STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BETTY CASTOR, Commissioner of ) Education, )

)

Petitioner, )

)

vs. ) CASE NO. 93-5697

)

JUDY C. KARPIS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on February 25, 1994, in Miami, Florida.

APPEARANCES

For Petitioner: Robert J. Boyd, Esquire

Bond & Boyd, P.A. Post Office Box 26

Tallahassee, Florida 32302

For Respondent: William Du Fresne, Esquire

Du Fresne & Bradley

2929 Southwest Third Avenue, Suite One Miami, Florida 33129

STATEMENT OF THE ISSUE

The issue presented is whether Respondent is guilty of the allegations contained in the Administrative Complaint filed against her, and, if so, what disciplinary action should be taken, if any.

PRELIMINARY STATEMENT

On August 17, 1993, Petitioner issued an Administrative Complaint, alleging that Respondent had violated the Principles of Professional Conduct for the Education Profession in Florida. Respondent timely requested a formal hearing regarding the allegations contained in that Administrative Complaint, and this cause was thereafter transferred to the Division of Administrative Hearings to conduct the formal proceeding.

Petitioner presented the testimony of Wendy M. Maisonet, Cassandra Edwards, Angel Gibson, Jonathan Wattley, Carolina E. Gonzalez, and, by way of late-filed deposition, Mildred Hernandez. The Respondent testified on her own behalf and presented the testimony of John A. Kissel. Additionally, Petitioner's Exhibits numbered 1 and 2 and Respondent's Exhibits numbered 1-6 were admitted in evidence.

Both parties submitted post-hearing proposed findings of fact in the form of proposed recommended orders. A specific ruling on each proposed finding of fact can be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Respondent holds Florida teaching certificate numbered 533966, covering the area of dental assistant on the vocational instructional level, which is valid through June 30, 1999. She holds a doctorate degree in community college teaching.

   
   

2. Respondent began teaching at Miami-Dade Community College in 1979 and began teaching in the Dade County School System in 1983. In January of 1984 she began teaching at North Miami Senior High School and still teaches classes in health occupations at that school.

   
   

3. At the start of the 1991-92 school year, Respondent was on maternity leave. She returned to work on April 1, 1992. Prior to Respondent's return to work, a substitute teacher was employed to cover Respondent's classes. The substitute teacher had never taught before. She telephoned Respondent several times a week for guidance and instructions. She did not have a code of conduct for students in the classes. The tests she administered to the classes were open book tests.

   
   

4. Wendy Maisonet was a student in Respondent's second period medical skills class. During the 1991-92 school year and for the several years prior thereto Wendy had been warned, reprimanded, counseled, and suspended on a number of occasions both for cutting classes and for exhibiting defiance of school authorities. Wendy liked the substitute teacher because the students were allowed to do what they wanted in that teacher's class.

   
   

5. When Respondent returned to work, she established a code of conduct for students in her classroom and enforced that code. Wendy did not like Respondent's methods of teaching, which included requiring the students to stay in their seats during class and not talk to each other.

   
   

6. On April 7, 1992, Respondent gave Wendy a notice of unsatisfactory progress. On May 13, 1992, Respondent gave Wendy a second notice of unsatisfactory progress. Wendy believed that she never gave Respondent any problems in that class because, as she testified, she mostly slept during Respondent's class or just sat there and did nothing.

   
   

7. On May 20, 1992, Wendy came to Respondent's class late. The class had already started when she came in. Wendy brought with her a petition which she had decided to circulate among the students in Respondent's second period class seeking to have Respondent fired because Wendy did not like Respondent's teaching methods or "her attitude." Wendy began circulating the petition during the class, which caused her to be in and out of her seat. She also talked back and forth with the other students, even those across the room from her, as the petition was being circulated.

   
   

8. Respondent directed Wendy to be quiet. Respondent directed Wendy to stay in her seat. Wendy ignored those instructions. Thereafter, Wendy got up from her seat and walked across the room to retrieve her petition from Jose Perez. She talked to Jose and then began to return to her seat.

9. As she was walking toward her seat with her petition in her hand, Respondent walked up to Wendy and took the paper from Wendy's hand. Respondent put the paper in her pocket, turned, and began walking away from Wendy.

   
   

10. Wendy went after her, fully intending to take the paper back from Respondent. With both hands, she grabbed Respondent and held Respondent so firmly that Respondent could not move her upper body. Wendy then began shaking Respondent violently. Respondent was squirming and trying to break away from Wendy but could not. Respondent pleaded with Wendy to let her go, to get away from her, and to stop hurting her. Wendy continued shaking Respondent and would not release her hold. Respondent began crying, and she became afraid. Her heart started racing, and she felt dizzy.

