19-006755PL Richard Corcoran, As Commissioner Of Education vs. Dorothy J. Meister Status: Closed Recommended Order on Tuesday, December 29, 2020.

Summary: Respondent failed to adequately supervise first graders, when 3 boys followed 1 girl into classroom bathroom and girl was touched inappropriately. Recommend 2 years? suspension and other penalties.

P RELIMINARY S TATEMENT

On August 14, 2019, Richa rd Corcoran, as Commissioner of Education

(Petitioner) , issued an Administrative Complaint against Respondent,

Dorothy J. Meister (Respondent or Ms. Meister) , setting forth allegations

rega rd ing a n incident in the bathroom in Respondent's classroom on or about

September 28, 2017, a nd charging Respondent with a violation of section

1012.795(1)(j) and rule 6A - 10.081(2)(a)1.

Respondent timely filed an Election of Rights by which she requested a

dispu ted - fact administrative hearing , and on December 20, 2019, the case

was referred to DOAH for the assignment of an administrative law judge to conduct the requested hearing.

After scheduling input from the parties, the hearing was initially set for

Februar y 28, 2020. Thereafter, two continuances were granted, first on

Respondent's motion and then on Petitioner's motion. Following the second continuance, the hearing was rescheduled for August 31 and S eptember 1,

2020, by Zoom conference, and it went forwa rd as rescheduled.

Prior to the hearing, the parties filed a Joint Pre - hearing Stipulation in

which they stipulated to a few facts . The stipulated facts are incorporated in

the Findings of Fact below.

On August 17, 2020 , the same day the Joint Pre - hearing S tipulation was

filed, Petitioner filed a Daubert Challenge and Motion to Exclude Testimony

as an Expert Witness ( Daubert Motion) . Respondent filed a response in

opposition to the Daubert Motion on August 21, 2020 . On August 24, 2020,

Petitioner filed a Req uest for Case Management Conference and Oral

Argument on Daubert Motion and Response. For reasons summarized in an

O rd er issued on August 25, 2020, Petitioner's motions were den ied .

At the hearing, Petitioner presented the testimony of Christian G onzalez ,

Anne Lynaugh, student R.D. , Sandra McGraw, Michelle Carralero , 1 Irene

Roth, and Jason Loomis. Petitioner also presented the testimony of student

J.C. and Patricia Lewis by deposition in lieu of live testimony, without

objection by Respondent. Petitioner's Exhibits 2 through 18, 19 (limited to

Bates pages 65 and 66), and 21 through 25 were admitted in evidence ;

Petitioner's Exhibits 23 and 24 are the deposition transcripts of J.C. and

Ms. Lewis . 2 Respondent objected to Petitioner's E xhibits 6, 8, 9, 10, 12 , and

18 as hearsay . The asserted hearsay nature of these exhibits was noted, but

the objections were overruled. The parties were reminded that p ursuant to

section 120.57(1)(c), Florida Statutes, and Florida Administrative Code

Rule 28 - 106.213(3), if hear say evidence would not be admissible over

objection in a civil action in Florida , it cannot be the sole basis for a finding of

fact; it s use in this proceeding is limited to supplementing or explaining

competent evidence.

Respondent testified on her own b ehalf and also presented the testimony

of Nadja Schreiber Compo, Ph.D. ( accepted over objection as an expert in

c hild interview techniques ) , Christ ine Lyon , Kate Schneider Panico , and

Celeste Haas. Respondent's Exhibits 1, 6,

3 11, and 12 were admitted.

1 tness at work. When testifying, she gave her Michelle Carralero is the name used by this wi

full/married name, Michelle Carralero Guillen. Since she is referred to in documentary

evidence by her work name, she will be referred to that way herein for clarity.

2 In addition to the deposition transcripts (Pet. Ex. 23 and 24), a flash drive was provided

with video reco rd ings of both depositions , which was helpful to resolve a few discrepancies in

the court reporter's transcription when converting student names to initials. The flash drive will be secured i n a sealed envelope, along with unredacted copies of Petitioner's admitted

e xhibits, to protect the privacy of students identified therein. Redacted exhibits referring to

students by their initials are included in the unsealed part of the reco rd .

3 Resp ondent's Exhibit 6 contains student names. An unredacted version is secured in the

sealed envelope with Petitioner's unredacted exhibits. A redacted version referring to

students by their initials is included in the unsealed part of the reco rd .

A fter the hearing, the parties were informed of the ten - day timeframe

provided by rule for filing proposed recommended o rd ers (PROs) , running

from the date of filing of the hearing transcript at DOAH .

The four - volume Transcript was filed on October 12, 20 20. A fter the

Transcript was filed, two agreed motions for extensions of the PRO deadline

were filed and granted. 4 Both parties timely filed PROs by the extended

deadline of November 5, 2020, and they have been considered in the

preparation of this Recomme nded O rd er.

Unless otherwise specified, c itations to Florida S tatutes and rules are to

the 2017 codification s in effect a t the time of the alleg ations . See McCloskey v.

Dep't of Fin. Servs. , 115 So. 3d 441 (Fla. 5th DCA 2013).

F INDINGS OF F ACT

1 . Petiti oner is the agency head of the Florida Department of Education .

Petitioner is responsible for investigating allegations of misconduct against

individuals holding Florida educator certificates. Upon a finding of probable

cause, Petitioner is responsible for filing a n administrative complaint, and

prosecuting the case in a chapter 120 administrative hearing if the educator

disputes the allegations.

2. Respondent holds Florida Educator's Certificate 633378, covering the

areas of Early Childhood Education, Elem entary Education, and English for

Speakers of Other Languages (ESOL), which is valid through June 30, 2024.

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

fall of 2017) , Respondent was employed as a first - grade teacher at Millenn ia

Ga rd ens Elementary School (Mille n nia Ga rd ens) in the Orange County

4 By agree ing to an extended deadline for post - hearing submissions beyond ten days after the

filing of the transcript, the parties waived the 30 - day time frame for issuance of the

Recommended O rd er. See Fla. Admin. Code R. 28 - 1 06.216.

School District (School District). Respondent had just begun teaching first

grade at Millennia Ga rd ens that school year ( 2017 - 2018 ) .

4. Respondent has been employed by Orange County Publ ic Schools

(OCPS) since November 7, 1988. B efore the 2017 - 2018 school year , she was a

classroom teacher for only four years early in her career, teaching

kindergarten at Pines Hills Elementary School from 1990 to 1994.

5. F or the next nine years , Responde nt taught ESOL "pull - out" sessions

for small groups of students who were learning English. The students would

be taken out of their regular classrooms to work with R espondent for about

45 minutes per day, and then the y would return to their regular classro oms.

