20-004366PL Richard Corcoran, As Commissioner Of Education vs. Jacqueline Martin Al-Ghamdi Status: Closed Recommended Order on Friday, March 26, 2021.

Summary: Respondent failed to adequately supervise student who was injured and filed false report of incident. Recommend 2 years? suspension and one year of probation.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

R ICHARD C ORCORAN , A S C OMMISSIONER

OF E DUCATION ,

Petitioner ,

Case No. 2 0 - 4366PL

vs.

J ACQUELINE M ARTIN A L - G HAMDI ,

Respondent .

/

R ECOMMENDED O RDER

The final hearing was held in this case by Zoom Video Conference in

Tallahassee, Florida, on January 29 , 2021, before Brian A. Newman, an

Administrative Law Judge of the Division of Administrative Hearings

(DOAH).

A PPEARANCE S

For Petitioner: Ron Weaver, Esquire

Post Office Box 770088

Ocala, Florida 34477 - 0088

For Respondent: Branden M. Vicari, Esquire

Herdman & Sakellarides, P.A.

29605 U.S. Highway 19 North, Suite 110

Clearwater, Florida 3376 1

S TATEMENT OF T HE I SSUE S

The issues in this case are whether Respondent committed the acts

alleged and violations charged in the Administrative Complaint; and, if so,

what discipline should be imposed.

P RELIMINARY S TATEMENT

On December 18, 2019 , Richar d Corcoran, as Commissioner of Education

(Petitioner), issued an Administrative Complaint alleging that Jacqueline

Martin Al - Ghamdi (Respondent) violated section 1012.795(1) (g) and (j),

Florida Statutes (2017), 1 and Florida Administrative Code Rule 6A -

10.0 81(2)(a)1 . and (c)1 .

Respondent timely requested a hearing involving disputed issues of

material fact to contest the charges against her. The case was forwarded to

DOAH and a final hearing was set for December 9, 2020. The case was

continued once at the request of Respondent for good cause, and held on

January 29, 2021 .

Prior to the final hearing, the parties filed a Joint Pre - hearing

Stipulation, in which they stipulated to certain facts. To the extent relevant,

the parties Ô stipulated facts have been incorporated in the F indings of Fact

below.

At the hearing, Petitioner presented the testimony of Rebecca Eggers,

Joyce Lynn Brown, Lisa Ann Scalero - Gonzalez, Stephanie Doehlman,

Kathleen Gloria Brickley, and John Zegzdryn. Petitioner Ô s Exhibits 1 throug h

3, 7a through 7h, 9 through 17, 21 through 24, and 26 were admitted in

evidence. Respondent testified on her own behalf .

1 The Administrative Complaint is based on events that occurred in August 2017.

Accordingly, although the Administrative Complaint does not identify the version of the

statutes or rules on which charges are predicated, the charges must be based on the law in

effect at the time of the acts claimed to be violations. Childers v. Dep Ô t of Envtl. Prot. , 696

So. 2d 962, 964 (Fla. 1st DCA 1997). Therefore, unless otherwise indicated, references herein

to statutes and rules are to the versi ons in effect in August 2017.

The two - volume Transcript of the final hearing was filed on February 2 4 ,

202 1 . The parties timely filed Proposed Recommended Orders , which have

been considered in preparing this Recommended Order.

F INDINGS OF F ACT

1. Respondent holds Florida Educator Ô s Certificate 722947, covering the

area of Varying Exceptionalities .

2. At the time of the allegations in the Administrative Complaint ,

Respondent was employed as a p re - k indergarten t eacher at Curlew

Elementary School in the Pinellas County School District. She had worked

for the Pinellas County School District since 1993.

3 . At the time of the events at issue here, Respondent Ô s class co nsisted of

approximately 12 pre - kindergarten students with varying mental and

physical exceptionalities. Respondent had two paraprofessionals assigned to

her classroom Ð Tiffany Jones and Lisa Ann Scalero - Gonzalez.

Student C . G .

4 . C.G. was a student in Respo ndent Ô s class for approximately two years

before the events at issue h ad occurred . C.G. utilized a wheelchair and was

unable to stand or walk . He could , however, roll over, scoot on his stomach,

and move his legs . He had some feeling in his legs.

5 . On Au gust 22, 2017, C.G. was in Respondent Ô s classroom laying under a

Johnny Gym, a toy with padded crossbars and dangling mobiles . C.G. was

wearing short pants. Respondent sat in front of C.G. in a small chair. C.G.

rolled onto his stomach, scooted out of the Johnny Gym, and attempted to

crawl.

6 . Respondent had not seen C.G. crawl before and testified that she

believed she was witnessing a physical breakthrough . C.G. attempted to

crawl for approximately five minutes before tiring and placing his head down

on the carpet. Respondent then picked up C.G. and placed him in a chair.

