STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF BROWARD COUNTY, )

)

Petitioner, )

)

v. ) CASE NO. 84-1372

)

ROBERT P. SULCER, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard by R. L. Caleen, Jr., Hearing Officer with the Division of Administrative Hearings, on March 18 through 20, May 14, 15, and June 11, 1985, in Fort Lauderdale, Florida. The parties were represented by counsel:

APPEARANCES

For Petitioner: Philip J. Montante Jr., Esquire

1500 East Atlantic Boulevard Pompano Beach, Florida 33060

For Respondent: Thomas F. Panza, Esquire

3081 East Commercial Boulevard, Suite 200 Fort Lauderdale, Florida 33308

ISSUE

Whether Respondent, Robert P. Sulcer, as principal of Riverland Elementary School, is guilty of "incompetency, and/or misconduct in office and/or willful neglect of duty" as charged in a 28-count "Amended Petition for Dismissal from Broward County School System," filed September 6, 1984, and should be dismissed from employment with the Petitioner, Broward County School Board.

BACKGROUND

By "Petition for Return to Annual Contract as Principal with the Broward County School System" dated March 22, 1984, the Superintendent of Schools for the Broward County School Board (collectively referred to as the "Board"), sought to return Robert P. Sulcer ("Respondent") to annual contract as a principal in the school system. As grounds, the Board charged him with 27 counts of failing to adequately perform his duties during the 1982-83 and 1983-

84 school years. Respondent timely requested a Section 120.57(1) hearing on the charges and this case was referred to the Division of Administrative Hearings for assignment of a hearing officer.

Subsequently, the superintendent amended his petition by adding an additional charge and seeking Respondent's dismissal, rather than his return to annual contract as a principal. On August 2, 1984, based on the amended petition for dismissal presented by the superintendent, the School Board suspended Respondent from his duties without pay, effective immediately, pending final action on the charges.

By "Motion to Amend," dated August 16, 1984, the Board sought leave to amend the initial petition to return Respondent to annual contract by substituting the amended petition for dismissal. As grounds, the motion stated "[t]hat, since the initiation of the original Petition, other grounds upon which additional charges should be predicated, have come to light. . . " The amended petition contained the same 27 charges as in the original petition but added, after each charge, that the complained-of conduct constituted "incompetency and/or misconduct in office and/or willful neglect of duty." A new count, Count 28, was added charging Respondent with "failure to demonstrate competent performance as an administrator" in one or more general areas during the 1983-84 school year, such failure also constituting "incompetency and/or misconduct in office and/or willful neglect of duty." By order entered September 6, 1984, the "Motion to Amend" was granted.

Hearing was initially set for August 16, and 20, 1984, then--on Respondent's motion--reset for October through 19, 1984. After the Board appealed an order on September 26, 1984, requiring it to amend its petition to allege the factual basis for Count 28, Respondent moved to continue the hearing, which motion was granted. Hearing was reset for March 18 through 20, 1985. Hearing commenced on March 18, 1985. Since the hearing could not be completed by March 20, 1985 (within the three days allotted) hearing was adjourned and continued on May 14 and 15, then finally completed on June 11, 1985.

At hearing, the Board offered 18 and Respondent offered 56 exhibits into evidence. 1/ Numerous witnesses testified.

The transcript of hearings consisting of sixteen volumes and 2,444 pages, was filed on July 1, 1985. 1/ The parties filed proposed findings of fact and conclusions of law, together with responsive briefs, by August 9, 1985. A ruling has been made on each proposed finding of fact in the Appendix to this Recommended Order.

On August 16, 1985, the Board filed a "Reply to Response of Respondent." Respondent subsequently moved to strike this Reply. Since replies to the other parties' responses were not authorized, the motion is now granted.

Having considered and weighed the evidence presented at hearing, including the demeanor and credibility of the witnesses, the following facts are determined:

FINDINGS OF FACT I.

RESPONDENT: BACKGROUND AND PAST PERFORMANCE

1. In 1955, Respondent received a Master's Degree in Education, Supervision, and Administration from Southern Illinois University. He moved to Broward County in 1957 and was first employed by the School Board as a teacher at McNab Elementary School. He has been employed as a principal for 25 years. In 1960, he became the principal of McNab Elementary and continued as a principal in various elementary schools until 1971 or 1972, when he became a principal at Pompano Beach Middle School for seven years. He was assigned the principalship at Lake Forest Elementary School for 5 years, then became principal of Riverland Elementary School in 1982. When he was suspended without pay on August 2, 1984, based on the charges which are the subject of this proceeding, he had a continuing contract (as principal) with the School Board.

   
   

2. His supervisors evaluated (in writing) his performance as a principal during each of the 25 years he was a principal, including the 1982-83 and 1983-

   84 school years. All evaluations were positive and described his performance as satisfactory. There were no negative comments.

   
   

   II

   
   

   COUNTS 1 AND 2: CONSISTENT DISCIPLINE PLAN

   Count 1

   
   

   You are hereby charged with failing to estab- lish and/or maintain and/or formally present consistent rules and/or regulations regarding student discipline and/or student behavior for the staff and student body at Riverland Elementary School for the 1982-83 school year, which constitutes incompetency and/or misconduct in office and/or willful neglect of duty.

   
   

   Count 2

   
   

   You are hereby charged with failing to estab- lish and/or maintain and/or formally present consistent rules and/or regulations regarding student discipline and/or student behavior for the staff and student body at Riverland Elementary School for the 1983-84 school year, which constitutes incompetency and/or misconduct in office and/or willful neglect of duty.

   
   

3. Counts 1 and 2 center on the "development of a consistent disciplinary plan" at Riverland Elementary School, including rules and regulations for the

   1982-83 and 1983-84 school years. To sustain these charges the School Board must demonstrate that there was no consistent disciplinary plan including rules and regulations in effect at Riverland Elementary School for the years 1982-1983 and 1983-84 and that such omission constituted incompetency, misconduct in office or willful neglect of duty. The evidence not only fails to substantiate these two charges but affirmatively establishes that a consistent formal disciplinary plan and procedure was in effect at Riverland Elementary School during the 1982-83 and 1983-84 school years.

   
   

   A. 1982-83

   
   

4. During the 1982-83 school year, the Student Conduct and Discipline Code ("Discipline Code") for Broward County was in effect and fully utilized. Riverland Elementary School received its accreditation at the conclusion of that year and there was no reference to an inconsistent or non-existent disciplinary plan. There were no reports of a non-existent or inappropriate disciplinary system at Riverland Elementary School during 1982-83 made to School Board administrators at any time prior to the lodging of initial charges in March 1984. (R-2; TR-IV, p.467; TR-V, p.712; TR-XI, pp.42,108)

   
   

5. The Discipline Code delineated the teachers' responsibilities for student discipline as well as the consequences for student misconduct. During school year 1982-83, Respondent utilized the disciplinary referral system and handled student discipline problems in a manner consistent with the Discipline Code. (Conversely, there is no evidence demonstrating that Respondent failed to follow the Student Discipline Code in any instance, whatsoever during the year 1982-83.) He made sure (that parents, teachers, and students were aware of the Discipline Code. When he became principal of Riverland he discussed discipline with the students during an orientation assembly. He met with the grade level chairpersons on a daily basis and discussed discipline with them. They, in turn, were instructed to direct the teachers under their jurisdiction to review the contents of the Discipline Code with their students and ensure that students took the Code pamphlets home to be signed by their parents. In connection with the SACS review process, a student assembly was held to discuss discipline. Because of the type of children in the school and the age of the majority of the students, however, school-wide assemblies to discuss discipline proved to be less effective than small group discussions. Respondent's preferred use of small group settings and his utilization of the Discipline Code was deemed acceptable by his immediate supervisor. Other teachers followed a similar practice without objection. (TR-III, p.372; TR-IX, p.40, TR-X, p.83, TR-XIII, p.77, TR-XV, pp.38 169,2,192-193; TR-XVI, pp.8-9,16,48-49)

   
   

   B. 1983-84

   
   

6. During school year 1983-84, the Discipline Code remained in effect. Respondent continued to utilize it as the foundation for the disciplinary process in place at Riverland Elementary School. Indeed, use of the Discipline Code, as adopted by the School Board of Broward County, was mandated. Although several teachers testified that there should be a school-wide code which overlaps or supercedes the official county-wide Discipline Code, there is no showing that a school-wide code, other than the Discipline Code, was required or even customarily used in the school system (TR-I, pp.89,90, TR-II, p.201; TR- IV, p.467, TR-V, p.712; TR-IX, p.38; TR-XI, p.108; TR-XV, p.16)

7. Several teachers critical of Respondent's performance testified that he should have adopted a code listing infractions which would automatically lead to specific consequences. To comply with this request, Respondent would have had to enact a code inconsistent with the Discipline Code mandated by the School Board. Page 6 of the Code sets forth the criteria to be used by a principal or his designee in meting out discipline.

   
   

   The Code attempts to match specific conse- quences with specific behavior. The numbers in brackets which follow each rule refer to consequences which may be used if misbehavior occurs. With the exception of Attendance, consequences are listed on page 24. Under certain circumstances, specification is mandatory and is so identified by an asterisk (*).

   When discipline problems occur in the pres- ence of a teachers it is the responsibility of the teacher to handle the situation until all strategies available to the teacher according to the School Board Policy have been exhausted.

   
   

   School personnel are encouraged to employ realistic and appropriate methods of disci- pline not necessarily outlined in this Code. For example, cleaning desk tops is an appro- priate consequence for writing on them.

   
   

   When determining the consequences, the fol- lowing circumstances should be taken into consideration:

   
   

   1. age and/or grade level of student;

   2. frequency of misconduct;

   3. seriousness of particular misconduct;

   4. attitude of student;

   5. student records;

   6. any other relevant factors including but not limited to, handicapped students who are governed by provi- sions outlined in School Board Policy 5006.1. (e.s.)

      
      

8. Under this disciplinary scheme, a principal administers discipline not only to punish students but to encourage behavior modification. To accomplish the latter a principal is given alternatives and combinations of alternatives for use based on the unique circumstances of each situation. Factors to be taken into account include the number of prior referrals, the seriousness of the situation, the child's previous disciplinary record, the age of the child, the intellectual level of the child, the emotional level of the child, and any learning disabilities that might be associated with the child. Respondent followed the Discipline Code and administered discipline based upon the referrals he received from teachers. There was no showing that he failed to follow the student Discipline Code. If the charge is that the Discipline Code, itself, lacks "consistent rules and regulations," or fails to conform to

   "consistent rules and regulations" such charge is more appropriately directed at the School Boards which adopted the Coded than Respondent who merely implemented it. (TR-XV, pp.38-39, 54; TR-XVI, p.31)

   
   

9. At the outset of the 1983-84 school year, Respondent again directed his grade level chairpersons to disseminate the Code to teachers and instruct them to teach the Code to their students. The teachers were instructed to use the Discipline Code in conjunction with I.T.V. programs during the first week or two of school. The teachers carried out these instructions. Students were taught the Code, and their understanding of the Code was reinforced throughout the year. (R,4, TR-II, pp.184, 189,201; TR-V, pp.638,640; TR-X, p.126; TR-XVI, pp.48-49,5-6)

   
   

10. In addition to the grade level chairpersons' meetings, Respondent disseminated various bulletins dealing with discipline, specifically Bulletin

    83-9, which set forth the steps the teachers were to utilize in the disciplinary process. He issued Bulletin 83-9 because some teachers were not following the Discipline Code and meting out the appropriate discipline in the classrooms (per the Code) before sending students to his office. This bulletin was intended to reinforce the Code's recognition that teachers are primarily responsible for discipline in the classroom. The Code recognizes that classroom management is an integral part, if not the most important component, in the disciplinary process:

    
    

    When discipline problems occur in the pres- ence of a teacher, it is the responsibility of the teacher to handle the situation until all strategies available to the teacher according to the School Board Policy have been exhausted.

    
    

    (R-4; TR-III, P.394; TR-V, p.708)(R-2, p.6, TR-XV, p.31)

    
    

    COUNTS 3 AND 4: INCONSISTENT METING OUT OF DISCIPLINE

    Count 3

    
    

    You are hereby charged with failing to admin- ister discipline consistently and/or effec- tively for students referred to you by staff members during the 1982-83 school year, which constitutes incompetency and/or misconduct in office and/or willful neglect of duty.

    
    

    Count 4

    
    

    You are hereby charged with failing to admin- ister discipline consistently and/or effec- tively for students referred to you by staff members during the 1983-84 school year, which constitutes incompetency and/or misconduct in office and/or willful neglect of duty.

