STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF PALM BEACH ) COUNTY, FLORIDA, and THOMAS )

1. MILLS, Superintendent of ) Schools, )

   Petitioner, )

   )

   vs. ) CASE NO. 90-1140

   )

   DR. JAMES McCABE, )

   )

   Respondent. )

   )

   
   

   RECOMMENDED ORDER

   
   

   Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Jane C. Hayman, held a formal hearing in the above- styled case on May 8, 1990, in West Palm Beach, Florida.

   
   

   APPEARANCES

   
   

   For Petitioner: Hazel L. Lucas, Esquire

   School Board of Palm Beach County, Florida

   Suite 7010

   3970 RCA Boulevard

   Palm Beach Gardens, Florida 33410

   
   

   For Respondent: Gary A. Chernay, Esquire

   Weissman and Chernay, P.A. Suite 1000

   250 Australian Avenue, South West Palm Beach, Florida 33401

   
   

   STATEMENT OF THE ISSUES

   
   

   The issues presented for determination are the following:

   
   

   1. Whether Respondent has violated rules of the School Board of Palm Beach County so as to constitute misconduct in office.

      
      

   2. If Respondent has committed misconduct in office, what penalty is to be imposed, including whether Respondent is entitled to back pay and in what amount.

PRELIMINARY STATEMENT

This case began when on January 12, 1990, Respondent was suspended with pay from his position as Assistant Principal with Petitioner. The allegations supporting the suspension arose from Respondent's search of certain students at

a Crestwood Community Middle School which allegedly constituted violation of school board rule and misconduct in office. On January 19, 1990, Respondent requested an administrative hearing on the charges. Then, at Petitioner's meeting on January 24, 1990, the Superintendent recommended to the School Board that Respondent be suspended without pay and to terminate his employment. The School Board accepted the Superintendent's recommendation effective on the same date. On February 20, 1990, Petitioner forwarded to the Division of Administrative Hearings a Petition for Dismissal of Respondent, the request for an administrative hearing by Respondent and asked that a Hearing Officer be appointed to conduct a formal hearing pursuant to Section 120.57(1).

On Petitioner's motion and pursuant to Order dated April 6, 1990, the Petition was amended, and pursuant to Order dated April 6, 1990, the parties entered into a prehearing stipulation. The prehearing stipulation contains facts not in dispute. To the extent the stipulated facts are relevant they have been incorporated into the Findings of Fact section below.

At the hearing Petitioner presented the testimony of six witnesses and offered one exhibit which was received into evidence. At Petitioner's request, official recognition was taken of Rules 6B-4.009, 6B-1.001, 6B-1.002, 6B-1.004 and 6B- 1.006, Florida Administrative Code. Respondent presented the testimony of seven witnesses and offered two exhibits which were received into evidence.

At the conclusion of the hearing, Petitioner represented that a transcript of the hearing would not be ordered. However, by motion filed May 11, 1990, Petitioner requested an extension of time for filing of proposed recommended orders since it intended to order a transcript of the proceeding. After a telephonic hearing on the motion, the motion was granted and proposed recommended orders were due within ten days from the filing of the transcript. The transcript of the proceeding was filed on May 25, 1990. Petitioner timely filed proposed recommended order. A ruling on each proposed finding of fact has been made and is reflected in the appendix to this recommended order.

Respondent filed a proposed recommended order. Although the filing was untimely, a ruling has been made on each proposed finding of fact also and is found in the appendix to this recommended order.

FINDINGS OF FACT

1. At all times material hereto, Respondent, Dr. James McCabe, was employed by Petitioner, Palm Beach County School Board, as the Assistant Principal for Student Services in charge of special education at Crestwood Community Middle School. In this capacity, Respondent's duties include the supervision of the students and teachers in special education. He is responsible for parent contact and involvement in addition to student discipline. He manages the dropout prevention and honors program.

   Additionally, he has other administrative duties which relate to the migrant and alternative education programs. Although he is primarily assigned to the special education program, he assists in other areas such as school-wide discipline.

   
   

2. On December 14, 1989, in the early afternoon, Respondent was called to Mr. Mundt's shop class with Mrs. Satchel, another Assistant Principal for Student Services, by the school's walkie-talkies. Responden1t was informed by Mr. Mundt, the shop teacher, that a baseball card worth in excess of $50 was missing. The baseball card had been displayed in the same class during the beginning of the period. The period was split by a lunch break. It was after the students returned from lunch that Respondent and Ms. Satchel were called to investigate its loss.

3. The parties stipulated that, "Presumably, it [the card] had been taken by someone in the class." According to Respondent, the card was owned by a student with cerebral palsy. The student was limited physically and could not participate in sports at the school. He collected baseball cards as his sport.

   
   

4. When they arrived, Respondent took charge of the male students while Ms. Satchel assumed the responsibility for the female students, as the logical separation of duties. Respondent asked the boys to go to one side of the room and told them that he would like the baseball card to appear on the table. He told them he would turn his back to them, and that if the baseball card appeared, that would be the end of it. Respondent then turned his back, and the baseball card did not appear. Prior to this incident, thefts of other valuable merchandise had occurred around the area of the shop class. A wallet was stolen from a teacher's car which was parked immediately outside the shop class just a week prior to the incident at issue. Respondent did not think that a particular student had stolen the card. Instead, he reasonably suspected that someone in the group had taken it.

