20-000664PL Richard Corcoran, As Commissioner Of Education vs. Nikki Warris Status: Closed Recommended Order on Friday, January 15, 2021.

Summary: Petitioner failed to prove the allegations in the Amended Administrative Complaint by clear and convincing evidence.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

R ICHARD C ORCORAN , A S C OMMISSIONER

OF E DUCATION ,

Petitioner ,

vs. Case No. 20 - 0664PL

N IKKI W ARRIS ,

Respondent .

/

R ECOMMENDED O RDER

Administrative Law Judge ( " ALJ " ) Brittany O. Finkbeiner conducted the

final hearing in this case for the Division of Administra tive Hearings

( " DOAH " ) on October 27 and 28 , 2020, by Zoom conference.

A PPEARANCES

For Petitioner: Charles T. Whitelock, Esquire

Charles T. Whitelock, P.A.

300 Southeast 13th Street

Fort Lauderdale, Florida 33316

For Respondent: Mark S. Wilensky, Esquire

Dubiner & Wilensky, LLC

1 200 Corporate Center Way , Suite 200

Wellington, Florida 33414 - 8594

S TATEMENT OF T HE I SSUE

The issue to be determined in this case is whether Respondent violated

section 1012.795(1)(f), (g), and (j), Florida Statutes , and Florida

Administrative Code Rule s 6A - 10.081(2)(a)1 . , 5 . , and 8 ., and , 6A -

10.081(2)(b)1 . , and 3 . , as alleged in the Amended Administrati ve Complaint.

If it is found t hat Respondent has committed any of the statute or rule

violations alleged, the penalty t hat should be imposed must also be

determined.

P RELIMINARY S TATEMENT

On April 18, 2019 , Petitioner, Richard Corcoran as Commissioner of

Education for the State of Florida ( " Petitioner " ), filed an Administrative

Complaint ag ainst Respondent, Nikki Warris ( " Respondent " ) . The original

Administrative Complaint was later superseded by the Amended

Administrative Complaint, alleging violations of section 1012.795(1)(f), (g),

and (j), and rule s 6A - 10.081(2)(a)1 . , 5 . , and 8 . and , 6A - 10.081(2)(b)1 . , and 3.

Responden t timely filed an Election of Rights form disputing the allegations

and request ing a hearing pursuant to section 120.57(1) , Florida Statutes . On

February 7, 2020 , the matter was referred to DOAH for assignment of an

ALJ .

The final hearing was originally s et for April 16, 2020, but was continued

at the joint request of the parties, with good cause having been shown. The

hearing commenced on October 27, 2020, and concluded on October 28, 2020.

Petitioner ' s Exhibits 1 through 6, 8, 9, 11, and 12 were admitted into

evidence. Respondent ' s Exhibits 3 and 18 were also admitted into evidence.

Petitioner presented the testimony of Kristin S affici; Rachel C apitano

( " Principal Capitano " ) ; Justine Y oung; Denise D ' A ugelli; and Rene e and

Charles Horn (sometimes collectiv ely " C.V. ' s parents " ) . Respondent testified

on her own behalf , and also presented the testimony of H.L .; J.T .; A.E .; Gary

C hapman ( " Officer Chapman " ) ; and Joseph Guadagnino.

The two - volume Transcript of the proceeding was filed with DOAH on

November 12, 2020. During the hearing, the parties requested to have

30 days from the filing of the transcript to submit their proposed

recommended orders, which the undersigned granted. The undersigned

granted an additional extension based on an unforeseen emergency that

reasonably restricted Respondent ' s counsel from meeting the agreed -

upon submission deadline. The parties both submitted their proposed

recommended orders in conformity with the ultimate deadline of

December 21, 2020. The undersigned has carefully cons idered both

submissions in the preparation of this Recommended Order.

All statutory references shall be to the 2018 version of the Florida

Statutes, unless stated otherwise .

F INDINGS OF F ACT

Based on the demeanor and credibility of the witnesses, the do cumentary

evidence admitted , and the record as a whole, the followin g facts are found :

1. Respondent h e ld Florida Educator ' s Certificate Number 1294936,

covering the areas of English, English for Speakers of Other Languages

(ESOL), and Reading , which was v alid through June 30, 2020 .