    
    

11. These charges allege inconsistency in the meting out of discipline by Respondent as opposed to the failure to establish or maintain consistent

    disciplinary rules alleged in Counts 1 and 2. Although inconsistent discipline was alleged, none has been shown. The only evidence offered to support these charges was innuendo and vague, elusive accusations or perceptions by several teachers, most of which were based on hearsay consisting of generalizations uttered by others. The record is devoid of specific, concrete examples of "inconsistent" disciplinary action by Respondent. The complete lack of specific evidence is not due to want of records. Detailed records of every disciplinary action taken by Respondent during 1983-84 were available for analysis. (743 discipline referral slips covering school year 1983-84 were retained by Respondent and available for review.) There is no evidence, however, that anyone critical of Respondent's meting out of discipline ever took the time to, or went to the trouble of, reviewing them. Indeed, no one on behalf of the School Board even asked to see them.) It was Respondent who offered all referral slips (identifying details of each infraction and Respondent's action) into evidence.

    
    

12. Some teachers testified that there were too many steps in the referral process although how this complaint relates to inconsistency was not shown. Others testified that they had to go through every single disciplinary step in order to refer a child to Respondent for discipline. The opposite was proven to be true. If a situation was serious enough, the disciplinary steps prescribed by Respondent (which were essentially the same steps as those prescribed by the Discipline Code) could be short, circuited and an immediate referral made. When serious disciplinary problems occurred, teachers brought students directly to Respondent's office and he handled the situation. (TR-II, p.219; TR-III, p.425; TR-IV, p.475; TR-X, p.15; TR-XI, P.24)

    
    

13. Respondent made an effort to insure that the disciplinary process at Riverland was rational, and known to and followed by all. In addition to Bulletin 83-9 (delineating the steps in the process), Respondent disseminated numerous other bulletins and materials dealing with assertive discipline as part of the Faculty Handbook. He met with the faculty and discussed the disciplinary process. He insisted they use the detailed referral process which he established. The referral slips themselves show that he used all of the allowable disciplinary consequences--individually or in combination--including, but not limited to, student conferences, verbal reprimands written punishments, parental contacts, internal suspensions, corporal punishments, and external suspensions based upon the unique circumstances of each case. (TR-III, P.427; TR-XVI, pp.15,31; R-1; R-2)

    
    

    A. 1982-83

    
    

14. Count 3 alleges that Respondent failed to administer discipline in a consistent manner for the school year 1982-83. There was no meaningful evidence of any inconsistent discipline administered in 1982-83. There was no testimony or documentation of one specific incident which Respondent could cross-examine or refute. 2/

    
    

15. Indeed the record supports an inference that discipline was meted out consistently during 1982-83. There was a detailed Discipline Code in effect, known to all, and he insisted that it be followed. The SACS Report, prepared by the teachers at Riverland, and the grant of accreditation do not reflect that discipline was being inconsistently administered. Ms. Swilley, the Department of Education's competence reviewer, doesn't find inconsistent discipline; she refers to materials appended to her report, and then states the referrals reflect the teacher "concerns." The appended material only contains referrals from 1983-84 gathered together by Ms. Elmore, one of Respondent's harshest

    critics. The official Broward County School Board Progress Reports for Riverland Elementary School during 1982-83 and 1983-84, reflect teachers', students', and parents', attitudes, all of which are extremely high. (Teachers-

    -86 percent, parent--92 percent, and students--88 percent) There is no evidence that this alleged deficiency was ever complained of or mentioned in any memoranda, read-react-and-return memo, grade level chairperson minutes, faculty minutes, correspondence to Respondent's supervisor or Board administrators, notes or minutes of the P.T.A., parents advisory group, Respondent's performance evaluation, or any other document. (R-4; Appendix 14; P-4; P-3; R-19)

    
    

    B 1983-84

    
    

16. Similarly, no factual basis has been shown for the charge that Respondent inconsistently administered discipline during the 1983-84 school year. This charge, too, is unsubstantiated. No systematic analysis of the

    1983-84 disciplinary records of particular students was done to demonstrate that students were disciplined differently when the facts indicate they should have been disciplined the same.

    
    

17. Although some witnesses generally testified that Respondent disciplined students inconsistently during 1983-84, their conclusions were not substantiated. Although one teacher, Ms. Ordway, claimed inconsistency in the meting out of discipline, she could not give one specific example. Similar negative conclusions by Ms. Ross, another teacher, were based on "what the [other] teachers would say." The testimony of Ms. Kasmarik, another teacher, supports the opposite conclusion:

    
    

    Q. (By Mr. Panza) Ms. Kasmarik, let me ask you do you know what--can you give me specific instances that Mr. Sulcer treated two children with disparate consequences for the same act? Can you give me an example?

    A. That I personally saw it or that I heard about it?

    Q. No. You are the witness. What you saw, personally were involved in.

    A. With the referrals that he wrote up, Mr. Sulcer--The only referrals I wrote up were for fighting. That's the only referrals I wrote up, and when I got the response from that, Mr. Sulcer had used corporal punishment on both children.

    Q. So they were consistent as it goes to your personal observations?

    A. As my personal observations, it was consistent, yes.

    (e.s.)

    
    

    (TR-VI, p.826, TR-X, p.147)

    
    

    Likewise, Ms. Bullock, another teacher critical of Respondent's performance, testified:

    
    

    A. I would say that the punishment was consistent. Now, the problem is I didn't feel it was severe enough because

    it didn't prevent them from repeating the same incidents.

    
    

    (TR-XI, p.23)

    
    

    Mr. Dandy, Respondent's supervisor throughout, and the person who initially pressed him to correct alleged deficiencies, was unable to recall any specific instance of inconsistent discipline being meted out; rather, his criticism of Respondent only reflected the "teachers' perceptions." The unsubstantiated "perceptions" of other teachers based on nothing more than generalized complaint or hearsay are patently insufficient to sustain the charge. (TR-XIII, pp.82- 83,92,97)

    
    

18. Respondent followed a set procedure in disciplining students. Before referral the child would describe, in writing, the misbehavior so that the child would understand the significance and inappropriateness of the conduct. On referral to the principal the child would bring with him or her the written description of the incident. Respondent would discuss the situation with the child review any prior disciplinary problems, and then determine the appropriate consequence based on the Discipline Code. He often gave verbal reprimands arranged for parent conferences, or wrote letters to parents. (TR- XVI, pp.10,11,20,31)

    
    

19. Witnesses who complained of Respondent's disciplinary actions at hearing never stated what they expected him to do other than to formulate an additional code specifying an automatic consequence for every conceivable infraction. Such a rigidly defined code is neither required nor customary in Broward County. Moreover, it would be difficult, if not impossible, to construct a code with such mathematical precision. The effective disciplining of students is an art, not a science, involving many human variables. It requires flexibility and the exercise of professional judgment. A rigid code which precludes a principal from taking into account the unique circumstances of each case would be inconsistent with the Discipline Code adopted by the Board.

    
    

    COUNTS 5 AND 6:

    
    

    DETERRENCE OF CHRONIC BEHAVIOR OFFENDERS

    
    

    Count 5

    
    

    You are hereby charged with failing to estab- lish adequate deterrent as a result of your action of causing or allowing students to become chronic or serious behavior offenders as a result of your inadequately disciplining said, students referred to you by teachers during the 1982-83 school year, which consti- tutes incompetency and/or misconduct in office and/or willful neglect of duty.

    
    

    Count 6

    
    

    You are hereby charged with failing to estab- lish adequate deterrent as a result of your action causing or allowing students to become chronic or serious behavior offenders as a result of your inadequately disciplining said

    students referred to you by teachers during the 1983-84 school year, which constitutes incompetency and/or misconduct in office and/or willful neglect of duty.

    
    

20. Here, the Board charges that Respondent failed to establish adequate deterrents and, as a result, he allowed or caused students to become chronic or serious behavior offenders during school year 1982-83.

    
    

    A. 1982-83

    
    

21. The Board has not shown what a "chronic behavior offender" 3/ is or how many students, out of the total student population of approximately 600, fit this category. Neither was it shown that there were a significant number of chronic offenders that "were caused" by Respondent's disciplinary actions.

    
    

22. There was student misbehavior at Riverland Elementary School while Respondent was principal, as there was prior to his arrival and after his departure. It has not been shown that the misbehavior was caused by Respondent's efforts to enforce the Student Discipline Code. Many of the children at Riverland came from poor families. These children had little respect for authority and had attitude problems stemming from background and upbringing. Many came from single-parent homes. Many of the children who had behavior problems at school came from homes where discipline was lax or nonexistent. The student population was transient--students were constantly checking in or out of the school. Some students had repeated at least two grade levels so there were several children 13 or 14 years old. Some children had learning disabilities and could be disciplined only in accordance with their prescribed plans. (TR-II, pp.193,222; TR-X, pp.39, 40, 131; TR-XI, p.27; TR-XV, pp.39, 44, 46)

    
    

23. Given the diversity and nature of this student body, it has not been shown how the repetitive misbehavior of five to ten of the students can be fairly or logically imputed to Respondent's action or inaction. These students, which the Board (at least for the purpose of this proceeding) classifies as "chronic offenders," were not identified, neither was each incident of misbehavior together with Respondent's disciplinary action, analyzed, compared and critiqued by qualified witnesses.

    
    

24. Finally, though some students were referred numerous times, it has not been shown that there was an inordinate number of such students, given the nature and diversity of the student population. Neither does it appear that such repetitive referrals became a problem of serious concern to teachers. The SACS Report, prepared by the teachers at Riverland, does not indicate that a "chronic offender" problem existed at the school. (R-13)

    
    

    B. 1983-84

    
    

25. The nature of students at Riverland Elementary School during 1983-84 was similar to that of the previous year and the Board's failure of proof is, likewise, the same. Respondent applied the district-wide Discipline Code in disciplining the students. The teachers were responsible for the teaching of the Code to students, and for the management of students in their classrooms. All acknowledged that the proper disciplining of students is a joint or cooperative effort by teachers, administrators, and principals. The evidence fails to show that there was an inordinate number of repetitive referrals, neither does it disclose the identity of these children (including their

    particular acts of misbehavior and the discipline administered) or how Respondent's action was deficient. To the extent some children were repeatedly referred for misbehavior, it has not been shown that Respondent's disciplinary action was the cause. It may well be that the teachers of these children failed to properly control and prevent their misbehavior, or the misbehavior may be due more to the unique personality and family context of each child. (R-2)

    
    

26. Indeed, the parents of some of these children tried, without success, to modify their behavior. There were occasions when Respondent would have two or three parental conferences concerning a child's misbehavior, yet--a few weeks later--the child would revert to inappropriate conduct.

    
    

27. Several teachers who testified were critical of the effectiveness of Respondent's disciplinary action, but failed to indicate action that would have been more effective. Some teachers favored more use of external suspensions, but under School Board policy external suspensions are to be used only as the last resort. Respondent did suspend some students and the referral slips for 1983-84 showed he used corporal punishment extensively. (R-66)

    
    

28. As with school year 1982-83, the record does not establish the identity and number of the "chronic or serious behavior offenders". A reasonable estimate would be that there were between five and ten children (out of 600 students) who had repetitive disciplinary referrals. There is no basis to conclude that this is an inappropriate or unusually high number.

    
    

29. In a student population of this nature and diversity, it is perhaps unavoidable that there will be some students who will be repetitively referred for disciplinary action. This condition existed before Respondent arrived at Riverland--and has persisted since he left.

COUNTS 7 AND 8

VERBAL AGREEMENTS-1982-83 AND 1983-84

Count 7

You are hereby charged with repeatedly ac- cepting or entering into verbal agreements with students who are repeat offenders that they will not repeat said negative behav- ior/offense in lieu of providing appropriate discipline which has resulted in a negative impact on student behavior and/or student discipline at Riverland Elementary School during the 1982-83 school year, which consti- tutes incompetency and/or misconduct in office and/or willful neglect of duty.

Count 8

You are hereby charged with repeatedly ac- cepting or entering into verbal agreements with students who are repeat offenders that they will not repeat said negative behav- ior/offense in lieu of providing appropriate discipline which has resulted in a negative impact on student behavior and/or student

discipline at Riverland Elementary School during the 1983-84 school year, which consti- tutes incompetency and/or misconduct in office and/or willful neglect of duty.

A. 1982-83

1. In order to substantiate this charge, it was incumbent on the Board to identify those "repeat offender" students with whom Respondent entered into verbal agreements not to engage in the same conduct to specify the circumstances surrounding the infraction and to show that such verbal agreements were inappropriate. The appropriateness of a disciplinary action (otherwise authorized) cannot be determined without considering the facts and circumstances of the case.

