20-000148PL Richard Corcoran, As Commissioner Of Education vs. Diane Velez Status: Closed Recommended Order on Thursday, October 29, 2020.

Summary: Allowing two ESE students to be outside the classroom unsupervised for 18 and 24 minutes, respectively, is a failure to protect those students from harm.

P RELIMINARY S TATEMENT

On July 31, 2019, P etitioner, Richard Corcoran, in his capacity as

Commissioner of Education (Petitioner), filed an Administrative Complaint

against 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

in her classroom. Respondent filed an Amended Election of Rights disputing

the allegations in the Administrative Complaint and requesting a hearing pursuant to section 120.57(1). The case was referred to the Division of

Administrative Hearings (the Division) on January 15, 2020, and assigned to

Administrative Law Judge Suzanne Van Wyk.

On January 31, 2020, a Notice of Hearing was issued, scheduling the case

for hearing on May 1, 2020, and on February 10, 2020, the case was

transferred to Administrative Law Judge Lisa Shearer Nelson. On March 20,

2020, Petitioner filed an Unopposed Motion to Continue Final Hearing,

alleging that because of the state of emergency declared based on the COVID - 19 coronavirus pandemic, schools were closed , and completing the

necessary discovery to prepare for hearing was not possible. By Order dated

that same day, the case was continued, and the parties were directed to

provide a status report no later than April 17, 2020.

On April 24, 2020, based on the pa rties’ Joint Status Report, the case was

rescheduled for August 13, 2020, by video teleconference with sites in

Jacksonville and Tallahassee. However, as citizens were still encouraged to

wear masks and engage in social distancing in order to stem the spre ad of

COVID - 19, there was a concern that the video conference room in

Jacksonville might not be large enough to accommodate the parties,

attorneys, and witnesses necessary to conduct the hearing. A Procedural

Order was issued, directing the parties to prov ide an estimate of the number

of people that would be present in the courtroom, and where the parties

anticipated any witnesses would wait before testifying. Based on the

responses provided, it was determined that the video conferencing room in

Jacksonvill e would not provide adequate space to allow for social distancing.

A status conference was conducted on June 4, 2020, to address the hearing

location, and as a result of the status conference, the hearing was relocated to

the Duval County School District h eadquarters. On August 5, 2020, the

venue of the hearing was changed once again, this time to allow the

proceedings to be conducted using Zoom technology.

The parties filed a Second Amended Joint Prehearing Statement which

includes stipulated facts for wh ich no proof at hearing is required, and those

facts have been included in the Findings of Fact below. The Second Amended

Prehearing Statement also amended paragraph three of the Administrative

Complaint, as follows:

3. In or about January 11, 2018, Respon dent failed

to properly supervise her students, J.L., a female

student with Williams Syndrome and an Individual Education Plan (IEP) and T.B., a male student in Respondent’s class. Respondent allowed the two

students to leave Respondent’s classroom to go t o

the restroom at the same or overlapping times.

J.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

trusting child and will walk away with a stranger.

She does n ot distinguish between friend from

stranger and this can cause a danger to her safety.” The IEP also states that J.L. “needs increased

supervision to insure her safety.” As J.L.’s teacher

and case manager, Respondent was aware of J.L.’s IEP requirements. A dditionally, on or about

Augu st 22, 2017, the Lead Exceptional Student

Education (ESE) teacher at Respondent’s school

sent an email to J.L.’s teachers, including

Respondent, 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

play in the restroom and whoever has her last

perios (sic) of the day make sure she uses the restroom.”

At hearing, J. Rebecca Raulerson, Billie Jay Hodges, Ronald Messick, and

Lana Austin testified for Petitioner, and Petitioner’s Exhibits numbered 5

through 7, 9 through 13, and 15 through 17 were admitted into evidence.

Respondent testified on her own behalf and presented the testimony of

Jessica Kirkland. Respondent did not offer any exhibits.