2. At all times material to th e allegations in the Amended Administrative

Complaint , Respondent was employed as a Reading Teacher at Don Estridge

High Tech Middle School ( " Don Estridge " ) in the Palm Beach County School

District .

C.V. ' s Relevant Background

3. During the 2017 - 2018 school year, C.V. was a n eighth - grade student at

Don Estridge. Respondent was his intensive reading teacher. Intensive

reading is a remedial course for students who are reading below grade level.

4. Pr ior to working with Respondent, C.V. ' s grades were below average.

He received D ' s and F ' s in school .

5. In 2016, C.V. ' s mother , Renee Horn, married C.V. ' s step father , Charles

Horn . Prior to that marriage, C.V. was an only child living alone with his

mothe r from the time he was two years old. C.V. ' s ste pfather also had

children from a previous relationship. At the time C.V. met Respondent, his

parents observed that he was having a difficult time adjusting to their newly -

blended family.

6 . C.V. ' s parents al lowed him to spend time with his biological father.

However, in their parental judgment, they believed that it was in C.V. ' s best

interest to limit visitation with his biological father .

7. C.V. ' s parents observed that C.V. displayed signs of non - characte ristic

fragility and volatility while he was under the instruction of Respondent,

which concerned them. C.V. ' s parents believed that the demonstrated

emotional changes in C.V. were related to his friendship with Respondent

and his resistance to the parents ' desire to draw more boundaries with

respect to that friendship.

8. C.V. did not testify. Therefore, the source , or sources , of the behavioral

issues observed by his parents and other adults around him were not

conclusively established.

Respondent ' s Rele vant Background

9 . Respondent view ed herself as a teacher who was relatable to her

students. She was an enthusiastic and energetic educator who enjoy ed taking

the time to help students whom she described as having previously slipped

through the cracks.

1 0 . Respondent regularly provided extra help to students who requested

it. Her door was open to a n y of her students who desired additional

assistance with their school work. She regularly provided academic help to

students during her lunch break.

Tutoring

1 1 . C.V. first began receiving extra help with his school work from

Respondent during his lunch period. In addition to C.V., Respondent

regularly had between five and 15 other students in her classroom during the

seventh - grade lunch period. This was also the time allotted to Respondent for

her own lunch break. There was also a group varying between five and ten

students whom she allowed to come to her classroom to work while she was

teaching another class. Additionally, C.V. came to Respondent for help wit h

his work in the mornings before school started . After C.V. began spending

extra time working with Respondent, his grades improved. C.V. ' s parents

were aware of the correlation between the help from Respondent and the

improvement in C.V. ' s academic perfor mance .

1 2 . In December of 2017, C.V . ' s mother contacted Respondent and asked

her to tutor C.V. outside of school on a private basis in exchange for payment .

13. Respondent communicated with C.V. ' s mother through email and text

messages. Respondent author ized C.V. ' s mother to give Respondent ' s cell

phone number to C.V. so that he could communicate with her directly for

educational purposes while the mother was at work. There was no evidence of

the content of any text messages between Respondent and C.V.

1 4 . C.V. rode the school bus as his mode of transportation to return home

after school. H e was unable to stay after school for tutoring and still take the

bus to get home.

1 5 . Although it was common for teachers to tutor students at a public

library locate d near Don Estridge, Respondent found that when doing so, she

often had to wait with students after tutoring sessions at the library for

parents to arrive to provide transportation. This sometimes interfered with

Respondent ' s ability to pick up her own chi ldren from preschool on time.

1 6 . For that reason, Respondent tutored C.V. after school at his home. She

ensured that others were present at the home during tutoring sessions.

Respondent also continued helping C.V. at school outside of his scheduled

time in her class on an unpaid basis.

1 7 . With the consent of C.V. ' s mother, Respondent transported C.V. from

the school to his home either after helping him at school or when she was

going to his home to tutor him.

1 8 . There was one occasion when Respondent drove C.V. to school for

which it was unclear whether the parents gave her permission to do so.

