02-002016PL Tom Gallagher, As Commissioner Of Education vs. Gregory Schmidt Status: Closed Recommended Order on Friday, May 16, 2003.

Summary: Respondent committed gross immorality when he slammed student to ground, causing injuries.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TOM GALLAGHER, as Commissioner )

of Education, )

)

Petitioner, )

)

vs. ) Case No. 02 - 2016PL

)

GREGORY SCHMIDT, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pur suant to notice, a formal hearing was held in this case

before Larry J. Sartin, an Administrative Law Judge of the

Division of Administrative Hearings, on October 30 and 31, 2002,

and February 4 and 5, 2003, in Miami, Florida.

APPEARANCES

For Petitioner: Charles T. Whitelock, Esquire

Whitelock & Associates, P.A.

300 Southeast Thirteenth Street

Fort Lauderdale, Florida 33316

For Respondent: Leslie A. Meek, Esquire

United Teachers of Dade

Law Department

2200 Biscayne Boulevard, Fifth Floor

Miami, Fl orida 33137

STATEMENT OF 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.

PRELIMINARY STATEMENT

In an Administrative Complaint dated November 21, 2000,

then Florida Commissioner of Education, Tom Gallagher

(hereinafter referred to as the "Commissioner"), charged Gregory

Schmidt with having violated certain of the statutory and rule

provisions governing the conduct of teachers in Florida's public

schools. Mr. Schmidt timely disputed the factual allegations in

the Administrative Complaint by executing an Election of Rights

form in which he elected the "Settleme nt Option." By selecting

the Settlement Option, Mr. Schmidt elected to attempt to

negotiate a settlement of the charges against him and, if that

effort failed, an "Informal" hearing on the charges.

In a letter dated April 19, 2000, counsel for Mr. Schmidt

requested removal of Mr. Schmidt's case from the April 26, 2002,

informal hearing agenda of the Education Practices Commission

and the referral of the matter to the Division of Administrative

Hearings for a formal hearing.

By letter dated May 7, 2002, Mr. Schmidt's request for a

formal hearing was forwarded to the Division of Administrative

Hearings for the assignment of an administrative law judge to

conduct an evidentiary hearing pursuant to Section 231.262(5),

Florida Statutes. The matter was designate d DOAH Case

No. 02 - 02016PL and was assigned to the undersigned.

By Notice of Hearing entered May 31, 2002, the final

hearing of this case was scheduled to commence July 25, 2002.

By Order Granting Continuance and Re - Scheduling Hearing, the

final hearin g was re - scheduled for September 26 and 27, 2002, at

the request of the Commissioner, who suggested that, due to

additional information, the Administrative Complaint would have

to be amended.

Although it was represented in the Commissioner's Motion

for Con tinuance that a copy of an amended administrative

complaint was attached to the Motion, it was not, and, in fact,

the amended administrative complaint has never been filed or

approved by this forum. Nevertheless, on September 6, 2002, the

Commissioner fil ed a Motion to File Second Amended

Administrative Complaint. A Second Amended Administrative

Complaint was attached to the Motion. Over objection of

Mr. Schmidt, the Motion to File Second Amended Administrative

Complaint was accepted by an Order entered September 17, 2002.

By Order Granting Continuance and Re - Scheduling Hearing,

the final hearing was re - scheduled for October 30 and 31, 2002,

at the request of Mr. Schmidt because of ongoing discovery

disputes between the parties.

Prior to the commencement of the final hearing, the parties

filed unilateral pre - hearing statements. The parties stipulated

to two facts, which have been included in this Recommended

Order.

At the commencement of the final hearing on October 30,

2002, the parties continued to argu e about the disclosure of

information which Mr. Schmidt opined was protected by the

psychotherapist - patient privilege. Due to this continuing

dispute, Mr. Schmidt requested a continuance of the hearing.

This request was denied, but, in an abundance of ca ution, it was

ordered that the Commissioner would proceed to present his case -

in - chief, except as to the allegations of paragraph 6 of the

Second Amended Administrative Complaint, that the remainder of

the hearing would be continued to a later date, and th at, in the

interim, the parties would be given an opportunity to further

address the question of privilege raised by Mr. Schmidt.

Petitioner presented his case - in - chief on October 30 and 31,

2002, and the hearing was continued to February 4 and 5, 2003.

T he parties were given until December 13, 2002, to file

memoranda in support of their respective positions concerning

Mr. Schmidt's psychotherapist - patient privilege. The due date

was extended, at the request of Mr. Schmidt. Both parties filed

a memorandu m of law discussing the issue. On January 2, 2003,

an Order was entered addressing the issue and informing the

parties that specific rulings would be entered only as evidence

which Mr. Schmidt objected to as subject to the psychotherapist -

patient privileg e was offered in evidence.

