20-002987PL Richard Corcoran, As Commissioner Of Education vs. Ruth S. Gaillard Leger
 Status: Closed
Recommended Order on Wednesday, February 10, 2021.


View Dockets  
Summary: Petitioner failed to prove by clear and convincing evidence that the Respondent's teaching certificate should be sanctioned for her leaving a kindergarten student alone in the classroom when others went to P.E. class.

1S TATE OF F LORIDA

6D IVISION OF A DMINISTRATIVE H EARINGS

13R ICHARD C ORCORAN , A S C OMMISSIONER

21OF E DUCATION ,

24Petitioner ,

25vs. Case No. 20 - 29 87PL

32R UTH S. G AILLARD L EGER ,

39Respondent .

41/

42R ECOMMENDED O RDER

46This case was heard by Robert L. Kilbride, Administrative Law Judge of

58the Division of Administrative Hearings (ÑDOAHÒ) , on November 30 and

68December 1, 2020, by Zoom conference .

75A PPEARANCES

77For Petitioner: Charles T. Whitelock, Esquire

83Charles T. Whitelock, P.A.

87300 Southeast 13 th Street

92Fort Lauderdale, Florida 33316

96For Respondent: Mark S. Wilensky , Esquire

102Dubiner & Wilensky, LLC

1061200 Corporate Center Way , Suite 200

112Wellington, Florida 3 3414 - 8594

118S TATEMENT OF T HE I SSUE

125Whether Petitioner proved by clear and convincing evidence that

134Respondent left a kindergarten student, K.M., alone in her classroom on

145April 2, 2018 , as alleged in PetitionerÔs Administrative Complaint.

154P RELIMINARY S TAT EMENT

159On July 1, 2020, Petitioner filed an Administrative Complaint against

169Respondent. The Administrative Complaint alleged violations of section

1771012.795, Florida Statutes, and Florida Administrative Code Rule 6A - 10.081.

188Respondent requested an administr ative hearing to contest the charges.

198As a result, Petitioner forwarded this matter to DOAH for the assignment

210of an Administrative Law Judge to conduct the hearing. A hearing was

222initially scheduled for September 14 and 15, 2020.

230After an Agreed Motio n to Reset Hearing was filed by the parties and

244granted, a formal evidentiary hearing was conducted on November 30 and

255December 1, 2020.

258At the hearing, Petitioner called the following witnesses to testify by Zoom

270conference : Samiyeh Nasser, Steven Bynes, Jr., Nikia Ragin, and Sharonda

281Bailey. Petitioner offered the following exhibits , which were admitted in

291evidence: Exhibits 1 through 3 and 5 through 7. Respondent testified on her

304own behalf and called the following witnesses: William Miller, Shirelle M . ,

316and K.M. (a student). Respondent's Exhibits 1, 3, 8, 12a, 12b , and 13b were

330admitted into evidence.

333The T ranscript of the proceedings was filed with DOAH on January 4,

3462021. After an agreed extension was requested by both parties and granted,

358the parti es timely submitted proposed recommended orders. Both were

368reviewed and considered by the undersigned in the preparation of this

379Recommended Order.

381References to the Florida Statutes are to the versions in effect at the time

395of the incident, act , or omiss ion, unless otherwise stated.

405F INDINGS OF F ACT

410Based on the record and evidence presented at the hearing, the

421undersigned makes the following findings of relevant and material fact:

431Stipulated Facts

4331. Respondent holds Educator Certificate 1168653, coveri ng the areas of

444Elementary Education, English for Speakers of Foreign Languages, and

453Exceptional Student Education ( Ñ ESE Ò ), valid through June 30, 2021.

4662. At all relevant times, Respondent was employed as a kindergarten

477teacher at Sunland Park Academy, in the school district of Broward County,

489Florida.

490Evidence Presented at the Hearing

495Samiyeh Nasser

4973. During the 2017 - 2018 school year, Samiyeh Nasser (ÑNass e rÒ) was

511employed as a TeacherÔs Assistant at Sunland Pa r k Academy in the Broward

525County School dist rict. She worked with the kindergarten classes.

5354. Nasser Ñpulled outÒ students, removing them from a teacherÔs class and

547bringing them to her own room to provide extra help with reading, spelling ,

560and word pronunciation.

5635. She regularly went to LegerÔs classroom during first period each day, at

576approximately 9:00 a.m., and would take four or five students to her own

589classroom. She would then bring them back to their regular class to attend

602Ñspecials,Ò which are elective classes.

6086. On April 2, 2018, whe n Nasser returned children to LegerÔs classroom ,

621at 10:05 a.m. that day, she noticed that the other students had already left

635the room, but that there was one student, K.M., there alone.

6467. When Nasser found her , K.M. was crying. When Nasser asked her why

659she was alone, K.M. said that her classmates had gone to physical education

672class ( Ñ P.E. Ò ), and that she had been told by her teacher, Respondent, to stay

690in the classroom.

6938. Based on other credible evidence, K.M.Ôs comment to Nasser regarding

704having t o Ñ stay in the classroom Ò referred to a counseling conversation which

719Leger had with K.M. earlier in the morning, prior to the class leaving for P.E .

7359. She did not mention anything to Nasser about Steven Bynes (ÑBynesÒ),

747a pool substitute who had assumed responsibility for the class in

758RespondentÔs absence.

