The Issue Whether Respondent committed the violations alleged in the Administrative Complaint? If so, what disciplinary action should be taken against her?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Since April 19, 1991, Respondent has held Florida teaching certificate 637552, which covers the areas of business education (grades 6 through 12) and physical education (grades 6 through 12). The certificate is valid through June 30, 1996. Respondent is now, and has been at all times material to the instant case, including January 4, 1992, employed as a teacher by the Broward County School Board. On January 4, 1992, while operating her motor vehicle, Respondent was involved in an incident which led to her arrest and to the filing of an information against her in Broward County Circuit Court Case No. 92-2200CF10A. The information contained the following allegations, all of which were true: MICHAEL J. SATZ, State Attorney of the Seventeenth Judicial Circuit of Florida, as Prosecuting Attorney for the State of Florida in the County of Broward, by and through his undersigned Assistant State Attorney charges that [P]AULA DAWN REDO on the 4th day of January, A.D. 1992, in the County and State aforesaid, did unlawfully commit an assault upon Lieutenant Tom McKane, a duly qualified and legally authorized officer of the City of Sunrise, knowing at the time that he was a law enforcement officer, with a deadly weapon, to wit: an automobile, while he was in the lawful performance of his duties, without intent to kill, by striking the police car being drive[n] by Lieutenant Tom McKane with [s]aid automobile thereby placing Lieutenant Tom McKane in fear of imminent violence, contrary to F.S. 784.021 and 784.07(2)(c), COUNT II AND MICHAEL J. SATZ, State Attorney of the Seventeenth Judicial Circuit of Florida, as Prosecuting Attorney for the State of Florida in the County of Broward, by and through his undersigned Assistant State Attorney charges that PAULA DAWN REDO on the 4th day of January A.D. 1992, in the County and State aforesaid, did unlawfully commit an assault upon Lieutenant John George, a duly qualified and legally authorized officer of the Town of Davie, knowing at the time that he was a law enforcement officer, with a deadly weapon, to wit: an automobile, while he was in the lawful performance of his duties, without intent to kill, by driving said automobile toward the police car being driven by Lieutenant John George thereby placing John George in fear of imminent violence, contrary to F.S. 784.021 and 784.07(2)(c), COUNT III AND MICHAEL J. SATZ, State Attorney of the Seventeenth Judicial Circuit of Florida, as Prosecuting Attorney for the State of Florida in the County of Broward, by and through his undersigned Assistant State Attorney charges that PAULA DAWN REDO on the 4th day of January A.D. 1992, in the County and State aforesaid, did unlawfully commit an assault upon Sergeant Gary Silvestri, a duly qualified and legally authorized officer of the Town of Davie, knowing at the time that he was a law enforcement officer, with a deadly weapon, to wit: an automobile, while he was in the lawful performance of his duties, without intent to kill, by driving said automobile toward the police car being driven by Sergeant Gary Silvestri thereby placing Sergeant Gary Silvestri in fear of imminent violence, contrary to F.S. 784.021 and 784.07(2)(c), COUNT IV AND MICHAEL J. SATZ, State Attorney of the Seventeenth Judicial Circuit of Florida, as Prosecuting Attorney for the State of Florida in the County of Broward, by and through his undersigned Assistant State Attorney charges that PAULA DAWN REDO on the 4th day of January A.D. 1992, in the County and State aforesaid, did then and there unlawfully, willfully and maliciously injure the property of another, to wit: a police car, property of City of Sunrise, by striking said police car with another automobile, the damage to the said property so injured being greater than two hundred dollars ($200.00) but less than one thousand dollars ($1,000.00), contrary to F.S. 806.13(1) and F.S. 806.13(2), COUNT V AND MICHAEL J. SATZ, State Attorney of the Seventeenth Judicial Circuit of Florida, as Prosecuting Attorney for the State of Florida in the County of Broward, by and through his undersigned Assistant State Attorney charges that PAULA DAWN REDO on the 4th day of January A.D. 1992, in the County and State aforesaid, while being the operator of a motor vehicle upon a street or highway, and having knowledge that she had been directed to stop the said motor vehicle by a duly authorized police officer, did unlawfully and willfully refuse or fail to stop in compliance with the said directive, contrary to F.S. 316.1935, COUNT VI AND MICHAEL J. SATZ, State Attorney of the Seventeenth Judicial Circuit of Florida, as Prosecuting Attorney for the State of Florida in the County of Broward, by and through his undersigned Assistant State Attorney charges that PAULA DAWN REDO on the 4th day of January A.D. 1992, in the County and State aforesaid, did then and there operate a motor vehicle in willful and wanton disregard for the safety of persons or property in that said Defendant did drive at a high rate of speed disregarding a number of traffic control devices, contrary to F.S. 316.192. The incident was the subject of newspaper article published in the Metro Section of the Fort Lauderdale Sun-Sentinel on January 9, 1992. Because of the publicity surrounding the incident, Respondent was asked to transfer from the school at which she had been teaching before the incident (Western High School) to another school (Pines Middle School). Respondent agreed to the transfer, which was thereafter effectuated. She has remained on the instructional staff at Pines Middle School since the transfer. On August 8, 1994, after having discussed the matter with her attorney, Respondent entered a guilty plea to each of the counts of the information that had been filed against her in Broward County Circuit Court Case No. 92- 2200CF10A. Court records reflect that the plea was entered in Respondent's "best interest." 1/ Respondent was adjudicated guilty of the crimes alleged in Counts IV through VI of the information and sentenced to time served (three days in jail) for having committed these crimes. With respect to the crimes alleged in Counts I through III of the information, adjudication of guilt was withheld and Respondent was placed on two years probation. To date, Respondent has conducted herself in accordance with the terms and condition of her probation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Commission enter a final order finding Respondent guilty of the violations of subsection (1) of Section 231.28, Florida Statutes, alleged in the Administrative Complaint and disciplining her for having committed these violations by suspending her teaching certificate for a period of 60 days and placing her on probation, subject to such terms and conditions as the Commission may deem appropriate, for a period of one year following the end of the suspension. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 11th day of December, 1995. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of December, 1995.
The Issue The issue in this case is whether Respondent violated Sections 231.28(1)(a), (c), (d), and (i), Florida Statutes (1997), and Florida Administrative Code Rule 6B-1.006(5)(a) and (h) by having his teaching certificate permanently revoked in New Jersey for dealing in stolen property and failing to disclose the revocation on the application for renewal of his Florida teaching certificate. (All chapter and section references are to Florida Statutes (1997) unless otherwise stated. Unless otherwise stated, all references to rules are to rules promulgated in the Florida Administrative Code in effect on the date of this Recommended Order.)
