20-000148PL
Richard Corcoran, As Commissioner Of Education vs.
Diane Velez
Status: Closed
Recommended Order on Thursday, October 29, 2020.
Recommended Order on Thursday, October 29, 2020.
1P RELIMINARY S TATEMENT
5On July 31, 2019, P etitioner, Richard Corcoran, in his capacity as
17Commissioner of Education (Petitioner), filed an Administrative Complaint
25against Respondent, alleging that she violated section 1012.795(1)(g) and (j), based on the alleged lack of supervision of an exceptio nal education student
48in her classroom. Respondent filed an Amended Election of Rights disputing
59the allegations in the Administrative Complaint and requesting a hearing pursuant to section 120.57(1). The case was referred to the Division of
81Administrative Hearings (the Division) on January 15, 2020, and assigned to
92Administrative Law Judge Suzanne Van Wyk.
98On January 31, 2020, a Notice of Hearing was issued, scheduling the case
111for hearing on May 1, 2020, and on February 10, 2020, the case was
125transferred to Administrative Law Judge Lisa Shearer Nelson. On March 20,
1362020, Petitioner filed an Unopposed Motion to Continue Final Hearing,
146alleging that because of the state of emergency declared based on the COVID - 19 coronavirus pandemic, schools were closed , and completing the
169necessary discovery to prepare for hearing was not possible. By Order dated
181that same day, the case was continued, and the parties were directed to
194provide a status report no later than April 17, 2020.
204On April 24, 2020, based on the pa rties Joint Status Report, the case was
219rescheduled for August 13, 2020, by video teleconference with sites in
230Jacksonville and Tallahassee. However, as citizens were still encouraged to
240wear masks and engage in social distancing in order to stem the spre ad of
255COVID - 19, there was a concern that the video conference room in
268Jacksonville might not be large enough to accommodate the parties,
278attorneys, and witnesses necessary to conduct the hearing. A Procedural
288Order was issued, directing the parties to prov ide an estimate of the number
302of people that would be present in the courtroom, and where the parties
315anticipated any witnesses would wait before testifying. Based on the
325responses provided, it was determined that the video conferencing room in
336Jacksonvill e would not provide adequate space to allow for social distancing.
348A status conference was conducted on June 4, 2020, to address the hearing
361location, and as a result of the status conference, the hearing was relocated to
375the Duval County School District h eadquarters. On August 5, 2020, the
387venue of the hearing was changed once again, this time to allow the
400proceedings to be conducted using Zoom technology.
407The parties filed a Second Amended Joint Prehearing Statement which
417includes stipulated facts for wh ich no proof at hearing is required, and those
431facts have been included in the Findings of Fact below. The Second Amended
444Prehearing Statement also amended paragraph three of the Administrative
453Complaint, as follows:
4563. In or about January 11, 2018, Respon dent failed
466to properly supervise her students, J.L., a female
474student with Williams Syndrome and an Individual Education Plan (IEP) and T.B., a male student in Respondents class. Respondent allowed the two
496students to leave Respondents classroom to go t o
505the restroom at the same or overlapping times.
513J.L.s IEP states that She has Williams Syndrome which is a developmental disorder that affects many parts of her body and that J.L. is a very
539trusting child and will walk away with a stranger.
548She does n ot distinguish between friend from
556stranger and this can cause a danger to her safety. The IEP also states that J.L. needs increased
574supervision to insure her safety. As J.L.s teacher
582and case manager, Respondent was aware of J.L.s IEP requirements. A dditionally, on or about
597Augu st 22, 2017, the Lead Exceptional Student
605Education (ESE) teacher at Respondents school
611sent an email to J.L.s teachers, including
618Respondent, which stated in part, that J.L. cant (sic) be left alone she will leave with a co mplete stranger, when she uses the restroom she likes to
646play in the restroom and whoever has her last
655perios (sic) of the day make sure she uses the restroom.
666At hearing, J. Rebecca Raulerson, Billie Jay Hodges, Ronald Messick, and
677Lana Austin testified for Petitioner, and Petitioners Exhibits numbered 5
687through 7, 9 through 13, and 15 through 17 were admitted into evidence.
700Respondent testified on her own behalf and presented the testimony of
711Jessica Kirkland. Respondent did not offer any exhibits.
719T he Transcript of the proceedings was filed with the Division on
731September 14, 2020. Respondent filed an unopposed motion for extension of
742time to file its proposed recommended order, which was granted, and the
754time for filing the post - hearing submissions w as extended to October 2, 2020.
769Both parties timely filed Proposed Recommended Orders that were carefully
779considered in the preparation of this Recommended Order.
787The Administrative Complaint contains allegations from the 2017 - 2018
797school year, from Augus t 2017 through March 2018. This proceeding is
809governed by the law in effect at the time of the commission of the acts alleged to warrant discipline. McCloskey v. Dept of Fin. Servs. , 115 So. 3d 441, 444
839(Fla. 5th DCA 2013). All references to Florida Statu tes are to the 2017
853codification unless otherwise indicated.