76010 . Nasser opened the back door to the classroom, saw the other students

774at P.E., and instructed the small group of students she brought back to the

788classroom to join them outside.

79311. She did not s ee either Leger or Bynes with the students at P.E. when

809she found K.M.

81212. Nasser remained with K.M. briefly, hugged her to calm her down, and

825then left her in the room as she went on to assume her other duties.

84013. She was in LegerÔs classroom a total o f approximately five to seven

854minutes.

855Steven Bynes, Jr .

85914. Steven Bynes, Jr., was employed as a pool substitute at Sunland Park

872Academy during the 2017 - 2018 school year. He provide d coverage when

885teachers were absent or out, and no outside substitute wa s hired for the day.

90015. On April 2, 2018, he was instructed to cover LegerÔs class while Leger

914attended a meeting. 1

91816. Bynes was in RespondentÔs classroom for approximately 20 minutes.

92817. Leger returned to the classroom while Bynes was still there an d

941advised him that the class had Ñspecials . Ò

95018. Bynes claimed that he advised Leger that it was two minutes before

963the class was to go to P.E., and advised her that she Ñstill had timeÒ to take

980them there.

9821 This was a meeting between Leger, the guidance counselor , and a parent mentioned later in

998this Recommended Ord er, para graph 60 infra.

100619. He claimed that Leger did not say anything to him, and he left the

1021classroom to return to the front office.

102820. After the fact, Bynes was told that a student had been left in the

1043classroom, but he denied knowledge of it and denied responsibility for leaving

1055K. M . in the classroom. He claimed he l eft the class with Leger. He also

1072denied having any conversation with K.M. in the classroom.

108121. Bynes denied taking the class to P.E. and stated that when he left the

1096classroom , he left the students with Leger. 2

1104Nikia Ragin

110622. Nikia Ragin (ÑRaginÒ) was the Assistant Principal at Sunland Park

1117Academy during the 2017 - 2018 school year.

112523. She was told by the Principal that Nasser had reported an incident

1138concerning a student, K.M. After speaking to Nasser, she spoke to K.M.

115024. Ragin spoke to K.M. approx imately two hours after the event took

1163place, and then reported to the Principal.

117025. Ragin was also present when Leger explained to the Principal that

1182Bynes, not she, had taken the students to P.E.

119126. Other than LegerÔs statement, Ragin found no other evidence to

1202conclude that Bynes had taken the students to P.E.

121127. RaginÔs conclusion regarding the evidence, at that point, was

1221mis guided and affected because the school surveillance cameras that would

1232likely show who took the students to P.E. were not operating properly. 3

124528. Leger elaborated and explained to Ragin that she was in a meeting

1258with the g uidance c ounselor when the students went to specials.

12702 Notably, Bynes said he didnÔt really remember what Leger said or did after he advised her

1287that she still had time to take the class to specials. Curiously, after he said this , he testified

1305that he simply Ñwalked out of the classro om . Ò This description by Bynes was significantly at

1323odds with LegerÔs testimony and recollection of the same discussion. Bynes seemed vague

1336and uncertain at times regarding the incident. LegerÔs description of her encounter and

1349discussion with Bynes when s he returned, is more persuasive and credible, and is adopted.

13643 The camera tapes had been reviewed by Ragin because of LegerÔs claim about not taking

1380the students to P.E.

138429. Had the surveillance cameras been working, there would have been

1395clear images of the kindergart en hallways and other relevant areas.

140630. There were also other inoperative cameras, that if working properly,

1417would have shown relevant views of the hallway leading to and from the

1430office of the g uidance c ounselor.

1437Sharonda Bailey

143931. Sunland Park Acade my Principal, Sharonda Bailey (ÑBaileyÒ) , received

1449a report from Nasser about a student in LegerÔs class.

145932. She referred the matter to Ragin, and saw her speaking with Nasser

1472and also with K.M.

147633. Bailey recalled that Bynes had been in the classroom t hat day to cover

1491the class. She asked him if anything had occurred when he was in the

1505classroom.

150634. Bynes told Bailey that Leger had returned to the classroom and said

1519something about the students being late for specials.

152735. Bynes recounted to Bailey t hat he explained to Leger that they werenÔt

1541that late, that she should take them herself, and that he then walked out the

1556front door.

155836. When she spoke with Respondent, Leger stated to her that she did not

1572leave a student in the classroom and that Bynes was the person who took the

1587students to P.E.

159037. Bailey also attempted to verify who took the students to P.E. through

1603the school Ô s security cameras. However, because the camera system was

1615antiquated , it had not captured or recorded what she needed to see .

162838. The security cameras glitched and froze, and the time stamp was off.

1641In short, the cameras were not capable of adequately displaying RespondentÔs

1652location or movement in the hallways because its quality was so poor. 4

16654 The security videos of the kindergarten hallway and the area outside the office of the

1681g uidance c ounselor were requested by Leger during discovery. However, they were not

1695provided to her and were not used or shown at the final hearing.

170839. Bailey contacted K.M.Ôs mot her and told her that her child was left

1722alone in the classroom while the rest of the class was taken to specials. She

1737explained that she would investigate the incident.

174440. Because Bailey was not able to find anyone during the investigation to

1757validate R espondentÔs position that she did not leave the student behind, she

1770issued a written reprimand to Leger.

