STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF BROWARD COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 76-1795

)

JAMES P. WALSWORTH, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice a hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings, on October 11, 12 & 13, 1976, November 9, 10, 11, 12 & 30, 1976 and December 1, 1976, inclusive, at the Broward County Courthouse, Ft. Lauderdale, Florida.

APPEARANCES

For Petitioner: John B. Di Chiara, Esquire

Suite 1500 One Financial Plaza Ft. Lauderdale, Florida 33302

For Respondent: Emerson Allsworth, Esquire

1177 Southeast Third Avenue Ft. Lauderdale, Florida 33316

INTRODUCTION

This case arises based upon a complaint, which has been expressed both orally and in written form, that was made by John Georgacopoulos, a former employee of the Broward County School System. When the complaint was made Mr. Georgacopoulos was a member of the Broward County School System and was employed as a guidance counselor at Horizon Elementary School, the school in which the Respondent, James P. Walsworth, was the Principal. Part of the reason for complaint may be found in Respondent's Exhibit #4, admitted into evidence, which is a copy of the June 23, 1976, letter from Mr. Georgacopoulos to James E. Maurer, Superintendent of Schools for the School Board of Broward County, Florida. Subsequent to receiving the complaint Mr. Maurer assembled an audit team to examine the Exceptional Student Education Program at Horizon Elementary School, specifically to look for supporting data for those students who are enrolled in the Exceptional Education Program at Horizon Elementary School. A summary of that audit may be found in Petitioner's Exhibit #1, admitted into evidence, in part. (The transcript of record indicates those sections not admitted). This audit was conducted from June 30, 1976, until July 8, 1976.

Subsequent to the conduct of the audit at Horizon Elementary School, an audit report was made to Mr. Maurer, and this report is Petitioner's Exhibit #1. On July 15, 1976, copies of the report were rendered to members of the Broward County School Board. On August 19, 1976, the School Board of Broward County, Florida, suspended the Respondent without pay, effective immediately, that

suspension being a suspension of duties as Principal at Horizon Elementary School. By letter of August 20, 1976, signed by James E. Maurer, as Superintendent of Schools, the Respondent was notified of four charges that had been placed against him by the School Board of Broward County, Florida. These four charges constitute the administrative complaint. The Respondent has been reinstated in his position as Principal of Horizon Elementary School, by act of the School Board of Broward County, Florida on November 18, 1976. The duration of this reinstatement is contingent upon the outcome of this hearing.

ISSUES

1. Whether or not the Respondent, James P. Walsworth, is guilty of misconduct in office, and/or incompetency, and/or willful neglect of duty, as set forth in s231.36(6), F.S., in that during the 1975-76 school year, the Respondent, James P. Walsworth, caused to be prepared and submitted, documentation, including but not limited to, State Board of Education forms ESE-

   269 and ESE-135, which subsequently, qualified Horizon Elementary School for additional FTE funding for students classified as "gifted" in the fourth and fifth grades, when, during the 1975-76 school year, as Principal of Horizon Elementary School, the Respondent, James P. Walsworth, failed to provide and/or implement an appropriate program for those gifted students, in accordance with the "1975 District Procedures for Providing Special Education for Exceptional Students.", all as alleged in the first substantive paragraph of the complaint letter.

   
   

2. Whether or not the Respondent, James P. Walsworth, is guilty of misconduct in office, and/or incompetency, and/or willful neglect of duty, as set forth in s231.36(6), F.S., in that during the 1975-76 school year, while the Respondent, James P. Walsworth served as Principal of Horizon Elementary School, he caused two children, to wit: Warren Moody and Johnny Knight to be placed in the Educable Mentally Handicapped (EMH) program at Horizon Elementary School, and these two children were not certified for such a program, thus violating s230.23(4)(m) Subsections 1 - 7, F.S., Rules of the State Board of Education of Florida, policies of the School Board of Broward County, Florida, and the "1975 District Procedures for Providing Special Education for Exceptional Students.", all as alleged in the second substantive paragraph of the complaint letter.

