21-000707PL Richard Corcoran, As Commissioner Of Education vs. Yolie Bauduy Status: Closed Recommended Order on Wednesday, November 24, 2021.

Summary: Two-hour lunch delay not harmful to student's health. Brief departure from classroom to check for eloped student not harmful to students' health. Releasing student needing 1-on-1 supervision harmful to student. Chronic understaffing mitigating factor.

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. 21 - 0707PL

Y OLIE B AUDUY ,

Respondent .

/

R ECOMMENDED O RDER

Administrative Law Judge John D. C. Newton, II, of the Division of

Administrative Hearings (DOAH) , conducted the final hearing in this matter

by Zoom conference on August 24 and 25, 2021.

A PPEARANCES

For Petitioner: Ron Weaver, Esquire

Post Office Box 770088

Ocala, Florida 34477 - 0088

For Respondent: Branden M. Vicari, Esquire

Herd man & Sakellarides, P.A.

29605 U.S. Highway 19 North , Suite 110

Clearwater, Florida 33761

S TATEMENT OF T HE I SSUE S

A. Did Respondent, Yolie Bauduy, violate section 1012.795(1)(g), Florida

Statutes (2018)? 1

B. Did Respondent, Yolie Bauduy, violate section 1012.795(1)(j)?

1 All citations to the Florida Statutes are to the 2018 codification un less otherwise noted.

C. Did Respondent, Yolie Bauduy, violate Florida Administrative Code

Rule 6A - 10.081(2) ( a)1 . ?

P RELIMINARY S TATEMENT

By three count Administrative Complaint dated November 2, 2020,

Petitioner, Richard Corcoran, Commissioner of Education (Commissioner),

charged Ms. Bauduy with violating two statutes and one rule governing

teacher conduct. Ms. Bauduy disputed the charges and requested a disputed -

fact administrative hearing. The Commissioner referred the matter to DOAH

on Februa ry 19, 2021, for conduct of the requested hearing. The hearing was

set for May 21, 2021. Because of the number of witnesses, the expected length

of their testimony, the number of documents involved, and the need for

additional time to conduct discovery, th e parties jointly moved to continue

and reschedule the hearing. The motion was granted, and the hearing was

scheduled to begin August 24, 2021. The undersigned conducted the hearing

as scheduled. The parties stipulated to several facts. The relevant facts are

incorporated in the Findings of Fact.

The Commissioner presented testimony from Adam Bailey, Elizabeth

Elkholi, Monica Emery, Laura Fogarty, Michael C. Gladden, Barbra Hunter,

Kendra Rodriguez, and K . M . (a student). Commissioner Exhibits 4, 5, 9

thro ugh 11, 13, 20, 22, 24 through 30, 32 through 34, 38, 41, and 42 were

admitted into evidence.

Ms. Bauduy presented the testimony from herself and Lauren Mueller.

Ms. Bauduy ' s Exhibits 1, 2, 4, 5, 7, 9, and 10 were admitted into evidence.

Ms. Bauduy also offered exhibits identified as Commissioner ' s proposed

e xhibits 18 and 39 in the pre - hearing stipulation. They were admitted as

evidence submitted on behalf of Ms. Bauduy .

The Transcript of the hearing was filed. After receiving an extension of

time, the parties timely submitted P roposed R ecommended O rders. They

have been considered in the preparation of this R ecommended O rder.

F INDINGS OF F ACT

Parties

1. Petitioner, Richard Corcoran, is the Commissioner of Education. The

Commissioner is the head of the state agency, the Florida Department of

Education, responsible for investigating and prosecuting allegations of

misconduct against individuals holding Fl orida educator certificates.

2. Ms. Bauduy holds a Florida Educators Certificate covering the areas of

Autism Spectrum Disorder, Elementary Education, English for Speakers of

Other Languages (ESOL), Exceptional Student Education (ESE) , and Middle

Grades I ntegrated Curriculum . It is valid through June 30, 2025.

3. Ms. Bauduy teaches at Gotha Middle School in the Orange County

School District and did at the time of the events alleged in the Administrative

Complaint. During the period during which the allege d acts occurred,

Ms. Bauduy taught students with autism. She has served students with

disabilities of Orange County as an educator in ESE programs for 16 years.

