§ 1012.796 — Complaints against teachers and administrators; procedure; penalties

Florida § 1012.796

• Jurisdiction: Florida
• Title: XLVIII
• Ch. 1012: PERSONNEL

Text

(1)(a) The Department of Education shall cause to be investigated expeditiously any complaint filed before it or otherwise called to its attention which, if legally sufficient, contains grounds for the revocation or suspension of a certificate or any other appropriate penalty as set forth in subsection (7). The complaint is legally sufficient if it contains the ultimate facts which show a violation has occurred as provided in s. 1012.795 and defined by rule of the State Board of Education. The department shall investigate or continue to investigate and take appropriate action on a complaint even though the original complainant withdraws the complaint or otherwise indicates a desire not to cause it to be investigated or prosecuted to completion. The department may investigate or continue to investigate and take action on a complaint filed against a person whose educator certificate has expired if the act or acts that are the basis for the complaint were allegedly committed while that person possessed an educator certificate and may not issue a certificate to such a person unless an investigation has been completed. (b) The department shall immediately investigate any legally sufficient complaint that involves misconduct by any certificated personnel which affects the health, safety, or welfare of a student, giving the complaint priority over other pending complaints. The department must investigate or continue to investigate and take action on such a complaint filed against a person whose educator certificate has expired if the act or acts that are the basis for the complaint were allegedly committed while that person possessed an educator certificate. The Commissioner of Education shall make a determination of probable cause within 90 days after receipt of any complaint involving sexual misconduct with a student. Upon the written request of a state attorney, this deadline may be held in abeyance during criminal proceedings related to the sexual misconduct with a student. (c) When an investigation is undertaken, the department shall notify the certificateholder or applicant for certification and the district school superintendent or the university laboratory school, charter school, or private school in which the certificateholder or applicant for certification is employed or was employed at the time the alleged offense occurred. In addition, the department shall inform the certificateholder or applicant for certification of the substance of any complaint which has been filed against that certificateholder or applicant, unless the department determines that such notification would be detrimental to the investigation, in which case the department may withhold notification. (d)1. Each school district shall file in writing with the department all legally sufficient complaints within 30 days after the date on which subject matter of the complaint comes to the attention of the school district, regardless of whether the subject of the complaint is still an employee of the school district. A complaint is legally sufficient if it contains ultimate facts that show a violation has occurred as provided in s. 1012.795 and defined by rule of the State Board of Education. The school district shall include all information relating to the complaint which is known to the school district at the time of filing. 2. A school district shall immediately notify the department if the subject of a legally sufficient complaint of misconduct affecting the health, safety, or welfare of a student resigns or is terminated before the conclusion of the school district’s investigation. Upon receipt of the notification, the department shall place an alert on the person’s certification file indicating that he or she resigned or was terminated before an investigation involving allegations of misconduct affecting the health, safety, or welfare of a student was concluded. In such circumstances, the database may not include specific information relating to the alleged misconduct until permitted by subsection (4). This subparagraph does not limit or restrict the duty of the district school board to investigate the complaint and report the findings and conclusion to the department. 3. Each district school board shall develop and adopt policies and procedures to comply with this reporting requirement. School board policies and procedures must include standards for screening, hiring, and terminating instructional personnel and school administrators, as defined in s. 1012.01; standards of ethical conduct for instructional personnel and school administrators; the duties of instructional personnel and school administrators for upholding the standards; detailed procedures for reporting alleged misconduct by instructional personnel and school administrators which affects the health, safety, or welfare of a student; requirements for the reassignment of instructional personnel and school administrators pending the outcome of a misconduct investigation; and penalties for failing to comply with s. 1001.51 or s. 1012.795. The district school board policies and procedures must include appropriate penalties for all personnel of the district school board for nonreporting and procedures for promptly informing the district school superintendent of each legally sufficient complaint. The district school superintendent is charged with knowledge of these policies and procedures and is accountable for the training of all instructional personnel and school administrators of the school district on the standards of ethical conduct, policies, and procedures. 4. If the district school superintendent has knowledge of a legally sufficient complaint and does not report the complaint, or fails to enforce the policies and procedures of the district school board, and fails to comply with the requirements of this subsection, in addition to other actions against certificateholders authorized by law, the district school superintendent is subject to penalties as specified in s. 1001.51(12). 5. If the superintendent determines that misconduct by instructional personnel or school administrators who hold an educator certificate affects the health, safety, or welfare of a student and the misconduct warrants termination, the instructional personnel or school administrators may resign or be terminated, and the superintendent must report the misconduct to the department in the format prescribed by the department. The department shall maintain each report of misconduct as a public record in the instructional personnel’s or school administrators’ certification files. This paragraph does not limit or restrict the power and duty of the department to investigate complaints regarding certificateholders, regardless of the school district’s untimely filing, or failure to file, complaints and followup reports. This subparagraph does not create a duty for the department to investigate complaints regarding noncertificateholders. (e) If allegations arise against an employee who is certified under s. 1012.56 and employed in an educator-certificated position in any public school, charter school or governing board thereof, or private school that accepts scholarship students who participate in a state scholarship program under chapter 1002, the school shall file in writing with the department a legally sufficient complaint within 30 days after the date on which the subject matter of the complaint came to the attention of the school, regardless of whether the subject of the allegations is still an employee of the school. A complaint is legally sufficient if it contains ultimate facts that show a violation has occurred as provided in s. 1012.795 and defined by rule of the State Board of Education. The school shall include all known information relating to the complaint with the filing of the complaint. This paragraph does not limit or restrict the power and duty of the department to investigate complaints, regardless of the school’s untimely filing, or failure to file, complaints and followup reports. A school described in this paragraph shall immediately notify the department if the subject of a legally sufficient complaint of misconduct affecting the health, safety, or welfare of a student resigns or is terminated before the conclusion of the school’s investigation. Upon receipt of the notification, the department shall place an alert on the person’s certification file indicating that he or she resigned or was terminated before an investigation involving allegations of misconduct affecting the health, safety, or welfare of a student was concluded and place the person on the disqualification list maintained by the department pursuant to s. 1001.10(4)(b). In such circumstances, the database may not include specific information relating to the alleged misconduct until permitted by subsection (4). (f) Notwithstanding any other law, all law enforcement agencies, state attorneys, social service agencies, district school boards, and the Division of Administrative Hearings shall fully cooperate with and, upon request, shall provide unredacted documents to the Department of Education to further investigations and prosecutions conducted pursuant to this section. Any document received may not be redisclosed except as authorized by law.