   
   

3. Whether or not the Respondent, James P. Walsworth, is guilty of misconduct in office, and/or incompetency, and/or willful neglect of duty, as set forth in s231.36(6), F.S., in that during the 1975-76 school year, while the Respondent, James P. Walsworth, served as Principal of Horizon Elementary School, Respondent, James P. Walsworth, caused to be prepared and submitted documentation concerning the Special Learning Disability (SLD) students wherein, of the 79 students classified by the Respondent, James P. Walsworth, as (SLD), only 49 were certified; thereby violating the "1975 District Procedures for Providing Special Education for Exceptional Students" and s230.23(4)(m) Subsections 1 - 7, F.S., all as alleged in the third substantive paragraph of the complaint letter.

   
   

4. Whether or not the Respondent, James P. Walsworth, is guilty of misconduct in office, and/or incompetency, and/or willful neglect of duty as set forth in s231.36(6), F.S., in that during the 1975-76 school year, while the Respondent, James P. Walsworth served as Principal of Horizon Elementary School, he prepared and submitted documentation concerning one child classified as emotionally disturbed, without proper certification; and after having designated child for additional FTE funding, the Respondent, James P. Walsworth then failed to provide and/or implement an appropriate program for said child in violation

of the "1975 District Procedures for Providing Special Education for Exceptional Students" and s230.23(4)(m), subsections 1 - 7, F.S., all as alleged in the fourth substantive paragraph of the complaint letter.

FINDINGS OF FACT

1. The Respondent, James P. Walsworth, became Principal of Horizon Elementary School at the time of its opening in the fall of 1973, and has remained the Principal of that school, except for the period of his suspension between August 19, 1976 and November 18, 1976. Horizon Elementary School is a part of the school system of Broward County, Florida and the Respondent, James

   P. Walsworth, is an employee of the School Board of Broward County, Florida.

   
   

2. During the pendency of the Respondent's employment at Horizon Elementary School, there was in effect certain District Procedures of the School Board of Broward County, Florida, pertaining to the education of exceptional children. The first of these were procedures for 1973-74 and appears as Petitioner's Exhibit #12, admitted into evidence. The second document represents procedures for the school year 1974-75 and appears as Petitioner's Exhibit #13, admitted into evidence. The last document is for the year 1975-76 and is found in Petitioner's Exhibit #14, admitted into evidence. All the aforementioned procedures in Petitioner's Exhibits #12 - #14, were enacted by the School Board of Broward County, Florida.

   
   

3. In the school year 1975-76, the Respondent, James P. Walsworth, requested and received funding for seven students in the fourth grade and six students in the fifth grade, he claimed to be "gifted" students for funding purposes. This request for funding was placed in the October, 1975, funding count and the February, 1976, funding count. It is the October 1975, count that establishes the right to funding. Petitioner's Exhibits #19 and #20, admitted into evidence show the funding request for those gifted students. Petitioner's Exhibit #28, admitted into evidence, shows the total amount of FTE monies received in the gifted program at Horizon Elementary School. (The initials FTE stand for Full Time Equivalence).

   
   

4. In the year 1975-76 the six fourth grade students which had been placed in the gifted program were taught by Terence Byrnes. Mr. Byrnes had a total class of 27 students comprised of third and fourth grade students. The gifted students were placed with seven other students for purposes of reading instruction. Terence Byrnes is not certain of any particular instruction about the gifted program given by Walsworth at the commencement of the school year.

   He only understood that he was being designated as the gifted teacher for the fourth grade students who had been designated gifted and had FTE funding claimed in their behalf. Mr. Byrnes did not buy any special materials for those six gifted students, per se, but selected materials which he felt the average fourth grader could not do because, "they would not know how." The materials selected were taken from the media center and the curriculum for the gifted was constituted of math, science, social studies and reading. The six gifted students in his class were not segregated from the other members of the class at any time during the instruction period in a physical sense. Those students, together with the other members of their group who were identified as students of solid average to above average were given open ended assignments, by that, all students did not have to complete all parts. Mr. Byrnes indicated that the emphasis on the program for the gifted and others was independent study where the student would have to think. He further stated that these gifted students and other members of their group were under his supervision. Some of the items of study were the use of globes, maps, film strips and human anatomy. The

   anatomy subject included the examination of a skeleton model, placing x-rays of the human body over light fixtures as a supplement to the study of the skeleton model and examination of the bones of animals to show the action of the sockets of those bones. The students then used tracing paper to outline the bodies of their fellow students and to place the skeleton and organs of the human body in the outline tracing. Mr. Walsworth commented that this skeleton model had been bought for sixth and seventh grade students. Approximately one hour per day was spent on the gifted program.