She taught at Gotha Middle School for 14 of those 16 years. Other than

discipline for the incid ents that are the subject of this proceeding, the District

has never disciplined Ms. Bauduy. The school has recognized Ms. Bauduy as

an effective teacher. For instance, an evaluation resulting from seven days of

in - class observation in November 2020 concl uded that she was applying all

four expected classroom strategies and behaviors. The Education Practices

Commission has never disciplined Ms. Bauduy.

Gotha Middle School and Ms. Bauduy ' s Class

4. During the 2018 - 2019 school year, all of Ms. Bauduy ' s stude nts had

disabilities that required more assistance and support than needed by

students in the general population . Because of their disabilities ,

Ms. Bauduy ' s students required a modified curriculum that was less rigorous

than the standard curriculum. The modified curriculum included social,

skills, personal skills, and independent function skills. Teaching those skills

help s students learn to manage their behavior and become more independent.

5. All of Ms. Bauduy ' s students had Individual Education Plans (IEP).

These plans identify a student ' s disabilities, their effect, and behavior that

may arise from them. They establish goals for the student in light of the

student ' s disabilities. And they identify strategies for helping the students

accomplish the est ablished goals.

6. The demands of teaching students with disabilities required additional

staff in the classroom to assist Ms. Bauduy. The school determined that

properly caring for and teaching the children required a three to one student

teacher ratio. The students ' IEPs also required this staffing ratio. For that

reason, the school assigned two paraprofessionals to assist in Ms. Bauduy ' s

class of ten people. This was in addition to Ms. Edoo, who was assigned to

student E.K. one - on - one. Thus, the proper staffing complement for Ms.

Bauduy ' s class was four adults.

7. Throughout the 2018 - 2019 school year , Gotha Middle S chool

experienced chronic staffing shortages. One paraprofessional position in

Ms. Bauduy ' s class was vacant the entire year. The school enga ged a long -

term substitute. That person often did not show up for work. In those

instances, the school sought , often unsuccessfully, to engage fill - ins from a

temporary staffing agency. In addition, the school usually did not provide

staff to cover the par aprofessionals ' breaks and lunches. Throughout the

year, Ms. Bauduy had to juggle staffing shortages as best she could. During

the representative month of September 2018, Ms. Bauduy ' s class was short

one adult seven full days and four partial days. On Sept ember 11, 2018,

Ms. Bauduy ' s class was down two professionals. When the paraprofessional

staff took their breaks or lunch periods, the staffing deficiencies worsened.

8. Ms. Bauduy repeatedly advised the administration about the staffing

deficiencies, sou ght assistance, and expressed her concerns about not

complying with students ' IEP requirements. Her communications included a

September 5, 2018, email advising that a substitute had not arrived, a

September 11 email forwarding an email from a paraprofessio nal advising

she was not coming in, and a September 26 email advising that a substitute

once again failed to arrive and asking for assistance.

9. In January 2019, despite the chronic understaffing , the school

transferred two students, T.M. and N.A. , from o ther classrooms to

Ms. Bauduy ' s class. These students ' disabilities were more profound and

required more supports than the other students. They were regular elopers,

required diaper changes, and required individual nearly one - on - one

prompting for tasks. Am ong other things, T.M. ' s disabilities required having

someone hold his hand during transitions. Placement of T.M. and N.A. in

Ms. Bauduy ' s class was not appropriate.

10. Ms. Bauduy continued sending emails expressing her concerns and

frustrations about understaffing. She also repeatedly, without effect, sought

to get the school to change mandatory meetings to her planning period or

after school because the meetings cau sed her to leave the classroom and

exacerbated the staffing problems. Between October 25, 2018, and March 4,

2019, Ms. Bauduy sent 17 emails requesting full staffing and advising of staff

absences.

11. Ms. Bauduay could not rely upon prompt responses when she called

for assistance or additional staffing to put her room back in compliance with

the required student /adult ratio. Sometimes she received a quick response.

Sometimes no one came. Often there was a 20 to 30 - minute delay before

assistance arrived.