When the hearing reconvened on February 4, 2003, the

Commissioner was given an opportunity to present evidence in his

case - in - chief as to paragraph 6 of the Second Amended

Administrative Complaint and Mr. Schmidt was given an

opp ortunity to respond to the Commissioner's case. On

February 5, 2003, Mr. Schmidt represented that one of his

witnesses, Donald A. Hans, was unable to appear to testify due

to illness. Without objection, Mr. Schmidt was granted leave to

take Mr. Hans' dep osition and late - file a transcript of his

testimony. The Commissioner was informed that he would be

allowed to late - file rebuttal evidence to Mr. Hans' testimony.

At the portion of the final hearing conducted on October 30

and 31, 2002, the Commissioner p resented the testimony of Lisa

Vance, A. C., J. C., B. B., Annette Burris - Williams, David

Diamond, Joan Sutter, Jayne Greenberg, Victor Hernandez, M. G.

and his mother, Ms. M. G., and Mr. Schmidt. The Commissioner

also presented the deposition testimony o f Mr. Schmidt

(Petitioner's Exhibit 23), and the deposition testimony of Debra

Dove (Petitioner's Exhibit 22). On February 4, 2003, the

Commissioner concluded his case with the testimony of Carter

Wiggins. Mr. Schmidt presented the testimony of Johnny Ol iver

and he testified in his own behalf.

The Commissioner offered 23 exhibits for identification as

"Petitioner's" exhibits. Petitioner's Exhibits 4, 5, 10, and 21

were not offered. Petitioner's Exhibits 1 through 3, 6, 7, 9,

11 through 20, and 22 throug h 23 were accepted into evidence. A

ruling on Petitioner's Composite Exhibit 8 was reserved. The

Commissioner did not provide the exhibit at hearing or with his

proposed order and, therefore, Petitioner's Composite Exhibit 8

is hereby rejected. Responde nt's Exhibits 1 through 9 were also

admitted.

Mr. Hans' deposition was taken on February 14, 2003. On

February 21, 2003, the Commissioner filed a Motion to Use

Deposition Transcript of Marck Giordani in Rebuttal, or in the

Alternative, Petitioner's Motion to Re - Open Case. This Motion

was objected to by Mr. Schmidt. By Order entered March 7, 2003,

the parties were informed that Mr. Giordani's transcript would

be reviewed and, if Mr. Giordani's testimony was in fact

rebuttal evidence, it would be admitted; if not rebuttal, the

transcript would be rejected. The Commissioner has not,

however, filed a transcript of Mr. Giordani's deposition

testimony.

On March 17, 2003, Mr. Schmidt filed the transcript of the

deposition testimony of Mr. Hans. The transcript has been

marked as Respondent's Exhibit 10 and is hereby accepted into

evidence.

By Notice of Filing of Transcript issued March 19, 2003,

the parties were informed that the final volumes of the

Transcript of the final hearing had been filed on March 18,

20 03. The parties, pursuant to agreement, therefore, were

informed that they had until April 7, 2003, to file proposed

recommended orders. On April 7, 2003, the Commissioner filed a

Motion to Extend Time to File Proposed Recommended Order. In

the Motion, the Commissioner requested a ten - day extension. The

Motion was granted. Both parties filed proposed orders on

April 17, 2003. The post - hearing submittals of the parties have

been fully considered.

On May 13, 2003, a Motion to Withdraw was filed by couns el

for Respondent. The Motion is hereby granted.

FINDINGS OF FACT

1. 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.

2. 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.

3. Gregory Schmidt holds Florida Educator's Certificate

No. 609739, valid through June 30, 2003, covering the area of

Physi cal 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").

4. Since March 1987 Mr. Schmidt has been a "teacher on

special assignment" participat ing 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 S chools 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 teacher s in the Learn -

to - Swim Program at the times relevant to this proceeding.

A. Mr. Schmidt's May 6, 1999, Confrontation with Lisa

Vance .

5. On May 6, 1999, Mr. Schmidt was teaching swimming

classes to students from Jose Marti Middle School at Bucky Dent

Po ol, located in Hialeah, Miami - Dade County, Florida.

6. 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 "teach ing station" in the pool, with

Ms. Vance's teaching station located between Mr. Schmidt's and

Mr. Diamond's.

7. 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 th e swimming instructors had been told by

someone 1 in administration that female students were to wear

t - shirts over their swim suits, in and out of the pool.

8. Ms. Vance's last class of the day consisted of

approximately ten female students who were li ned 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 conce rns for her

students, safety concerns shared by Dr. Greenberg.

9. 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 - shir ts 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 a pproximately 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.

10. Ms. Vance was annoyed with Mr. S chmidt 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."

11. 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. Althou gh Ms. Vance did not raise her voice,

it was obvious from her demeanor that she was angry with

Mr. Schmidt.

12. 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 no t 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."

13. 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 lef t the building without

responding to this threat. After Ms. Vance left, Mr. Diamond

admonished Mr. Schmidt for his "unprofessional" comment.

14. 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 persuasiv e.

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 Boa rd 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 reaso nable basis to be concerned in anyway for his

safety.

15. 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 bein g 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. Therefor e, 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 reques t as a

"witness."

16. 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 - r ecord 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

Dir ector of the Division of Life Skills, and Dia Falco and Steve

Goldman, representatives of the United Teachers of Dade.