6. In 2003, Respondent b ecame the curriculum compliance teacher for the

ESOL program. She explained that this primarily involved paperwork,

parent meetings, and student testing . Her job was classified as a non -

classroom position. She did some work wi th small groups of students, usually

on an informal basis. Instead of all - day responsibility for a full classroom , she

would work with four or five students for thirty - minute sessions .

7. Prior to the 2017 - 2018 school year, Respondent had been working at

Grand Avenue Primary Learning Center in t he ESOL curriculum compliance

position for ten years. Respondent offered in evidence t he annual

performance evaluations for her last five years in this non - classroom position,

showing she achieved overall ratings of effective or highly effective. 5

8. Grand Avenue Primary Learning Center closed after the 2016 - 2017

school year. The School District placed Respondent at Millennia Ga rd ens,

where she was assigned to a first - grade classroom teaching position because

there was an opening. Respondent did not request the assignment, nor did

5 erformance evaluations as a classroom teacher in evidence, Respondent did not offer her p

from either the four - year period in the early 1990s or any period since her return to the

classroom in August 2017. Respondent described her evaluation for 2018 - 2019, testifying

that her overall ev aluation was "needs improvement," with an "unsatisfactory" rating for

student learning gains. She said no annual evaluations were done for the 2019 - 2020 school

year due to the COVID - 19 pandemic and the change to remote online classes. There is no

record ev idence as to Respondent's evaluation for the 2017 - 2018 school year at issue here .

Millennia Ga rd ens select Respondent following an interview process to fill

th e opening , but the placement was made and Respondent took the position.

9. Respondent's re - entry into classroom teaching after a 23 - year hiatus

was challenging, primarily because of new technologies incorporate d into

teaching. Millennia Ga rd ens was a new school , having opened in 2016 , and it

was fully digital in 2017. Her classroom had a S mart B oa rd she was supposed

to use to teach , and the students had individual devices (tablets or laptops ) .

Respondent a dmitted she was slow to adapt to technology . The students were

accustomed to digital experiences in the c lass room, but Respondent often

resort ed to "old school" met hods . T he students became antsy and impatient

with her fumbling and shying away from technology she was supposed to use.

10. Some aspects of classroom teaching , however, were not new . First

graders, Respondent knew, could present management challenges. As she put

it, first graders all have their moments. While her students were on their best

behavior for the first couple of weeks of the school year — what she called the

"honeymoon" period — that ended by September 1, 2017, when Respondent

began having to call for assistance from the "School Wide Assistance Team,"

referred to as the SWAT team. Her calls, logged by the front office, were

sporadic at first, then more frequent beginning in late September 2017.

11 . Respondent's first - grade classroom was relatively s mall in terms of

physical space and n umber of students ( 17 or 18 students in the fall of 2017 ) .

12 . Among Respondent's 17 or 18 students were J.C. , K.R. , P.C. , and R.D . 6

Respondent described K.R. and P.C. as troublemakers — the two students

most consistentl y engaging in disruptive behavior , and the ones for whom she

would resort to calls for SWAT assistance . As for the other two, Respondent

described R.D. as "a bright kid" who did not initiate trouble but would

sometimes j oin in the disruption started by K.R . and P.C. ; and Respondent

described J.C. as a happy child most of the time, though on occasion,

6 K.R. These four students were all in Respondent's classroom until October 12, 2017, when

was transferred to another first - grade class at Millennia Ga rd ens taught by Ms. Riv era.

something would set her off and she would talk back or refuse to follow

instructions. J.C. was described by a Millenia Gardens assistant principal

and the mast er principal 7 as a very smart , articulate little girl.

13 . Inside Respondent's classroom was a bathroom designed for one

occupant, with a single toilet and sink. Respondent's rule to control bathroom

traffic was to require a student to raise his or her han d and receive

Respondent's permission to go to the bathroom.

14 . Respondent knew that , in defiance of h er rule, sometimes more than

one student would go into the bathroom at the same time. Respon dent

acknowledged that there were multiple occasions when P.C . and K.R. would

run into the bathroom to gether to hide when they were in trouble. (These

occasions would have been before October 12, 2017, when K.R. was transferred to another class.) Another time, two girls went into the bathroom

together to share chewi ng gum. When Respondent notice d multiple students

going into the bathroom together, she would o rd er them out, unlocking the door if necessary.

15 . Although Respondent knew that sometimes m ultiple student s went

into the bathroom together — a risky , potential ly dangerous situation given

the lack of any supervision — Respondent did not employ special procedures or

increase her vigilance to ensure she w ould be aware of , and thwart, attempts

by multiple students to disappear into the bathroom. In Respondent's small

classroom, heightened vigilance would have meant kee p ing eyes on , and

know ing the whereabouts of , all students — particularly the troublemakers .

16 . Respondent's classroom was set up so that from any where in the

classroom, she would have been able to accou nt for the whereabouts of her

students. Th e student desks were grouped in five clusters . Four clusters had

four desks pushed together , with t wo desks side - by - side facing two more

7 A s "master principal , " Ms. Lynaugh was principal of two schools in the 2017 - 2018 school

year : Mille nia Elementary School and Millenia Gardens. She was aided by two assistant

principals at M illenia Gardens : Michelle Carralero and Sandra McGraw.

desks side - by - side . The fifth cluster had three desks , with two desks pushed

together facing each other and the front of a thi rd desk pushed up to the side

of the two desks . Respondent's desk was in the far corner of the classroom,

diagonally across the room from the classroom door. Her desk faced out to the

classroom , although she testified that she rarely sat at her desk , which was

covered with papers in wild disarray , some half falling off the desk's surface.

17 . On November 1, 2017, Respondent gave her students an assignment to

write about something they had done the previous da y. While circulating,

Respondent noticed J.C. 's paper. On one side, J.C. wrote: "Las t night I had

fun. First , Next. Movie . " However, on the other side of the paper, a picture

was drawn of a shape — possibly a face — with two heart s, the wo rd " L ove"

next to the hearts, and immediately below, the wo rds , " I like to have sex."

18 . Respondent asked J.C. why she wrote th at, referring to the note ab out

"sex." J.C. responded that she did not write it. However, Respondent saw that

the wo rds appeared to be in J.C. 's hand writing, comparable to J.C.'s writ ing

on the same paper r espond ing to the assignment.

19 . Respondent took the paper away from J.C. and wrote J.C. 's name and

the date on it. However, she did not immediately report it or show the paper

to an administrat or , t o the school counselor, or to J.C. 's parents that day,

November 1, 2017 (a Wednesday), nor on Thursday, November 2, 2017, or

Friday, November 3, 2017. It was not until after the school day on Friday

that Respondent decided to leave a note for the school co unselor, along with

J.C.'s paper, in the counselor's mailbox. Her note said: "Mr. Gonzalez, I wanted you to see what J.C. wrote on the attached paper. Could you please

speak with her sometime? Thank you! Jane Meister." Respondent explained:

I had intended to discuss it with our guidance

counselor in person, but I was, you know, we had a

lot of meetings that week and I was having issues

with my leg that I was not able to arrange to catch

him within a reasonable period of time. So then I wrote a note asking him to discuss this with J.C.

and put it in his mailbox. (T r. 466 - 67).