Findings Of Fact Petitioner is the state agency responsible for regulating certified teachers in the state. Respondent holds Florida Educator's Certificate Number 165660. Respondent's Florida teaching certificate is valid through June 10, 2001. On January 13, 1994, the State of New Jersey permanently revoked Respondent's educator's certificate in New Jersey for dealing in stolen cars with a student, for failing to report his criminal arrest to the New Jersey Board of Education (the "Board"), and for failing to notify the Board of the progress and status of the matter. Respondent was represented by counsel in an administrative proceeding that lasted over two years. The Board and the Township of Irvington in Essex County, New Jersey, filed charges against Respondent on October 18, 1991. Respondent filed an answer and affirmative defenses. On January 15, 1992, the Board referred the matter to the Office of Administrative Law to conduct an administrative hearing. An Administrative Law Judge (the "ALJ") conducted an administrative hearing on September 15 through October 1 and on December 15, 1992. During the hearing, Respondent testified in his own behalf. In relevant part, the ALJ found that Respondent knowingly and intentionally acquired, possessed, and used stolen cars. The ALJ further found that Respondent executed a false bill of sale for one of the vehicles, forged one of the owner's signatures, applied for and obtained fraudulent registrations for the stolen vehicles, was involved in dealing in stolen cars with a student, failed to notify the Board of his arrest for dealing in stolen property, and failed for many months thereafter to apprise the Board of the status of the matter. The ALJ recommended that Respondent should forfeit his tenured teaching position and be dismissed from his position. The Initial Decision of the ALJ was forwarded to the New Jersey Commissioner of Education (the "Commissioner"). Respondent filed exceptions to the ALJ's findings and conclusions. Respondent's exceptions were considered by the Commissioner. By Final Decision entered on June 9, 1993, the Commissioner accepted the findings and conclusions of the ALJ which found Respondent guilty of receiving and dealing in stolen automobiles with a student and for failing to disclose his arrest. The Commissioner ordered that a copy of the Final Decision be forwarded to the State Board of Examiners for its review and, in its discretion, further appropriate action. The Commissioner mailed a copy of its Final Decision on June 9, 1993. However, the documentary evidence does not show the addressee or address of the mailing. On September 23, 1993, the Board of Examiners issued an Order to Show Cause why Respondent's educator's certificate should not be revoked. On October 13, 1993, the Board of Examiners mailed the Order to Show Cause both by U.S. Mail and by certified mail. The evidence does not show the addressee or the address of the mailing. The certified mail was returned unclaimed. Respondent did not contest the Order to Show Cause. On January 13, 1994, the Board of Examiners permanently revoked Respondent's educator's certificate in New Jersey. On March 1, 1994, the Board of Examiners mailed a copy of the order of revocation. The evidence does not show the addressee or the address of the mailing. On June 26, 1996, Respondent submitted an application for renewal of his professional Florida Educator's Certificate. By sworn statement, Respondent certified that the responses to questions and information in the application for renewal were true, correct, and complete. In relevant part, the renewal application asked: Have you ever had a teaching certificate revoked . . . by a state other than Florida . . . . If YES, you must give the state where your certificate was revoked. . . . Respondent answered "yes" to the question on the renewal application. However, Respondent gave Florida as the state in which his certificate had been revoked and then represented that his teaching certificate had been reinstated. In the application for renewal of his Florida teaching certificate, Respondent failed to disclose the revocation of his teaching certificate in New Jersey. Respondent knew, or should have known, that his teaching certificate in New Jersey had been revoked. Respondent had constructive knowledge of the revocation of his teaching certificate in New Jersey. The evidence creates a rebuttable inference that Respondent knew, or should have known, of the revocation of his New Jersey teaching certificate. Respondent failed to present evidence to rebut the inference. Failure to disclose the revocation of his New Jersey teaching certificate on the application for renewal of his Florida teaching certificate was a reckless and careless disregard for the truth.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order finding Respondent guilty of violating Sections 231.28(1)(a), (c), (d), and (i), and Rule 6B-1.006(5)(a) and (h), and permanently revoking Respondent's teaching certificate in Florida. DONE AND ENTERED this 4th day of October, 1999, in Tallahassee, Leon County, Florida. DANIEL MANRY 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 Filed with the Clerk of the Division of Administrative Hearings this 4th day of October, 1999. COPIES FURNISHED: Kathleen M. Richards, Executive Director Educational Practices Commission Department of Education 224-E Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Jerry W. Whitmore, Program Director Professional Practices Commission Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400 Michael H. Olenick, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400 Carl Zahner, Esquire Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399 Matthew K. Foster, Esquire Brooks, LeBoeuf, Bennet & Foster, P.A. 863 East Park Avenue Tallahassee, Florida 32301 Howard O. Smith 1304 West 7th Street Sanford, Florida 07071
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint; and If so, what disciplinary action should be taken against her?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: At all times material to the instant case, Respondent held Florida teacher's certificate number 581280, covering the area of art education. Her certificate was valid through June 30, 1998. During the 1996-97 school year, Respondent was employed by the Broward County School Board (School Board) as an art teacher. This was her first year of teaching. In February of 1997, Respondent was reassigned from another school in the district to McNabb Elementary School (McNabb). Diane Lang is now, and has been for the past four years (including the 1996-97 school year), the Principal of McNabb. From the outset, Respondent had difficulty controlling students in her classroom at McNabb. Principal Lang attempted to help Respondent improve her classroom management skills. Her efforts, unfortunately, were to no avail. Principal Lang also received complaints concerning Respondent's use of profanity in the classroom. On February 25, 1999, Principal Lang reprimanded Respondent in writing for having engaged in such inappropriate conduct in front of her students. Late in the school day on April 21, 1997, when Respondent was in the art room teaching Ashley Russom's fifth- grade class, a student from another fifth-grade class, R. M., who was misbehaving in music class (being held across the hall), was sent by the music teacher to the art room for a "time out." When R. M. entered the art room, Respondent sarcastically announced to her students, "Look, it's my favorite student." Respondent then approached R. M., took him by the arm, and pulled him across the room to a chair. When he reached the chair, R. M. tripped and fell on the floor. He then picked himself up and, pursuant to Respondent's directions, sat on the chair. Respondent then returned to teaching the class. She was interrupted, however, when R. M. started making faces and distracting the students in the class. Respondent responded to R. M.'s disruptive conduct by again approaching him, taking him by the arm, and pulling him. This time she dragged him to the supply closet, which has a glass window facing the classroom. She left R. M. inside the supply closet and, as she exited, slammed the door. Upon slamming the door, Respondent yelled out, loudly enough for the 30 fifth-grade students in her class to hear, "Shit, I broke a nail." After Respondent resumed the lesson she was teaching, R. M. began pressing his face against the supply closet's glass window and making faces. He then picked up a knife that was in the supply closet, stood up on a counter that was next to the window, and put the point of the knife to his neck. A number of students in the class saw what R. M. was doing, and they shouted out to Respondent that R. M. was playing with a knife. Respondent then looked at R. M. through the supply closet window and told the class, "Just leave him alone; he's just trying to get attention." R. M. then began running on the counter in the supply closet with the knife still in his hand. Respondent was attempting to teach the class, but the students were not paying attention to her. They were watching R. M. As R. M. was running on the supply closet counter, he lost his balance and fell off the counter. R. M.'s demeanor changed after his fall. He sat quietly in the supply closet (without making faces or engaging in any other disruptive conduct) until he was let out by Respondent at the end of the period. As the students were leaving the art room, Respondent stated, loudly enough for some of the students to hear, "Why do I have to clean up after these damn kids?" Upon returning to Ms. Russom's classroom, her students told her about what had happened in Respondent's class. Ms. Russom, in turn, informed Principal Lang of what the students in her class had related to her. R. M. left school that day with a cut finger. The next school day, Principal Lang spoke to approximately ten of Ms. Russom's students concerning Respondent's conduct during the lesson she taught them on April 21, 1997, and she (Principal Lang) requested that the School Board's Special Investigative Unit conduct an investigation of the matter. At the conclusion of the 1996-97 school year, Respondent received an overall unsatisfactory performance evaluation and her annual contract was not renewed. As a result of the above-described conduct in which she engaged on April 21, 1997, while she had Ms. Russom's fifth- grade class in her classroom, Respondent's effectiveness as an educator has been reduced.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order finding Respondent guilty of the violations alleged in the Administrative Complaint and punishing her for committing these violations by revoking her license and denying her the right to teach for a period of six years, after which she may apply for a new certificate in accordance with the provisions of Section 231.28(4)(b), Florida Statutes. DONE AND ENTERED this 25th day of May, 1999, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 25th day of May, 1999.