1 9 . Believing that C.V. had developed an unhealthy attachment to

Respondent, C.V. ' s parents desired to limit his interaction with her. However,

they did not t erminate the tutoring sessions. Additionally, C.V. ' s mother

initiated contact between Respondent and C.V. on matters unrelated to

academics amid the parents ' efforts to create boundaries in the relationship.

C.V. ' s Time Spent in Respondent ' s Classroom

20 . In order to come to her classroom during their designated lunch

periods, students were required to have a pass signed by Respondent. Those

students who came to Respondent ' s classroom during lunch regularly reused

the same pass to eliminate the need for her to create a new pass each time.

C.V., along with other students, had such a pass issued by Respondent .

2 1 . Several witnesses testified that C.V. had a sticker on the back of his

student identification card, which they characterized as a permanent pass

pl aced there by Respondent , enabling C.V. to visit her classroom at any time.

However, the provenance and meaning of the sticker were never conclusively

established.

2 2 . On several occasions, C.V. left his elective music class to do work from

other classes in Respondent ' s classroom. He did so with the coordinated

permission of Respondent and the music teacher. Respondent believed that it

was reasonable for C.V. to do so because her classroom provided a quieter

environment for his studies and he was ahead in the music class because of

his existing background in piano.

2 3 . When C.V. ' s parents learned how much time C.V. was spending in

Respondent ' s classroom during the school day, they thought that it was

excessive.

Church Attendance and Sharing R eligious Beli efs

2 4 . Respondent served as a n unpaid worship leader and co - runner of the

children ' s ministry at a church where her father was the pastor.

Neither she, nor any other person, served in a role designated to recruit

members to the church. Respondent did no t receive any incentive from the

church to bring in new members.

2 5 . Respondent played music of various genres in her classroom.

Sometimes she played Christian music.

2 6 . Respondent wore a cross necklace to school. When asked, she was open

with students about the general fact that she was a Christian and that she

attended church.

2 7 . Witnesses observed fl y ers with information about Respondent ' s

father ' s church on her desk. It was not established that any students

received, or even saw, the flyers .

2 8 . S ome of Respondent ' s students have attended her father ' s church.

When a student expressed interest in the church, Respondent did not give the

student information about the church without express permission from a

parent.

29 . With the permission of his pare nts, C.V. attended Respondent ' s

father ' s church on several occasions. His parents attended the church with

him on one occasion. Also , with the permission of his parents, C.V. was

transported to and from church by Respondent or her husband and spent

time wi th Respondent ' s family at her home after church.

3 0 . At some point, C.V. told some of his classmates that he attended

Respondent ' s church. The nature of C.V. ' s comments to his classmates about

attending church with Respondent remains unclear. The evidence did not

establish that Respondent directed him to do so.

3 1 . Admittedly out of frustration, Respondent posted a Psalm on the door

outside of her classroom before leaving Don Estridge on her last day . She had

contemplated handing the Psalm to Principal Cap itano, but chose to place it

on the door instead. A teacher observed the Psalm on the door, and an

a ssistant p rincipal removed it.

Overnight Visits

3 2 . On one occasion, C.V. spent the night at Respondent ' s home with her

family while his mother was out of town on a business trip. Having the

impression that C.V. was unhappy at the prospect of going on the trip,

Respondent and C.V. ' s mother arranged for C.V. to stay with Respondent and

her family for the weekend.

3 3 . C.V. spent the night at Respondent ' s hom e on a second occasion, which

was also coordinated between Respondent and C.V. ' s mother.

34. C.V. expressed that he wanted to live with Respondent and that he

knew more about her than her husband.

Exchanging Gifts

3 5 . C.V. ' s mother gave Respondent a numb er of gifts during the time

when she was C.V. ' s teacher. As a Christmas gift, C.V. ' s mother gave

Respondent a $100 gift card and two lipsticks. Later, she gave Respondent

dresses for her daughters. Finally, for Valentine ' s Day, she gave Respondent

a stuffe d animal and a thermal water bottle. Respondent considered the

series of gifts to be very generous.