17. 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.

18. 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.

19. The eviden ce 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."

20. Although Mr. Schmidt's thre at 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."

B. Mr. Schmidt's Threatening Comment About David Diamond .

2 1. 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.

22. Between September 5, 2000, and Octo ber 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

i nstituted, that Mr. Diamond was not present during the incident

and, therefore, was lying about what he had heard. 4

23. 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 serio us 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

24. 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 c ivil 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 . . . ."

25. Mr. Diamond reported that Ms. Sutter had to ld 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.

26. 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."

C. Mr. Schmidt's Use of Excessive Force .

27. In January 2002 M. G. was an 11 - year - old male, sixth

grade stu dent, attending Parkway Middle Community School. M. G.

stood approximately five feet, two inches tall and weighed

between 70 and 100 pounds.

28. On January 24, 2002, M. G. attended a physical

education class which was taught by Mr. Schmidt. M. G. had

fi rst met Mr. Schmidt the day before.

29. 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.

30. 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.

31. Before the shoving match could escalate, Mr. Schmidt

intervened. He first put an arm around M. Gi.'s nec k, 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.

32. After placing M. Gi. on the ground, Mr. Schmidt turned

his attent ion 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.

33. 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.

34. 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 struggl e until Mr. Schmidt released him.

35. As Mr. Schmidt released M. G.'s head and allowed M. G.

to get up, Annette Burris - Williams 9 , 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 be en 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."

36. 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.

37. The incident was subsequently investig ated and

Mr. Schmidt was arrested and charged with child abuse. These

charges were still pending at the commencement of the final

hearing.

38. The force used by Mr. Schmidt to subdue M. G. was

excessive and unnecessary. M. G. could have easily been subd ued

by Mr. Schmidt, who was significantly larger and stronger than

M. G., had M. G. required subduing, with much less force.

M. 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 immedia tely sit down.

39. 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.

40. 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, co nstituted "gross immorality" and

acts of "moral turpitude."

41. 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."

D. Mr . Schmidt's March 4, 2002, Anger Management Group

Meeting .

42. 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 (here inafter 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 cond ucted by Carter

Wiggins, a clinical social worker, who had been approved at that

time to provide services to individuals participating in the

RNP.

43. 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."

44. When Mr. Schmidt arrived home after this incident, he

took his revolver out of his desk and gave it t o 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.

45. Mr. W iggins 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; las t 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 ca ll 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 hea rsay

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.

46. A counseling session to discuss the March 4, 2 002,

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.

47. 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.

48. 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 fel t

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."

49. While Mr. Wiggins did eventually reluctantly admit at

hearing that Mr. Schmidt said "I have a g un," 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. Schmid t 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

m ay 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.

E. Previous Disciplinary Action .

50. On or about October 7, 1999, an Administrative

Complaint was issued against Mr. Schmidt. In pertinent part,

the October 7, 1999, Ad ministrative 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 studen ts 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.

51. On or about January 7, 2000, Mr. Schmidt agreed to and

did execute a Settlement Agreement resolving the char ges 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

Admini strative Complaint . . . ", Mr. Schmidt agreed to the

following disciplinary actions:

. . . .

4. 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.

5. The Respondent agrees, within sixty days

of issuance of the Final Order accepting this

settlement agreement . . . to undergo such

evaluation relating to issues c ited 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 prescrib ed by said

professional. The Respondent shall provide

the EPC with written verification of

successful completion of the evaluation and

any recommended treatment. . . . .

6. The Respondent agrees that he shall be

placed on probation for a period of 2 y ears,

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:

. . . .

(e) 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,

(f) satisfactorily perform his assigned

duties in a competent, professional manner.

52. 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 educa tor'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.

53. On or about March 10, 2000, the EPC issued a Final

Order in the case of Tom Gal lagher, as Commissioner of Education

vs. Gregory Schmidt , EPC Case No. 99 - 0335 - RT, at a meeting on

February 25, 2000, accepting the Settlement Agreement.

54. Pursuant to the Settlement Agreement, Mr. Schmidt's

two - year probation period began to run March 10, 2000, and ended

on March 10, 2002.

55. 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]."

56. 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 probatio n.

57. 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 violati on of the "law" or "district school board

regulations," "school rules," or "State Board of Education Rule

6B - 1.006."

58. The incidents involving M. G. described in Section C,

supra , took place on January 24, 2002, and, therefore, occurred

during the proba tionary 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.

59. Finally, the inciden ts 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 .

60. The evidence failed to prove clearly and convincingly

that any of Mr. Schmidt's actions with Ms. Vance or Mr. Diamond

constitutes conduct "wh ich seriously reduces his effectiveness

as an employee of the school board." 11

61. 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

effec tiveness as an employee of the school board."

62. Mr. Schmidt's mistreatment of M. G., however, does

constitute conduct "which seriously reduces his effectiveness as

an employee of the school board."

CONCLUSIONS OF LAW

A. Jurisdiction .

63. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

the parties thereto pursuant to Sections 120.569 and 120.57(1),

Florida Statutes.

