16-002266PL Pam Stewart, As Commissioner Of Education vs. Louis Klapper Status: Closed Recommended Order on Thursday, December 15, 2016.

Summary: Commissioner did not prove by clear and convincing evidence that teacher should be suspended or otherwise disciplined for calling students names.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PAM STEWART, AS COMMISSIONER OF

EDUCATION,

Petitioner,

vs. Case No. 16 - 2266PL

LOUIS KLAPPER,

Respondent.

_______________________________/

RECOMMENDED ORDER

On September 30, 201 6, Administrative Law Judge J. Lawrence

Johnston held the final hearing in this case by video

teleconference between site s in Orlando and Tallahassee.

APPEARANCES

For Petitioner: Ron Weaver, Esquire

Post Office Box 770088

Ocala, Florida 34477 - 0088

For Respondent: Melissa C. Mihok, Esquire

Melissa C. Mihok, P.A.

Suite 445

201 East Pine Street

Orlando, Florida 32801

STATEMENT OF THE ISSUE

The issue in t his case is whether the Education Practices

Commission should revoke or otherwise discipline the RespondentÓs

educator certificate for allegedly making disparaging or

embarrassing comments to and about students in his classroom,

including calling them idio ts or dumb.

PRELIMINARY STATEMENT

In October 2015, the Petitioner filed an Administrative

Complaint charging the Respondent with violations of Florida

Administrative Code Rules 6A - 10.081(3)(a) ( failure to make

reasonable effort to protect students from con ditions harmful to

learning and/or to studentsÓ mental and/o r physical health and/or

safety) and (3) (e) ( intentionally exposing students to

unnecessary embarrassment or disparagement ) . The Respondent

disputed the ch arges and asked for a hearing.

At the fi nal hearing, Joint Exhibits 1 through 10 were

received in evidence. The Petitioner called one high school

administrator, five former high school students, and the mother

of one of the former students. The PetitionerÓs Exhibit 1 also

was admitted in evide nce. After the Petitioner res ted, the

Respondent testified.

After the evidence was presented, the parties were given ten

days from the filing of the Transcript of the hearing to file

proposed recommended orders. The Transcript was filed on

November 4, an d the proposed recommended orders have been

considered.

FINDING S OF FACT

1. The Respondent has a bachelorÓs degree in astrophysics

and a masterÓs degree in physics from the University of Central

Florida. He has worked for Disney WorldÓs education progr ams and

at the Orlando Science Center. When he decided to go into

teaching, he got a temporary certificate in February 2013. He

started teaching at East River High School in Orange County in

April 2013 , as an end - of - the - year replacement. When he complet ed

his masterÓs degree, the certificate was made permanent, and he

holds Florida Educator Certificate 1191412 in the area of

physics, valid through June 30, 2019. He was hired as a full -

time science teacher at E ast River in the fall of 2013.

2. In Septem ber 2013 , a student complained that the

Respondent insulted the school band and some of its members. The

Respondent wrote a letter in response to the charge in which he

denied any knowledge of what he might have said to insult any

student or disparage any extracurricular activity of any student

and absolutely denied any intent to insult or disparage the band

or any band member. He also made an impassioned statement of his

deep concern for his students and of the many ways in which he

had been supporting t he extracurricular activities of his

students. The only other evidence on the subject was in the form

of hearsay statements written by students who did not testify.

Some of the students wrote that they never heard the alleged

insults and disparagements. The evidence was insufficient to

support a finding that there were any insults or disparagements.

3. The September 2013 band complaint was found by the

school administration to be unconfirmed. Nonetheless, the

Respondent was given a letter of guidance, also called a

directive to: exercise good judgment when engaging in

discussions with students; use positive, encouraging comments to

motivate and inspire students; take appropriate measures in

discussions with students, so as not to expose a student to

un necessary embarrassment or disparagement; and protect all

students from conditions harmful to learning and mental and/or

physical harm. A letter of guidance or directive is not

disciplinary in nature.