7 . C.G. appeared pleased with himself while trying to crawl. He did not

cry or appear to be in any discomfort while attempting to crawl.

8 . Later that day, at approximately 1:00 p.m., t he school nurse, Stephanie

Doehlman , R.N. , came to Respondent Ô s room to administer a tube feeding to

C.G . When Ms. Doehlman arrived, C.G. was on his belly on the rug. This was

not unusual according to Ms. Doehlman . Ms. Doehlman did not notice any

blister s at that time, but th e room was dimly lit. Ms. Doehlman picked up

C.G. and placed him in a chair and fed him through the feeding tube placed

in his belly. The feeding took about five to ten minutes. Ms. Doehlman left

Respondent Ô s classroom after the feedi ng was over.

9. Shortly after Ms. Doehlman left the classroom, the lights were turned

on and Ms. Scalero - Gonzalez noticed that blisters were starting to form on

C.G. Ô s knees . Ms. Scalero - Gonzalez asked Ms. Doehlman to return to the

classroom to examine C.G . Ô s knees. Ms. Doehlman returned to Respondent Ô s

classroom at about 1:30 p.m. and noted that C.G. appeared to have rug burns

forming on both knees.

10 . Later that day, C.G. was placed in his wheelchair and taken outside

for physical education. After C.G. was outside in the daylight , Ms. Doehlman

could see that both of C.G. Ô s knees were blistered. Ms. Doehlman cleaned

C.G. Ô s knees with soap and water and notified his parents.

11 . Photographs taken of C.G. Ô s knees one or two days later show

significant rug burns on both knees. It is likely that C.G. sustained the rug

burns when he attempted to crawl for approximately five minutes in

Respondent Ô s classroom on August 22, 2017 . Petitioner did not prove, with

certainty, that it was reasonably foreseeable that s ignificant rug burns would

result from this activity. Likewise, Petitioner failed to prove that the rug

burns are the result of Respondent Ô s failure to adequately supervise C.G.

Student A.M.

12. A.M. was a student in Respondent Ô s classroom in 2017. A.M. wa s also

unable to walk and utilized a wheelchair.

13. At approximately 1:1 6 p.m. on August 24, 2017, Respondent

transported A.M. to the playground in his wheelchair while pulling a wagon

loaded with students behind her. Respondent opened the door that acce sses

the playground and let go of A.M. Ô s wheelchair while she attempted to pull

the wagon through the same doorway. As she let go of A.M. Ô s wheelchair, it

started to roll down a concrete slope toward the playground. A video of the

incident shows A.M. in hi s wheelchair rolling toward the playground,

unescorted, and Respondent chasing after him. Before Respondent could

catch up to A.M. Ô s wheelchair, its wheels hit the landscape edging separating

the playground mulch from the sidewalk. T he wheelchair tipped fo rward

when its wheels struck the edging , causing A.M. to strike the mulch with his

head . A.M. remained belted in his wheelchair, but his head hit the

playground mulch with significant force when the wheelchair hit the edging

and tipped forward . Within seco nds, Respondent picked up A.M. Ô s wheelchair

and removed him from it.

1 4 . A.M. began to cry as soon as h e hit the playground mulch. After

Respondent removed A.M. from his wheelchair , she sat down in a chair and

rocked him in an effort to console him . Respon dent held A.M. and rocked him

for two minutes , but A.M. continued to cry. Respondent then carried A.M. to

a playground swing and swung him. M s. Scalero - Gonzalez told Respondent

that she needed to take A.M. to the nurse immediately, but Respondent

refused . Respondent continued to swing A.M. in the playground swing for

about 20 minutes , and then carried A.M. t o see Ms. Doehlman.

1 5 . Ms. Doehlman examined A.M. and found that he had redness over his

left eye and a scratch on his forehead . There was no bruising or blood.

Ms. Doehlman called A.M. Ô s mother at 1:55 p.m. to report the incident to her.

1 6 . Because A.M. injured his head, Respondent was required to describe

the circumstances that led to the incident in a Student Injury Worksheet and

Student Injury Repor t. After Respondent carried A.M. to Ms. Doehlman ,

Respondent hand - wrote the following account of the incident in the Student

Injury Worksheet for A.M. :

[A .M. ] was in a wheelchair going to p.e., he

propelled himself to the edging that separates

concrete fr om mulch. His wheelchair tipped an d he

wen t forward in the chair. Teacher caught him as

he hit the mulch.

This is a false account of the incident. A.M. did not propel himself to the

edging ; Respondent let go of A.M. Ô s wheelchair and it rolled down a concr ete

slope , struck the landscape edging , and tip ped forward , causing A.M. Ô s head

to hit the mulch . Respondent did not catch A.M. as he hit the mulch. A.M. hit

the mulch with significant force before Respondent caught up to hi s

wheelchair . The Student Injury Report Respondent completed on August 24,

2017 , contains the same false report of the incident involving A.M .