T he Transcript of the proceedings was filed with the Division on

September 14, 2020. Respondent filed an unopposed motion for extension of

time to file its proposed recommended order, which was granted, and the

time for filing the post - hearing submissions w as extended to October 2, 2020.

Both parties timely filed Proposed Recommended Orders that were carefully

considered in the preparation of this Recommended Order.

The Administrative Complaint contains allegations from the 2017 - 2018

school year, from Augus t 2017 through March 2018. This proceeding is

governed by the law in effect at the time of the commission of the acts alleged to warrant discipline. McCloskey v. Dep’t of Fin. Servs. , 115 So. 3d 441, 444

(Fla. 5th DCA 2013). All references to Florida Statu tes are to the 2017

codification unless otherwise indicated.

F INDINGS OF F ACT

Based on the demeanor of the witnesses, the testimony given, and the

documentary evidence received, the following F indings of F act are made.

1. Respondent holds Florida Educator ’s Certificate 789520, covering the

areas of Elementary Education, English for Speakers of Other Languages, (ESOL), and Exceptional Student Education (ESE), which is valid through June 30, 2020.

2. At all times relevant to the allegations in the Administra tive

Complaint, Respondent was employed as an ESE teacher at Stillwell Middle

School (Stillwell) in the Duval County School District. She has been teaching

for approximately 20 years, with no prior discipline.

3. Respondent teaches in a wing at Stillwell t hat is referred to as the SLA

Unit, which stands for Supported Level Academics. The students in the SLA Unit are cognitively delayed and have all of their classes in this self -

contained unit.

4. The SLA Unit is located in a wing at the back of the school , near the

bus loop. If someone is looking down the hall from the doors closest to the rest

of the school, there are female and male bathrooms for students to the left

and right, respectively, closest to those doors. From those bathrooms, there

are five cl assrooms on each side of the hall. Ms. Velez’s classroom is the third

classroom on the right - hand side of the hallway.

5. There are additional restrooms in the wing, all congregated in the area

between the third and fourth classrooms on the left hand side of the hallway.

At least one of those bathrooms is entered from within a classroom.

6. Stillwell had a policy that if a student was given permission to leave the

classroom, 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

could call for assistance from Ronald Messick, the lead ESE teacher; send a

paraprofessional to look for the student; or call the front office or a resource

officer . The eight - to - ten minute window was not a written policy, but was

discussed during pre - planning meetings at the beginning of the year, as well

as at faculty meetings. While attendance logs from pre - planning and faculty

meetings were not introduced to establish that Respondent was present

during faculty meetings or pre - planning meetings, no evidence was presented

to indicate that she was absent.

7. In addition, the 2017 - 2018 Faculty Handbook (Handbook) for Stillwell

had more than one section that addressed supervision of students. For

exa mple, under the caption “Supervision of Students,” beginning on page 12

of the Handbook, it states: 1

It is the responsibility of the school to provide

supervision for students in attendance. It is the

teacher’s responsibility to make sure that students in his/her charge are supervised at all times.

Teachers should be aware of the legal and progressive discipline aspects of failure to provide adequate supervision. Students should always have

adult supervision .

8 . Under the caption “Hall Passes,” on page 16 of the Handbook, it states:

Hall passes are to be used for emergencies only. In an effort to reduce the number of students out of

class during instructional time, each classroom will

have either a lime/orange vest or a Colored

clipboard. Students needing to leave the classroom

are required to wear the vest or carry the clipboard. Please make sure students continue to sign - out

when 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

may be on a hall pass at any given time. If it is

necessary that a student leave your classroom to go

to an Administrative Office and your vest/clipboard is already being used, security will need to escort

student(s) to and from the cl assroom .

While it is our desire that no student be in the halls

during instructional time, there are absolutely NO

hall passes for any reason during the first/last

30 minutes of each class and NO hall passes

during 2 nd block each day unless called by an

A dministrator. Students who are found out of class

during the first/last 30 minutes of the block will

have the vest or clipboard taken and given to the

Assistant Principal for you to retrieve.