2 0 . Respondent admitted she knew the counselor may well have already

left for the weekend , which turned out to be the case . It was not until late

morning on Monday, November 6, 2017, th at the counselor, Mr. Gonzalez,

checked his mailbox and found J.C. 's paper with Respondent's note.

2 1 . Although Respondent had not acted with any sense of urgency,

Mr. Gonzalez did. He described J.C. 's note about sex as a red flag . As he and

other witnesse s explained , it is not normal for a first grader to use the wo rd

"sex , " so J.C.'s "sex" note raised concerns about what was going on in the

student's school life, family life, or community life. 8

2 2 . Mr. Gonzalez immediately notified assistant principal S andra McGraw

about the two notes ( J.C. 's "sex" note and Respondent's note asking him to

speak with J.C. "sometime"). Ms. McGraw asked Mr. Gonzalez to follow

protocol and speak confidentially to J.C. about it.

2 3 . That afternoon, Mr. Gonzalez took J.C. out of M s. Meister's classroom

and escorted her to his office to speak to her privately. Once in the office, he

asked her about the note, showing it to her. J.C. said that she did not write

the note, but she also said that there were three boys involved in get ting her

to write the note and help ing her with the spelling. She identified the three

boys as R.D. , P.C. , and K.R.

2 4 . Mr. Gonzalez testified that J.C. seemed distressed and was not very

forthcoming , so he did not prolong the interview . He returned J.C. t o the

classroom after five minutes.

2 5 . Mr. Gonzalez then spoke separately with each of the three boys about

J.C. 's note. Each of them denied pressuring J.C. to write the note about "sex."

8 Res pondent asserted otherwise in her PRO. Respondent offered this statement to suggest

that J.C.'s "sex" note may not have been cause for concern: "Children of 6 and 7 - year - olds

[sic] begin to be curious about sex at this age." (Resp. PRO at 33). More boldly, Respondent

asserted: "Children of 6 and 7 - years old engage in exploratory sexual play. This is normal."

(Resp. PRO at 35). These s tatements were not supported by citations to record evidence ;

there is no record support. All the credible record evidence wa s to the contrary.

2 6 . Mr. Gonzalez also spoke briefly to Respondent that afternoon ,

r eminding her that she was required to report the "sex" note to the

Department of Children and Families' (DCF) abuse hotline. She responded,

"I know." She had not yet reported the "sex" note to DCF ; she testified she did

not call the abuse hotline to repor t the "sex" note until told to do so. 9

2 7 . Mr. Gonzalez updated Ms. McGraw and suggested that she might

want to try to follow up with J.C. He testified that both Ms. McGraw and

Ms. Carr a lero spoke with these children a lot — he called them "go - to" persons

fo r the young students — and he thought J.C. might be more comfortable

speaking to a female about the "sex" note.

2 8 . Ms. McGraw followed up with J.C. , as suggested . On November 7,

2017, she took J.C. out of Respondent's class and brought J.C. to her office to

talk. Ms. McGraw testified credibly that she already had an established

rapport with J.C. and that J.C. , like other students, tended to open up to and

talk easily with Ms. McGraw. To encourage this, Ms. McGraw had a

comfortable set - up in her office, inc luding a beanbag for children to sit o n.

29 . Ms. McGraw' s purpose in talking to J.C. w as to follow up about the

"sex" note. She let J.C. get comfortable o n the beanbag, then asked J.C. to tell

her about it.

3 0 . To Ms. McGraw's surprise, J.C. opened up an d volunteered

information about a different subject : an incident in the bathroom in

Respondent's classroom . J.C. told Ms. McGraw that she did not know how it

happened, she thought she had locked the door , but three boys — K.R. , P.C. ,

and R.D. — followed her in to the classroom bathroom . She told Ms. McGraw

9 Respondent claimed that when she called the DCF abuse hotline to report the "sex" note,

someone told her the report did not meet DCF's criteria. Her testimony rega rd ing what she

was told is hearsay that would not be admissible over obj ection in a civil action and that

neither supplement s n or explain s any admissible evidence. It is insufficient to support a

finding of fact and no finding is made on this subject.

that one boy stood gua rd at the door, while the other two got her down to the

floor and held her down, doing inappropriate things to her. 10

3 1 . Ms. McGraw testified credibly that when J.C. told her about the

ba throom incident , the first thing Ms. McGraw asked J.C. was where

Ms. Meister was whe n J.C. went into the bathroom . J.C. responded that

Ms. Meister was in the classroom.

3 2 . Ms. McGraw had J.C. write down what she was able to, but all she

wrote was the name s of the three boys. Ms. McGraw did not belabor the

matter, as she wanted to speak with the three boys before the end of the day

(November 7) , contact the students' parents , and report the incident to OCPS

officials , to DCF, and t o t he Orange County Police Department.

3 3 . Ms. McGraw had the three boys taken out of class and put in separate

rooms. She spoke with each boy separately . Each boy admitted to a bathroom

incident of some kind , and two of the boys admitted that J.C. was touched

inappropriately . K.R. admitted that he and P.C. followed J.C. into the

bathroom , P.C. touched her on her " private part , " and J.C. tried to stop him .

K.R. admitted to touching J.C.'s belly, and J.C. pushed him back. R.D. said

that P.C. and K.R. went into the bathroom while J.C. was using it, and they

tried to kiss her and jump on her. P.C. only said something about playing in

the bathroom . Each boy wrote a short statement , signed by Ms. McGraw .

3 4 . K.R. had difficulty writing what he had said — he was not very good at

writing yet — so Ms. McGraw arranged for Mr. Gonzalez to assist by writing

down what K.R. said. When assisted statement s are taken, the practice is to

bring in a witness to ensure that what the recorder writes down accurately

reflects what the witness said. Ms. McGraw s tarted off as a witness to this

10 Ms. McGraw's testimony regarding what J.C. told her supplements and expla ins the

credible testimony of both J.C. (by deposition admitted in lieu of hearing testimony) and R.D.

(who testified at the hearing). It also refutes Respondent's position, raised before the hearing as the rationale for allowing expert testimony, that imp roper and suggestive interview

techniques used in investigating the bathroom incident shaped the children's statements

about the incident. See Response to Petitioner's Daubert Motion (filed Aug. 21, 2020).

assisted - statement process, but was called away (because the students'

parents whom she had called had arrived to speak with her) and the other

assistant principal, Michelle Ca r ralero, took her place as t he witness.