857F INDINGS OF F ACT
862Based on the demeanor of the witnesses, the testimony given, and the
874documentary evidence received, the following F indings of F act are made.
8861. Respondent holds Florida Educator s Certificate 789520, covering the
896areas of Elementary Education, English for Speakers of Other Languages, (ESOL), and Exceptional Student Education (ESE), which is valid through June 30, 2020.
9192. At all times relevant to the allegations in the Administra tive
931Complaint, Respondent was employed as an ESE teacher at Stillwell Middle
942School (Stillwell) in the Duval County School District. She has been teaching
954for approximately 20 years, with no prior discipline.
9623. Respondent teaches in a wing at Stillwell t hat is referred to as the SLA
978Unit, which stands for Supported Level Academics. The students in the SLA Unit are cognitively delayed and have all of their classes in this self -
1004contained unit.
10064. The SLA Unit is located in a wing at the back of the school , near the
1023bus loop. If someone is looking down the hall from the doors closest to the rest
1039of the school, there are female and male bathrooms for students to the left
1053and right, respectively, closest to those doors. From those bathrooms, there
1064are five cl assrooms on each side of the hall. Ms. Velezs classroom is the third
1080classroom on the right - hand side of the hallway.
10905. There are additional restrooms in the wing, all congregated in the area
1103between the third and fourth classrooms on the left hand side of the hallway.
1117At least one of those bathrooms is entered from within a classroom.
11296. Stillwell had a policy that if a student was given permission to leave the
1144classroom, the student should not be gone for more than eight to ten minutes without the teac her calling for assistance to locate the student. Teachers
1170could call for assistance from Ronald Messick, the lead ESE teacher; send a
1183paraprofessional to look for the student; or call the front office or a resource
1197officer . The eight - to - ten minute window was not a written policy, but was
1214discussed during pre - planning meetings at the beginning of the year, as well
1228as at faculty meetings. While attendance logs from pre - planning and faculty
1241meetings were not introduced to establish that Respondent was present
1251during faculty meetings or pre - planning meetings, no evidence was presented
1263to indicate that she was absent.
12697. In addition, the 2017 - 2018 Faculty Handbook (Handbook) for Stillwell
1281had more than one section that addressed supervision of students. For
1292exa mple, under the caption Supervision of Students, beginning on page 12
1305of the Handbook, it states: 1
1311It is the responsibility of the school to provide
1320supervision for students in attendance. It is the
1328teachers responsibility to make sure that students in his/her charge are supervised at all times.
1343Teachers should be aware of the legal and progressive discipline aspects of failure to provide adequate supervision. Students should always have
1364adult supervision .
13678 . Under the caption Hall Passes, on page 16 of the Handbook, it states:
1383Hall passes are to be used for emergencies only. In an effort to reduce the number of students out of
1403class during instructional time, each classroom will
1410have either a lime/orange vest or a Colored
1418clipboard. Students needing to leave the classroom
1425are required to wear the vest or carry the clipboard. Please make sure students continue to sign - out
1444when leaving/returning to your classroom so if the vest/clipboard disappears, you will know who was in possession of it last. Only o ne student per class
1470may be on a hall pass at any given time. If it is
1483necessary that a student leave your classroom to go
1492to an Administrative Office and your vest/clipboard is already being used, security will need to escort
1508student(s) to and from the cl assroom .
1516While it is our desire that no student be in the halls
1528during instructional time, there are absolutely NO
1535hall passes for any reason during the first/last
154330 minutes of each class and NO hall passes
1552during 2 nd block each day unless called by an
1562A dministrator. Students who are found out of class
1571during the first/last 30 minutes of the block will
1580have the vest or clipboard taken and given to the
1590Assistant Principal for you to retrieve.
1596Students who are out of class, unaccompanied by security, and d o not have a v est/clipboard will be
16151 All italics, underlining, and bold used in the quoted material is as it appears in the
1632Handbook.
1633considered skipping and appropriate consequences
1638will be assigned. The teacher will also be held accountable if not following school procedure.
16539. Finally, under the heading Hall and Campus Monitoring, it states in
1666a ll capitals and bold letters, STUDENTS SHOULD NEVER WALK BY
1678THEMSELVES .
168010. On or about January 11, 2018, J.L. was an 11 - year - old female student
1697in the sixth grade. J.L. was assigned to Respondents classroom, and has an
1710Individual Education Plan (IEP) . J.L. was a student in a class containing
1723students who functioned cognitively at the lowest level for students at
1734Stillwell. While those who testified could not state definitively what the IQ
1746level was for the class, it was generally around 67 - 70. Ms. Vel ez described the
1763class as one for which there was a need to have eyes on them.
177711. J.L. was ne w to the school during the 2017 - 2018 school year.
179212. On August 22, 2017, Ronald Messick sent an email to J.L.s teachers,
1805including Respondent, stating that J.L. could not be left alone and that she
1818would leave with a complete stranger. He advised that when J.L. uses the
1831restroom, she likes to play in it, and directed that the teacher who has J.L.