3 6 . C.V. ' s birthday was in February. Respondent wanted to reciprocate the

generosity of C.V. ' s mother by buying C.V. clothes for his birthday.

Respondent s ought permission from C.V. ' s mother to purchase him clothing,

which his mother declined. Believing that C.V. ' s mother declined the gifts out

of social politeness, Respondent ultimately bought him clothing for his

birthday.

Virginity C onversation

3 7 . One d ay during class, some of Respondent ' s students were discussing

the topic of virginity among themselve s. Respondent was not a party to the

conversation until C.V. asked her at what age she thought kids should lose

their virginity. Respondent believed that t his was an age - appropriate topic

for her 12 - and 13 - year old students to be curious about, but she declined to

answer the question. S he then told C.V. that it was not an appropriate

question for her and that he should ask his mother instead . Although

numer ous witnesses testified to what they thought Respondent said to her

students about virginity, Respondent is the only witness who was present

during the conversation. Her testimony on the subject was credible.

3 8 . Principal Capitano testified that if a stu dent brings up the topic of

virginity to a teacher, the teacher should respond by saying that it is not an

appropriate conversation to have.

Meeting with the Guidance Counselor and Aftermath

3 9 . On March 12, 2018, Respondent became concerned that C.V. was

exhibiting behavior that caused her to fear that he was considering harming

himself. Although she did not believe that C.V. wanted to go, Respondent

escorted him to see one of the school ' s guidance counselors, Kristen Saffici.

Respondent took this action because she believed it was her obligation to do

so based on C.V. ' s behavior, which she considered potentially self - injurious.

40 . Counselor Saffici and Principal Capitano agreed that bringing C.V. to

a guidance counselor was the appropriate course of act ion for Respondent

under the circumstances.

4 1 . Respondent remained in the meeting with Counselor Saffici and C.V.

Respondent told Counselor Saffici about her impressions of the problems C.V.

was having. Over the course of explaining the background of wha t she

believed to be C.V. ' s problems, Respondent stated that she " loved him like a

son. " Counselor Saffici thought that the statement was inappropriate. From

Respondent ' s perspective, saying that she loved C.V. like a son was a device

she regularly employe d with students to offset , or soften , a concurrent critical

statement.

4 2 . During the meeting, Counselor Saffici observed that C.V. appeared

withdrawn and sullen. He had his backpack on the table with his head down

on the backpack and did not make eye con tact. Respondent consoled C.V. by

rubbing his head. Counselor Saffici believed that Respondent ' s behavior

toward C.V. was not appropriate . Counselor Saffici, however, did not perceive

the behavior to be sexual in nature. Based on her observations, Counselo r

Saffici believed that Respondent had no mal intent. It was her opinion that

Respondent had C.V. ' s best interest at heart.

4 3 . Following the meeting with Counselor Saffici, the school resource

officer, Gary Chapman, interviewed C.V. independently to dete rmine whether

C.V. was a threat to himself or others. Officer Chapman concluded that C.V.

was not considering self - harm at that time. Based on the interview, Officer

Chapman ' s understanding was that C.V. ' s emotional distress was related to

his desire to se e his biological father more often.

4 4 . C.V. ' s parents met with Principal Capitano, Counselor Saffici, and

Officer Chapman. Having determined that there was no reason to suspect a

sexual relationship between Respondent and C.V., Officer Chapman closed

his investigation.

4 5 . Principal Capitano told Respondent not to have further contact with

C.V. The next day, C.V. came , unexpectedly , to Respondent ' s classroom to see

her. Respondent spoke to him, but tried to get him to leave without alarming

him or being ru de. After C.V. left, Respondent immediately advised Principal

Capitano and Counselor Saffici that he came to her classroom , and

Respondent sought their guidance on what to do . Feeling that she did not

have clear direction on what to do if C.V. came back, R espondent posted a

Psalm on her door and left Don Estridge after her first - period class .

4 6 . I n a letter dated March 16, 2018, Principal Capitano recommend ed

Respondent ' s termination as a probationary employee at Don Estridge ,

effective March 27, 2018. Th e letter did not specify a reason for Respondent ' s

termination, but stated: " Probationary Contract Employees may be dismissed

without cause or may resign without breach of contract. " Principal Capitano,

however, testified that she recommended Respondent ' s termination because

she believed that Respondent had violated the Code of Ethics. Specifically,

Principal Capitano thought that Respondent put herself in a position where

her relationship with a student was causing him duress.