Mr. Go nzalez wrote down K.R. 's exact wo rd s except in one or two instances

where he paraphras ed what K.R. said without changing the meaning .

3 5 . Ms. McGraw testified that, like with J.C. , her first question to R.D.

and to K.R. after they each described a bathroo m incident like what J.C. had

described was where Ms. Meister was when the bathroom incident occurred.

They each reported that Ms. Meister was in the classroom. 11

3 6 . Before the end of the school day, Ms. McGraw also spoke briefly with

Respondent to let her know they were now looking into a bathroom incident

involving J.C., K.R., P.C., and R.D. Respondent declined to talk about the

incident, but commented that it would not be the first time that multiple

students had been in the bathroom together.

3 7 . Ms. M cGraw's testimony regarding what she was told by J.C. and the

three boys on November 7, 2017, was generally consistent with her sworn

s tatement provided to the Orlando Police Department later that same day . 12

11 Ms. McGraw's testimony regarding what the three boys said to her about the bathroom

incident on Nove mber 7 a nd the written statements produced and/or signed by the boys that

day supplement and explain admissible evidence in the form of R.D.'s and J.C.'s testimony.

12 Respondent's PRO inaccurately state d that Ms. McGraw's written police statement "did

not contain J.C.'s statements to her" and instead, Ms. McGraw wrote about what was said to

others in interviews. (Resp. PRO at 11, ¶ 49). To the contrary, Ms. McGraw's statement

reported what J.C. told her about the bathroom incident: "On Thursday, November 7th, as a follow - up, I pulled J.C. from her classroom to ask[ ] her more about the ["sex"] note. Then,

J.C. preceded [sic] to tell me about what happened to her in the restroom. … According to J.C., there were three boys who entered the restroom. One boy, R.D., was in there blocking

the door and the other two boys, P.C. and K.R., took turns holding her down and getting on top of her." (Pet. Ex. 19, Bates p. 66; children's names replaced with initials). Ms. McGraw

did not include in her written police statement the fact that J.C. ( as well as the boys ) told her

Respondent was in the classroom at the time of the bathroom incident, but Ms. McGraw

testified that she told th e police this, and also told them that Ms. Meister had said this would

not be the first time multiple students went in the bathroom together. (Tr. 173 - 74). Omitting

th ose detail s in her written police statement is not surprising , since the police were

investigating "allegations of sexual miscon duct by juvenile offenders with a juvenile victim."

Amended Stipulated Motion for Protective Order, ¶ 2, filed March 16, 2020. Details relevant

here to whether Respondent met her supervisory responsibilities in the classroom would not

be important in a pol ice investigation of what the boys did to J.C. in the bathroom.

3 8 . One open question following J.C.'s revelatio n of the bathroom incident

was when the incident took place. Ms. McGraw testified that she filled in the

"date of the incident" space on J.C.'s written statement , writing that the

incident was "last week." The boys' written statements are similar. At the

h earing, Ms. McGraw testified that she was uncertain whether she just

assumed the bathroom incident had occurred the prior week because that is

when the "sex" note was written, or whether J.C. or the boys had said the incident was the prior week. Regardless , as Ms. McGraw and other witnesses

agree d , first - grade rs do not have a very good concept of the passage of time so

as to accurately re port whether past events were last week or last month.

39 . Over the next two days (November 8 and 9) , two DCF child pro tective

investigat ors conducted in terviews of the children rega rd ing the bathroom

incident. Either Ms. Ca r ralero or Mr. Loomis sat in on the interviews and

took notes, but let a DCF i nvestigator conduct the interviews. Ms. Carralero

was asked to sit in on the interview of K.R. in Mr. Loomis's place , because she

had a preexisting relationship and good rapport with K.R., having known him

and his family from having worked with and supervised his older brother.

Notes of interviews of J.C. , R.D. , P.C. , and K.R. , are generally consistent with

admis sible evidence rega rd ing the bathroom incident , at least in most

respects that are material to the issues in this case.

4 0 . Ms. Carralero was tasked with following up to determine a timeframe

for the bathroom incident. To accomplish this, she spoke separately with J.C.

and K.R. on several occasions, finding the two of them to be most forthcoming about the details (perhaps in part because of the good rapport she already

had with K.R.). First, Ms. Carralero attempted to na rrow the time of day

when the bathroom incident occurred, using broad frames of reference such

as before or after "specials" ( a slot for rotating special classes in art, music,

and physical education) , and before or after lunch . The students separately

ide ntified the time after specials and before lunch. That time slot, a ccording

to the first - grade classroom schedule, was for math.

4 1 . As a cross - check, Ms. Carralero then asked each student separately

what they were working on, and they both responded that they were working

on math. She then took it the next step , asking each student separately if

they could recall what type of math they were working on. T hey each

responded separately t hat they were learning counting by tens.

4 2 . Ms. Carralero then separate ly handed each student their math

workbook and asked if they could identif y what they were working on in their

workbook. The students each identified a workbook page. Although they were

not identical pages, they were in the range of pages worked on one day apart,

according to Ms. Meister's lesson plan that she was required to draw up each

week and follow. J.C. identified page 250 of the workbook, which was on the

lesson plan schedule for individual work on Thursday, September 28, 2017.

K.R. identified page 246 of the workbook, which was on the lesson plan

schedule for individual work on Wednesday, September 27, 2017.

4 3 . As a final step to narrow down the timeframe, Ms. Carralero asked

J.C. if she recalled what she w as wearing the day of the bathroom inciden t.

J.C. responded that she was wearing something pink and something black

with sparkles , and that her hair was braided . Ms. Carralero asked K.R.

separately if he remembered what J.C. was wearing that day, and he also

said something pink and black. Ms. Carr alero then studied security video

recordings for the week pinpointed by the students' identification of what

they were working on in their math workbooks . Ms. Carralero found a match

on September 28, 2017: that day, J.C.'s cloth ing and hair fit the descrip tion

given by J.C. and K.R. Ms. Carralero then verified from school records th at

th e four students and Ms. Meister were all present in class that day.

4 4 . Ms. Carralero 's approach was reasonable, and her testimony regarding

how she made her determination was clear, credible, and consistent with the

evidence of Respondent's class schedule and lesson plans. While it cannot be

said with 100 percent certainty that the bathroom incident occurred on

September 28, 2017, that date is supported by clear and convinc ing evidence.

4 5 . In addition to the indicators determined by Ms. Carralero 's studied

approach, each indicator confirming and reinforcing the others, a few

independent factors tend to add credence to her timeline determination.