1846the last period of the day needed to make sure she used the r estroom.
186113. J.L.s mother had called Mr. Messick the first week of school with
1874concerns that J.L. had been unsupervised in the bus pick - up area. Her
1888mother explained her concerns to Mr. Messick regarding J.L.s need for
1899constant supervision. The email ref erenced making sure that J.L. went to the
1912bathroom before boarding the bus simply because she would have a long ride
1925home from school.
192814. An IEP meeting was conducted for J.L. on October 12, 2017.
1940Mr. Messick was present as the LEA (lead educational agenc y)
1951representative, along with Ms. Velez, who wrote the IEP, and three others.
196315. J.L.s IEP states that [s]he has Williams Syndrome which is a
1975developmental disorder that affects many parts of her body. The IEP also
1987states that J.L. is a very trusting child and will walk away with a stranger.
2002She does not distinguish friend from stranger and this causes danger to her
2015safety, and that J.L. needs increased supervision to ensure her safety. The
2028statement that J. L . needs increased supervision to insure her safety is
2041included in two separate sections of her IEP.
204916. Respondent was J.L.s case manager. As her case manager,
2059Respondent reviews, completes entries , and inputs other appropriate data in
2069J.L.s IEP. She was aware of the information contained in J.L.s IEP.
208117. On January 11, 2018, J.L. was present in Ms. Velezs classroom during
2094the last period of the day. At approximately 2:05, she asked for , and received ,
2108permission to go to the bathroom.
211418. Ms. Velez allowed J.L. to go by herself. No adult or other student
2128accompanied her.
213019. Allowing J.L. to go the restroom alone was not permitted by her IEP.
2144Further, it appears to violate the policies outlined in the Handbook, which
2156prohibits allowing hall passes for the first 30 minutes of each class. The final
2170class of the day began at 2:05. 2 It also runs afou l of the email sent by
2188Mr. Messick at the beginning of the school year, which specifically directed
2200that J.L. not be left alone.
220620. After J.L. was permitted to leave the classroom, T.B., a male stud ent
2220in Respondents class, also asked to go the bathroom, and was allowed to
2233leave the classroom. Ms. Velez did not check to see where J.L. was before
2247letting T.B. leave the classroom. T.B. was also unaccompanied.
225621. J.L. was absent from the classroom for approximately 24 minutes.
2267There are no credible circumstances presented at hearing by which a student should be absent from the classroom for that length of time, regardless of
22922 The Administrative Complaint does not charge Respondent with violating this policy, and
2305no discipli ne is recommended for apparently doing so. It is included simply to show that
2321there were multiple guidelines in place to prohibit allowing J.L. outside of the classroom
2335alone.
2336their mental capacity, the policy contained in the Handbook, or any policy
2348dis cussed at faculty meetings.
235322. T.B. returned to the classroom before J.L. After he entered Ms. Velezs
2366classroom, T.B. apparently told Ms. Velez that J.L. was in the boys
2378bathroom. Ms. Velez testified that she was about to look for her when J.L.
2392returned to the classroom. Ms. Velez testified that she noticed J.L. had a lot
2406of energy, and was breathing hard and her hands were shaking.
241823. Ms. Velez asked J.L. if she had been in the boys bathroom, and
2432testified at hearing that J.L. responded that she di d not want to get in
2447trouble. J.L. became upset and asked to spea k with the school nurse.
2460Ms. Velez allowed her to go to the nurses office, this time accompanied by an
2475eighth grade girl. While Ms. Velez described the child who accompanied J.L.
2487as very re sponsible, it is noted that she was also a child in this classroom of
2505children who represented the lowest functioning students at Stillwell.
251424. Lana Austin was the school nurse at Stillwell, and her office was down
2528the hall from Ms. Velezs room in the S LA wing. She testified T.B. was in her office when J.L. arrived. It was not explained at hearing whether T.B. had also asked Ms. Velez to go to the nurses office or just how he came to be
2575there.
257625. When she arrived at the nurses office, J.L. was crying and somewhat
2589distraught, and T.B. was also getting upset. Ms. Austin tried to get J.L. to tell her what was wrong, and J.L. kept saying they were trying to get her in
2619trouble. J.L. wanted to call her mother, and Ms. Austin let her do so, because
2634she belie ved it would calm her down. A paraprofessional came into
2646Ms. Austins office while J.L. was on the phone with her mother . S o while the
2663paraprofessional was in the office with the students, Ms. Austin contacted Ms. Raulerson, the principal at Stillwell, and notified her there might be a
2687problem so that someone could look at the hallway video and find out if
2701anything happened.
270326. Ms. Austin knew that J.L. was a student who needed to be escorted.
2717She was always brought to the nurses office by an adult. On t his occasion,
2732there was no adult.
273627. Jennifer Raulerson was the principal at Stillwell during the 2017 - 2018
2749school year. She is now the executive director for middle schools in Duval
2762County.
