The Issue Whether Respondent's educator's certificate should be subject to discipline for the violations alleged in the Administrative Complaint dated May 7, 2003.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing and the entire record of this proceeding, the following Findings of Fact are made: Respondent, Raymond J. Agostino, holds Florida Educator Certificate No. 385460, covering the areas of educational leadership, elementary education, and English to Speakers of Other Languages, which is valid through June 30, 2005. At all times relevant to this proceeding, Mr. Agostino was employed as an assistant principal at North Fort Myers High School in the Lee County School District. On the morning of May 16, 2003, at about 5:34 a.m., a 911 emergency call was received by the Cape Coral Police Department. A female voice could be heard screaming on the line. The 911 operator asked the caller to state the nature of the emergency. The caller did not identify herself but could be heard screaming, "Get the fuck off of me! Get the fuck off of me!" Michael Carroll, the 911 operator who received the call, testified that when he answers an emergency call, his equipment provides a readout of the caller's phone number and address. Mr. Carroll relays the call to the police department's dispatcher, who in turn dispatches officers to the indicated address. In this instance, the caller identification equipment indicated that the call came from a telephone with the number "458-5077." At the time, this was the phone number of Mr. Agostino and his wife, Pamela Agostino. They resided at 1943 Northeast Fifth Terrace in Cape Coral. Officers Don Donakowski and Jason Matyas of the Cape Coral Police Department were dispatched to the Agostino house at about 5:35 a.m. on May 16, 2003, and arrived in separate cars at about 5:39 a.m. From outside the house, they observed a shirtless male, later identified as Mr. Agostino, in the living room area. They did not see Mrs. Agostino. They knocked on the front door, and Mr. Agostino answered. The officers identified themselves, told Mr. Agostino why they had been sent to the house, and asked him what happened. Mr. Agostino told the officers that he and his wife had been arguing over financial matters but denied that there had been any kind of physical confrontation. Officer Matyas noted that Mr. Agostino was reluctant to provide details of the incident. The officers noted no visible injuries on Mr. Agostino. While talking to Mr. Agostino in the doorway, they observed Mrs. Agostino emerge from the master bedroom. Officer Donakowski went inside the house to speak with Mrs. Agostino, who appeared very emotional, scared, and crying. Officer Donakowski observed that she appeared to have been in a physical altercation. There were scratches and a lump over her right eye and dried blood in her hair. Mrs. Agostino told Officer Donakowski that she and her husband had an argument. She told Officer Donakowski that her husband was bipolar and sometimes would go on binges, including spending money he didn't have. Mrs. Agostino told Officer Donakowski that her husband asked her for a $500 check to pay the mortgage. She told him she didn't have the money, and he became angry and began screaming at her. Fearing for her safety, she ran into the bedroom and locked the door. When Mr. Agostino broke down the door to get to her, Mrs. Agostino grabbed the bedroom telephone and dialed 911. Mrs. Agostino told Officer Donakowski that when her husband saw her dialing 911, he threw her down, knocked the phone out of her hand, gouged at her eyes, and pulled out a handful of her hair. It was during this attack that she screamed at her husband to get off of her. Mrs. Agostino told Officer Donakowski that she was then able to escape her husband's grasp and run into another room. She also told Officer Donakowski that her husband had attempted to strangle her in a confrontation on the previous day. Mrs. Agostino told Officer Donakowski that she would not give a written statement because she feared retaliation from her husband. After he interviewed Mrs. Agostino, Officer Donakowski went outside and spoke with Mr. Agostino, while Officer Matyas conducted his interview with Mrs. Agostino. Mr. Agostino told Officer Donakowski that the only thing that happened was an argument, though he did admit to breaking down the bedroom door. Mr. Agostino stated that he had never physically abused his wife in seven years of marriage. Officer Matyas noted that Mrs. Agostino was visibly upset and shaken. He observed fresh bloody scratches and swelling around her right eye, as well as blood in her hair near the scratches. Officer Matyas also noted several broken panels in the master bedroom door. When Officer Matyas asked Mrs. Agostino what had happened, she told him that she and her husband had been in the living room. Mr. Agostino asked her for a $500 check to pay the mortgage, because he had spent $600 on a sprinkler system. She told him that she could not give him the money because she needed it for a car payment. Mr. Agostino became angry and verbally abusive. Mrs. Agostino became fearful and locked herself in the bedroom. Mr. Agostino began banging on the bedroom door. As Mrs. Agostino picked up the phone to call 911, Mr. Agostino broke through the door and entered the bedroom. He forced Mrs. Agostino's head down to the floor while gouging at her eyes with his fingers and thumbs. She agreed to give him the money and he let her up. Mrs. Agostino told Officer Matyas that there had been a physical confrontation on the previous day in which her husband attempted to strangle her. She believed her husband was bipolar, though he had not been medically diagnosed. She told Officer Matyas that she did not want to press charges because her husband could be fired from his job. Based on the physical evidence and witness statements, the officers arrested Mr. Agostino and charged him with Battery--Domestic Violence. Officer Donakowski took photographs of Mrs. Agostino's injuries, the broken door, and a clump of hair that Mrs. Agostino stated had been pulled from her head by Mr. Agostino. The photographs were admitted into evidence at this proceeding. The charges against Mr. Agostino were subsequently dismissed. The Lee County School District investigated allegations of misconduct against Mr. Agostino arising from his arrest. At his predetermination conference, Mr. Agostino denied that any physical confrontation took place between his wife and him. The school district concluded that there was no probable cause to impose discipline on Mr. Agostino. At the hearing in this matter, Mrs. Agostino testified that on the morning of May 16, 2003, it was, in fact, she, who attacked her husband. She testified that at the time, she was taking medication for petit mal seizures that made her very agitated, violent, and confused. She stated that the medication also caused her hair to fall out in clumps, accounting for the hair observed by the police officer. The medication named by Mrs. Agostino was Keflex. In fact, Keflex is a marketing name for cephalexin, a cephalosporin antibiotic unrelated to treatment of seizures. However, the symptoms described by Mrs. Agostino are consistent with common reactions to seizure medications. It is within reason that Mrs. Agostino, who is not a medical professional, simply confused Keflex with another medication she was taking for seizures. Mrs. Agostino testified that on the morning of