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 Whether Petitioner's application for certification should be denied for the reasons set forth in the Notice of Reasons.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Petitioner is an applicant for a Florida Educator's Certificate. On April 17, 2004, at the Kendall campus of Miami-Dade Community College (College), Petitioner sat for the general knowledge portion of the certification examination (Test), which included an essay question. In advance of the Test, Petitioner was informed in writing of, among other things, the following: In its continuing effort to assure fairness and equity in examination administration conditions, the Florida Department of Education is putting into written form those activities that have been, and continue to be, regarded as cheating by, or on behalf of, an examinee. The specific items represent cheating activities encountered throughout the history of the Department's assessment programs, but do not preclude the Department from appropriate action in cases of cheating that do not fall under a specific item. These guidelines are applicable to the Florida Teacher Certification Examinations program . . . . Section 1 defines those behaviors that constitute cheating. Section 2 lists materials, equipment and other aids that examinees are prohibited from using during the examination. . . . Section 1: Cheating Cheating is any unauthorized activity that impairs or alters the circumstances of the examination as a measure of the knowledge or skills it was designed to assess, including but not limited to the following: * * * c. Bringing, or attempting to bring, into the examination room, materials, equipment, or information in any tangible form that could be used to provide unauthorized assistance in responding to examination questions or directions. * * * f. During the examination, using or attempting to use, prohibited aids, as identified in Section 2. * * * Section 2: Prohibited Aids The following aids are prohibited during examination administration: . . . papers of any kind, including scratch paper; . . . * * * Annette Lorenzo, a College employee, was the "room supervisor" in the room in which Petitioner took the Test. Ms. Lorenzo was assisted by another College employee, Gladys Manrique, "who was "working as a proctor" in the room. When Petitioner arrived in the room the morning of the Test, she was checked in by Ms. Lorenzo, who assigned her a seat near the front of the room. Upon being told of her seat assignment, Petitioner "pointed to the last seat of the last row" and asked if she could sit there instead. Ms. Lorenzo "said, 'Okay, no problem,' and [Petitioner] went and sat down in that seat." After "checking everybody in," Ms. Lorenzo read "instructions for the exam" to the examinees (including "go[ing] through all the guidelines on what constitute[d] cheating, as well as what [was] and [was] not allowed in the room"), and, with Ms. Manrique's help, handed out the testing materials. Testing then began (at approximately 8:45 a.m.). Ms. Lorenzo and Ms. Manrique "walk[ed] around the room, up and down the aisles," to "mak[e] sure that nobody [was] cheating or using anything [prohibited]" while the test was being administered. As she was doing so, during the essay portion of the Test, Ms. Lorenzo noticed Petitioner periodically "looking into her [cupped] left hand [which was positioned on the desk in front of her, just above her answer booklet, and appeared to contain tissues] while she was writing" in the booklet with her right hand. Ms. Lorenzo observed Petitioner's engaging in this suspicious conduct for "[a]t least ten minutes." During this time, Ms. Lorenzo was "staring at [Petitioner], watching her very closely." When she eventually made eye contact with Ms. Lorenzo, Petitioner moved her hands towards her face and "made a noise like she was blowing her noise." She then closed her left hand into a fist and continued writing with her right hand. Ms. Lorenzo advised Ms. Manrique that she suspected that "something [was] going on" with Petitioner, and she asked Ms. Manrique to "take a look." Ms. Manrique observed Petitioner for approximately five minutes, after which she reported back to Ms. Lorenzo that she "believe[d] there [was] something going on as well." Ms. Lorenzo then "walked to the back of the room and stood to the right of Petitioner." From her vantage point, Ms. Lorenzo noticed "sticking out the bottom of [Petitioner's left] hand," which was "still in a fist," not only tissues, but "paper with some writing on it." Upon making this observation, Ms. Lorenzo asked Petitioner to show her "everything [Petitioner] had in her hand."3 Petitioner's immediate response was to "[u]s[e] her right hand [to] grab[] the tissues out of her left hand," which she then quickly closed into a fist again. She gave the tissues she had transferred from her left to right hand to Ms. Lorenzo, explaining that she had "just tissues" and nothing else. Ms. Lorenzo, however, knew otherwise and demanded that Petitioner open her left hand. Petitioner complied, revealing the paper that Ms. Lorenzo had seen "sticking out" of the hand when it was clenched. The paper was the size of a "small note [pad] sheet." It was crumpled from being held tightly by Petitioner. On the paper was a complete essay that that Petitioner had written before entering the examination room. The essay was entitled, "A Place to Visit: San Antonio Park."4 Ms. Lorenzo took the paper, as well as Petitioner's testing materials, including Petitioner's answer booklet, from Petitioner. In her answer booklet, Petitioner had written an essay about San Antonio Park, substantial portions of which were identical, word for word, to what was on the paper that Ms. Lorenzo had confiscated from Petitioner's left hand. Petitioner had knowingly brought this paper into the examination room with the intent to use it as an aid in answering the essay question on the general knowledge portion of the Test,5 and she carried out this intent once the Test began.6 As Petitioner started to "g[e]t a little bit loud," Ms. Lorenzo escorted her from the room and took her to see Juan Meza, the College's testing director.7 On the way to Mr. Meza's office, Petitioner insisted that she had not cheated and "begg[ed] [Ms. Lorenzo] to let her go finish the exam." Ms. Lorenzo responded that Petitioner's "test [was] over for today." After Ms. Lorenzo had told Mr. Meza that she had "found [Petitioner] cheating," Mr. Meza spoke to Petitioner and told her that she could not "continue taking the test" because she had been caught cheating. Petitioner denied to Mr. Meza that she had been cheating. Mr. Meza, in turn, informed Petitioner that he would send an "irregularity report" to the Department and that the Department would "make [a] decision" as to whether she had been cheating and then "contact her to let her know what [was] going on." As promised, on or about April 19, 2004, Mr. Meza sent an "irregularity report" to the Department (along with the materials that Ms. Lorenzo had taken from Petitioner in the examination room). On April 26, 2004, the Department sent the following letter to Petitioner: This letter is in response to information I have received from staff at Miami Dade College, Kendall campus confirming that you failed to follow testing procedures during the administration of the General Knowledge Test on April 17, 2004. Along with the admission ticket you received for the examination, you received a letter that outlines the State's policy on cheating. Section 1 (c) and (f) and Section 2 state the following: "Section 1: Cheating Cheating is any unauthorized activity that impairs or alters the circumstances of the examination as a measure of the knowledge or skills it was designed to assess, including but not limited to the following: c. Bringing, or attempting to bring, into the examination room, materials, equipment, or information in any tangible form that could be used to provide unauthorized assistance in responding to examination questions or directions. * * * f. During the examination, using or attempting to use, prohibited aids, as identified in Section 2. Section 2: Prohibited Aids The following aids are prohibited during examination administration: Timex Data Link™ wrist watch; electronic pager; cellular telephone; pocket organizer; electronic writing pen or pen-input device; any electronic device with an alphabetic keyboard; dictionary or other books; ruler; papers of any kind, including scratch paper; slide rule; protractor; compass; laptop computer; calculator watch, or calculator except those calculators provided at the test center for the following tests: Mathematics 6-12, the math portion of Middle Grades Integrated Curriculum (MGIC), Middle Grades Mathematics 5-9, Chemistry 6-12, Physics 