Students who are out of class, unaccompanied by security, and d o not have a v est/clipboard will be

1 All italics, underlining, and bold used in the quoted material is as it appears in the

Handbook.

considered skipping and appropriate consequences

will be assigned. The teacher will also be held accountable if not following school procedure.

9. Finally, under the heading “Hall and Campus Monitoring, ” it states in

a ll capitals and bold letters, “ STUDENTS SHOULD NEVER WALK BY

THEMSELVES .”

10. On or about January 11, 2018, J.L. was an 11 - year - old female student

in the sixth grade. J.L. was assigned to Respondent’s classroom, and has an

Individual Education Plan (IEP) . J.L. was a student in a class containing

students who functioned cognitively at the lowest level for students at

Stillwell. While those who testified could not state definitively what the IQ

level was for the class, it was generally around 67 - 70. Ms. Vel ez described the

class as one for which there was “a need to have eyes on them.”

11. J.L. was ne w to the school during the 2017 - 2018 school year.

12. On August 22, 2017, Ronald Messick sent an email to J.L.’s teachers,

including Respondent, stating that J.L. could not be left alone and that she

would “leave with a complete stranger.” He advised that when J.L. uses the

restroom, she likes to play in it, and directed that the teacher who has J.L.

the last period of the day needed to make sure she used the r estroom.

13. J.L.’s mother had called Mr. Messick the first week of school with

concerns that J.L. had been unsupervised in the bus pick - up area. Her

mother explained her concerns to Mr. Messick regarding J.L.’s need for

constant supervision. The email ref erenced making sure that J.L. went to the

bathroom before boarding the bus simply because she would have a long ride

home from school.

14. An IEP meeting was conducted for J.L. on October 12, 2017.

Mr. Messick was present as the LEA (lead educational agenc y)

representative, along with Ms. Velez, who wrote the IEP, and three others.

15. J.L.’s IEP states that “[s]he has Williams Syndrome which is a

developmental disorder that affects many parts of her body.” The IEP also

states that J.L. “is a very trusting child and will walk away with a stranger.

She does not distinguish friend from stranger and this causes danger to her

safety,” and that J.L. “needs increased supervision to ensure her safety.” The

statement that J. L . needs increased supervision to insure her safety is

included in two separate sections of her IEP.

16. Respondent was J.L.’s case manager. As her case manager,

Respondent reviews, completes entries , and inputs other appropriate data in

J.L.’s IEP. She was aware of the information contained in J.L.’s IEP.

17. On January 11, 2018, J.L. was present in Ms. Velez’s classroom during

the last period of the day. At approximately 2:05, she asked for , and received ,

permission to go to the bathroom.

18. Ms. Velez allowed J.L. to go by herself. No adult or other student

accompanied her.

19. Allowing J.L. to go the restroom alone was not permitted by her IEP.

Further, it appears to violate the policies outlined in the Handbook, which

prohibits allowing hall passes for the first 30 minutes of each class. The final

class of the day began at 2:05. 2 It also runs afou l of the email sent by

Mr. Messick at the beginning of the school year, which specifically directed

that J.L. not be left alone.

20. After J.L. was permitted to leave the classroom, T.B., a male stud ent

in Respondent’s class, also asked to go the bathroom, and was allowed to

leave the classroom. Ms. Velez did not check to see where J.L. was before

letting T.B. leave the classroom. T.B. was also unaccompanied.

21. J.L. was absent from the classroom for approximately 24 minutes.

There are no credible circumstances presented at hearing by which a student should be absent from the classroom for that length of time, regardless of

2 The Administrative Complaint does not charge Respondent with violating this policy, and

no discipli ne is recommended for apparently doing so. It is included simply to show that

there were multiple guidelines in place to prohibit allowing J.L. outside of the classroom

alone.

their mental capacity, the policy contained in the Handbook, or any policy

dis cussed at faculty meetings.