177641. Bailey did not speak at length with K.M. about the incident, but

1789merely asked if she was okay.

1795Private Investigator William Miller

179942. William Miller (ÑMillerÒ) was retained by LegerÔs counsel to attempt to

1811locate K.M. He ultimately located her in Gulfport, Mississippi.

182043. He telephoned K.M.Ôs mother, Shirelle M. He reached her in her car on

1834her way to pick up K.M. from school.

184244. Later that day, Miller was also able to speak directly to K.M. 5

185645. Miller asked K.M. if she remembered the incident. K.M. explained

1867that Respondent went to a meeting, and that the class had been turned over

1881to a substitute teacher by the name of Mr. Bynes . She tol d him Bynes took

1898the class to P.E. outside the classroom.

19054 6. K.M. related to Miller that she told Bynes she had been bad, and t hat

1922Respondent had told her she could not go outside for P.E.

193347. K.M. stated that Bynes then told her to Ñwait in the classro omÒ and he

1949took the rest of the class to P.E.

195748. Miller testified that neither he nor K.M.Ôs mother provided her with

1969any background, mentioned Bynes, or in any way suggested what

1979information they wanted from her.

198449. Miller had work experience intervie wing juvenile witnesses and

1994testified that he Ñassiduously avoidedÒ leading K.M., because they are so

2005prone to being improperly led when questioned.

20125 Shirelle M. had called back about 30 minutes later and Miller spoke to K.M. on her

2029motherÔs speaker phone while they were in the car together.

203950. Miller recounted that K.M.Ôs mother expressed surprise that K.M.

2049recalled the name of Bynes, and assur ed Miller that she had not coached

2063K.M. in any way. 6

206851. Based on his interviews over the phone, affidavits were prepared for

2080K.M. and her mother, which documented the verbal information they had

2091provided to Miller.

209452. The affidavits were given to K.M.Ô s mother. Miller explained to her

2107that the affidavits should be their testimony, and not the testimony of either

2120Miller or the attorney in the case. He also explained that if there were any

2135changes that needed to be made, she should make the changes, send the

2148affidavit back to him, and that the affidavits could be redone, if necessary.

216153. Miller asked the mother to read and go over the affidavit that K.M.

2175was being asked to sign.

218054. Miller arranged to have a notary go to their apartment in Mississippi

2193t o have the mother and the child execute the affidavits.

220455. Before this occurred , he was able to reach Shirelle M. by telephone.

2217She apologized and told him that the delay in executing the affidavit

2229stemmed from the fact that she had changed jobs, and tha t the Gulf Coast

2244had experienced three separate hurricanes since he had last spoken to her.

225656. Miller explained to her that he did not want it to be inconvenient and

2271that he would make the arrangements necessary to get a notary to her to be

2286able to notar ize the affidavits.

229257. The notary was given specific instructions to tell Shirelle M. and K.M.

2305that they did not have to sign the affidavits , and could make any changes to

2320them that they wanted .

232558. Despite the delay in securing her signature, Miller s till felt that the

2339mother did not have any hesitation signing her affidavit.

23486 K.M.Ôs mother had been told of the incident, but had not been told about Bynes at the time

2367of the incident.

2370Ruth Galliard Leger

237359. Respondent was K.M.Ôs kindergarten teacher at Sunland Park

2382Academy during the 2017 - 2018 school year. She recalled that K.M. was a

2396good student and they g ot along well.

240460. Sometime during the morning of April 2, 2018, Respondent requested

2415an emergency meeting with the schoolÔs g uidance c ounselor and the parent of

2429a male student.

243261. The male student had come in late to class that day. He became

2446disruptiv e, knocking teaching items, like posters and magnets, to the floor. 7

245962. The meeting was scheduled by the guidance counselor. Respondent left

2470for the meeting when Bynes arrived at her classroom to provide coverage.

248263. Earlier that morning, K.M. had also been disruptive. Respondent

2492counseled her and told her that if she did it again, Respondent would take

2506some time from her P.E., consistent with the class rules, and that she would

2520have to stay behind in the classroom with Respondent for a few minutes of

2534h er P.E. time. 8

253964. On the day of the incident, the class had P.E. scheduled at 10:10 a.m.

2554When Respondent left for her meeting, the class had not yet gone to P.E.

256865. During the meeting with the guidance counselor, Respondent excused

2578herself and returned briefly to her classroom to retrieve a form that needed to

2592be signed by those in attendance at the conference. Resp . Ex . 1.

260666. When she entered the room to get the form, Bynes was there with her

2621students. Respondent explained to Bynes that she forgot the form, and that

2633her meeting with the counselor and parent was not over.

264367. Respondent asked Bynes what time it was and when he told her that

2657it was approximately 10:15 a.m. , she reminded him that the class had

2669specials at 10:10 a.m.

26737 This was out character for him, prompting Respondent to request the emergency meeting.

26878 Four other students had also been counseled that morning about their conduct and the

2702consequences before Respondent went to her meeting with the counselor.

271268. Bynes said that they had only missed five minutes, and the class could

2726still go to P.E.

273069. Respondent retrieved the form she needed, went out the front door

2742into the kindergarten hallway , and back to her meeting.

