STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THE SCHOOL BOARD OF BROWARD ) COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 76-1796

)

ROBERT G. WIELAND, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, on October

15 and 19, 1976, in Room 850 of the Broward County Courthouse and on October 25, 26, and 27, 1976, at the offices of the Broward County School Board, Ft. Lauderdale, Florida.

APPEARANCES

For Petitioner: John B. Di Chiara

Di Giulian, Spellacy, Bernstein, Lyons and Sanders

One Financial Plaza, Suite 1500 Ft. Lauderdale, Florida 33394

For Respondent: Robert M. Curtis

Saunders, Curtis, Ginestra & Gore Post Office Drawer 4078

1750 East Sunrise Boulevard Ft. Lauderdale, Florida 33338

INTRODUCTION

By letter dated August 20, 1976, respondent Robert G. Wieland was notified by James E. Maurer, superintendent of Schools, that the School Board had, on August 19, 1976, suspended him without pay. The Board formally charged respondent with misconduct in office, incompetency and/or willful neglect of duty, pursuant to F.S. 231.36(6). Specifically, petitioner charged that during the school years 1973/74, 1974/75 and 1975/76, respondent, in his various capacities with the school board during these three years, became aware of and privy to information concerning irregularities in the exceptional child programs at Horizon Elementary School. These irregularities concerned the certification of students and the implementation and/or failure to implement programs, the same not being in accordance with State regulations or School Board policy and procedure. It was charged that respondent failed to investigate and report the alleged irregularities to the Superintendent and/or his immediate superior, as required by the positions held by him during the three school years in question.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following pertinent facts are found:

1. Respondent Wieland has been employed with the Broward County school system for approximately twenty-three years. In the school year 1973/74, he held the position of Director of Exceptional Child Education. His immediate superior was the Program Director of Educational Services, Mr. Larry I. Walden, a member of the superintendent's staff. Dr. James R. Fisher served as Director of Psychological Services on Dr. Wieland's Exceptional Child Education staff.

   
   

2. During the 1973/74 school year, several rather drastic changes were occurring with regard to the administration of the exceptional child education program. This was the year of decentralization in Broward County, where concepts of authority, decision-making, accountability and responsibility were filtering down to the building or school levels through the various principals. Also, the Florida Educational Financial Program began in that year. This program related to state funding for students based upon a particular weight factor assigned for students in different programs. The cost factors for programs for exceptional students is considerably higher than for basic programs. Beginning with the 1973/74 school year, the actual responsibility for placement of children and implementation of programs resided with the principals of the individual schools. The role of the Exceptional Child Education staff was then reduced to one of consultation, advice and administration.

   
   

3. Prior to decentralization, psychological testing was conducted under the direction or supervision of the Exceptional Student Education Department at the Diagnostic Center. With decentralization, testing psychologists became a part of the staff of the area offices and were answerable to their respective area superintendents. With this change, they were repeatedly instructed that their functions were consultative and that they were simply to test students upon receipt of a request from a school's principal.

   
   

4. Beginning with the 1973/74 school year, school psychologists, as well as the then Director of Psychological Services, were constantly concerned with the pressures being placed upon them by the school principals and area superintendents to rapidly test and certify students for eligibility in the various exceptional education programs. A count of such eligible students was to be made in October and February of each school year. The results of such counts had a tremendous effect upon the school principal's budget. Many school psychologists felt that students were being placed in programs without sufficient diagnosis or data. This, along with inadequate personnel, was a constant topic of discussion both among school psychologists and at meetings on the staff level. Mr. Walden, respondent's immediate superior, was informed by Dr. Fisher of files containing insufficient data and other procedural irregularities. Mr. Walden also attended some of the staff meetings at which various problems were discussed. No specific problems at Horizon Elementary School were discussed between Fisher and respondent Wieland during the 1973/74 school year. In fact, Dr. Fisher was unaware of any discrepancies or procedural irregularities at Horizon during that year.