   
   

5. Warren Smith was the teacher of the fifth grade students who had been labeled as "gifted" and had funds requested for their program. There were seven of these students who were placed with fifteen or sixteen other students in the top reading group. The other students were indicated to be academically talented. The gifted students were not physically separated from the other students. The type of assignments for the gifted and academically talented were open ended assignments and materials provided were materials provided for the gifted and academically talented. Mr. Smith remembers the instructions from Mr. Walsworth at the beginning of the school year 1975-76 as being, "to provide enrichment materials for the gifted," but Mr. Walsworth did not indicate what that program would consist of. The fifth grade "gifted" students read certain stories and wrote sequels to those stories. Some of the members produced a play and others wrote scripts and productions for television. The persons involved in the reading and writing assignments were "gifted" students; however, it was not clear what the involvement of the academically talented students were in this program. In addition, there was a clay and rock model in the curriculum area of a social studies unit on Western Movement and this program was an appropriate program for "gifted" students. Again it is not clear whether the "gifted" students alone worked on the Western Movement project, as opposed to the" gifted" and academically talented.

   
   

6. During the school year 1975-76, Virginia Barker, the art teacher at Horizon Elementary School taught certain fourth and fifth grade students to weave on special looms, to do needlepoint on special canvas and string art, which she felt to be above the level of children in these grades. This work was done as independent study before and after school. Mrs. Barker indicated that these students had been identified to her as being gifted students, but her testimony was unclear on the question of whether those persons involved in this independent study would include children who were talented, but not necessarily identified and funded as "gifted" students.

   
   

7. During the school year 1975-76 the students Warren Moody and Johnny Knight were placed and attended a program for Educable Mentally Handicapped (EMH) at Horizon Elementary School. Information on the child, Warren Moody, may be found in Petitioner's Exhibit #17 and Respondent's Exhibit #3, both admitted into evidence. Information on the child, Johnny Knight, may be found in Petitioner's Exhibit #16 and Respondent's Exhibit #5, both admitted into evidence.

   
   

8. On October 1, 1973, the student, Warren Moody was given certain testing and a psychological report was rendered by Dr. Halcyon H. Carroll. The results of this testing and the conclusions of that examiner may be found in Petitioner's Exhibit #17 admitted into evidence. Dr. Carroll found that Moody did not qualify for a program for the Educable Mentally Handicapped (EMH). This conclusion and the remainder of the facts in that report are accepted as being the determination reached by Dr. Carroll. Subsequent to Dr. Carroll's report, a decision was made to place Warren Moody in the (EMH) program at Horizon Elementary. This decision was based upon a committee or staffing conference

   held between the teachers and school psychologist, Dr. Robert Ginsberg, conducted in the fall of 1973. Dr. Robert Ginsberg was the psychologist assigned to the Horizon Elementary School. Dr. Ginsberg made his decision notwithstanding the determination of Dr. Carroll. Dr. Ginsberg's decision was made in view of the comments of the teacher that the student was not performing at a reasonable level and in view of his own observations of the student; however, Dr. Ginsberg did not conduct any further testing on the student beyond the testing rendered by Dr. Carroll. The committee report and other matters pertaining to the October, 1973, staffing at Horizon Elementary School, at which time Warren Moody was placed, are unavailable. The record is not clear on the question of whether or not Dr. Ginsberg rendered a written psychological report in addition to the committee findings on the student Warren Moody, who was staffed in the fall of 1973.

   
   

9. After Warren Moody was placed in the EMH program in the fall of 1973, he continued in the program through the end of the school year 1975-76. At all times his participation was in the Horizon Elementary School. In the spring of 1976, Queen M. Sampson, a school psychologist for the Broward County School System tested Moody and rendered a psychological report. Again this report is a part of Petitioner's Exhibit #17, admitted into evidence. In the report, Queen Sampson indicated that Warren Moody did not qualify for (EMH) in terms of testing and recommended return of the student to the regular classroom. On June 1, 1976, the student assessment and review committee met at Horizon Elementary School and concluded that the student should be returned to regular class. This report was entered at the end of the 1975-76 school year, and is part of Petitioner's Exhibit #17.