22. T.B. returned to the classroom before J.L. After he entered Ms. Velez’s

classroom, T.B. apparently told Ms. Velez that J.L. was in the boys’

bathroom. Ms. Velez testified that she was about to look for her when J.L.

returned to the classroom. Ms. Velez testified that she noticed J.L. had “a lot

of energy,” and was breathing hard and her hands were shaking.

23. Ms. Velez asked J.L. if she had been in the boys’ bathroom, and

testified at hearing that J.L. responded that she di d not want to get in

trouble. J.L. became upset and asked to spea k with the school nurse.

Ms. Velez allowed her to go to the nurse’s office, this time accompanied by an

eighth grade girl. While Ms. Velez described the child who accompanied J.L.

as “very re sponsible,” it is noted that she was also a child in this classroom of

children who represented the lowest functioning students at Stillwell.

24. Lana Austin was the school nurse at Stillwell, and her office was down

the hall from Ms. Velez’s 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 nurse’s office or just how he came to be

there.

25. When she arrived at the nurse’s office, J.L. was crying and somewhat

distraught, 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

trouble. J.L. wanted to call her mother, and Ms. Austin let her do so, because

she belie ved it would calm her down. A paraprofessional came into

Ms. Austin’s office while J.L. was on the phone with her mother . S o while the

paraprofessional was in the office with the students, Ms. Austin contacted Ms. Raulerson, the principal at Stillwell, and notified her there might be a

problem so that someone could look at the hallway video and find out if

anything happened.

26. Ms. Austin knew that J.L. was a student who needed to be escorted.

She was always brought to the nurse’s office by an adult. On t his occasion,

there was no adult.

27. Jennifer Raulerson was the principal at Stillwell during the 2017 - 2018

school year. She is now the executive director for middle schools in Duval

County.

28. Ms. Raulerson testified that J.L.’s father came to the sch ool

immediately after J.L.’s telephone call home, and started asking questions.

Because of the nature of his questions, consis tent with school protocols,

Ms. Raulerson contacted Stillwell’s school resource officer (SRO), Officer

Tuten, as well as Mr. Messi ck and Ms. Hodges, who was the d ean of students,

to discuss with J.L.’s father what needed to be done to investigate what

actually happened. 3

29. The following morning, Ms. Raulerson, Ms. Hodges, and Mr. Messick

spoke to J.L., T.B., and M.N., another stud ent in the hallway, about what

happened 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

she saw anything that would indicate that something happened involving

J.L. and T. B. Ms. Hodges testified that a person can type in a date and time

on the computer and look at a specific timeframe on the video, which is what

she did. Once she viewed the video and realized how long a student had been

out of the classroom, she went to Ms. Raulerson and they looked at the video

again. Mr. Messick also watched the video with them.

30. Administrators at the school could access the surveillance video on

their computers. The surveillance video software has dates and times from

which you can re trieve a time period to watch. However, when you download

3 testify at Although they were under subpoena, neither J.L. nor J.L.’s father appeared to

hearing. Any statements attributed to them cannot support a finding of fact for the truth of

the matter assert ed. § 120.57(1)(c), Fla. Stat. Statements by J.L. that are included in this

Recommended Order are not intended to establish the truth o f her statements, but rather, to

explain why teachers and administrators took the actions they did in response to the situation.

a section of the surveillance video, the downloaded portion does not include

the timestamp. When Ms. Raulerson viewed the surveillance video on the

computer screen, she could see the time stamp. Whi le the video in evidence as

Petitioner’s Exhibit 17E does not contain the time stamp, Ms. Raulerson

credibly testified that it is the same video she and the others viewed to

determine whether J.L. and T.B. were out of the classroom and how long they

were o ut of the classroom.

31. Petitioner’s Exhibit 17E is a type of evidence commonly relied upon by

reasonably prudent persons in the conduct of their responsibilities as a school

administrator. There is no evidence that the tape itself has been altered,

edit ed, or tampered with in any way.