12. Even when management responded to Ms. Bauduy ' s request for a

schedule of when behavior staff would be available to support her students,

management ' s response was conditional. For instance, Laura Fogarty, ESE

Curriculum and Instruction Team Instruction al Coach, conditioned the

schedule of available staff that she provided as follows .

Please remember, however, that this schedule is in

a perfect world. The behavior support team ' s first

priority is to respond to radio calls and have other

responsibilities that don ' t always make it possible

for them to be in your room for the times listed

below. They may also have to leave to respond to a

behavior call when they are in there. Below is the

ideal, if everything goes right and there are no

behavior calls or ot her areas that require their

attention.

1 3 . The world in which Ms. Bauduy taught was neither perfect n or ideal.

Ms. Bauduy ' s testimony about staffing difficulties and insufficient responses

to requests for assistance differs from testimony of school repre sentatives.

Ms. Bauduy was more credible and persuasive than the school

representatives. F our of the reasons for this judgment are Ms. Bauduy ' s

sincere demeanor, documents such as emails and logs consistent with her

testimony, the admission in Ms. Fogarty ' s email that even scheduled

availability of support was not reliable, and the corroborating testimony of a

paraprofessional who worked in Ms. Bauduy ' s room , Lauren Mueller.

K . C .

1 4 . K.C. was a male sixth grade student in Ms. Bauduy ' s class. K.C. ' s I EP

specified that K.C. should always be supervised. It stated, " He requires

continuous supervision as he is very impulsive and responds aggressively and

or obscenely. " K.C. also had a Behavioral Improvement Plan (BIP). It too

noted a need for intensive int ervention to address inappropriate touch ing of

and advances toward female students. The BIP provided, among other things,

" If outside the classroom, one on one supervision must be provided. " The BIP

went on to state that K.C. ' s transitions out of the class room should be limited

to necessary transitions and that a staff member should provide one - on - one

supervision during all transitions. Ms. Bauduy was aware of the contents of

the IEP and BIP.

1 5 . At each day ' s end, Ms. Edoo usually escorted K.C. from class to the

transportation loading area, after escorting her assigned student to the

transportation area. This did not happen on September 11, 2018. This was

one of the many days when Ms. Bauduy ' s room was short - staffed. Because of

a vacant position and a para professional not showing up, Ms. Bauduy was

down to two adults, including herself, of the staff that should have been in

the room. This excludes Ms. Edoo who was responsible for providing one - on -

one care for a single student. The afternoon of September 11 the substitute

paraprofessional was to escort the students, in shifts , to the transportation

area. The substitute took a student to the transportation area and did not

return. This left Ms. Bauduy the sole adult in the room, responsible both for

getting th e children to the transportation area and supervising students in

the classroom.

1 6 . Ms. Edoo called Ms. Bauduy on the radio and said to release K.C.

Ms. Bauduy thought that meant Ms. Edoo was returning to the classroom

and would meet K.C. in the hall. Alt hough her room had a telephone and a

two - way radio, Ms. Bauduy knew from experience a response to a request for

help would be slow , if there even was one. Faced with confounding choices,

Ms. Bauduy explained to K.C. that she would release him to go directl y down

the hall to meet Ms. Edoo. K.C. did not go straight down the hall to Ms. Edoo ,

and Ms. Edoo was not in the hall . K.C. went to the bathroom that opened on

the hall. A student, K.M., found K.C. laying naked, save for his socks, on the

bathroom floor, masturbating. This scared and confused K.M. He went home

and told his mother about the incident. She called the school. The next day a

guidance counselor met with K.M. to discuss the incident and reassure him.

1 7 . Shortly after K.M. left for home, an ESE c lerk, Elizabeth Elkholi, saw

K.C. naked in the bathroom, through the open door. She called for Shantell

Johnson, a behavior trainer. Ms. Johnson did not wish to enter the bathroom

because K.C. was naked. A substitute, Stephen Harnishfeger, and Deputy

Luna, a school resource officer, joined Ms. Elkholi and Ms. Johnson. Between

them , these four adults kept K.C. in sight. K.C. got dressed in a stall.

Ms. Johnson escorted him back to Ms. Bauduy ' s classroom. Ms. Bauduy was

not aware of this activity until K.C. w as returned to her room. K.C. could

have left the school grounds during the period that he was unsupervised.