6-12, and the math subtests of the General Knowledge Test." As a result of your failure to abide by this policy, the score on the Essay subtest of the General Knowledge Test under your name and Social Security number . . . for the April 17, 2004, test administration has been invalidated. By copy of this letter, I am also informing Professional Practices Services and the Bureau of Educator Certification of this decision. This decision means that you have yet to fulfill the State's requirements for a passing score on the Essay subtest of the General Knowledge Test. You are entitled to dispute this decision through legal administrative procedures. If you wish to do so, you must send a written request for an administrative hearing in accordance with the provisions of Section 120.57(1), Florida Statutes. The written request must be postmarked within twenty (20) calendar days of the date you receive this letter and submitted to the following address: . . . . If you fail to submit the written request within the specified time period, you will have waived the opportunity to contest the decision through administrative proceedings, and the score invalidation decision will be final, subject only to judicial review pursuant to Section 120.68, Florida Statutes. Petitioner responded by sending a letter to the Department, which read (verbatim) as follows: I have received your letter about the problem I had the day of test. I'm so sorry about the day. In 20 years of being a teacher, I never had that kind of problem. That day I had a bad cold and when I finished my test, the only thing that I had to do was to check it, but I was coughing badly and I took a napkin that was inside my bag on the floor, but together with the napkin came out a paper. I took both in my hand. I put my hand up, because I knew that if the teacher saw me in this moment I got in trouble, but it was too late. The teacher came to me, asked for the paper and the napkin and without I could explain anything. She took to the supervisor and explained everything to him. He told he had to follow the rules, then he had to report the incident. So I think I should have an opportunity to do my tests again. The Commissioner subsequently notified Petitioner that her application for certification was being denied because she had "attempted to cheat" on the essay portion of Test "by referring to a complete essay she had in her possession when she entered the room." This denial of Petitioner's application for certification is the subject of the instant proceeding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order sustaining the denial of Petitioner's application for certification. DONE AND ENTERED this 30th day of August, 2005, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 30th day of August, 2005.
The Issue The issue is whether Petitioner’s Petition for Relief should be dismissed for failure to allege facts sufficient to invoke the jurisdiction of the Florida Commission on Human Relations (the “FCHR”) under section 760.10, Florida Statutes.1 1 Citations shall be to Florida Statutes (2020) unless otherwise specified. Section 760.10 has been unchanged since 1992, save for a 2015 amendment adding pregnancy to the list of classifications protected from discriminatory employment practices. Ch. 2015-68, § 6, Laws of Fla.
Findings Of Fact The Department is an employer as that term is defined in section 760.02(7). The Petition for Relief alleges the following ultimate facts, which are accepted as true for purposes of ruling on the Motion: I believe I have been discriminated against based on my race (Black), sex (male), and age (over 40). I also believe I am being retaliated against for filing a complaint with Florida Commission on Human Relations and in Federal Court. I have been working within the Gadsden County School system since January 2008 as a substitute teacher and have teaching experience. Around or on October 2020, I applied for a Social Studies position and was not offered an interview by the principal because DOE deliberately and maliciously held clearance letter to deny employment. Section 760.10 titled “Unlawful employment practices,” is the statute under which the FCHR exercises jurisdiction of the Petition for Relief. Section 760.10(1)(a) states that it is an unlawful employment practice for an employer to discriminate against any individual “with respect to compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, pregnancy, national origin, age, handicap, or marital status.” The Motion states that Petitioner is not, and never has been, an employee of the Department. Respondent’s Chief of Human Resource Management, David Dawkins, conducted a system-wide search and verified that Petitioner has never been employed by the Department. Mr. Dawkins’s affidavit to that effect was attached to the Motion. Mr. Jones did not contest the contents of Mr. Dawkins’s affidavit. The Motion also references section 760.10(5) as a possible avenue under which Mr. Jones might seek relief against the Department. Section 760.10(5) provides: Whenever, in order to engage in a profession, occupation, or trade, it is required that a person receive a license, certification, or other credential, become a member or an associate of any club, association, or other organization, or pass any examination, it is an unlawful employment practice for any person to discriminate against any other person seeking such license, certification, or other credential, seeking to become a member or associate of such club, association, or other organization, or seeking to take or pass such examination, because of such other person’s race, color, religion, sex, pregnancy, national origin, age, handicap, or marital status. In theory, the Department’s alleged “deliberate and malicious” withholding of Mr. Jones’s “clearance letter,” i.e., a Temporary Certificate to teach, could constitute a violation of section 760.10(5). However, the Department pointed out that after Mr. Jones applied for a Florida Educator Certificate, the Department sent him an “Official Statement of Status of Eligibility” on October 12, 2017. A copy of the Department’s letter to Mr. Jones was attached to the Motion. The letter informed Mr. Jones that he was eligible for a Temporary Certificate covering Social Science (Grades 6-12), if he completed the following requirements and documented them to the Bureau of Educator Certification (“BOE”): verification of employment and request for issuance of certificate on the appropriate certification form from a Florida public, state supported, or nonpublic school which has an approved Professional Education Competence Program. results of your fingerprint processing from the Florida Department of Law Enforcement and the FBI. Your employer will assist you in completing the fingerprint process. If your application or fingerprint report reflects a criminal offense or suspension/revocation record, your file will be referred to Professional Practices Services for further review. Issuance of your certificate will be contingent upon the results of this review. The Motion states that Mr. Jones submitted only the results of his fingerprint processing to BOE. Therefore, BOE was legally precluded from issuing a Temporary Certificate to Petitioner. Attached to the Motion was the affidavit of Daniel Moore, Chief of BOE, attesting to the fact that a request for issuance from a Florida public, state supported, or nonpublic school which has an approved Professional Education Competence Program is required in order for BOE to issue a Temporary Certificate. Mr. Moore’s affidavit is confirmed by Florida Administrative Code Rule 6A-4.004(1)(a)2., requiring verification of full-time employment by a Florida school district before a Temporary Certificate may be issued. Mr. Jones did not contest the contents of Mr. Moore’s affidavit. Based on the foregoing, the Motion requests entry of a summary recommended order of dismissal because Mr. Jones’s pleadings and admissions of fact, including those in his response to the Motion, are facially and conclusively insufficient to prove that he was ever an employee of the Department, or that the Department’s failure to issue a teaching certificate to Mr. Jones was based on anything more than the ministerial operation of the Department’s own rule. Mr. Jones’s response to the Motion does not address, and therefore appears to concede, the Department’s statement that he is not and has never been an employee of the Department. Mr. Jones did not allege that he has ever been an employee of, or an applicant for employment by, the Department. Mr. Jones’s response does not address the fact that the Department’s rule forbids it to issue a Temporary Certificate without verification of full- time employment. Rather, Mr. Jones pursues an argument alleging that the denial