32. The lack of a time stamp is not all that important. What is important

is not so much the time of day when J.L. and T.B. were absent from

Respondent’s classroom, but the length of time that they were absent. 4

33. Ms. Vel ez admits that she allowed both students to leave her

classroom on January 11. She simply disputes how long J.L. was gone.

34. The surveillance video is 39 minutes and 53 seconds long. The times

given in the summary of the video activity below are based o n the times

recorded on the video, as opposed to the time of day. A comparison of those

timeframes with the timeline made by Ms. Austin and Mr. Messick shows

that the timelines are essentially the same. The video shows the following:

4 Respondent claims she is prejudiced by the admission of the video, because she was not able

to view it with the time - stamps t o verify that it was, in fact, the video for January 11, 2018.

It is noted that Respondent initiated no discovery in this case. Petitioner filed an exhibit list

that included a reference to a video as early as July 24, 2020, so me three weeks before

hearing . Moreover, the Order of Pre - Hearing Instructions specifically requires not only a list

of 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

Joint Pre - Hearing Statement to the admission of any of the videos admitted as Petitioner’s

Exhibit 17.

35. At eight minutes, 17 seconds, J.L. leaves Ms. Velez’s classroom and

heads down toward the girls’ bathroom at the end of the hall. 5 She is wearing

an over - sized jacket, but is not wearing a vest or carrying a clipboard. At nine

minutes, 15 seconds, she comes out of the girl s’ bathroom and speaks to an

adult in the hallway, and then heads back to the bathroom.

36. At the 13 - minute, 4 - second mark, T. B. walks down the hall from

Ms. Velez’s classroom and, curiously, walks over toward the girls’ bathroom

before going over to the boys’ bathroom. At 14 minutes, 39 seconds, T.B.

comes out of the boys’ bathroom and walks over toward the girls’ bathroom a

second time. After approximately ten seconds, he exits the area near the girls’

bathroom and heads back to the boys’ bathroom.

37. A t approximately 15 minutes into the video, and almost seven minutes

after leaving Ms. Velez’s classroom, J.L. comes out of the girls’ bathroom,

peers down the hallway in both directions, and goes over to the boys’

bathroom. At this point, she is still wear ing her jacket.

38. At approximately 18 minutes, 16 seconds into the video, a second male

student, later identified as M.N., walks down the hall. M.N. is not in

Ms. Velez’s class during this class period. He also goes toward the girls’

bathroom first, and then stands in the hallway outside the boys’ bathroom.

After approximately 30 seconds, he walks down the hall and back, before

going toward the boys’ bathroom and ou t of sight at 19 minutes and

40 seconds.

39. At 20 minutes, 16 seconds into the video, ot her students start lining

up in the hallway. Approximately four classes line up in the hallway, with no

one com ing out of the boys’ bathroom. At approximately 29 minutes,

5 Respondent established at hearing that one cannot actually see students enter and exit the

bathrooms from the surveillance video. The sigh t line for the video stops just short of the

doors to the two bathrooms. However, the only other alternative to going in the bathrooms

would be for students to exit the SLA unit through the doors near the bathrooms. If that

were the case, J.L. would be sub ject to harm as well, given that the doors lead to the rest of

the school and the bus loading zone.

26 seconds, girls in line outside the bathroom are seen looking toward the

boys’ bath room and appear to be laughing.

40. J.L. comes out of the boys’ bathroom at the 29 - minute, 53 - second

mark, followed by T.B. J.L. is not wearing her jacket, and her belt is undone.

T.B. throws J.L.’s jacket on the floor and walks down the hallway with his

h ands up in the air. Both J.L. and T.B. walk down the hall toward Ms. Velez’s

room, and then turn around and return to their respective bathrooms. At the

31 - minute, 53 - second mark, J.L. comes out of the bathroom with her shirt

tucked in and her belt fastene d. She is still not wearing her jacket, a small

portion of which can be seen on the floor of the hallway. She does not pick it

up, but stays in the hallway until T.B. comes out of the bathroom, then both

go down the hall toward Ms. Velez’s class, with T.B. running and J.L.

walking. J.L. re - enters Ms. Velez’s classroom at 32 minutes, 21 seconds into

the video. Finally, at 32 minutes, 30 seconds, M.N. comes out of the boys’

room, picks up J.L.’s jacket and heads down the hall.