   
   

2. The Board has failed to substantiate its charges with concrete and specific evidence. Indeed the record is devoid of evidence establishing that Respondent even entered into verbal agreements with students during 1982-83, under any circumstances. (The Board apparently assumed that he entered into verbal agreements with children who were repeat offenders, that such agreements were "in lieu of providing any appropriate discipline," and that such action had a negative impact on student behavior and student discipline at Riverland Elementary School.) It was not shown that Respondent inappropriately used the Student Discipline Code in any instance when he "counseled" with students concerning inappropriate conduct. 4/ To determine appropriate discipline for an individual student, all of the factors contained on page 6 of the Discipline Code would have to be considered in light of the specific infraction. Because of the flexibility and discretion given school principals, any analysis less definitive would be incomplete. (R-2)

   
   

   B. 1983-84

   
   

3. In 1983-84, Respondent--who continued to use the Student Discipline Code--entered into verbal agreements with students, whereby the students agreed not to engage in further inappropriate conduct. It has not been shown that he entered such verbal agreements in lieu of any other more appropriate discipline, or that, in any particular case, the verbal agreement was inappropriate.

   "Repeat offenders" were not identified nor Respondent's action in any particular incident shown to be improper.

   
   

4. As already mentioned, the Board has not demonstrated that Respondent failed to follow the Student Discipline Code in the meting out of discipline. Under this Code, the use of verbal agreements, as part of the overall discipline process, is appropriate. Thus the critical factor is not the entering into of verbal agreements (because verbal agreements are permitted), but rather whether he did so in lieu of other more appropriate discipline. But disciplinary

   action--otherwise permissible--cannot be found inappropriate without knowing the specific facts of an incident. Such facts have not been shown.

   
   

   COUNTS 9 AND 10

   
   

   RAMPANT DISRESPECT AND VERBAL ABUSE

   
   

   Count 9

   
   

   You are hereby charged with unacceptable performance in administering the school

   discipline program during the 1982-83 school year and said performance has led to rampant disrespect by students toward teachers through verbal abuse and defiance of teacher instructions, which constitutes incompetency and/or misconduct in office and/or willful neglect of duty.

   
   

   Count 10

   
   

   You are hereby charged with unacceptable performance in administering the school discipline program during the 1983-84 school year and said performance has led to rampant disrespect by students toward teachers through verbal abuse and defiance of teacher instructions, which constitutes incompetency and/or misconduct in office and/or willful neglect of duty.

   
   

   A. 1982-83

   
   

5. Here the Board charges Respondent with "unacceptable performance" in administering the school discipline program during school year 1982-83. Respondent's discipline program was based on the Student Discipline Code and it was not shown that he ever violated that Code. The Board further charges that Respondent's disciplinary performance led to "rampant disrespect" by students towards teachers through verbal abuse and defiance of teachers' instructions. The evidence is insufficient to sustain a finding of rampant disrespect for teachers by students. 5/ Neither was it shown that any specific incident of disrespect was attributable to Respondent's implementation of the Student Discipline Code. Once again, this charge rests on supposition and generalization and lacks a factual foundation. Assuming, arguendo, that a student verbally defies a teacher's instructions, the question becomes whether the defiance is attributable to a principal's conduct. There are several plausible reasons as for defiance of a teacher's instructions, many of them unrelated to a principal's actions or inactions. Teachers may fail in managing their classrooms and earning the respect of their students, parents may have neglected to teach their children to respect and obey teachers. Here, the Board has not established a causal relationship between Respondent's conduct and any defiance of teachers by students. Speculation or generalization cannot substitute for specific and concrete evidence. (TR-X, pp. 100,101)

   
   

   B. 1983-84

   
   

6. For similar reasons, the charge relating to school year 1983-84 is unsubstantiated. Rampant disrespect for teachers has not been shown. (TR-X, pp.9,10,16,17)

   
   

7. It has not been shown that Respondent violated the Discipline Coded the foundation of his disciplinary process, during 1982-83 or 1983-84. Neither has rampant disrespect for teachers been shown. The SACS Report completed by the teachers at the conclusion of the 1983 school year, makes no mention of it. Neither do any memoranda, documents, or other school records support this claim.

   If student disrespect and defiance had been so widespread, it is likely that it would have been brought to the attention of School Board officials long before Mr. Dandy came to Riverland to listen to teachers' grievances on February 17, 1984. (R-13)

   
   

   COUNTS 11 AND 12

   
   

   CONTRIBUTING TO SERIOUS DISCIPLINE AND/OR BEHAVIOR PROBLEMS WHEREIN STUDENTS EXHIBITED DEFIANCE

   
   

   Count 11

   
   

   You are hereby charged with contributing to the serious discipline and/or student behav- ior problems which occurred at Riverland Elementary School during the 1982-83 school year, wherein students exhibited defiance and disrespect toward authority figures and toward fellow students which constitutes incompetency and/or misconduct in office and/or willful neglect of duty.

   
   

   Count 12

   
   

   You are hereby charged with contributing to the serious discipline and/or student behav- ior problems which occurred at Riverland Elementary School during the 1982-83 school year, wherein students exhibited defiance and disrespect toward authority figures and toward, fellow students which constitutes incompetency and/or misconduct in office and/or willful neglect of duty.

   
   

8. Counts 11 and 12, virtually identical to Counts 9 and 10, are, likewise, unsubstantiated by the evidence. The record is inadequate to support a conclusion that Respondent contributed to serious discipline or student behavior exhibiting defiance and disrespect toward teachers and fellow students.

   
   

9. It is likely that student disrespect for or defiance of teachers occurs, at least occasionally, in every elementary school. Relevant questions are what was the frequency and magnitude of the defiance and disrespect; who were the offenders, and what factors or combination of factors caused or contributed to it? The evidence offered by the Board is non-specific and incapable of supplying answers to these questions.

   
   

   Count 13

   
   

   THE LOCKING OF THE BATHROOMS BECAUSE OF VANDALISM

   
   

   Count 13

   
   

   You are hereby charged with failing to di- rect, administer and maintain a program to foster proper student behavior in the halls to such an extent that during the 1983-84 school year one set of bathrooms had to be

   locked because of fights among students and vandalism of bathrooms during the school day, which constitutes incompetency and/or miscon- duct in office and/or willful neglect of duty.

   
   

10. Here, alleged student misbehavior (establishing Respondent's incompetence and/or misconduct in office and/or willful neglect of duty) was so bad that one set of bathrooms had to be locked because of fights among students and vandalism. This charge is unsubstantiated by concrete factually meaningful evidence; it is based, in the main, on hearsay and the unsupported conclusions of several teachers.

    
    

11. It was not shown that vandalism in the bathrooms at Riverland Elementary increased or was at an unacceptably high level during 1983-84, or that any property damage was attributable to Respondent's performance of his duties. An occasional act of vandalism or damage to school property cannot, by itself and without more, support a conclusion that a principal is guilty of incompetency, misconduct in officer or willful neglect of duty.

    
    

12. Neither was it shown that there were students fights in the bathrooms, or that fights occurred with such frequency that Respondent was forced to close the bathrooms. Rather, students would gather in the bathrooms prior to school starting and get into mischief. Mary Jo Sluder a teacher who was also Safety Patrol Director and supervised the school hallways, complained to Respondent that she was having problems watching both sets of bathrooms before school started. Respondent asked if it would help if one set of bathrooms remained locked until the second bell at 8:15 a.m., signaling the start of school. Ms. Sluder replied that it would be helpful and the plan was implemented. So one set of bathrooms remained locked for approximately 15 minutes, between 8:00 a.m. and 8:15 a.m., while children were at school. At 8:15 a.m., it was opened. (TR- XVI, pp.41,42; TR-IV, p.452)

    
    

13. This was an acceptable strategy used by other principals under similar circumstances, and violated no rule or policy of the School Board. Between the first (8:00 a.m.) and second (8:15 a.m.) bells, bathrooms were always accessible to students. Respondent's action was a rational measured response to a problem perceived by the Safety Patrol Director and it obtained positive results without imposing a hardship on anyone.

    
    

14. The danger of relying on hearsay and generalized conclusions of others is illustrated by the testimony offered to support this charge. Mr. Dandy, Respondent's immediate Area Supervisor and an individual who identified Respondent's action as deficient, admitted that he had no specific facts to support this charge; he had only talked to teachers and had reviewed no vandalism records at the school. Of the teachers who testified, one did not know if vandalism had increased during Respondent's tenure over that which had occurred under his predecessor; one did not know how long the bathrooms were closed. Although one teacher testified that it was common knowledge that the bathroom was locked because of vandalism--and this was the extent of her knowledge--vandalism was not discussed at the faculty meetings. Teachers would sometimes stop in the girls' and boys' bathrooms, to tell them to quit playing around. One teacher who complained of vandalism never witnessed conditions inside the bathrooms, never wrote disciplinary referrals for students who congregated in them, and never sent them to Respondent's office. (TR-V, pp. 578,774, TR-II, pp.242, 243, 245, 324; TR-IV, pp. 433, 451; TR-VI, pp. 871,872; TR-X, p.150)

    COUNTS 14 AND 15:

    
    

    TOO MUCH TIME OFF-CAMPUS AND NOT ENOUGH ON-CAMPUS VISIBILITY

    
    

    Count 14

    
    

    You are hereby charged with spending too much or inordinate amounts of time in your office and/or off campus and not making yourself visible enough among students which has contributed to poor student disci- pline/behavior problems at Riverland Elemen- tary School during the 1982-83 school year, which constitutes incompetency and/or miscon- duct in office and/or willful neglect of duty.

    
    

    Count 15

    
    

    You are hereby charged with spending too much or inordinate amounts of time in your office and/or off campus and not making yourself visible enough among students which has contributed to poor student disci- pline/behavior problems at Riverland Elemen, tary School during the 1983-84 school year, which constitutes incompetency and/or miscon, duct in office and/or willful neglect of duty.

    
    

15. These charges accuse Respondent of spending too much time off-campus or in his officer and not making himself "visible enough" among students, thus contributing to poor student disciplinary behavior. Once again, as with the other charges, there is no evidence that Respondent, during 1982-83, spent too much time or an inordinate amount of time in his office or off-campus. This was not identified as a problem by the SACS Report or documented by any exhibit in evidence.

    
    

16. A principal is evaluated based on his or her performance. Respondent's evaluations for the years 1982-83 and 1983-84 were totally acceptable. Neither indicates Respondent spent inordinate amounts of time in his office or off-campus, or that he did not make himself "visible enough." Respondent, charged with the responsibility of administering an entire school, attended numerous off-campus functions such as county directed meetings, parent conferences, visitations, professional meetings, and community service projects relating to Riverland Elementary School. His attendance was legitimate and, in most instances, required. (TR-I, p.74; TR-VIII, pp.40,42; TR-XIII, pp.14,16,20; TR-XV, p.46, R-45)

    
    

17. It was not shown (nor was it alleged) that Respondent was unlawfully or inappropriately engaging in personal activities off campus. The charges

    focus on the frequency of his absences, not his whereabouts. The school district official who prepared this charge had no independent knowledge of Respondent's absences, and did no analysis to determine the extent of his absences from campus. Rather, he simply relied on and reiterated vague conclusions offered by several teachers dissatisfied with Respondent's performance. (TR-II, p.246; TR-IV, p.888; TR-VIII, pp.23, 24, 143)

    
    

18. Mr. Stephenson, the school district official who helped prepare the charge, never asked Respondent about his alleged excessive absenteeism from campus because (according to Stephenson) that would be a normal routine matter discussed between a principal and his Area Superintendent (Mr. Dandy). But Mr. Dandy never asked Respondent about alleged excessive absenteeism either. (TR- XIII, p.140)

    
    

19. The evidence is insufficient to support a conclusion that Respondent was absent from campus for an inordinate amount of time. The only evidence in support of the accusation is sporadic hearsay, or conclusions by others lacking a factual basis. Rather, the evidence establishes that Respondent's presence on campus was sufficient and that, if he left campus, he handled any disciplinary problems (that arose in his absence) upon his return. His secretary always knew where he was. A teacher could find out where he was by simply asking his secretary. (TR-I, p.75; TR-X, p.32)

    
    

20. As to Respondent's alleged poor visibility among students, there is no specific factual information pertaining to 1982-83, so this charge is unsubstantiated.

