19-005851PL Richard Corcoran, As Commissioner Of Education vs. Carmen Komninos Status: Closed Recommended Order on Thursday, March 26, 2020.

Summary: Commissioner did not prove that teacher forcefully grabbed two students by the arms or failed to make reasonable efforts to protect the students from conditions harmful to learning, mental and physical health, or safety.

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. 19 - 5851PL

vs.

C ARMEN K OMNINOS ,

Respondent .

/

R ECOMMENDED O RDER

The final hearing in this matter was conducted before Administrative Law

Judge Andrew D. Manko of the Division of Administrative Hearings

(ÑDOAHÒ), pursuant to sections 120.569 , 120.57(1), and 1012.796(6), Florida

Statutes (201 8 ) , on Ja nuary 27, 2020 , in Naples , Florida.

A PPEARANCES

For Petitioner: Ron Weaver, Esquire

Post Office Box 770088

Ocala, Florida 34477 - 0088

For Respondent: Robert J. Coleman, Esquire

Coleman and Coleman

Post Office Box 2089

Fort Myers, Florida 33902 - 2089

S TATEMENT OF T HE I SSUES

The issue s to be determined are w hether the Florida e ducatorÔs c ertificate

of Respondent, Carmen Komninos, is subject to discipline for violating section

1012.795(1)(j), Florida Statutes, and Florida Administrative Code Rule 6A -

10 .081(2)(a)1, as alleged in the Administrative Complaint , and, if so, the

appropriate penalty therefor .

P RELIMINARY S TATEMENT

On September 5, 2019, Petitioner Richard Corcoran, as Commissioner of

Education (ÑCommissionerÒ), issued an Administrative Complain t alleging

that Ms. Komninos grabbed two students by the arms forcefully, in violation

of the Principle of Professional Conduct requiring her to make reasonable

efforts to protect students from conditions harmful to their learning, mental

and physical heal th, and safety. The Commissioner sought discipline within

the range of a written reprimand to revocation of her educatorÔs certificate .

On September 20, 2019, Ms. Komninos answered the Administrative

Complaint, denied the material allegations, and timely requested an

administrative hearing. The Commissioner referred the matter to DOAH for

assignment of an Administrative Law Judge to conduct an eviden tiary

hearing under chapter 120.

The final hearing occurred on January 27, 2020. The Commissioner

prese nted the testimony of six witnesses: (1) Andrei Ghelman, the Collier

County School DistrictÔs (ÑSchool DistrictÒ) coordinator for secondary schools

and human resources; (2) Harry Kasten, the principal of Cypress Palm

Middle School (ÑSchoolÒ) at the time of the alleged misconduct; (3) Melissa

Coleman , the SchoolÔs assistant principal; (4) B.T., III (ÑB.T.Ò), a student

allegedly grabbed by Ms. Komninos; (5) B.T., Jr., B.T.Ôs father; and (6) C.M., a

student allegedly grabbed by Ms. Komninos . PetitionerÔs Exhib its 1 through

15 were admitted into evidence over RespondentÔs hearsay objections to

PetitionerÔs Exhibits 10 through 14. PetitionerÔs Proposed Exhibit 16 Ð a

handwritten letter signed by several non - testifying students complaining

about Ms. Komninos Ð was exc luded on foundational and relevancy grounds.

Ms. Komninos testified on her own behalf and presented the testimony of

Corporal Luis Soto, the SchoolÔs youth relations deputy at the time of the

alleged misconduct. RespondentÔs Exhibits 1 and 2 were admitte d into

evidence over the CommissionerÔs hearsay objections.

A one - volume Transcript of the final hearing was filed on February 26,

2020 . T he parties timely filed their Proposed Recommended Orders

(ÑPROsÒ), which were duly considered in preparing this Recommended Order.

All references to the Florida Statutes and the Florida Administrative Code

are to the 2018 versions, none of which have been materially amended since.

In making the findings below, the undersigned only considered hearsay

evidence that either supplemented or explained other evidence or would be

admissible over objection in civil actions. § 120. 57(1)(c), Fla. Stat. To protect

the privacy of the minor students, they are referred to herein by their initials.

F INDINGS OF F ACT

1. Ms. Komnino s holds Florida EducatorÔs Certificate No. 985529, which

covers Elementary Education, English for Speakers of Other Languages

(ESOL) , and World Language Ï Spanish , and is valid through June 2021.

