The Issue Whether Respondent, a teacher and basketball coach, engaged in sexual misconduct, including lewd or lascivious molestation, with student athletes; if so, whether disciplinary action, up to and including permanent revocation, should be taken against his educator certificate.
Findings Of Fact Respondent Javier Cuenca ("Cuenca") holds Florida Educator Certificate 958539, which covers the areas of educational leadership, mathematics, and physical education and is valid through June 30, 2022. During the time relevant to this case, Cuenca worked as a teacher in the Miami-Dade County Public School District ("District"). For the 2011-2012 school year, Cuenca was employed by Mater Academy, a charter School in Hialeah Gardens, Florida, after which he took a yearlong leave of absence from the District to work for a private company as a tutor. Otherwise, Cuenca taught in traditional public schools. In addition to teaching, Cuenca served as a basketball coach at several schools, including Hialeah Gardens Middle School and Hialeah Gardens Senior High School. Cuenca continued coaching for these schools on a part-time basis even while on leave from his teaching position. Cuenca's employment with the District ended on November 7, 2013, simultaneously with the commencement of an investigation into allegations that he had engaged in sexual misconduct with male students on the basketball teams he coached. The facts giving rise to these allegations are relevant to some of the instant charges against Cuenca and will be addressed further below in this Recommended Order. Cuenca was arrested in 2014 and charged under three separate criminal informations with multiple felonies arising from allegations of lewd or lascivious child molestation. The alleged victims were Students D.N., D.F., and R.D., each of whom was a basketball player coached by Cuenca. Later, a fourth criminal information was filed, charging Cuenca with lewd or lascivious conduct against O.Q., another student athlete whom Cuenca had coached. On October 4, 2016, Cuenca accepted a deal under which he agreed to plead nolo contendere to the reduced charge of felony battery in the cases involving D.F. and O.Q., which would be consolidated in the process, in exchange for the dismissal of the cases involving D.N. and R.D. Accepting the plea that same day, the Circuit Court of the Eleventh Judicial Circuit, Miami- Dade County, immediately entered a Finding of Guilt and Order of Withholding Adjudication/Special Conditions.2/ Cuenca was placed on probation for a period of two years. The upshot is that Cuenca has a criminal record comprising a pair of felony batteries committed, on separate occasions, against two student athletes. At the same time, however, Cuenca was not "found guilty" by a jury; was not adjudicated guilty by the court; and did not plead guilty to, or otherwise admit committing, these crimes. In short, strange as it might seem, Cuenca——who was sentenced and punished as a felon——is not a convicted felon. As we will see, moreover, although entering a plea of nolo contendere to a criminal charge is a disciplinable offense under current law, the statute in effect at the time Cuenca entered his plea did not authorize the Education Practices Commission ("EPC") to discipline a teacher for pleading no contest to a crime. If Cuenca has committed a disciplinable offense, it is because of his conduct leading to the criminal proceedings, not his criminal background per se. The evidence of underlying wrongdoing in this case concerns Cuenca's interactions with three players, O.Q., D.N., and D.F. The most serious allegations involve O.Q., a young man who, unlike D.N., D.F., and Cuenca himself, appeared at hearing to testify, rather than testifying via deposition as did the others. O.Q. testified credibly that, when he was between the ages of 15 and 16, his basketball coach, Cuenca, had "inappropriately touched" him on multiple occasions. O.Q. was unable to remember how many times. There was "one incident," however, which stands out in O.Q.'s mind as the "main incident" that will "stay with [him] for the rest of [his] life." O.Q. says that this incident is "constantly on the back of [his] mind," having left a "scar," which "haunts" him "[e]ven though it was years ago." For O.Q., it is "embarrassing even to mention or speak about" this incident. The incident happened at Cuenca's house, in "his room." According to O.Q., on this particular occasion, Cuenca grabbed and fondled O.Q.'s penis, for the purpose of masturbating O.Q., which he did.3/ The undersigned believes O.Q. and finds that this incident did, in fact, take place as O.Q. described it.4/ As a practical matter, this finding, alone, is dispositive because, obviously, a teacher found to have masturbated a 16-year-old student will be guilty of one