   
   

10. In the school year 1972-73, the student, Johnny Knight, had been attending Royal Palm Elementary School. While attending that school certain tests were made of the student's ability to determine appropriate academic placement. Subsequent to the tests a report was rendered under the signature of Dr. Robert Ginsberg and co-signed by Dr. James R. Fisher, the Director of Psychological Services, in Broward County, Florida. The conclusion of Dr. Ginsberg was that the student did not qualify for (EMH) placement at that time, but did require much retraining and remedial help in all perceptual areas. A copy of this written report may be found in Petitioner's Exhibit #16 and the report is accepted as being an accurate depiction of Dr. Ginsberg's findings. The student was transferred to Horizon Elementary in the fall of 1973, for the school year 1973-74. After discussion with the teachers at the fall staffing for placement of students, determining that the student was not working well in the normal class setting, observing the student and reviewing the report of April, 1973, Dr. Ginsberg concluded that the student should be placed in (EMH). No written psychological report was rendered and no further tests were conducted by Dr. Ginsberg in the fall staffing committee conference. The student Johnny Knight remained in the program from the school year 1973-74 through the school year 1975-76, at which time, on June 8, 1976, per the re-evaluation committee's recommendation, he was removed from the (EMH) program.

    
    

11. The placement of the students, Warren Moody and Johnny Knight, was for a period of three years from the fall of 1973 and was not in violation of any statutes, rules or procedures. The term, three years, means three school years.

    
    

12. Acting on a complaint filed by John Georgacopoulos, school guidance counselor for Horizon Elementary School in the years 1974-75 and 1975-76, the Superintendent of Schools of the School Board of Broward County, Florida, ordered an audit of the Horizon Elementary records. One of the aspects of the audit was to examine certain folders on the specific Learning Disability

    students who were enrolled in the year 1975-76. These folders were folders that were found in the main office of the school. The audit report which is Petitioner's Exhibit #1, admitted into evidence, in part, states that 79 folders were examined in the course of the audit. In addition there was testimony by one of the auditors, that a computer print-out contained the names of those students that were found in the Specific Learning Disability program (SLD).

    Apparently the auditor was referring to that computer print-out which is Petitioner's Exhibit #8, admitted into evidence. That exhibit shows a color code for certain categories and (SLD) is shown in yellow. The number of (SLD) students in the year 1975-76 was determined by the auditors on the basis of the examination of the file folders in the main office and the computer print-out and this gave them the number 79. When the charge was made, it alleged 74 students were in the (SLD) program in the 1975-76 school year, but was subsequently amended during the course of the hearing to reflect the number 79, which appeared in the audit report. In fact, FTE funding in the (SLD) program of Horizon Elementary was claimed for 71 students in the October 27 - 31, 1975, count and for 74 students in the February 23 - 27, 1976, count as reflected in Petitioner's Exhibit #19, admitted into evidence. Therefore, funding would have been received for 71 students in October, 1975, in the (SLD) program. Moreover, testimony established that it was this October count which set up the process for the actual receipt of funds for such program.

    
    

13. Of the 79 students claimed to be enrolled in the 1975-76 school year, in the category (SLD), 47 of those students whose files were examined were felt to be properly certified. Certification to the audit members meant that a school psychologist had indicated the propriety of placing that student in the (SLD) program in years prior to 1975-76, and after 1975-76 that a form known as B-1 had to be signed by the Director of Exceptional Student Education or his designee to have certification. This word certified comes from the audit summary table found in the audit, Petitioner's Exhibit #1. The original charge claimed 47 students of the (SLD) program were certified. This number was amended to read 49 as certified, such amendment being made in the course of the hearing. In addition to the audit report, there was prepared a tally sheet. This tally sheet was the product of the three auditors and pertained to the (SLD) students. The tally sheet is Petitioner's Exhibit #15, admitted into evidence. It shows 79 names, which are the names of the file folders examined in the audit. It has certain columns pertaining to items being sought, one of which columns is the aforementioned certification. Looking at this exhibit it is determined that there are 30 names of students, whom the auditors did not locate data for on the column labeled certification. Those 30 names are found in a separate part of Petitioner's Exhibit #15, In determining what data existed, the auditors had asked the Respondent to produce his files, they had looked at files in the main office and in the Specific Learning Disability room, and at the Diagnostic Center for the Exceptional Education Program in Broward County. Their examination of the Diagnostic Center files was only on a random basis. They had also spoken to the (SLD) teachers at Horizon Elementary in a general way, but not as to the specific names of students that they could not find data for. The auditors did not look in the cumulative folders, which were found with the homeroom teachers of the 30 (SLD) students.