4. In January 2014 , a female student complained that the

Respondent made her feel uncomfortable by standing close to her

and by staring at her chest. The only evidence on the subject

was in the form of hearsay statements written by students who did

not testify. The evidence was insufficient to support a fi nding

of fact in this case. Nonetheless, the January 2014 complaint

was found by the school administration to be confirmed, and the

Respondent was given another letter of guidance or directive to:

consider in advance how to respond to various situations

involving students and always maintain respectful distance so as

not to invade personal space of individual students; and exercise

care and professional judgment when engaging with students so

that others would not perceive or misinterpret his behavior as

inappropriate.

5. No other incidents came to the attention of the schoolÓs

administration until May 27, 2014. Meanwhile, the RespondentÓs

performance as a teacher for 2013/2014 was evaluated by the

schoolÓs administ ration to be highly effective.

6. On May 27, 2014, a student named Tanner Hearn complained

to the schoolÓs administration that the Respondent had been

unfair, mistreated him, made negative comments ab out him, and

called him names.

7. The Tanner Hearn complaint was triggered by events

beginn ing at the end of April or early May of 2014. Tanner

wanted to raise a grade he got on one of his assignments. His

mother, who is a teacher, suggested that Tanner ask the

Respondent if he could redo the assignment. The Respondent

refused because the ass ignment was 2 - 3 weeks late.

8. After the refusal, Tanner told his mother that the

Respondent had allowed other students to redo assignments to

raise their grades. TannerÓs mother advised Tanner to ask again.

The Respondent again refused. After the seco nd refusal, now

believing the Respondent was treating her son unfairly, TannerÓs

mother advised him to e - mail the Respondent, which he did three

times. Each communication with the Respondent was more demanding

than the last. Finally, TannerÓs mother e - ma iled the Respondent

to support her son and strongly suggest ed that the Respondent let

Tanner redo the assignment rather than make them set up a parent -

teacher meeting with guidance and the schoolÓs administration.

The Respondent defended himself and refus ed to budge.

9. The Respondent testified that his policy on redoing

assignments evolved during the school year. Earlier in the year,

he allowed student assignments to be reopened after the due date.

Later, he settled on a policy that requests to redo an assignment

had to be made before the due date. He testified that Tanner

knew the policy and acknowledged it during a discussion they had

earlier in the school year when Tanner was considering dropping

physics.

10. In late May 2014, when Tanner and his f riends were at

his house discussing the RespondentÓs perceived unfairness

towards him, the discussion turned to negative comments and name -

calling by the Respondent directed towards Tanner previously

during the school year. TannerÓs mother overheard the

d iscussion. She thought the negative comments and name - calling

were inappropriate and evidence of the RespondentÓs unfairness

towards her son. Mrs. Hearn called East RiverÓs assistant

principal, whom she knew personally, to complain and demand that

someth ing be done. This triggered a n investigation by the

school.

11. As part of the investigation, the schoolÓs

administration interviewed numerous students to see if they ever

heard the Respondent call any student derogatory names or

embarrass or disparage t hem. Some students answered in the

affirmative and reported what they remembered hearing. Ot hers

answered in the negative.

12. Rachel Johnson, one of the students who reported

hearing the Respondent call Tanner names, also stated that the

Respondent emb arrassed her by insulting her religion in the

course of a discussion about a film he showed in class. The

schoolÓs administration investigated this new charge as well.

Several students gave statements saying no improper commentary

occurred. No other stu dent statement s corroborated the new

charge.

13. In her statement to the schoolÓs administration, Rachel

Johnson also complained that the Respondent gave exams early,

contrary to school policy. No other student statements or

te stimony supported this char ge.

14. The school concluded its investigations in late August

2014. The schoolÓs administration found that the Tanner Hearn

and Rachel Johnson charges were confirmed by the investigation.

The Respondent was given another letter of guidance or directive ,

this time accompanied by a reprimand, for failure to follow the

approved exam schedule, improper use of video, and negative

comments made to students. The Respondent testified that he

disputed the reprimand and it was withdrawn, but there was no

other e vidence that it was withdrawn.

