STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF MARION COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 94-4976

)

RICHARD VAUGHN, )

)

Respondent. )

)

RECOMMENDED ORDER

The final hearing in this case was held before Larry J. Sartin, Hearing Officer, on December 15, 1994 in Ocala, Florida.

APPEARANCES

For Petitioner: William C. Haldin, Jr., Esquire

Richard, Blinn & Haldin, P.A. 808 Southeast Fort King Street Ocala, Florida 34471

For Respondent: Mark Herdman, Esquire

Herdman & Skellarides, P.A. 34650 U.S. 19 North, Suite 308 Palm Harbor, Florida 34684

STATEMENT OF THE ISSUE

The issue in this case is whether the Respondent, Richard Vaughn, should be disciplined as suggested in the Recommendation for Dismissal of Annual Contract Employee entered by John Smith, Superintendent of Schools.

PRELIMINARY STATEMENT

John Smith, Superintendent of Schools for Marion County, Florida issued a Recommendation for Dismissal of Annual Contract Employee. Superintendent Smith recommended that Petitioner, the Marion County School Board, terminate the employment of Respondent, Richard Vaughn. On August 16, 1994, counsel for Mr. Vaughn served a Request for Hearing to contest Superintendent's Smith's recommendation.

By letter dated September 2, 1994, Mr. Vaughn's request for hearing was filed with the Division of Administrative Hearings with a request that the matter be assigned to a Hearing Officer. The matter was designated case number 94-4976 and was assigned to Hearing Officer Charles C. Adams.

The final hearing was scheduled for December 15, 1994 by Notice of Hearing. The morning of the final hearing the case was assigned to the undersigned due to the unavailability of Hearing Officer Adams.

At the final hearing Petitioner presented the testimony of Richard MacDonald, Dixie Fosler, Carol Vought, Holley Griffin, Joellen Markham, Stanley Jacobs and Christina Vacha. Mr. Jacobs was called as a rebuttal witness.

Petitioner also offered four exhibits which were accepted into evidence.

Respondent testified on his own behalf. Respondent also offered two exhibits which were accepted into evidence.

A transcript of the final hearing was filed on December 23, 1995.

Respondent filed Respondent's Post-Hearing Brief Proposed Findings of Fact and Conclusions of Law on January 24, 1995. Petitioner filed Petitioner's Proposed Recommended Order on January 25, 1995. The Respondent's Post-Hearing Brief and Petitioner's Proposed Recommended Order contain proposed findings of fact. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order or the proposed finding of fact has been accepted or rejected in the Appendix which is attached hereto.

FINDINGS OF FACT

1. The Parties.

   
   

   1. Petitioner is the School Board of Marion County, Florida (hereinafter referred to as the "School Board").

      
      

   2. Respondent, Richard Vaughn, is a teacher employed by the School Board pursuant to an annual contract of employment.

      
      

2. Mr. Vaughn's Employment with the School Board.

   
   

   1. Mr. Vaughn was first employed by the School Board as a substitute teacher during the 1990-1991 school year.

      
      

   2. Mr. Vaughn continued to work as a substitute teacher for the School Board for the 1991-1992 and 1992-1993 school years.

      
      

   3. During most of the 1992-1993 school year Mr. Vaughn acted as a substitute teacher at the Marion County Juvenile Detention Center (hereinafter referred to as the "Detention Center").

      
      

   4. For the 1993-1994 school year, Mr. Vaughn was employed by the School Board as a full-time teacher pursuant to an Annual Contract of Employment for Instructional Personnel of the Public Schools.

      
      

3. Mr. Vaughn's Full-Time Employment at the Marion County Detention Center.

   
   

   1. Mr. Vaughn was assigned as a full-time teacher at the Detention Center during the 1993-1994 school year.

      
      

   2. The Detention Center is a facility used by Marion County to incarcerate youths who are awaiting trail on criminal charges. The youths incarcerated at the Detention Center are approximately 12 to 18 years of age.

      
      

   3. Youths incarcerated at the Detention Center generally have disciplinary problems and require strict control.

   4. The School Board provides teachers to provide education to youths incarcerated at the Detention Center.

      
      

   5. Teachers employed at the Detention Center work for the Phoenix Center, a school for teens with children, special education students and students who have committed felonies or other expellable offenses in Marion County. The Phoenix Center is located about 8 miles from the Detention Center.