May 16, 2003, she was attempting to confront Mr. Agostino about their finances, but he would not talk to her. Mrs. Agostino testified that his silence infuriated her, and she became violent. Mr. Agostino retreated into the bedroom. She broke through the door and attacked him, hitting him with the telephone, then throwing the telephone at him. Mrs. Agostino testified that she did not know how the 911 call was made. She theorized that the speed-dial may have been activated when she threw the phone at Mr. Agostino. She also had no idea how the scratches appeared around her eye, unless she hit her head on the bedroom door as she broke it down. Mrs. Agostino testified that she told the police officers that her husband attacked her because she was mad at him. At the hearing, Mr. Agostino testified that he and his wife were arguing about money. Mrs. Agostino became very agitated and started to become violent. Mr. Agostino retreated to the bedroom, closing and locking the door behind him. Mrs. Agostino "came through the door" and attacked Mr. Agostino, who put out his hands to fend her off. Mrs. Agostino started hitting him with the telephone. Mr. Agostino tried to get away, and she threw the phone at him. Mr. Agostino went into the living room. Mrs. Agostino followed and continued screaming at him. Mr. Agostino kept the couch between himself and his wife. At that point, the police knocked at the front door. Steven DeShazo, the principal of North Fort Myers High School, testified that he has worked with Mr. Agostino for eight years. Mr. DeShazo has had conversations with Mr. Agostino about scratches and abrasions on the latter's arms, presumably caused by Mrs. Agostino. Mr. DeShazo testified that he has had conversations with both Agostinos about their need for counseling, but that Mr. Agostino did not want to discuss his family problems. Mr. DeShazo discussed the May 16, 2003, incident with Mr. Agostino a few days after the events. Mr. Agostino told him that Mrs. Agostino had attacked him, and he had tried to fend her off. Mr. DeShazo had no personal knowledge of the events of May 16, 2003. The testimony of the Agostinos at the hearing completely contradicted the statements that Mrs. Agostino gave to the police on the morning of May 16, 2003, as well as Mr. Agostino’s admission to Officer Donakowski that he broke down the bedroom door. Only one version of these events can be true. It is found that the version of events related by Mrs. Agostino to the police officers was the truth. The police officers were at the Agostino house within four minutes of the 911 call. They observed that Mr. Agostino was pacing the living room floor and was out of breath. Both officers observed that Mrs. Agostino was very emotional, crying, scared, and upset. These observations lead to the finding that Mrs. Agostino was still suffering under the stress of the attack, and in her emotional state did not have time to contrive a false story. This finding is supported by the fact that Mrs. Agostino's statements to the police officers were consistent with all the other evidence: the 911 call, the broken door, the clump of hair, her own physical injuries, and the fact that she was in the bedroom when the police arrived. At the hearing, Mrs. Agostino attempted to make her new story comport with the physical evidence but was far from convincing. The clump of hair was plausibly explained as a reaction to medication, but she had no explanation at all for the scratches above her eye. Mr. Agostino's testimony hinted that he might have scratched her eye while trying to fend her off. Mrs. Agostino theorized that throwing the telephone might somehow have caused it to speed-dial 911. Even if the undersigned accepted the phone-throwing theory, there is no explanation for why the female voice on the 911 call was screaming, "Get the fuck off of me," if Mrs. Agostino was the aggressor and Mr. Agostino's only physical reaction was to fend her off. There is also no explanation for why Mrs. Agostino was in the bedroom when the police arrived. Mr. Agostino testified that she was in the living room when the police knocked on the front door, directly contradicting the testimony of both police officers. At the hearing, Mr. Agostino testified that he told the police and school officials that there was no physical confrontation in order to protect his wife, who is also an employee of the Lee County School District. He feared that she would lose her job if it became known that she attacked him. Given the evidence presented at the hearing, it is far more likely that Mrs. Agostino changed her story in order to protect her husband’s job. The evidence presented is sufficient to establish that Mr. Agostino committed an act of moral turpitude when he broke down the bedroom door, forced his wife's head down to the floor and gouged her eyes, releasing her only when she agreed to give him the money he wanted. This was an act of serious misconduct in flagrant disregard of society's condemnation of violence by men against women. The evidence presented is not sufficient to establish that Mr. Agostino attempted to strangle his wife on May 15, 2003. In this instance, there was no physical or other evidence to corroborate Mrs. Agostino’s hearsay statement to the police officers that her husband had attempted to strangle her. Although the evidence establishes that Mr. Agostino committed an act of moral turpitude, the only evidence offered regarding any notoriety arising from the May 16, 2003, incident was Mr. DeShazo's testimony that there was news coverage of the arrest. Mr. DeShazo stated that several students approached him expressing concern about Mr. Agostino and their hope that he would be allowed to remain at the school. Mr. DeShazo testified that no parents came to him expressing concern about the incident. There was no evidence to prove that Mr. Agostino's conduct was sufficiently notorious to cast him or the education profession into public disgrace or disrespect or to impair Mr. Agostino's service in the community. There was insufficient evidence presented to establish that Mr. Agostino's performance as a teacher and an employee of the Lee County School District was diminished as a result of the May 16, 2003, incident and its aftermath. Mr. DeShazo testified that Mr. Agostino is the assistant principal for student affairs, which he described as the most high pressure, stressful job at the school. Mr. Agostino has never lost his temper at work, even in situations in which he has been hit and spat upon by unruly students. Mr. DeShazo testified that Mr. Agostino has been at work every day and has handled this uncomfortable situation with complete professionalism.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued finding that Respondent violated the provisions of Section 1012.795(1)(c), Florida Statutes (2003). It is further RECOMMENDED that a final order be issued placing Respondent on a two-year period of probation, subject to such conditions as the Commission may specify, including the requirement that Mr. Agostino undergo a full psychological evaluation and receive any necessary counseling to ensure that he is fully capable of performing his assigned duties with no further incidents such as those of May 16, 2003. DONE AND ENTERED this 19th day of February, 2004, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of February, 2004. COPIES FURNISHED: Robert B. Burandt, Esquire Roosa, Sutton, Burandt, Adamski & Roland, LLP 1714 Cape Coral Parkway, East Cape Coral, Florida 33904-9620 Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Room 224E Tallahassee, Florida 32399-0400 Bruce P. Taylor, Esquire Post Office Box 131 St. Petersburg, Florida 33731-0131 Marian Lambeth, Program Specialist Bureau of Educator Standards Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400