1 8 . Eventually the substitute reappeared and declared she was leaving for

the day. Ms. Bauduy convinced the substitute to escort K.C. to the

transp ortation loading area before leaving.

19 . The school suspended Ms. Bauduy for five days without pay for this

incident.

T . M .

20 . T.M. was a student on the autism spectrum that the school transferred

to Ms. Bauduy ' s class in January. T.M. ' s previous classroom, Ms. Franklin ' s,

was adjacent to Ms. Bauduy ' s classroom.

21 . On February 25, 2019, the school had again failed to staff

Ms. Bauduy ' s classroom in compliance with the requirements of her students '

IEPs. That day the school required Ms. Bauduy to participate in an IEP

meeting, scheduled for 30 minutes, during her planning period. The meeting

took two hours, running through her lunch period and ending at 4:00 p.m.

When Ms. Bauduy returned to the classroom, she realized none of her

paraprofessionals had taken a break. So, she released them one at a time for

a short break. While one paraprofessional was gone on break , the remaining

one left the room with a student to go to the restroom and change a diaper .

This left Ms. Bauduy alone with the students.

2 2 . At that time , Ms. Bauduy was providing directions to a group of

students. She heard the door slam. She looked for T.M. and did not see him in

the classroom . T.M. had slipped away from Ms. Bauduy ' s classroom out into

the hall. He left through the class room ' s only door. Ms. Bauduy immediately

went to the doorway to look for him. She knew T.M. had a history of leaving

the classroom but waiting just outside the door. S he did not see him. Then

Ms. Bauduy took a few steps outside the door of her classroom into the hall.

To the left of Ms. Bauduy ' s classroom the hall met double doors just yards

away that led to the outside and a nearby road. Ms. Bauduy was in the hall

approximately 23 seconds seeking to ensur e that T.M. had not gone to the left

toward the do uble doors. During these 23 seconds there was no adult inside

Ms. Bauduy ' s class room . S he however was just feet from the only door. One

of the students could have done something destructive or harmful. But the

brief period of time that Ms. Bauduy was outs ide the classroom, her

proximity to the door, and the very short distance she was from her students

made that risk minimal.

2 3 . Ms. Bauduy saw the door to Classroom B104 close. This was T.M. ' s

former classroom, which was next to Ms. Bauduy ' s room. This r ea ssured her

that T.M. was safe . She ran back to her classroom. The students had spent

the 23 seconds without incident. Then Ms. Bauduy called for assistance. A

staff member came to return T.M. to Ms. Bauduy ' s room.

2 4 . When T.M. slipped away , Ms. Bauduy had no good choices. I n the time

it would take to call for assistance and wait for it to arrive, if it di d , T.M.

could have been out the doors and in the road . Ms. Bauduy ' s experience

taught her that assistance was often slow to arrive and sometimes did not

a rrive at all. Stepping out in the hall to quickly see where T.M. went left the

eight remaining students without direct adult supervision for 23 seconds. But

Ms. Bauduy was just outside the only door out of the classroom. She made a

reasonable choice, one t hat most reduced the risk of a bad outcome to T.M.

and his classmates.

25. The school suspended Ms. Bauduy for five days without pay because of

this incident.

F.O.

2 6 . F.O. was a student in Ms. Baud u y ' s class. F.O. was non - verbal and

deaf. She was working on pre - academic skills. F.O. was a joyful and social

student. She, however, was defiant. She did not like to be corrected. She

wanted to be on her own, basically following her own schedule. When

correc ted , F.O. would shake her head, point her finger, and stick her tongue

out.

2 7 . The school regularly delivered breakfast and lunch to the class. On

September 11, 2019, F.O. ate breakfast around 10:00 a.m. After breakfast ,

F.O. and the other students had a short lesson and went to PE. After they

returned to class , they had another short lesson. Afterwards , Ms. Bauduy

gave the class another short break.

2 8 . Around 1 1:30 a.m., t he lunch cart ' s arrival signaled the beginning of

lunch to the class. The lunch ser vice procedure began with placing meals on

tables for students who could feed themselves. Then Ms. Bauduy and the

paraprofessionals assisted students who needed help eating.

