposing

o ne or more of the following penalties:

(a) Denial of an application for a teaching

certificate or for an administrative or supervisory

endorsement 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 application, 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 separ ate offense.

(d) Placement of the teacher, administrator, or

supervisor 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 ad ditional

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, admin istrator, 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 ha s 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 permanent ly.

(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.

4 9. 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 ).

50. The allegations set forth in the Administrative Complaint are those

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

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

1372 (Fla. 1st DCA 19 96). Due process prohibits Petitioner from taking

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, Inc. v. De pÔt of Envtl. Prot. ,

824 So. 2d 208, 210 (Fla. 4th DCA 2002); Delk v. DepÔt of ProfÔl Reg. , 595 So.

2d 966, 967 (Fla. 5th DCA 1992).

51 . The Administrative Complaint seeks to discipline Respondent on

charges that she violated sections 1012.795(1)(g) and 1 012.795(1)(j), in

pertinent 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 em ployed by a district school board or

public school in any capacity requiring direct

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 perso n, thereby denying that

person the right to teach or otherwise be employed

by a district school board or public school in any

capacity requiring direct contact with students for

up to 10 years, with reinstatement subject to the

provisions of subsection (4) ; may revoke

permanently the educator certificate of any person

thereby denying that person the right to teach or

otherwise be employed by a district school board or

public school in any capacity requiring direct

contact with students; may suspend the educ ator

certificate, upon an order of the court or notice by

the Department of Revenue relating to the

payment of child support; or may impose any other

penalty provided by law, if the person:

* * *

(g) Upon investigation, has been found guilty of

personal conduct that seriously reduces that

personÔs effectiveness as an employee of the district

school board.

* * *

(j) Has violated the Principles of Professional

Conduct for the Education Profession prescribed by

State Board of Education rules.

52 . As to Count One , there was not clear and convincing evidence that

RespondentÔs actions seriously reduced her effectiveness. To the contrary,

after adjustments were made and Respondent was reassigned to a different

classroom, her assessments reflected effective p erformance in each category.

The testimony offered at hearing clearly and convincingly demonstrated that

RespondentÔs actions were , in part, rooted in her lack of training to serve in

the classroom to which she was assigned. The clear and convincing eviden ce

from two teachers who knew RespondentÔs background and worked with her,

was that she did not have sufficient training in managing students with

behavioral challenges, she had never completed documents related to

assessment of students , and she had never instructed students in a classroom

with only ESE students.

53. In his PRO, Petitioner asserted that Ñr eduction in effectiveness may be

shown in some instances simply from the nature of the misconduct. Purvis v.

Marion Cty. Sch. Bd. , 766 So. 2d 492 (Fla. 5th DCA 2000); Walker v.

Highlands C ty. Sch. Bd. , 752 So. 2d 127 (Fla. 2d DCA 2000); Summers v. Sch.

Bd. of Marion Cty. , 666 So. 2d 175, 175 (Fla. 5th DCA 1995). Ò The

undersigned is not persuaded by PetitionerÔs argument.

54 . Count Two cannot constitute an independent violation, but rather is

dependent upon a corresponding violation of the rules constituting the

Principles of Professional Conduct.

55 . Counts Three and Four of the Administrative Complaint seek to

discipline Respondent on charges that she violated rules 6A - 10.081(2)(a)1 .

and 6A - 10.081(2)(c)1., which state:

(2) Florida educators shall comply with the

following disciplinary principles. Violation of any of

these principles shall subject the individual to

revocation or suspension of the indiv idual

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 studentÔs mental and/or physical health

and/or safety.

* * *

(c) Obligation to the profession of education

requires that the individual:

1. Shall maintain honesty in all professional

dealings.

56. As to Count Three , Petitioner has proven by clear and convincing

evi dence that Respondent failed to make reasonable effort to protect a

student from conditions harmful to his safety when she left a nonverbal

student on the playground without supervision.

57. As to Count Four, the Administrative Complaint alleges Responde nt

failed to maintain honesty in all professional dealings by providing false

answers on the DP - 3 assessment for A. M. S . Rule 6A - 10.081(2)(c)1. does not

define the term Ñhonesty.Ò If a term is not defined in rule or statute, its

common ordinary meaning appl ies. Cole Vision Corp. v. Dep't of Bus. & Prof'l

Reg. , 688 So. 2d 404, 410 (Fla. 1st DCA 1997). It is appropriate to refer to

dictionary definitions when construing statutes to determine the plain and

ordinary meaning of the words used therein. Sch. Bd. of Palm Beach Cty. v.

