The Issue The issue in this case is whether Respondent, Gregory Schmidt, committed the offenses alleged in a Second Amended Administrative Complaint issued by Petitioner, and dated September 6, 2002, and, if so, the penalty that should be imposed.
Findings Of Fact The Department of Education, which the Commissioner is the head of, is the state agency charged with the responsibility to investigate and prosecute complaints of violations of Section 231.2615, Florida Statutes (2001), against teachers holding Florida educator's certificates. Sections 20.15 and 231.262, Florida Statutes. The Education Practices Commission (hereinafter referred to as the "EPC"), is charged with the responsibility of imposing discipline for any violation proscribed in Section 231.2615(1), Florida Statutes. Section 231.2615(1), Florida Statutes. Gregory Schmidt holds Florida Educator's Certificate No. 609739, valid through June 30, 2003, covering the area of Physical Education. At the times material to this proceeding, Mr. Schmidt was employed by Miami-Dade County Public Schools (hereinafter referred to as "M-D Public Schools"). Since March 1987 Mr. Schmidt has been a "teacher on special assignment" participating as a swimming instructor in the "Learn-to-Swim Program." The Learn-to-Swim Program is part of the Division of Life Skills and Special Projects of M-D Public Schools. As its name suggests, the Program is intended to assist students in the M-D Public Schools to learn how to swim. The Executive Director of the Division of Life Skills and Special Projects at all times relevant to this proceeding was Dr. Jayne W. Greenberg. Dr. Greenberg was the immediate supervisor of Mr. Schmidt's and the other teachers in the Learn- to-Swim Program at the times relevant to this proceeding. Mr. Schmidt's May 6, 1999, Confrontation with Lisa Vance. On May 6, 1999, Mr. Schmidt was teaching swimming classes to students from Jose Marti Middle School at Bucky Dent Pool, located in Hialeah, Miami-Dade County, Florida. In addition to Mr. Schmidt, Lisa Vance and David Diamond, Learn to Swim Program teachers, were also conducting classes at Bucky Dent Pool on May 6, 1999. Each teacher was located at a separate "teaching station" in the pool, with Ms. Vance's teaching station located between Mr. Schmidt's and Mr. Diamond's. Ms. Vance had returned to teaching on that day, after a brief absence due to illness. When she arrived that morning she was made aware that the swimming instructors had been told by someone1 in administration that female students were to wear t-shirts over their swim suits, in and out of the pool. Ms. Vance's last class of the day consisted of approximately ten female students who were lined up along the edge of the pool. Ms. Vance, despite having been informed of the t-shirt policy, had instructed her students to remove their t-shirts while in the pool and they had complied. Ms. Vance elected not to follow the policy due to safety concerns for her students, safety concerns shared by Dr. Greenberg. While Ms. Vance was teaching her class, Mr. Schmidt walked to the pool deck where Ms. Vance was located and told her that it was the policy that female students were required to wear t-shirts over their swim suits at all times. Ms. Vance responded, saying something to the effect that she would talk to him later and that she would discuss the matter with the principal, and Mr. Schmidt turned and walked away.2 Although Mr. Diamond, who was approximately 25 yards away from Ms. Vance and Mr. Schmidt, was aware that Ms. Vance and Mr. Schmidt were talking to one another, the tone of their voices was not loud enough for him to understand what they were saying. Ms. Vance was annoyed with Mr. Schmidt for interrupting her class to remind her of the t-shirt policy. She was also annoyed that Mr. Schmidt was attempting to tell her what to do and acting "as though he was in charge." When her class ended, Ms. Vance, still annoyed, went into the pool office where she found Mr. Schmidt and Mr. Diamond sitting. Ms. Vance walked up to Mr. Schmidt, who remained seated, and told him that what he had said to her was unprofessional and that he was not to disturb her again while she was teaching. Although Ms. Vance did not raise her voice, it was obvious from her demeanor that she was angry with Mr. Schmidt. In response to Ms. Vance's comments, Mr. Schmidt asked her whether she was going to throw a clip board at him, despite the fact