275170. The class was in the room with Bynes when Responden t departed to go

2766back to the meeting. However, she did not see Bynes take the students to

2780P.E.

278171. After the meeting with the counselor and the parent, Respondent left

2793the counselorÔs office. Respondent and the studentÔs parent stood in the first -

2806grade ha llway talking for several minutes. 9

281472. Respondent then walked the mother to the front door of the school,

2827where there are more cameras, and parted company with her. Leger then

2839proceeded down the hallway back to her classroom.

284773. When she got back , she was shocked to find K.M. standing in the room

2862by herself. When she asked K.M. why she was in the room, K.M. explained

2876that she had remembered that Leger previously told her that she owed time

2889from P.E. for misbehaving. As a result, she decided to stay behi nd in the

2904room when the others went to P.E.

291174. Respondent did not recall telling K.M. to Ñstay backÒ from P.E.

2923Leger told K.M. that she did not have to remain behind, that she wasnÔt upset

2938with her, and that she should have gone to P.E. with the rest o f the kids.

295575. Since there w ere five minutes left in the P.E. class, Respondent took

2969K.M. out to P.E.

297376. When Respondent picked up her students from P.E. five minutes later,

2985K.M. was fine and the class went to lunch.

299477. The next day, at the end of sc hool, Principal Bailey handed

3007Respondent a letter advising her that she was under investigation for leaving

3019a child unattended.

30229 This hallway was covered by the same faulty security cameras previously mentioned.

303578 . At her disciplinary meeting, Respondent told Bailey that she did not

3048leave K.M. in the classroom, and that she was at a mee ting with the g uidance

3065c ounselor and a parent at the time.

307379. To support her defense, Respondent asked Bailey for the school videos

3085which would show her in different hallways, entering the counselorÔs office ,

3096and speaking with and walking the mother to t he front door when her

3110students went to P.E.

311480. Leger later asked her first lawyer on two separate occasions to obtain

3127the relevant videos from the Broward County School District through a

3138Freedom of Information Act request. Resp . Exs . 12a and 12b.

315081. S he wanted the security videos to be subpoenaed for this case. 10

316482. K.M. remained in RespondentÔs class for the balance of the year and

3177Respondent had a good year with her.

318483. Leger never spoke to K.M. or her mother about the incident.

3196Shirelle M .

319984. Shirelle M. is the mother of K.M. She recalled Miller calling and

3212speaking to her and K.M. on the speaker phone.

322185. She heard K.M. tell Miller that it was Bynes that had left her in the

3237classroom.

323886. She heard K.M.Ôs entire conversation with Miller.

324687. The affidavit that K.M. signed was an accurate recitation of the phone

3259conversation she heard between Miller and her daughter in the car.

327088. She also signed her own affidavit that accurately set forth her

3282conversation with Miller. Resp. Ex . 8.

328989. Sh e knew that she could make any changes to her affidavit before

3303signing it.

330510 The undersigned took a dministrative notice of the DOAH file, which included RespondentÔs

3319subpoena to the Broward County School District seeking the videos, the DistrictÔs response,

3332and RespondentÔs Motion t o Compel seeking access to the videos.

334390. Shirelle M. was there when K.M. signed her affidavit, and read it with

3357her beforehand. She testified that no person forced her daughter to sign the

3370affidavit.

337191. She expla ined the long period of time that elapsed between the time

3385that she got the affidavit and the time that she signed . The delay was due to

3402her work schedule, which involved four or five jobs, since the COVID - 19

3416pandemic.

341792. She testified that she had no h esitation executing her affidavit, and

3430did so freely and voluntarily, since it was accurate and correct.

344193. Concerning the day of the classroom incident, she saw her daughter

3453before speaking with the Principal when she picked K.M. up from aftercare.

346594. She did not get much detail from the Principal, who said that the

3479matter was still under investigation. The P rincipal never told her that it was

3493Respondent who left K.M. in the room.

350095. She never overheard K.M. tell anyone that Respondent had left her i n

3514the classroom.

3516K.M .

351896. Before beginning her testimony, eight - year - old K.M. was questioned

3531by the undersigned. She was polite, alert, and calm. She understood the oath

3544and the importance of telling the truth.

355197. She remembered when she lived in Florid a. She also recalled

3563Respondent as her kindergarten teacher and the incident of being left in the

3576classroom.

357798. K.M. testified that it was Bynes who left her in the classroom when

3591Respondent was at a meeting. 11

359799. She recalled that when Bynes arrived at the classroom, Respondent

3608then left for a meeting.

361311 The T ranscript mistakenly phon etically wrote Barnes . It should have been Bynes.

3628100. K.M. stayed behind when the rest of the class went to P.E. She did so

3644because Respondent had told her earlier that morning to stay behind because

3656of minor discipline issues with her.

3662101. More sp ecifically, as the class left to go to P.E., K.M. told Bynes that

3678she was supposed to remain in the classroom, and Bynes said ÑokayÒ and took

3692the remainder of the class to P.E.

3699102. K.M. remained in the classroom while the class was at P.E., until

3712Respond ent returned from her meeting. When asked by Leger why she was

3725there alone, K.M. reminded Respondent that she had previously told her to

3737stay in the class.

3741103. K.M. executed an affidavit that she read and that her mother read to

3755her. It accurately reflec ted what happened. Resp . Ex . 13 b .