Survivors Charter Sch., Inc. , 3 So. 3d 1220, 1233 (Fla. 2009). Merriam

WebsterÔs online dictionary defines ÑhonestyÒ as Ñadherence to the facts;

fairness and straightforwardness of conduct.Ò See "Honesty,"

https://www.merriamwebster.com /dictionary/honesty (last visited March 25 ,

2021) . Petitioner has proven by clear and convincing evidence that

Respondent 's answers on the DP - 3 were false . The answers provided on the

assessment could have led to the student not receiving the services need ed.

Respondent had not been trained on completing the DP - 3 and s he believed

that her incomplete form would not be used for the student. However, she

submitted the form with false information. Thus, it has been established that

Respondent failed to maintain honesty in her professional dealings and

committed the violation alleged in Count Four .

58. By establishing the specific violations alleged in Counts Three and

Four , Petitioner has established the general violation of the Principles of

Professional Condu ct alleged in Count Two .

59. Florida Administrative Code Rule 6B - 11.007(2) establishes the range

of penalties for violations of section s 1012.795(1)( g ) and 1012.795(1)(j) and

rule s 6A - 10.081(2)(a)1. and 6A - 10.081(2)(c)1. The version of the rule in effect

at the time of RespondentÔs offenses provided 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 pa rticular

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 and

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

ÑrevocationÒ shall mean any length of suspension or

revocation, inclu ding permanent revocation,

permitted by statute, and shall include comparable

denial of an application for an educatorÔs

certificate.

(g) Engaging in personal conduct which seriously

reduces effectiveness as a district school board

employee in violation of section 1012.795(1)(g), F.S.

(Probation to Revocation).

(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 . (Reprimand to Revocation).

* * *

15. Failing to maintain honesty in all professional

dealings. [subparagraph 6A - 10.081(2)(c)1., F.A.C.]

( Reprimand to Revocation ) .

60 . The Commission may consider the following as aggravating or

mitigating factors:

(a) The severity of the offense;

(b) The danger to the public;

(c) The number of repetitions of offenses;

(d) The length of time since the violation;

(e) The number of times the educator has been

previously disciplined by the Commission;

(f) The length of time the educator has practiced

and the contribution as an educator;

(g) The actual damage, physical or otherwise,

caused by the violation;

(h) The deterrent effect of the penalt y imposed;

(i) The effect of the penalty upon the educatorÔs

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, penalties imposed and penalties served;

(o) Actual negligence of the e ducator pertaining to

any violation;

(p) Penalties imposed for related offenses under

subsection (2), above;

(q) Pecuniary benefit or self - gain inuring to the

educator;

(r) Degree of physical and mental harm to a

student or a child;

(s) Present status of p hysical and/or mental

condition contributing to the violation including

recovery from addiction;

(t) Any other relevant mitigating or aggravating

factors under the circumstances.

61. Respondent has shown mitigation by affirmative evidence of good

teachi ng skills . She has served as an educator for approximately 20 years

without any prior disciplinary action against her educator certificate.

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

R ECOMMENDED that the Educati on Practices Commission enter a final order

finding that:

1. Respondent violated the statues and rules as referenced above;

2. Respondent be placed on probation for a period of two years, with

conditions to be determined by the Education Practices Commiss ion.

D ONE A ND E NTERED this 31st day of March , 2021 , in Tallahassee, Leon

County, Florida.

S

Y OLONDA Y. G REEN

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of t he

Division of Administrative Hearings

this 31st day of March, 2021.

C OPIES F URNISHED :

Emily Moore, Esquire Ron Weaver, Esquire

Florida Education Association Post Office Box 7700 88

213 South Adams Street Ocala, Florida 34477 - 0088

Tallahassee, Florida 32301

Randy Kosec, Jr., Chief

Lisa M. Forbess Office of Professional Practices Services

Interim Executive Director Department of Education

Education Practices Commission Turlington Building, Suite 22 4 - E

325 West Gaines Street, Room 316 325 West Gaines Street

Tallahassee, Florida 32399 Tallahassee, Florida 32399 - 0400

Matthew Mears, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

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.