276328. Ms. Raulerson testified that J.L.s father came to the sch ool
2775immediately after J.L.s telephone call home, and started asking questions.
2785Because of the nature of his questions, consis tent with school protocols,
2797Ms. Raulerson contacted Stillwells school resource officer (SRO), Officer
2806Tuten, as well as Mr. Messi ck and Ms. Hodges, who was the d ean of students,
2823to discuss with J.L.s father what needed to be done to investigate what
2836actually happened. 3
283929. The following morning, Ms. Raulerson, Ms. Hodges, and Mr. Messick
2850spoke to J.L., T.B., and M.N., another stud ent in the hallway, about what
2864happened the day before. Based on their answers, Ms. Raulerson gave Ms. Hodges a basic timeframe, and asked her to check the cameras to see if
2890she saw anything that would indicate that something happened involving
2900J.L. and T. B. Ms. Hodges testified that a person can type in a date and time
2917on the computer and look at a specific timeframe on the video, which is what
2932she did. Once she viewed the video and realized how long a student had been
2947out of the classroom, she went to Ms. Raulerson and they looked at the video
2962again. Mr. Messick also watched the video with them.
297130. Administrators at the school could access the surveillance video on
2982their computers. The surveillance video software has dates and times from
2993which you can re trieve a time period to watch. However, when you download
30073 testify at Although they were under subpoena, neither J.L. nor J.L.s father appeared to
3022hearing. Any statements attributed to them cannot support a finding of fact for the truth of
3038the matter assert ed. § 120.57(1)(c), Fla. Stat. Statements by J.L. that are included in this
3054Recommended Order are not intended to establish the truth o f her statements, but rather, to
3070explain why teachers and administrators took the actions they did in response to the situation.
3085a section of the surveillance video, the downloaded portion does not include
3097the timestamp. When Ms. Raulerson viewed the surveillance video on the
3108computer screen, she could see the time stamp. Whi le the video in evidence as
3123Petitioners Exhibit 17E does not contain the time stamp, Ms. Raulerson
3134credibly testified that it is the same video she and the others viewed to
3148determine whether J.L. and T.B. were out of the classroom and how long they
3162were o ut of the classroom.
316831. Petitioners Exhibit 17E is a type of evidence commonly relied upon by
3181reasonably prudent persons in the conduct of their responsibilities as a school
3193administrator. There is no evidence that the tape itself has been altered,
3205edit ed, or tampered with in any way.
321332. The lack of a time stamp is not all that important. What is important
3228is not so much the time of day when J.L. and T.B. were absent from
3243Respondents classroom, but the length of time that they were absent. 4
325533. Ms. Vel ez admits that she allowed both students to leave her
3268classroom on January 11. She simply disputes how long J.L. was gone.
328034. The surveillance video is 39 minutes and 53 seconds long. The times
3293given in the summary of the video activity below are based o n the times
3308recorded on the video, as opposed to the time of day. A comparison of those
3323timeframes with the timeline made by Ms. Austin and Mr. Messick shows
3335that the timelines are essentially the same. The video shows the following:
33474 Respondent claims she is prejudiced by the admission of the video, because she was not able
3364to view it with the time - stamps t o verify that it was, in fact, the video for January 11, 2018.
3386It is noted that Respondent initiated no discovery in this case. Petitioner filed an exhibit list
3402that included a reference to a video as early as July 24, 2020, so me three weeks before
3420hearing . Moreover, the Order of Pre - Hearing Instructions specifically requires not only a list
3436of all exhibits to be offered at hearing, but also any objections to those exhibits and the grounds for each objection. Respondent did not note any objection in the Sec ond Amended
3468Joint Pre - Hearing Statement to the admission of any of the videos admitted as Petitioners
3484Exhibit 17.
348635. At eight minutes, 17 seconds, J.L. leaves Ms. Velezs classroom and
3498heads down toward the girls bathroom at the end of the hall. 5 She is wearing
3514an over - sized jacket, but is not wearing a vest or carrying a clipboard. At nine
3531minutes, 15 seconds, she comes out of the girl s bathroom and speaks to an
3546adult in the hallway, and then heads back to the bathroom.
355736. At the 13 - minute, 4 - second mark, T. B. walks down the hall from
3574Ms. Velezs classroom and, curiously, walks over toward the girls bathroom
3585before going over to the boys bathroom. At 14 minutes, 39 seconds, T.B.
3598comes out of the boys bathroom and walks over toward the girls bathroom a
3612second time. After approximately ten seconds, he exits the area near the girls
3625bathroom and heads back to the boys bathroom.
363337. A t approximately 15 minutes into the video, and almost seven minutes
3646after leaving Ms. Velezs classroom, J.L. comes out of the girls bathroom,
3658peers down the hallway in both directions, and goes over to the boys
3671bathroom. At this point, she is still wear ing her jacket.
368238. At approximately 18 minutes, 16 seconds into the video, a second male
3695student, later identified as M.N., walks down the hall. M.N. is not in
3708Ms. Velezs class during this class period. He also goes toward the girls
3721bathroom first, and then stands in the hallway outside the boys bathroom.