      
      

   6. The principal of the Phoenix Center supervises teachers employed at the Detention Center. At the time that Mr. Vaughn was employed as a full-time teacher at the Detention Center, Bobby James was principal of the Phoenix Center. Mr. James hired Mr. Vaughn and assigned him to the Detention Center.

      
      

   7. The Superintendent of the Detention Center is in charge of the overall operation of the Detention Center. At the time of Mr. Vaughn's employment as a full-time teacher at the Detention Center, the Superintendent of the Detention Center was Dixie Fosler.

      
      

   8. Mr. Vaughn taught four math classes and a Life Skills class at the Detention Center. The Life Skills class was intended to teach students to be better citizens.

      
      

   9. In January of 1994 Stanley Jacobs took over as principal of the Phoenix Center. Mr. Jacobs observed Mr. Vaughn at the Detention Center. Initially, Mr. Jacobs found Mr. Vaughn to be working well with students.

      
      

   10. The evidence failed to prove that Mr. Vaughn was not an effective teacher while employed as a substitute teacher and during the first half of the 1993-1994 school year.

       
       

   11. During the late winter or early spring of 1994, however, the Superintendent of the Detention Center began to observe Mr. Vaughn "being very loud and having an aggressive stance and an aggressive tone and berating the students."

       
       

   12. On more than one occasion Mr. Vaughn was overheard by Richard McDonald, a human services program specialist who worked at the Detention Center, berating and yelling very loudly at students in Mr. Vaughn's class. Mr. Vaughn's class was located in the Detention Center cafeteria at the time.

       
       

   13. In March of 1994 Mr. McDonald attempted to get the attention of a student in Mr. Vaughn's class. Mr. McDonald wanted to get the students attention so that he could show the student that he had obtained a book he had told the student he would get for him. Mr. McDonald got the student's attention by positioning himself in a hallway outside a window between the cafeteria and the hall where only the student could see him. The student saw Mr. McDonald and the book and acted like he was happy about the book.

       
       

   14. Mr. Vaughn apparently saw the student and began to berate him in a very loud voice. Mr. Vaughn appeared to be very angry.

       
       

   15. Mr. McDonald felt that it was his fault that the student was being yelled at, so he stepped to a door to the cafeteria and knocked on it.

       
       

   16. Mr. Vaughn opened the door. Mr. McDonald stood at the door, began to explain that he had caused the disruption and apologized to Mr. Vaughn. Mr.

       Vaughn angrily interrupted Mr. McDonald and began yelling at Mr. McDonald. Mr. Vaughn made comments to the effect that "there is a right way and a wrong way" and "oh no, you're not sorry."

       
       

   17. Mr. McDonald attempted to let Mr. Vaughn vent his anger and then tried to apologize again. Mr. Vaughn cut him off. Mr. McDonald then suggested that they step outside into the hallway, away from the students. Mr. Vaughn refused and continued to yell. Mr. McDonald eventually gave up and left.

       
       

   18. Mr. McDonald saw Mr. Vaughn later during the day and attempted to apologize and talk to him about the incident again. Mr. Vaughn had calmed down. The attempt to discuss the matter with Mr. Vaughn, however, ended when Mr. Vaughn abruptly said "that's it" and left.

       
       

   19. On April 7, 1994 the Superintendent of the Detention Center heard someone yelling and screaming. Ms. Fosler was in her office at the time. She went into the hall and went in the direction of the noise.

       
       

   20. Three doors down the hall from her office was the cafeteria where Mr. Vaughn was teaching. The yelling and screaming were coming from Mr. Vaughn's class.

       
       

   21. Ms. Fosler went around to the other side of the cafeteria where the window to the hall was located. Through the window she could see Mr. Vaughn walking around the room, pointing his finger and screaming at the students: "This time I'm not calling the police or the staff. This time you're going to have to deal with me." Mr. Vaughn's mood continued to worsen and his voice continued to get louder and louder.

       
       

   22. Mr. Vaughn was angry because a student in Mr. Vaughn's class had thrown several pieces of lead from a broken pencil toward him. One piece had struck one of the lens of his glasses.