that she was not holding a clip board. In response to Mr. Schmidt's comment, Ms. Vance replied, "No, I don’t want to" or words to that effect.3 Mr. Schmidt did not, as he testified at hearing, say to Ms. Vance words to the effect that "If you hit me like you did Manny Hahn, I'll defend myself." Ms. Vance turned to begin gathering up her belongings. As she did, Mr. Schmidt, who was still sitting with Mr. Diamond, told her, "I'll kick your ass, you fucking bitch." Ms. Vance finished gathering her belongings and left the building without responding to this threat. After Ms. Vance left, Mr. Diamond admonished Mr. Schmidt for his "unprofessional" comment. Mr. Schmidt suggested at hearing and in Respondent's Recommended Order that he was intimidated or threatened by Ms. Vance and that he made his unprofessional statement in order to dissuade her from attempting to harm him. In particular, he testified that he was afraid that Ms. Vance would throw a clip board at him. His testimony in this regard was not persuasive. The suggestion that Ms. Vance had approached him in a "threatening manner," that she was "screaming and ranting and raving" at Mr. Schmidt, and "telling him that she was going to have him fired; and that she was going to call the police, the School Board and Dr. Greenberg" is not supported by the evidence. Mr. Schmidt, given his gender and size (six feet one inch tall and weighing 210 pounds), the fact that Mr. Diamond was present, and the nature of Ms. Vance's comments and actions, simply had no reasonable basis to be concerned in anyway for his safety. Ms. Vance was reasonably upset and concerned for her physical safety because of Mr. Schmidt's threat that he would "kick [her] ass." Therefore, Ms. Vance asked Mr. Diamond to assist her avoid being alone with Mr. Schmidt in the future. Despite her concern for her safety, Ms. Vance did not immediately report the incident to Dr. Greenberg in the hope that Mr. Schmidt would apologize and the incident could be forgotten. This did not occur. Therefore, in a letter dated June 10, 1999, Ms. Vance asked Dr. Greenberg that, upon her next assignment, she not be "teamed with Greg Schmidt." In support of her request, she related the May 6, 1999, incident to Dr. Greenberg. Mr. Diamond also signed the request as a "witness." In response to Ms. Vance's June 10, 1999, letter, Dr. Greenberg caused an investigation to be conducted about the incident. After an investigation by the Office of Professional Standards of M-D Public Schools, a conference-for-the-record was held with Mr. Schmidt on November 2, 1999. The conference-for- the-record was conducted by Sharon D. Jackson, the District Director of the Office of Professional Standards and was attended by Mr. Schmidt, Dr. Greenberg, Lilia Garcia, District Director of the Division of Life Skills, and Dia Falco and Steve Goldman, representatives of the United Teachers of Dade. Mr. Schmidt was suspended as a teacher for 30 days by M-D Public Schools as a result of the May 6, 1999, incident with Ms. Vance and other events not relevant to this proceeding. At some time during the school year following the May 6, 1999, incident and after an investigation of the matter had been commenced, Mr. Schmidt telephoned Ms. Vance and apologized to her. The evidence failed to prove, as alleged in the Second Amended Administrative Complaint, that Mr. Schmidt "attempted to file a lawsuit" against Ms. Vance or Mr. Diamond "because they [had]reported his behavior to school authorities." Although Mr. Schmidt's threat to Ms. Vance was unprofessional and improper, the evidence in this case failed to prove clearly and convincingly that his conduct constituted "gross immorality" or an act of "moral turpitude." Mr. Schmidt's Threatening Comment About David Diamond. During the fall of 2000 Mr. Schmidt was working with Jo Ann Sutter, who was also employed in the Learn to Swim Program as a paraprofessional swim instructor. Ms. Sutter had known Mr. Schmidt for 15 to 16 years. Between September 5, 2000, and October 24, 2000, Mr. Schmidt made a number of comments to Ms. Sutter about Mr. Diamond's involvement or lack thereof in the May 6, 1999, incident with Ms. Vance. Among other things, Mr. Schmidt told Ms. Sutter that an investigation of the incident had been instituted, that Mr. Diamond was not present during the incident and, therefore, was lying about what he had heard.4 Among the comments Mr. Schmidt made to Ms. Sutter was