3733After approximately 30 seconds, he walks down the hall and back, before
3745going toward the boys bathroom and ou t of sight at 19 minutes and
375940 seconds.
376139. At 20 minutes, 16 seconds into the video, ot her students start lining
3775up in the hallway. Approximately four classes line up in the hallway, with no
3789one com ing out of the boys bathroom. At approximately 29 minutes,
38015 Respondent established at hearing that one cannot actually see students enter and exit the
3816bathrooms from the surveillance video. The sigh t line for the video stops just short of the
3833doors to the two bathrooms. However, the only other alternative to going in the bathrooms
3848would be for students to exit the SLA unit through the doors near the bathrooms. If that
3865were the case, J.L. would be sub ject to harm as well, given that the doors lead to the rest of
3886the school and the bus loading zone.
389326 seconds, girls in line outside the bathroom are seen looking toward the
3906boys bath room and appear to be laughing.
391440. J.L. comes out of the boys bathroom at the 29 - minute, 53 - second
3930mark, followed by T.B. J.L. is not wearing her jacket, and her belt is undone.
3945T.B. throws J.L.s jacket on the floor and walks down the hallway with his
3959h ands up in the air. Both J.L. and T.B. walk down the hall toward Ms. Velezs
3976room, and then turn around and return to their respective bathrooms. At the
398931 - minute, 53 - second mark, J.L. comes out of the bathroom with her shirt
4005tucked in and her belt fastene d. She is still not wearing her jacket, a small
4021portion of which can be seen on the floor of the hallway. She does not pick it
4038up, but stays in the hallway until T.B. comes out of the bathroom, then both
4053go down the hall toward Ms. Velezs class, with T.B. running and J.L.
4066walking. J.L. re - enters Ms. Velezs classroom at 32 minutes, 21 seconds into
4080the video. Finally, at 32 minutes, 30 seconds, M.N. comes out of the boys
4094room, picks up J.L.s jacket and heads down the hall.
410441. Based on the surveillance v ideo, J.L.was out of the classroom for
4117slightly over 24 minutes. T.B. was absent from the classroom for over
412918 minutes. Ms. Velez is never seen in the hallway.
413942. There is no admissible evidence to demonstrate what actually occurred
4150during the time that J.L. appeared to be in the boys restroom. Regardless of
4164what actually happened, no female student should be in the boys bathroom,
4176and a female student already identified as needing increased supervision
4186should not be allowed to be unsupervised outside of her classroom at all,
4199much less for such a lengthy period of time. The potential for harm was more
4214than foreseeable, it was inevitable.
421943. Ms. Velez did not go in the hallway or send Ms. Kirkland, the
4233paraprofessional present in her classroom that day, t o check on J.L. or T.B.
4247She did not call the SRO, the front office, or Mr. Messick to ask for assistance
4263in locating either child. She also did not contact Ms. Raulerson, Mr. Messick,
4276or J.L.s parents after T.B. told her that J.L. had been in the boys re stroom.
4292She testified that, while J.L. certainly should not be in the boys restroom,
4305there was nothing that led her to believe or suspect that there could be
4319neglect or abuse.
432244. Ms. Velez acknowledged that she allowed J.L. to go to the bathroom
4335unsuper vised, and stated that she was training J.L. to go to the bathroom by
4350herself. I f that was the case, doing so was directly contrary to Mr. Messicks
4365email of August 22, 2017, and to the requirements of J.L.s IEP.
437745. Ms. Velez had approximately 18 student s in her classroom. Her focus,
4390according to her, was on providing instruction to the students in her class.
4403She denied losing track of time, but stated that once the students were
4416engaged, she took her time with the lesson, which led me to not noticing
4430wh at time it was as normally as I should, and she possibly got distracted.
4446She did not take any responsibility for her actions. Instead, she blamed the
4459situation on the fact that, at the time of the incident, she did not have a full -
4477time paraprofessional assigned to her classroom. While the paraprofessional
4486position for her class was not filled at the time of this incident, Ms. Kirkland
4501traveled with the class and was present in Ms. Velezs class when J.L. was
4515allowed to leave the classroom.
452046. Ms. Velez also appeared to minimize the importance of providing
4531increased supervision for J.L. , and claimed that she was training her to go to
4545the bathroom by herself. Yet, she described the class as a whole as one that
4560needed eyes on them at all times. Further, J.L.s parents clearly felt the
4573increased supervision was crucial, and called early in the school year to make
4586sure that staff knew J.L. was not to be left alone. Ms. Velez gave no
4601explanation as to why she would train J.L. to leave the room unsupervised
4614(and one wonders what training could be taking place, if the child is allowed
4628to go alone outside the classroom), when she knew that to do so was clearly
4643contrary to J.L.s parents wishes.