    
    

21. As for 1983-84, the evidence was also insufficient to support a conclusion that Respondent was not "visible enough." No standard of visibility was established against which Respondent's conduct could be measured. There is no evidence in the record that anyone (teachers, parents, or administrators) complained to Respondent about his visibility or asked that he become more visible on campus. (TR-VIII, p.91)

    
    

22. Testimony by several teachers on this subject was inconsistent and contradictory. Some offered critical opinions, but their conclusions lacked factual support, they simply had a feeling that he should have been more visible. In contrast, some teachers felt that Respondent was "sufficiently visible;" Ms. Kasmarik testified that he was always around the campus and always walking down the halls:

    
    

    CROSS-EXAMINATION

    
    

    Q. (By Mr. Panza) Ms. Kasmarik, isn't it a fact that it's your opinion that you're better off with discipline when Mr. Sulcer was there than you are right now with the new principal? Isn't that a fact? Isn't that what you just said within the last couple of weeks?

    A. We have the same kinds of problems that we had when Mr. Sulcer was there.

    Q. Same kinds of problems with the new principal, is that right?

    A. Yes.

    Q. Okay. Are those same kinds of problems based upon the type of children, in your

    opinion, that are in that school?

    A. Yes.

    Q. Now, you mentioned--Just kind of working backwards a little bit--that visibility was a problem or--not was a problem, is not a problem. You said Mr. Sulcer was walking the hall?

    A. Yes.

    Q. Mr. Sulcer went into classrooms, is that correct?

    A. Yes. He was in and out of the classroom all the time.

    Q. So teachers could see him around the school. He wasn't--he was there physically in the school?

    A. Yes. (TR-X, pp.121-122)

    Ms. Bullock, another teacher critical of Respondent's performance, admitted that he had been visible and had visited her classroom 15 to 20 times:

    
    

    DIRECT-EXAMINATION

    
    

    Q. (By Mr. Montante) Did you ever tell him it was necessary to come down [to observe her class?

    A. No.

    Q. Did you ever tell him it was necessary to become visible?

    A. No.

    Q. Did he ever offer to become visible to you?

    A. No. I felt he was visible.

    Q. Several times a year?

    A. Yes.

    Q. How long is the school year, ma'am?

    A. From August until June.

    Q. August until June?

    A. Yes.

    Q. That's a period of 11 months.

    A. Ten months. The school year is ten months.

    Q. He came down to the classroom several times:

    A. Several times.

    Q. Three times in 11 months.

    A. I didn't say three times. Several.

    1. How many is several? A. Ten, 15, 20.

       (e.s.) (TR-XI, pp.61,62)

       Although Ms. Ross, another teachers claimed that his visibility was almost non- existent, her location in the library (where she worked) was such that she would not have known when he was out of his office or in it. Ms. Bullock, another teacher, never asked him to come to her room because it wasn't necessary. (TR- VI, pp. 823,828; TR-XI, p.61)

23. The vague and indefinite charge of not "enough visibility" must be based on more then the subjective, unsubstantiated judgment of a critical teacher. To be meaningful, the charge must be put in a factual context. In a letter to Dr. Stephenson, the district administrator involved in preferring the charges, Respondent's counsel asked for specific information on the charge so that Respondent could comply with Mr. Dandy's March 21, 1984 directive requiring improvement in this area:

    
    

    4. Monitor hallways frequently through- out the school day (in an attempt to assist in undesirable behavior on the part of students (Effective immediately)

    
    

    Mr. Sulcer will, as he always has, monitor the hallways. As I am certain you are well aware, it is impossible to be in the hallway all day if one is expected to be a Principal of a school. Once again, I would request specific instances of when Mr. Sulcer was negligent in his monitoring of the hallways which allowed undesirable behavior to take place. I would also like to have the specif- ic set of circumstances that the administra- tion of the School Board can demonstrate that there was undesirable behavior on the part of students because of Mr. Sulcer's conduct. I would like to know the exact amount of time required by Mr. Dandy so Bob Sulcer can comply. If Mr. Dandy is going to evaluate Bob Sulcer in this area, he (Dandy) must know

    exactly how much time he expects Sulcer to spend. (R-50)

    This letter went unanswered.

    
    

    COUNTS 16 AND 17 SUPPLIES

    Count 16

    
    

    You are hereby charged with failing to supply teachers with basic materials and supplies such as paper, crayons, scissors, etc., thus depriving student [sic] from essential mate- rials necessary for optimum instructions during the 1982-83 school year, which consti- tutes incompetency and/or misconduct in office and/or willful neglect of duty.

    
    

    Count 17

    
    

    You are hereby charged with failing to supply teachers with basic materials and supplies such as paper, crayons, scissors, etc., thus depriving student [sic] from essential mate-

    rials necessary for optimum instructions during the 1983-84 school year, which consti- tutes incompetency and/or misconduct in office and/or willful neglect of duty.

    
    

24. There were no records of any kind, type or description, offered in evidence to support the allegations that school supplies were inadequate during 1982-83. One team chairperson during 1982-83 and 1983-84 never heard a complaint about lack of supplies. Dr. Stephenson, the school district administrator who helped prepare this charge, became aware of the alleged budget problem through information he received in writing from Ms. Elmore, a teacher critical of Respondent's performance. Based on Ms. Elmore's submittal, he concluded that there was a lack of materials and supplies at Riverland, a situation which should not have existed because adequate funds were available. He never independently investigated to determine if Ms. Elmore's statements were correct. (TR-XI, p.19; TR-VIII, pp.11,151)

    
    

25. Ms. Elmore, a Faculty Chairperson at Riverland, had been told by the school bookkeeper that there was a freeze on supplies in 1983-84. She never personally asked Respondent for supplies, and he never told her that funds were unavailable. She felt that it was unnecessary to bother Respondent "with things that minor." (TR-V, pp.771,776)

    
    

26. Ms. Ross, a grade level chairperson responsible for coordinating the ordering of supplies for teachers under her control, had no difficulty ordering supplies or books except that, when the funds were frozen, she "couldn't spend the money in my budget for awhile." (TR-VI, p.819) (She never asked Respondent if the budget was frozen.) She had all materials needed to currently teach her students. (Funds were temporarily unavailable only while the F.T.E. count was underway, a situation which was not unusual in the school district). When told the budget was frozen during F.T.E. count, she simply delayed ordering until the count was completed, she "had enough (supplies) to carry (her) over past the

    F.T.E. count." (TR-VI, p.865) After the count, she was allowed to order whatever she needed. (TR-VI, pp.819, 862, 864, 865)

    
    

27. Ms. Ordway, a fifth grade teacher, who had switched to kindergarten, testified that she was unable to get necessary books and supplies for her kindergarten class. However, Ms. Callender, her Faculty Grade Level Chairperson, testified that Ms. Ordway as well as the rest of her grade group, had supplies the entire year. Ms. Callender also testified that Ms. Ordway was given permission to go to the A.B.C. Store to purchase whatever supplies she needed. Ms. Callender's testimony, more precise and less emotional than Ms. Ordway's, is accepted as persuasive. (TR-X, pp.28,48)

    
    

28. Respondent did not turn down any supply order for materials that were needed for classes during 1982-83 and 1983- 84. The charge that teachers lacked supplies in 1983-84 is unsubstantiated by the evidence. (TR-XVI, pp.57,58,61)

    
    

29. Finally, Ms. Elmore, one of the teachers most critical of Respondent's performances testified that she did not have enough supplies for 1982-83 and 1983-84. Her testimony was conclusory and is rejected as lacking in credibility. Finally, the SACS Report does not mention any problem with supplies at Riverland Elementary School for 1982-83. It is likely that if there was a supply problem of the magnitude alleged, it would have been mentioned in the SACS Report. The evidence does not establish that any children at Riverland were denied instructional materials due to lack of supplies. These charges are unsubstantiated. (TR-V, p.580; R-13)

    COUNTS 18 AND 19:

    
    

    SECOND IN COMMAND

    
    

    Count 18

    
    

    You are hereby charged with failing to desig- nate a teacher as second in command and/or failing to inform the faculty which teacher would be in charge during your absence during the 1982-83 school year, thereby leaving the school unsupervised during your absences from campus, which constitutes incompetency and/or misconduct in office/and or willful neglect or duty.

    
    

    Count 19

    
    

    You are hereby charged with failing to desig- nate a teacher as second in command and/or failing to inform the faculty which teacher would be in charge during your absence until approximately January 1984 of the 1983-84 school year, thereby leaving the school unsupervised during your absences from cam- pus, which constitutes incompetency and/or misconduct in office and/or willful neglect of duty.

    
    

30. Respondent appointed a second in command or designee at Riverland Elementary School for years 1982-83 and 1983-84. For 1982-83, Respondent appointed Polly Jones as his second in command or designee. There was no requirement to identify the second in command by posting a notice. However, Mr. Dandy, the Area Superintendent, required principals within his area to advise him of the name of the second in command at the commencement of the school year. Respondent notified him in accordance with this requirement. (TR-I, p.32; TR- VII, p.92; TR-XVI, p.7)

    
    

31. During 1982-83, Ms. Jones handled discipline referrals during Respondent's absence and signed as designee. Teachers who were unaware of who the second in command needed only to ask. Respondent's secretary, the office personnel, and administrative staff were informed that Ms. Jones was the appointed second in command. (TR-XVI, pp.7,104)

    
    

32. The contention that problems resulted from some teachers not knowing who was second in command during 1982-83, is unsupported by the evidence. No teacher asked Respondent who was second in command--either in person (at grade level chairperson meetings, faculty meetings, in the halls, at SACS Committee Meetings) or by memorandum. Ms. Elmore who was Faculty Chairperson during 1982- 83, never placed the question of who was second in command on the faculty agendas though she had the authority to do so. Although she testified that she did not know who was second in command in 1982-83, she did not ask Respondent or her grade/level chairperson who, ironically, was Ms. Jones, the second in command. In any case, most teachers at Riverland knew Polly Jones handled disciplinary problems in Respondent's absences and expected her to do so. (TR- V, pp.598, 763)

33. For school year 1983-84, Respondent designated Elaine Callender as his second in command. Again, he informed Mr. Dandy of his action at the beginning of the school year. Although most teachers knew that she was the second in command, they did not hear it officially from Respondent. They knew that Ms. Callender could, and did, administer corporal punishment in Respondent's absence. Finally, teachers in 1983-84 knew, or should have known, that Ms. Callender was the second in command because she signed referral slips above the signature line marked "Designee": copies of the completed slip are normally returned to the referring teacher. (TR-I, pp.34,35; TR-X, p.5, TR-XVI, p. 175)

    
    

34. These charges must fail since Respondent did, in fact, appoint a designee, and the teachers knew or could have known by simply asking him. Although it was suggested (through hearsay testimony) that students were disciplined by secretaries, there is no substantial evidence to support that implication.

    
    

35. When the issue of who was second in command surfaced up at the faculty meeting on November 15, 1983 (as part of 12 identified concerns) would it not have seemed reasonable at the time for someone to ask Respondent who was second in command? The Faculty Council, after it was organized and operational in the early part of January, did ask Respondent, stating that some teachers claimed they did not know who was second in command and wanted this information posted. Respondent posted his second in command that very day. (Mr. Dandy's testimony that the second in command was not posted until mid-February is rejected as clearly erroneous.) (TR-XII, p.87; TR-XIII, p.123)

    
    

    COUNTS 20 AND 21: MORALE

    Count 20

    
    

    You are hereby charged with failing to estab- lish and maintain positive lines of communi- cation with the faculty and students during the 1982-83 school year at Riverland Elemen- tary regarding student discipline which has contributed to the decline of faculty morale toward the principal relative to student discipline, which constitutes incompetency, and/or misconduct in office and/or willful neglect of duty.

    
    

    Count 21

    
    

    You are hereby charged with failing to estab- lish and maintain positive lines of communi- cation with the faculty and students during the 1983-84 school year at Riverland Elemen- tary regarding student discipline which has contributed to the decline of faculty morale toward the principal relative to student discipline, which constitutes incompetency.

36. These two Counts center on the issue of faculty morale as it related to student discipline caused allegedly by Respondent's failure to maintain positive lines of communication with faculty and students during schools years 1982-83 and 1983, 84. Morales a somewhat amorphous term, is defined in the American Heritage Dictionary as "the state of the spirits of an individual or group as shown in willingness to perform assigned tasks, confidence, cheerfulness, and discipline."