or more disciplinable offenses sufficient to revoke his or her certificate. Here, the Commissioner has proved additional acts of misconduct involving D.N. and D.F., which should be addressed nonetheless, if for no other reason than to reinforce the inevitable outcome. Cuenca's modus operandi for exploiting his relationships with these players relied on his authority as a coach to pressure them into exposing themselves. He frequently asked them questions to determine whether they were sexually active, ostensibly to urge abstinence and warn against becoming involved in situations that might interfere with school work and athletics. To some extent, these conversations were unobjectionable. Coaches should not be discouraged from counseling student athletes about age-appropriate sexual behavior. Cuenca, however, overreached. Using the abstinence angle as a pretext, Cuenca pestered the players to show him their "virgin lines." There is, of course, no such thing as a "virgin line." Cuenca used this mumbo jumbo to trick his young players into believing that there is some sort of physical mark of virginity visible on the penis. Cuenca constantly demanded to see this "proof" of virginity to confirm that his players were not misbehaving. Another approach that Cuenca used was the offer of steroids, which athletes sometimes take illicitly to gain muscle mass and improve their performance. Cuenca told the boys that he needed to examine their genitals to ascertain their steroid readiness.5/ If they refused, Cuenca used the stick of retaliation, such as the threat of reduced playing time or expulsion from the team. Cuenca used these methods on D.N. and D.F. In February 2013, Cuenca succeeded in convincing D.N., then a junior in high school, to drop his shorts while the two were alone together in the weight room. Cuenca stared at D.N.'s penis and testicles, and declared that D.N. soon would be ready for steroids.6/ For D.F., the violation occurred in October 2012, when he was a 15-year-old freshman. Under the guise of inspecting D.F.'s "virgin line," and to gauge his readiness for steroids, Cuenca directed D.F. to sit on a table in an empty classroom for an examination. D.F. pulled down his pants, Cuenca took a look, and then he reached in to touch D.F.'s genitals. D.F. slapped Cuenca's hand, and Cuenca withdrew. In D.F.'s words, which the undersigned credits as truthful and telling, the incident left D.F. "in a dark place," "depressed," and "sad," and "nothing has been the same [for him] since" this happened. The Charges In the Amended Administrative Complaint against Cuenca, the Commissioner accused Cuenca of having committed six disciplinable offenses, namely those defined in subsections (1)(d), (1)(f), and (1)(g) of section 1012.795, Florida Statutes; and violations of subsections (2)(a)1., (2)(a)5., and (2)(a)8. of Florida Administrative Code Rule 6A-10.081, which are part of the Principles of Professional Conduct for the Education Profession in Florida.7/ If proved by clear and convincing evidence, the alleged rule violations would be grounds for discipline under section 1012.795(1)(j). It is determined as a matter of ultimate fact that Cuenca is guilty of gross immorality, which is an offense punishable under section 1012.795(1)(d); and that he exploited his relationships with O.Q., D.N., and D.F. for personal gain or advantage, namely sexual gratification, in violation of rule 6A-10.081(2)(a)8., which is an offense punishable under section 1012.795(1)(j). It is further determined that Cuenca is not guilty of having been convicted or found guilty of, or of having pleaded guilty to, any criminal charge; such a criminal record, if established, would have constituted a disciplinable offense under section 1012.795(1)(f), Florida Statutes (2016). As for the remaining charges, to determine Cuenca's guilt or nonguilt would require the undersigned to explicate the meaning of statutory and rule provisions whose applicability to the facts at hand is not readily apparent. Because there are ample grounds for permanently revoking Cuenca's educator certificate without these additional legal conclusions, the undersigned makes no findings of ultimate fact regarding Cuenca's alleged violations of section 1012.795(1)(g) and rules 6A-10.081(2)(a)1. and 5. If the EPC determines that such findings are necessary, it may remand this case to the undersigned for the entry of a supplemental recommended order.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order permanently revoking Cuenca's educator certificate and deeming him forever ineligible to apply for a new certificate in the State of Florida. DONE AND ENTERED this 26th day of November, 2019, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of November, 2019.
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