4 6 . One fact establish es th at the bathroom incident must have occurred

before October 12, 2017 : K.R. was removed from Ms. Carralero 's class and

transferred to Ms. Rivera's class on October 12, 2017.

4 7 . In addition, a review of the SWAT logs shows that, while Ms. Meister's

calls for assistance began on September 1, they were sporadic until late in

September. 13 September 28, in particular, stands out as the first banner

problem day, with three separate calls for assistance with P.C. The first call ,

just after the school day began , was because P.C. had locked himself in the

classroom bathroom and assistance was needed to coax him out . As

Respondent put it, on some days , P.C. just showed up in an unhappy state,

and it seemed to get worse throughout the day. But this day - long trend was

not evident until September 28 , 2017 .

4 8 . A predetermination meeting was held on December 6, 2017.

Respondent and her union representative were provided the investigative file

material , including the student statements and notes of interviews, a nd

Respondent was given an opportunity at the meeting to respond. Respondent

repeated what she had told Ms. McGraw on November 7 — that there were a

number of occasions when multiple students had gone into the bathroom

together before. When asked how she could have faile d to notice nearly one -

fourth of her class disappearing into the bathroom at the same time , she said

that she may not have noticed because she w as circulating around the

13 The log of SWAT calls shows the following calls by Ms. Meister for assistance: once on

September 1 for K.R.; once on September 7 for P.C.; on September 20, once at 9:02 a.m. for

P.C. and onc e at 9:40 a.m. for "J.R." ( an apparent mistaken reference to K.R.); once on

September 22 for P.C.; on September 25, once at an unknown time for P.C., and again at

1:05 p.m. for K.R.; once on September 26 for both K.R. and P.C.; and three times on

September 28 for P.C., at 8:53 a.m., 9:50 a.m., and 12:50 p.m. Respondent points out in her

PRO that there were 31 total SWAT calls for P.C. through the end of October, but only five of

those calls were before September 28, 2017.

classroom. She acknowledged that as of September 28, 2017, the bathroom

door made a loud noise when closed, but she said that she would not

necessarily have heard the loud bathroom door close on September 28, 2017,

if her class was being noisy at the time.

49 . Following that meeting, the School District's investigation was

summarized in a report prepared by Mr. Loomis. Respondent was disciplined

in the form of a written reprimand for misconduct, by failing to properly supervise her class. She also received a non - disciplinary directive reminding

her that she was required to adequately sup ervise her students.

5 0 . Respondent points out inc onsistencies in the details rega rdin g the

bathroom incident, as set forth in the reports, statements, notes from

interviews, and hearing testimony, which Respondent contends undermines

the reliability of al l th e evidence. Respondent's point might be well - taken if

this were a proceeding to determine whether one of the three boys had

committed specific acts against J.C. during the bathroom incident , because

the inconsistencies are in the details of who did exa ctly what to J.C . However,

that is not the issue for determination in this case.

5 1 . Respondent offered testimony from an expert in child interview

techniques, to point out t hat " best practices " for interviewing children were

either not followed in the inv estigations of the bathroom incident or it cannot

be discerned whether they were followed . The "best practices" guidelines

offered in evidence provide a template for law enforcement officers to follow

in interviewing alleged child victims of sex abuse. Exa mples of "best

practices" to follow were: developing rapport with a child before delving into

the sex abuse topic; interviewing the child in a comfortable, child - friendly

place; not asking leading questions; limiting the number of adults in the interview r oom to one, ideally; limiting the t imes a child is interviewed; video

recording interviews of child witnesses; and keeping a written reco rd of the

questions asked to ensure the y were not leading.

5 2 . Since the interviews of children in this case were not recorded and

Respondent's expert could not determine whether other best practices were

followed , she offered the opinion that the children's statements could have

be en tainted by the process . She opined that the children's statements may

have been born not of true memor ies of what happened, but rather, memor ies

of what they may have been led to say or write, reinforced in repeated

interviews that did not follow best practices or may not have followed best practices. In the context of this case, the expert o pinions were not persuasive.

5 3 . While the concepts of the "best practices" guidelines in evidence m ay

have some application beyond th e context of a police officer interviewing a n

alleged child victim of sex abuse , there are some obvious differences with

interviews conducted by school personnel investigating classroom matters.

The initial interviews were conducted by the assistant principals and school

counselor with whom the children frequently talked — they were the "go - to"

persons — who already had good rap ports established with these children , and

who were all well - trained and experienced in conducting interviews of

children to carry out investigations in school matters . That is very different

from the first encounter of a police officer with an alleged chi ld victim of sex

abuse ; rapport - building would be necessary before diving into the topic of sex

abuse. In addition, Respondent's expert had the impression that the initial interviews were in a conference room with multiple strangers participating.

Those we re the second interviews controlled by DCF child protective

investigators (who, presumably, were also well - trained in interviewing

children, since that is their job) . Respondent's expert did not have the benefit

of Ms. McGraw's testimony regarding the chil d - friendly beanbag set - up in her

office where J.C. first revealed the bathroom incident.

5 4 . Of note, Respondent's expert acknowledged that an alleged victim's

first interview is the strongest evidence, particularly if the child witness

volunteers the cri tical information rather than providing it in response to

leading question s . In this case, it was striking that the first reveal of the

bathroom incident came from J.C. volunteering the information, not in

response to any question because no one knew to as k about it. Ms. McGraw's

testimony rega rd ing J.C. 's surprising reveal of the bathroom incident was

clear, credible, and compelling to refute Respondent's argument raised before

hearing that the way in which the interviews and investigation were carried

out may have infected the children's statements.

5 5 . Although t he expert testimony offered by Respondent addressed

interviewing children generally, the "best practices" guidance document

offered in evidence was specific to interviewing alleged child victims o f sex

abuse. Respondent's expert did not address the fact that i n this case,

interviews involved more than the alleged victim , J.C. ; they extended to the

alleged perpetrators. Here, three boys each admitted, to varying degrees, that

they were involved in a bathroom incident in which J.C. was the unwilling

recipient of kisses and touches on her " private part. " The fact that e ach of the

boys tended to point the finger of blame for specific offensive kisses and

touches at one of the other boys might be an impe diment to finding that one

particular boy committed a particular wrongful act , but that is not the issue

in this case. Here, t hat phenomenon adds force to the collective story told by

these boys who were admitting, against their self - interest, to participa ting in

a bathroom incident , while trying to minimize the ir personal culpability .

56. The credible hearing testimony of R.D. and J.C., nearly three years

after the bathroom incident, painted a clear big picture that three boys (K.R., P.C., and R.D.)