464847. On January 22, 2018, the Duval County School District (the Di strict)
4661began an investigation into the incident concerning J.L. that occurred on
4672January 11, 2018. During the District investigation, Ms. Raulerson notified
4682the Department of Children and Families (DCF) and law enforcement of the
4694incident. Both entities c onducted investigations. The results of those
4704investigations are not part of this record.
471148. On March 16, 2018, the District reprimanded Respondent and
4721suspended her for 30 days for failing to provide adequate supervision of her
4734students. The School Board s approval of the suspension and the basis for it
4748was reported in the press.
4753C ONCLUSIONS OF L AW
475849. The Division has jurisdiction over the parties and the subject matter of
4771this case p ursuant to sections 120.569 and 120.57(1).
478050. There is no dispute t hat Respondent is substantially affected by
4792Petitioners intention to discipline her educators certificate.
479951. The Florida Education Practices Commission is the state agency
4809charged with the certification and regulation of Florida educators pursuant to c hapter 1012.
482352. This is a proceeding in which Petitioner seeks to impose discipline
4835against Respondents educator certification . Because disciplinary proceedings
4843are considered to be penal in nature, Petitioner is required to prove the allegations in the Administrative Complaint by clear and convincing
4865evidence. Dept of Banking & Fin. v. Osborne Stern & Co. , 670 So. 2d 932
4880(Fla. 1996); Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987).
489153. Clear and convincing evidence requires more proof than a
4901prepond erance of the evidence but less than beyond and to the exclusion of a
4916reasonable doubt. In re Graziano , 69 6 So. 2d 744, 753 (Fla. 1997). As stated
4931by the Florida Supreme Court:
4936Clear and convincing evidence requires that the
4943evidence must be found to b e credible; the facts to
4954which the witnesses testify must be distinctly
4961remembered; the testimony must be precise and
4968lacking in confu sion as to the facts in issue. The
4979evidence must be of such a weight that it produces in the mind of the trier of fact a f irm belief or
5002conviction, without hesitancy, as to the truth of the allegations sought to be established.
5016In re Davey , 645 So. 2d 398, 404 (Fla. 1994) ( quoting, with approval ,
5030Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983)); see also In re
5046H enson , 913 So. 2d 579, 590 (Fla. 2005). Although this standard of proof may
5061be met where the evidence is in conflict, it seems to preclude evidence that is
5076ambiguous. Westinghouse Elec. Corp. v. Shuler Bros., 590 So. 2d 986, 989
5088(Fla. 1991).
509054. Secti on 1012.796 describes the disciplinary process for educators, and
5101provides in pertinent part:
5105(6) Upon the finding of probable cause, the
5113commissioner shall file a formal complaint and
5120prosecute the complaint pursuant to the provisions
5127of chapter 120. An a dministrative law judge shall
5136be assigned by the Division of Administrative
5143Hearings of the Department of Management Services to hear the complaint if there are dis puted
5159issues of material fact. The administrative law judge shall make recommendations in ac cordance
5173with the provisions of subsection (7) to the appropriate Education Practices Commission panel
5186which shall conduct a formal review of such
5194recommendations and other pertinent inform ation
5200and issue a final order. The commission shall consult with it s legal counsel prior to issuance of a
5219final order.
5221(7) A panel of the commission shall enter a final
5231order either dismissing the complaint or imposing one or more of the following penalties:
5245(a) Denial of an application for a teaching
5253certificate or fo r an administrative or supervisory
5261endorsement on a teac hing certificate. The denial
5269may provide that the applicant may not reapply for certification, and that the department may refuse
5285to consider that applicants application, for a
5292specified period of ti me or permanently.
5299(b) Revocation or suspension of a certificate.
5306(c) Imposition of an administrative fine not to exceed $2,000 for each count or separate offense.
5323(d) Placement of the teacher, administrator, or supervisor on probation for a period of t ime and
5340subject to such conditions as the commission may specify, including requiring the certified teacher,
5354administrator, or supervisor to complete additional
5360appropriate college courses or work with another certified educator, with the administrative co sts of
5375monitoring the probation assessed to the educator placed on probation. . . .
5388* * *
5391(e) Restriction of the authorized scope of practice of
5400the teacher, administrator, or supervisor.
5405(f) Reprimand of the teacher, administrator, or
5412supervisor in wr iting, with a copy to be placed in the certification file of such person.
5429(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 o r an expired
5460certificate subject to late renewal, which sanction bars that person from applying for a new certificate for a period of 10 years or less, or permanently.
5486(h) Refer the teacher, administrator, or supervisor
5493to the recovery network program pro vided in
5501s. 1012.798 under such terms and conditions as the
5510commission may specify.
551355 . Charges in a disciplin ary proceeding must be strictly construed, with
5526any ambiguity construed in favor of the licensee. Elmariah v. Dept of Profl
5539Reg . , 574 So. 2d 164, 165 (Fla. 1st DCA 1990); Taylor v. Dept of Profl Reg .,
5557534 So. 2d 782, 784 (Fla. 1st DCA 1988). Disciplina ry statutes and rules must
5572be construed in terms of their literal meaning, and words used by the
5585Legislature may not be expanded to broaden their application. Beckett v. Dept
5597of Fin. Servs. , 982 So. 2d 94, 99 - 100 (Fla. 1st DCA 2008); Dyer v. Dept of Ins.
