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

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.

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 - 29 87PL

R UTH S. G AILLARD L EGER ,

Respondent .

/

R ECOMMENDED O RDER

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

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

December 1, 2020, by Zoom conference .

A PPEARANCES

For Petitioner: Charles T. Whitelock, Esquire

Charles T. Whitelock, P.A.

300 Southeast 13 th Street

Fort Lauderdale, Florida 33316

For Respondent: Mark S. Wilensky , Esquire

Dubiner & Wilensky, LLC

1200 Corporate Center Way , Suite 200

Wellington, Florida 3 3414 - 8594

S TATEMENT OF T HE I SSUE

Whether Petitioner proved by clear and convincing evidence that

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

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

P RELIMINARY S TAT EMENT

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

Respondent. The Administrative Complaint alleged violations of section

1012.795, Florida Statutes, and Florida Administrative Code Rule 6A - 10.081.

Respondent requested an administr ative hearing to contest the charges.

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

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

initially scheduled for September 14 and 15, 2020.

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

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

December 1, 2020.

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

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

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

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

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

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

admitted into evidence.

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

2021. After an agreed extension was requested by both parties and granted,

the parti es timely submitted proposed recommended orders. Both were

reviewed and considered by the undersigned in the preparation of this

Recommended Order.

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

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

F INDINGS OF F ACT

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

undersigned makes the following findings of relevant and material fact:

Stipulated Facts

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

Elementary Education, English for Speakers of Foreign Languages, and

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

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

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

Florida.

Evidence Presented at the Hearing

Samiyeh Nasser

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

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

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

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

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

and word pronunciation.

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

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

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

Ñspecials,Ò which are elective classes.

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

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

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

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

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

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

in the classroom.

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

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

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

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

a pool substitute who had assumed responsibility for the class in

RespondentÔs absence.

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

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

classroom to join them outside.

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

she found K.M.

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

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

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

minutes.

Steven Bynes, Jr .

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

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

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

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

attended a meeting. 1

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

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

advised him that the class had Ñspecials . Ò

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

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

them there.

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

this Recommended Ord er, para graph 60 infra.

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

classroom to return to the front office.

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

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

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

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

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

classroom , he left the students with Leger. 2

Nikia Ragin

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

Academy during the 2017 - 2018 school year.

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

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

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

place, and then reported to the Principal.

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

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

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

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

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

mis guided and affected because the school surveillance cameras that would

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

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

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

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

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

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

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

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

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

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

the students to P.E.

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

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

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

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

office of the g uidance c ounselor.

Sharonda Bailey

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

a report from Nasser about a student in LegerÔs class.

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

and also with K.M.

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

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

classroom.

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

something about the students being late for specials.

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

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

front door.

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

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

students to P.E.

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

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

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

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

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

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

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

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

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

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

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

explained that she would investigate the incident.

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

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

issued a written reprimand to Leger.

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

merely asked if she was okay.

Private Investigator William Miller

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

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

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

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

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

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

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

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

the class to P.E. outside the classroom.

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

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

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

took the rest of the class to P.E.

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

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

information they wanted from her.

49. Miller had work experience intervie wing juvenile witnesses and

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

prone to being improperly led when questioned.

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

motherÔs speaker phone while they were in the car together.

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

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

K.M. in any way. 6

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

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

provided to Miller.

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

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

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

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

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

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

was being asked to sign.

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

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

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

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

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

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

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

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

able to notar ize the affidavits.

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

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

them that they wanted .

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

mother did not have any hesitation signing her affidavit.

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

of the incident.

Ruth Galliard Leger

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

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

good student and they g ot along well.

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

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

a male student.

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

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

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

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

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

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

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

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

h er P.E. time. 8

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

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

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

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

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

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

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

her meeting with the counselor and parent was not over.

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

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

specials at 10:10 a.m.

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

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

consequences before Respondent went to her meeting with the counselor.

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

still go to P.E.

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

into the kindergarten hallway , and back to her meeting.

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

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

P.E.

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

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

grade ha llway talking for several minutes. 9

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

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

proceeded down the hallway back to her classroom.

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

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

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

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

room when the others went to P.E.

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

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

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

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

K.M. out to P.E.

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

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

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

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

a child unattended.

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

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

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

c ounselor and a parent at the time.

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

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

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

students went to P.E.

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

the relevant videos from the Broward County School District through a

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

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

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

Respondent had a good year with her.

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

Shirelle M .

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

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

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

classroom.

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

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

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

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

conversation with Miller. Resp. Ex . 8.

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

signing it.

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

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

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

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

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

affidavit.

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

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

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

pandemic.

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

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

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

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

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

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

Respondent who left K.M. in the room.

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

the classroom.

K.M .

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

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

and the importance of telling the truth.

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

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

classroom.

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

Respondent was at a meeting. 11

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

then left for a meeting.

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

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

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

of minor discipline issues with her.

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

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

the remainder of the class to P.E.

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

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

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

stay in the class.

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

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

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

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

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

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

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

her own that to which she testified.

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

teacher.Ò

C ONCLUSIONS OF L AW

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

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

10 9 . The Education Practices Commission is the state agency charged

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

Florida Statutes .

1 10 . This is a proceeding in which Petitioner seeks to sanction

RespondentÔs Educator Ôs Certificate. Because sanction proceedings are

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

the Administrative Complaint by clear and convincing evidence. DepÔt of

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

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

11 1 . The Ñclear and convincingÒ standard of proo f is described by the

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

Court held:

Clear and convincing evidence requires that the

evidence must be found to be credible; the facts to

which the witnesses testify must be distinctl y

remembered; the testimony must be precise and

explicit and the witnesses must be lacking in

confusion as to the facts in issue. The evidence

must be of such weight that it produces in the mind

of the trier of fact a firm belief or conviction,

without hes itancy, as to the truth of the allegations

sought to be established.