41. Based on the surveillance v ideo, J.L.was out of the classroom for

slightly over 24 minutes. T.B. was absent from the classroom for over

18 minutes. Ms. Velez is never seen in the hallway.

42. There is no admissible evidence to demonstrate what actually occurred

during the time that J.L. appeared to be in the boys’ restroom. Regardless of

what actually happened, no female student should be in the boys’ bathroom,

and a female student already identified as needing increased supervision

should not be allowed to be unsupervised outside of her classroom at all,

much less for such a lengthy period of time. The potential for harm was more

than foreseeable, it was inevitable.

43. Ms. Velez did not go in the hallway or send Ms. Kirkland, the

paraprofessional present in her classroom that day, t o check on J.L. or T.B.

She did not call the SRO, the front office, or Mr. Messick to ask for assistance

in locating either child. She also did not contact Ms. Raulerson, Mr. Messick,

or J.L.’s parents after T.B. told her that J.L. had been in the boys’ re stroom.

She testified that, while J.L. certainly should not be in the boys’ restroom,

there was nothing that led her to believe or suspect that there could be

neglect or abuse.

44. Ms. Velez acknowledged that she allowed J.L. to go to the bathroom

unsuper vised, and stated that she was training J.L. to go to the bathroom by

herself. I f that was the case, doing so was directly contrary to Mr. Messick’s

email of August 22, 2017, and to the requirements of J.L.’s IEP.

45. Ms. Velez had approximately 18 student s in her classroom. Her focus,

according to her, was on providing instruction to the students in her class.

She denied losing track of time, but stated that once the students were

engaged, she took her time with the lesson, which “led me to not noticing

wh at time it was as normally as I should,” and she “possibly got distracted.”

She did not take any responsibility for her actions. Instead, she blamed the

situation on the fact that, at the time of the incident, she did not have a full -

time paraprofessional assigned to her classroom. While the paraprofessional

position for her class was not filled at the time of this incident, Ms. Kirkland

traveled with the class and was present in Ms. Velez’s class when J.L. was

allowed to leave the classroom.

46. Ms. Velez also appeared to minimize the importance of providing

increased supervision for J.L. , and claimed that she was training her to go to

the bathroom by herself. Yet, she described the class as a whole as one that

needed “eyes on them” at all times. Further, J.L.’s parents clearly felt the

increased supervision was crucial, and called early in the school year to make

sure that staff knew J.L. was not to be left alone. Ms. Velez gave no

explanation as to why she would “train” J.L. to leave the room unsupervised

(and one wonders what training could be taking place, if the child is allowed

to go alone outside the classroom), when she knew that to do so was clearly

contrary to J.L.’s parents’ wishes.

47. On January 22, 2018, the Duval County School District (the Di strict)

began an investigation into the incident concerning J.L. that occurred on

January 11, 2018. During the District investigation, Ms. Raulerson notified

the Department of Children and Families (DCF) and law enforcement of the

incident. Both entities c onducted investigations. The results of those

investigations are not part of this record.

48. On March 16, 2018, the District reprimanded Respondent and

suspended her for 30 days for failing to provide adequate supervision of her

students. The School Board ’s approval of the suspension and the basis for it

was reported in the press.

C ONCLUSIONS OF L AW

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

this case p ursuant to sections 120.569 and 120.57(1).

50. There is no dispute t hat Respondent is substantially affected by

Petitioner’s intention to discipline her educator’s certificate.

51. The Florida Education Practices Commission is the state agency

charged with the certification and regulation of Florida educators pursuant to c hapter 1012.