The Issue The issue is whether Respondent's teaching certificate should be disciplined because of Respondent's misconduct.
Findings Of Fact Background and parties Mr. Negedly holds Florida Educator's Certificate 836720, in English, which was valid through June 30, 2008. At all times pertinent, he was employed by the Volusia County School District as a language arts teacher at Heritage Middle School (Heritage). The Department of Education, which was headed by Petitioner at all times material to this case, is the state agency charged with investigating and prosecuting complaints against teachers holding Florida Educator's Certificates. The Education Practices Commission is charged with, among other things, imposing discipline on teachers. The Becker incidents During the 2004-2005 school year, Jami Lynn Becker was a consultation teacher at Heritage. A consultation teacher advises and otherwise aids teachers who have exceptional student education (ESE) pupils in their classes. She ensured that ESE students were provided the accommodations to which they were entitled. Mr. Negedly taught sixth-grade language arts at Heritage. There were three ESE students in his class. Ms. Becker's duties included visiting his class in order to provide services to those three students. On September 16, 2004, immediately before the commencement of classroom activities, Ms. Becker went to Mr. Negedly's room to inquire if he needed any help. During the conversation, Mr. Negedly mentioned that he and his wife had by happenstance seen Ms. Becker driving into New Smyrna Beach, Florida. Ms. Becker related that she was there to receive counseling regarding a recent divorce. Mr. Negedly moved the subject of the conversation to his own marriage and related that he was having problems and was sexually frustrated. He stated that he was having impure thoughts. He suggested that he was willing to engage in a physical relationship with Ms. Becker if she was willing. Ms. Becker was completely shocked by this conversation. Ms. Becker knew Mr. Negedly's wife, Joely Negedly, because she taught at Heritage also, and Ms. Becker suggested that he should direct his intimate conversations to his wife, not her. Mr. Negedly then revealed that he had the same feelings with another teacher, Jaqueline Brame, in the previous year. At that point in the conversation, the school bell rang, students entered the classroom, and Ms. Becker told Mr. Negedly that she would pray for him and then departed for her office. She also made it clear to him that she hoped that this type of conversation would not be repeated. However, that was not to be the case. About 45 minutes later, Mr. Negedly provided Ms. Becker with a note saying that he was sorry if what he said was too much, too fast, and that he hoped that he had provided her with some help. During the seventh period, which was Mr. Negedly's planning period, he came to Ms. Becker's office and renewed the conversations about his sexual frustration and stated that he didn't understand why God intended for man to be with one woman for his entire life. He asked Ms. Becker not to tell others about the conversations. On one or more occasions, Mr. Negedly came into Ms. Becker's office at the end of the school day and talked to her for as long as 45 minutes. Both his presence and his conversations during these times made her feel uncomfortable. Ms. Becker is a self-described non-confrontational person and could not bring herself to tell him to leave. These sort of encounters occurred about seven times over several weeks. Ms. Becker felt that the conversations he initiated were inappropriate. His words made her feel uncomfortable, and she felt that it was necessary for her to take evasive action in order to avoid him and therefore avoid repeat occurrences. She also honored his request not to reveal the nature of his conversations. At some point, Ms. Becker approached Ms. Brame, the person Mr. Negedly had identified as a previous target of his affections, and told Ms. Brame of her experiences. Ms. Brame related her experience with Mr. Negedly, and Ms. Becker ascertained that they were very similar. As a result, Ms. Becker resolved to inform higher authority. This plan was shelved, however, by the intervention of Hurricane Jeanne, which resulted in the suspension of school activities. On September 28, 2004, when school resumed, Mr. Negedly came into her office and after about 45 minutes Ms. Becker told him that his conversation was inappropriate. A few days after that, Ms. Becker reported these events to Mrs. Gunderson, who was an assistant principal and supervisor of ESE. All of these encounters occurred on school grounds. However, there was no evidence that any student observed or heard Mr. Negedly's suggestions. Mr. Negedly never touched Ms. Becker, threatened her person, or used sexually explicit language. His actions disturbed her to the extent that her ability to teach was affected. However, her effectiveness as an employee of the district school board was not seriously compromised. The Brame incidents Jacqueline Brame is currently a teacher at River Springs Middle School in the Volusia County School District and was a teacher at Heritage during all times pertinent to this proceeding. Ms. Brame was Mr. Negedly's mentor when he began teaching at Heritage and worked with him on a sixth-grade team of teachers providing education to the same 150 children. By the beginning of the 2003-2004 school year, Ms. Brame, Mr. Negedly, and Joely Negedly had become close friends. They mingled socially and would visit one another in their homes. Ms. Brame confided in Mr. Negedly, and Ms. Brame described their relationship as "best friends." Ms. Brame was having marital problems, and she shared intimate details about this with Mr. Negedly. She valued his advice and respected his opinions about her problems. After the 2003-2004 school year commenced, Mr. Negedly attempted to move the relationship into a romantic one. He told her that he cared for her deeply and that he was in love with her. These comments made Ms. Brame uncomfortable. She reminded Mr. Negedly that he was married, that she, Ms. Brame, was Mrs. Negedly's friend, and that his son was in her class. This conversation occurred in school, during the school day. He told Ms. Brame that he wanted to have a physical relationship with her. This continued even when Ms. Brame was seven months pregnant. After each advance and rebuff, Mr. Negedly would apologize. His pursuit continued for almost a year. On numerous occasions she would tell him that his advances were unwelcome and inappropriate. Ms. Brame, like Ms. Becker, described herself as someone who did not like confrontation, and she did not firmly tell him that his behavior was unacceptable. Once when Ms. Brame had temporarily abandoned her marital home as the result of a domestic dispute, Mr. Negedly invited her to stay at his home. Ms. Negedly was out of the area at this time because of her duties as a consultant for the college boards, but their children were present in the home. Ms. Brame refused. However, she did not take the invitation