B. Burden and Standard of Proof .

64. In the Second Amended Administrative Comp laint, the

Commissioner has sought, among other penalties, the revocation

or suspension of Mr. Schmidt's teaching certificate. Therefore,

the Commissioner has the burden of proving the allegations in

the Second Amended Administrative Complaint by clear an d

convincing evidence. See Department of Banking and Finance,

Division of Securities and Investor Protection v. Osborne Stern

and Co. , 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington , 510

So. 2d 292 (Fla. 1987); and McKinney v. Castor , 667 So. 2d 387

(Fl a. 1st DCA 1995).

65. Clear and Convincing evidence has been defined as

evidence which:

requires that the evidence must be found to

be credible; the facts to which the

witnesses testify must be distinctly

remembered; the testimony must be precise

and expl icit and the witnesses must be

lacking in confusion as to the facts in

issue. The evidence must be of such weight

that it produces in the mind of the trier of

fact a firm belief or conviction, without

hesitancy, as to the truth of the

allegations sought t o be established.

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

66. The grounds proven in support of the Commissioner's

assertion that Mr. Schmidt's teaching certificate should be

revoked or suspended must be those specifically alleged in the

Second Amended Administrative Complaint. See , e.g. , Cottrill v.

Department of Insurance , 685 So. 2d 1371 (Fla. 1st DCA 1996);

Kinney v. Department of State , 501 So. 2d 129 (Fla. 5th DCA

1987); and Hunter v. Department of Professional Regulation , 458

So. 2d 842 (Fla. 2nd DCA 1984).

C. The EPC's Authority to Discipline Teaching

Certificates; The Charges Against Mr. Schmidt .

67. Section 231.28(1), Florida Statutes (1999), and

Section 231.2615(1), Florida Statutes (2000), give the EPC the

power to susp end or revoke the teaching certificate of any

person, either for a set period of time or permanently, or to

impose any penalty provided by law, and the state sets out the

bases for the imposition of such penalties.

68. The Commissioner has alleged in the Second Amended

Administrative Complaint that Respondent has committed five

separate statutory violations and eight separate rule

violations, discussed in greater detail, infra . The statutory

violations which the Commissioner has alleged Mr. Schmidt

violat ed are Section 231.28(1)(c), Florida Statutes (Count 1),

Section 231.29(1)(f), Florida Statutes (Count 2), Section

231.28(1)(i), Florida Statutes (Count 3), Section

231.2615(1)(j), Florida Statutes (count 4), and Section

231.2615(1)(k), Florida Statutes (C ount 5). 12 The rule

violations alleged by the Commissioner are Rules 6B - 1.006(3)(a),

(e) and (f), and 6B - 1.006(5)(c), (d), (f), (l), and (o), Florida

Administrative Code.

69. In support of the alleged statutory and rule

violations, the Commissioner has a lleged essentially four

separate and distinct factual bases to discipline Mr. Schmidt's

teaching certificate: (a) the events surrounding Mr. Schmidt's

inappropriate comment to Ms. Vance and the subsequent

threatening comment concerning Mr. Diamond; (b) Mr. Schmidt's

treatment of M. G.; (c) Mr. Schmidt's actions at the Group

Session; and (d) whether these actions violated the terms of his

probation with the EPC.

70. Although the Commissioner has identified the acts

which Mr. Schmidt alleged committed and the offenses which the

Commissioner believes were committed, the Commissioner has not

given any indication, either in the Second Amended

Administrative Complaint or the Commissioner's proposed order

which of the four separate factual events correspond to w hich

statutory and/or rule violations. The undersigned has,

therefore, been left to "guess" exactly which statutory and/or

rule violations the Commissioner believes that Mr. Schmidt's

actions, proven by clear and convincing evidence, constitute.

If there was even a remote possibility that a proven act

constituted an alleged statutory or rule violation, that

possibility has been considered, but not necessarily discussed

in this Recommended Order.

71. The acts alleged in the Second Amended Administrative

C omplaint which the Commissioner has proved be clear and

convincing evidence that Mr. Schmidt committed include the

following:

a. On or about May 6, 1999, Mr. Schmidt, without

reasonable cause, engaged in a verbal dispute with Ms. Vance and

threatened her by saying, "I'll kick your ass, you fucking

bitch," causing her to fear for her physical safety;

b. During October 2000, Mr. Schmidt made a threatening

remark concerning Mr. Diamond. That remark, however, was not

made to Mr. Diamond and was not intended to be repeated to

Mr. Diamond;

c. On January 24, 2002, Mr. Schmidt willfully and

intentionally placed M. G., who was 11 years of age, in a choke

hold, held one of M. G.'s arms behind his back, and shoved him

to the concrete pavement where he then held M. G.'s face causing

severe personal injuries to M. G. Mr. Schmidt was arrested and

charged with child abuse;

d. Except for the comment made by Mr. Schmidt on May 6,

1999, the acts which have been proved by clear and convincing

evidence took place while Mr. Schmidt was on probation with the

EPC.

72. The other acts alleged in the Second Amended

Administrative Complaint were not proved by clear and convincing

evidence.