14 went into the bathroom in Respondent's classroom with one

girl , J.C. , and while the four students were in the bathroom together, there

w ere one or more occurrences of unwelcome a nd inappropriate touching of

J.C. 's " private part. " This clear and convincing big p icture was supplemented,

14 In her deposition, J.C. named all three boys by their first names: K., P., and R. When

converting the boys' first names to first and last initials for the transcript , the court reporter

combined two boys' first initials, merging two boys into one. See Pet. Ex. 23 at 8 and 10

(referring se veral times to two boys, KP and RD, instead of three boys, K.R., P.C., and R.D.).

The video recording of the deposition shows that all three boys were named, rather than two.

explained, and corroborated by the statements and interviews of these

children. By admitting their involvement, each of the three boy s ended up

serving a suspension. Respondent's expert failed to offer an explanation as to why boys would admit to their own involvement in the bathroom incident if

there had been no such incident.

5 7 . Respondent has maintained that she was not aware o f the bathroom

incident . She attempted to suggest the possibility that the bathroom incident

may have occurred during one of the " few occasions " in a ll of fall 2017 when

she left the classroom , a couple of times to go to the office and a couple more

times to go to the restroom, leaving a paraprofessional in charge. However,

Respondent also admitted that it was entirely possible that the four students

could have been in the bathroom together for as long as five minutes while she was in the classroom without her even being aware of their absence. W hen asked how that could have happened, she testified as follo ws :

Probably, you know, when the students were doing

work in their seats, I would circulate and help the students as it was needed. So if it was -- if I was

helping a student on the far side of the room I

would have had my back turned to the restroom.

And, you know, if I was focused on the child I was

talking to and their work on the desk in front of

me, I would not have seen what was going on behind me.

* * *

Probably not five whole minutes with one student. But it would be entirely possible that I mov ed from

one student to another sitting right next to that student without turning my back or without

turning around again. (Tr. 495 - 97).

5 8 . Respondent's testimony stands as an admission that she was

inadequately supervising her class. Having h er back to her whole class —

including the known troublemakers and the bathroom that they were known

to run into and hide — for as long as five minutes is unreasonable and

unacceptable. I t is in comprehensible that while helping one student, she

would not position herself to s ee the rest of the class in her peripheral vision,

or regularly swivel her neck to make eye contact with the other students —

particularly the known troublemakers. Rather than making this reasonable

effort to protect her students from harm, she created conditions that were

ha rm ful to the physical and mental health and safety of one student.

5 9 . The credible testimony of b oth J.C. and R.D. established tha t

Respondent was in the classroom at the time of the bathroom incident. J.C.

testified that Responde nt was the one who gave her permission to go to the

bathroom when J.C. raised her hand. R.D. also testified that Respondent was

in the classroom when he , K.R., and P.C. went into the bathroom. And b oth

J.C. and R.D. testified that Respondent was in the cla ssroom when they came

out of the bathroom. J.C. added tha t Respondent was on the school phone

when J.C. left the bathroom. While there were details that neither J.C. nor

R.D. could recall about the bathroom incident , testifying nearly three years

after it occurred, their testimony was clear, credible, and consistent rega rd ing

Ms. Meister's presence in the classroom at the time of the bathroom

incident . 15 Their testimony on this point was corroborated by Ms. McGraw's

15 Respondent 's PRO argued t hat testimony of J.C. and R.D. should be discount ed or ignor ed

as the product of leading questions. N o "leading" objection s were made during J.C.'s

deposition. As for R.D., Respondent's counsel did not object to R.D.'s testimony that he, P.C.,

K.R., and J.C. were all in the bathroom in Ms. Meister's classro om. A single "leading"

objection was made after the following two questions and answers :

Q: Okay. Now, before you all went into the restroom, was

Ms. Meister in the classroom?

A: Yes.

Q: When you all came out of the restroom, was Ms. Meister in

the classroom?

A: Yes.

Ms. Parker: I'm going to object. Leading the witness. (Tr. 121).

The belated objection was overruled. That a question calls for a yes or no answer does not

make it leading; instead, a question is leading if it suggests the answer. Ha pp v. State , 922

So. 2d 182, 185 (Fla. 2005) ("This court has long held that a question is not necessarily

leading simply because it calls for a "yes" or "no" answer. Instead, a question is leading when it points out the desired answer."); Porter v. State , 386 So. 2d 1209, 1211 (Fla. 3d DCA 1980)

(abbreviated definition of a leading question as one calling for a "yes" or "no" answer is

misleading; the real test is if a question suggests only the answer yes or only the answer no).

clear testimony that J.C. and the boys told her Ms. Meister was in the

classroom at the time of the bathroom incident when that incident was first

revealed on November 7, 20 17 .

60 . Respondent presented evidence of circumstances which she asserted

should mitigate against any disciplinary consequ ences. She argued that

Millennia Ga rd ens' administration was to blame by assigning her to a

classroom with very difficult students to manage and not giving her more

help to learn the new technologies while trying to manage her classroom.

6 1 . Yet Responden t acknowledged th e importance of her supervisory

responsibilities as a first - grade teacher . She was responsible for the care and

safety of the students in her classroom who were under her charge. As the

master principal of Millenia Ga rd ens put it: "Supervi sion is number one.

You've got to have your eyes on the children at all times."

6 2 . Respondent identified two students who were involved in the

bathroom incident, K.R. and P.C., as the ones who were most consistently

disruptive in her class. She testified that at some point during the fall of

2017, she submitted a recommendation that the two boys should be evaluated

for possible special education status. This evaluation process , referred to as

the "MTSS" (multi - tiered student support) process, cannot happe n quickly. If

a school determines that a child should be evaluated for possible support ,

notice must be given to the parents and a meeting must be coordinated with

the parents and a multidisciplinary team of school personnel . At such a

meeting, a discussio n ensues regarding the child's needs, possible

interventions, and possible areas for professional evaluation . If and only if it

is agreed that professional evaluation should occur , and the parents give

their informed written consent, then a 90 - day professi onal evaluation process

begins. At the end of a 90 - day evaluation process, it is possible that the

school's determination would be that no special support is warranted; or it is

possible that the school determines that student support in some form is

warra nted. If the latter determination is made, then the school would d raw

up an individual education plan (IEP) for the child, providing for such

measures to be taken as are appropriate for the child, based on the

evaluation results. In addition to an IEP, one possibility for a child with

behavioral problems is the development of a behavioral improvement plan

(BIP). No particular measures are employed in all IEPs or BIPs. One

possibility is that a child would remain in a regular classroom with an aide

assigned to help the child; however, that is only one of many possible

measures that may be employed.