   
   

5. Conditions did not improve during the 1974/75 school year, according to various school psychologists and the exceptional education staff. They still felt pressure to rapidly identify eligible students for exceptional education programs in order to generate funding and they still felt there was inadequate staffing for psychological services. During this year, Mr. Joel Kieter assumed

   respondent's position of Director of the Exceptional Education Program and respondent became Coordinator of Special Services, formerly called Psychological Services. Thus, Mr. Kieter was respondent's immediate superior. During this year, Mr. Kieter's office had no direct role in the certification of students for the various exceptional education programs. The 1974 "District Procedures for Providing Special Education for Exceptional Students" specifically provided that:

   
   

   "In the process of decentralization the exceptional student personnel at the district level have been relieved of direct responsibility for administration and instruction. The respon- sibilities of such personnel are now consultative

   and advisory in nature. The primary responsibility for administration and instruction is at the building level."

   
   

   However, Mr. Kieter's staff did attempt to give guidance to school psychologists and administrative personnel regarding the criteria for placement and the required procedures to be followed.

   
   

6. Among the duties of respondent Wieland during the 1974/75 school year was direct responsibility for the Diagnostic Center, which was a repository for some 35,000 to 40,000 student files. School psychologists were instructed to obtain a case number from the Diagnostic Center for all new student files and to send a copy of the completed file to the Center. At one time, they were told that they could retain the folders as long as they thought the case was active. Student files were also to be kept at the student's school and in the area superintendents' offices. Inasmuch as the school psychologists were accountable to the area superintendents, the Center and its staff had no authority and could do little more than request them to promptly forward the files to the Center.

   At times, staff at the Diagnostic Center would return files for parental consent forms.

   
   

7. Numerous staff meetings were held by Director Kieter during the 1974/75 school year. During these meetings, the school psychologists complained of their heavy caseload, the lack of secretarial help and other staff, pressures placed upon them by principals and area superintendents to place children in programs, inappropriate testing and lost or misplaced files. These were general discussions and specific incidents were not related.

   
   

8. Dr. James Fisher, who was the team leader for psychologists in the North-Central area, had general discussions with both Dr. Wieland, Director Kieter, and even Mr. Walden concerning the pressure he felt with regard to the rapid testing of children and the inadequacy of data in the files of children who had already been placed. Dr. Fisher expressed to them his fear that emphasis was being placed upon the filling of classes, rather than upon the individual students.

   
   

9. During the school year 1975/76, respondent again occupied the position of Coordinator of Special Services and Joel Kieter was again the Director of the Exceptional Education Program. The building principal of the referring school or the school enrolling the student was directly responsible for placement in the appropriate exceptional student program. ("1975 District Procedures for providing special Education for Exceptional Students," p. 199, H(2)(c) and p. 3). The exceptional student education staff was responsible for the determination of eligibility of individual students (p. 3 of the 1975 District

   Procedures). This determination was to be based upon the report of the testing psychologist. In the first portion of the 1975/76 school year, Director Kieter signed the eligibility determination forms (also referred to as the B-1 form). This responsibility was delegated by Mr. Kieter to respondent Wieland in mid- December, 1975. Prior to this delegation, Mr. Kieter occasionally signatured some B-1 forms without having seen the psychological report. This was done because of a backlog in clerical assistance and processing, and to expedite the procedure. Mr. Kieter was assured by the school psychologists that if the B-1 form had been sent to him for execution, proper testing had been completed, the report was in the process of being written and the data was available.

   Simultaneous with the time that the authority to sign B-1 forms was delegated to Dr. Wieland, Mr. Kieter issued a memorandum to all school psychologists stating that B-1 forms without the completed psychological report attached thereto would no longer be entertained.

   
   

10. In the Fall of 1975, Mr. Fisher communicated with Director Kieter concerning the absence of certain psychological data in the files of some ten to twelve students at Horizon Elementary School. Mr. Kieter instructed Mr. Fisher to make up any deficiencies in those folders. Mr. Kieter also discussed the folders with the principal of Horizon, Mr. Wallsworth. Other than this incidence, Director Kieter was not informed of any specific irregularities or abuses in the exceptional education program at Horizon during the 1975/76 school year.