    
    

37. Although affected by many variables, morale is not a subject incapable of measurement. Instead of utilizing an objective or standard method to determine the level of morale at Riverland the School Board presented the testimony of selected teachers, for the most part, the same teachers who were on the ad hoc disciplinary committee and among Respondent's most avid critics. Their testimony lacks credibility and fails to support a conclusion that morale was lowered due to Respondent's handling of discipline problems. They were the teachers who complained most about morale. They gave secret testimony to Dr. Stephenson, the ranking administrator, who developed the charges against Respondent and they were, generally, unwilling to cooperate with Respondent and other teachers (led by the Faculty Council), who were attempting (between November, 1983 and March 1984) to develop ways to improve discipline at Riverland. 6/ No systematic evaluation of faculty morale, using any acceptable and reliable method, was ever undertaken.

    
    

38. A poll was conducted at Riverland Elementary in connection with the Official Progress Report of the School Board. The poll indicated that 86 percent of the teachers thought that Riverland was a good school. Ninety-two percent of the parents with children at Riverland responded, "this is a good school." (TR-IV 34 p.461) These results detract from the weight to be given the adverse opinions of the several teachers (testifying at hearing) most critical of Respondent's performance. (TR-IV, p.461; R-19)

COUNT 22

FAILING TO DISCIPLINE A STUDENT

Count 22

You are hereby charged with failing to disci- pline a student who said to a teacher's aided "Fuck You," during the 1983-84 school year, which constitutes incompetency and/or miscon- duct in office and/or willful neglect of duty.

1. On one occasion during the 1983-84 school year, a child cursed at a teacher's aide, Ms. Williams, who promptly referred the student to Respondent's office. Respondent asked the student for an explanation and the child admitted that he had said the disrespectful words and was ready to be spanked. Respondent asked Ms. Williams (the aide that was cursed at) to enter the office and witness the corporal punishment. After she entered, the child refused to

   submit to the spanking and constantly moved around, putting his hands across his buttocks and fidgeting making it difficult for Respondent to administer corporal punishment without injuring him. Under these circumstances, Respondent decided not to administer the corporal punishment for fear of injuring the child's hands. Instead, he telephoned the child's parents and told them the child refused the spanking. The parents told him they would punish the child, by using a belt. (TR-XVI, pp.53-54; TR-X, pp.67-68,85)

2. This particular child did not have any further behavior problems at Riverland Elementary. Respondent did not ignore, dismiss, or fail to discipline this child. His handling of this incident of disrespect toward an aide was appropriate and consistent with the Discipline Code. (Although the Board faults him for not reporting the incident to the Department of Internal Affairs, Board Policy 4018, reasonably construed, does not require the reporting of every instance of student disrespect toward a teacher.) Since Respondent properly disciplined the child, the charge must fail.

   
   

   COUNT 23

   
   

   RAT-INFESTED ROOM

   
   

   Count 23

   
   

   You are hereby charged with failing to take appropriate action to remove kindergarten students at the request of the teacher from a rat infested room after being informed by the teacher that rats were prevalent in the area, subjecting kindergarten students to rat poison which had been placed by custodial personnel in the students' classroom, and refusing from approximately February 28, 1984, to March 7, 1984, to relocate said kindergarten students from said classroom to an empty portable on the school site which action had been formerly requested by the complaining kindergarten teachers which constitutes incompetency and/or misconduct in office and/or willful neglect of duty.

   
   

3. On March 1, 1984, Ms. Ordway, a kindergarten teacher at Riverland Elementary, complained to Respondent about a mouse she had seen in her classroom. He told her that he would get the custodian on it right away, which he did on that same day. The custodian set out traps that night, Respondent also went to Ms. Ordway's classroom that night to make sure that the traps were placed so that there would be no danger to the children. He continued to periodically check the room after school throughout the week, he looked for evidence of mice, but found none. Meanwhile, Ms. Ordway did not ask to have her class moved and her class remained at its regular location. (TR-XVI, pp.71- 73,87,155,254)

   
   

4. On Thursday, March 8, 1984, approximately one week after Ms. Ordway had complained of a mouse, Mr. Dandy telephoned Respondent and told him of a complaint he had received (presumably from Ms. Ordway) concerning the mice situation. Respondent immediately called the Area Maintenance Office and requested assistance, then contacted Omni Pest Control and asked them to come out that day. (Respondent had not called the exterminator prior to this because neither he nor the custodian had found evidence of mice, and the custodian was actively addressing the complaint.) (TR-XVI, pp.72,154,157)

   
   

5. Omni Pest Control came out on Monday, March 12, 1984, around noontime. Respondent immediately relocated Ms. Ordway's class since he assumed that the exterminator might use chemicals hazardous to children. The exterminator treated the classroom and returned two days later to do a follow- up. At 7:30 a.m. on March 19, 1984, the exterminator returned to check the

   classroom. Respondent, unavailable to talk to him at that time, called him later to check on the classroom's condition. The exterminator, having found no evidence of mice, told him that the mouse sighting "must have been a fluke." (TR-XVI, pp.72-73,86,88,155,157,159)

   
   

6. The evidence does not support a conclusion that Ms. Ordway's classroom was infested with mice or rats. She is the only person who sighted one, and her testimony about what she saw, and the frequency of her sighting's, was inconsistent. No other mice were sighted and no evidence of mice was found by those who investigated and responded to her complaint: Respondent, a Health Department inspector, the school custodian, and the professional exterminator.

   
   

7. Respondent reacted to Ms. Ordway's complaint in a reasonable and timely manner. The school custodian was the person who would normally investigate and handle such a complaint. When Respondent received a second complaint, he immediately contacted a professional exterminator despite the fact that he and others had found no evidence of mice in the classroom. This charge is based on the exaggerated complaint of Ms. Ordway, a teacher who, seemingly, Respondent could not mollify.

   
   

   COUNTS 24 AND 25 FAILING TO COOPERATE

   Count 24

   
   

   You are hereby charged with failing to util- ize the suggestions of parents and teachers and/or work cooperatively with said groups to improve the declining [sic] student disci- pline/behavior problems at Riverland Elemen- tary during the 1982-83 school year, which constitutes incompetency and/or misconduct in office and/or willful neglect of duty.

   
   

   Count 25

   
   

   You are hereby charged with failing to util- ize the suggestions of parents and teachers and/or work cooperatively with said groups to improve the increasing student disci- pline/behavior problems at Riverland Elemen- tary during the 1983-84 school year, which constitutes incompetency and/or misconduct in office and/or willful neglect of duty.

   
   

8. The School Board failed to substantiate its charge that during 1982-83 or 1983-84, Respondent failed to utilize the suggestions of parents and work with them to improve student discipline at Riverland Elementary. Indeed, there is no evidence that any parents made specific suggestions to Respondent concerning ways to improve student discipline. Even if, arguendo, suggestions were submitted, there was no showing that Respondent was obliged to follow theme irrespective of their merit.

   
   

9. Although the School Board also charges Respondent with failing to utilize the suggestions of, and work with, teachers, the opposite was shown. Respondent relied on the teachers of Riverland. He routinely asked them to

   address problems, and suggest specific changes, usually he implemented their suggestions.

   
   

10. One of his management techniques to maximize participation was to set up committees of teachers to address problems and make recommendations. His conviction was that since teachers were a vital part of the school, they should have a say in how it was run--and what changes should be made. He respected their views and welcomed their comments. For example, in late 1983 and early 1984, he encouraged the Faculty Council to devise ways to improve student discipline. When the Council presented him with a School Wide Disciplinary Plan (suggesting numerous changes to improve student discipline) he promised to implement it. (In contrast, some teachers refused to cooperate with either the Faculty Council or Respondent, and were determined to leave student discipline problems to Respondent--alone--to solve.) Another example was his formation of a Cafeteria Committee (of teachers) to address student misbehavior in the cafeteria--a focal point of student "horseplay" in most elementary schools. The Committee met and formulated a plan, which Respondent approved and implemented. Both charges must be dismissed for failure of proof. (TR-III, p.387; TR-V, p.708; TR-VI, p.819; TR-XI, pp. 143,149,150,162; TR-XV, pp.59,110; TR-XVI, p.76)

    
    

    COUNT 26 THE CAFETERIA

    Count 26

    
    

    You are hereby charged with failing to prop- erly maintain student control and discipline in the cafeteria and/or inadequately super- vising and/or providing inadequate supervi- sion of students which has resulted in chaos throughout the 1982-83 school year and has continued through the 1983-84 school year, which constitutes incompetency and/or miscon- duct in office and/or willful neglect of duty.

    
    

11. The School Board has not established a standard against which the adequacy of the supervision and control of students in school cafeterias can be judged. Elementary school students abound with energy and will sometimes run in cafeterias. Such running occurred prior to Respondent's arrival at Riverland, and continues, even now. As one witness summed it up, "Every child runs." . . . [and] "Kids are kids." (TR-X, p.78) These cafeterias are noisy, relatively unstructured places where children, within limits, are free to be themselves.

    
    

12. No evidence was presented showing that, on a comparative basis, student behavior in the Riverland cafeteria was any worse than that prevalent in the other elementary schools. Indeed, Dr. Gail Daly (an experienced elementary school principal and chosen by the School Board to investigate Respondent's performance at Riverland) visited the school's cafeteria and found student behavior acceptable. (TR-XV, p.59)

    
    

13. Although some teachers were critical of Respondent's visibility in the student cafeteria, they rarely ate their own lunches there (to help maintain order)-- even though they could leave school a half-hour early for doing so. Since most teachers did not eat their lunches with the students, supervision of student behavior in the cafeteria was left, for the most part, to teachers' aides. This was an acceptable practice in the various elementary schools.

14. Any student misbehavior which may have existed in the cafeteria was not serious enough to warrant being brought to Respondent's attention, either by the group of teachers who identified "12 concerns" at Riverland or to Mr. Dandy, the Area Supervisor who responded to them. The teachers "12 concerns" do not mention misbehavior in the cafeteria, neither do Mr. Dandy's letters of February 24, and March 1, 1984 (which identify deficiencies in Respondent's performance and require corrective action). This charge must fail for lack of proof. (P-5, P-6, R-2)

    
    

    COUNT 27

    
    

    FAILURE TO PERFORM DUTIES AS ALLEGED IN COUNTS 1-26

    
    

    Count 27

    
    

    You are hereby charged with failing to ade- quately perform your duties as principal with respect to student discipline/behavior as enumerated in the above counts during the 1982-83 and 1983-84 school years to such an extent that your effectiveness as a principal in this area has been impaired serious enough to warrant your dismissal as principal for "good and sufficient reasons, which consti- tutes incompetency and/or misconduct in office and/or willful neglect of duty.

    
    

15. The efficacy of this charge depends on a positive finding that Respondent failed to adequately perform his duties as principal with respect to student discipline during 1982-83 and 1983-84, as alleged in the foregoing counts, Nos. 1 through 26. Since these counts were not sustained by the evidence, the charge fails.

    
    

    COUNT 28 SWILLEY REPORT

    Count 28

    
    

    You are hereby charged with failing to demon- strate competent performance as an adminis- trator in one or more of the following areas:

    the administrative and supervisory require- ments and/or communication skills and/or management techniques and/or exercise learn- ing and goal achievement and/or human and interpersonal relationships for the school year (or any part thereof) 1983-84, which constitutes incompetency and/or misconduct in office and/or willful neglect of duty.

    
    

16. Dr. Stephenson, then Associate Superintendent of Personnel, requested a review of Respondent on April 3, 1984, for the purpose of determining his competence. The Department of Education selected Henrietta Swilley (from Bay County) to conduct the competency review. She visited Riverland Elementary from

    May 1, 1984, to May 3, 1984, (2 1/2 days) one-half day short of the three-day observation required by 6B-5.02(12) Florida Administrative Code. On or about July, 1984, she sent to the School Board her undated and unsigned report. This report was placed in evidence by the School Board as an attachment to a deposition taken of Respondent. Neither Ms. Swilley nor any School Board official testified about the contents of this report, or vouched for its accuracy. Consequently, Respondent's ability to challenge the accuracy of its opinions and conclusions, or examine those who developed or relied on it, was limited. The report, however, is hearsay which, though admissible, can be used only to explain or corroborate other evidence, it cannot, in itself, support a finding of fact. See, 120.58(1)(a), Florida Statutes.

    
    

17. Apart from this limitation on its use, the report is replete with factual errors, misstatements, and inconsistencies. It appends materials which do not correspond to references in the report. These errors detract from the weight which might otherwise be given to the report, and place in doubt the credibility of its assertions and conclusions. Several examples should suffice. On pages 4 and 5 of the report, Ms. Swilley reviews teacher observations and evaluations. Of the eight teachers listed, the evaluations of only four were included in the appendix. She indicates that Respondent held conferences with all eight teachers on the same day, May 17, 1983. The four evaluations appended, however, show that the conferences were held on March 3, 16, and April

12 and 15, 1983. On page 5, she faults Respondent of using similar or "patterned" comments on seven of the eight teachers evaluated. But she does not show how this violated any rule or standard of practice. (Mr. Dandy, Area Supervisor, using a similar form, includes no comments, whatsoever, on his evaluations of principals, a practice which, in his views was perfectly acceptable. (TR-XII, p.43).) On page 6, she states:

From studying the 1983 evaluations of Ms. Elayna Cross and Ms. Catherine Phoenix it was unclear to this reviewer as to how much time Mr. Sulcer spent observing these teachers.