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

against Respondent’s educator certification . Because disciplinary proceedings

are considered to be penal in nature, Petitioner is required to prove the allegations in the Administrative Complaint by clear and convincing

evidence. Dep’t of Banking & Fin. v. Osborne Stern & Co. , 670 So. 2d 932

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

53. Clear and convincing evidence “requires more proof than a

‘prepond erance of the evidence’ but less than ‘beyond and to the exclusion of a

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

by the Florida Supreme Court:

Clear and convincing evidence requires that the

evidence must be found to b e credible; the facts to

which the witnesses testify must be distinctly

remembered; the testimony must be precise and

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

evidence must be of such a weight that it produces in the mind of the trier of fact a f irm belief or

conviction, without hesitancy, as to the truth of the allegations sought to be established.

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

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

H enson , 913 So. 2d 579, 590 (Fla. 2005). “Although this standard of proof may

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

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

(Fla. 1991).

54. Secti on 1012.796 describes the disciplinary process for educators, and

provides in pertinent part:

(6) Upon the finding of probable cause, the

commissioner shall file a formal complaint and

prosecute the complaint pursuant to the provisions

of chapter 120. An a dministrative law judge shall

be assigned by the Division of Administrative

Hearings of the Department of Management Services to hear the complaint if there are dis puted

issues of material fact. The administrative law judge shall make recommendations in ac cordance

with the provisions of subsection (7) to the appropriate Education Practices Commission panel

which shall conduct a formal review of such

recommendations and other pertinent inform ation

and issue a final order. The commission shall consult with it s legal counsel prior to issuance of a

final order.

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

order either dismissing the complaint or imposing one or more of the following penalties:

(a) Denial of an application for a teaching

certificate or fo r an administrative or supervisory

endorsement on a teac hing 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 ti me 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 t ime and

subject to such conditions as the commission may specify, including requiring the certified teacher,

administrator, or supervisor to complete additional

appropriate college courses or work with another certified educator, with the administrative co sts of

monitoring the probation assessed to the educator placed on probation. . . .

* * *

(e) Restriction of the authorized scope of practice of

the teacher, administrator, or supervisor.

(f) Reprimand of the teacher, administrator, or

supervisor in wr iting, 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 o r an expired

certificate subject to late renewal, which sanction bars that person from applying for a new certificate for a period of 10 years or less, or permanently.

(h) Refer the teacher, administrator, or supervisor

to the recovery network program pro vided in

s. 1012.798 under such terms and conditions as the

commission may specify.

55 . Charges in a disciplin ary proceeding must be strictly construed, with

any ambiguity construed in favor of the licensee. Elmariah v. Dep’t of Prof’l

Reg . , 574 So. 2d 164, 165 (Fla. 1st DCA 1990); Taylor v. Dep’t of Prof’l Reg .,

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

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

Legislature may not be expanded to broaden their application. Beckett v. Dep’t

of Fin. Servs. , 982 So. 2d 94, 99 - 100 (Fla. 1st DCA 2008); Dyer v. Dep’t of Ins.

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

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

violation of section 1012.795(1)(g), which authorizes discipline when, upon investigation, the certificate holder has been found gu ilty of personal conduct

that seriously reduces that person’s effectiveness as an employee of a school

board.

57. Petitioner did not prove Count 1 by clear and convincing evidence.

Petitioner has been teaching for 20 years. The School District suspended her

license 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

administrators in the School District, then or now, view Ms. Velez as being

any less effective i n the classroom. It is unknown how effective Respondent

was perceived to be at the time of this incident, much less how that level of

effectiveness has changed, if any. Petitioner acknowledges in its Proposed Recommended Order that no direct testimony rega rding serious reduction of

effectiveness was presented at hearing, but argues that the violation can be

shown based on the nature of the misconduct. The examples given are cases

involving lying under oath, resisting arrest, and commotion in class caused by

an intoxicated student. While there may be instances where an inference is

enough, there is simply not enough evidence upon which to find that her

effectiveness has been seriously reduced.