    
    

14. No document was offered which shows which if any of the 79 students named on the tally sheet were part of the 71 students for whom FTE funding in the (SLD) program was claimed for in the October 27 - 31, 1975, request, nor was such documentation shown for which if any of the 79 students on the tally sheet were claimed as part of the 74 students who were involved in the FTE funding count of February 23 - 27, 1976. Therefore, it is not known specifically which

    of the students were having funding claimed for them in October, 1975 and February, 1976.

    
    

15. There was a great deal of testimony in the case concerning the referral process, testing, psychological evaluation, and staffing of those students in the (SLD) program at Horizon Elementary School. This discussion involved allegations and counter allegations about the conduct of the prescribed process, as to the compliance with procedures and the quality of that compliance, and the disposition of the evidence showing qualification of the (SLD) students for such a program, once placement had been made and funding requested. Essentially, the Petitioner was trying to establish, through its witnesses, that procedures were not followed in placing (SLD) students for the years 1973-74 through 1975-76 either in fact or in the quality of compliance. The Respondent, through its witnesses, countered that compliance had been achieved and that the placement of those students in the (SLD) program was correct. Within this testimony, there are claims on both sides that files either did not exist or certain data in those files had been removed.

    
    

16. Some evidence which was offered to establish that testing was done on those 30 students whose names appear on Petitioner's Exhibit #15, will be found in Respondent's Exhibit #18 - #22, admitted into evidence. These Respondent's exhibits show materials taken from the files of the named students and compilation of tests scores kept by the (SLD) teachers, Bonnie Kirkham and Pat Sanders. These items were not seen by the audit team. Some information was in the possession of the (SLD) teachers based on notes of test scores that were take-offs of the original test booklets and documents, with the exception of one file which was mistakenly kept in the (SLD) teachers room, and the balance of the data was taken from the cumulative folders of the students, that had been kept in the homeroom teachers' rooms, which were not examined by the auditors. Other data may be found in Petitioner's Exhibits 36 - 38 which are psychological reports written by Dr. James R. Fisher, a school psychologist with the Broward County School System. These reports pertain to certain of the 30 students whom he recommended to be returned to regular class, and some of which were left in the (SLD) program from January, 1976 through the end of the school year to avoid adjustment problems. Although the psychological reports are dated September, 1975, these reports were not sent to Horizon Elementary School until January, 1976. In addition the attorney for the Petitioner after reviewing the evidence, concedes that the children, Jeanine O'Hara, Wayne Martin, Suzanne Cain, Karen Treese, Alderto Guzman, Laura Natzke and Kieth Franklin were tested and found eligible for placement in (SLD).

    
    

17. After entertaining considerable testimony on the procedures and the whereabouts of certain data within the files of the 30 (SLD) students under discussion, and after reviewing the evidence offered to show the existence of data about the students, the undersigned is unable to conclude what the actual facts are, and for that reason it has not been shown that the procedures for placement and claiming funding were followed or not. However, there is strong evidence to show that the procedures were followed for placing the thirty (SLD) students, as shown by Respondent's Exhibits #18 - #22.

    
    

18. On October 27, 1975, the student Anthony Buffone was tested by a school psychologist in the Broward County School System. This psychologist was Bob Lieberman, and Mr. Lieberman rendered a written psychological report, which indicated that Anthony Buffone should be placed in a program for Emotionally Disturbed children. A copy of this report may be found in Petitioner's Exhibit #18, admitted into evidence. This child was staffed and proper placement effected, in accordance with the existing law and procedures. The activity of