2 9 . F.O. ' s lunch was placed in front of her. It was time for F.O. to pick up

her toys and eat. She refused. Ms. Bauduy tried prompting F.O. several ways.

Ms. Bauduy ' s efforts to persuade F.O. to put her toys up included gestures,

pantomiming the desired actions, and modeling the actions by picking up

some toys herself. This did not work.

30 . Ms. Bauduy took F.O. out of the classroom to see if a change in

environment would help. Ms. Bauduy then took F.O. to the behavior

specialist ' s classroom down the hall. But it was not staffed.

31 . They returned to Ms. Bauduy ' s classroom. There Ms. Bauduy tried to

get F.O. to comply with simple directions like " put it down. " F.O. would not

respond. Also , F.O. continued to refuse to pick up her toys and eat lunch.

Ms. Bauduy concluded that F.O. ' s refusal to eat lunch was a defiance issue.

32 . Ms. Bau duy learned a behavior management strategy called " First Ï

Then " in her applied behavior classes at the University of Central Florida.

Ms. Bauduy kept a graphic depicting this strategy posted in her classroom.

Other teachers and paraprofessionals in the sc hool also used this strategy. It

was a system where the " Then " was something the child wanted or wanted to

do and the " First " was a task the child was resisting.

33. After F.O. continued to play with toys and ignore her lunch. Ms.

Bauduy decided to use the " First Ð Then " strategy by withholding F.O. ' s

lunch until she picked up her toys. She asked a paraprofessional, Ms. Lewis,

to remove the food. Ms. Lewis refused. Ms. Bauduy then placed the lunch on

a shelf so that other students would not eat it or play with it.

3 4 . Around 2:00 p.m., snack time, F.O. had put up her toys. Ms. Bauduy

gave her the lunch. Ms. Bauduy ' s log for the day, sent home with each

student each day, advised F.O. ' s parents that F.O. would not listen or f ollow

directions most of the day and that " lunch was delayed till she showed more

compliance. "

3 5 . Withholding lunch was not a proper use of the " First Ï Then " strategy.

Meals are a regular part of the day and necessary for nutrition , although in

this cas e the student repeatedly declined food . Withholding a meal, as

opposed to withholding a treat, is not proper. Also, since F.O. was not

interested in eating lunch, making lunch the " T hen " was not a well - rea soned

use of the strategy. Ms. Bauduy, however, did not withhold lunch as a

punishment. But withholding lunch was not a reasonable behavior

management strategy.

3 6 . The school suspended Ms. Bauduy for five days for this instance.

C ONCLUSIONS OF L AW

Jurisdiction, Parties, and Burden of Proof

3 7 . Florida law grants DOAH jurisdiction of this matter. §§ 120.569,

120.57(1), and 1012.796(6) , Fla. Stat. (2021).

3 8 . The Commissioner is the chief educational officer of the state. He files

and prosecutes complaints against teachers and administrators before the

E ducation Practices Commission. § 1012.796(6), Fla. Stat. Section 1012.795

authorizes the Commission to impose discipline upon teachers in Florida.

3 9 . The Commissioner seeks to discipline Ms. Bauduy ' s educator s

certificate. The Commissioner bears the burde n of proving the allegations of

the Administrative Complaint by clear and convincing evidence. Ferris v.

Turlington , 510 So. 2d 292, 294 (Fla. 1987). As stated by the Florida Supreme

Court:

Clear and convincing evidence requires that the

evidence must be found to be credible; the facts to

which the witnesses testify must be distinctly

remembered; the testimony must be precise and

explicit and the witnesses must be lacking in

confusion as to the facts in issue. The evidence must

be of such weight that it pr oduces 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 Slomowitz v. Walker ,

492 So. 2d 797, 800 (Fla. 4th DCA 1983)).

40 . The three count administrative complaint charges Ms. Bauduy with

violations of sections 1012.795(1)(g) and 1012.795(1)(j) and r ule 6A -

10.081(2)(a)1. All charges rest on her handling of K.C., T.M., and F.O. as

described in the Findings of Fact.