2. Ms. Komninos began her 42 - year career as an educator in N ew Jersey.

She moved to Florida in 2006 and started working for the School District. She

primarily taught Spanish at the School from 2007 until she retired in 2019.

3. During the 2017 - 2018 school year, Ms. Komninos served as a Spanish

teacher and taught B. T. and C.M., among other students.

4. The Administrative Complaint focuses on two separate incidents in

which Ms. Komninos allegedly grabbed B.T. and C.M. by their arms. Neither

B.T. nor C.M. reported the alleged incidents to the School when they

happened . Rather, they only disclosed them during the SchoolÔs investigation

of complaints made by other students.

5. That investigation began on March 22, 2018, when a teacher received

the following two documents from an unidentified student: (1) a handwritten

l etter of unknown origin purportedly signed by several students complaining

about Ms. Komninos 1 ; and (2) a copy of a photograph posted to Snapchat.

6. The photograph clearly depicts Ms. Komninos standing behind B.T. and

holding onto his left arm with both of her hands. She does not appear to be

exerting any force. B.T. is facing away from her and clearly smiling. The

photograph contained the following two captions:

how aggressive

Hey Look! ÑLos noviosÒ

The use of the cry - laughing emoji multiple times seems to reflect that the

students who posted the photograph found the incident humorous. But, the

record contains neither evidence as to who took the photograph, posted it to

Snapchat, or drafted the captions, nor evidence as to when that occurred.

7. The teacher brought the documents to a guidance counselor who gave

them to the assistant principal. The assistant principal brought them to the

principal and Corporal Soto, the SchoolÔs youth relations deputy.

8. The principal notified the School District and immediately removed

Ms. Komninos from teaching duties pending the investigation. Mr. Ghelman,

the School DistrictÔs coordinator for secondary schools and human resources

at the time, directed the principal to obtain statements from the students.

9. In his statement, B.T. acknowledged that he got out of his seat to

sharpen his pencil after being told not to do so by Ms. Komninos and then

refused to heed her directive to sit down. At that point, she grabbed his arm

and tried to pull him back into his sea t while his classmates yelled.

1 The record is silent as to the letterÔs author, no student who signed i t testified, and it

focuses on allegations beyond the scope of the Administrative Complaint. Thus, the

undersigned excluded the letter and has not relied on it in making any finding of fact.

10. In her statement, C.M. indicated that she got up out of her seat to

throw a piece of paper in the recycling bin and did so w ithout permission

because Ms. Komninos did not have a rule requiring them to ask first. C.M.

sta ted that Ms. Komninos approached her at the recycling bin, grabbed her

arm forcefully, and pushed her down to pick up the paper from the bin. C.M.

said she picked up the paper and walked back to her desk.

11. In their written statements, neither B.T. nor C.M. indicated when

their respective incidents occurred or stated that they suffered (or could have

suffered) any harm.

12. Upon receipt of the statements, Mr. Ghelman met with Ms. Komninos.

Contrary to C.M.Ôs statement, Ms. Komninos confirmed that she re quired the

students to ask permission before getting up from their seats. She also said

that she never placed her hands on a student. When shown the photograph,

she ultimately agreed that it depicted her and B.T., but she did not recall the

incident. She n oted that she met with B.T.Ôs parents earlier that year to

address B.T.Ôs struggles in her class. As to C.M., Ms. Komninos recalled the

incident, but said that she never pushed C.M. and only told her to sit down

when she got up without permission.

13. Ar ound the same time, Corporal Soto interviewed B.T. B.T. conceded

that he wrongly got up without permission and refused to sit after being told

to do so. B.T. said that, at that point, Ms. Komninos grabbed his arm to

prevent him from continuing to walk towa rds the pencil sharpener and he

went back to his seat. B.T. confirmed he suffered no injuries.

14. Corporal Soto contacted B.T.Ôs father , who did not know about the

incident. A fter viewing the photograph and speaking to his son, he informed

Corporal Soto that they did not want to press charges. However, he remained

concerned because he had met with Ms. Komninos and the guidance

counselor before the incident to address concerns with her teaching style.

15. In early April 2018, the principal met with B.T., his father, and

Ms. Komninos. B.T.Ôs father wanted to ensure that Ms. Komninos would not

treat his son differently if she returned to the class. She apologized for the

incident and promised to help B.T. with the class. The principal believed that

B.T.Ôs pa rents accepted the apology and welcomed her assistance.