    placement transpired in the fall of 1975. The child was attending Horizon Elementary School in the school year 1975-76. The program provided for Anthony Buffone in that school year was to have him attend regular class part of the day and to spend approximately two hours a day with John Georgacopoulos, the school guidance counselor. Georgacopoulos was to help Anthony Buffone with academics, to assist in behavioral modification and to improve the student's self concept. This program was provided as needed, and this need turned out to be approximately two hours a day. In addition, the Respondent worked with the student in terms of counseling. The student spent some time in the (SLD) program but because of the disruptive nature of his conduct, was removed from that program. His attendance in (SLD) was from the beginning of January, 1976 through the spring, 1976. He was removed from the (SLD) program at the request of the (SLD) teacher. Mr. Georgacopoulos the instructor, had a BA Degree in psychology from the University of Oklahoma and a Master's Degree in Institutional Guidance and Counseling from Oklahoma City University. In addition Mr. Georgacopoulos had been approved by the Broward County School Board to do psychometric testing. Prior to coming to the Broward County School System in 1969, he had done work at the Wagon Wheel School in Oklahoma, in the field of guidance and counseling. He was not a certified psychologist, certified with the State of Florida. The Respondent recognized that the student Anthony Buffone, would have been better placed at the Castle Hill School which had a more comprehensive program for the Emotionally Disturbed, but the mother of the child did not wish this placement since it would work a hardship in transporting the child to the school, and would place the child in a location that was inconvenient to the parent.

    
    

    CONCLUSIONS OF LAW

    
    

19. It is concluded as a matter of law that the Division of Administrative Hearings has jurisdiction in this cause.

    
    

20. The testimony of the witness, John Georgacopoulos, will be admitted.

    
    

21. The motion to dismiss the charges which was made at the commencement of the hearing is denied.

    
    

22. Petitioner's Exhibits #2, #3 and #4, excerpts of the Florida Statutes and the Florida Administrative Code, will be admitted.

    
    

23. The Respondent's excerpts of Florida Statutes, and of the Florida Administrative Code, will be received as post-hearing Exhibits #32 and #33 by the Respondent, for identification purposes. Respondent's Exhibit #32 is admitted and Respondent's Exhibit #33 is not admitted. These post-hearing exhibits appear in sequence; with the other exhibits offered in this cause, Respondent's Exhibit #32 being a composite exhibit of all matters presented as excerpts, with the exception of Florida Statutes, s229.565, which is Respondent's Exhibit #33 and is not admitted.

    
    

24. It is concluded as a matter of law, based upon the facts as shown, that the Petitioner has failed to show that the Respondent is guilty of misconduct in office, and/or incompetency, and/or willful neglect of duty, in accordance with s231.36(6), F.S., by preparing and submitting documentation, including but not limited to State Board of Education Forms ESE 269 and ESE 135 and subsequently qualifying Horizon Elementary School for addition FTE funding for students classified as "gifted" in the fourth and fifth grades. The Petitioner has failed to make this showing because in the year 1975-76, the program for the "gifted" fourth and fifth grade students at Horizon Elementary

    School, as provided and/or implemented by the Respondent was in accordance with the "1975 District Procedures for Providing Special Education for Exceptional Students." A thorough examination of paragraph five of the section entitled "Gifted", at page 171, found in the "1975 District Procedures for Providing Special Education for Exceptional Students", shows that the program is to be entirely a research program which contemplates close coordination with the regular school program, with particular emphasis on flexibility and individualization in total instructional freedom. Beyond these guidelines and the companion statements found in that section on the "Gifted", there is no specific mandate in terms of curriculum, grouping, or instructional procedures. The aforementioned paragraph five, merely speaks in terms of proposed programs, possible options, and things which may be included. Measured by these standards, the program provided for the fourth and fifth grade gifted student at Horizon Elementary School in the year 1975-76 meets the. "1975 District Procedures for Providing Special Education for Exceptional Students."