D. Gross Immorality and Acts Involving Moral Turpitude .

73. In Count 1 of the Second Amen ded Administrative

Complaint, the Commissioner has alleged that Mr. Schmidt

violated Section 231.2615(1)(c), Florida Statutes, which

provides that a teacher may be disciplined if he or she "[h]as

been guilty of gross immorality or an act involving moral

tu rpitude."

74. The terms "gross immorality" and "an act involving

moral turpitude" are not defined in Chapter 231, Florida

Statutes. See Sherburne v. School Board of Suwannee County ,

455 So. 2d 1057 (Fla. 1st DCA 1984). Rule 6B - 4.009, Florida

Administrat ive Code, which applies to dismissal actions

initiated by school boards against instructional personnel,

does, however, provide guidance as to the meaning of the terms

as they are used in Section 231.2615, Florida Statutes. See

Castor v. Lawless , 1992 WL 880829 *10 (EPC Final Order 1992).

75. Rule 6B - 4.009(2), Florida Administrative Code, defines

"immorality" as follows:

Immorality is defined as conduct that is

inconsistent with the standards of public

conscience and good morals. It is conduct

sufficient ly notorious to bring the

individual concerned or the education

profession into public disgrace or

disrespect and impair the individual's

service in the community.

76. "Gross immorality" has been defined by the courts as

misconduct that is more egregious than mere "immorality":

The term "gross" in conjunction with

"immorality" has heretofore been found to

mean "immorality which involves an act of

misconduct that is serious, rather than

minor in nature, and which constitutes a

flagrant disregard of proper moral

standards." Education Practices Commission

v. Knox , 3 FALR 1373 - A (Department of

Education 1981).

Frank T. Brogan v. Eston Mansfiled, DOAH Case No. 96 - 0286 (EPC

Final Order 1996).

77. Rule 6B - 4.009(6), Florida Administrative Code, defines

"moral turpitude" as follows:

Moral turpitude is a crime that is evidenced

by an act of baseness, vileness or depravity

in the private and social duties, which,

according to the accepted standards of the

time a man owes to his or her fellow man or

to society in g eneral, and the doing of the

act itself and not its prohibition by

statute fixes the moral turpitude.

78. The court in State ex rel. Tullidge v. Hollingsworth ,

146 So. 660, 661 (1933), observed that moral turpitude

involves the idea of inherent baseness or

depravity in the private social relations or

duties owed by man to man or by man to

society. . . . It has also been defined as

anything done contrary to justice, honesty,

principle, or good morals, though it often

involves the question of intent as wh en

unintentionally committed through error of

judgment when wrong was not contemplated.

79. In determining whether any teacher is guilty of gross

immorality or an act involving moral turpitude in violation of

Section 231.2615(1)(c), Florida Statutes, it must be remembered

that "[b]y virtue of their leadership capacity, teachers are

traditionally held to a high moral standard in a community."

Adams v. Professional Practices Council , 406 So. 2d 1170, 1171

(Fla. 1st DCA 1981).

80. Only one of the acts whi ch the Commissioner has proved

by clear and convincing evidence in this case rises to level of

gross immorality or moral turpitude: Mr. Schmidt's use of

excessive force with M. G. Mr. Schmidt has, therefore, violated

Section 231.2615(1)(c), Florida Statu tes, based upon the factual

allegations of paragraph 4 of the Second Amended Administrative

Complaint. 13

81. The other acts alleged in the Second Administrative

Complaint which have been proven, such as Mr. Schmidt's comment

to Ms. Vance, his comment conc erning Mr. Diamond, and the

violations of his probation do not constitute a "flagrant

disregard of proper moral standards" of something done "contrary

to justice, honesty, principle, or good morals."

E. Mr. Schmidt's Effectiveness as an Employee of the

Sc hool Board .

82. In Count 2 of the Second Amended Administrative

Complaint, the Commissioner has alleged that Mr. Schmidt

violated Section 231.2615(1)(f), Florida Statutes, which

provides that a teacher may be disciplined if he or she "has

been found guil ty of personal conduct which seriously reduces

that person's effectiveness as an employee of the district

school board."

83. It has been held that the Commissioner must present

clear and convincing proof that a teacher has lost his or her

effectiveness in order to find that the teacher is in violation

of Section 231.2615(1)(f), Florida Statutes. In McNeill v.

Pinellas County School Board , 678 So. 2d 476, 478 (Fla. 2d DCA

1996), the court held that the school board had failed to meet

its burden of proving a teacher's "impaired effectiveness" with

respect to a charge of immorality when

testimony offered by school officials to

establish impaired effectiveness was

unsupported by "specific information from

students, parents, or coworkers . . . ."

Two citizens testified as to why McNeill

should be dismissed; however both were

unable to provide specific information

regarding the actual impact of McNeill's

conduct on Pinellas County students.