3769104. K.M. recalled speaking to a man on the phone (Investigator Miller) ,

3781and told him the same thing as what she testified to in court.

3794105. K.M. unequivocally stated twice during the hearing that she never

3805told anyone th at Respondent, Leger, had left her in the classroom.

3817106. Nobody told K.M. what to say in the hearing, and she remembered on

3831her own that to which she testified.

3838107. K.M. liked Respondent and stated that she was Ña pretty good

3850teacher.Ò

3851C ONCLUSIONS OF L AW

3856108. DOAH has jurisdiction o f the subject matter of this proceeding and

3869the parties , pursuant to sections 120.569 and 120.57(1), Florida Statutes.

387910 9 . The Education Practices Commission is the state agency charged

3891with the certification and regulati on of Florida educators under chapter 1012 ,

3903Florida Statutes .

39061 10 . This is a proceeding in which Petitioner seeks to sanction

3919RespondentÔs Educator Ôs Certificate. Because sanction proceedings are

3927considered penal in nature, Petitioner is required to prove the allegations in

3939the Administrative Complaint by clear and convincing evidence. DepÔt of

3949Banking & Fin. v. Osborne Stern & Co., 6 7 0 So. 2d 932 (Fla. 1996); Ferris v.

3967Turlington , 510 So. 2d 292 (Fla. 1987).

397411 1 . The Ñclear and convincingÒ standard of proo f is described by the

3989Florida Supreme Court in In re Davey , 645 So. 2d 398 (Fla. 1994). There, the

4004Court held:

4006Clear and convincing evidence requires that the

4013evidence must be found to be credible; the facts to

4023which the witnesses testify must be distinctl y

4031remembered; the testimony must be precise and

4038explicit and the witnesses must be lacking in

4046confusion as to the facts in issue. The evidence

4055must be of such weight that it produces in the mind

4066of the trier of fact a firm belief or conviction,

4076without hes itancy, as to the truth of the allegations

4086sought to be established.

4090Id. 645 So. 2d at 404 (quoting with approval, Slomowitz v. Walker , 429 So. 2d

4105797, 800 (Fla. 4th DCA 1983)).

411111 2 . Here, the material allegation s of the Administrative Complaint are

4124stra ightforward and clear -- Respondent left K.M. unsupervised and alone in

4136her classroom while she took the other students to P.E. That allegation must

4149be proven by clear and convincing evidence . Osborne Stern & Co., 6 7 0 So. 2d

4166at 93 4 .

417011 3 . In considering wheth er the proof offered to establish the allegations

4184was clear and convincing, this tribunal is cognizant of the limitations on the

4197use of hearsay evidence in administrative proceedings set forth in s ection

4209120.57(1)(c) . Section 120.57 (1) (c) states:

4216(c) Hears ay evidence may be used for the purpose of

4227supplementing or explaining other evidence, but it

4234shall not be sufficient in itself to support a finding

4244unless it would be admissible over objection in civil

4253actions.

425411 4 . H earsay w as offered and , in some inst ances, conditionally admitted

4269in to evidence during the hearing. The hearsay admitted during the hearing

4281was carefully re - evaluated and used as evidence when permitted by law.

429411 5 . In this case, for example, an out - of - court statement was made by

4312K.M. to Na sser. Th ese statement s by K.M. fall within one or more exception s

4329to the hearsay rule, and w ere admitted and considered. They also

4341supplemented or explained K.M.Ôs testimony.

434611 6 . Significantly, K.M.Ôs statement to Nasser when she found her alone

4359in the cl assroom , reasonably interpreted, did not directly implicate

4369Respondent as the person who actually left her in the classroom when the

4382class went to P.E.

438611 7 . Rather, K.M. told Nasser only that her classmates Ñwent to P.E.Ò and

4401she had Ñto stay in classÒ be cause Respondent had told her to stay in the

4417classroom. 12

441911 8 . The undersigned finds that this comment by K.M. referred to LegerÔs

4433comments to K.M. earlier in the morning before Bynes arrived.

444311 9 . The undersigned concludes that the statement by K.M. to Nas ser ,

4457when she found her crying alone in the classroom , did not clearly or

4470convincingly prove that it was Respondent who actually left her in the

4482classroom .

44841 20 . Further, the statements made by K.M. to Nasser in the classroom are

4499consistent with a conclusio n that K.M. obediently concluded that she was

4511required to remain behind when Bynes left for P.E with the other students.

452412 1 . The undersigned further concludes that Respondent was absent

4535when this occurred, having already left the classroom with the form she had

4548retrieved, to return to her meeting with the guidance counselor.

455812 K.M. did not clarify when Leger told her this -- only that it was said.

457412 2 . Not surprisingly, t he statements made by K.M. to Nasser were

4588repeated and interpreted by others who heard i t -- not from K.M. , but from

4603Nasser. Th e information relayed by Nasser t o others and the variants of her

4618statements to , or by , others , were hearsay. Those out - of - court statements

4632were not persuasive or convincing and were not given weight by the

4644undersigned.

464512 3 . S tatements by K.M. to Miller and Shirelle M. in the car were

4661con sidered for the purpose of supplementing or explaining the testimony both

4673g ave at the hearing.

467812 4 . Other evidence proffered by Petitioner is worth mentioning as well.