    
    

25. It is concluded as a matter of law, based upon the facts as shown, that the Petitioner has failed to show that the Respondent is guilty of misconduct in office, and/or incompetency, and/or willful neglect of duty, in accordance with a231.36(6), F.S., for causing to be placed children, to wit: Warren Moody and Johnny Knight, in the Educable Mentally Handicapped (EMH) program at Horizon Elementary School while Principal of that school, when those two children were not certified for such a program. These two children were placed in the Educable Mentally Handicapped (EMH) program in the fall of 1973, upon action by the school psychologist Dr. Ginsberg and the committee which staffed those students in Horizon Elementary School. The action taken by Dr. Ginsberg and the other members of the committee in the fall staffing of 1973, was not in violation of any State Board Regulations and School Board Policies, or in violation of the "1975 District Procedures for Providing Special Education for Exceptional Students." The placement of the students in 1973 was for a period of three years and was in accordance with the general concept set forth in the then existing "1973-74 Broward County District Procedures for Providing Special Education for Exceptional Children and Youth." Although at the time of placement the statement on page six of the aforementioned 1973-74 District Procedures indicated that the range of intellectual function that is normally acceptable is one-half to three-quarters of normal intellectual development, which is 100 as a mean intelligence score, it does not exclude scores outside the range if the student is felt to be otherwise eligible. The "1975 District Procedures for Providing Special Education for Exceptional Students" would only have application to the removal of the students, since the 1973-74 procedures control the question of the admission, and there has been no showing of a violation of the standards on removal, nor has one been plead.

    
    

26. It is concluded as a matter of law, based upon the facts as shown, that the Petitioner has failed to show that the Respondent is guilty of misconduct in office, and/or incompetency, and/or willful neglect of duty, in accordance with s231.36, F.S. During the 1975-76 school year, while the Respondent served as Principal of the Horizon Elementary School, he caused to be prepared and submitted, documentation concerning the Special Learning Disability (SLD) students, where of the 79 students classified by the Respondent as (SLD) students, only 49 were certified; thereby violating the "1975 District Procedures for Providing Special Education for Exceptional Students" and s230.23(4)(m), Subsections 1 - 7, F.S. The facts show that 71 students had funding claimed for them in the (SLD) program in October, 1975 and 74 students had funding claimed for them in the (SLD) program in February, 1976. Moreover, an examination of the facts offered in evidence does not clarify whether the students were eligible and placed in accordance with the prescribed procedures,

    when referring to the existence or nonexistence of certain data or the eventual disposition of preexisting data which is missing from certain of the school files. In addition there is a strong indication that the eligibility and placement was in accordance with procedures, as evidenced by the copies of certain information from the folders of these students about which the deficiencies were being claimed. The doubt therefore inures to the benefit of the Respondent since he is not charged with the burden of proof. Finally, an examination of the entire testimony does not clarify which of the 79 students, as alleged, actually had funding claimed for them, based upon insufficient compliance with the procedures, in view of the fact that only 71 and 74 students respectively, were placed in the October, 1975 and February, 1976 (SLD) program.

    
    

27. It is concluded as a matter of law, based upon the facts as shown, that the Petitioner has failed to show that the Respondent is guilty of misconduct in office, and/or incompetency, and/or willful neglect of duty, in accordance with s231.36(6), F.S., for preparing and submitting documentation concerning Anthony Buffone which classified Anthony Buffone as Emotionally Disturbed, when Respondent, as Principal, had failed to have the child properly certified, and had failed to provide and/or implement an appropriate program for said child, in violation of the "1975 District Procedures fro Providing Special Education for Exceptional Students" and s230.23 (4)(m), subsections 1 - 7, F.S. The attorney for the Petitioner, in his brief admits that the child was properly certified, and this impression is supported by the facts. The facts also show that the program designed for the student Anthony Buffone at Horizon Elementary School in the school year 1975-76 met the standards set up by the "1973 District Procedures for Providing Special Education for Exceptional Students" and s230.23(4)(m) , subsections 1 - 7, F.S., pertaining to the Emotionally Disturbed.

RECOMMENDATION

It is recommended that the Respondent, James P. Walsworth, be relieved of further responsibility in answering to these charges and that back pay and other benefits that he may be entitled to, be forthcoming.

DONE and ENTERED this 4th day of February, 1977, in Tallahassee, Florida.

CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

John B. Di Chiara, Esquire Suite 1500, One Financial Plaza Ft. Lauderdale, Florida 33302

Emerson Allsworth, Esquire 1177 S.E. Third Avenue

Ft. Lauderdale, Florida 33316

Mr. James E. Maurer Superintendent of Schools

The School Board of Broward County Administration Offices

1320 S.W. Fourth Street

Ft. Lauderdale, Florida 33312

Docket for Case No: 76-001795

Orders for Case No: 76-001795