       
       

   23. Mr. Vaughn had been struck three times in the past by objects thrown by students. Those incidents had been reported by Mr. Vaughn to the police and had not been handled to Mr. Vaughn's satisfaction. That is why Mr. Vaughn was yelling at the students that "they were going to have to deal with him this time."

       
       

   24. Ms. Fosler stepped into Mr. Vaughn's class and instructed him to come outside with her. Initially Mr. Vaughn said and did nothing. Ms. Fosler then repeated her instruction and Mr. Vaughn complied. The students were removed by staff of the Detention Center.

       
       

   25. Someone told Ms. Fosler that Mr. Vaughn had something in one of his socks. She returned to Mr. Vaughn's class, where he had returned, and asked that he show her his sock. He ignored her. After instructing him again to show her his sock, he complied by pulling a pack of cigarettes out of the sock.

       
       

   26. Ms. Fosler then instructed Mr. Vaughn to leave the Detention Center. Mr. Vaughn ignored her instruction. Ms. Fosler then telephoned and reported the incident to the principal of the Phoenix Center, Mr. Jacobs. Ms. Fosler told Mr. Jacobs she did not want Mr. Jacobs to return as a teacher to the Detention Center. Mr. Jacobs instructed Mr. Vaughn to leave. Mr. Vaughn complied.

       
       

   27. On Friday, April 8, 1994, Mr. Jacobs spoke to Mr. Vaughn about the incident of April 7, 1994. During the conference, Mr. Jacobs gave Mr. Vaughn a

       blank copy of the Marion County School District Check-List for Professional Improvement (hereinafter referred to as the "Check-List"). The Check-List is used in evaluating the performance of teachers of the School Board. Mr. Jacobs told Mr. Vaughn that he needed to pay special attention to improving three specific items on the Check-List:

       
       

       1. II. A. 1. "Relates to students in a positive, respectful and professional manner."

       2. II. A. 5. "Demonstrates student control without harassing, shouting or embarrassing."

       3. III. A. 3. "Demonstrates cooperation and self-control in working with administrators, peers, and staff members."

          
          

   28. Mr. Vaughn had tape recorded the incident of April 7, 1994. Mr. Vaughn gave a copy of the tape to Mr. Jacobs. Mr. Jacobs listed to the tape. Mr. Jacobs returned the tape to Mr. Vaughn and told Mr. Vaughn that, based upon what he heard on the tape, it did not support Mr. Vaughn's position and raised a question as to whether Mr. Vaughn was rational. Mr. Jacobs concluded that Mr. Vaughn's behavior was inappropriate, unprofessional and irrational. Mr. Jacobs concluded that Mr. Vaughn's comments were "not comments that a professional teacher would make to students."

       
       

   29. Mr. Jacobs' conference with Mr. Vaughn was memorialized in a memorandum dated April 11, 1994. Mr. Vaughn signed the memorandum and was provided a copy. Petitioner's exhibit 1.

       
       

   30. Mr. Jacobs decided to reassign Mr. Vaughn to teach the remainder of the year at the Phoenix Center.

       
       

   31. Mr. Jacobs' discussion with Mr. Vaughn on April 8, 1994, the memorandum of April 11, 1994, and the reassignment of Mr. Vaughn to the Phoenix Center were disciplinary actions and should have been recognized as such by Mr. Vaughn.

       
       

4. Mr. Vaughn's Employment at the Phoenix Center.

   
   

   1. Mr. Vaughn was reassigned to teach at the Phoenix Center in April of 1994.

      
      

   2. On or about May 3, 1994, the Dean of the Phoenix Center, Carol Vought, was called to Mr. Vaughn's classroom.

      
      

   3. One of Mr. Vaughn's three students, J.L., had come to class late that morning. J.L. put his head on the desk. When Mr. Vaughn asked him why he was not paying attention, J.L. indicated that he did not have a pencil. Mr. Vaughn gave J.L. a pencil but the student continued to keep his head on the desk. Mr. Vaughn then told J.L. that he would have to leave and J.L. threw the pencil.

      
      

   4. By the time that Ms. Vought arrived at Mr. Vaughn's classroom, she found Mr. Vaughn and J.L. yelling at each other. J.L. used profanity and threatened Mr. Vaughn. J.L. threatened to beat Mr. Vaughn and to "beat him upside the head." Mr. Vaughn was yelling back at J.L. incoherently.