58. Count 2 of the Administrative Complaint charges Respondent wi th

violating section 1012.795(1)(j), which authorizes discipline when a certificateholder has violated the Principles of Professional Conduct for the

Education Profession prescribed by the State Board of Education rules. This

count cannot constitute an ind ependent violation, but rather, is dependent

upon a corresponding violation of the rules constituting the Principals of

Professional Conduct. For the reasons expressed with respect to Count 3, this

Count has been proven by clear and convincing evidence.

5 9. Count 3 of the Administrative Complaint charges Respondent with

violating rule 6A - 10.081(2)(a)1., which, at the time of the conduct at issue,

provided:

(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 provided by law.

(a) Obligation to the student requires that the

individual:

1. Shall make reasonable effort to protect the

student from conditions harmful to learning and/or

to the student’s mental and/or physical health

and/or safety.

60. Petitioner has proven Count 3 by clear and convincing evidence.

Respondent allowed J.L. to be out of her classroom, alone, w hen both the IEP

and the August email from Mr. Messick clearly indicate that she is not to be

left alone, and that increased supervision is required to insure her safety. Under no circumstances does “increased supervision” include being left to her

own dev ices for 2 4 minutes of a class period.

61. Moreover, the evidence is clear that, once Respondent allowed J.L. to

leave 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

learning that she had spent at least part of that time in the boys’ bathroom,

she did nothing to find out what happened or to report the incident to

administration. Respondent also allowed T.B. to be out of the classroom when

she knew that J.L. was already unsupervised outside the classroom.

62. Florida Administrative Code R ule 6B - 11.007 provides the range of

penalties for violations of the Education Code and rules promulgated thereto.

For a violation of rule 6A - 10.081(2)(a)1 . , the guidelines permi t anything from

a reprimand to revocation. Aggravating or mitigating factors listed in rule

6B - 11.007(3) that can be considered include the severity of the offense; the

danger to the public; the respondent’s previous disciplinary history; the

length of tim e the educator has practiced and his or her contribution as an

educator; the actual damage, physical or otherwise, caused by the violation;

any effort at rehabilitation; and any attempts by the educator to stop the

violation or refusal to correct or stop t he violation. In this case, the offense is

a serious violation of school protocols, a specific directive related to J.L., and

J.L.’s IEP, all of which were designed to keep this very vulnerable student

safe. 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

use the resources available to her. T.B.’s absence from the classroom at the

same 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.

This is especially so where, as here, both children had cognitive delays that

required constant supervision. On the other hand, Respondent has been

teaching for 20 years with no discip line. Respondent presented no evidence

regarding her effectiveness as a teacher or her contribution to the teaching

profession, other than the length of her teaching career.

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 order

finding that Respondent v iolated section 1012.795(1)(j) and rule 6A -

10.081(2)(a)1. It is further recommended that Respondent pay a fine of $750,

and that her certificate be suspend ed for a period of one year, followed by two

years of probation, with terms and conditions to be determined by the

Education Practices Commission.

D ONE A ND E NTERED this 29 th day of October , 2020 , in Tallahassee, Leon

County, Florida.

L ISA S HEARER N ELS ON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrativ e Hearings

this 29 th day of October , 2020 .

C OPIES F URNISHED :

Ron Weaver, Esquire

Post Office Box 770088

Ocala, Florida 34477 - 0088

(eServed)

Stephanie Marisa Schaap, Esquire

Duval Teachers United

1601 Atlantic Boulevard

Jacksonville, Florida 32207

(eS erved)

Lisa M. Forbess, Interim Executive Director

Education Practices Commission

Department of Education

Turlington Building, Suite 316

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Matthew Mears, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Randy Kosec, Jr., Chief

Office of Professional Practices Services

Department of Education

Turlington Building, Suite 224 - E

325 West Gaines Street

T allahassee, Florida 32399 - 0400

(eServed)

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

All parties have the right to submit written exceptions within 15 days from

the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with t he agency that will issue the Final Order in this

case.