4 7 . Following the events of March 12, 2018, C.V. ' s parents arranged for

C.V. to talk to a therapist. Thereafter, they observed improvements in his

behavior. The content of the discussions C.V. had with his therapist was not

conclusively established.

Overall Nature of C.V. and Respo ndent ' s Relationship

4 8 . C.V. ' s parents believed that C.V. saw Respondent as a girlfriend.

However, they never thought that Respondent considered the relationship

romantic or that anything sexual occurred.

4 9 . Some of Respondent ' s colleagues thought that her relationship with

C.V. was uncomfortable or lacked appropriate boundaries .

50 . C.V. ' s mother, viewed Respondent as a positive role model.

5 1 . In encouraging Respondent ' s relationship with C.V. in some respects ,

while attempting to establish more boun daries in others, C.V. ' s parents were

trying to balance the dramatic improvement in C.V. ' s grades with what they

believed to be C.V. ' s unhealthy attachment to Respondent.

5 2 . Respondent believed that C.V. was very bright, but not applying

himself in schoo l. It was her desire to help him fulfill his potential . On a

social level, she thought that he was a polite young man who shared hobbies

with her husband and interacted well with her daughters.

C ONCLUSIONS OF L AW

5 3 . DOAH has jurisdiction over the subjec t matter of this cas e and the

parties hereto pursuant to sections 120.569 and 120.57(1).

5 4 . The Florida Education Practices Commission is the state agency

charged with the certification and regulation of Florida educators pursuant to

chapter 1012.

5 5 . In this proceeding, Petitioner seeks to impose discipline against

Respondent ' s educator certification. Because disciplinary proceedings are

considered penal in nature, Petitioner is required to prove the allegations in

the Administrative Complaint by clear and convincing evidence. See Dep ' t of

Banking & Fin. v. Osborne Stern & Co ., 670 So. 2d 932 (Fla. 1996); Ferris v.

Turlington , 510 So. 2d 292 (Fla. 1987).

5 6 . Clear and convincing evidence " requires more proof than a

' preponderance of the evidence ' but les s than ' beyond and to the exclusion of a

reasonable doubt. ' " In re Graziano , 696 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 be credible; the facts to

which the witnesses testify must be distinctly

remembered; the testimony must be precise and

lacking in confusion as to the facts in issue. The

evidence must be of such a weight that it produces

in the mind of the trier of fact a firm belief or

conviction, witho ut 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)). " Although

this standard of proof may be met whe re the evidence is in conflict, it seems

to preclude evidence that is ambiguous. " Westinghouse Elec. Corp. v. Shuler

Bros . Inc. , 590 So. 2d 986, 98 8 (Fla. 1991).

5 7 . The material allegations in this case are contained in paragraphs 3

through 10 of the Amen ded Administrative Complaint:

3. During the 2017 - 2018 school year, the

Respondent exploited her position as a teacher to

solicit or encourage her students and their parents

to attend or join her father's church in Boca Raton.

Of particular note was her ina ppropriate

involvement with an 8th grade student, C . V. The

involvement included, but was not limited to the

Respondent :

a. Tutoring the student in violation of the collective

bargaining agreement:

b. Allowing overnight stays at her house;

c. Having the student attend church with the

Respondent;

d. Transporting the student to and from school;

e. Issuing a permanent pass to the student to come

any time to her classroom;

f. Having the student spend his lunch time with her

rather than his peers;

g. Arran ging the student's schedule to be with her

rather than attend music class;

h. Sharing intimidate [intimate] details about her

life, including when she lost her virginity;

i. Repeatedly telling him that she " loved him like a

son . "

4. In addition, and ove r the course of the school

year, Respondent exploited her professional

relationship with CV for her own personal interests

and religious beliefs. After months of enticing CV to

have his parents attend her father ' s church, the

parents finally relented and w ent with CV to a

service in mid - February. Thereafter, Respondent

promised CV that he could be saved. However,

when the parents advised the Respondent that they

would rather CV not be further involved in the

father ' s church, Respondent told CV that his

moth er said he couldn ' t be saved (because his

parents didn ' t want to attend her father ' s church

services).