to be an invitation for sex. She said that had Ms. Negedly not been away during this time, she might have accepted the invitation. Mr. Negedly's pursuit made Ms. Brame uncomfortable and occasionally sick to her stomach. It adversely affected her emotions and affected her teaching. The events happened in school, in the school cafeteria, and after school, but in connection with school activities. As a result of his unwelcome overtures she had to attend counseling. However, her effectiveness as an employee of the district school board was not seriously reduced or compromised. Eventually Ms. Brame restructured their relationship. She transformed it into a professional friendship and maintained this status through the 2003-2004 school year. At no time during these encounters did Mr. Negedly touch Ms. Brame inappropriately or use sexually explicit language. Most if not all of the encounters occurred on school grounds or in connection with school activities. However, there was no evidence that any student observed or heard Mr. Negedly's overtures. Ms. Brame did not tell anyone in authority about Mr. Negedly's behavior. She cared deeply for Mr. Negedly and his family. She believed remaining silent was her Christian duty. She stated during the hearing that she does not believe he should be removed from the teaching profession. Ms. Brame's allegations surfaced during the investigation into Mr. Negedly's conduct that resulted from Ms. Becker's allegations. The Hepsworth incidents Ms. Kuuleialoha Hepsworth was a teacher's assistant at Heritage during the first semester of 2004. She was in charge of the "lunch club." This informal organization provided lunches to teachers who desired to have their lunch prepared by commercial providers. Ms. Hepsworth would collect money from participating teachers, acquire the food at nearby restaurants, and deliver them to those who had placed orders with her. Once when Mr. Negedly handed her money to be used for purchasing lunch, she claimed he inappropriately brushed the bottom of her hand. Mr. Negedly was the sponsor for the school yearbook and in connection with that duty, he was taking pictures of children in a seventh-period classroom Ms. Hepsworth was teaching. Ms. Hepsworth testified that he said that he was intrigued with her and that "he wanted to pursue her." She said she asked him, "What about your wife?" She said he then asked her if "I would do his wife too, because that would be too cool." Ms. Hepsworth claimed that she was "freaked out." She related that this latter incident occurred on the Friday before Mr. Negedly was removed from the school because of the Becker allegations. She was asked on October 28, 2004, to give a statement to an investigator and that is when she revealed her alleged encounters. The alleged behavior of Mr. Negedly as related by Ms. Hepsworth was so dissimilar to the events related by Ms. Becker and Ms. Brame that it is deemed unworthy of belief. Mr. Negedly Mr. Negedly's targets were women who did not like confrontation and who sought unsuccessfully to communicate their discomfort passively. Had they been confrontational with him, or if they had reported his behavior to higher authority immediately, the behavior could have been corrected locally, and the downward spiral of unpleasantness which has resulted, could have been avoided. On the other hand, these two women may have been selected as targets because of Mr. Negedly's perception that they were unlikely to either harshly react to his overtures or immediately report him to those in authority. Mr. Negedly's certificate expired June 30, 2008. He was employed as a teacher from the beginning of the 2000-2001 school year until the latter part of the school year 2005-2006. Mr. Negedly received a certificate of appreciation for his outstanding dedication to education from the assistant principal of Heritage, on May 7, 2002. All of his performance assessments indicated that he met standards, and he had no disciplinary record prior to the discipline at issue in this case. As previously noted, he was given the additional duty of yearbook sponsor at Heritage. He was also made sponsor of the Junior Beta Club. Heritage Principal Dennis Neal wrote a recommendation dated May 7, 2004, when Mr. Negedly applied for a Stetson University Teacher Scholar Grant that related, "Mr. Negedly continues to demonstrate high professional standards and a dedication to his students' success both in and out of the classroom. He is a valuable team player who can be counted on to go above the norm in all his endeavors. I commend Mr. Negedly on taking on the challenge of an advanced degree and professional growth." When Mr. Negedly was teaching English at David Hinson Middle School, he was chosen teacher of the month for October 2005 by students and teachers. Subsequent to the exposure of Mr. Negedly's transgressions, he attended counseling with his wife at Associated Psychiatric Services in New Smyrna Beach, Florida. As late as April 13, 2005, counseling continued. The counseling was ordered and paid for by the Volusia School District. In January 2005, the school board punished Mr. Negedly by suspending him for five days without pay. As a result of Mr. Negedly's lack of judgment, he was taken from his classroom at Heritage and transferred to the district headquarters; his wife had to obtain a transfer to another school; Mrs. Negedly and her child were the subject of incorrect and hurtful conversations by students, faculty, and others; and Mr. Negedly, who sincerely loved teaching, lost his career.
Recommendation Based upon the Findings of Fact and Conclusions of Law, RECOMMENDED that a final order be entered dismissing the Administrative Complaint. DONE AND ENTERED this 4th day of December, 2008, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of December, 2008. COPIES FURNISHED: Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Room 224 Tallahassee, Florida 32399-0400 Joan Stewart, Esquire FEA Legal Services 300 East Park Avenue Tallahassee, Florida 32301 Ron Weaver, Esquire Post Office Box 5675 Douglasville, Georgia 30154-0012 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 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue Should Petitioner impose discipline on Respondent's Florida Educator's Certificate No. 654546, based upon the allegations in the Administrative Complaint, Case No. 001- 1338-A, before the State of Florida, Education Practices Commission?