Yet, the time Respondent spent in observing Ms. Phoenix (9:15 to 10:15 on March 3, 1983) is shown on the top of her evaluation contained in the appendix. On page 6, Ms. Swilley further states:

If the sampling of evaluations studied is an indication of administrative progress in the area of assessment, all other continuing contract employees on staff would have to be evaluated within 25 days from my visit in order to stay within the confines of the negotiated contract [which prohibited princi- pals from conducting evaluations during the last week of school].

But the evaluations in her sampling were completed, and applied only to the prior school year--1982-83, not 1983-84. Thus her conclusion lacks support. (In fact, Respondent had approximately ten teachers left to evaluate after Ms. Swilley's visit in May, 1984 [TR-XVI, p.77].) Finally, on pages 6,7, Ms.

Swilley questions whether Respondent acted as an instructional leader at Riverland. She opines as to what Respondent would have observed if he had visited the classrooms, and includes the results of her interviews with an unknown number of teachers. Among those teachers were Ms. Ross, Ms. Sluder and Ms. Elmore. (These were Respondent's most vociferous critics and members of the

original ad hoc faculty committee which identified "12 concerns" at Riverland.) The assertions of Ms. Ross and Ms. Sluder--hearsay, once removed--concerning Respondent's alleged failure to visit or observe their classes are rejected in favor of Respondent's more persuasive testimony to the contrary. (TR-X, p.121; TR-XVI, pp.46-47)

1. The School Board has not shown, by independent evidence, that Respondent failed to demonstrate competence in any of she areas described in this charge. Thus the Swilley Report, even if internally consistent, cannot support a finding of incompetence. This charge must also fail.

   
   

   FAILURE OF SCHOOL SYSTEM TO FOLLOW PROCEDURAL RULES

   
   

2. In recommending the suspension and dismissal of Respondent, the Superintendent of Schools failed to follow procedures governing dismissal. Rule 6B-4.08, entitled, "Criteria for Dismissal Procedures," provides:

   
   

   6B-4.08 Criteria for Dismissal Procedures.

   1. When an action or other matter appears to exist which may possibly result in the future dismissal of any employee, the immedi- ate supervisor of the individual should take appropriate action to advise the employee of the matter and the potential consequence if not corrected.

   2. Every possible helpful effort should be made by the immediate supervisor to aid the employee to correct the matter which could cause his or her dismissal if not corrected.

   3. Except in extremely serious circum- stances, the employee should be given suffi- cient time, following notification, for improvement.

   4. Any charges of undesirable traits or practices should be bona fide, verifiable, and clearly stated to the employee in writ- ing. Any employee thus charged should have a fair opportunity to explain or otherwise defend himself or herself, as provided in Section 231.36, Florida Statutes.

      
      

      These criteria mandate that an employee be advised of deficiencies which may result in his dismissals and that he be given sufficient time, following notice, to improve or correct the deficiencies.

      
      

3. Here, Mr. Dandy, as Area Supervisor, routinely evaluated Respondent on January 31, 1984, and found him satisfactory when judged against all performance criteria. On February 17, 1984, approximately two weeks later, Mr. Dandy--at the invitation of Ms. Elmore or Ms. Sluder--came to Riverland Elementary and met with some teachers who had gathered to complain to him about lack of student discipline. After hearing the complaints of several teachers, Mr. Dandy--precipitously--told them he was now in control, that they should hence forth come directly to him. Some teachers were intimated by his manner and aggressiveness. Instead of asking individual teachers about any perceived problems, he asked, "Do you feel the rest of the teachers feel . . . is a problem?" or words to that effect. On February 21, 1984, three days later, Mr.

   Dandy met with the teachers again and, this time, invited Respondent to attend. Respondent, though genuinely surprised by this turn of events, came to the meeting and responded to each of the complaints or concerns raised by the teachers. On February 24, 1984, three days later, Mr. Dandy wrote Respondent outlining the teachers' complaints or concerns and asked for a written response by March 1, 1984. Respondent complied, submitting a timely response addressing, as specifically as possible, each of the concerns. Mr. Dandy responded with a second letter on March 21, 1984, directing Respondent to take eight corrective actions (Mr. Dandy never subsequently evaluated Respondent to determine if those directives were satisfactorily carried out, though he admits improvements were being made.) On March 22, 1984, one day after receiving Mr. Dandy's eight directives, the Superintendent filed the charges against Respondent which later (with one added count) became the basis for Respondent's dismissal. (P-5; P-6; P-19; TR-XII, p.47; TR-XIII, pp. 14, 47, 72, 128, 129)

   
   

4. The complaint about Respondent's performance voiced by some teachers to Mr. Dandy were never thoroughly, and conscientiously, investigated or verified by Mr. Dandy prior to his undermining Respondent's authority and, to some extent, taking control of the school away from him. When Respondent was finally informed of the complaints he responded to each in a professional and meaningful way. He was then given "directives," quickly followed by charges, without being given a fair opportunity to take corrective action and effectively respond to the complaints. In their hasty action, school board officials disregarded or were oblivious to the requirements of Rule 6B-4.08. This is all the more perplexing in light of the fact that Mr. Dandy, the Area Supervisor and Respondent's immediate supervisor, never recommended--then or now--that Respondent be dismissed.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. Section 120.57(1), Fla. Stat. (1983).

   
   

6. The School Board seeks to dismiss Respondent from his continuing employment under the authority of Section 231.36 (1) and (4), Florida Statutes (1983), which provides in relevant part:

   
   

   231.36 Contracts with instructional staffs supervisors, and principals,--

   (1)(a) Each person employed as a member of the instructional staff in any district school system shall be properly certified and shall be, entitled to and shall receive a written contract as specified in Chapter 230. All such contracts, except continuing con- tracts as specified in subsection (4), shall contain provisions for dismissal during the terms of the contract only for just cause.

   Just cause includes, but is not limited to, misconduct in officer incompetency, gross insubordination, willful neglect of duty, or conviction of a crime involving moral turpitude.

   (4)(c) Any member of the district administra- tive or supervisory staff and any member of

   the instructional staff including any prin- cipal who is under continuing contract may

   be suspended or dismissed at any time during the school year, however, the charges against him must be based on immorality, misconduct in officer incompetency, gross insubordina- tion, willful neglect of duty, drunkenness, or conviction of a crime involving moral turpitude. Whenever such charges are made against any such employee of the school boards the school board may suspend such person without pay, but if the charges are not sustained, he shall be immediately rein- stated, and his back salary shall be paid.

   
   

   The statute, which imposes sanctions, including suspension or dismissal of an employees is penal in nature. School Board of Pinellas County v. Nobler 384 So.2d 205 (Fla. 1st DCA 1980). In Bowling v. Department of Insurance, 394 So.2d 165, 171 (Fla. 1st DCA 1981), the First District offered guidance in deciding whether, such a statute has been violated.

   
   

   the violation of a penal statute is not to be found on loose interpretations and

   problematic evidence but the violation must in all its implications be shown by evidence which weighs as "substantially" on a scale suitable for evidence as the penalty does on the scale of penalties. In other words, in a world ensnarled by false assumptions and hasty judgments let the prosecutor's proof

   be as serious-minded as the intended penalty is serious. Id.

   
   

7. Rule 6B-4.09, Florida Administrative Code, defines incompetency, misconduct in office and willful neglect of duty as these terms are used in the statute:

   
   

   1. Incompetency is defined as inability or lack of fitness to discharge the required duty as a result of inefficiency or incapaci- ty. Since incompetency is a relative term, an authoritative decision in an individual case may be made on the basis of testimony by members of a panel of expert witnesses appro- priately appointed from the teaching profes- sion by the Commissioner of Education. Such judgment shall be based on a preponderance of evidence showing the existence of one (1) or more of the following:

      1. Inefficiency: (1) repeated failure to perform duties prescribed by law (Section 231.09, Florida Statutes), (2) repeated failure on the part of a teacher to communi- cate with and relate to children in the classroom to such an extent that pupils are deprived of minimum educational experience, or (3) repeated failure on the part of an administrator or supervisor to communicate with and relate to teachers under his or her

         supervision to such an extent that the educa- tional program for which he or she is respon- sible is seriously impaired.

      2. Incapacity: (1) lack of emotional stability, (2) lack of adequate physical, ability, (3) lack of general educational background, or (4) lack of adequate command of his or her area of specialization.

      1. Misconduct in office is defined as a violation of the Code of Ethics of the Educa- tion Profession as adopted in Rule 6B,1.01, FAC, and the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule 6B-1.06, FAC, which is so serious as to impair the individ- ual's effectiveness in the school system.

      2. Gross insubordination or willful neglect of duties is defined as a constant continuing intentional refusal to obey a direct order, reasonable in nature and given by and with proper authority.

      
      

8. Section 231.085, Florida Statutes (1983), describes the duties of public school principals:

   
   

   231.085 Duties of principals. A district school board shall employs through written contract, public school principals who shall supervise the operation and management of the schools and property as the board determines necessary. Each principal shall perform such duties as may be assigned by the superinten- dent pursuant to the rules of the school board. Such rules shall included but not be limited to rules relating to administrative responsibility, instructional leadership of the educational program of the school to which the principal is assigned, submission of personnel recommendations to the superin- tendent, administrative responsibility for records and reports, administration of corpo- ral punishments and student suspension.

   
   

9. The School Board, through its superintendent, has failed to sustain its burden of proving its charges by proof "as serious-minded as the intended penalty is serious." Bowling, supra. It has not shown that Respondent is guilty, as alleged in the 28-count Petition for Dismissals of incompetency, misconduct in office, or willful neglect of duty. Consequently, all charges against him must be dismissed. He is entitled to reinstatement with full back- pay and all emoluments of employment which he would have received but for his suspension without pay. Respondent also seeks an award for attorney's fees and costs incurred in his defense. Such costs have, no doubt, been considerable. Though the statute does not require it, the equities of this case would support such an award. Respondent was suspended, without pay, based on 28-charges, without first being given a fair opportunity to take corrective action, a procedural prerequisite. He was subjected to the hardship of protracted legal proceedings, his competence was assailed, his professional reputation, the

product of 25 years of faithful service, was put in jeopardy. In the end, all 28-charges were unsubstantiated by the evidence. Under such circumstances, the School Board should, in the fair-minded exercise of its discretion, award Respondent reasonable attorney's fees and costs which he actually expended in his defense or which he has a legal duty to pay.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

That all charges against Respondent be dismissed, that he be reinstated with full back-pay and emoluments of employment; and that he be awarded reasonable attorney's fees which he actually expended in his defense or which he has legal duty to pay.

DONE and ORDERED this 14th day of November, 1985, in Tallahassee, Florida.

1. L. CALEEN, JR. Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this 14th day of November, 1985.

ENDNOTES

1/ The Board's exhibits will be referred to as "P the Respondent's as "R- ", pages in the transcript of hearing will be referred to as "TR-[vol.], p. ".

2/ The running log kept by Ms. Elmore, one of the teachers most critical of Respondent, is replete with hearsay and anonymous comment, and wholly inadequate for this purpose.

3/ Indeed, the school system does not label, and seeks to refrain from labeling, students as "chronic offenders."

4/ Verbal agreements with students are permitted by the Discipline Code and do not violate Board policy. (TR-VII, p.87)

5/ Rampant" is defined as "marked by a menacing wildness, extravagance, or absence of restraint" or as "widespread." Webster's New Collegiate Dictionary,

p. 448 (A Merriam-Webster, 1981).

6/ Ms. Sluder and Ms. Elmore were Respondent's most avid critics. They both felt it was Respondent's responsibility to improve discipline at Riverland and offered little help. Their approach was negative and non-supportive. They saw it as Respondent's problem and left it to him to solve.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 84-1372

I.

A. RULINGS ON PROPOSED FINDINGS SUBMITTED BY SCHOOL BOARD. (Rulings Correspond to Numbered Proposed Findings of Fact)

1-4. Approved.

1. Rejected, since Responding recalled having faculty meetings at least once a month. (TR-XVI, p.13)

2. Approved, but modified to reflect that Ms. Elmore kept minutes of the meetings, not Respondent, and it was not shown that Respondent was required to keep such records.