5. A week or so later, Respondent had CV address

the entire class about his involvement in

Respondent ' s father ' s church. As a result, and

according to t he Respondent, the entire class and

several parents agreed to attend her father ' s

church service. CV ' s parents, who were concerned

about his emotionally inappropriate relationship

with his teacher, requested Respondent to cease

such further activity outsid e the classroom with

their son.

6. However, Respondent continued to constantly

text or call CV for matters unrelated to his

education. Even after the parent(s) requested

Respondent to stop the constant communication,

Respondent persisted. On one occasion , Respondent

informed CV ' s mother that she wanted to buy him

an expensive set of shoes for his birthday. When

the parents told her that was unacceptable,

Respondent used her tutoring time with CV to take

him shopping and purchased a costly set of clothing

for him. CV, who later told the Guidance Counselor

that he knew more about the Respondent than

anyone and wanted to live with her, would only

wear the clothes purchased by the Respondent. On

other occasions, Respondent used the tutoring time

to attend her father ' s church with CV.

7. Respondent continued her inappropriate

communications with CV which included

Respondent suggesting that CV was depressed over

his relationship with his family. On March 12,

2018, the Respondent brought CV to the school ' s

Guida nce Counselor claiming CV threatened to

harm himself to get his mother ' s attention.

Respondent stated she immediately notified his

mother, who purportedly stated this was just

attention - seeking behavior. Respondent advised the

counselor that she " loves CV like a son " and that he

recently asked to live with the Respondent and her

family. Respondent advised that CV has been

depressed and sad of late because his parents

recently began limiting her time with him.

8. The counselor immediately brought the

Respon dent to meet with and inform the principal

of the situation. Upon learning of the relationship

between Respondent and CV, Respondent was

directed to cease and desist from all communication

and contact with CV outside of school and his

family. Respondent wa s also directed not to take

CV home or for tutoring. The parents met with the

counselor and principal the following morning.

They complained that the Respondent and CV have

an emotionally inappropriate relationship and were

concerned about discussions betw een Respondent

and CV. The parents recently advised CV that

boundaries needed to be established with the

Respondent outside the classroom setting causing

CV to react in a negative fashion.

9. Following the meeting, a schedule change was

implemented, movin g CV from the Respondent ' s

classroom. Further CV ' s " permanent " ID pass to

the Respondent ' s classroom was cancelled. CV was

directed to report to the common area in the

morning and lunch with his peers. Respondent was

directed not to communicate with CV or allow him

to spend lunch time in her classroom. Respondent

became visibly upset and left the school during the

second period on March 14th, 2018.

10. On March 15th Respondent contacted the

Guidance Counselor to seek clarification on

communication with CV. According to the

Respondent, CV claimed his parents stated that the

Respondent was in " big trouble . " The principal

reminded the Respondent of the non -

communication directive issued on March 12th.

Later that day, Respondent was overheard playing

Christian music in her classroom and observed

passing out church flyers to students. Respondent

had also posted a fifty stanza Psalm (David Praises

the Lord for Rescuing Him) on the outside of her

classroom door. Respondent was notified by the

principal that she was under investigation and sent

home for three days. After leaving the classroom,

multiple copies of a church flyer entitled YOUTH

MEET AND GREET advertising a grand opening

for ages 10 - middle school the following evening at

her father ' s church. An investig ation followed.

11. On April 3rd, 2018, Respondent was provided

written notice that her employment with the

district was terminated effective March 27, 2018 for

Ethical Misconduct. Respondent ' s aforementioned

conduct and subsequent termination of her

empl oyment resulted in a loss of Respondent ' s

effectiveness in the school district as an educator.

12. Following the Respondent ' s termination from

her employment, CV was harassed by other

students, claiming he had a " relationship " with the

Respondent which c aused her to be fired. CV was

required to subsequently seek professional

counseling.