    
    

11. Mr. John Georgacopoulos worked in the Diagnostic Center as a psychometrist from 1969 to 1971, and at Horizon Elementary School as a guidance counselor in the school years 1974/75 and 1975/76. As a guidance counselor, he attended "staffings" or meetings with school psychologists pertaining to the placement of students in the various programs. He was also involved with the testing of students at Horizon. In the school year 1974/75 -- his first year at Horizon -- Mr. Georgacopoulos perceived that there were problems in the running of Horizon's exceptional student program. These problems included the misclassification of students, the placing of students into programs without certification and without proper testing, the nonexistence of programs for which children were certified and mimeographed certifications with the students' name placed thereon at a later time. Mr. Georgacopoulos informed Horizon's principal, Mr. Wallsworth, of these irregularities on numerous occasions during the 1974/75 school year. He also states that he discussed these problems with Mr. Fisher, Director Kieter and respondent Wieland. Both Dr. Wieland and Mr. Kieter denied being informed by Mr. Georgacopoulos of any irregularities at Horizon during the 1974/75 school year.

    
    

12. According to Mr. Georgacopoulos, problems at Horizon continued in the 1975/76 school year. These included the misplacement of children, improper or inadequate testing of students, nonexistence of programs, inadequate data in student files and the lifting of signatures onto psychological reports. In March of 1976, Georgacopoulos obtained from Mr. Wallsworth's office a computer printout of students funded for the various exceptional education programs at Horizon. He then checked the files of these students both at the Diagnostic Center and at Horizon and found that many did not have case numbers assigned to them, that many contained inadequate or no data and that, for some students, files did not exist at all either at the school or the Center.

    
    

13. In March of 1976, Georgacopoulos went to respondent's office and talked to respondent about the alleged irregularities existing at Horizon. It is difficult to discern from Georgacopoulos' testimony what specifics were related to respondent. It appears that Wieland was informed that children were

    certified as gifted when no gifted program existed at Horizon, that children were being placed in the wrong programs, that children were being placed without appropriate or adequate testing and that the information in the student files was inadequate. At the time of this discussion, respondent had a difficult time following Georgacopoulos' conversation. He appeared to respondent to ramble and to be upset and confused. Respondent felt that Georgacopoulos simply disagreed with the psychologists' reports as well as the contents of the gifted program.

    As a result of this conversation, respondent told Georgacopoulos that some information might be in the files at the Diagnostic Center and offered him the opportunity to check these files with the assistance of his staff.

    Georgacopoulos told respondent that he had discussed these irregularities with Principal Wallsworth.

    
    

14. On May 27, 1976, Robert Lieberman, a school psychologist at Horizon, went to respondent's office and told him of irregularities that existed at Horizon. These included the lack of programs for gifted and emotionally disturbed students, the misplacement of certified children, inappropriate "staffing" of children, inappropriate and/or inadequate testing before placement and the pressures placed upon school psychologists to test and place numerous students within a short amount of time. Lieberman was concerned that he would lose his job at Horizon and Respondent told him to try to finish out the school year without sacrificing his professionalism. Dr. Wieland also offered to help him get an interview for a job at the county level.

    
    

15. Sometime between May 27th and June 9, 1976, Ms. Queen Sampson, a school psychologist from the area office, talked to respondent and confirmed the statements made by Georgacopoulos and Lieberman.

    
    

16. On June 9, 1976, respondent again discussed the irregularities at Horizon with Mr. Georgacopoulos. During this conference, Mr. Georgacopoulos specifically placed the blame upon Principal Wallsworth and he was more emphatic and specific in his allegations concerning the irregularities. He also mentioned the falsification of psychological reports via the "lifting" of signatures, and stated that this had come to his attention in May of 1976. Respondent was aware at this June 9, 1976, meeting that Mr. Georgacopoulos was leaving the Broward County school system.

    
    

17. Mr. Georgacopoulos testified that he had discussed specific irregularities at Horizon with Director Joel Kieter during the 1975/76 school year. Mr. Kieter denied that there had been any such discussions and testified that he had never even met Mr. Georgacopoulos prior to June 9, 1976.

    
    

18. About an hour after talking to Mr. Georgacopoulos on June 9, 1976, respondent Wieland went to the office of William T. McFatter, Assistant to the Superintendent. He related that Georgacopoulos had made serious allegations against Mr. Wallsworth and asked for McFatter's advice. Mr. McFatter remembers that respondent mentioned the possibility of double funding and the qualification of students for the gifted program at Horizon. McFatter advised respondent to go straight to superintendent Mauer with the allegations.