4691In considering whether allegations have been proven by clear and convincing

4702evidence, t his tribunal considered the use of evidence in administrative

4713proceedings outlined in s ection 120.57(1)(d). That statute concerns the

4723admission of collateral matters not necessarily raised by the pleadings.

4733Section 120.57 (1) (d) states, in pertinent part:

4741. .. [S] imilar fact evidence of other violations,

4750wrongs, or acts is admissible when relevant to

4758prove a material fact in issue, such as proof of

4768motive, opportunity, intent, preparation, plan,

4773knowledge, identity, or absence of mistake or

4780accident, but it i s inadmissible when the evidence

4789is relevant solely to prove bad character or

4797propensity. When the state in an administrative

4804proceedin g intends to offer evidence of other acts or

4814offenses under this paragraph, the state shall

4821furnish to the party whose su bstantial interests are

4830being determined and whose other acts or offenses

4838will be the subject of such evidence, no fewer than

484810 days before commencement of the proceeding, a

4856written statement of the acts or offenses it intends

4865to offer, describing them an d the evidence the state

4875intends to offer with particularity ... .

488212 5 . It is undisputed that a notice of intent to use similar fact evidence

4898was not filed in this case by Petitioner.

490612 6 . Similarly , Petitioner sought to introduce and have the undersign e d

4920consider matters that referenced alleged prior failures to supervise students,

4930and other alleged misdeeds of Respondent. Those allegations d id not p rovide

4943any clear or persuasive evidence of motive, opportunity, intent, preparation,

4953plan, knowledge, iden tity, or absence of mistake or accident in this case.

496612 7 . The undersigned concludes that this evidence was proffered for the

4979purpose of showing RespondentÔs bad character or propensity. As a result, the

4991evidence was inadmissible . §120.57 (1) (d) , Fla. Sta t .

500212 8 . Petitioner also suggests that the evidence of these Ñ uncharged

5015offenses Ò should be considered because ÑEPC RulesÒ do not permit its own

5028consideration of matters for penalty purposes which are not contained in the

5040hearing record. Respondent object ed. 13

504612 9 . That argument is unpersuasive and fails for several reasons. This

5059case was referred to DOAH . The case is subject to the DOAH rules, policies ,

5074and statutes which govern its proceedings. To layer in or apply rules or

5087policies of other entities, without notice or authority, is inconsistent with the

5099tenets of due process.

51031 30 . Moreover, in light of the ultimate F inding s of F act and C onclusions of

5122L aw s et forth herein , the issue as framed by Petitioner is moot, as no penalty

5139is recommended.

514113 1 . F inally, d iscipline or sanctions may be imposed only on grounds

5156specifically alleged in the Administrative Complaint. See Cottrill v. DepÔt of

5167Ins ., 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996); Kinney v. DepÔt of State , 501

5184So. 2d 129, 133 (Fla. 5th DCA 1987) ; Hunter v. DepÔt ProfÔl Reg., 458 So. 2d

5200842, 844 (Fla. 2d DCA 1984).

520613 2 . Likewise, o nly those facts and charges outlined in the A dministrative

5221C omplaint may be considered during the hearing. See Christian v. DepÔt of

5234Health, Bd. o f Chiropractic Med., 16 1 So. 3d 416 (Fla. 2nd DCA 2014) , and

525013 Despite being aware of this disputed issue and RespondentÔs objection , Petitioner cited to

5264no authority , rule, or law to supports it s position in its P roposed R ecommended O rder .

5283cases cited therein. The past offenses were not outlined or plead in the

5296A dministrative C omplaint, and will not be considered by the undersigned.

5308Other Applicable Law

531113 3 . In a DOAH hearing, the case is considered de novo by the

5326Administrative Law Judge ("ALJ") , based on the facts and evidence presented

5339at the hearing. This means that the evidence is heard and considered again.

5352There is no "presumption of correctness" that attaches to the preliminary

5363decision of the a gency. Fla. Dep't of Transp. v. J.W.C. Co., Inc., 396 So. 2d 778

5380(Fla. 1st DCA 1981) ; and Boca Raton Artificial Kidney Ctr., Inc. v. Fla. Dep't

5394of HRS , 475 So. 2d 260 (Fla. 1st DCA 1985).

540413 4 . Factual findings in a recommended order are within the province of

5418the ALJ, based on the broad discretion afforded to him or her. Goin v.

5432Comm'n on Ethics , 658 So. 2d 1131 (Fla. 1st DCA 1995). See also Heifetz v.

5447Dep't of Bus. Reg., Div. of Alcoholic Bevs . & Tobacco 475 So. 2d 1277 (Fla. 1st

5464DCA 1985).

546613 5 . More speci fically, the ALJ has the best vantage point to resolve

5481conflicts, determine the credibility of witnesses, draw permissible and

5490reasonable inferences from the evidence, and reach ultimate findings of fact,

5501based on the competent and substantial evidence pre sented. Goin , 658 So. 2d

5514at 1138; Dep't of Bus. and Prof'l Reg. v. McCarthy , 638 So. 2d 57 4 (Fla. 1 st

5532DCA 1994).

