Kick In The Balls: The Most Uncomfortable Class Of Their Lives

A stayed suspension of two years and probation has been imposed by the Kansas Supreme Court for an attorney’s behavior as a substitute teacher.

The court recited findings of the Hearing Panel

On April 28, 2021, Respondent Mark Samsel substitute taught in art class at Wellsville High School. Respondent, then working as an attorney and state representative, had also obtained his emergency substitute teaching license on May 12, 2020.

During fifth hour art class, Respondent started the class by playing music as the students entered the classroom and telling the students that he ‘had the floor’ unless someone else raised their hand and was recognized, and that it was going to be ‘the most uncomfortable class of [their] life.’ He then proceeded to do many things throughout the class period that made some students uncomfortable.

Respondent talked about God, the devil, suicide, and mental health. He told the class that God was speaking through him. Some students later reported feeling uncomfortable, to the point that some of them left the room for a break.

Respondent seemed focused on one student in particular: T.E. Respondent acknowledges this and states that he had known T.E. for many years. Respondent stated T.E. was disrupting the classroom without being recognized and repeatedly disregarded Respondent’s requests, including to leave the classroom and calm down or go to the principal’s office. At one point, Respondent grabbed T.E. from behind and lifted him up.

During the class period, Respondent also pushed T.E. against the wall. T.E. reported this caused him to get a mark(s) on his back.

Respondent also kicked or kneed T.E. in the groin area. T.E. laid on the ground after Respondent kicked him.

Respondent asked T.E. if it hurt and told T.E. he could go to the nurse to have her check ‘it’ for him. Respondent also told D.W., a classmate, he could ‘check [T.E.’s] nuts for him.’

In an interview with law enforcement, T.E. stated that Respondent grabbed him by the shoulders and shoved him against the wall. T.E. stated he did not want to be touched and was scared by what had happened. He stated that about ten minutes later, Respondent approached him and told him he was going to kick him in the ‘balls.’ T.E. stated that another ten minutes went by when Respondent kicked T.E. in the groin with his right foot. T.E. winced over in pain and felt confused.

J.G. stated that during the class period, Respondent bent over and grabbed J.G. by the shoulders, asking her whether she had mental health problems. J.G. stated she felt scared because she had PTSD and did not like people grabbing her. She thought Respondent was going to hurt her.

While the class period progressed, one of the students texted her mom, who was a teacher at the middle school, stating that Respondent was ‘crazy,’ and that he had ‘just hardcore kicked [T.E.] in his balls.’ Even though the student’s mom was teaching, she alerted administration.

As a consequence

Law enforcement arrested Respondent and he was charged with three counts of misdemeanor battery, all class B person misdemeanors. The criminal complaint listed the victims of the batteries as T.E. (two counts) and J.G. Both victims were [minors].

Following the incident in the classroom, Respondent posted a story on SnapChat, stating the entire incident was planned to send a message about mental health and teenage suicide. The message stated that God planned it and that many of the kids were in on it. However, according to interviews conducted by law enforcement, none of the students interviewed knew about any ‘plan’ or staged the event ahead of time.

Then

Respondent pled guilty on September 13, 2021, to an Amended Complaint that contained three counts of disorderly conduct, all class C nonperson misdemeanors.

On that same day, the district court placed Respondent on 12 months’ probation with a 90-day underlying sentence. As conditions of probation, Respondent could not have contact with the victims and had to write them apology letters. He was also ordered to comply with mental health treatment and to take all prescribed medications.

His explanation

In Respondent’s response, dated October 29, 2021, he stated he was suffering from ‘a manic episode with psychotic effects (break from reality) in the classroom caused by the stress, agitation, and pressure of both the events leading up to that day in the classroom and the day of.’ Due to this, he believed he was supposed to ‘stage an outrageous event to bring attention to mental health, especially for kids.’ He continued: ‘After asking the student to stop several times and even backing away from him, the agitation and stress continued and created a grandiose scheme in my mind that I—working along with these kids—was supposed to stage an outrageous event to bring attention to mental health, especially for the kids. Because I told the student exactly what I was going to do before I did anything . . . , and then he continued to step at me to push me in the chest again, my mind interpreted all this as part of the grandiose plan.’

The court on sanction

The remaining issue is deciding the appropriate discipline. The parties jointly recommend a one-year suspension of Samsel’s license, and that the suspension be stayed and Samsel be placed on probation for one-year. But an agreement to proceed by summary submission is advisory only and does not prevent us from imposing discipline greater or lesser than the parties’ recommendation. Rule 223(f).

After full consideration, we hold that a two-year suspension is the appropriate discipline under the circumstances. We acknowledge respondent’s mental health was a contributing factor to his misconduct, and he has made significant progress in this respect upon diagnosis and adherence to a successful treatment protocol. But given the nature of the underlying conduct, we believe a suspension of more than one year is warranted. Cf. In re Harrington, 296 Kan. 380, 394, 293 P.3d 686 (2013) (imposing two-year suspension on attorney convicted of battery, driving under the influence, and obstruction of official duty); In re Frahm, 291 Kan. 520, 531, 241 P.3d 1010 (2010) (imposing three-year suspension on attorney convicted of driving under the influence and two counts of aggravated battery). Respondent’s license is thus suspended for two years.

The suspension is stayed conditioned on respondent’s successful performance and completion of two years’ probation, subject to the terms and conditions of the probation plan and KALAP monitoring agreement. Additionally, to ensure that respondent is best positioned to succeed and that the public is adequately safeguarded while respondent practices law in a solo practice setting, the two years’ probation is also subject to a practice supervision plan approved by the Disciplinary Administrator’s office.

(Mike Frisch)