1 7 . The reasonable inference is that Respondent hoped to avoid reporting

this incident altogether by attempting to console A.M. for 20 minutes b efore

she finally took him to see Ms. Doehlman. Then , Respondent lied about the

incident in the Student Injury Worksheet and Student Injury Report to a void

responsibility for having caused th e accident .

1 8 . It is reasonably foreseeable that letting go of A .M. Ô s wheelchair could

cause it to roll down the concrete slope and cause an accident. To her credit,

Respondent ran after A.M. Ô s wheelchair as soon as she noticed it was rolling

toward the playground. Unfortunately, Respondent could not catch the

wheelcha ir in time. This was a momentary lapse that, fortunately, did not

cause serious harm to A.M. This was not an intentional act, and there was no

evidence that Respondent had been careless in the past when transporting

A.M. or other students to the playground .

1 9 . Respondent Ô s actions after the incident are far more troubling.

Respondent should have taken A.M. to the school nurse immediately after

the accident happened. Respondent did not take A.M. directly to the school

nurse because she hoped he would calm d own and she could avoid reporting

the incident. The resulting delay in examination could have resulted in

serious harm to A.M. had he suffered a more severe injury when his head hit

the mulch. After she carried A.M. to the school nurse, she lied about the

incident, hoping to avoid any responsibility for her carelessness . Respondent Ô s

delay in taking A.M. to the school nurse and false report of the incident are

intentional acts of misconduct.

20 . Respondent failed to make reasonable effort to protect A.M. f rom

conditions harmful to his physical health when she let go of his wheelchair

and when she delayed his presentation to the school nurse for approximately

20 minutes .

2 1 . Respondent failed to maintain honesty in professional dealings when

she knowingly a nd intentionally submitted a false report of the incident

involving A.M. in the Student Injury Worksheet and the Student Injury

Report that she completed on August 24, 2017.

C ONCLUSIONS OF L AW

2 2 . The Division of Administrative Hearings has jurisdiction o ver the

parties and the subject matter of this proceeding. §§ 120.569 and 120.57(1),

Fla. Stat. (2020).

2 3 . In this proceeding, Petitioner seeks to discipline Respondent Ô s

educator Ô s certificate. Petitioner bears the burden of proving the allegations

in th e Administrative Complaint by clear and convincing evidence. Dep Ô t of

Banking & Fin. v. Osborne Stern & Co. , 670 So. 2d 932, 935 (Fla. 1996);

Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987). As stated by the Florida

Supreme Court:

Clear and convincing ev idence 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

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 hesitancy, as to the truth of the allegations

sought to be established.

In re Henson , 913 So. 2d 579, 590 (Fla. 2005) (quoting Slomowit z v. Walker ,

492 So. 2d 797, 800 (Fla. 4th DCA 1983)). Accord Westinghouse Electric Corp.,

Inc. v. Shuler Bros., Inc. , 590 So. 2d 986, 988 (Fla. 1st DCA 1991) ( Ñ Although

this standard of proof may be met where the evidence is in conflict, ... it

seems to p reclude evidence that is ambiguous. Ò ).

2 4 . The Administrative Complaint charges Respondent with violating

section s 1012.795(1) (g) and (j). Section 1012.795 provides, in pertinent part:

(1) The Education Practices Commission may

suspend the educator certif icate of any person as

defined in s. 1012.01(2) or (3) for up to 5 years,

thereby denying that person the right to teach or

otherwise be employed by a district school board or

public school in any capacity requiring direct

contact with students for that pe riod of time, after

which the holder may return to teaching as

provided in subsection (4); may revoke the educator

certificate of any person, thereby denying that

person the right to teach or otherwise be employed

by a district school board or public schoo l in any

capacity requiring direct contact with students for

up to 10 years, with reinstatement subject to the

provisions of subsection (4); may revoke

permanently the educator certificate of any person

thereby denying that person the right to teach or

oth erwise be employed by a district school board or

public school in any capacity requiring direct

contact with students; may suspend the educator

certificate, upon an order of the court or notice by

the Department of Revenue relating to the

payment of child support; or may impose any other

penalty provided by law, if the person:

* * *

(g) Upon investigation, has been found guilty of

personal conduct that seriously reduces that

person Ô s effectiveness as an employee of the district

school board.

(j) Has violated the Principles of Professional

Conduct for the Education Profession prescribed by

State Board of Education rules.