15 . In December 2014 , Rachel Johnson gave another

statement, which included a charge that the Respondent called her

a dumb blonde and a stereotypical female. No witness statements

corroborated this charge. Rachel Johnson t estified in support of

the charge. There was no other testimony or evid ence in support

of the charge.

16 . Only a few of the students who gave written statements

testified at the hearing. Several testified that on occasion the

Respondent would call certa in students names like idiot, jackass,

and stupid. They testified that the Respondent seemed to do this

mostly to the three football players in the class, especially

Tanner Hearn. There also was testimony that the Respondent would

sometimes ask for a vol unteer to answer a question but say

something like, Ðanyone but Tanner si nce he wonÓt know the

answer.Ñ

17 . The context of these kinds of comments by the

Respondent was not clear from the evidence. Probably, some were

made out of anger or frustration aft er Tanner disrupted the class

or acted out. Some were made jokingly as part of banter back and

forth.

18 . The impact of these kinds of comments by the Respondent

on Tanner and the other students also was not clear from the

evidence. No student complaine d about them at the time they were

made. Often, Tanner would appear to shrug them off and say

something like, Ðha, ha, very funny.Ñ Tanner testified that,

however he may have responded at the time, he was affected by the

comments, and they made him less likely to participate in class.

Some of the students testified that the comments were not made in

a joking manner and that they were embarrassed for Tanner and

sometimes said to him something like, ÐI canÓt believe he said

that to you.Ñ

19 . Rachel Johnso n testified in support of her anti -

religion and dumb blonde charges. There was no other testimony

in support of those charges . The Respondent denied them.

20 . After the investigations began in May 2014, TannerÓs

demeanor and attitude towards school chan ged markedly. Before

the investigations, he was a good if not a model student. He had

a positive and enthusiastic attitude about school earlier in the

year, especially during football season. During the

investigations, he seemed to some to be quieter an d less

enthusiastic. In his motherÓs words, the controversy of the

investigations put a damper on the last few weeks of the school

year.

21 . The precise reason for TannerÓs change of attitude

towards school during the investigations is not clear. He and

his mother agreed that he was not confrontational, and he did not

want his mother to complain to the school. In addition, Tanner

soon found himself the subject of another investigation. When

the Respondent started hearing rumors that Tanner was telling

other students he was going to get the Respondent fired, the

Respondent told the schoolÓs administration and asked for an

investigation. Tanner testified that he asked the schoolÓs

administration what he should do at that point that he was

advised to stop talking about the investigations. These

developments may have been factors in TannerÓs change of demeanor

at the end of the school year.

22 . The Respondent testified that he was not guilty of any

of the charges. East RiverÓs assistant principal testifi ed that

the Respondent admitted to her during the investigation that he

called Tanner Hearn an ÐidjioutÑ (a variation of the word idiot).

The Respondent testified that he did not r emember making that

admission.

23 . The evidence was clear and convincing t hat the

Respondent called Tanner and other students names like idiot,

jackass, or stupid on occasion during the course of the 2013/2014

school year. Sometimes this was done out of anger or frustration

after Tanner disrupted the class or acted out. Someti mes the

words were spoken loud enough to be overheard . Sometimes, it was

done in a joking manner, as part of banter back and forth. The

evidence was not clear and convincing that the Respondent

reasonably knew or should have known that the student involv ed

would be embarrassed or humiliated.

24 . None of the other charges against the Respondent were

proven by clear and convincing evidence.

25. The Respondent continued teaching at East River during

the 2014/2015 school year. The schoolÓs administration evaluated

the RespondentÓs performance as a teacher for the 2014/201 5

school year to be effective.

26 . The Respondent did not return to teaching after the

2014/2015 school year because the investigations and their

outcomes took a toll on him and he felt b urnt out on teaching.

CONCLUSIONS OF LAW

27 . Section 1012.795(1)(j), Florida Statutes (2013),

provided that a certified educator can be disciplined for

violating the Principles for Professional Conduct for the

Education Profession set out in rules adopted by the State Board

of Education.

28 . Florida Administrative Code Rule 6A - 10.081(3) set out

Principles for Professional Conduct for the Education Profession.