Findings Of Fact Stipulated Facts: Respondent holds a Florida Educators Certificate (FEC), number 654546, in the area of Music. Respondent's FEC is valid through June 30, 2006. At all times relevant to this proceeding, Respondent was employed as a Music Education Teacher at Chiefland Elementary School in the Levy County School District. Additional Facts: Background Respondent served as a music teacher at Chiefland Elementary for 12 years. On January 17, 2001, while at school Respondent spoke to Johnny Turner, the guidance counselor at Chiefland Elementary. In this conversation Respondent commented that he had a problem with alcohol. Mr. Turner did not believe that Respondent was inebriated at that time. Mr. Turner did observe that Respondent was very hyper-active emotionally and verbally. On the evening of January 17, 2001, Respondent called Mr. Turner several times at Mr. Turner's home. From his remarks Mr. Turner believed that the Respondent was inebriated. Respondent's speech was slurred, Respondent was incoherent and repeated himself often. Respondent commented that he had a problem with alcohol and wanted help. Mr. Turner directed him to a rehabilitation program and to Alcoholics Anonymous. Mr. Turner also suggested that Respondent not try to come to school on the morning of January 18, 2001, and that they continue their conversation at some future date when Respondent was sober. Respondent asked Mr. Turner to give him a wakeup call at 5:00 a.m. on January 18, 2001. Mr. Turner made that call intending to remind Respondent to stay home that day but Respondent did not answer the phone. On January 18, 2001, around 8:15 a.m. Mr. Turner saw Respondent at the school outside the cafeteria. Respondent approached Mr. Turner and said good morning and placed a Catholic missal into Mr. Turner's hands. Respondent then went to this classroom. Respondent was observed by Mr. Turner walking across the courtyard and up the hall in a straight line without staggering. When Respondent greeted Mr. Turner on that morning the greeting was short by not slurred. Nothing in Respondent's conduct made Mr. Turner believe that Respondent should be reported as constituting a danger to himself or others at that time. Mr. Turner's impression of Respondent on January 18, 2001, was misplaced, for reasons that will be discussed. Respondent acknowledges that on the night of January 17, 2001, he had been drinking. He describes the amount that he drank as "a couple of drinks." David Beard, a friend of the Respondent, indicated that Respondent and Mr. Beard had a couple of drinks. They were drinking bourbon. In addition to the alcohol which Respondent consumed on the night of January 17, 2001, Respondent was also taking medication. That medication had been prescribed by Asa L. Godbey, Jr., M.D., a physician practicing outpatient psychiatry with adults. Dr. Godbey had first seen Respondent in 1997. Dr. Godbey diagnosed Respondent as having dysthymic disorder, a chronic non-psychotic depression. As of January 18, 2001, Dr. Godbey had prescribed Amitriptyline and Prozac, anti-depressant medications and Xanax, which is a benzodiazepine, used to help with anxiety when patients are depressed. Xanax is a non-depressant. In 1999 Dr. Godbey had prescribed Respondent Ritalin, a mild stimulant to address episodes of acute severe depression. Dr. Godbey was aware that Respondent had been treated for migraine headaches in the past by the use of small doses of narcotics. This refers to Tylenol No. 3 PRN. The record reveals that on January 17, 2001, and on the morning of January 18, 2001, Respondent took some medications prescribed for him. The exact medications taken on those dates is not clear from the record. In this connection, Dr. Godbey had told Respondent that he should not drink alcohol because he does not handle it well. As the doctor explained, alcohol by itself prevents deep sleep, a particular problem for people who are depressed. As Dr. Godbey explained, Respondent does not metabolize alcohol as well as some people. So it can be a real problem for him. As Dr. Godbey established, the mixing of alcoholic beverages and the drugs prescribed for Respondent is a problem. It worsens depression. Respondent's testimony that "he did not know to what extent" his use of alcohol presented a problem for him, given Dr. Godbey's advice against using alcohol, does not create forgiveness for his misconduct. The January 18, 2001 Incident at School: Linda Karol Yon is a speech language pathologist at Chiefland Elementary. This is a position that she has held for 27 years. Before the incident at issue Ms. Yon and Respondent would carpool from Gainesville to Chiefland on work days. Ms. Yon drove Respondent and herself to work on January 18, 2001. Ms. Yon drove Respondent and herself on the day in question because Respondent called her and said that he was not feeling really well. In particular Respondent told Ms. Yon that he had been out the night before with friends. He said that he had had a lot to drink. In essence, Respondent's description indicated he was hung over. On the morning of January 18, 2001, as they drove to school Respondent was very chatty. He was talking about the evening before when he celebrated the birthday of his friend. On January 18, 2001, Respondent conducted his 8:30 a.m. class, at Chiefland Elementary. Early in the morning on the date in question Respondent went to the office of the principal of Chiefland Elementary School, Michael Ice. While in the office Respondent handed Mr. Ice a piece of paper stating that the paper had been put in his mailbox and he believed it belonged to Mr. Ice. Respondent then left. The paper was a letter which had been written from Respondent to Mr. Ice requesting Mr. Ice to check into Respondent's user I.D. and password for the school computer system used to enter grades. The letter was from October 2000. Although Mr. Ice considered the provision of the letter at that time as being "kind of strange," Mr. Ice called the school data center to inquire about the matters set forth in the correspondence. Mr. Ice was told that there was nothing wrong with the user I.D. and password. Under the circumstances Mr. Ice decided to go to Respondent's classroom to talk to Respondent about the letter. When Mr. Ice arrived at Respondent's classroom the students in attendance were getting ready to leave the music class. Their regular teacher was coming to pick them up. Once in the room Mr. Ice showed Respondent the letter and asked what it was about, any why was Respondent asking him to respond to something that was from earlier in the year. Respondent asked the principal to come from the classroom into Respondent's office which is connected to the classroom. Once in the office Respondent asked the principal to look at his desk. The principal complied. Then Respondent asked the principal to come out with Respondent into the classroom. Once they returned to the classroom Respondent put his hands up in the air and said "and this is my classroom." Mr. Ice observed the Respondent to be "a little giddy." Mr. Ice questioned the Respondent in more detail about the letter and asked Respondent to go back to the principal's office and talk about it. Then Respondent started telling the principal about Respondent's alarm clocks, that he had three alarm clocks that he was having problems with and that he was having a problem with an alarm system at his house. Respondent remarked about something with his telephones. Respondent was going on and on about those subjects. None of those topics was in relation to the reason for the principal's visit to Respondent's classroom. Those extraneous remarks were unsolicited. Mr. Ice considered that there was a problem with Respondent and realizing that another class would be coming into the music room within 5 to 10 minutes, he asked Respondent to stay in the principal's office while he arranged to contact the next teacher bringing students to the music room and instruct the teacher to not escort the students to Respondent's classroom. Respondent did not conduct his next class. Mr. Ice also believed that he needed to call the School District's Director of Personnel, Dr. Leila Pratt. Mr. Ice called Dr. Pratt and explained his perceptions of the problem with Respondent and she agreed to come to the school. The reason why Mr. Ice called Dr. Pratt was that he had smelled an odor on Respondent's breath, that Respondent had slurred speech and that Respondent was believed