Count I

4 1 . Section 1012.795(1)(g) authorizes the Education Practices Commission

to impose a range of disciplin ary actions upon an educator who " has been

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

effectiveness as an employee of the district school board. " The record does not

establish by clear and convincing evidence that the isolated incidents,

aggravated in the cases of K.C. and T.M. by chronic understaffing , seriously

reduced Ms. Bauduy ' s effectiveness as an employ ee of the school board. There

is no evidence of events, actions, or complaints after September 11, 2019, that

indicate Ms. Bauduy ' s effectiveness has been impaired. Cf. Walker v.

Highlands Cnty . Sch. Bd. , 752 So. 2d 127 (Fla. 2d DCA 2000) (Teacher

" joking " about students being searched and offering to hold contraband

created chaos in the classroom.)

4 2 . Also, the Commissioner ' s Proposed Recommended Order does not

argue this violation. The charge is therefore abandoned. The Proposed

Recommended Order is the most recent and complete statement of the

Agency ' s claims. Any violation not included in the Proposed Recommended

Order is deemed abandoned, as are violations asserted without citation to the

record support for them. Cf. D.H. v. Adept Cmty. Servs. , 271 So. 3d 870 (Fla.

2018) (Claims of error not raised in initial brief deemed abandoned);

Wickham v. State , 124 So. 3d 841, 860 (Fla. 2013) ( Failure to pursue a claim

amounts to abandonment of the claim.); Downs v. Moore , 801 So. 2d 906, 912,

n. 9 (Fla. 2001) (F ailure to propose jury instruction on an issue is deemed

abandonment of the issue).

Counts II and III

4 3 . Section 1012.795(1)(j) authorizes the Education Practices Commission

to impose a range of disciplines upon an educator who " [h]as violated the

Principles of Professional Conduct for the Education Profession prescribed by

State Board of Education rules. " The statute does not create an offense other

than making violation of the Principles a statutory offense. Ms. Bauduy

violated section 1012.795(1) (j) only if she violated rule 6A - 10.081(2)(a).

Corcoran v. Miller , Case No. 19 - 6373PL (Fla. DOAH Mar . 31, 2021 ; Fla. EPC

May 28, 2021).

4 4 . Rule 6A - 10.081 is the Principles of Professional Conduct. Rule 6A -

10.081(2) states: " Florida educators shall comply with the following

disciplinary principles. Violation of any of these principles shall subject the

individual to revocation or suspension of the individual educator ' s certificate,

or the other penalties as provided by law. " Rule 6A - 10.081(2)(a)1. provides

that educators, " [s]hall make reasonable effort to protect the student from

conditions harmful to learning and/or to the student ' s mental and/or physical

health and/or safety. "

4 5 . The record establishes by clear and convincing evidence that

Ms. Bauduy ' s decision to release K.C. to transit the hall without supervision

created a condition " harmful to learning and/or physical health and/or

safety. " Releasing K.C. without supervision was harmful both to K.C. and

any other students, especially female students , that he might encounter.

4 6 . The record does not establish by clear and convincing evidence that

Ms. Bauduy ' s decision to step outside her classroom door for less than 30

seconds to determine where T.M. was going and confirm he was not leaving

through th e double doors to the road was harmful to the students who

remained in the classroom. Ms. Bauduy believed with good cause that a call

for help would not bring support soon enough to deal with the immediate risk

to T.M. By staying just outside her classroom door and keepi ng her time

outside the classroom to less than 30 seconds , Ms. Bauduy made a reasonable

effort to protect all her students from harmful conditions. Consequently, the

Commissioner did not prove Ms. Bauduy violated r ule 6A - 10.081(2)(a)1. when

she stepped out in the hall to check on T.M.

4 7 . The record establishes by clear and convincing evidence that

Ms. Bauduy withheld F.O. ' s lunch for two hours in a n incorrect application of

the " First Ð Then " behavior management strategy. It also establishes that

F.O. repeatedly refused the lunch. There was general testimony that food is a

human need, that delaying a meal " can lower blood sugar " which may make a

student restless and inattentive. There is no ev idence that F.O. was restless

or inattentive. T he evidence did not produce " a firm belief or conviction,

without hesitancy, as to the truth of the allegations " that a two - hour delay in

lunch for a student who repeatedly refused lunch amounted to an action

" harmful to learning and/or to the student ' s mental and/or physical health

and/or safety. " Consequently, the Commissioner did not prove delaying F.O. ' s

lunch violated r ule 6A - 10.081(2)(a)1.