Paragraph (a) required that educators make a reasonable effort to

protect students from conditio ns harmful to learning and/or to

studentsÓ mental and/or physical health and/or safety. Paragraph

(e) prohibited educators from intentionally exposing students to

unnecessary e mbarrassment or disparagement.

29 . In a penal proceeding, the prosecutor must prove the

allegations and charges by clear and convincing evidence. Dep't

of Banking & Fin. v. Osborne Stern & Co. , 670 So. 2d 932 (Fla.

1996); Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987).

30 . Clear and convincing evidence "requires more proof than

a 'preponderance of the evidence' but less than 'beyond and to

the exclusion of a reasonable doubt.'" In re Graziano , 696

So. 2d 744, 753 (Fla. 1997). As stated by the Florida Supreme

Court, the standard:

[E]ntails both a qualitative and quantitative

st andard. The evidence must be credible; the

memories of the witnesses must be clear and

without confusion; and the sum total of the

evidence must be of sufficient weight to

convince the trier of fact without hesitancy.

In re Davey , 645 So. 2d 398, 404 (Fl a. 1994) (citing, with

approval, Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA

1983)); see also In re Henson , 913 So. 2d 579, 590 (Fla. 2005).

"Although this standard of proof may be met where the evidence is

in conflict, it seems to preclude evi dence that is ambiguous."

Westinghouse Elec tric Corp. v. Shuler Bros. , 590 So. 2d 986, 989

(Fla. 1991).

31 . In this case, the Petitioner proved by clear and

convincing evidence that the Respondent called Tanner Hearn and

other students names like idiot, jackass, and stupid on occasion

during the course of the 2013/2014 school year. It was not

proven by clear and convincing evidence that, in doing so, the

Respondent failed to make a reasonable effort to protect the

students involved from conditions harmfu l to learning and/or to

studentsÓ mental health and/or to studentsÓ and/or physical

health and/or safety. Specifically, no conditions harmful to

learning and/or to studentsÓ mental health and/or to studentsÓ

and/or physical health and/or safety were prove n. It was not

proven by clear and convincing evidence that the Respondent

intentionally exposed students to unnecessary e mbarrassment or

disparagement.

32 . The Petitioner takes the position that the violations

were proven and that the Respondent should b e suspended from

teaching for two years. Assuming violations were proven, a two -

year suspension would be within the extremely wide range of

suggested discipline set out in Florida Administrative Code

Rule 6B - 11.007(2)(i)22. (Rev. Apr. 2009) Ï from probatio n to

revocation for a first - time offense, which provides virtually no

guidance for a first offense. In addition, paragraph (3) of the

rule allows for a deviation from the range of suggested

discipline based on aggravating and mitigating factors. In any

e vent, even assuming the violations were proven, East River and

the Orange County school district only saw fit to reprimand the

Respondent. He continued to teach effectively at East River for

another year. There is no valid reason for the Education

Practi ces Commission to suspend the Respondent from teaching at

all, much less for two years, or even to duplicate the reprimand

he already has received from the school district.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it i s RECOMMENDED that the Education Practices Commission

enter a final order dismissing the Administrative Complaint.

DONE AND ENTERED this 15th day of December , 2016 , in

Tallahassee, Leon County, Florida.

S

J. LAWRENCE JOHN STON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrat ive Hearings

this 15th day of December , 2016 .

COPIES FURNISHED:

Gretchen Kelley Brantley, Executive Director

Education Practices Commission

Department of Education

Turlington Building, Suite 316

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

( eServed)

Melissa C. Mihok, Esquire

Melissa C. Mihok, P.A.

Suite 445

201 East Pine Street

Orlando, Florida 32801

(eServed)

Ron Weaver, Esquire

Post Office Box 770088

Ocala, Florida 34477 - 0088

(eServed)

Matthew Mears, General Counsel

Department of Educ ation

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Marian Lambeth, Bureau Chief

Bureau of Professional Practices Services

Department of Education

Turlington Building, Suite 224 - E

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

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 wit h the agency that

will issue the Final Order in this case.