    
    

19. McFatter and respondent then went to the superintendent's office and a brief ten to fifteen minute meeting ensued. This was the last day of the school year for students and the superintendent was quite busy at this time. The possibility of double funding was an explosive issue to the Superintendent and this is the only irregularity he recalls having been mentioned by respondent on June 9, 1976. The superintendent immediately called a Mr. Cox, who deals with pupil accounting, and related to him his concern with double funding of students

    in the exceptional education program. Mr. McFatter, Mr. Mauer and respondent then went to the office of Mr. Cox and respondent Wieland was assigned the task of determining the existence or nonexistence of double funding. None was found and respondent so reported to Mr. Mauer.

    
    

20. Subsequently, respondent and two other persons were assigned the task of auditing the records of the exceptional student program at Horizon. The auditors were unable to verify either the existence or nonexistence of certain records, forms and psychological reports for many students. It was clear that many files were incomplete and there was no evidence that either the gifted or emotionally disturbed programs existed at Horizon.

    
    

21. Respondent Wieland explained the delay between the first March 1976, meeting with Mr. Georgacopoulos and his June 9, 1976, report to Mr. McFatter and the Superintendent as follows. Respondent (as well as others) classified Georgacopoulos as a "child advocate," and respondent felt at the March meeting that Georgacopoulos was merely expressing his disagreement with psychological reports and the contents of certain existing programs. During the March meeting, his allegations were general in nature and his discussion of irregularities appeared to ramble and be confusing. Respondent was more concerned with the demeanor of Georgacopoulos than with what he was saying.

    When Mr. Lieberman related similar and more specific irregularities, which were thereafter confirmed by Queen Sampson, respondent felt that disclosure of Lieberman's and Sampson's statements would be detrimental to their future employment with the school system. Upon confirming that Georgacopoulos was leaving the school system, respondent felt that the charges could be attributed to Georgacopoulos without injury to Lieberman and Sampson. He therefore had another conference with Georgacopoulos on June 9, 1976, and decided to seek advice from the Assistant to the Superintendent, Mr. McFatter.

    
    

22. Various other events have transpired since June 9, 1976, concerning Horizon Elementary School exceptional education program irregularities. These include a letter from Mr. Georgacopoulos to the Superintendent, which letter appears to have instigated an investigation by the Security Office or the Internal Affairs Division. Such later events are not deemed relevant to the present charges against respondent.

    
    

    CONCLUSIONS OF LAW

    
    

23. Respondent is charged with misconduct in office, incompetency and/or willful neglect of duty during three specific school years; to wit: 1973/74, 1974/75 and 1975/76. Such charges, if sustained, constitute grounds for suspension or dismissal under F.S. s231.36(6).

    
    

24. Upon a thorough and careful review of all the testimony and documentary evidence adduced at the hearing on this matter, the undersigned Hearing Officer concludes that petitioner has failed in its burden of proof to sustain the charges against respondent for any of the school years in question.

    
    

25. The evidence illustrates that drastic changes were occurring with regard to the administration of the exceptional student education program in Broward County commencing with the 1973/74 school year when respondent was Director of the Program. While generalized complaints were heard by respondent from staff and school psychologists, the same complaints were heard and aired at staff meetings which were often attended by respondent's superiors. As to specific problems at Horizon Elementary school during the 1973/74 school year, the only witness offered to support the accusations against respondent was Dr.

    James Fisher. He testified that, other than the pressures placed upon school psychologists to meet certain deadlines -- a topic generally discussed at staff meetings --, he was unaware of any discrepancies or procedural irregularities at Horizon during the 1973/74 school year. Neither Mr. Georgacopoulos nor Mr.

    Lieberman were present at Horizon during this school year.

    
    