(2) The Commissioner of Education shall develop job specifications for investigative personnel employed by the department. Such specifications shall be substantially equivalent to or greater than those job specifications of investigative personnel employed by the Department of Business and Professional Regulation. The department may contract with the Department of Business and Professional Regulation for investigations. No person who is responsible for conducting an investigation of a teacher or administrator may prosecute the same case. The department general counsel or members of that staff may conduct prosecutions under this section.

(3) The department staff shall advise the commissioner concerning the findings of the investigation and of all referrals by the Florida High School Athletic Association (FHSAA) pursuant to ss. 1006.20(2)(b) and 1012.795. The department general counsel or members of that staff shall review the investigation or the referral and advise the commissioner concerning probable cause or lack thereof. The determination of probable cause shall be made by the commissioner. The commissioner shall provide an opportunity for a conference, if requested, prior to determining probable cause. The commissioner may enter into deferred prosecution agreements in lieu of finding probable cause if, in his or her judgment, such agreements are in the best interests of the department, the certificateholder, and the public. Such deferred prosecution agreements shall become effective when filed with the clerk of the Education Practices Commission. However, a deferred prosecution agreement may not be entered into if there is probable cause to believe that a felony or an act of moral turpitude, as defined by rule of the State Board of Education, has occurred, or for referrals by the FHSAA. Upon finding no probable cause, the commissioner shall dismiss the complaint and may issue a letter of guidance to the certificateholder.

(4) The complaint and all information obtained pursuant to the investigation by the department shall be confidential and exempt from the provisions of s. 119.07(1) until the conclusion of the preliminary investigation of the complaint, until such time as the preliminary investigation ceases to be active, or until such time as otherwise provided by s. 1012.798(6). However, the complaint and all material assembled during the investigation may be inspected and copied by the certificateholder under investigation, or the certificateholder’s designee, after the investigation is concluded, but prior to the determination of probable cause by the commissioner. If the preliminary investigation is concluded with the finding that there is no probable cause to proceed, the complaint and information shall be open thereafter to inspection pursuant to s. 119.07(1). If the preliminary investigation is concluded with the finding that there is probable cause to proceed and a complaint is filed pursuant to subsection (6), the complaint and information shall be open thereafter to inspection pursuant to s. 119.07(1). If the preliminary investigation ceases to be active, the complaint and all such material shall be open thereafter to inspection pursuant to s. 119.07(1), except as otherwise provided pursuant to s. 1012.798(6). For the purpose of this subsection, a preliminary investigation shall be considered active as long as it is continuing with a reasonable, good faith anticipation that an administrative finding will be made in the foreseeable future.

(5) When an allegation of misconduct by instructional personnel or school administrators, as defined in s. 1012.01, is received, if the alleged misconduct affects the health, safety, or welfare of a student, the district school superintendent in consultation with the school principal, or upon the request of the Commissioner of Education, must, at a minimum, immediately suspend the instructional personnel or school administrators from regularly assigned duties, with pay, and remove the suspended personnel or administrators from positions that may require direct contact with students in the district school system. Such suspension shall continue until submission of a legally sufficient complaint. The proceedings and determination of sanctions shall be completed by a school district within 1 year after submission of the legally sufficient complaint.