was somehow based on his criminal record and that denial on that basis is discriminatory because of the disproportionate percentage of African American and Latino citizens who have criminal records in comparison to Caucasians. Mr. Jones claims that the Department’s stated reason for denying him a Temporary Certificate was pretextual and that the actual reason was racial discrimination premised on his criminal record. In a related case, Mr. Jones has alleged that the Gadsden County School Board declined to hire him because of his criminal record, and that this declination was a pretext for discrimination based on race, age, and/or sex. The merits of Mr. Jones’s case against the local school board and its subsidiary institutions are not at issue here. The question in this case is whether the Department had anything to do with Mr. Jones’s failure to gain employment by the Gadsden County School Board. The undisputed facts establish that the Department’s role in this process was purely ministerial. Had Mr. Jones secured employment, the school that hired him would have requested the issuance of a Temporary Certificate by the Department. By operation of rule 6A-4.004(1)(a)2., the Department would have issued the Temporary Certificate. The Department had no role in the decisions of the local school officials to hire or not hire Mr. Jones. It is found that Mr. Jones has not alleged facts sufficient to state a case against the Department under section 760.10, and that he would not be able to prove at hearing that he was ever an employee of the Department, or that the failure to issue a Temporary Certificate to Mr. Jones was anything more than the Department’s following the requirements of its own rule.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that the Department of Education did not commit any unlawful employment practices and dismissing the Petition for Relief filed in this case. DONE AND ENTERED this 13th day of July, 2021, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of July, 2021. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 Dan Saunders Florida Department of Education Turlington Building, Room 101 325 West Gaines Street Tallahassee, Florida 32399 Ronald David Jones 1821 McKelvy Street Quincy, Florida 32351 Paula Harrigan, Esquire Department of Education Suite 1544 325 West Gaines Street Tallahassee, Florida 32399-0400 Cheyanne Costilla, General Counsel Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020
The Issue Whether or not Ossie L. Gardner, the Respondent, on or about August 2, 1977, in Duval County, Florida, did expose his sexual organs by masturbation inside a pornographic booth in the presence of a plain clothes city vice detective at a Jacksonville movie theater, and further, whether or not Ossie L. Gardner plead guilty to the lesser charge of "indecent exposure" and was fined 550.00 plus court costs, all in violation of Sections 231.09 and 231.28, Florida Statutes, and Sections 6A-4.37, 60-1 and 60-5, Florida Administrative Code, in that it is conduct which is inconsistent with good morals and the public conscience, not a proper example to students, and conduct which is sufficiently notorious to bring Ossie L. Gardner and the education profession into public disgrace and disrespect. Whether or not Ossie L. Gardner, the Respondent, on or about June 29, 1967, in Leon County, Florida, did solicit for a lewd and lascivious act by an offer to commit and engage in lewdness, to wit, fellatio with an employee of the Tallahassee Police Department, in violation of Sections 231.09 and 231.28, Florida Statutes, and Sections 6A-4.37, 6B-1 and 6B-5, Florida Administrative Code, in that it is conduct which is inconsistent with good morals and the public conscience, not a proper example for students, and conduct which is sufficiently notorious to bring Ossie L. Gardner and the education profession into public disgrace and disrespect.
Findings Of Fact This cause comes on for consideration based upon the Petition for Revocation of Teacher's Certificate filed by the Petitioner, Professional Practices Council, against Ossie L. Gardner, the Respondent. At the commencement of the hearing, the parties entered into several stipulations. The first of those stipulations was that the statements in the Petition for Revocation of Teacher's, Certificate found under the title "Jurisdictional Matters" are agreed to and established as facts in this cause; therefore, with the recitation of those facts in the following quotation, those facts under the title "Jurisdictional Matters" are hereby established. "JURISDICTIONAL MATTERS" "OSSIE L. GARDNER is the holder of Post-Graduate, Rank II Florida teaching certificate number 181441, covering Math, Emotionally Disturbed and Junior College, which is valid until June 30, 1993." "OSSIE L. GARDNER has been employed as a math/science teacher at the Juvenile Shelter in Jacksonville, Florida. He holds a tenure contract in Duval County where he continues to teach at this time. The Professional Practices Council received a report from Buford H. Galloway, Director of Evaluation and Development, indicating that OSSIE L. GARDNER was charged with Exposure of Sexual Organs by Masturbation on August 2, 1977. Pursuant to this report and under the authority contained in Section 231.28, Florida Statutes, staff of the Department of Education conducted a professional inquiry into the matter and on February 13, 1978 made its report to the Executive Committee of the Professional Practices Council. The Executive Committee recommended that the Commissioner of Education find that probable cause exists to believe that OSSIE L. GARDNER is guilty of acts which provide grounds for the revocation of his Florida teaching certificate. The Commissioner of Education found probable cause on February 13, 1978, and directed the filing of this petition. The Petitioner has authority under Section 6A-4.37, Rules of the State Board of Education to file this Petition. The State Board of Education has authority under action 231.28, Florida Statutes to revoke the teaching certificate of OSSIE L. GARDNER." At the commencement of the hearing, the parties further agreed to stipulate to the introduction of certain items of evidence without the necessity for authentication of those documents. Finally, the parties agreed to stipulate to the introduction of the deposition of Otha Lee Wooden, as a late-filed exhibit, to be used by the undersigned in the same way as the testimony offered in the course of the hearing. The facts in the case revealed that on August 2, 1977, between 3:30 and 4:00 P.M., Officer J. W. Lockley of the Jacksonville Sheriff's Office, Duval County, Florida, was making a routine check of the J & K Adult Theater in the 400 block of Main Street, Jacksonville, Florida. This theater contains material of sexual content. Among other features of the theater are certain booths located behind a curtained area, which is separated from the other part of the establishment. Those booths have coin-operated projectors which allow for the display of preselected film clips which have been obtained from the proprietor. The booths are approximately four feet by seven or eight feet in dimension and the patron may stand up or in some cases may sit down in the booths. The booths have a further feature which is a door which has instructions that it must be closed during the course of the film being shown. On the date in question, Officer Lockley went into the area of the theater which contains the booths and observed the Respondent, Ossie L. Gardner, in Booth No. 8. At that time, the door to the booth was open and Gardner was observed with his sexual organs exposed, and was observed stroking his exposed penis with his hand in an upward and downward motion. A film was playing in the booth, being projected on a small screen. The film depicted sexual activity between male participants, specifically fellatio. Officer Lockley passed up the aisle from where he had observed this activity on the part of the Respondent and then returned to the area of the booth in which Mr. Gardner was located. At that point, Gardner continued to stroke his penis and to look and obtain eye contact with Lockley and then to look down at his penis. Lockley subsequently arrested Gardner for exposure of sexual organs, in violation of Section 80003, Florida Statutes. Gardner later plead guilty to a municipal ordinance violation of indecent exposure, City of Jacksonville Ordinance No. 330.124. For this violation, Gardner was given a judgment and sentence of a $50.00 fine plus $2.00 court costs. In the course of the arrest, the Respondent indicated to Officer Lockley that he had bean arrested for similar conduct before in a matter in Tallahassee, Florida. This incident pertained to a situation which occurred in the Greyhound Bus Station