3. Approved, but modified to reflect that he was informed by his receipt of the January 20, 1984, document listing the faculty concerns. (TR-1, p.46)

4. Approved, but modified to reflect that Respondent timely responded to the identified faculty concerns, he received them on January 20, 1984 (Friday), approached the Grade Level Chairperson on the following Mondays and called a special meeting to respond to them on Tuesday. (TR-XVI, p.118)

5. Approved, but modified to reflect that no rule required the continued maintenance of referrals, that principals (including Respondent and Dr. Daly) normally discarded them at the close of the school year, that each year started anew and the school system did not label students as "chronic offenders." (TR- I, p. 58,59, TR-IX, pp.43,45,77; TR-XIV, p.160; TR-XV, pp. 14,18,44, 146)

6. Approved, but modified to reflect that the referrals were not removed until after the close of the school year, when they would normally be thrown away, and that no one, on behalf of the School Board even asked to see them.

7. Rejected as an exaggeration and as unsupported by the weight of the evidence.

8. Rejected as an exaggeration and as unsupported by the weight of the evidence. The contrary testimony of Ms. Bullock, Ms. Callender, and Ms. Ross is accepted as persuasive. (TR-IX, p.16 TR-X, p.9; TR-XV, p.824)

9. Rejected as an exaggeration and as unsupported by the weight of the evidence. Disrespectful or defiant students were severely punished and discipline was not out-of-control. (TR-X, pp.9,17, 18)

10. Rejected as an over-generalization not supported by the weight of the evidence. Many students were severely punished by Respondent. (TR-VI, p. 834; TR-II, p.248; R-66)

11. Rejected as incomplete and as a mischaracterization. The incident is more accurately described as a sticking or jabbing, not a stabbing. Respondent considered it a serious matter. When he questioned Ms. Ordway he thought the conversation could not be heard by the class, he did not intend to openly question her in front of her students.

12. Rejected as an exaggerated mischaracterization. The wound was minor and was handled in accordance with standard procedures, office personnel examined and put alcohol on it. (TR-I, pp. 80,81, TR-II, p.34)

13. Rejected as a misleading characterization. Respondent did not report the pencil sticking or jabbing incident to Internal Affairs because he did not consider it a stabbing, this was a reasonable exercise of discretionary judgment.

14. Approved, but modified to reflect that some teachers felt Respondent's "verbal agreements" were ineffective. Such agreements were permitted by the Discipline Code and were often effective, it was not shown that they were ever used, in any particular incidents when another disciplinary sanction would have been more appropriate. (TR-VII, p.87; TR-IV, p.443)

15. Rejected as a mischaracterization. Respondent used disciplinary techniques other than verbal agreements, depending on the circumstances of each case.

16. Rejected as unsupported by the weight of the evidence. Discipline was discussed at the orientation assembly in 1982-83. It was discussed at grade level chairperson meetings, where the faculty was told to utilize the Code. An assembly was held, as part of the SACS review process, to discuss discipline. Respondent thought such assemblies were educationally counterproductive he found group settings more effective. Dr. Daly did not hold student assemblies. There was no requirement to hold such assemblies. No teacher or group of teachers ever came to Sulcer and asked to have an assembly. Assemblies were never brought up at faculty meetings which Ms. Elmore chaired. Mr. Dandy testified he did not require student assemblies and only directed Respondent to halve one because some of the teachers complained of not having one. (Exhibits 28,32, Faculty Meeting Agendas, TR-I, p.100; TR-IV, p.559; TR-V, p.773; TR-IX, p.40;

    TR-XIII, pp.77,78,81; TR-XV, pp.38,169; TR-XVI, pp.8,48,49)

17. Rejected as misleading. Respondent utilized the Broward County Discipline Code mandated by the School Board which contained a set of consequences. The Code required an evaluation of several factors which determined the consequences. There was no requirement to develop an additional set of rules and procedures nor was there record evidence to show that such action was customary in Broward County. (Exhibit R-2, p.24; B-44, TR-IX, p.38; TR-XI, p.108)

18. Rejected as mere recitation of testimony. Respondent took reasonable steps to ensure that all affected persons were made aware of the Discipline Code. He directed grade level chairpersons to disseminate the Code to teachers and to instruct them to teach the Code to their classes. Teachers were instructed to use the Code with the I.T.V. Program. Teachers taught the Code and the children were award of it. (Ms. Elmore referenced the Code on daily progress reports to children's parents.) Respondent discussed the Code with the faculty. He issued teachers a follow-up memo, 83-9, on disciplinary steps, in an effort to ensure that teachers utilized the Code. Respondent also disseminated numerous bulletins on discipline. (B-42,46,47,48; TR-II, p.184; TR-V, pp.638,639,641,657, 658; TR-X, p.125; TR-XIV, p.176, TR-XVI, pp.16,48,49,638,175)

19. Rejected as a mischaracterization and as unsupported by the weight of the evidence. Principals had many off-campus functions to attend: parent conferences, visitations, meetings, etc. Some teachers' criticism of Respondent's "invisibility" was based on hearsay. Neither Mr. Dandy, nor Dr. Stephenson ever asked where he was when off-campus. When off-campus, his secretary always knew where he was. The testimony of Ms. Kasmarik and Ms. Bullock that his presence was visible on campus, is accepted as persuasive. No one alleges that Sulcer was off-campus for impermissible reasons. Respondent's secretary and bookkeeper never handled discipline problems. There is no evidence that a problem arising in his absence was not appropriately handled. (TR-I, pp. 74,75; TR-III, p.357; TR-IV, p.445; TR-VII, p.24; TR-X, pp.118, 121,122; TR-XI, p.61,62; TR-XIII, p.357; TR-XV, p. 46; TR-XVI, pp.17,47)

20. Rejected as unsupported by the weight of the evidence. It was not shown he was absent an inordinate amount of time. Neither was it shown that he was required to keep records documenting each absence from campus.

21. Approved, but modified to reflect that no such list was required. All required disciplinary information, was recorded on referral slips.

22. Rejected as unsupported by the weight of the evidence. Inordinate absence from campus was not shown.

23. Rejected as unsupported by the weight of the evidence. Respondent posted notice of his second in command in January, 1984, prior to Mr. Dandy's visit to Riverland. Most teachers knew who was second in command. If they did

    not, all they had to do was ask. No one ever asked who the second in command was at faculty meetings or grade level chairperson meetings. Respondent appointed a designee in 1982-83 (Ms. Jones) and in 1983-84 (Ms. Callender). He notified Mr. Dandy at the beginning of each school year as to who was his second in command. Respondent also informed his office staff. Respondent did not violate any School Board policy or rule since he appointed a second in command each year. (TR-I, p.32; TR-IV, pp.447,489,763,892; TR-V, p. 598; TR-VI, P.892;

    TR-X, pp.15, 96, 97; TR-XI, p.93; TR-XVI, pp.7, 175)

24. Approved, but modified to reflect that there was no requirement that he notify staff in writing. Ms. Jones normally handled discipline in his absences and this fact was generally known to the teachers.

25. Rejected as unsupported by the weight of the evidence. Respondent appointed a second in command (Ms. Callender) at the beginning of the 1983 school year. (TR-I, p.32; TR-X, p.38)

26. Approved.

27. Rejected as unsupported by the weight of the evidence. Respondent's sworn testimony as to his actions is deemed persuasive.

28. Approved.

29. Rejected as unsupported by the weight of the evidence. Respondent handled disciplinary problems when they arose. (TR-VI, p.824; TR-XI, p.181)

30. Rejected as unsupported by the weight of the evidence. It was not shown that Respondent observed the fight and did nothing about it. Ms. Sluder did see it and handled it.

31. Rejected as unsupported by the weight of the evidence. Respondent held an assembly about proper behavior on buses, and he monitored bus-loading. Ms. Sluder's unauthorized riding of a school bus violated School Board policy.

32. Rejected as unsupported by the weight of the evidence. Respondent dispatched the janitor the same day. That evening, the janitor placed mouse traps. Respondent inspected the room personally that same night and throughout the week, until the following Thursday. Ms. Ordway did not ask to have her room relocated. (TR-II, p.254; TR-XVI, pp.71,73)

33. Approved, but the conflict was adequately explained.

34. Rejected as a mischaracterization and as unsupported by the weight of the evidence. This was no showing that documentation of his actions was required.

35. Rejected as unsupported by the weight of the evidence. The janitor put out traps the same day. Use of the custodian for this purpose was an acceptable first step. Respondent inspected the room and did not find any rat poison. No mice were found by Respondent, the custodian, Omni Pest Control, or Ms. Humphreys of the Health Department. Ms. Ordway's class use relocated on Thursday of that week. (TR-II, p.254; TR-XV, pp. 54,83,179,180; TR-XVI, pp.71,72,73,87,157,159,161,172)

36. Rejected as a mischaracterization. Respondent called the exterminator on Friday, Omni came out on Monday. Before calling an exterminator, Respondent dispatched the custodian to handle the problem, this was consistent with standard procedures. (TR-XV, pp.179,180; TR-XVI, pp.72,157)

37. Rejected as incomplete and as unsupported by the weight of the evidence. Respondent periodically checked the room, and relocated the class when Omni Pest Control treated the room. There was no showing that an earlier relocation was necessary. Ms. Ordway did not relocate her class on her own. (TR-XVI, p.73)

38. Rejected as unsupported by the weight of the evidence. One set of bathrooms were not unlocked until the second bell, which was the start of school. The temporary locking of one set of bathrooms solved the problems and was an acceptable management task. It imposed no hardship on anyone. Respondent suggested this method to Ms. Sluder and she agreed. The bathrooms were locked to stop the children from congregating in them. The School Board's

    witnesses did not know the dollar amount of vandalism. Vandalism decreased in 1983-84. (TR-III, p.351; TR-IV, pp.433,449,450,451; TR-V, p.579; TR-VIII, p.90;

    TR-XIII, p.121; TR-XIV, pp.185,186; TR-XV, p.42; TR-XVI, p.42,43,166)

39. Rejected as a mere recitation of testimony. Mr. Dandy's opinion is rejected as lacking substance.

40. Rejected as unsupported by the weight of the evidence. Cafeteria misbehavior was not shown to be any worse in Riverland than in other schools. Respondent sometimes patrolled the cafeteria. Supervision by teachers' aides was an acceptable practice. (TR-XI, pp.72,73)

41. Rejected as unsupported by the weight of the evidence. Respondent said cafeteria discipline was his priority though he could not guarantee that he would monitor detention hall at all times, explaining that he might be called to meetings, conferences, etc. The detention hall plan was not implemented because some teachers were more interested in finding fault and criticizing than taking constructive action. Respondent worked with the Cafeteria Committee. The Committee formulated a plan and an assembly was held where procedures were implemented. Student misbehavior in cafeterias is a chronic problem in elementary schools. In this context, Riverland Elementary's cafeteria operated acceptably. (TR-III, pp.4,405; TR-VI, pp.851,852; TR-XV, p.59)

42. Rejected as mere recitation of testimony. Respondent formed committees to maximize participation of faculty but he accepted ultimate responsibility and made the final decisions. (TR-XVI, p. 76)

43. Rejected as an over-statement and as unsupported by the weight of the evidence. Respondent never refused to see a teacher. He would almost always get back to the teacher within two or three days. (TR-VI, p.890; TR-X, p.15; TR-XI, pp.102,103; TR-XVI, pp.25,26)

44. Approved, but modified to reflect that Ms. Elmore was not a department head; the department head did not request a workshop. She did not submit a follow-up request to her grade-level chairperson or to Respondent. And from September to February of the following year, is considerably less than a year.

45. Approved, but modified to reflect that previous "exceptional ed" forms had not been "kicked-backs" and Ms. Elmore's request that an additional teacher be hired to instruct on preparing such forms was not shown to be reasonable or practical. (TR-V, pp. 632,633)

46. Approved, but modified to reflect that, apart from Ms. Ross's request, there was no requirement for a phone in the library, and that Respondent normally got back to Ms. Ross within a week of her requests. (TR-VI, p.890)

47. Approved, but modified to reflect that nothing but Ms. Elmore's memo indicates that there was a problem with unauthorized people walking in the hallways.

48. Approved, but modified to reflect that the teacher has primary responsibility for her student's release, that the teacher is responsible for knowing the contents of the student's cumulative file, and that Respondent used the same office procedures for issuance of passes for children as were used by his predecessor.