5 8 . In considering the proof offered to establish these allegations, th e

undersigned is bound by the limitations on the use of hearsay evidence in

administrative proceedi ngs , as set forth in s ection 120.57(1)(c), which states ,

" [ h ] earsay evidence may be used for the purpose of supplementing or

explaining other evidence, but it shall not be sufficient in itself to support a

finding unless it would be admissible over objecti on in civil actions. "

5 9 . Various forms of hearsay were offered into evidence, all subject to

being reconsidered and weighed by the undersigned in light of the above -

referenced law.

60 . C.V. did not testify in this case. Most of the statements attributed to

him by other witnesses were uncorroborated hearsay not subject to any

exception. Accordingly, such evidence was not considered by the undersigned

as a basis for finding s of fact.

6 1 . Findings of fact were made, however, with respect to the non - hearsay

statements relating to Respondent telling C.V. that she " love s him like a

son , " and , as to the conversation between Respondent and C.V. about

virginity. In both instances, the statements were admitted as verbal acts

having independent legal significance in proving , or disproving , the charges

in th e Amended Administrative Complaint . Because these statements and

conversations were specified in the material allegations of the Amended

Administrative Complaint as part of the factual predicate underlying the

char ges against Respondent, they have independent legal significance and

were not offered for the truth of the matter s asserted. See A.J. v. State , 677

So. 2d 935 (Fla 4th DCA 1996) ; C ephas v. State Dep ' t. of H RS , 719 So. 2d 7

(Fla. 2d DCA 1998). The same logi c underlies the admission of C.V. ' s

statements that he wanted to live with Respondent and that he knew more

about her than her husband. These statements were not admitted for their

truth, but for the purpose of showing that they were made.

6 2 . Count 1 of the Amended 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

guilty of personal conduct that seriously reduces that person ' s effectiveness

as an employee of a school board .

6 3 . Petitioner did not prove Count 1 by clear and convincing evidence. No

evidence was presented to indicate that Respondent was an ineffective

e mployee . To the contrary, the uncontroverted evidence establish ed that

Respondent worked diligently with all of her students and that C.V. ' s

academic performance improved markedly under her instruction.

6 4 . Count 2 of the Amended Administrative Complaint charges

Respondent with violating section 1012.795(1)(j), which authorizes discipline

when a certificate holder has violated the Principles of Professional Conduct

for the Education Profession prescribed by the State Board of Education

rules . This count cannot constitute an independent violation, but rather, is

depend ent upon a corresponding violation of the rules constituting the

Principals of Professional Conduct.

6 5 . Petitioner did not prove Count 2 by clear and convincing evidence , for

reasons that will be explicated in full as to the specific State Board of

Educa tion rules cited in the remaining counts.

6 6 . Count 3 of the Amended Administrative Complaint charges

Respondent with violating r ule 6A - 10.081, in that she , " failed to make a

reasonable effort to protect the student from conditions harmful to learning

and /or to the student ' s mental health and/or physical health and/or safety. "

6 7 . Petitioner did not prove Count 3 by clear and convincing evidence.

First, the evidence showed that Respondent made every effort to create

conditions that were favorable to C.V. ' s learning. Secondly, there is no

evidence in the record tending to show any causal connection between

Respondent ' s conduct and C.V. ' s mental or physical health. Although there

was ample evidence that some of Respondent ' s conduct was considered

inappropriat e by her peers , and that C.V. was displaying emotionally volatile

behavior during his relationship with Respondent, there was no admissible

evidence of a nexus between the two. Similarly, with respect to C.V. ' s

statements about wanting to live with Respond ent or believing that he knew

more about her than her husband, the evidence did not show that the

statements were true or that Respondent did anything to encourage them.

6 8 . Count 4 of the Amended Administrative Complaint charges

Respondent with violating r ule 6A - 10.081(2)(a)5 . " in that Respondent

intentionally exposed a student to unnecessary embarrassment or

disparagement. "

6 9 . Petitioner did not prove Count 4 by clear and convincing evidence.

There was no evidence adduced at the hearing showing that C.V . was

exposed to embarrassment or disparagement by any intentional conduct on

Respondent ' s part.