5616& Treas. , 585 So. 2d 1009, 1013 (Fla. 1st DCA 1991).
562756. Count 1 of the Administrative Complaint charges Respondent with a
5638violation of section 1012.795(1)(g), which authorizes discipline when, upon investigation, the certificate holder has been found gu ilty of personal conduct
5659that seriously reduces that persons effectiveness as an employee of a school
5671board.
567257. Petitioner did not prove Count 1 by clear and convincing evidence.
5684Petitioner has been teaching for 20 years. The School District suspended her
5696license for 30 days, but no evidence was presented to indicate that she is not teaching in the district now, and no evidence was presented to indicate that
5724administrators in the School District, then or now, view Ms. Velez as being
5737any less effective i n the classroom. It is unknown how effective Respondent
5750was perceived to be at the time of this incident, much less how that level of
5766effectiveness has changed, if any. Petitioner acknowledges in its Proposed Recommended Order that no direct testimony rega rding serious reduction of
5787effectiveness was presented at hearing, but argues that the violation can be
5799shown based on the nature of the misconduct. The examples given are cases
5812involving lying under oath, resisting arrest, and commotion in class caused by
5824an intoxicated student. While there may be instances where an inference is
5836enough, there is simply not enough evidence upon which to find that her
5849effectiveness has been seriously reduced.
585458. Count 2 of the Administrative Complaint charges Respondent wi th
5865violating section 1012.795(1)(j), which authorizes discipline when a certificateholder has violated the Principles of Professional Conduct for the
5883Education Profession prescribed by the State Board of Education rules. This
5894count cannot constitute an ind ependent violation, but rather, is dependent
5905upon a corresponding violation of the rules constituting the Principals of
5916Professional Conduct. For the reasons expressed with respect to Count 3, this
5928Count has been proven by clear and convincing evidence.
59375 9. Count 3 of the Administrative Complaint charges Respondent with
5948violating rule 6A - 10.081(2)(a)1., which, at the time of the conduct at issue,
5962provided:
5963(2) Florida educators shall comply with the
5970following disciplinary principles. Violation of any of these principles shall subject the individual to
5984revocation or suspension of the individual
5990educators certificate, or the other penalties as provided by law.
6000(a) Obligation to the student requires that the
6008individual:
60091. Shall make reasonable effort to protect the
6017student from conditions harmful to learning and/or
6024to the students mental and/or physical health
6031and/or safety.
603360. Petitioner has proven Count 3 by clear and convincing evidence.
6044Respondent allowed J.L. to be out of her classroom, alone, w hen both the IEP
6059and the August email from Mr. Messick clearly indicate that she is not to be
6074left alone, and that increased supervision is required to insure her safety. Under no circumstances does increased supervision include being left to her
6097own dev ices for 2 4 minutes of a class period.
610861. Moreover, the evidence is clear that, once Respondent allowed J.L. to
6120leave her classroom, she did nothing to check on her whereabouts at any time during the 24 minutes that she was absent from the classroom. Eve n after
6148learning that she had spent at least part of that time in the boys bathroom,
6163she did nothing to find out what happened or to report the incident to
6177administration. Respondent also allowed T.B. to be out of the classroom when
6189she knew that J.L. was already unsupervised outside the classroom.
619962. Florida Administrative Code R ule 6B - 11.007 provides the range of
6212penalties for violations of the Education Code and rules promulgated thereto.
6223For a violation of rule 6A - 10.081(2)(a)1 . , the guidelines permi t anything from
6238a reprimand to revocation. Aggravating or mitigating factors listed in rule
62496B - 11.007(3) that can be considered include the severity of the offense; the
6263danger to the public; the respondents previous disciplinary history; the
6273length of tim e the educator has practiced and his or her contribution as an
6288educator; the actual damage, physical or otherwise, caused by the violation;
6299any effort at rehabilitation; and any attempts by the educator to stop the
6312violation or refusal to correct or stop t he violation. In this case, the offense is
6328a serious violation of school protocols, a specific directive related to J.L., and
6341J.L.s IEP, all of which were designed to keep this very vulnerable student
6354safe. Failure to abide by the safeguards in place put this child in a position where significant harm could take place, yet Respondent made no effort to
6381use the resources available to her. T.B.s absence from the classroom at the
6394same time for almost as long is also concerning, and raises the probability that either or both children could be harmed in the absence of supervision.
6420This is especially so where, as here, both children had cognitive delays that
6433required constant supervision. On the other hand, Respondent has been
6443teaching for 20 years with no discip line. Respondent presented no evidence
6455regarding her effectiveness as a teacher or her contribution to the teaching
6467profession, other than the length of her teaching career.