that "if he got fired, David Diamond was dead."5 The comment was made in a serious tone and without any sign that Mr. Schmidt was kidding. Mr. Schmidt's threat, therefore, worried Ms. Sutter and, after thinking about it a few days, she went to Mr. Diamond to report the threatening statement.6 Given his relationship to Ms. Sutter, it cannot be concluded that Mr. Schmidt wanted or expected Ms. Sutter to relate any of the comments he made about Mr. Diamond, including his comment about Mr. Diamond being "dead" if Mr. Schmidt lost his job, to anyone, including Mr. Diamond. It is more likely than not, that Mr. Schmidt trusted that Ms. Sutter would not repeat his comments. Therefore, the evidence failed to prove that Mr. Schmidt's threatening language was intended to "interfere with [Mr. Schmidt's] colleagues exercise of political or civil rights and responsibilities" or that it was made as a "reprisal against any individual who has reported an allegation of a violation of the Florida School Code or State Board of Education Rules " Mr. Diamond reported that Ms. Sutter had told him that Mr. Schmidt had made a threatening statement and, on October 30, 2000, he gave a written statement concerning what Ms. Sutter had told him to Dr. Greenberg. Although Mr. Schmidt's comment about Mr. Diamond was unprofessional and improper, the evidence in this case failed to prove clearly and convincingly that his conduct constituted "gross immorality" or an act of "moral turpitude." Mr. Schmidt's Use of Excessive Force. In January 2002 M. G. was an 11-year-old male, sixth grade student, attending Parkway Middle Community School. M. G. stood approximately five feet, two inches tall and weighed between 70 and 100 pounds. On January 24, 2002, M. G. attended a physical education class which was taught by Mr. Schmidt. M. G. had first met Mr. Schmidt the day before. During the class, some of the students were throwing rocks. Although the students were not throwing the rocks at one another, one of the rocks, thrown by M. Gi., one of M. G.'s classmates, struck M. G. on the leg. M. G. walked over to where M. Gi. was standing and asked if he had thrown the rock that had struck him. M. Gi. answered "yes." M. G. then asked M. Gi to apologize, but M. Gi. refused. M. G., angered by M. Gi.'s refusal to apologize, shoved M. Gi. There then ensued a shoving match between the two boys. Neither of the boys, both of whom were rather slight in stature, actually threw a punch. Before the shoving match could escalate, Mr. Schmidt intervened. He first put an arm around M. Gi.'s neck, from behind him (commonly referred to as a "choke hold"),7 forced one of M. Gi.'s arms behind his back, and forcefully pushed M. Gi. onto the concrete pavement in a sitting position. After placing M. Gi. on the ground, Mr. Schmidt turned his attention to M. G., who continued to jump and prance around. Both boys, still angry, continued to taunt each other verbally, but Mr. Schmidt stood between them. Mr. Schmidt told M. G. to sit down and when M. G. did not comply, Mr. Schmidt, as he had with M. Gi., grabbed M. G. from behind in a choke hold,8 forced one of M. G.'s arms behind his back, and forcefully pushed M. G., who was resisting Mr. Schmidt's efforts to get M. G. to sit on the ground, face first onto the concrete pavement. After hitting the pavement, M. G. attempted to get up but Mr. Schmidt prevented him from doing so by placing a hand on the back of M. G.'s head with enough force that the left side of his face was forced onto the concrete. M. G., who began to cry, continued to struggle until Mr. Schmidt released him. As Mr. Schmidt released M. G.'s head and allowed M. G. to get up, Annette Burris-Williams9, a teacher at Parkway Middle Community School, came to see what had happened. She witnessed M. G. get up and proceed to walk hurriedly away from Mr. Schmidt and in her direction. M. G. was crying and bleeding from the lip. She stopped M. G. until security personnel, who had also arrived as Mr. Schmidt released M. G. from the ground, took M. G. away. As Mr. Schmidt, who had been following M. G., came up to her, Ms. Burris-Williams asked Mr. Schmidt what had happened, to which Mr. Schmidt matter-of-factly, callously, and inaccurately replied: "He swung at me. He got what he deserved." As a result of Mr. Schmidt's actions, M. G. suffered abrasions to his forehead, primarily on the left side, and his left shoulder, a bruise on the area around his