    
    

11. Respondent moved her head as though she were going to bite Wendy on the arm, and Wendy released her grip. Respondent did not bite Wendy. However, that trick made Wendy mad. She balled up her fists to punch Respondent, but one of the male students got between Wendy and Respondent. He stopped Wendy from striking Respondent and told Wendy to leave the classroom. Wendy then called Respondent "a fucking bitch", packed up her books, and left the classroom to go to the principal's office to complain about Respondent.

    
    

12. Respondent summoned administrative personnel and the police. The police officer who arrived immediately after Wendy attacked Respondent interviewed both Respondent and Wendy. He examined Wendy's arms after Wendy accused Respondent of biting her, but Wendy's arms had no marks on them. At the final hearing, although Wendy testified that Respondent bit her, she admitted that it did not hurt and it did not leave a mark.

    
    

13. On the other hand, Respondent showed administrative staff at the school the red marks on her upper arms caused by Wendy grabbing Respondent and holding her against her will. Those marks were still visible on Respondent's arms hours after the attack.

    
    

14. Wendy was suspended for five days for her battery on Respondent. Wendy never returned to Respondent's class; instead, she had her mother come to the school and remove Wendy from that class.

    
    

15. Respondent is 5 feet 4 inches tall. Wendy is 5 feet 8 1/2 inches tall. Wendy is quite overweight. Although Wendy testified she was not as overweight during the 1991-92 school year and only weighed 190 pounds at the time that she physically assaulted Respondent, the police report made on that date lists Wendy's weight as 237 pounds.

    
    

16. Approximately a week to ten days after the attack, Respondent asked Mildred Hernandez, one of her second period students, to step outside the classroom so Respondent could speak to her for a moment. Respondent asked her if she had seen what happened on May 20, 1992. Mildred told Respondent what she had seen and also told Respondent that she had not been asked for a statement as part of the school's investigation. Respondent asked her if she would go to the assistant principal's office and tell the assistant principal what she had seen. Mildred told Respondent that she did not want to get involved and that the class was taking a test that period. Respondent gave her a pass to go to the principal's office and told her not to worry about the test because Respondent would give her an "A" on the test as long as she was at the assistant principal's office giving a statement.

17. Respondent never asked Mildred to change her testimony. Respondent specifically asked her to tell the assistant principal truthfully what she had seen. By going to the assistant principal's office to give the statement, Mildred missed the rest of Respondent's class period and missed the beginning of her next class that day.

    
    

18. Respondent knew that Mildred was an excellent student and did not think it was fair to make her miss the exam and then take a make-up exam when giving a statement was the reason for missing the exam.

    
    

19. The substance of Mildred's statement and subsequent testimony was not related to receiving an "A" on that examination. After she gave her statement to the assistant principal, Respondent never discussed her statement with her, never asked her what had happened when she went to the assistant principal's office, and never again discussed the events of May 20, 1992, with her.

    
    

20. Before Respondent returned to work from her maternity leave, Mildred had been receiving "A"s and "B"s in that class. For the nine-week grading period between Respondent's return to work and the end of the school year, Mildred received a "B" in Respondent's class.

    
    

    CONCLUSIONS OF LAW

    
    

21. The Division of Administrative Hearings has jurisdiction over the parties hereto and the subject matter hereof. Section 120.57(1), Florida Statutes.

    
    

22. The Administrative Complaint in this cause alleges that Respondent and Wendy became engaged in a physical altercation during which Respondent bit Wendy on the left arm; that during the investigation conducted by the Dade County Public Schools, Respondent discussed the case with students and offered to give a student a favorable grade or favorable treatment if the student would testify against Wendy; and that Respondent received a letter of reprimand from the principal of her school for interfering in a personnel investigation. The Administrative Complaint alleges, therefore, that Respondent has violated two of the Principles of Professional Conduct for the Education Profession in Florida, as set forth in Rule 6B-1.006(3)(a) and (e), Florida Administrative Code, thereby violating Section 231.28(1)(h), Florida Statutes. That statutory section relates to delinquent child support obligations, and it is assumed that Petitioner intended to allege a violation of Section 231.28(1)(i), Florida Statutes, which does prohibit violating the provisions of law or rules of the State Board of Education, the penalty for which is the revocation of a teaching certificate. Petitioner has failed to prove the allegations in the Administrative Complaint by clear and convincing evidence.