   5. Ms. Vought asked J.L. to come with her to her office. She instructed Mr. Vaughn to write a referral on the incident. Ms. Vought did not ask Mr. Vaughn to come with her to the office or to leave the other two children unattended.

      
      

   6. As Ms. Vought left the room with J.L., Mr. Vaughn followed them. When they got outside the classroom, Mr. Vaughn said to J.L. "if you're going to say it, then do it." J.L. was quiet by this time. Ms. Vought told Mr. Vaughn she would take care of it. Mr. Vaughn continued to follow Ms. Vought and J.L.

      
      

   7. Mr. Vaughn raised his fist and again told J.L. to do what he was threatening to do. Mr. Vaughn explained at the final hearing that he was simply attempting to reinforce prior instruction to J.L. that he should follow-through on things in life. This explanation is not supported by the weight of the evidence. Mr. Vaughn's actions and comments were intended as an invitation to

      J.L. to fight with Mr. Vaughn.

      
      

   8. Ms. Vought eventually instructed Mr. Vaughn to return to the classroom and Mr. Vought complied.

      
      

   9. Mr. Vaughn had no reason to continue to follow J.L. and make the comments he did. By the time J.L. had been taken from the room he had calmed down. Mr. Vaughn's actions tended to incite the situation rather than defuse it, as Mr. Vaughn should have attempted to do as a teacher.

      
      

   10. Mr. Vaughn followed Ms. Vought for approximately 40 to 50 feet from the classroom. Although Mr. Vaughn was not out of site of the classroom door, he was not able to see the two students that remained unattended in the classroom. Because of the type of students at the Phoenix Center, teachers, including Mr. Vought, had been instructed to never leave their students unattended. Mr. Vaughn failed to follow this instruction.

       
       

   11. Mr. Vaughn should have known not to leave his students unattended. Soon after being reassigned to the Phoenix Center, Mr. Vaughn had left his students unattended. Holley Griffin, an assistant principal, had gone to Mr. Vaughn's class at 8:30 a.m. The class bell had already rung. Mr. Vaughn did not appear at the classroom until eight or nine minutes after the bell had rung. Mr. Vaughn informed Ms. Griffin that he had been told by Mr. Jacobs to cover his shelves with paper and he had gone to get the paper. Ms. Griffin told Mr. Vaughn that it was never appropriate to leave students at the Phoenix Center unattended.

       
       

   12. The incident with Ms. Vought was reported by Ms. Vought to Mr. Jacobs. Mr. Jacobs spoke to Mr. Vaughn about the incident on May 4, 1994. This was the second conference Mr. Jacobs had with Mr. Vaughn concerning his inappropriate conduct with students. During the May 4, 1994 conference Mr. Vaughn was directed by Mr. Jacobs to refrain from engaging in "any actions verbal or physical that could be interpreted as inviting a student to fight with him or follow through on a threat."

       
       

   13. Sometime in May of 1994 Ms. Griffin went to Mr. Vaughn's classroom to retrieve some materials for a student. When she entered the room, Mr. Vaughn was quietly sitting at his desk. Mr. Vaughn said nothing when Ms. Griffin entered the room. Mr. Vaughn, who appeared to be in a daze, made no acknowledgment that Ms. Griffin had entered the room.

   14. After entering the room, Ms. Griffin assisted a student. Mr. Vaughn still sat quietly. Ms. Griffin then asked Mr. Vaughn for the materials she had come to retrieve. When she did, Mr. Vaughn stabbed a ball point pen into the desk with such force that it shattered. Mr. Vaughn then arose from his chair and began to walk around his desk and behind Ms. Griffin. Because of Mr. Vaughn's abnormal behavior, Ms. Griffin was afraid and did not move.

       
       

   15. When Mr. Vaughn came up behind Ms. Griffin, he asked her to step outside. Ms. Griffin complied. When they had exited the classroom, Ms. Griffin expressed concern about what he perceived as a lack of support by administration for him.

       
       

   16. Mr. Vaughn remained outside the classroom for approximately 8 to 10 minutes. During that time, one student was left unattended in Mr. Vaughn's classroom.

       
       

   17. On May 17, 1994, Joellen Markham, a teacher at the Phoenix Center, took her class outside for a walk. The students walked around the campus of the Phoenix Center.