(6) Upon the finding of probable cause, the commissioner shall file a formal complaint and prosecute the complaint pursuant to the provisions of chapter 120. An administrative law judge shall be assigned by the Division of Administrative Hearings of the Department of Management Services to hear the complaint if there are disputed issues of material fact. The administrative law judge shall make recommendations in accordance with the provisions of subsection (7) to the appropriate Education Practices Commission panel which shall conduct a formal review of such recommendations and other pertinent information and issue a final order. The commission shall consult with its legal counsel prior to issuance of a final order.

(7) A panel of the commission shall enter a final order either dismissing the complaint or imposing one or more of the following penalties: (a) Denial of an application for a certificate or for an administrative or supervisory endorsement on a teaching certificate. The denial may provide that the applicant may not reapply for certification, and that the department may refuse to consider that applicant’s application, for a specified period of time or permanently. (b) Revocation or suspension of a certificate. (c) Imposition of an administrative fine not to exceed $2,000 for each count or separate offense. (d) Placement of the teacher, administrator, or supervisor on probation for a period of time and subject to such conditions as the commission may specify, including requiring the certified teacher, administrator, or supervisor to complete additional appropriate college courses or work with another certified educator, with the administrative costs of monitoring the probation assessed to the educator placed on probation. An educator who has been placed on probation shall, at a minimum: 1. Immediately notify the investigative office in the Department of Education upon employment or separation from employment in any public or private position requiring a Florida educator’s certificate. 2. Have his or her immediate supervisor submit annual performance reports to the investigative office in the Department of Education. 3. Pay to the commission within the first 6 months of each probation year the administrative costs of monitoring probation assessed to the educator. 4. Violate no law and fully comply with all district school board policies, school rules, and State Board of Education rules. 5. Satisfactorily perform his or her assigned duties in a competent, professional manner. 6. Bear all costs of complying with the terms of a final order entered by the commission. (e) Restriction of the authorized scope of practice of the teacher, administrator, or supervisor. (f) Reprimand of the teacher, administrator, or supervisor in writing, with a copy to be placed in the certification file of such person. (g) Imposition of an administrative sanction, upon a person whose teaching certificate has expired, for an act or acts committed while that person possessed a teaching certificate or an expired certificate subject to late renewal, which sanction bars that person from applying for a new certificate for a period of 10 years or less, or permanently. (h) Refer the teacher, administrator, or supervisor to the recovery network program provided in s. 1012.798 under such terms and conditions as the commission may specify. (i) Direct the department to place instructional personnel or school administrators on the disqualification list maintained by the department pursuant to s. 1001.10(4)(b) for conduct that would render the person ineligible pursuant to s. 1012.315 or sexual misconduct with a student. The penalties imposed under this subsection are in addition to, and not in lieu of, the penalties required for a third recruiting offense pursuant to s. 1006.20(2)(b).

(8) Violations of the provisions of a final order shall result in an order to show cause issued by the clerk of the Education Practices Commission if requested by the Department of Education. Upon failure of the educator, at the time and place stated in the order, to show cause satisfactorily to the Education Practices Commission why a penalty for violating the provisions of a final order should not be imposed, the Education Practices Commission shall impose whatever penalty is appropriate as established in s. 1012.795(6). The Department of Education shall prosecute the individual ordered to show cause before the Education Practices Commission. The Department of Education and the individual may enter into a settlement agreement, which shall be presented to the Education Practices Commission for consideration. Any probation period will be tolled when an order to show cause has been issued until the issue is resolved by the Education Practices Commission; however, the other terms and conditions of the final order shall be in full force and effect until changed by the Education Practices Commission.

(9) All moneys collected by, or awarded to, the commission as fees, fines, penalties, or costs shall be deposited into the Educational Certification and Service Trust Fund pursuant to s. 1012.59.

(10) A person on the disqualification list maintained by the department pursuant to s. 1001.10(4)(b) shall be notified that he or she may not serve or apply to serve as an employee or contracted personnel at a public school or private school that participates in a state scholarship program under chapter 1002. A person who knowingly violates this provision commits a felony of the third degree, punishable as provided in s. 775.082 or s. 775.083.

Legislative History

s. 758, ch. 2002-387; s. 74, ch. 2004-41; s. 22, ch. 2004-295; s. 156, ch. 2005-2; s. 33, ch. 2008-108; s. 19, ch. 2010-24; s. 9, ch. 2016-58; s. 34, ch. 2016-237; s. 55, ch. 2017-3; s. 40, ch. 2018-6; s. 13, ch. 2018-150; s. 11, ch. 2021-138; s. 11, ch. 2023-220.