84. It has also been held that it may be concluded that a

teacher has lost his or her effectiveness without such specific

proof where the "personal conduct" in which the teacher engaged

is of such nature that it "must have impaired [the teacher's]

effectiveness." Summer v. School Board of Marion County , 666

So. 2d 175 (Fla. 5th DCA 1995). Cf . Purvis v. Marion County

School Board , 766 So. 2d 492, 498 (Fla. 5th DCA 2000)(Misconduct

of Purvis, who "lied under oath and resisted arrest" rose to a

"level of misconduct which would support the inference that

Purvis' effectiveness a s a teacher had been impaired.").

85. The only act which the Commissioner has proved

Mr. Schdmit is guilty of which is so egregious that it "must

have impaired [Mr. Schmidt's] effectiveness" was his use of

excessive force with M. G. Based upon his conduc t with M. G.,

it is concluded that Mr. Schmidt has violated Section

231.2615(1)(f), Florida Statutes.

86. The other acts alleged in the Second Administrative

Complaint which have been proven are, however, not so egregious

as to give rise to any inference that Mr. Schmidt lost his

effectiveness as a teacher. This conclusion is supported by the

fact that he was suspended, rather than being fired, by the M - D

Public Schools for his conduct with Ms. Vance and Mr. Diamond,

and Dr. Greenberg ultimately testified that Mr. Schmidt had lost

his effectiveness to participate in the Learn - to - Swim Program,

rather than as an employee of the school board.

F. Violation of the Principles of Conduct for the

Education Profession .

87. In Count 3 of the Second Amended Admini strative

Complaint, the Commissioner has alleged that Mr. Schmidt

violated Section 231.2615(1)(i), Florida Statutes, which

provides that a teacher may be disciplined if he or she "[h]as

violated the Principles of Professional Conduct for the

Education Prof ession prescribed by State Board of Education

rules."

88. The Principles of Professional Conduct for the

Education Profession are found in Chapter 6B - 1.006, Florida

Administrative Code. The particular principles which the

Commissioner has alleged that Mr . Schmidt violated are found in

Counts 6 through 13, which if proven, would constitute the

alleged violation of Section 231.2615(1)(i), Florida States.

Those principles and the conclusions as to whether Mr. Schmidt

violated them are as follows:

(a) Count 6 : Rule 6B - 1.006(3)(a), Florida Administrative

Code, which provides that a teacher has an obligation to the

student to "make reasonable effort to protect the student from

conditions harmful to learning and/or to the student's mental

and/or physical healt h and/or safety." Only one of the acts

which the Commissioner has proved by clear and convincing

evidence in this case violated this principle: Mr. Schmidt's

use of excessive force with M. G. Mr. Schmidt failed to protect

M. G. from conditions harmful t o his mental and physical health

and safety. Mr. Schmidt has, therefore, in violating Rule 6B -

1.006(3)(a), Florida Administrative Code, has, consequently,

violated Section 231.2615(1)(i), Florida Statutes.

(b) Count 7 : Rule 6B - 1.006(3)(e), Florida Admin istrative

Code, which provides that a teacher has the obligation to the

student to "not intentionally expose a student to unnecessary

embarrassment or disparagement." Only one of the acts which the

Commissioner has proved by clear and convincing evidence in this

case violated this principle: Mr. Schmidt's use of excessive

force with M. G. Mr. Schmidt intentionally exposed M. G. to

unnecessary embarrassment. Mr. Schmidt has, therefore, in

violating Rule 6B - 1.006(3)(e), Florida Administrative Code, has,

c onsequently, violated Section 231.2615(1)(i), Florida Statutes.

(c) Count 8 : Rule 6B - 1.006(3)f), Florida Administrative

Code, which provides that a teacher has the obligation to the

student to "not intentionally violate or deny a student's legal

rights." The evidence failed to prove that Mr. Schdmit violated

this principle. While his treatment of M. G. was uncalled for,

it did nothing to violate M. G.'s "legal rights."

(d) Count 9 : Rule 6B - 1.006(5)(c), Florida Administrative

Code, which provides that a teacher "[s]hall not interfere with

a colleague's exercise of political or civil rights and

responsibilities." The evidence failed to prove that Mr.

Schmidt violated this principle.

(e) Count 10 : Rule 6B - 1.006(5)(d), Florida Administrative

Code, which provides that a teacher:

[s]hall not engage in harassment or

discriminatory conduct which unreasonably

interferes with an individual's performance

of professional or work responsibilities or

with the orderly processes of education or

which creates a hosti le, intimidating,

abusive, offensive, or oppressive

environment ; and, further, shall make

reasonable effort to assure that each

individual is protected from such harassment

or discrimination. (Emphasis added).

The evidence proved that Mr. Schmidt's comme nt to Ms. Vance and

her resulting reasonable reaction thereto, violated this

principle. By making his harassing statement to Ms. Vance,

Mr. Schmidt created a hostile and intimidating environment which

Ms. Vance sought to be free of. Mr. Schmidt has, ther efore, in

violating Rule 6B - 1.006(5)(d), Florida Administrative Code, has,

consequently, violated Section 231.2615(1)(i), Florida Statutes

(f) Count 11 : Rule 6B - 1.006(5)(f), Florida Administrative

Code, which provides that a teacher "[s]hall not use coer cive

means or promise special treatment to influence professional

judgments of colleagues." The acts which the Commissioner

proved in this case do not support a finding that Mr. Schmidt

used coercion to influence professional judgements of his

colleagues. While he made a threatening comment about

Mr. Diamond, that comment was not actually made to Mr. Diamond

and, but for Ms. Sutton's informing Mr. Diamond about the

comment, Mr. Diamond would not have known it had been made. The

Commissioner failed to pro ve that Mr. Schmidt violated this

principle.