       
       

   18. As Ms. Markham and her students were returning to the Phoenix Center classroom building, some of the students were walking in a road that leads to and from the Phoenix Center. Ms. Markham noticed an automobile coming in the direction of the students and away from the Phoenix Center.

       
       

   19. Ms. Markham told the students to get out of the road. All of the students except one student, an approximately 16 to 18 year old female student complied. The student continued to defiantly and deliberately continue to walk in the road and stated "here comes old Mr. Vaughn."

       
       

   20. Mr. Vaughn was in fact driving the automobile. When he saw the female student remain in the road after the other students had moved out of the road, he gunned the accelerator and continued to drive the automobile toward the student. Ms. Markham became alarmed and began telling the student to get out of the road. The student refused.

       
       

   21. Mr. Vaughn continued to drive his automobile toward the student. Mr. Vaughn applied his brakes forcefully enough that the automobile rocked back and forth one time when it came to a stop. The tires of Mr. Vaughn's automobile did not, however, screech when he stopped. Mr. Vaughn's automobile stopped approximately 12 to 20 feet away from the student.

       
       

   22. Mr. Vaughn then rolled a window of the automobile down and told Ms. Markham that he was trying to teach the student a lesson about walking in the street.

       
       

   23. Ms. Markham reported the incident to Mr. Jacobs. Mr. Jacobs attempted to discuss the matter with Mr. Vaughn on May 17, 1994 but Mr. Vaughn did not return to the Phoenix Center that day. Mr. Vaughn was absent from the Phoenix Center for part of May 17, 1994 without permission.

       
       

   24. Mr. Jacobs spoke to Mr. Vaughn on May 18, 1994 about the automobile incident and his absence from the campus. Mr. Vaughn admitted to Mr. Jacobs that he left the campus without permission.

       
       

   25. Mr. Vaughn also admitted to Mr. Jacobs that he had gunned his automobile toward the student because he wanted to teach her a lesson.

   26. Mr. Vaughn's explanation during the final hearing of the events of May 17, 1994 are rejected. Mr. Vaughn's explanation is contrary to that of Mr. Jacobs and Ms. Markham. Mr. Vaughn also failed to give the same explanation of the incidents he gave during the final hearing to Mr. Jacobs on May 18, 1994.

       
       

   27. Mr. Vaughn was suspended from teaching on May 18, 1994.

       
       

5. The Recommendation to Renew Mr. Vaughn's Annual Contract.

   
   

   1. Mr. Jacobs became the Principal of the Phoenix Center on or about January 17, 1994.

      
      

   2. In February of 1994 Mr. Jacobs was required to recommend to the School Board whether existing annual contracts of employment should be renewed for the 1994-1995 school year.

      
      

   3. Because Mr. Jacobs was not familiar with the teachers under his supervision, he asked his predecessor, Mr. James, whether there were any teachers employed by annual contract that he would not recommended for renewal of their contracts. Mr. Jacobs had been told that there were no teachers that he would not recommend for renewal.

      
      

   4. Based upon Mr. James' recommendation and in light of the fact that the incidents which form the basis for the School's Board's action in this matter all occurred after February of 1994, Mr. Jacobs recommended that Mr. Vaughn's annual contract be renewed for the 1994-1995 school year.

      
      

   5. Mr. Jacobs informed Mr. Vaughn that he was recommending the renewal of his annual contract and Mr. Vaughn signed the recommendation on February 16, 1994.

      
      

   6. In light of the fact that Mr. Vaughn had been informed of the recommendation to renew the annual contract for 1994-1995, Mr. Jacobs believed that he could not withdraw the recommendation as a result of any of the incidents described in this Recommended Order.

      
      

   7. On May 4, 1994, Mr. Vaughn's annual contract of employment was renewed by the School Board for the 1994-1995 school year.

      
      

   8. Even if Mr. Jacob's recommendation to renew Mr. Vaughn's annual contract could have been withdrawn, it was not until May 18, 1994, that Mr. Jacobs decided that Mr. Vaughn's actions warranted his dismissal. Mr. Jacob's decision to seek dismissal of Mr. Jacobs was not based upon any one incident. His decision was based upon all of the incidents described in this Recommended Order, with the incident of May 17, 1994, being the "final straw".