in Tallahassee, Florida, on June 29, 1967. At that time, C. A. McMahan, an employee of the State Prison Camp, Division of Corrections, Tallahassee, Florida, was working as an agent with the Tallahassee Police Department to assist in the investigation of vice activities. In particular, McMahan was assisting in the investigation of alleged homosexual activities in the men's restroom of the Greyhound Bus Station. On the date in question at around 10:00 P.M., McMahan went into the men's restroom and entered one of the closed-in stalls in which a commode was located; Gardner went to one of the urinals in the bathroom facility. Before entering the stall, McMahan observed Gardner masturbating at the urinal. McMahan then closed the door to the stall and was seated in the area of the commode when Gardner moved into the area next to McMahan's stall and continued to masturbate as observed through a hole in the wall between the stall in which McMahan was located and the area where Gardner was positioned. After a period of three or four minutes, Gardner stuck his penis through a hole in the partition wall into the area where McMahan was located. At that point, McMahan left to tell Captain Burl S. Peacock of the Tallahassee Police Department, Tallahassee, Florida, of his observation. Both of these individuals went back into the restroom, at which point Gardner was arrested. Gardner, after being advised of his constitutional right to remain silent, admitted that he had gone to the restroom with the thought that he could get some "sexual relief", and further admitted putting his penis through the hole in the partition for the purpose of getting that "sexual relief." Gardner also admitted to Peacock that he had been involved in homosexual activities as early as the age of 18 and had performed sodomy on one occasion and had been a passive partner in homosexual activities at other times. Subsequent to the June 29, 1967, arrest, Gardner received psychiatric attention for his problem. For the incidents related in the matters of August 2, 1977, and June 29, 1967, the Respondent has been charged with violations of Sections 231.09 and 231.28, Florida Statutes, and Sections 6A-4.37, 60-1 and 6B-5, Florida Administrative Code; in that his conduct is alleged to be inconsistent with good morals and the public conscience; not a proper example for students and conduct which is sufficiently notorious to bring Ossie L. Gardner and the education profession into public disgrace and disrespect. A review of those stated sections of the Florida Statutes and the The Florida Administrative Code reveals that any substantive allegations cognizable through this complaint are found in provision of Section 231.09(2), Florida Statutes, and Section 231.28(1), Florida Statutes, only. Therefore, no further reference will be made to Section 6A- 4.37, 60-1 and 60-5, Florida Administrative Code. Section 231.09(2), Florida Statutes, reads as follows: "(2) EXAMPLE FOR PUPILS.--Labor faithfully and earnestly for the advancement of the pupils in their studies, deportment and morals, and embrace every opportunity to inculcate, by precept and example, the principles of truth, honesty and pat- riotism and the practice of every Christian virtue." The conduct which has been established in the facts pertaining to the incidents of August 2, 1977, and June 29, 1967, involving the exposure of the Respondent's sexual organs and the surrounding activities in those incidents, is conduct which shows that the Respondent is not laboring faithfully and earnestly for the advancement of the pupils in their deportment and morals' in violation of Section 231.09(2), Florida Statutes. No other violation of that provision has been established. Section 231.28(1), Florida Statutes, together with the preamble to the overall Section 231.28, Florida Statutes, reads as follows: "231.28 Suspension or revocation of certificates. The Department of Education shall have authority to suspend the teaching certificate of any person for a period of time not to exceed 3 years, thereby denying him the right to teach for that period of time, after which the holder may return to teaching as provided in subsection (6); to revoke the teach- ing certificate of any person, thereby denying him the right to teach for a period of time not to exceed 10 years, with reinstatement subject to provisions of subsection (6); or to revoke permanently the teaching certificate of any person, provided: (1) It can be shown that such person obtained the teaching certificate by fraudulent means, or has proved to be incompetent to teach or to perform his duties as an employee of the public school system, or to teach in or to operate a private school, or has been guilty of gross immorality or an act involving moral turpitude, or has had his certificate revoked in another state, or has been convicted of a mis- demeanor, felony, or any other criminal charge, other than a minor traffic violation, or upon investigation has been found guilty of personal conduct which seri- ously reduces his effectiveness as an employee of the school board, or has otherwise violated the provisions of law, the penalty for which is the revocation of the teaching certificate, or has refused to comply with the regulations of the State Board of Education or the school board in the district in which he is employed." Again, the acts of August 2, 1977, and June 29, 1967, involving the exposure by the Respondent of his sexual organs and the facts therein, show that the Respondent has been guilty of gross immorality or an act involving moral turpitude. The only other possible violation under Section 231.28(1), Florida Statutes, which might be argued is the allegation of possible conduct which seriously reduces the Respondent's effectiveness as an employee of the school board. The sole testimony offered in the course of the hearing which would address that substantive accusation would be that testimony found in the deposition of Otha Lee Wooden. A review of that testimony indicates that the opinion of the principal of the school in which the Respondent teaches, to wit, the school No. 182, Juvenile Shelter School, is to the effect that the facts in these cases are not known to other persons in the school. Consequently, there is no testimony to indicate that there would be any loss of effectiveness if Mr. Gardner continued to teach. No other violations were alleged or proven.
Recommendation In the course of the hearing, matters in mitigation and aggravation were considered. In that presentation, it was demonstrated that the Respondent is a teacher with an outstanding background, as revealed by his personnel file, which is the Respondent's Exhibit No. 8 admitted into evidence. It was also established that the Respondent is a man of distinguished service to his country through service in the United States Army, as established in the Respondent's Exhibits Nos. 1 through 7. Further, it was established that absent these incidents alluded to in the course of this Recommended Order, the Respondent has not been the subject of disciplinary action by the Petitioner on any other occasion. Nonetheless, in consideration of the nature of his profession, it is recommended that the Respondent, Ossie L. Gardner, have his Post-Graduate Rank II Florida Teaching Certificate No. 181441 REVOKED for a period of three (3) years. DONE and ENTERED this 15th day of September, 1978, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings Mail: 530 Carlton Building 101 Collins Building Tallahassee, Florida 32399-1550 COPIES FURNISHED: L. Haldane Taylor, Esquire 2516 Gulf Life Tower Jacksonville, Florida Charles E. Grabill, Jr., Esquire 168 Blanding Boulevard, Suite 2 Orange Park, Florida 32073 Mr. M. Juhan Mixon Professional Practices Council 319 West Madison Street, Room 3 Tallahassee, Florida 32304
Findings Of Fact Petitioner Samuel J. Pomeranz holds a "Rank 2" certificate issued by the Florida Department of Education. Petitioner Samuel J. Pomeranz obtained an advanced certificate in Educational Administration and Supervision in June 1970, from City College of New York. He obtained a Bachelor of Arts Degree in 1957 and a Master of Arts Degree in Education in 1959. Petitioner was licensed as a teacher in the State of New York and served as head of Curriculum Development in a senior high school in New York, New York. At the time of the hearing, he had not taught school in the State of Florida. Petitioner applied for a "Rank 1A" teaching certificate from the Respondent Department of Education Certification Section, but certification as "Rank 1A" was denied. Florida Administrative Code Rule 6A-4.049(1)(b) 1. requires that an applicant hold a "sixth year postmaster's level degree." Applicant received a certificate rather than a degree at the conclusion of his postmaster's work.