553413 6 . Whether Respondent committed the charged offense(s) is a question

5546of ultimate fact to be decided by the trier - of - fact in the context of ea ch alleged

5566violation. McKinney v. Castor , 667 So. 2d 387, 389 (Fla. 1st DCA 1995);

5579Langston v. Jamerson , 653 So. 2d 489, 491 (Fla. 1st DCA 1995).

559113 7 . An agency may not substitute its own facts for that of the ALJ so long

5609as there is adequate evidence in t he record to support the ALJ's factual

5623findings. Lantz v. Smith , 106 So. 3d 518 (Fla. 1st DCA 2013). See also Resnick

5638v. Flagler Cty. Sch. Bd ., 46 So. 3d 1110, 1112 (Fla. 5th DCA 2010)("In a fact -

5657driven case such as this, where an employee's conduct is at issue, great

5670weight is given to the findings of the [ALJ], who has the opportunity to hear

5685the witnesses' testimony and evaluate their credibility.") .

5694Ultimate Finding s of Fact

569913 8 . After considering the evidence presented at the hearing, and the

5712record as a whole, th e undersigned finds the testimony of K.M. and

5725Respondent more persuasive and credible than other witnesses presented by

5735Petitioner, including Bynes. 14

573913 9 . In short, in this case , Petitioner simply failed to carry itÔs burden by

5755clear and convi ncing evidence that it was Respondent who left K.M. in the

5769classroom on April 2, 2018 , when the other students went to P.E.

57811 40 . School officials developed versions of K.M.Ôs statement through

5792inadmissible and unreliable hearsay which differed and straye d from what

5803K.M. actually t old Nasser . Whether they misunderstood Nasser or reached

5815conclusions based on their own assumptions, PetitionerÔs version of the

5825incident is not supported by the evidence , and falls short of proving the

5838allegations by clear and c onvincing evidence.

584514 1 . Bynes denied that he took the students to P.E., and claimed he left

5861Respondent with her class before K. M. was left alone . The undersigned

5874found this testimony to be directly refuted by other more persuasive evidence

5886from K.M. and Respondent.

589014 2 . Regardless, the undersigned concludes that the quality and quantum

5902of evidence produced by Petitioner was simply insufficient to produce in the

5914mind of th e undersigned a firm belief or conviction, without hesitancy, as to

5928the truth of th e allegations sought to be established against the Respondent .

5942See, In re Davey, 645 So. 2d at 404 .

595214 3 . In short, PetitionerÔs proof was neither clear nor convincing that

5965Respondent left K.M. alone in the classroom on April 2, 2018, and the

597814 Regrettably, Petitioner was either unable or unwilling to present or use video surveillance

5992that may have bolstered its allegations and supported its burden of proving the case by clear

6008and convincing evidenc e.

6012allegations ou tlined in the PetitionerÔs Administrative Complaint were not

6022sufficiently proven.

6024R ECOMMENDATION

6026Based on the foregoing Findings of Fact and Conclusions of Law, it is

6039R ECOMMENDED that the Education Practices Commission enter a Final Order

6050dismissing the Ad ministrative Complaint and the charges contained therein.

6060D ONE A ND E NTERED this 10th day of February, 2021 , in Tallahassee, Leon

6075County, Florida.

6077S

6078R OBERT L. K ILBRIDE

6083Administrative Law Judge

60861230 Apalachee Parkway

6089Tallahassee, Florida 32399 - 3060

6094(850) 488 - 9675

6098www.doah.state.fl.us

6099Filed with the Clerk of the

6105Division of Administrative Hearings

6109this 10th day of February , 2021 .

6116C OPIES F URNISHED :

6121Matthew Mears, General Counsel Randy Kosec, J r ., Chief

6131Department of Education Office of Professional Practices Services

6139Turlington Building, Suite 1244 Department of Education

6146325 West Gaines Stre et Turlington Building, Suite 224 - E

6157Tallahassee, Florida 32399 - 0400 325 West Gaines Street

6166Tallahassee, Florid a 32399 - 0400

6172Mark S. Wilensky, Esquire

6176Dubiner & Wilensky, LLC Charles T. Whitelock, Esquire

61841200 Corporate Center Way , Suite 200 Charles T. Whitelock, P.A.

6194Wellington, Florida 33414 - 8594 300 Southeast 13th Street

6203Fort Lauderdale, Florida 33316

6207Lisa M. Forbess

6210Interim Executive Director

6213Education Practices Commission

6216Department of Educati on

6220Turlington Building, Suite 316

6224325 West Gaines Street

6228Tallahassee, Florida 32399 - 0400

6233N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

6244All parties have the right to submit written exceptions within 15 days from

6257the date of this Recommended Order. Any exceptions to this Recommended

6268Order should be filed with the agency that will issue the Final Order in this