to be under the influence of drugs or overly medicated. Respondent came back to the principal's office. Once in the principal's office Mr. Ice asked Respondent to be seated and Respondent sat down while they waited for Dr. Pratt to arrive. Somewhere between half an hour and 45 minutes after Respondent arrived at Mr. Ice's office, Dr. Platt arrived at the school. In the interim, Mr. Ice asked Respondent if he was taking something or if he was on something. Respondent took a metal pill box and opened it up and showed its contents to Mr. Ice. Mr. Ice observed about half a dozen different kinds of pills in the box. Mr. Ice remembers the Respondent telling him that one pill was Ritalin and one was Phenergan, both items that had been prescribed for Respondent. Respondent did not specify among the pills that he showed Mr. Ice which pills he was taking. While waiting for Dr. Pratt to arrive Respondent began to get really sleepy. He would lean back. He would talk to the principal with his eyes closed and his speech became slower and sometimes slurred. Dr. Pratt arrived at the school around 10:30. After Dr. Pratt arrived Mr. Ice went with her to a separate room from Respondent to discuss the situation. Upon returning to the room where Respondent was, Dr. Pratt heard Respondent talking about his medication and about his alarm clocks. She observed his speech as very slow and deliberate, giving the appearance that Respondent was having difficulty concentrating and focusing on what he was saying. Dr. Pratt observed the pills laid out by Respondent. Dr. Pratt asked Respondent if he was seeing more than one physician, given the number of drugs that she observed. She wanted to know whether Respondent's physicians were aware of the drugs being prescribed by the other physician. Respondent was able to respond appropriately to questions asked but he interjected things that were irrelevant to the conversation. Dr. Pratt decided that she would call for a drug test of Respondent to determine his condition. She contacted a facility in Ocala, Florida, that was affiliated with the school district to have that group send someone over to administer a drug test to Respondent. Respondent had expressed the desire to go back to his classroom but Dr. Pratt and Mr. Ice did not feel that that was an appropriate choice. Respondent wanted to get his belongings. He left to accomplish that task. That moment was when the decision was made to have Respondent drug tested. The basis which Dr. Pratt had for having the test performed was her concern about his capability to teach that day based upon his slurred speech and difficulty concentrating. She believed that something he was taking had impaired his functioning. When the subject of the drug test was brought up with Respondent, at first he said that he would not take the test and that he would rather resign his position at the school. He was allowed to talk to the union representative outside the presence of the school administrators on the subject of the drug test. After that conversation he indicated his willingness to take the test. Eventually he refused, stating that to take the test was against his principles. The person to perform the drug test did not arrive until around 1 p.m. to 1:30 p.m. Before the arrival Respondent appeared very sleepy and put his head down on the desk in the principal's office where he had returned. While Mr. Ice and Dr. Pratt continued to talk, Respondent would involve himself in the conversation by discussing matters that were not relevant to the conversation. Believing that Respondent was uncomfortable sitting in the principal's office, Mr. Ice asked the Respondent if he would rather go to Ms. Yon's classroom. Ms. Yon has a small classroom and a private office adjacent to the classroom. Respondent agreed to go to Ms. Yon's room. He was escorted to that room. Respondent left Ms. Yon's office and went to the classroom of Mary Kay Warner, a third grade teacher. Ms. Warner has taught elementary education at Chiefland Elementary for about 18 years. Ms. Warner encountered Respondent in the hall around 12:30 p.m. After a few casual remarks Ms. Warner invited Respondent to come to her room and watch a science demonstration. While in the hall Ms. Warner describes Respondent's demeanor as being "rather sad." She assumed that he was "down in the dumps." Once in Ms. Warner's room Respondent sat down at a table and the science demonstration commenced with the students. Respondent began to say things and ask questions and to participate in the demonstration. Respondent encouraged Ms. Warner to call on a particular student and then asked some questions about some of the statements Ms. Warner made during the demonstration. Respondent commented that it was hot in the room. Respondent asked some questions about a mistake Ms. Warner made concerning telephone wires as contrasted with electrical wires. Ms. Warner had not anticipated Respondent being part of the science demonstration. When Respondent would interrupt the presentation Ms. Warner tried to go along with what he interjected to make the lesson appear normal for the children. It was not normal. At some point Ms. Warner began to notice that Respondent "was not himself." She was concerned that Respondent might be embarrassed in front of the students and she did not wish the children to know that Respondent was experiencing problems. In addition to commenting about its being hot in the room and asking Ms. Warner if she thought it was hot in the room, Respondent sat in her chair and rolled the chair across the room. Having become concerned about Respondent's conduct, Ms. Warner left the room and contacted a teacher next door. She asked that teacher to have an administrator intervene in a manner that would not involve Ms. Warner asking Respondent to leave the room and be overheard by the students. Ms. Warner made this arrangement out of concern that she did not know how Respondent would act if she asked him to leave the room. Ms. Warner took the children to the playground, telling them they were going to recess. It was not the normal time for recess. Although this departed from the normal routine the children did not seem to realize that there was a problem with Respondent. Respondent left Ms. Warner's class after the children had departed. Later in the day Respondent spoke to Ms. Warner and said, "Did you narc on me? Somebody narced on me." Mr. Ice is the administrator that went to Ms. Warner's classroom to escort Respondent from the room. He observed Respondent sitting at Ms. Warner's desk looking very tired, his eyes opening and closing. Mr. Ice told Respondent that they needed to go back to the principal's office and they did. When Mr. Ice and Respondent returned to the principal's office, Mr. Ice expressed the opinion that Respondent would not be capable of teaching his classes at that juncture. That opinion is accepted. As a consequence another portion of Respondent's class schedule for the day was cancelled. After returning to the office the person to administer the drug test arrived. In that context Dr. Pratt explained the school district's policy that if Respondent did not take the blood test to detect drugs, his refusal would be considered as an indication of a positive result in the test. Ultimately when Respondent declined the drug test, Mr. Ice told Respondent that given his condition Respondent was going to have to leave the school campus. Arrangements were made with