(g) Count 12 : Rule 6B - 1.006(5)(n), Florida Administrative

Code, which provides that a teacher "[s]hall seek no reprisal

against any individual who has reported any allegation of a

violation of the Florida Scho ol Code or State Board of Education

Rules as defined in Section 231.28(1), Florida Statutes." While

the Commissioner proved that Mr. Schmidt made a threatening

comment about Mr. Diamond, the evidence failed to prove that

Mr. Schmidt made the threat to Mr. Diamond or that he intended

that Mr. Diamond ever learn about the comment. More

importantly, the evidence failed to prove that Mr. Schmidt

indeed did or even intended to take any action against

Mr. Diamond. The Commissioner, therefore, failed to prove t hat

Mr. Schmidt sought any reprisal against anyone.

(h) Count 13 : Rule 6B - 1.006(5)(o), Florida Administrative

Code, which provides that a teacher "[s]hall comply with the

conditions of an order of the Education Practices Commission

imposing probation, im posing a fine, or restricting the

authorized scope of practice." By his treatment of M. G. and,

to a lesser extent, Ms. Vance it has been concluded in this

Recommended Order that Mr. Schmidt has committed some of the

violations of statutes and rules alleg ed in the Second Amended

Administrative Complaint. Therefore, Mr. Schmidt has violated

the terms of his probation. Mr. Schmidt has, therefore,

violated Rule 6B - 1.006(5)(o), Florida Administrative Code, and,

consequently, Section 231.2615(1)(i), Florida S tatutes.

89. In Count 4 of the Second Amended Administrative

Complaint, the Commissioner has alleged that Mr. Schmidt

violated Section 231.2615(1)(j), Florida Statutes, which

provides that a teacher may disciplined if he or she "[h]as

otherwise violated t he provisions of law , the penalty for which

is the revocation of the teaching certificate." But for the

violations of law proved in this case, the evidence has failed

to prove that Mr. Schmidt "otherwise" violated any other

provision of law.

90. In Count 5 of the Second Amended Administrative

Complaint, the Commissioner has alleged that Mr. Schmidt

violated Section 231.2615(1)(k), Florida Statutes, which

provides that a teacher may disciplined if he or she "[h]as

violated any order of the Education Practi ces Commission."

Mr. Schmidt violated this provision for the same reason that it

has been concluded that he violated Rule 6B - 1.006(5)(o), Florida

Administrative Code, discussed in paragraph 88(h) of this

Recommended Order.

G. Penalty .

91. Having proved by clear and convincing evidence that

Mr. Schmidt committed some of the violations alleged in the

Second Amended Administrative Complaint, Section 231.2615(1),

Florida Statutes, authorizes punitive action against

Mr. Schmidt's teaching certificate. In det ermining what

punitive action the EPC should take, it is necessary to consult

Rule 6B - 11.007, Florida Administrative Code, which contains the

disciplinary guidelines adopted by the EPC. Cf . Williams v.

Department of Transportation , 531 So. 2d 994 (Fla. 1s t DCA

1988)(An agency is required to comply with its disciplinary

guidelines in taking disciplinary action against its employees).

92. After carefully considering the facts of this case in

light of the provisions of Rule 6B - 11.007, Florida

Administrative Code, including the "aggravating and mitigating

factors" of Rule 6B - 11.007(3), Florida Administrative Code,

Mr. Schmidt's mistreatment of M. G., especially in violation of

the terms of his probation, warrant the revocation of his

teaching certificate.

RECO MMENDATION

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.

ENDNOTES

1 / There was evidence to suggest that it was the "principal",

presumably from Jose Marti Middle School, that established the

policy. There was also hearsay evidence that the policy had

been established by a Gina Covone, a "Department Head." The

weight of the evidence, however, failed to establish who

precisely established the policy.

2 / The evidence failed to prove that Ms. Vance "r esponded to

Respondent's statement by yelling expletives" as suggested in

Respondent's Proposed Recommended Order. The evidence also

failed to prove that Ms. Vance "yelled comments which referred

to gender equity . . . that the policy was illegal and . . .

that she was going to have the Respondent fired." Proposed

finding of fact 9, Respondent's Proposed Recommended Order.

3 / Mr. Schmidt's comment about throwing a clip board at him was

a reference to an incident which had taken place between

Ms. Vance, Manny Hahn, and Donald Hans. Mr. Schmidt testified

at the final hearing, and it has been argued in Respondent's

Proposed Recommended Order, that because of what had allegedly

happened during that incident, Mr. Schmidt was afraid that

Ms. Vance was going t o hit him with a clip board. As found in

Finding of Fact 14, Mr. Schmidt's testimony was not persuasive.