16. On April 18, 2018, after concluding its investigation, the School

District suspended Ms. Komninos for one day without pay. She accepted the

discipline and returned to the classroom. B.T.Ôs father confirmed that she

treated B.T. fairly and that he passed her class.

17. Notwithstanding the discipline already imposed, the Commissioner

conducted its own investigation and obtained additional written statements

from the students in November 2018.

18. I n B.T.Ôs statement, he indicated that he stood up to sharpen his pencil

during a test, after Ms. Komninos told him he could not do so, and she then

grabbed his arm and pulled to get him back to his seat. This statement

largely mirrored the one he gave in M arch 2018.

19. In C.M.Ôs statement, she indicated that Ms. Komninos forcefully

grabbed her arm when she got up to throw away trash, pulled her, and told

her to return to her seat. C.M. did not believe she needed permission since

they were doing independent study. She was upset that Ms. Komninos

grabbed her, instead of asking her to sit down. This statement conflicted with

the one she gave in March 2018, in which she never accused Ms. Komninos of

pulling her.

20. Much like their first statements, neither B.T . nor C.M. indicated when

their respective incidents occurred or stated that they suffered (or could have

suffered) any harm.

21. Several other students also submitted statements, though none of

them testified at the hearing. A.A. indicated that B.T. got o ut of his seat after

the bell rang, at which point Ms. Komninos grabbed B.T.Ôs arm and would not

allow him to leave until he handed in his work. M.C. indicated that

Ms. Komninos grabbed B.T.Ôs arm and pulled him over to her desk. C.R.

indicated that Ms. Ko mninos grabbed C.M.Ôs wrist and pulled her to the front

of the room, yelling that she would not give C.M. respect without it being

returned. Most of these accounts conflicted with the details described in the

statements of B.T. and C.M.

22. In the meant ime, Ms. Komninos continued teaching at the School until

her retirement in July 2019. Upon her retirement, the School District issued

a ÑResolution in Recognition of Outstanding Service Leading to RetirementÒ

to recognize her excellent service, contributio ns to the School District, and

devotion to the school system. The resolution recognized that Ms. Komninos

served the School District in a meritorious, faithful, and outstanding manner.

23. The honor bestowed on her is not surprising. The principal who

eva luated Ms. KomninosÔs performance for many years, including at the time

of the alleged incidents, believed she was a strong educator, a hard worker,

and a rule follower based on his observations of her in the classroom.

According to him, she c learly commun icated her rules to the students , had a

great rapport with them, and maintained control over the classroom.

24. After Ms. Komninos already had been disciplined by the School,

received an award from the School District for her years of dedicated service,

a nd retired from teaching, the Commissioner issued its Administrative

Complaint seeking to discipline her educatorÔs certificate as a result of the

two incidents. Specifically, the Commissioner alleged that she violated the

Principle of Professional Conduct requiring her to make reasonable effort s to

protect the students from conditions harmful to their learning, mental and

physical health, and/or safety. In its PRO, the Commissioner seeks to issue a

letter of reprimand, place Ms. Komninos on probation for t wo years, and levy

a $750 fine against her.

25. Only three witnesses who were in the classroom when the incidents

allegedly occurred testified at the hearing Ð B.T., C.M., and Ms. Komninos.

26. Ms. Komninos generally explained that she required students to raise

their hands before getting out of their seat for any reason. They knew the

rules because she wrote them on the bulletin board and repeated them

verbally. However, some of the students pushed the envelope.

27. As to the incident concerning B.T., Ms. K omninos credibly testified

that she did not recall the incident even after seeing the photograph, which

she agreed depicted her holding onto B.T.Ôs arm. She said the same thing to

both the principal and Mr. Ghelman during the investigation. She credibly

ex plained that the photograph must have been taken in the Fall of 2017

based on the items posted on the cabinet doors in the background. She agreed

that she met with the principal and B.T.Ôs father after the investigation

began, reassured them that she would harbor no ill will towards B.T., and

offered to help him better his grade. The undersigned credits Ms. KomninosÔs

testimony and found her to be forthcoming and truthful.

28. B.T. testified that he thought the incident occurred within a month or

two before the March 2018 investigation. He explained that Ms. Komninos

would not allow him to sharpen his pencil during a test, so he violated her

rules and got up without permission. Instead of walking to the back of the

room to the sharpener, he started walking t o the front. Ms. Komninos then

grabbed his arm to stop him from walking. She held onto his arm for a matter

of seconds and let go. He initially confirmed that she never pulled him back

into his seat, contrary to his prior written statements, but later waiv ered and

agreed that his memory was better back then.