Ms. Yon to take Respondent home. Respondent initially agreed to leave the campus with Ms. Yon. Respondent went to the door of the principal's office after Ms. Yon left to go to her car. Respondent bumped into a metal folding chair at the door, sat down in it and said that leaving was against his principles and he was not going to leave. He repeated those remarks. He was kind of slow-moving at that point in time and a little bit defiant. Respondent kept drinking water as he had been and commented that his throat was very, very dry. He had taken off his shoes as he was sitting there. He moved from the metal chair back to a small table in the principal's office and sat down at that location. Others pleaded with Respondent to leave, to just go home with Linda, referring to Ms. Yon. Respondent kept saying "No," it was against his principles. Having refused to take the drug test, having refused to go home with Ms. Yon, Mr. Ice told Respondent that he was going to have to call the city police and have the police remove Respondent from the campus. Dr. Pratt agreed with this choice. Respondent still would not cooperate. Mr. Ice called the Chiefland Police Department and Officer Russ Hamm was dispatched to the school. A conversation ensued between Mr. Ice and Officer Hamm in which it was agreed that Officer Hamm would try to persuade Respondent to leave. Officer Hamm made a considerable effort to persuade Respondent to leave the campus. There was a concern that Respondent be gone from the campus before the school ended to avoid students seeing Respondent in his state. Finally when it was decided that Respondent would have to be physically removed, he did not cooperate with that choice either. Officer Hamm told the Respondent that he was under arrest and that he was going to be placed in handcuffs. Respondent said no, that he did not have to comply. While Officer Hamm was putting the handcuffs on Respondent, the Respondent did not cooperate and had to be wrestled to the ground. In effect one handcuff was placed on Respondent and Officer Hamm had to wrestle the other arm around and get the second arm handcuffed. This took place over a minute or two. Officer Hamm had spent 10 to 15 minutes trying to persuade Respondent to leave before making the arrest for trespassing. Once outside, Respondent refused to get into the patrol car. This prompted Officer Hamm to use a taser gun which gained Respondent's cooperation. Officer Hamm tried for several minutes to persuade Respondent to get into the patrol car before using the taser gun. In that time Officer Hamm told Respondent that school was about to let out and there was no reason to excite everyone and have all the kids seeing Respondent in handcuffs given that he was a teacher. Respondent was then taken from the campus in the police car. He departed around 2:00 p.m. Had Respondent cooperated with the officer, he would have been placed in the patrol car and driven from the campus before the bell rang concluding the school day. The consequence of Respondent's acts, not cooperating in the attempt by Officer Hamm and the school administrators to escort him out the back door before the school day ended and into the police car, and away from the school, was that the students were able to see Respondent being placed in the police car. Mr. Ice observed that Respondent was able to comprehend the nature of the discussions on the date in question concerning the questions and answers related to Respondent's state. To that extent Respondent was coherent. Mr. Ice expressed the opinion that Respondent, based upon his observation, was unable to perform his functions as a School Board employee on that day and that he was incapacitated to the extent of being incapable of doing his job and should not have been in the presence of children. That opinion is accepted. Mr. Ice received questions from teachers and staff members about the incident but not from parents. The record does not reveal that the questions related to Respondent's future effectiveness as a teacher. Mr. Ice expressed the opinion that Respondent's behavior created a condition that would be harmful to the students' learning at Chiefland Elementary. Specifically, Mr. Ice expressed the opinion that a teacher under the influence of something in front of children undermines what is trying to be accomplished in their education. That opinion is accepted. Dr. Pratt did not have any contact from parents concerning the incident nor from teachers or staff. Persons at the school district office were aware of the incident. Dr. Pratt expressed the opinion that Respondent lost his effectiveness as a teacher, given that the community in which Respondent taught was small in size. Dr. Pratt points out that several teachers were involved in this incident and the kids were being dismissed from the school at the time that Respondent was being placed in the police car. Mr. Ice when asked whether Respondent would be an effective teacher after the incident on January 18, 2001, testified "I don't know. I don't know if he could." By contrast Mr. Ice executed a form involving prospective employment provided by the School Board of Alachua County dated April 18, 2001, speaking of Respondent's excellence as a teacher. Respondent was no longer employed at Chiefland Elementary following the January 18, 2001 incident. In explaining the reference provided to Alachua County, Mr. Ice indicated that he did not want to see Respondent's life ruined and considered the items in the personal reference form to be related to Respondent's abilities in the classroom. Mr. Ice would not wish to have Respondent return to Chiefland Elementary, given the assumed knowledge of the community about the events of January 18, 2001. Mr. Ice is not certain if the conduct displayed by Respondent on January 18, 2001, would happen again. Generally speaking, Mr. Ice has expressed the opinion that if the circumstances evidenced on the date in question could be addressed, Mr. Ice feels that Respondent could be an effective teacher elsewhere. Respondent admits that he had taken prescribed medication the same day he drank alcohol. That date was January 17, 2001. He took medication the next morning. He did not specify the medication by name that he took on those dates. Respondent's claim that he "blacked out" and that he is not certain what happened after the principal visited his classroom is not believed. The facts that Respondent does remember and testified about beyond the encounter early in the morning in his classroom with Mr. Ice belie that claim. In particular, Respondent's rather detailed explanation of what transpired in Ms. Warner's classroom in which he acknowledges participating in the lesson, raising his hand, rolling in the chair across the classroom, telling Ms. Warner to call upon a certain student and the students being removed from the classroom confirm his awareness of later events in the day. The remarks attributable to Dr. Godbey in his sworn statement concerning the adverse effect which the medication prescribed would have on Respondent in combination with alcohol, particularly their influence on Respondent's conduct are matters of conjecture. He made assumptions about the combination of drugs and when they were taken through an hypothesis, that is not precisely grounded on facts established in the record. Even if one accepts that the medications and alcohol led Respondent to act in the manner found in the facts, it does not