It is also concluded that what actually transpired between

Ms. Vance, Mr. Hahn, and Mr. Hans is not relevant to this

proceeding. If Mr. Schmidt's te stimony that he was afraid of

Ms. Vance due to that incident were credible, which it is not,

all that would be relevant about the incident and others that

Mr. Schmidt alluded to at hearing, is Mr. Schmidt's

understanding or beliefs about those incidents . Since his

understanding and beliefs about the incident were based solely

on what he had been told, what actually transpired is not

relevant.

4 / The statements made by Mr. Schmidt were made directly to

Ms. Sutter and Ms. Sutter testified credibly at heari ng as to

what she heard Mr. Schmidt say. Most of the relevant statements

which Ms. Sutter heard and testified about at hearing do not

constitute "hearsay."

"Hearsay" is defined in Section 90.801, Florida Statutes, as "a

statement [an oral or written asse rtion], other than one made by

the declarant while testifying at the trial or hearing, offered

in evidence to prove the truth of the matter asserted ."

[Emphasis added]. Using a simple example, if "A" testifies that

he heard "B" yell "fire," A's testimony about what he heard B

yell would be hearsay only if it were offered to prove that

there actually was a fire. If offered to prove that, in

response to hearing B yell "fire," A ran from the building, it

is not hearsay. Mr. Schmidt's comments to Ms. Sutter were not

offered to prove the truth of his statements, but only that he

made them. His comments, as testified to at hearing by

Ms. Sutter, were not, hearsay.

5 / The Second Amended Administrative Complaint alleges that

Mr. Schmidt "threatened to 'kill' David Diamond, who was present

during the [May 6, 1999] dispute and corroborated the statements

of Ms Vance." In order to prove this allegation, it is not

necessary that the Commissioner prove that Mr. Schmidt indeed

meant to kill Mr. Diamond; it is only necessary that the

Commissioner prove that Mr. Schmidt made the threat. Ms. Sutter

is the only witness that actually heard Mr. Schmidt make the

threat. Her testimony was not offered to prove the truth of

Mr. Schmidt's threat, just that he made it, as all eged.

Ms. Sutter's testimony concerning what Mr. Schmidt said in this

regard is not, therefore, hearsay.

6 / To finish the point, Mr. Diamond's testimony about what

Ms. Sutter told him about Mr. Schmidt's threat is indeed

hearsay. The truth of the factu al allegation in the Second

Amended Administrative Complaint, however, does not depend in

any way on what Mr. Diamond knew or believed. All that is

required was proof that Mr. Schmidt uttered the statement and

Ms. Sutter presented that proof through her t estimony.

7 / The evidence failed to prove that Mr. Schmidt was actually

choking M. Gi.

8 / Again, the evidence failed to prove that Mr. Schmidt was

actually choking M. G.

9 / Ms. Burris - Williams, who married subsequent to the events of

January 24, 2002 , was known as Ms. Burris at the time of the

incident.

10 / In his deposition, Petitioner's Exhibit 23, Mr. Schmidt gave

an explanation for why he made this statement. That explanation

defies logic and is rejected as lacking truthfulness.

11 / Dr. Greenb erg did testify that Mr. Schmidt had lost his

effectiveness as a teacher, but her opinion was based upon an

accumulation of acts and was not limited to his threat to

Ms. Vance or to the actions alleged in the Second Amended

Administrative Complaint which h ave been proved. Dr. Greenberg

also testified, when asked if she felt "he could remain in his

capacity as an employee with the Dade County School Board," that

"My request was that he be moved out of the learn to swim

program." Transcript, Volume 1, Page 235, Lines 2 through 6.

12 / Although Section 231.28(1), Florida Statutes, was renumbered

in the 2000 Florida Statutes as Section 231.2615(1), no change

in the substance of the deeds proscribed in the sections was

made. In order to avoid confusion in thi s Recommended Order,

all further references will be to Section 231.2615(1), Florida

Statutes (2000).

13 / The fact that Mr. Schmidt was "arrested and charge with

child abuse" does not, however, constitute gross immorality or

an act involving moral turpitu de.

COPIES FURNISHED:

Charles T. Whitelock, Esquire

Whitelock & Associates, P.A.

300 Southeast Thirteenth Street

Fort Lauderdale, Florida 33316

Gregory Schmidt

223 Forbes Avenue

Tonawanda, New York 14150

Leslie A. Meek, Esquire

United Teachers of Dad e

2200 Biscayne Boulevard, Fifth Floor

Miami, Florida 33137

Kathleen M. Richards

Executive Director

Education Practices Commission

325 West Gaines Street, Room 224 - E

Tallahassee, Florida 32399

Daniel J. Woodring, General Counsel

Department of Education

325 West Gaines Street

1244 Turlington Building

Tallahassee, Florida 32399 - 0400

Marian Lambeth, Program Specialist

Bureau of Educator Standards

Department of Education

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

NOTICE OF RIGHT TO SUBMIT E XCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.