29. B.T. confirmed that he suffered no injuries in the incident and felt

embarrassed more than anything else. That is why he smiled. He definitively

testified that he never felt there was even a chance of Ms. Komninos harming

him, though he waivered when counsel for the Commissioner later asked

whether he could have been harmed had he continued to walk forward.

30. Based on the weight of the credible evidence, the undersigned finds

that Ms. Komninos hel d onto B.T.Ôs arm for a few seconds to stop him from

further violating the rules by walking around during a test, but she did not

pull him back into his seat. B.T. suffered no harm and the credible evidence

established that Ms. Komninos never acted in a ma nner that could be seen as

failing to make reasonable efforts to protect B.T. from conditions harmful to

learning, mental and physical health, and/or safety.

31. As to the incident concerning C.M., Ms. Komninos credibly explained

that it occurred in March 2018. Ms. Komninos testified that C.M. got out of

her seat without permission and, when Mr. Komninos instructed her to sit

down, she further defied her order by continuing to walk to the recycling bin.

Ms. Komninos walked to the recycling bin, instructed C.M. to remove the

paper, and followed her back to her seat to ensure that she did not walk

around the room and disturb the other students. Ms. Komninos credibly

confirmed that she never touched C.M., pushed her down towards the

recycling bin, or pushed he r into her seat. She stayed at least a foot away

from C.M. the entire time.

32. C.M. testified that Ms. Komninos pushed her down towards the

recycling bin , grabbed her arm for a brief period of time, and pulled her back

to her seat. However, C.M.Ôs testimo ny conflicted with her prior written

statements. In the first statement, she indicated that Ms. Komninos

forcefully grabbed her arm and pushed her down to pick up the paper from

the bin . In the second statement, she accused Ms. Komninos of forcefully

grabb ing her arm, pulling her, and telling her to sit down. When confronted

with these inconsistencies, C.M. said the first statement Ð that omitted any

reference to pulling her Ð more accurately reflected the incident. She also

could not recall on what day the inc ident occurred. Nevertheless, C.M.

confirmed that she suffered no harm and only got upset because

Ms. Komninos c ould have asked her nicely to sit down.

33. Based on the weight of the credible evidence, the undersigned finds

that Ms. Komninos did not forcef ully grab C.M.Ôs arm, push her down

towards the recycling bin, or pull her back to her seat. C.M. suffered no harm

and the credible evidence established that Ms. Komninos never acted in a

manner that could be seen as failing to make reasonable efforts to p rotect

C.M. from conditions harmful to learning or to her mental and physical

health, and/or safety.

C ONCLUSIONS OF L AW

34. DOAH has jurisdiction over the parties and subject matter of this

cause. §§ 120.569 , 120.57(1), and 1012.796(6), Fla. Stat .

35. Res pondent, as Commissioner of the Department of Education, is the

state agent responsible for investigating and prosecuting allegations of

misconduct against teachers holding Florida educatorÔs certificates .

§§ 1012.795(1) and 1012.796(6), Fla. Stat.

36. It is well settled u nder Florida law that determining whether charged

conduct violates a s tatute or rule is a question of ultimate fact to be decided

by the trier - of - fact based on the weight of the evidence. Holmes v. Turlington ,

480 So. 2d 150, 153 (Fla. 1st DCA 1985); McKinney v. Castor , 667 So. 2d 387,

389 (Fla. 1st DCA 1995); Langston v. Jamerson , 653 So. 2d 489 (Fla. 1st DCA

1995). Thus, determining whether Ms. KomninosÔs alleged misconduct

violates the law is a factual, not legal, inquiry .

37. The Commis sioner has the burden to prove its allegations against

M s. Komninos by clear and convincing evidence. DepÔt of Banking & Fin. v.

Osborne Stern & Co. , 670 So. 2d 932, 934 (Fla. 1996); AvalonÔs Assisted

Living, LLC v. Ag. for Health Care Admin. , 80 So. 3d 34 7, 348 - 49 (Fla. 1st

DCA 2011) (citing Ferris v. Turlington , 510 So. 2d 292, 294 - 95 (Fla. 1987)).