    
    

23. Factually, Respondent and Wendy did not become "engaged in a physical altercation"; rather, Wendy physically attacked Respondent as Respondent was walking away from her and forcibly held Respondent against her will while violently shaking her. When Respondent tricked Wendy into letting go of her, Wendy, by her own testimony, balled up her fists to punch Respondent but was prevented from doing so by a male student who placed himself between Wendy and Respondent and ordered Wendy to leave the room. No witness testified that Respondent offered to give any student a favorable grade or favorable treatment for testifying against Wendy. Respondent and Mildred Hernandez both testified that Respondent asked Hernandez to give a statement as to what Hernandez had seen to the assistant principal and that Respondent told Hernandez that she should tell the truth. Respondent did tell Hernandez that she would receive an

    "A" on the test which Respondent caused Hernandez to miss. Finally, Petitioner's allegation that Respondent received a letter of reprimand from her principal, citing her for interfering in a personnel investigation, ignores the uncontroverted evidence that the reprimand had been challenged through the grievance procedures in place with the Dade County Public Schools and had not been resolved by the time of the final hearing in this cause.

    
    

24. The Administrative Complaint contains three counts alleging statutory and rule violations. The third count alleges that Respondent violated Rule 6B- 1.006(3)(e), Florida Administrative Code, by exposing a student to unnecessary embarrassment or disparagement. The Administrative Complaint does not name the student alleged to have been unnecessarily embarrassed or disparaged. During the final hearing Petitioner did ask Wendy if she had been embarrassed, and Wendy said that she had not been. Petitioner offered no other evidence as to any other student being unnecessarily embarrassed or disparaged and has, therefore, failed to offer any evidence to prove that Respondent violated Rule 6B-1.006(3)(e).

    
    

25. The second count of the Administrative Complaint alleges that Respondent violated Rule 6B-1.006(3)(a), Florida Administrative Code, in that Respondent failed to make a reasonable effort to protect students from conditions harmful to learning, physical health, mental health, or safety. Petitioner does not specify which conditions form the basis for that allegation. The evidence is uncontroverted that Respondent was engaged in a reasonable effort to gain a student's compliance with reasonable rules of conduct and stop disrupting the class. Respondent retrieved a paper the student was passing around the classroom and was walking away when the student physically attacked her. The credible evidence is that Respondent did not bite Wendy. Even if Respondent had bitten Wendy, that act would have taken place at a time when Respondent was being physically hurt and held against her will while being violently shaken, and would have constituted a reasonable act in self-defense. As the facts indicate, Respondent's moving her head toward Wendy's arm to make Wendy think Respondent was going to bite her caused Wendy to release her hold on Respondent and enabled a male student to step in front of Wendy and prevent Wendy from using her fists on her teacher. Petitioner has offered no credible evidence in support of the allegation that Respondent violated Rule 6B- 1.006(3)(a), Florida Administrative Code.

    
    

26. The first count of the Administrative Complaint alleges that Respondent violated Section 231.28(1)(h), Florida Statutes, by violating the provisions of law or rules of the State Board of Education. Since Petitioner failed to prove that Respondent violated any provision of law or any rule of the State Board of Education, then, a fortiori, Petitioner failed to prove that Respondent violated Section 231.28(1)(h), Florida Statutes.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent not guilty and

dismissing the Administrative Complaint filed against her in this cause.

DONE and ENTERED this 24th day of June, 1994, at Tallahassee, Florida.

LINDA M. RIGOT

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 24th day of June, 1994.

APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 93-5697

1. Petitioner's proposed findings of fact numbered 1-3, 7 and 11 have been adopted either verbatim or in substance in this Recommended Order.

2. Petitioner's proposed findings of fact numbered 4-6, 8-10, 13 and 14 have been rejected as not being supported by the weight of the competent evidence in this cause.

3. Petitioner's proposed finding of fact numbered 12 has been rejected as being irrelevant to the issues under consideration in this cause.

4. Respondent's proposed findings of fact numbered 1-17, 19-21, 23, and 25-27 have been adopted either verbatim or in substance in this Recommended Order.

5. Respondent's proposed findings of fact numbered 18, 22, and 24 have been rejected as not being supported by the weight of the competent evidence in this cause.

6. Respondent's proposed finding of fact numbered 28 has been rejected as not constituting findings of fact but rather as constituting argument of counsel.

COPIES FURNISHED:

Robert J. Boyd, Esquire Bond & Boyd, P.A.

Post Office Box 26 Tallahassee, Florida 32302

William Du Fresne, Esquire Du Fresne & Bradley

2929 Southwest Third Avenue, Suite One Miami, Florida 33129

Karen B. Wilde, Executive Director Education Practices Commission

The Florida Education Center, Room 301

325 West Gaines Street Tallahassee, Florida 32399

Jerry Moore, Administrator Professional Practices Services

352 Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 93-005697

Orders for Case No: 93-005697