left cheek bone, and a laceration to his bottom lip, which required stitches to close. The incident was subsequently investigated and Mr. Schmidt was arrested and charged with child abuse. These charges were still pending at the commencement of the final hearing. The force used by Mr. Schmidt to subdue M. G. was excessive and unnecessary. M. G. could have easily been subdued by Mr. Schmidt, who was significantly larger and stronger than M. G., had M. G. required subduing, with much less force. G., however, although still angry and excited, did not require subduing. He was not making any real asserted effort to get to M. Gi., because Mr. Schmidt barred his path by his mere presence, he did not initiate any contact with Mr. Schmidt, and he did not swing his fist at Mr. Schmidt or at M. Gi. M. G. merely made the mistake of not following Mr. Schmidt's directive to immediately sit down. Mr. Schmidt's actions, under the circumstances, of placing M. G. in a choke hold, twisting his arm behind his back, pushing him to the ground, and pushing his face into the concrete were inconsistent with the policies of the M-D Public Schools concerning how to intervene in a fight. Mr. Schmidt's actions, which caused physical injuries to M. G., exposed him to unnecessary embarrassment or disparagement, and failed to protect him from conditions harmful to M. G.'s physical safety, constituted "gross immorality" and acts of "moral turpitude." The evidence failed to prove clearly and convincingly, however, that Mr. Schmidt acted under "color of authority of the laws of the State of Florida" to violate M. G.'s "legal rights." Mr. Schmidt's March 4, 2002, Anger Management Group Meeting. Pursuant to a Settlement Agreement entered into by Mr. Schmidt and accepted by the EPC, described in further detail, infra, Mr. Schmidt was participating in the Recovery Network Program (hereinafter referred to as the "RNP") during March of 2002. As part of his participation in the RNP, Mr. Schmidt attended an anger management group meeting (hereinafter referred to as the "Group Session") on or about March 4, 2002. The Group Session was conducted by Carter Wiggins, a clinical social worker, who had been approved at that time to provide services to individuals participating in the RNP. During the March 4, 2002, Group Session, Mr. Schmidt, who owns a .38 caliber revolver, told Mr. Wiggins, "I have a gun." As a result of this statement, Mr. Wiggins, out of concern for the safety of the participants in the Group Session, dismissed the meeting. He also dialed Mr. Schmidt's home telephone number and spoke to someone who identified himself as Mr. Schmidt's roommate. Mr. Wiggins asked the "roommate" whether Mr. Schmidt had any guns, to which the roommate said either "No" or "I don't know." When Mr. Schmidt arrived home after this incident, he took his revolver out of his desk and gave it to Joe Milligan, his roommate. He then asked Mr. Milligan to telephone Mr. Wiggins and tell him that Mr. Schmidt had complied with Mr. Wiggins' request that he turn his gun over to his roommate. Mr. Milligan complied with Mr. Schmidt's request. Mr. Wiggins spoke with Deborah Dove about the events of March 4, 2002, on March 5, 2002. Ms. Dove made the following contemporaneous note in the RNP Educator Activity Log concerning what Ms. Wiggins told her during the conversation: TC from Carter Wiggins; last night at anger group Greg had two guns on Him [sic] and was angry. . . . Last night he had two Guns [sic] on him and appeared explosive. When told Mr. Wiggins was Going [sic] to call police, he indicated there would be a shoot out; he also Stated [sic] there was a sense of hopelessness because he was going to lose Everything [sic]; he ran out of the group. Mr. Wiggins called his home and his Roommate [sic] was able to get the guns from him. Mr. Wiggins and He [sic] called Dr. Kahn today and he will call RNP tomorrow. I spoke to Carter At [sic] 4:15 PM and again at 4:28 PM. . . . Although it is clear that Ms. Dove accurately reported what Mr. Wiggins reported to her on March 5, 2002, the evidence failed to prove clearly and convincingly that these hearsay statements are accurate. Indeed, Mr. Wiggins specifically repudiated almost all of Ms. Dove's account of his conversation with her and no other evidence was presented to prove this hearsay evidence. A counseling session to discuss the March 4, 2002, incident with Mr. Schmidt was scheduled by Mr. Wiggins