As the Florida Supreme Court has stated:

Clear and convincing evidence requires that the

evidence must be found to be credible; the facts to

which the witness es testify must be distinctly

remembered; the testimony must be precise and

explicit and the witnesses must be lacking in

confu sion as to the facts in issue. The evidence

must be of such a weight that it produces in the

mind of the trier of fact a firm bel ief 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 ,

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

38. ÑWhere a statute imposes sanctions and penalties in the nature of

denial or revocation of a license to practice for violating its proscriptions, such

a statute Ómust be strictly construed and no conduct is to be regarded as

included within it that is not reasonably proscribed by it.Ô Ò McC loskey v.

DepÔt of Fin. Servs. , 115 So. 3d 441, 444 (Fla. 5th DCA 2013) (citing Lester v.

DepÔt of ProfÔl & Occ. Regs. , 348 So. 2d 923, 925 (Fla. 1st DCA 1977)); accord

Elmariah v. DepÔt of ProfÔl Reg. , 574 So. 2d 164, 165 (Fla. 1st DCA 1990)

(holding that a statute imposing Ñsanctions or penaltiesÒ is Ñpenal in nature

and must be strictly construed, with any ambiguity interpreted in favor of the

licenseeÒ); see also Djokic v. DepÔt of Bus. & ProfÔl Reg. , 875 So. 2d 693, 695

(Fla. 4th DCA 2004) (same).

39. The Commissioner alleged in the Administrative Complaint that

Ms. Komninos forcefully grabbed B.T. and C.M. by their arms. By doing so,

the Commissioner alleged that she violated the Principle of Professional

Conduct requiring her to make reasonable effort to protect the students from

conditions harmful to their learning, mental and physical health, and /or

safety , outlined in rule 6A - 10.081(2)(a)1 , and may be disciplined accordingly

for that violation under section 1012.795(1)(j). 2

40. As to the Principles of Professional Conduct, rule 6A - 10.081 provides

in pertinent part:

(2) Florida educators shall comply with the

foll owing disciplinary principles. Violation of any of

these principles shall subject the individual to

revocation or suspension of the individu al

educator's certificate, or the other penalties as

provided by law.

2 The Administrative Complaint contains two individual counts. Co unt I alleges a violation of

section 1012.795(1), which authorizes the Commissioner to discipline an educator for

violating a Principle of Professional Conduct, whereas Count II alleges violations of a

Principle of Professional Conduct based on the alleged incidents involving B.T. and C.M. The

Commissioner conceded in his PRO that Count I did not constitute an independent violation ,

so the undersigned resolves both counts together herein.

(a). Obligation to the student requires that the

individual:

1. Shall make reasonable effort to protect the

student from conditions harmful to learning and/or

to the student's mental an d/or physical health

and/or safety.

41. Based on the findings of fact above , the undersigned finds as a matter

of ultimate fact that the Commissioner failed to establish by clear and

convincing evidence that Ms. Komninos violated rule 6A - 10.081(2)(a)1. Th e

Commissioner failed to prove that Ms. Komninos forcefully grabbed B.T. and

C.M. by their arms, as alleged. The weight of the credible evidence did not

establish that Ms. Komninos ever grabbed C.M.Ôs arm at all and, at most,

established that Ms. Komninos merely held onto B.T.Ôs arm, not forcefully, for

a matter of seconds and let go. It is undisputed that neither B.T. nor C.M.

suffered injury and, more importantly, no credible evidence showed that

either student reasonably could have suffered injury based on

Ms. KomninosÔs actions. In short, the weight of the credible evidence simply

failed to establish that Ms. Komninos acted in a manner that could be seen as

failing to make reasonable efforts to protect student s from conditions harmful

to learning or to t heir mental health, physical health , and/or safety .

R ECOMMENDATION

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

R ECOMMENDED that the Education Practices Commission , issue a final order

dismissing the Administrative Complaint again st the Respondent , Carmen

Komninos .

D ONE A ND E NTERED this 26th day of March , 2020 , in Tallahassee, Leon

County, Florida.

S

A NDREW D. M ANKO

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahasse e, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 26th day of March , 2020 .

C OPIES F URNISHED :

Robert J. Coleman, Esquire

Coleman and Coleman

Post Of fice Box 2089

Fort Myers, Florida 33902 - 2089

(eServed)

Ron Weaver, Esquire

Post Office Box 770088

Ocala, Florida 34477 - 0088

(eServed)

Gretchen Kelley Brantley, Executive Director

Education Practices Commission

Department of Education

Turlington Buildin g, Suite 316

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Matthew Mears. General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Randy Kosec, Jr., Ch ief

Office of Professional Practices Services

Department of Education

Turlington Building, Suite 224 - E

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

All parties have the right to submit written exc eptions 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.