excuse his conduct. Respondent determined to take the medications in a combination that is not clear from the record and to mix them with alcohol, when he had been specifically warned by Dr. Godbey that he should not drink alcohol, which when mixed with the anti-depressant drugs prescribed creates a problem. Dr. Godbey goes so far in his treatment summary as to explain the January 18, 2001 incident by report to the doctor from another source (presumably the North Florida Regional Medical Center) as a psychotic episode. At the same time Dr. Godbey acknowledges that the exact cause of the psychotic episode has remained uncertain. Nothing in the diagnosis within the treatment summary by Dr. Godbey or other remarks attributable to the doctor reveals that Respondent's illness is such that it compelled him to act in the manner evidenced on January 18, 2001. On the topic of alcohol, in receiving advise from Dr. Godbey, whether Respondent was told merely not to drink because he does not handle alcohol well, or was told not to drink in combination with medication he was taking, is not important. What matters is that Respondent of his own volition chose to drink the alcohol and combine it with medication leading to the results that have been explained in which his conduct on January 18, 2001, was reprehensible and inexcusable. Mr. Doyle remains in treatment by Dr. Godbey. He is presently taking psychotropic medication that does not appear to interfere with his cognitive functions, nor present an impediment to his ability to teach. As of February 17, 2003, Respondent was still being treated by Dr. Godbey through individual psychotherapy in addition to the prescription of psychotropic medications. From another perspective Respondent was taken to the North Florida Regional Medical Center in Gainesville, Florida, following the episode in question. The impression of that facility was that the Respondent evidenced acute altered mental status with psychosis and acute polysubstance abuse. A urine toxicology screen performed during his stay at that facility revealed Respondent was positive for amphetamines, positive for benzodiazepines, positive for opiates, and positive for tricyclics. Leaving the Scene of an Accident Without Injuries Respondent was charged in the County Court of the Eighth Judicial Circuit for Alachua County, Florida, Case No. 98-02397-TC-A, State of Florida vs. Troy Kevin Doyle. The offense charged was leaving the scene of an accident without injuries in violation of Section 316.061, Florida Statutes. The offense occurred on July 4, 1998, in Alachua County, Florida. On October 1, 1998, Respondent pled nolo contendre to the offense in open court. In that plea, which the Court found to be freely, knowingly, and voluntarily entered, a stipulation was reached by the parties acknowledging damage to property other than to Respondent's vehicle. It was explained and Respondent acknowledged that the maximum sentence in the case was sixty days in jail, as well as a $500.00 fine. When the matter was concluded, Respondent did not have any questions or any statement in opposition to the plea which was arranged in his presence. Neither did his attorney. The judge found Respondent guilty and withheld the adjudication and placed Respondent on court-supervised probation for a period of six months. There was no requirement to report during the probationary period. Respondent was also ordered to pay court costs in the amount of $244.00. Respondent was required to complete 20 hours of community service and provide proof of that service. Subsequently, Respondent completed an application for renewal of his professional Florida Educator's Certificate. That application for renewal was made on October 19, 2000. The signature on the application was notarized. It stated a reminder to Respondent of the consequences if he did not make certain that the matters contained in the application were true, correct, and complete and the consequences if Respondent was not forthcoming in his answers to the questions within the application, wherein the application form stated, "I understand that Florida Statutes provide for revocation of an Educator's Certificate if evidence and proof are established that the certificate has been obtained by fraudulent means. I further certify that all information pertaining to this application is true, correct, and complete." Within the application was a question which stated: Have you ever been convicted, found guilty, had adjudication withheld, entered a pretrial diversion program, or pled guilty or nolo contendere (no contest) to a criminal offense other than a minor traffic violation (DUI is NOT a minor traffic violation)? Failure to answer this question accurately could cause denial of a certificate. A YES or NO answer is required by Florida Law. If you check the YES box, you must give the information requested for each charge. Please attach a separate sheet if you need more space. Report any record other than SEALED or EXPUNGED records in this section. Notwithstanding the fact that Respondent had been found guilty and had adjudication withheld following a plea of nolo contendre to the offense involving Section 316.061, Florida Statutes, he did not acknowledge the plea and provide further information. The offences related to Section 316.061, Florida Statutes, are misdemeanors of the second degree, crimes punishable as provided in Section 775.02 or 775.03, Florida Statutes. Respondent, in his testimony, indicated that no one told him what was meant in the application to renew his teaching certificate concerning the question pertaining to criminal offenses where it exempted the reporting of minor traffic violations. It was not necessary that the application further define "minor traffic violation." It suffices that Respondent appeared in the County Court for Alachua County, Florida, in a criminal case and entered a plea of nolo contendre to an offense involving a misdemeanor of the second degree. Nothing in that process would reasonably lead Respondent to conclude anything other than the fact that the case before the court was more serious than a minor traffic violation. When Respondent answered the question in the application in the negative, he failed to answer the question candidly. He did this in a setting in which he knew or should have known that adverse consequences would pertain for providing a negative response to the question. If Respondent was unsure what was meant by the question which refers to a minor traffic violation being exempt from disclosure, he should have inquired as to the meaning. The hearing record does not reveal that he made inquiry to clarify the meaning of that term before completing the application. Prior Performance When classroom teacher evaluations were performed on March 17, 1998, and March 30, 1999, Respondent was found to meet proficiency or above the expected level of performance. In the school year 1999/2000, optional performance appraisal form dated May 12, 2000, Respondent had been rated as having exemplary overall performance.
Recommendation Based upon the Findings of Fact and Conclusions of Law reached, it is RECOMMENDED: That a final order be entered which finds Respondent in violation of Count 1, and Counts 3 through 6; dismisses Count 2; and revokes Respondent's educator's certificate for a period of two years. DONE AND ENTERED this 16th day of July, 2003, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of July, 2003.