for March 7, 2002. Mr. Wiggins scheduled the meeting because he felt the need to discuss whether Mr. Schmidt required additional therapy as a result of what had happened on March 4, 2002. On or about March 8, 2002, after Mr. Schmidt had missed the March 7, 2002, counseling session, Mr. Wiggins sent a letter to Mr. Schmidt requesting that Mr. Schmidt contact his office. Mr. Wiggins ultimately referred Mr. Schmidt to a psychiatrist because of the March 4, 2002, incident. On June 5, 2002, Mr. Wiggins wrote to Ms. Dove and informed her of the following: The purpose of this correspondence is to update you regarding Mr. Greg Schmidt's behavior on March 4th, 2002, when during the group session, he made none specific threatening remarks. This concern has been clinically and appropriately addressed during the course of the treatment. The evidence failed to prove clearly and convincingly that Mr. Schmidt appeared at the Group Session on March 4, 2002, in an angry emotional state, that he had two handguns (or even one), that he was advised by Mr. Wiggins or anyone else that the police would be called, that Mr. Schmidt threatened a "shoot out" if the police were called, that one or more persons felt threatened or fearful for their person as a result of Mr. Schmidt's actions that evening, or that, after leaving the session, Mr. Schmidt was "disarmed." While Mr. Wiggins did eventually reluctantly admit at hearing that Mr. Schmidt said "I have a gun," he evaded all efforts of the Commissioner to elicit any further information about the circumstances surrounding this statement or the context in which it was made. As a consequence, the evidence does not clearly and convincingly prove what Mr. Schmidt meant by his comment.10 Without proof of the circumstances surrounding the statement or the context in which it was made, any number of meanings can be attributed to the statement, including that Mr. Schmidt meant to threaten Mr. Wiggins or someone else at the Group Session or that he was simply relating a fact, that he indeed does have a gun, albeit, one that was tucked safely in a desk at his residence when he made the statement. Although Mr. Wiggins' reactions in response to Mr. Schmidt's statement may indicate that the comment was meant as a threat or at least a possible threat, Mr. Wiggins refused to provide evidence to support such a conclusion clearly and convincing. Consequently, any conclusion about what Mr. Schmidt meant when he said, "I have a gun," would be based upon mere speculation and not clear and convincing evidence. Previous Disciplinary Action. On or about October 7, 1999, an Administrative Complaint was issued against Mr. Schmidt. In pertinent part, the October 7, 1999, Administrative Complaint alleged the following factual basis for taking disciplinary action against Mr. Schmidt's teaching certificate: 3. On or about October 23, 1997, Respondent made inappropriate threatening and abusive remarks toward one of his students Z.H. Respondent called the student a "Black Bitch" and a "Punk" and asked him to take a swing so he, the Respondent, could knock him out. On or about January 7, 2000, Mr. Schmidt agreed to and did execute a Settlement Agreement resolving the charges of the October 7, 1999, Administrative Complaint. Although the Settlement Agreement provides specifically that Mr. Schmidt, by entering into the Settlement Agreement, "neither admits or denies . . . the allegations set forth in the Petitioner's Administrative Complaint . . . ", Mr. Schmidt agreed to the following disciplinary actions: . . . . The Respondent agrees to accept a letter of reprimand, a copy of which shall be placed in his certification file with the Department of Education, and a copy of which shall be placed in his personnel file with the employing school district. The Respondent agrees, within sixty days of issuance of the Final Order accepting this settlement agreement . . . to undergo such evaluation relating to issues cited in the Administrative Complaint, as determined by the Recovery Network Program to be appropriate, to submit to said evaluation by a qualified provider approved by the Recovery Network Program, and undergo any counseling or treatment as may be prescribed by said professional. The Respondent shall provide the EPC with written verification of successful completion of the evaluation and any recommended treatment. . . . . The Respondent agrees that he shall be placed on probation for