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

797, 800 (Fla. 4th DCA 1983)).

11 2 . Here, the material allegation s of the Administrative Complaint are

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

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

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

at 93 4 .

11 3 . In considering wheth er the proof offered to establish the allegations

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

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

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

(c) Hears ay 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 objection in civil

actions.

11 4 . H earsay w as offered and , in some inst ances, conditionally admitted

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

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

11 5 . In this case, for example, an out - of - court statement was made by

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

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

supplemented or explained K.M.Ôs testimony.

11 6 . Significantly, K.M.Ôs statement to Nasser when she found her alone

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

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

class went to P.E.

11 7 . Rather, K.M. told Nasser only that her classmates Ñwent to P.E.Ò and

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

classroom. 12

11 8 . The undersigned finds that this comment by K.M. referred to LegerÔs

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

11 9 . The undersigned concludes that the statement by K.M. to Nas ser ,

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

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

classroom .

1 20 . Further, the statements made by K.M. to Nasser in the classroom are

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

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

12 1 . The undersigned further concludes that Respondent was absent

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

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

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

12 2 . Not surprisingly, t he statements made by K.M. to Nasser were

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

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

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

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

undersigned.

12 3 . S tatements by K.M. to Miller and Shirelle M. in the car were

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

g ave at the hearing.

12 4 . Other evidence proffered by Petitioner is worth mentioning as well.

In considering whether allegations have been proven by clear and convincing

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

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

admission of collateral matters not necessarily raised by the pleadings.

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

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

wrongs, or acts is admissible when relevant to

prove a material fact in issue, such as proof of

motive, opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake or

accident, but it i s inadmissible when the evidence

is relevant solely to prove bad character or

propensity. When the state in an administrative

proceedin g intends to offer evidence of other acts or

offenses under this paragraph, the state shall

furnish to the party whose su bstantial interests are

being determined and whose other acts or offenses

will be the subject of such evidence, no fewer than

10 days before commencement of the proceeding, a

written statement of the acts or offenses it intends

to offer, describing them an d the evidence the state

intends to offer with particularity ... .

12 5 . It is undisputed that a notice of intent to use similar fact evidence

was not filed in this case by Petitioner.

12 6 . Similarly , Petitioner sought to introduce and have the undersign e d

consider matters that referenced alleged prior failures to supervise students,

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

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

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

12 7 . The undersigned concludes that this evidence was proffered for the

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

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

12 8 . Petitioner also suggests that the evidence of these Ñ uncharged

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

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

hearing record. Respondent object ed. 13

12 9 . That argument is unpersuasive and fails for several reasons. This

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

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

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

tenets of due process.

1 30 . Moreover, in light of the ultimate F inding s of F act and C onclusions of

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

is recommended.

13 1 . F inally, d iscipline or sanctions may be imposed only on grounds

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

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

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

842, 844 (Fla. 2d DCA 1984).

13 2 . Likewise, o nly those facts and charges outlined in the A dministrative

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

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

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

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

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

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

Other Applicable Law

13 3 . In a DOAH hearing, the case is considered de novo by the

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

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

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

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

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

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

13 4 . Factual findings in a recommended order are within the province of

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

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

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

DCA 1985).

13 5 . More speci fically, the ALJ has the best vantage point to resolve

conflicts, determine the credibility of witnesses, draw permissible and

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

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

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

DCA 1994).

13 6 . Whether Respondent committed the charged offense(s) is a question

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

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

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

13 7 . An agency may not substitute its own facts for that of the ALJ so long

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

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

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

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

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

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

Ultimate Finding s of Fact

13 8 . After considering the evidence presented at the hearing, and the

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

Respondent more persuasive and credible than other witnesses presented by

Petitioner, including Bynes. 14

13 9 . In short, in this case , Petitioner simply failed to carry itÔs burden by

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

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

1 40 . School officials developed versions of K.M.Ôs statement through

inadmissible and unreliable hearsay which differed and straye d from what

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

conclusions based on their own assumptions, PetitionerÔs version of the

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

allegations by clear and c onvincing evidence.

14 1 . Bynes denied that he took the students to P.E., and claimed he left

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

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

from K.M. and Respondent.

14 2 . Regardless, the undersigned concludes that the quality and quantum

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

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

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

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

14 3 . In short, PetitionerÔs proof was neither clear nor convincing that

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

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

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

and convincing evidenc e.

allegations ou tlined in the PetitionerÔs Administrative Complaint were not

sufficiently proven.

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 Ad ministrative Complaint and the charges contained therein.

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

County, Florida.

S

R OBERT L. K ILBRIDE

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 10th day of February , 2021 .

C OPIES F URNISHED :

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

Department of Education Office of Professional Practices Services

Turlington Building, Suite 1244 Department of Education

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

Tallahassee, Florida 32399 - 0400 325 West Gaines Street

Tallahassee, Florid a 32399 - 0400

Mark S. Wilensky, Esquire

Dubiner & Wilensky, LLC Charles T. Whitelock, Esquire

1200 Corporate Center Way , Suite 200 Charles T. Whitelock, P.A.

Wellington, Florida 33414 - 8594 300 Southeast 13th Street

Fort Lauderdale, Florida 33316

Lisa M. Forbess

Interim Executive Director

Education Practices Commission

Department of Educati on

Turlington Building, Suite 316

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

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.