      
      

6. The Professional Orientation Program.

   
   

   1. All new teachers are required to successfully complete the Professional Orientation Program (hereinafter referred to as "POP").

      
      

   2. The POP is a state program intended to measure the ability of all teachers to perform certain "competencies." The competencies are "generic" and are intended to test the abilities that all teachers, regardless of the subjects

      taught, should evidence. For example, all teachers should evidence the ability to start classes on time.

      
      

   3. An administrator works with a new teacher until the teacher has evidenced all the competencies. The administrator observes the teacher at various announced times. The administrator meets with the teacher and explains what competencies the administrator will be observing before observing the teacher. The teacher is, therefore, aware of what competencies he or she will be required to demonstrate ahead of time. A post-observation conference is also held.

      
      

   4. The POP is intended only to insure that a new teacher knows how to demonstrate the competencies. It is not intended as an evaluation of the teachers overall ability. The POP differs from an evaluation in that a slice of the teacher's effort is looked at, with warning, during the POP while the teacher's overall ability throughout the school year is looked at in performing an evaluation of a teacher.

      
      

   5. Once a new teacher evidences a competency during one POP-designated observation by an administrator, the teacher has "passed" that competency. Once all the competencies are demonstrated one time by the teacher, the teacher has successfully completed the POP.

      
      

   6. Mr. Vaughn successfully completed the POP. He received a "Final Assessment" from Mr. Jacobs dated May 6, 1994 indicating that he successfully completed the POP. This determination, however, was consistent with the manner in which the POP is administered. The determination was not inconsistent with Mr. Jacobs' conclusion on May 18, 1994, that Mr. Vaughn should be dismissed.

      
      

   7. Mr. Jacobs' failure to take into account the incidents described in this Recommended Order which had taken place prior to May 6, 1994, in finding that Mr. Vaughn had successfully completed the POP was consistent with the manner in which the POP is operated.

      
      

7. Conclusion.

1. Mr. Vaughn's actions evidenced a lack of emotional stability and the competency to work with students at the Phoenix Center.

   
   

2. Mr. Vaughn's conduct during 1994 constituted incompetency, misconduct in office and willful neglect.

   
   

   CONCLUSIONS OF LAW

   
   

   1. Jurisdiction.

      
      

3. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1993).

   
   

   1. Burden of Proof.

      
      

4. The burden of proof absent a statutory directive to the contrary is on the party asserting the affirmative of the issue of the proceeding. Antel v. Department of Professional Regulation, 522 So.2d 1056 (Fla. 5th DCA 1988);

   Department of Transportation v. J.W.C. Co. Inc., 396 So.2d 778 (Fla. 1st DCA 1981); and Balino v. Department of Health and Rehabilitative Services, 348 So.2d

   249 (Fla. 1st DCA 1977).

   
   

5. In this proceeding it is the School Board that is asserting the affirmative. The School Board, therefore, had the burden of proving by clear and convincing proof that Mr. Vaughn should be dismissed as a teacher. Ferris

   v. Turlington, 510 So. 2d 292 (Fla.. 1st DCA 1987).

   
   

   1. Just Cause for Mr. Vaughn's Termination.

   
   

6. In light of the renewal of Mr. Vaughn's annual contract of employment for the 1994-1995 school year, Mr. Vaughn may be terminated from employment by the School Board only for "just cause." Section 231.36(1)(a), Florida Statutes.

   
   

7. "Just cause" includes, among other things, misconduct in office, incompetency and willful neglect of duty. Section 231.36(6)(a), Florida Statutes.

   
   

8. The evidence in this case proved that Mr. Vaughn's conduct during early 1994 constituted misconduct in office, incompetency and willful neglect of duty. Thus, there is "just cause" for Mr. Vaughn's termination from employment with the School Board.

   
   

9. Mr. Vaughn has suggested that the School Board is attempting to terminate Mr. Vaughn's employment merely for philosophical differences between Mr. Vaughn and his co-workers. The evidence failed to support this argument. The persons responsible for Mr. Vaughn's employment and the evaluation of his competency all agreed that Mr. Vaughn's conduct was not appropriate.

   
   

10. Mr. Vaughn also argues that the action of the School Board is inconsistent with the renewal of his annual contract and his successful completion of the POP. These arguments are also not persuasive.