Recommendation Affirm the Respondent's action in denying Petitioner's request for "Rank 1A" certificate. DONE and ORDERED this 22nd day of October, 1976 in Tallahassee, Florida. COPIES FURNISHED: William L. Boyd, Esquire Post Office Box 5617 Tallahassee, Florida 32303 Gene T. Sellers, Esquire State Board of Education Knott Building Tallahassee, Florida 32304 DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675
The Issue The issue in this case is whether the Education Practice Commission should grant Petitioner's application for a Florida teaching certificate.
Findings Of Fact By Application for Florida Educator's Certificate filed February 22, 1995, Petitioner requested an initial two-year nonrenewal temporary teaching certificate and a two-year part-time coaching certificate. The application discloses that Petitioner was born July 24, 1960. A question on the form asks: Have you ever been convicted, found guilty, entered a plea of nolo contendere (no contest), or had adjudication withheld in a criminal offense other than a minor traffic accident (DUI is NOT a minor traffic violation); or are there any criminal charges now pending against you? SEALED or EXPUNGED records must be reported pursuant to s.943.058, F.S. Failure to answer this question accurately could cause denial of certification. 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. The additional information requested on the form, if the "yes" box is checked, provides spaces for the following information: "city where arrested," "State," "Charge(s)," and "Disposition(s)." In response to this question, Petitioner checked the "yes" box and filled in the three spaces provided. Petitioner disclosed that, in East Williston, New York, in 1978, he was charged with "DUI" and the disposition was "license revocation." (This would mean driver's license because Petitioner answered in the negative the next question on the form, which asks whether he had ever had a teaching certificate revoked or otherwise disciplined in another state.) Petitioner also disclosed that, in Roslyn, New York, in 1979, he was charged with "DUI" and the disposition was "license revocation." Last, Petitioner disclosed that, in Mineola, New York, in 1986, he was charged with "Disorderly-Conduct" and the disposition was "Plead Guilty/Paid Fine [and] Placed on Probation." On a separate sheet of paper attached to the February 22 application and entitled "Arrest/Revocation Record," Petitioner disclosed: In addition to the records I have provided you, I was arrested several other times around the year 1980, and I don't recall the exact dates and dispositions--they were misdemeanors for disorderly conduct, and the charges were either dismissed or reduced and a fine paid. In signing the application, which is acknowledged by a notary, Petitioner attests that "all information pertaining to this application is true, correct, and complete." By Application for Florida Educator's Certificate filed March 11, 1994, Petitioner requested only a two-year part-time coaching certificate. This application is identical to the first except in the disclosure of convictions. In the March 11 application, Petitioner disclosed the East Williston and Roslyn offenses, although the years changed to 1979 and 1980, respectively. Instead of a Mineola offense in 1986, Petitioner listed an Old Westbury offense in 1986. The Old Westbury offense was also for disorderly conduct and the disposition was a guilty plea and payment of fine, although the probation was omitted. Petitioner did not disclose on a separate sheet or otherwise the additional material disclosed on the separate sheet attached to the February 22 application. Petitioner has passed the relevant portions of the examination required of teachers and has met the conditions for issuance of a Florida teaching certificate except for issues in connection with his criminal history. By letter dated February 23, 1995, Respondent informed Petitioner that his application for a Florida teaching certificate had been denied. The letter refers to an accompanying Notice of Reasons. The Notice of Reasons recites that Petitioner filed an application for a Florida teaching certificate in March 1994. The Notice of Reasons notes that Petitioner disclosed only three of ten criminal convictions and concludes that the nondisclosures and convictions themselves constitute violations of the statutes and rules cited in the Preliminary Statement above. On February 19, 1979, Petitioner was arrested and charged with resisting arrest, driving under the influence, and operating a vehicle without a license. This and all other arrests took place in Nassau County, New York. On May 10, 1979, Petitioner pleaded guilty to, and was adjudicated guilty of, the reduced charges of disorderly conduct and driving while ability impaired by alcohol. The court sentenced Petitioner to a $500 fine, alcohol rehabilitation, and restriction of his driver's license to business and school. On September 27, 1979, Petitioner was arrested and charged with driving under the influence and two counts of criminal mischief. On July 2, 1980, Petitioner pleaded guilty to, and was adjudicated guilty of, a reduced charge of two counts of disorderly conduct. The court sentenced Petitioner to a $75 restitution payment or 10 days in jail and conditionally discharged him. On November 25, 1979, Petitioner was arrested and charged with resisting arrest and driving under the influence. The former charge was dismissed. On July 2, 1980, Petitioner pleaded guilty to, and was adjudicated guilty of, driving under the influence. The court sentenced him to a $200 fine and revocation of his driver's license. On January 12, 1982, Petitioner was arrested and charged with assault. On April 12, 1982, Petitioner pleaded guilty to the reduced charge of harassment. The court deferred disposition and conditionally discharged Petitioner pending payment of $32 restitution. On May 19, 1984, Petitioner was arrested and charged with criminal mischief. On April 1, 1985, Petitioner pleaded guilty to, and was adjudicated guilty of, the reduced charge of attempted criminal mischief. The court unconditionally discharged him. On May 26, 1985, Petitioner was arrested and charged with criminal mischief and resisting arrest. On June 12, 1986, Petitioner pleaded guilty to, and was adjudicated guilty of, the charges. The court sentenced Petitioner to three years' probation. On November 5, 1986, Petitioner was arrested and charged with harassment and resisting arrest. On December 1, 1987, Petitioner pleaded guilty to, and was adjudicated guilty of, both charges. The court conditionally released Petitioner. Petitioner is recovering from dependencies on alcohol and drugs. In 1987, he entered a rehabilitation clinic on Pine Island where he underwent a month's treatment. He then entered a halfway house in Ft. Myers for three months. He regularly attends Alcoholic Anonymous meetings and obtains counseling. Prior to obtaining treatment, Petitioner attended St. Johns University and the Berklee College of Music, evidently without obtaining any degrees. Since treatment, Petitioner obtained in 1989 an Associate Arts degree from Edison Community College in Ft. Myers and in 1992 a Bachelor of Fine Arts degree from Emerson College in Boston with a major in acting and a minor in literature. While in Boston pursuing the BFA degree, Petitioner taught writing to gifted high school students and voluntarily performed for high school students plays that Petitioner had written and produced. He also tutored inner city students in reading. In April 1994, Petitioner obtained a statement of eligibility from Respondent. This allowed him to teach for up to two years, during which time he had to apply for a temporary nonrenewable teaching certificate. In August 1994, Petitioner was employed to teach seventh grade social studies and reading at Cypress Lake Middle School in Lee County. After a month, he was transferred to the special education department where he taught students in the middle-school drop-out prevention program. While at the school, Petitioner served as an assistant coach on the girls' basketball team and the boys' baseball team. The principal of the school terminated Petitioner's contract February 21, 1995, evidently when he learned that Respondent would be denying him a Florida teaching certificate. Petitioner has since been employed as a teacher by a private school in Lee County. Petitioner relied on advice from a well-meaning friend when he filed a second application a couple of weeks after filing the first application. The friend had told Petitioner that he could apply for a coaching certificate without applying on the same application for a two-year temporary teaching certificate. The innocent filing of two separate applications generated confusion for both Petitioner and Respondent. When denying Petitioner's request for a teaching certificate, Respondent inadvertently omitted mention of the first application. Similarly, when