a period of 2 years, commencing upon the issuance of the Final Order by the Education Practices Commission [EPC] accepting this settlement agreement if the Respondent is currently employed as an educator in Florida. . . . In the event that the Respondent's employment in the teaching profession is interrupted for any reason prior to the expiration of the probationary period, the probationary period shall be tolled until such time as the Respondent resumes employment as an educator in Florida. As conditions of probation, the Respondent shall: . . . . violate no law and shall fully comply with all district school board regulations, school rules and State Board of Education Rule 6B-1.006; and, satisfactorily perform his assigned duties in a competent, professional manner. Waiving the statutory procedures of Section 231.2615(6), Florida Statutes (formerly number Section 231.28(6), Florida Statutes (1999)), for disciplining an educator's teaching certificate for a violation of the terms of the educator's probation, Mr. Schmidt, in executing the Settlement Agreement, agreed to the following: 7. In the event the Respondent fails to comply with each condition of probation set forth herein, the Respondent agrees that the Petitioner shall be authorized to file an Administrative Complaint for sanctions up to and including the revocation of his teaching certificate based upon the violation of the terms of this agreement. On or about March 10, 2000, the EPC issued a Final Order in the case of Tom Gallagher, as Commissioner of Education vs. Gregory Schmidt, EPC Case No. 99-0335-RT, at a meeting on February 25, 2000, accepting the Settlement Agreement. Pursuant to the Settlement Agreement, Mr. Schmidt's two-year probation period began to run March 10, 2000, and ended on March 10, 2002. In the Second Amended Administrative Complaint filed in this case, it is alleged that Mr. Schmidt violated his probation and, thus, the terms of the Settlement Agreement, "by committing the acts described [in the Second Amended Administrative Complaint]." The incidents involving Ms. Lance described in Section A, supra, took place before Mr. Schmidt was placed on probation and, therefore, do not support the allegation that he violated the terms of his probation. The incident involving Mr. Diamond described in Section B, supra, took place during September or October 2000, and therefore, occurred during the probation period. Mr. Schmidt's comment concerning Mr. Diamond, however, did not constitute a violation of the "law" or "district school board regulations," "school rules," or "State Board of Education Rule 6B-1.006." The incidents involving M. G. described in Section C, supra, took place on January 24, 2002, and, therefore, occurred during the probationary period. To the extent those incidents have been determined to be violations of "district school board regulations, school rules and State Board of Education Rule 6B- 1.006," Mr. Schmidt violated the terms of his probation. Finally, the incidents alleged to have occurred during the Group Session on March 4, 2002, described in Section D, supra, while occurring during the probation period, have not been proved to constitute a violation of "district school board regulations, school rules and State Board of Education Rule 6B- 1.006." G. Mr. Schmidt's Effectiveness as an Employee of the M-D Public Schools. The evidence failed to prove clearly and convincingly that any of Mr. Schmidt's actions with Ms. Vance or Mr. Diamond constitutes conduct "which seriously reduces his effectiveness as an employee of the school board."11 The evidence also failed to prove clearly and convincingly that Mr. Schmidt's violation of the terms of his probation constituted conduct "which seriously reduces his effectiveness as an employee of the school board." Mr. Schmidt's mistreatment of M. G., however, does constitute conduct "which seriously reduces his effectiveness as an employee of the school board."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Gregory Schmidt has violated Section 231.2615(1)(c), (f), (i), and (k), Florida Statutes, and Rule 1.006(3)(a) and (e), and 1.006(5)(d), and (o), Florida Administrative Code, and permanently revoking his Florida Educator's Certificate. DONE AND ENTERED this 16th day of May, 2003, in Tallahassee, Leon County, Florida. LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of May, 2003.
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