6 3 . Respondent was unable to say exactly when during the fall she

submitted her recommendation that K.R. and P.C. go through the process for

possible evaluation f or special education. Although the evidence was not clear

in this regard, at the time of the bathroom incident , Respondent may have

been just about to make that recommendation or possibly may have just

made that recommendation. The evidence was clear that at the time of the

bathroom incident, the process had not gone forward to the point where parents had been contacted , a meeting set up, or parental consents for

professional evaluations obtained . It would be sheer speculation to say what

determinations cou ld result f ollowing a 90 - day e valuation p eriod that had not

yet been authorized or begun. Respondent cannot simply abdicate her

responsibilities upon identifying two students for whom she recommended

that such a n evaluation process should start, as if that step created an

entitlement to a particular end result.

64. Respondent's claim that these two disruptive students made it

impossible for her to manage her classroom is particularly troubling in the

context in which it is being raised. Respondent cannot cl aim that she was

oblivious because she was distracted by the two disruptive students . T h ose

two disruptive students were secreted away in the bathroom. This makes it

all the more incomprehensible that Respondent was unaware that nearly

one - fourth of her cl ass had disappeared. 16

C ONCLUSIONS OF L AW

65 . The Division of Administrative Hearings has jurisdiction over the

parties and the subject matter of this proceeding , pursuant to sections

120.569 and 120.57(1), Florida Statutes (20 20 ).

66 . In this proceeding, Petitioner seeks to impose discipline against

Respondent's educator certificat ion , which is a form of license . See

§ 120.52( 10), Fla. Stat. A proceeding to suspend, revoke, or impose other

discipline upon a license is penal in nature. State ex rel. Vinin g v . Fla. Real

Estate Comm' n , 281 So. 2d 487, 491 (Fla. 1973). Acco rd ingly, to impose such

discipline, Petitioner must prove the allegations in the Administrative Complaint by clear and convincing evidence . Dep't of Banking & Fin., Div. of

Sec. & Investor Prot. v. Osborne Stern & Co. , 670 So. 2d 932, 933 - 34 (Fla.

1996) ; Ferris v. Turlington , 510 So. 2d 292 , 294 - 95 (Fla. 1987).

67 . As stated by the Supreme Court of Florida :

Clear and convincing evidence requires that the

evidence must be found to be credibl e; the facts to

which the witnesses testify must be distinctly remembered; the testimony must be precise and

lacking in confusion as to the facts at issue. The evidence must be of such a weight that it produces in the mind of the trier of fact a firm belie f or conviction, without hesitancy, as to the truth of the allegations sought to be established.

16 Respondent posits an alte rnative theory in her PRO that perhaps Respondent became

aware that the students were missing and was calling SWAT for help when the children

came out of the bathroom; under this scenario, "Ms. Meister in fact acted reasonably to

protect the health and saf ety of her students." (Resp. PRO at 36). This alternative theory

would be consistent with J.C.'s testimony that when she left the bathroom, Ms. Meister was

on the school phone. But the theory is inconsistent with evidence regarding the nature of

Respondent 's SWAT calls and the assistance provided in response to those calls that day.

Most importantly, though, it is curious that Respondent suggest s a scenario so obviously

inconsistent with Respondent's testimony that she was not a ware of the bathroom incident.

If Respondent wanted to admit she was aware of the bathroom incident, the time to do so was when she testified, so the questions regarding her actions could have been explored.

In re Henson , 913 So. 2d 579, 590 (Fla. 2005) (quoting Slomowitz v. Walker ,

429 So. 2d 797, 800 (Fla. 4th DCA 1983)). This bu rd en of proof may be met

where th e evidence is in conflict; however, " it seems to preclude evidence that

is ambiguous. " Westinghouse Elec. Corp. v. Shuler Bros. , Inc. , 590 So. 2d 986,

988 (Fla. 1st DCA 1991).

68 . Section 1012.796 sets forth the disciplinary process for educators, and

prov ides in pertinent part:

(6) Upon the finding of probable cause, the

commissioner shall 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 De partment of Management

Services to hear the complaint if there are disputed issues of material fact. The administrative law judge shall make recommendations in acco rd ance

with the provisions of subsection (7) to the

appropriate Education Practices Commissi on panel

which shall conduct a formal review of such

recommendations and other pertinent information

and issue a final o rd er. The commission shall

consult with its legal counsel prior to issuance of a

final o rd er.

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

o rd er either dismissing the complaint or imposing one or more of the following penalties:

(a) Denial of an application for a teaching

certificate or for an administrative or supervisory endorsement on a te aching certificate. The denial

may provide that the applicant may not reapply for

certification, and that the department may refuse to consider that applicant’s 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 separate offense.

(d) Placement of the teacher, administrator, or

supervisor on probation for a period of time and

subject to such conditions as the commission m ay

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 educat or

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 applyi ng 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.

69 . Penal statutes and rules authorizing discipline against a professional

license m ust be strictly construed, with any ambiguity resolved in favor of the

licensee. Elmariah v. Dep ' t of Prof ' l Reg., Bd. of Med. , 574 So. 2d 164, 165

(Fla. 1st DCA 1990).

70 . In addition, disciplinary action must be predicated on facts alleged and

charges se t forth in an administrative complaint . See § 120.60(5), Fla. Stat.;

Trevisani v. Dep't of Health , 908 So. 2d 1108, 1109 (Fla. 1st DCA 2005);

Cottrill v. Dep ' t of Ins. , 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996).

71 . Count 1 of the Administrative Complaint charges Respondent with a

violation of section 1012.795(1)(j), which authoriz es discipline for violations of

the Principles of Professional Conduct for the Education Profession

prescribed by the State Boa rd of Education rules. This count does not charge

an independent violation, but rather, is dependent upon a corresponding

violation of the rules prescribing the Principles of Professional Conduct.

72 . Count 2 of the Administrative Complaint charges Respondent with

violating rule 6A - 10.081(2)(a)1., providing as follows:

(2) Florida educators shall comply with the

following disciplinary principles. Violation of any of

these principles shall subject the individual to revocation or suspension of the individual educator’s certificate, or the other penalties as

pr ovided 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 student’s mental and/or physical health and/or safety.

73 . As reflected i n th is Principle of Professional Conduct, teachers have a

supervisory responsibility for the students in their charge. Teach ers " stand in

loco parentis , ' in the place of a parent, ' with respect to students in their

classrooms who they must supervise and co ntrol. They owe a general duty of

supervision to the students placed within t heir care ... and are responsible to

protect children during school activity. " Morris v. State , 228 So. 3d 670, 672 -

73 (Fla. 1st DCA 2017) (internal citations and quotes omitted).

74 . Based on the Findings of Fact above, Petitioner proved that

Respondent violated section 1012.795(1)(j) through a violation of rule 6A -

10.081(2)(a)1. Respondent had a professional obligation to make reasonable

effort to protect her students from condit ions that were harmful to their

mental and/or physical health and/or safety. Instead, the credible evidence

clearly and convincingly established that Respondent failed to adequately

supervise her first - grade class, creating the conditions that proved to be

harmful to J.C. 's mental and physical health and safety. 17

75 . A t the time of the incident , the disciplinary guidelines , codified in

Flor ida Administrative Code Rule 6B - 11.007 , provided that the normal

penalty range for the violation found here was from pr obation to revocation .