filing the second application, Petitioner inadvertently failed to include the separate sheet that he included with the first application. However, Respondent already had the separate sheet from the first application. It would be as disingenuous for Respondent to claim lack of knowledge, as to the second application, of the disclosures contained on the separate sheet attached to the first application as it would be for Petitioner to claim that the denial of the second application is not also intended to be a denial of the first application. The adequacy of the disclosures on the separate sheet is a separate matter. The two applications refer to two of the three 1979 arrests and report sentences of revocation of driver's license. The three 1979 arrests actually resulted in convictions for disorderly conduct and driving while ability impaired by alcohol (February 1979 arrest), disorderly conduct (September 1979 arrest), and driving under the influence (November 1979 arrest). The actual sentences were, respectively: $500 fine, driving restrictions, and alcohol rehabilitation; $75 restitution; and license revocation and $200 fine. The first two disclosures do a fair job of revealing Petitioner's first three convictions, especially given the fact that they took place 15 years ago when Petitioner was 18 and 19 years old. Obviously, one arrest/conviction is missing, but it appears that the court disposed of the second and third arrests at the same time and possibly in a consolidate proceeding. This may account for Petitioner's recollection that the second and third arrests were a single case. Also, the separate sheet addresses omissions. The dates are a little off, but the first arrest was early in 1979, and the consolidated disposition of the second and third arrests was in 1980. As reported by Petitioner, the charges are roughly correct, and the dispositions suggest the seriousness of the offenses. It is hard to tell which conviction the third reported arrest signifies. After the three 1979 arrests, there were four more convictions for which Petitioner had to account. To his credit, Petitioner identified 1986 as the year of the arrest, so as not to suggest that his criminal problems were further behind him than they really were. Although none of the actual arrests or convictions is for disorderly conduct, which is what Petitioner reported on the application forms, all four of the convictions could be fairly described as disorderly conduct. The reported and actual dispositions do not preclude the possibility that Petitioner was identifying any of the four arrests. Thus, Petitioner was probably disclosing the November 1986 arrest on the application forms, and he did a reasonably complete job of doing so. The disclosure question is therefore whether the separate sheet adequately accounts for the convictions arising out of the 1982, 1984, and 1985 arrests. These arrests took place "around the year 1980," as Petitioner reported on the separate sheet. "Disorderly conduct," as stated on the separate sheet, roughly describes the nature of the offenses, although less so the nature of the arrests, which is what Petitioner claims on the separate sheet to be describing. In fact, Petitioner paid restitution of $32 once, was unconditionally discharged once, and was placed on probation once. The reported fine in each case serves as reasonable disclosure, at least where no jail time is involved. On balance, Petitioner's disclosures did more than place Respondent on inquiry notice. The disclosures were reasonably accurate and detailed. They gave a fair picture of the kind of trouble that Petitioner got into at that point in his life. Respondent's case is based on Petitioner's unfitness to teach based on his alleged dishonesty in the application process and his past criminal behavior. Once the question of dishonesty in the application process is resolved in favor of Petitioner, the remaining focus is on his behavior 9-15 years ago when he was 18-26 years old. The number of arrests and convictions is troubling. But the dispositions do not suggest offenses of extreme gravity. Petitioner is now 35 years old. He has rehabilitated himself in terms of intoxicants, as well as educationally. For many years, he has demonstrated a clear commitment to teaching and evidently is skilled in the profession. He has served his communities well and seeks to continue to do so as a teacher in Florida. Given the nature of the offenses, their age, and the age of Petitioner at the time he committed the offenses, there is no basis in the record to find that Petitioner is morally unfit to teach.
Recommendation It is RECOMMENDED that Education Practice Commission enter a final order granting Petitioner's February 1994 application for a Florida teaching and coaching certificate. ENTERED on October 6, 1995, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings on October 6, 1995. APPENDIX Rulings on Respondent's Proposed Findings 1-13: adopted or adopted in substance. 14-15: rejected as unsupported by the appropriate weight of the evidence. 16: adopted or adopted in substance. 17-18: rejected as unsupported by the appropriate weight of the evidence. 19-22: adopted or adopted in substance. 23-27: rejected as unsupported by the appropriate weight of the evidence. COPIES FURNISHED: Karen Barr Wilde, Executive Director Education Practices Commission 301 Fla. Education Center 325 W. Gaines St. Tallahassee, FL 32399-0400 Kathleen M. Richards, Administrator Professional Practices Services 352 Fla. Education Center 325 W. Gaines St. Tallahassee, FL 32399-0400 Barbara J. Staros, General Counsel Department of Education The Capitol, PL-08 Tallahassee, FL 32399-0400 Attorney Jerry L. Lovelace 909 SE 47th Terrace, Suite 201 Cape Coral, FL 33904 Ronald G. Stowers Office of the General Counsel Department of Education Suite 1701, The Capitol Tallahassee, FL 32399-0400
The Issue Should the State of Florida, Education Practices Commission impose discipline against the Respondent for sexual misconduct with a student.
Findings Of Fact The Respondent held Florida Teaching Certificate No. 686332, covering the area of emotionally handicapped education, which was valid through June 30, 2002. At all times pertinent hereto, the Respondent was employed as a teacher at Bayonet Point Middle School in Pacso County School District. A.Y. was an emotionally handicapped student who had been a student of the Respondent in the 1999-2000 school year. Between June and December 2000, when A.Y. was 13 years old, the Respondent engaged in an inappropriate relationship with A.Y. This relationship included kissing, fondling, and on more than one occasion the Respondent's digital penetration of A.Y.'s vagina. On or about December 15, 2000, the Respondent was observed meeting A.Y. at a library when she got into his car and drove away. He later claimed he was counseling her. The Respondent was charged with two counts of committing lewd and lascivious acts with a minor as a result of his behavior with A.Y. On November 26, 2001, the Respondent entered a plea of guilty to both counts. The Respondent was adjudicated guilty on both counts, and sentenced to eight years in prison, followed by seven years of probation, concurrently on each charge. James Davis, the Director of Human Resources for the School Board of Pasco County where the Respondent taught, testified. Mr. Davis was a certified teacher with many years of experience and testified about professional standards and the impact of the Respondent's acts upon the school system. For a teacher to enter into a sexual relationship with a student, especially a young, emotionally handicapped student, is very harmful to the student emotionally and academically. A.Y. became defensive, and then felt guilty that she had caused the Respondent to get into trouble. Furthermore, such conduct destroys the faith the parents and other community members have in the educational system. There were articles in the newspaper about the situation which were adverse to the educational environment. The parents of A.Y. were very angry about the acts committed by the Respondent. The Respondent, when questioned by administrative staff for the Pasco School District, admitted he made an error in meeting A.Y., but denied any other inappropriate conduct.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered permanently denying the Respondent a teaching certificate. DONE AND ENTERED this 27th day of February, 2003, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 27th day of February, 2003. COPIES FURNISHED: Bruce P. Taylor, Esquire Post Office Box 131 St. Petersburg, Florida 33731-0131 James C. Howard Gulf Correctional Institution 500 Ike Steele Road Wewahitchka, Florida 34655 Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Room 224-E Tallahassee, Florida 32399-0400 Marian Lambeth, Program Specialist Bureau of Educator Standards Department of Education 325 West Gaines Street, Room 224-E Tallahassee, Florida 32399-0400