6283case.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 04/30/2021
Proceedings: Agency Final Order filed.
PDF:
Date: 04/12/2021
Proceedings: Agency Final Order
PDF:
Date: 02/10/2021
Proceedings: Recommended Order
PDF:
Date: 02/10/2021
Proceedings: Recommended Order (hearing held December 1, 2020). CASE CLOSED.
PDF:
Date: 02/10/2021
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 01/27/2021
Proceedings: Proposed Recommended Order filed.
PDF:
Date: 01/27/2021
Proceedings: Petitioner's Proposed Recommended Order filed.
PDF:
Date: 01/08/2021
Proceedings: Order Granting Extension of Time.
PDF:
Date: 01/07/2021
Proceedings: Unopposed Motion to Extend Time to File Proposed Recommended Order ("PRO") filed.
PDF:
Date: 01/04/2021
Proceedings: Notice of Filing Transcript.
Date: 01/04/2021
Proceedings: Transcript of Proceedings (not available for viewing) filed.
Date: 12/01/2020
Proceedings: CASE STATUS: Hearing Held.
Date: 11/30/2020
Proceedings: CASE STATUS: Hearing Held.
Date: 11/30/2020
Proceedings: Respondent's Proposed Exhibits filed (exhibits not available for viewing).
PDF:
Date: 11/24/2020
Proceedings: Respondent's Amended Witness List filed.
Date: 11/24/2020
Proceedings: Respondent's Proposed Exhibits filed (exhibits not available for viewing).
PDF:
Date: 11/23/2020
Proceedings: Respondent's Notice of Filing Proposed Exhibits filed.
PDF:
Date: 11/20/2020
Proceedings: Joint Prehearing Stipulation filed.
PDF:
Date: 11/20/2020
Proceedings: Respondent's Schedule of Objections filed.
PDF:
Date: 11/20/2020
Proceedings: Respondent's Exhibit List filed.
PDF:
Date: 11/20/2020
Proceedings: Respondent's Witness List filed.
PDF:
Date: 11/19/2020
Proceedings: Amended Notice of Taking Depositions via Zoom filed.
Date: 11/17/2020
Proceedings: Petitioner's Proposed Exhibits filed (exhibits not available for viewing).
PDF:
Date: 11/16/2020
Proceedings: Petitioner's Notice of Filing of Proposed Exhibits filed.
PDF:
Date: 11/16/2020
Proceedings: Amended Notice of Hearing by Zoom Conference (hearing set for November 30 and December 1, 2020; 9:00 a.m., Eastern Time).
PDF:
Date: 11/16/2020
Proceedings: Order Granting Petitioner's Request for Zoom Conference.
PDF:
Date: 11/13/2020
Proceedings: Respondent's Response to Request for Zoom Hearing filed.
PDF:
Date: 11/06/2020
Proceedings: Petitioner's Request for Zoom Conference filed.
PDF:
Date: 10/05/2020
Proceedings: Discovery Order on Third Party Subpoena Dispute.
PDF:
Date: 09/25/2020
Proceedings: the School Board of Broward County, Florida's Response to Motion to Compel Compliance with Subpoena filed.
PDF:
Date: 09/14/2020
Proceedings: Certificate of Service filed.
PDF:
Date: 09/14/2020
Proceedings: Amended Motion to Compel Compliance with Subpoena filed.
PDF:
Date: 09/03/2020
Proceedings: Order Denying Motion to Compel Compliance with Subpoena.
PDF:
Date: 09/03/2020
Proceedings: Order Granting Continuance and Rescheduling Hearing by Video Teleconference (hearing set for November 30 and December 1, 2020; 9:00 a.m.; Lauderdale Lakes and Tallahassee, FL).
PDF:
Date: 09/01/2020
Proceedings: Agreed Motion to Reset Hearing filed.
PDF:
Date: 09/01/2020
Proceedings: Motion to Compel Compliance with Subpoena filed.
PDF:
Date: 08/18/2020
Proceedings: Re-Notice of Taking Deposition Duces Tecum via Zoom filed.
PDF:
Date: 08/05/2020
Proceedings: Notice of Taking Deposition via Zoom filed.
PDF:
Date: 07/31/2020
Proceedings: Notice of Taking Deposition via Zoom filed.
PDF:
Date: 07/13/2020
Proceedings: Respondent's Notice of Serving Request to Produce filed.
PDF:
Date: 07/13/2020
Proceedings: Notice of Production from Non-Party filed.
PDF:
Date: 07/13/2020
Proceedings: Notice of Service of First Set of Interrogatories to Petitioner filed.
PDF:
Date: 07/13/2020
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 07/13/2020
Proceedings: Notice of Hearing by Video Teleconference (hearing set for September 14 and 15, 2020; 9:00 a.m.; Lauderdale Lakes and Tallahassee, FL).
PDF:
Date: 07/10/2020
Proceedings: Joint Response to Initial Order filed.
PDF:
Date: 07/02/2020
Proceedings: Initial Order.
PDF:
Date: 07/01/2020
Proceedings: Administrative Complaint filed.
PDF:
Date: 07/01/2020
Proceedings: Finding of Probable Cause filed.
PDF:
Date: 07/01/2020
Proceedings: Election of Rights filed.
PDF:
Date: 07/01/2020
Proceedings: Notice of Appearance (Mark Wilensky).
PDF:
Date: 07/01/2020
Proceedings: Letter Randy Kosec from Carol Buxton regarding representation of Ms. Leger filed.
PDF:
Date: 07/01/2020
Proceedings: Agency referral filed.

Case Information

Judge:
ROBERT L. KILBRIDE
Date Filed:
07/01/2020
Date Assignment:
07/02/2020
Last Docket Entry:
04/30/2021
Location:
Lauderdale Lakes, Florida
District:
Southern
Agency:
ADOPTED IN TOTO
Suffix:
PL
 

Counsels

Related Florida Statute(s) (4):