See Fla. Admin. Code R. 6B - 11.007(2)(i)16., effective April 9, 2009 . 18

76 . Rule 6B - 11.007(3) provided that a penalty outside the normal range

was allowed when warranted by consideration of mitigating and aggravating

circumstances. The applicable mitigating and aggravating circumstances

codified in the r ule have been considered. As for mitigating circumstances,

Respondent has held a teaching certificate for over thirty years, and the first

disciplinary action against her was the i ss uance of a reprimand in connection

with the bathroom incident for misconduct in the form of a failure to properly

supervise her students . However, most of Respondent's discipline - free years

were not as a classroom teacher responsibl e for supervising a full class,

making this mitigation factor somewhat less weighty. This mitigating circumstance is offset or outweighed by the serious nature of the violation.

Respondent not only failed to make reasonable effort to protect against

17 As noted above, evidence characterized by Res pondent as hearsay supplemented ,

explained , and corroborated admissible evidence in all respects that were material to the

issues being determined in this proceeding. In addition, to the extent the evidence rebutted

Respondent's charge made before the hear ing that the statements were the product of

improper influence or fabrication, the evidence would not constitute hearsay. See

§ 90.801(2)(b), Fla. Stat.

18 The 2009 version of the disciplinary guidelines cross - referenced the Principles of

Professional Cond uct then - codified in Florida Administrative Code Rule 6B - 1.006, but rather

than setting a penalty range for each principle, penalty ranges were provided for particular

types of conduct falling within individual Principles of Professional Conduct. The cited

penalty range above applied to the "[f]ailure to protect or supervise students in violation of

[rule] 6B - 1.006(3)(a)." Rule 6B - 1.006(3)(a) contained the principle now codified in rule 6A -

10.081(2)(a)1.: "[Obligation to the student requires that the indivi dual] [s]hall 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." The disciplinary guidelines rule as

amended in 2018 and recalibrated to the transferred Pr inciples of Professional Conduct now

provides a penalty range of reprimand to revocation for a violation of rule 6A - 10.081(2)(a)1.

harmful conditions, she was re sponsible for creat ing conditions that were

harmful to the physical and mental health and safety of a young girl .

77. A troubling aggravating factor is Respondent 's unwillingness to accept

responsibility for creating the conditions that allowed the bathro om incident

to occur. Instead, Respondent attempt ed to deflect blame for this incident to

the administration of Millennia Ga rd ens, based on her claim that she did not

receive enough support or training for her re - entry to classroom teaching .

While the tech nology for teaching students in a digital school environment

may have been new, Respondent's supervisory responsibilities to her

students w ere not new. The Principle of Professional Conduct that she

violated was not new. Her acceptance of the School Distri ct's assignment to

Millennia Ga rd ens, and of the assignment to the open position as first - grade

teacher there, was her representation that she was capable of meeting her

professional responsibilities in that setting. If she did not think she could

abide by the Principles of Professional Conduct as a classroom teacher, it was

incumbent on her to decline the placement.

7 8 . Similarly, Respondent sought to deflect responsibility by arguing that

her failure to adequately supervise her class should be excused bec ause one

or two of the boys involved — P.C. and K.R. — may have been about to undergo

an evaluation process that could ultimately culminate in an IEP and/or a BIP

being formulated for either or both student s . At the time of the bathroom

incident, however, no s uch determination had been made; the evaluation

process may not have even begun. Respondent may have just made that

recommendation or may have been about to make the recommendation at the

time of the bathroom incident. The beginning of such a n evaluation p rocess is

far from a formalized determination that any form of support is warranted.

Respondent 's supervisory obligations did not cease upon her making a

recommendation that students be evaluated.

79 . More was required of Respondent. When K.R. and P.C. be gan their

disruptive ways in the beginning of September 2017, Respondent needed to

increase her vigilance. She needed her eyes on those boys at all times,

especially knowing that, if allowed, they would run into the bathroom

together to hide. Respondent wa s professionally obligated to make reasonable

effort to protect her students from conditions harmful to their mental and/or

physical health and/or safety. Instead, Respondent's failure to employ

heightened awareness — to adequately supervise her students — cr eated the

conditions that were harmful to J.C. 's mental and physical health and safety.

This was a serious dereliction of one of Respondent's most basic professional

responsibilities: keeping the students in her care safe.

80 . Consideration of the mitigati ng and aggravating circumstances do not

warrant imposition of a penalty outside the normal range. Petitioner has proposed a penalty at approximately the midpoint of the normal range, to

include a two - year suspension followed by two years of probation, a

re quirement to take a college level course in professional ethics for educators,

and payment of a $750.00 fine. Respondent did not propose an alternative

penalty, arguing only for the unsupportable outcome of dismissal of the

Administrative Complaint. Petiti oner's proposed penalty is reasonable.

R ECOMMENDATION

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

R ECOMMENDED that the Education Practices Commission enter a final o rd er

finding that Respondent violated section 1012.795(1)(j) thr ough a violation of

rule 6A - 10.081(2)(a)1., and imposing the following as penalties: suspension of

Respondent's educator's certificate for a period of two years from the date of

the final o rde r; probation for a period of two years after the suspension, wit h

conditions to be determined by the Education Practices Commission; a

requirement that Respondent take a college level course in professional ethics

for educators; and payment of a $750.00 fine.

D ONE A ND E NTERED this 29th day of December, 2020, in Tallah assee,

Leon County, Florida.

E LIZABETH W. M CARTHUR

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

F iled with the Clerk of the

Division of Administrative Hearings

this 29th day of December , 2020 .

C OPIES F URNISHED :

Tobe M. Lev, Esquire

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

231 East Colonial Drive

Orlando, Florida 32801

(eServed)

Heidi S. Parker, Esquir e Egan, Lev, Lindstrom & Siwica, P.A.

231 East Colonial Drive , 2nd Floor

Orlando, Florida 32801

(eServed)

Ron Weaver, Esquire

Post Office Box 770088

Ocala, Florida 34477 - 0088

(eServed)

Lisa M. Forbess, Interim Executive Director

Education Practice s Commission

Department of Education

Turlington Building, Suite 316

Tallahassee, Florida 32399

(eServed)

Matthew Mears, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServ ed)

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 ri ght to submit written exceptions within 15 days from

the date of this Recommended O rd er. Any exceptions to this Recommended

O rd er should be filed with the agency that will issue the Final O rd er in this

case.