70 . Count 5 of the Amended Administrative Complaint charges

Respondent with misconduct " in violation of Rule 6A - 10.081(2)(a)8 in that

Respondent exploited stu dent(s) for personal gain or advantage. "

7 1 . Petitioner did not prove Count 5 by clear and convincing evidence.

Although it is undisputed that Respondent tutored C.V. in exchange for

payment, there was no evidence presented that she exploited him for

perso nal gain or advantage. The word " exploit, " in the context of the rule ,

means " to make use of meanly or unfairly for one ' s own advantage. " Merriam -

Webster Online Dictionary , " exploit " . http://www.merriam - webster.com ( last

visited Jan. 12, 2020). However, no evidence was presented t o support the

contention that Respondent made use of the tutoring relationship to her

unfair advantage or to the detriment of C.V. The evidence shows that while

Respondent was tutoring C.V. outside of school in exchange for payment , she

continued to provide him with additional assistance with his studies above

and beyond his scheduled instructional time in her classroom. She provided

the additional assistance without compensation. A lthough Respondent

admittedly invited students to h er father ' s church with the permission of

their parents, there was no evidence that she received a benefit of any kind

for their attendance.

7 2 . Count 6 of the Amended Administrative Complaint charges

Respondent with misconduct in violation of r ule 6A - 10. 081(2)(b)1 . in that she ,

" failed to take reasonable precautions to distinguish between personal views

and those of any educational institution or organization with which the

individual is affiliated. "

7 3 . Petitioner did not prove Count 6 by clear and convi ncing evidence.

There is no evidence in the record that Respondent ' s actions ever cr e ated the

impression , or the reasonable possibility of the impression, that her religious

views represented the institutional philosophy of Don Estridge . There is no

eviden ce that she presented her Christianity and church attendance as

anything other than her personal faith. There is no evidence that Respondent

ever discussed her faith or her father ' s church with students unless they

asked her. Additionally, the record is cl ear that Respondent only provided

information about attending her father ' s church to students with the

permission of their parents. With respect to Respondent pos t ing a Psalm o n

her classroom door, there was also no evidence tending to show that this was

a nything other than an expression of her personal views that were separate

from the secular educational mission of Don Estridge.

7 4 . Count 7 of the Amended Administrative Complaint charges

Respondent with misconduct " in violation of Rule 6A - 10.081(2)(b)3 i n that

Respondent used her institutional privileges for personal gain or advantage. "

7 5 . Petitioner did not prove Count 7 by clear and convincing evidence.

There is no evidence in the record showing that Respondent used her

institutional privileges for pe rsonal gain or advantage. Although Respondent

received remuneration for tutoring C.V. outside of school, which was an

economic gain, there is no evidence that she used her institutional privileges

for her own benefit. It is undisputed that C.V. ' s mother in itiated contact with

Respondent to establish the tutoring relationship. After C.V. attended the

tutoring sessions and received additional uncompensated help from

Respondent, his grades improved significantly. There is no evidence that she

leveraged her pos ition as a teacher in pursuit of personal gain or advantage.

Finally, the allegation that Respondent used her position as a teacher to

recruit students to attend her father ' s church for personal gain is speculative

and not buttressed by any evidence in the record.

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

dismissing the Amended Administrative Complaint and all charges contained

therein.

D ON E A ND E NTERED this 15th day of January , 2021 , in Tallahassee, Leon

County, Florida.

S

B RITTANY O. F INKBEINER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 48 8 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 15th day of January , 2021 .

C OPIES F URNISHED :

Charles T. Whitelock, Esquire

Charles T. Whitelock, P.A.

300 Southeast 13th Street

Fo rt Lauderdale, Florida 33316

(eServed)

Mark S. Wilensky, Esquire

Dubiner & Wilensky, LLC

1200 Corporate Center Way , Suite 200

Wellington, Florida 33414 - 8594

(eServed)

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

Tallahassee, Florida 32399 - 0400

(eServed)

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

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

the date of this Recommended Order. Any exceptions to this Recommended

Order should be filed with the agency that will issue the Final Order in this

case.