    
    

11. All of the events that form the basis for Mr. Vaugh's termination from employment except the May 17, 1994 incident, took place after Mr. Jacobs had informed Mr. Vaughn that his annual contract would be renewed. Mr. Jacobs was the person that could have informed the School Board that Mr. Vaughn's annual contract should not be renewed. Mr. Jacobs did not do so because of a belief that, once he had told Mr. Vaughn the contract would be renewed, he could not then take action to prevent the School Board from renewing the contract. Therefore, Mr. Jacobs took no action when the incidents occurred. Additionally, Mr. Jacobs did not decide that Mr. Vaughn should be terminated from employment until all the incidents, including the May 17, 1994 incident, had occurred. By then it was too late to stop the renewal of the annual contract.

    
    

12. The determination that Mr. Vaughn had successfully completed the POP is also not inconsistent with the conclusion that Mr. Vaughn's employment should be terminated. The POP was not an evaluation of the total, actual performance of Mr. Vaughn. Mr. Vaughn was put on notice of when he would be evaluated and what competency would be evaluated on. The fact that Mr. Vaughn was able to demonstrate those competencies on notice is not inconsistent with the conclusion that Mr. Vaughn acted inappropriately at other times.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Marion County School Board

terminating Richard Vaughn's Annual Contract of Employment for Instructional Personnel for the 1994-1995 school year.

DONE AND ENTERED this 17th day of February, 1995, in Tallahassee Florida.

LARRY J. SARTIN

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 17th day of February, 1995.

APPENDIX

The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted.

The School Board's Proposed Findings of Fact

1. Accepted in 3-5 and 7.

2. Accepted in 5, 7-8 and 10.

3. Accepted in 11-12.

4. Accepted in 11.

5. Accepted in 12-13.

6. Not relevant.

7. Hearsay.

8. Accepted in 17.

9. Accepted in 19-24.

10. Accepted in 25-27 and 30.

11. Accepted in 34.

12. Accepted in 36-38.

13. Accepted in 42, 47-48 and 53.

14. Accepted in 39-47.

15. Accepted in 50-52. The date of the evidence was not established by the weight of the evidence.

16. Accepted in 54-59.

17. Accepted in 61-62.

18. Accepted in 33, 49 and 61.

19. Accepted in 65-71.

20. Accepted in 73-79.

21. Accepted in 80.

22 See 81.

Mr. Vaughn's Proposed Findings of Fact

1. Accepted in 3-5 and 7.

2. Accepted in 8 and 10.

3. Accepted in 6-7, 12 and 14.

4. While generally true, the Mr. James also offered no support for Mr. Vaughn at the final hearing.

5. Accepted in 15.

6. See 16. But see 17.

7. Accepted in 25 and 28-29. The last two sentences are not supported by the weight of the evidence.

8. See 25-27. The last sentence is not supported by the weight of the evidence.

9-10. Hereby accepted.

1. Not supported by the weight of the evidence. See 33-34.

2. Accepted in 36. The last sentence is not supported by the weight of the evidence.

3. Accepted in 39-41. The last two sentences are not supported by the weight of the evidence.

4. Not supported by the weight of the evidence. See 43-44.

5. See 47. The last sentence is not supported by the weight of the evidence.

6. Not supported by the weight of the evidence. See 49.

7. Accepted in 71.

18-19. Accepted in 78. See 73-77 and 79.

1. Not supported by the weight of the evidence.

2. Accepted in 64-60.

3. Not supported by the weight of the evidence. See 54-63. 23. See 54-63.

24. Accepted in 64. 25. See 65-72.

1. See 72.

2. Not supported by the weight of the evidence.

COPIES FURNISHED:

William C. Haldin, Jr., Esquire Richard, Blinn & Haldin, P.A.

808 S.E. Fort King Street Ocala, Florida 34471

Mark Herdman, Esquire Herdman & Skellarides, P.A.

34650 U.S. 19 North, Suite 308 Palm Harbor, Florida 34684

Frank T. Brogan Commissioner of Education The Capitol

Tallahassee, Florida 32399-0400

John Smith, Superintendent Marion County School Board Post Office Box 670

Ocala, Florida 34470

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 94-004976

Orders for Case No: 94-004976