Disciplinary Guidelines

4 8 . The guidelines of Florida Administra tive Code Rule 6B - 11.007 must be

considered in determining the appropriate penalty to impose upon

Ms. Bauduy. The guidelines provide that the appropriate penalty for a

violation of r ule 6A - 10.081(2)(a)1. ranges between reprimand and revocation.

Fla. Admin. Code R. 6B - 11.007(2). Rule 6B - 11.007(3) lists aggravating and

mitigating factors to consider. They are:

(a) The severity of the offense;

(b) The danger to the public;

(c) The number of repetitions of offenses;

(d) The length of time since the violation;

( e) The number of times the educator has been

previously disciplined by the Commission;

(f) The length of time the educator has practiced and

the contribution as an educator;

(g) The actual damage, physical or otherwise, caused

by the violation;

(h) The det errent effect of the penalty imposed;

(i) The effect of the penalty upon the educator ' s

livelihood;

(j) Any effort of rehabilitation by the educator;

(k) The actual knowledge of the educator pertaining

to the violation;

(l) Employment status;

(m) Attempts by the educator to correct or stop the

violation or refusal by the educator to correct or stop

the violation;

(n) Related violations against the educator in

another state including findings of guilt or

innocence, penalties imposed and penalties served;

(o) Actual negligence of the educator pertaining to

any violation;

(p) Penalties imposed for related offenses under

subsection (2), above;

(q) Pecuniary benefit or self - gain inuring to the

educator;

(r) Degree of physical and mental harm to a student

or a child;

(s) Present status of physical and/or mental

condition contributing to the violation including

recovery from addiction;

(t) Any other relevant mitigating or aggravating

factors under the circumstances.

4 9 . T he m itigating circumstances in paragraphs ( c ) (number of

repetitions), ( d ) (length of time since the violation), ( e ) (previous discipline),

( f ) (length of time serving as educator), ( g ) (actual damage), and ( q ) (no

pecuniary benefit or self - gain) are present here. Under the circumstances

here , tw o other mitigating factors apply. The first is the chronic understaffing

and the daily stress and lack of support that it generated. The second is that

Ms. Bauduy has already received a severe penalty, five days suspension

without pay, for each alleged vio lation . Aggravating circumstances of

paragraphs ( a ) (severity due to the nature of K.C. ' s disability) and ( k ) (actual

knowledge of the need to ensure constant supervision of K.C. ) apply.

50 . The number and nature of the mitigating circumstances outweigh t he

number and nature of the aggravating circumstances. The result from

consideration of the facts of the one violation proven and weighing the

aggravating and mitigating factors is a conclusion that reprimand is the

proper discipline for Ms. Bauduy.

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

fi nding that Respondent, Yolie Bauduy, violated section 1012.795(1)(j),

Florida Statutes, by violat ing Florida Administrative Code Rule 6A -

10.081(2)(a)1. , and i mposing a reprimand upon Respondent, Yolie Bauduy.

D ONE A ND E NTERED this 2 4th day of November , 2021 , in Tallahassee,

Leon County, Florida.

S

J OHN D. C. N EWTON , II

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 4th day of November , 2021 .

C OPIES F URNISHED :

Lisa M. Forbess, Executive Director Ron Weaver, Esquire

Education Practices Commission Post Office Box 770088

Department of Education Ocala, Florida 34477 - 0088

Turlington Building

325 West Gaines Street, Suite 316 Anastasios Kamoutsas, General Counsel

Tallahassee, Florida 32399 - 0400 D epartment of Education

Turlington Building, Suite 1244

Branden M. Vicari, Esquire 325 West Gaines Street

Herdman & Sakellarides, P.A. Tallahassee, Florida 32399 - 0400

29605 U.S. Highway 19 North , Suite 110

Clearwater, Florida 33761

Randy Kosec, Jr., Chief

Office of Professional

Practices Services

D epartment 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 Final Order in this

case.