Section 1012.795(1)(j) requires proof of a violation of the Principles of

Professional Conduct for the Education Profession pres cribed by rule of the

State Board of Education. Thus, this charge is linked to and predicated on

the charged rule violation, rule 6A - 10.081(2)(a)1. and (c)1. :

(a) Obligation to the student requires that the

individual:

1. Shall make reasonable effort to p rotect the

student from conditions harmful to learning and/or

to the student Ô s mental and/or physical health

and/or safety.

* * *

(c) Obligation to the profession of education

requires that the individual:

1. Shall maintain honesty in all profes sional

dealings.

2 5 . Petitioner alleges in the Administrative Complaint that Respondent

violated the rule , and therefore violated section 1012.795(1)( j ) , by failing to

supervise C.G., thus allowing him to sustain rug burns on both knees.

Petitioner failed to prove by clear and convincing evidence that C.G.

sustained rug burns on both knees because Respondent failed to make

reasonable efforts to supervise him in the classroom.

2 6 . Petitioner alleges in the Administrative Complaint that Respondent

violated the rule , and therefore violated section 1012.795(1)(j) , by failing to

maintain control of A.M. Ô s wheelchair and failing to transport him to the

school nurse immediately after the accident , and by falsely reporting the

incident . Petitioner has proven these allegations by clear and convincing

evidence.

2 7 . Petitioner also alleges that Respondent violated section 1012.795(1)(g)

because she committed conduct that seriously reduces her effectiveness as an

employee of the district school board. Petitioner is not required to offer

testimony from a parent, teacher , or co - worker to establish this violation , and

the misconduct does not have to occur off - campus. See Purvis v. Marion Cty .

Sch . Bd ., 766 So. 2d 492, 498 (Fla. 5th 2000) (evidence that teacher lied

under o ath and resisted arrest is sufficient to establish impaired

effectiveness). Here, Respondent delayed A.M. Ô s presentation to the school

nurse and submitted false reports about the accident to avoid responsibility

for her carelessness. This serious intention al misconduct , standing alone ,

establishes that Respondent violated section 1012.795(1)(g) by clear and

convincing evidence.

2 8 . At the time of the incident involving A.M. , the disciplinary guidelines,

codified in Florida Administrative Code Rule 6B - 11.007 , provided that the

normal penalty range for the violation s found here was from probation to

revocation. See Fla. Admin. Code R. 6B - 11.007(2) (f), (i)16., and (i)22., effective

April 9, 2009.

29 . Rule 6B - 11.007(3) provide s that a penalty outside the normal range i s

allowed when warranted by consideration of mitigating and aggravating

circumstances. The applicable mitigating and aggravating circumstances

codified in the rule have been considered. As for mitigating circumstances,

Respondent has held a teaching certificate for over 27 years and h a s no

history of prior discipline from the Education Practices Commission. A

serious aggravating factor is that Respondent took steps to cover up the

accident, including delaying A.M. Ô s presentation to the school nurse a nd

submitting false reports of the incident. This misconduct was intention al and

placed A.M. Ô s health in additional jeopardy. Fortunately, A.M. was not

seriously injured, but Respondent did not know that at the time she delayed

his presentation to the scho ol nurse .

3 0 . Consideration of the mitigating and aggravating circumstances do not

warrant imposition of a penalty outside the normal range. Petitioner has

proposed a penalty at approximately the midpoint of the normal range, to

include a two - year suspens ion followed by one year of probation . Respondent

did not propose an alternative penalty, arguing only for dismissal of the

Administrative Complaint. Petitioner Ô s proposed penalty is reasonable.

R ECOMMENDATION

Based on the foregoing Findings of Fact and C onclusions of Law, it is

R ECOMMENDED that the Education Practices Commission enter a final order

finding that Respondent violated section s 1012.795(1) (g) and (j) through a

violation of rule 6A - 10.081(2)(a)1. and (c)1. , and imposing the following as

penalti es: suspension of Respondent Ô s educator Ô s certificate for a period of two

years from the date of the final order; and probation for a period of one year

after the suspension, with conditions to be determined by the Education

Practices Commission .

D ONE A ND E NTERED this 2 6 th day of March , 2021, in Tallahassee, Leon

County, Florida.

S

B RIAN A. N EWMAN

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 2 6 th day of March , 2021 .

C OPIES F URNISHED :

Lisa M. Forbess, Interim Executive Director Branden M. Vicari, Esquire

Education Practices Commission Herdman & Sakellarides, P.A.

Turlington Building, Suite 316 29605 U.S. Highway 19 North , Suite 110

Department of Education Clearwater, Florida 33761

325 West Gaines Street

Tallahassee, Florida 32399 - 4000 Matthew Mears, General Counsel

D epartment of Education

Ron Weaver, Esquire Turlington Building, Suite 1244

Post Office Box 770088 325 West Gaines Street

Ocala, Florida 34477 - 0088 Tallahassee, Florida 3 2399 - 0400

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

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 F inal Order in this

case.