26. During the 1974/75 school year, when respondent was no longer the Director but assumed the role of Coordinator of Special Services, the school psychologists continued to complain generally at staff meetings about the pressures they felt county-wide and about inadequate staffing for psychological services. Director Kieter was made aware of these complaints, as well as complaints relating to the inadequacy of data in student files. Mr. Fisher discussed his complaints and irregularities at Horizon with Director Kieter and others up the chain of command in the school system. The only testimony relating to respondent's knowledge of any irregularities at Horizon was that of John Georgacopoulos, who stated that he discussed the same with respondent, Director Kieter and Principal Wallsworth on several occasions during that school year. Both respondent and Kieter denied that any such discussions occurred, and Principal Wallsworth was not called as a witness in this proceeding. Mr. Georgacopoulos did not indicate the approximate dates upon which such discussions with Kieter or respondent occurred. In short, there is insufficient evidence in the record before this Hearing Officer to establish that respondent had any knowledge or reason to believe that specific abuses or irregularities existed in the exceptional education program at Horizon during the 1974/75 school year. While the evidence does indicate that the files at the Diagnostic Center, for which respondent had direct responsibility, were incomplete, it appears that Director Kieter advised school psychologists at one time that they could retain active files. Having no direct authority or supervision of school psychologists, principals or area superintendents, respondent appears to have done all that he could to obtain and retain up-to-date files on exceptional students at the Diagnostic Center. As indicated in the findings of fact, the Center was merely a repository for student files. Its staff did not have the obligation of completing files, nor did they have the means available to furnish missing data to existing files. They necessarily relied upon the school psychologists to send them completed files. This was often discussed at staff meetings and memoranda to that effect were sent by Director Kieter.

    
    

27. The evidence pertaining to the 1975/76 school year likewise fails to establish misconduct in office, incompetency or willful neglect of duty on respondent's behalf. While he was contacted by Mr. Georgacopoulos in March of 1976, the undersigned concludes that respondent's reaction to this meeting was a reasonable one and did not necessitate either an immediate investigation or a report to his superiors. Mr. Georgacopoulos was immediately responsible to his principal, Mr. Wallsworth. He informed respondent that he had spoken with Mr. Wallsworth on numerous occasions. Having a reputation as a "child advocate," it is reasonable to believe that respondent considered the complaints of Georgacopoulos to relate more to the merits of certain placements and programs, rather than to specific irregularities and abuses. Dr. Wieland gave Georgacopoulos the opportunity to check files at the Diagnostic Center with the aid of his staff.

    
    

28. It is further concluded that when Mr. Lieberman reiterated the same complaints to respondent on May 27, 1976, with more specificity, respondent was not guilty of misconduct in office, incompetency or willful neglect of duty by waiting until June 9th for further confirmation and specificity from Queen Sampson and Georgacopoulos. The school year was ending, at least two persons involved in the discussions would be in jeopardy of losing their jobs and little

    could be done to immediately correct the situation. With these factors in mind, as well as the fact that respondent's responsibilities were advisory in nature with responsibility for implementation resting with the various principals, it cannot be said that respondent is guilty as charged in the administrative complaint.

    
    

29. In conclusion, it is evident that the traumatic effects of decentralization as well as the new state funding policy brought discontent and havoc to the rapidly expanding exceptional education program in the Broward County school system. Generalized complaints were received by personnel at all levels. When the complaints regarding Horizon Elementary School became more specific and became known to respondent, he at first offered the only immediate means available to him -- the checking of files at the Diagnostic Center. When the discussions with Mr. Georgacopoulos were made more clear and specific by Mr. Lieberman, respondent engaged in further discussions with Queen Sampson and Mr. Georgacopoulos so that he could present the problems more clearly to a superior without jeopardizing the careers of those who wished to remain employed in the school system. He did this on June 9, 1976, thirteen days after his discussion with Lieberman and the very day of his discussion with Georgacopoulos when he learned that the latter was definitely leaving Broward County. Such action on the part of one who has served the school system for some twenty-three years does not constitute misconduct in office, incompetency and/or willful neglect of duty.

RECOMMENDATION

Based upon the findings of fact and conclusions of law recited above, it is recommended that respondent be immediately reinstated to his former position and that any back salary be paid to him for the reason that the charges against him were not sustained by the evidence.

Respectfully submitted and entered this 3rd day of December, 1976, in Tallahassee, Florida.

DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

School Board of Broward County 1327 S.W. Fourth Street

Ft. Lauderdale, Florida

John B. Di Chiara

DiGiulian, Spellacy, Bernstein, Lyons and Sanders

Suite 1500, One Financial Plaza Ft. Lauderdale, Florida 33394

Robert M. Curtis

Saunders, Curtis, Ginestra & Gore

P.O. Drawer 4078

1750 East Sunrise Boulevard Ft. Lauderdale, Florida 33338

Docket for Case No: 76-001796

Orders for Case No: 76-001796