49. Rejected as unsupported by the weight of the evidence. Respondent called Internal Affairs, and did not call the police because they had already been called. (TR-V, p.769; TR-XVI, p. 170)

50. Rejected as unsupported by the weight of the evidence. It was not shown that Respondent administered discipline inconsistently, and no examples or specific instances were provided.

51. Rejected as unsupported by the weight of the evidence. Respondent kept referral slips (disciplinary records) for the school year, then discarded them, as was the practice of other principals. There was no policy or rule requiring longer retention. No examples of inconsistent discipline were provided.

52. Rejected as unsupported by the weight of the evidence. Under the Discipline Code, a principal has discretion, within limits, to determine the

    appropriate discipline to be administered in each case. Retention of referrals during ensuing school years was not proven to be a requirement, if there was such a requirement, teachers were unaware of it.

53. Approved, but modified to reflect that a long-term record was not shown to be a requirement.

54. Rejected as unsupported by the weight of the evidence. While the principal is ultimately responsible, he cannot succeed without the active cooperation of parents and teachers. Inconsistent or lax discipline was not proven.

55. Approved, but modified to reflect that Ms. Sluder recognized that the child had underlying psychological problems, but did not send him to guidance, that she wanted it handled by Respondent, and that further misbehavior of James Harris was not shown. (TR-IV, p.448)

56. Approved.

57. Rejected as incomplete and as unsupported by the weight of the evidence. Respondent asked Ms. Williams to witness his paddling of the child. He did not paddle the child for fear of injuring his (the child's) hands. The child's parents told him they would "take care of it." (TR-XVI, pp.53,54,55, TR-X, pp.67, 68)

58. Rejected as a mischaracterization. A child picked up a stapler and threatened to strike Ms. Bullock with it. The child was taken to Respondent, who immediately suspended him from school.

59. Rejected as misleading. Respondent knew "assaults" were required to be reported, but considered this to be a "threatened" assault. Ms. Bullock did not consider it an "assaults" either.

60. Rejected as unsupported by the weight of the evidence. Faculty meetings were held at least once a month, or as needed. Respondent preferred one-on-one meetings. He also preferred notes in order to keep a record and ensure he responded to each request. Grade level chairpersons were typically used to disseminate information to teachers at elementary schools. Grade level chairperson meetings were held weekly and biweekly, minutes were kept. (R-67; TR-IX, p.88; TR-XIV, p.13; TR-XV, p.47; TR-XVI, pp.16, 25,26,27)

61. Approved, but modified to reflect that it was not shown that such recordkeeping was either required or necessary.

62. Rejected as misleading and as unsupported by the weight of the evidence. No teacher evaluation was shown to be deficient, neither was it shown that Respondent failed to spend the required time observing them, as that the evaluations were not timely completed.

63. Rejected as unsupported by the weight of the evidence. Teachers had basic supplies, Ms. Ordway never asked for supplies that she did not receive. Respondent told her to go to the ABC store and buy whatever she needed. The only restriction was to "spend within reason." She never returned and told him that she needed more. The only shortage of books constituted five hard, back spellers. Ms. Sluder the book chairman, did not order enough. Another order was placed and the books were received. Ms. Ordway wrote the spelling words on the board and accepted no excuse for children not knowing them. The children were not adversely impacted. (TR-II, p.238; TR-III, p.367; TR-IV, p.152; TR-X, p.57; TR-XI, pp.19,172)

64. Rejected as unsupported by the weight of the evidence. Respondent never told the teachers that there was a freeze on the budget. The bookkeeper did, and no one asked Respondent if it was true. Children were not lacking basic supplies. Historically, around F.T.E. time, there was a slowdown on ordering. Ms. Ross had enough materials to last her until the end of the year. The materials she was ordering were for the next school year. Ms. Elmore claimed not to have enough supplies, but never stated what supplies she was lacking.

    She never asked Respondent about the freeze because she did not want to bother him with such "minor matters." Ms. Callender testified that her grade group had

    no problem with supplies. (TR-V, pp.771,776,580, TR-VI, pp.820,863,865, TR-X, PP.21,46; TR-XVI, pp.58,62)

65. Rejected as unsupported by the weight of the evidence.

66. Approved, but accorded little weight. Some complaints were anonymous, and the log consists of rank hearsay.

67. Rejected as unsupported by the weight of the evidence. No parents testified at hearing, and they did not complain about discipline at P.T.A. or Advisory Board meetings. (TR-XVI, p.57)

68. Rejected as unsupported by specifics and given little weight because the purported assertions of parents were rank hearsay.

69. Rejected as misleading. Exhibit P-8 is a memo that Dr. Stephenson prepared, not the parents. He could not remember the names of the parents at the meeting where these concerns were expressed. He could not remember one specific incident about which these parents complained. Exhibit P-8 is rank hearsay and accorded little weight. (TR-VIII, pp.154,155)

70. Approved, but modified to reflect that the ballot did not give anyone a choice to select which items they agreed with, ballots were taken individually to teachers by Ms. Sluder and Ms. Elmore.

71. Approved, but modified to reflect that some concerns were properly condensed because they were redundant.

72. Approved, but modified to indicate that some teachers would not cooperate and enforce the new disciplinary plan, they preferred to leave the problem to Respondent to solve.

73. Approved, but modified to reflect that Ms. Sluder and Ms. Elmore called Mr. Dandy because they did not want to try the new School-Wide Disciplinary Plan or cooperate with the Faculty Council. They also failed to complete the February 16, 1984 survey. (R-17, TR-III, p.394,399,401; TR-XI, pp.40,160,161)

74. Rejected as unsupported by the weight of the evidence. Mr. Dandy conducted a vote by a show of hands, he doesn't know the actual number. There was no evidence that 97 percent of the faculty voting on it. To some extent, the vote reflected the way in which questions were asked as well as Mr. Dandy's intimidating style. (TR-XI, p.167; TR-XII, p.48)

75. Approved, but modified to reflect that Mr. Dandy does not recall either the teachers' names or the parents' names, that Respondent responded on March 1, 1984, and that the response was as specific as Mr. Dandy's February 24, 1984, letter. (TR-VIII, p.117; TR-XIII, pp.25,47, P-5,6)

76. Rejected as unsupported by the weight of the evidence. While the meeting was held and questions asked, the 90 percent figure is unsubstantiated, and the generalized responses of teachers are hearsay and accorded little weight.

77. Approved, but modified to reflect that--before sending directives to Respondent--Mr. Dandy did not independently investigate or verify the validity of the complaints, that some "time-lines" for improvement were immediate, and that the letter lacked specificity, that when Respondent's counsel wrote requesting clarification, Mr. Dandy did not respond, and that Mr. Dandy did not determine if Respondent ever complied with the directives. (TR-XIII, p.129, TR- XIV, pp.4,5,6,15,165; TR-XV, p. 6; P-19)

78. Rejected as unsupported by the weight of the evidence. Respondent's response was as specific as possible given the lack of specificity in Mr. Dandy's allegations.

79. Rejected as misleading. Generalized complaints of lack of supplies were not substantiated. Mr. Dandy did not know what supplies were lacking, but nonetheless, instructed teachers to bypass Respondent and come directly to him.

80. Rejected as unsupported by the weight of the evidenced and as a mere recitation of testimony. Teachers had basic supplies available, Respondent never ordered a freeze or slowdown in ordering, but slowdowns customarily

    occurred prior to F.T.C. count. It was not shown that any children were adversely impacted by any limited or temporary lack of supplies.

81. Rejected as a generalized conclusion amounting to nothing more than recitation of testimony of one witness.

82. Rejected as incomplete and misleading. Ms. Elmore and Ms. Sluder complained to higher authorities because they were unwilling to help fashion a positive response to perceived problems, and preferred to leave the problems to Respondent to solve. (TR-III, pp.387,388,394,395; TR-IV, p.548; TR-V, pp.703,708,707; TR-XI, p.159)

83. Rejected as unsupported by the evidence. Dr. Stephenson filed the charges (seeking to return Respondent to annual contract) when he did primarily to meet the April 1, deadline contained in Section 231.36, Florida Statutes. Respondent's efforts to make improvements were resisted by a few handful of outspoken teachers who were unwilling to cooperate either with him or the rest of the faculty, who were trying to make positive changes. (TR-III, p. 394; TR-V, pp.591,703; TR-VII, pp.106,107)

84. Approved, but given little weight because the report consisted of rank hearsay and contained many errors.

85. Rejected as incomplete and misleading. Respondent was never given an opportunity to respond. Ms. Swilley submitted her report on July 14, 1984, and on July 20, 1984, Respondent was charged with Count 28. Mr. Dandy was directed to meet with Respondent in reference to the Report, but he never did. (TR-XIV, pp. 142,143; TR-XVI, p.9)

86. Rejected as misleading. The Department of Education never declared Respondent to be incompetent, or made any other findings relative to Respondent's performance.

87. Approved, but modified to reflect that Dr. Stephenson had requested Dr. Daly to conduct the evaluation, that the evaluation took place over 4 days, and that both Dr. Stephenson and Mr. Dandy respected her professional ability. (TR-XIV, pp.175,176, TR-XV, pp.13,74,164)

88. Approved, but modified to reflect that Dr. Daly, though speaking with a few teachers, wished primarily to observe conditions at Riverland Elementary, and form conclusions based on her observations--that was how she perceived her assignment.

89. Approved, but modified to reflect that she was entitled to draw reasonable inferences from the conditions she observed.

90. Rejected as misleading and as mere recitation of testimony. Dr. Daly was not asked to investigate an alleged assault and, "assault" is an ambiguous term. In its non-legal sense, an "assault" did not occur--only a threat.

91. Rejected as misleading and as unsupported by the weight of the evidence. Dr. Daly was a responsive, candid, and credible witness. (In contrast, Mr. Dandy was evasive, his testimony was vague and inconsistent. He expressed displeasure at being asked to justify and explain the basis for his conclusions. When pressed, he frequently could not do so.)

92. Approved, and modified to reflect that no conflict of interest was shown, and that Dr. Daly's purpose was to point out the many inaccuracies in the Swilley Report.

93. Approved, but modified to reflect that Dr. Daly was never asked to assist or talk to Ms. Swilley.

94. Approved, but modified to reflect that Dr. Daly volunteered but Mr. Dandy did not ask her to return to Riverland Elementary. (TR-XV, p.194)

95. Rejected as unsupported by the weight of the evidence. The SACS report was ,written by the teachers, themselves. Ms. Elmore and Ms. Sluder, who later criticized the report, did not offer information when it was prepared.

96. Rejected as unsupported by the weight of the evidence. Discipline was not substantially better under Respondent's predecessors. Due to the nature of the students, it was not any easy task to maintain discipline at Riverland. The

    statement (in this proposed finding) that children never repeated the same conduct is an unsubstantiated gross overstatement.

97. Rejected as unsupported by the weight of the evidence. There are still student behavior problems at Riverland. These asserted generalized "feelings" of teachers were not substantiated by concrete, specific evidence. The opinion of Ms. Sluder and Ms. Elmore are not accepted as credible. Mr. Dandy, Respondent's supervisor, never independently investigated Respondent and never recommended any discipline, indeed, he recommended Respondent for reappointment as principle of Riverland Elementary for 1984-85.

98. Rejected as unsupported by the weight of the evidence. Dr. Stephenson never conducted his own thorough investigation into or verified the validity of the allegations against Respondent. (TR-VIII, p.151, TR-IX, p.31)

99. Rejected as misleading and as unsupported by the weight of the evidence. Respondent was visible on campus, and held student assemblies, it was not shown that he violated any School Board policy, whether embraced in a rule or not. (TR-X pp.44,121; TR-XIII, pp.77,78,104; TR-XVI, pp.8,46,47)

100. Rejected as unsupported by the weight of the evidence. Respondent was a credible witness. Under difficult circumstances, he appeared to answer questions honestly and to the best of his ability.

II.

A. RULINGS ON PROPOSED FINDINGS SUBMITTED BY RESPONDENT.

Respondent did not submit separately numbered proposed findings. Rather, he submitted 215 pages of proposed findings intermixed with argument. (At close of hearing, it was agreed that closing argument could be submitted in writing.) His proposed findings haven in substance, been approved and incorporated in this recommended order. Any proposed findings not incorporated were omitted because they were considered immaterial, repetitious, or unnecessary.

COPIES FURNISHED:

Philip J. Montante Jr., Esquire 1500 E. Atlantic Blvd.

Pompano Beach, Florida 33060

Thomas F. Panza, Esquire 3081 E. Commercial Blvd. Suite 200

Ft. Lauderdale, Florida 33308

Docket for Case No: 84-001372

Orders for Case No: 84-001372