6476R ECOMMENDATION
6478Based on the foregoing Findings of Fact and Conclusions of Law, it is
6491R ECOMMENDED that the Education Practices Commission enter a final order
6502finding that Respondent v iolated section 1012.795(1)(j) and rule 6A -
651310.081(2)(a)1. It is further recommended that Respondent pay a fine of $750,
6525and that her certificate be suspend ed for a period of one year, followed by two
6541years of probation, with terms and conditions to be determined by the
6553Education Practices Commission.
6556D ONE A ND E NTERED this 29 th day of October , 2020 , in Tallahassee, Leon
6572County, Florida.
6574L ISA S HEARER N ELS ON
6581Administrative Law Judge
6584Division of Administrative Hearings
6588The DeSoto Building
65911230 Apalachee Parkway
6594Tallahassee, Florida 32399 - 3060
6599(850) 488 - 9675
6603Fax Filing (850) 921 - 6847
6609www.doah.state.fl.us
6610Filed with the Clerk of the
6616Division of Administrativ e Hearings
6621this 29 th day of October , 2020 .
6629C OPIES F URNISHED :
6634Ron Weaver, Esquire
6637Post Office Box 770088
6641Ocala, Florida 34477 - 0088
6646(eServed)
6647Stephanie Marisa Schaap, Esquire
6651Duval Teachers United
66541601 Atlantic Boulevard
6657Jacksonville, Florida 32207
6660(eS erved)
6662Lisa M. Forbess, Interim Executive Director
6668Education Practices Commission
6671Department of Education
6674Turlington Building, Suite 316
6678325 West Gaines Street
6682Tallahassee, Florida 32399 - 0400
6687(eServed)
6688Matthew Mears, General Counsel
6692Department of Education
6695Turlington Building, Suite 1244
6699325 West Gaines Street
6703Tallahassee, Florida 32399 - 0400
6708(eServed)
6709Randy Kosec, Jr., Chief
6713Office of Professional Practices Services
6718Department of Education
6721Turlington Building, Suite 224 - E
6727325 West Gaines Street
6731T allahassee, Florida 32399 - 0400
6737(eServed)
6738N OTICE OF R IGHT T O S UBMIT E XCEPTIONS
6749All parties have the right to submit written exceptions within 15 days from
6762the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with t he agency that will issue the Final Order in this
6789case.
- Date
- Proceedings
- PDF:
- Date: 02/12/2021
- Proceedings: Petitioner's Response to Respondent's Exceptions to Recommended Order filed.
- PDF:
- Date: 10/29/2020
- Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
- PDF:
- Date: 09/22/2020
- Proceedings: Unopposed Motion for Extension of Time to File Proposed Recommended Order filed.
- Date: 09/14/2020
- Proceedings: Transcript of Proceedings (not available for viewing) filed.
- Date: 08/13/2020
- Proceedings: CASE STATUS: Hearing Held.
- PDF:
- Date: 08/13/2020
- Proceedings: Petitioner's Notice of Filing Witness Affidavits of Service filed.
- Date: 08/11/2020
- Proceedings: Petitioner's Proposed Exhibits filed (exhibits not available for viewing).
- PDF:
- Date: 08/05/2020
- Proceedings: Amended Notice of Hearing by Zoom Conference (hearing set for August 13, 2020; 9:30 a.m.; Jacksonville; amended as to Type of Hearing and Time).
- PDF:
- Date: 06/29/2020
- Proceedings: Notice of Service of Respondent's Answers to Petitioner's First Interrogatories, Request for Admissions and Request for Production filed.
- PDF:
- Date: 06/25/2020
- Proceedings: Notice of Service of Respondent's Answers to Petitioner's First Interrogatories and Request for Admissions filed.
- PDF:
- Date: 06/22/2020
- Proceedings: Amended Notice of Hearing (hearing set for August 13, 2020; 9:00 a.m.; Jacksonville; amended as to Venue).
- Date: 06/04/2020
- Proceedings: CASE STATUS: Status Conference Held.
- PDF:
- Date: 06/02/2020
- Proceedings: Notice of Telephonic Status Conference (status conference set for June 4, 2020; 3:30 p.m.).
- PDF:
- Date: 04/24/2020
- Proceedings: Order Rescheduling Hearing by Video Teleconference (hearing set for August 13, 2020; 9:00 a.m.; Jacksonville and Tallahassee, FL).
- PDF:
- Date: 03/20/2020
- Proceedings: Order Granting Continuance and Requiring Status Report (parties to advise status by April 17, 2020).
Case Information
- Judge:
- LISA SHEARER NELSON
- Date Filed:
- 01/15/2020
- Date Assignment:
- 02/10/2020
- Last Docket Entry:
- 02/12/2021
- Location:
- Jacksonville, Florida
- District:
- Northern
- Agency:
- ADOPTED IN TOTO
- Suffix:
- PL
Counsels
-
Lisa M Forbess, Program Specialist IV
Address of Record -
Stephanie Marisa Schaap, Esquire
Address of Record -
Ron Weaver, Esquire
Address of Record -
Lisa M Forbess, Executive Director
Address of Record