   
   

5. The period was coming to an end and another class was due in the room. Respondent did not attempt a lesser method of searching the boys for the baseball card, nor was a lesser method of searching the boys proven at the hearing. Instead, Respondent, in accordance with the procedure at Crestwood, instructed the boys to all go down to the clinic which is not within the immediate vicinity of the shop class where they were temporarily detained. He chose to remove the boys from the classroom because he did not want to subject them to the confusion from the incoming class or to any unnecessary embarrassment which might be caused by questioning them in front of it. He also wished to protect the learning environment for the incoming students.

   
   

6. The clinic is a three room complex. To avoid unnecessary embarrassment of the students, Respondent took one student at a time into one of the outer rooms of the complex. He then asked the student to remove his shirt. He felt the shirt and handed it back to the student. He then requested their shoes and socks and handed those back after searching them. He then asked for the students outer pants. He did not request that any student remove his undergarments; their underpants and undershirts or T-shirts, if any, remained on.

   
   

7. As Respondent completed his check of each piece of clothing, he handed the article back to the student. If the student was slow in completing his dressing, he then asked that student to finish dressing in the back of the room. At times, while the slow student was completing his dressing, the next student was asked to come in and commence the disrobing procedures. At times, more than one student was in the room. One was tying his shoes while the other was handing his shirt to Respondent.

   
   

8. Respondent believed that he had the right to search the students to the extent necessary after having received instruction to that effect from school security and after having read the school board rule on detention, search and seizure. He apologized to the group for having to perform the search in this manner which was necessary under the circumstances.

   
   

9. According to Respondent, sometime during the search, a couple of boys came into the room and asserted that one of the boys, who had not been searched at the time, had the card. The boys suggested that Respondent search just this one student and stop the search of each student. In reply, Respondent said, "I

   don't want to embarrass him anymore than anybody else. I really don't want to put any suspicion on him. Let's just take him in the normal course of events, when his turn comes up," and continued the search of each student in his charge. Each student cooperated with Respondent. Out of the twelve or thirteen students involved, only one student objected to the search procedure. In response to the objection, Respondent gave the student the opportunity to call the school security or to call his mother and ask her to come to the school. The student chose neither option and participated in the search.

   
   

10. As Respondent reached the last student, Mr. Hagan, the principal at Crestwood, came into the room and asked Respondent to step outside. He told Respondent that he did not see how the school could benefit from the search and told him to stop the search. The baseball card had not been located at that point. Respondent stopped immediately. If Mr. Hagan believes that a teacher or administrator is not effective at his school, there is a procedure for asking that teacher or person to be removed from the staff. Mr. Hagan chose not to commence the procedure in this instance.

    
    

11. Prior to this incident, searches of students occurred at Crestwood, but no search had involved the removal of the students clothes. The guidelines for detention, search and seizure of students in the Palm Beach County School District is contained in Palm Beach County School Board Rule 5.18(5). The rule authorizes school personnel, such as Respondent, to temporarily detain students for questioning, upon reasonable indication of wrongdoing, and to search, to the extent necessary, students upon reasonable suspicion of illegal activity. The rule, however, does not establish the permissibility or impermissibility of any specific search procedure, i.e., pat down, strip search or other means of locating the missing items. Although the School Board gives periodic seminars, and Respondent has attended every seminar at which his attendance was required, no seminar has given specific instruction on the procedures to be used when searching students. Respondent had read the rule on detention, search and seizure prior to the December 14 incident.

    
    

12. Also, prior to the incident, Respondent had requested the advice of the school security director assigned to Crestwood, Mr. Willie Noland, about his right to search and has discussed procedure relating to specific incidents with Mr. Noland. From Mr. Noland, Respondent was assured that he had the right to search students. One incident, in particular, on which Respondent sought Mr. Noland's advice involved a student who allegedly had threatened another student with a knife. Respondent was asked to look into the threat fifteen minutes prior to the end of the school day. When Respondent asked the student if he had a knife, he voluntarily emptied his pockets. Respondent did not ask him to remove his clothes. Unfortunately, the student did have a knife lodged in the mid-seam of his trousers. After that incident, Mr. Noland advised Respondent that students do not hide things in their pockets. Instead, Mr. Noland recommended checking down in the student's waistbands and in their shoes and socks for the missing items.

    
    

13. Mr. Hagan had also informed the school personnel not to be alone with students and to avoid situations which could be embarrassing. His purpose in giving the admonition was to avoid the potential for child abuse allegations. It was with the direction given by Mr. Noland and Mr. Hagan, combined with

    Respondent's understanding of the governing rules, that he undertook the type of search he performed. With reasonable concern that he might be subjecting himself to a potential child abuse allegation and in a diligent attempt to

    locate the missing baseball card, Respondent chose to ask the students to remove their clothes, rather than search the clothes while on their bodies. Under the circumstances, the search procedure was necessary and reasonable.

    
    

14. After the December 14 incident, Respondent, as was his usual behavior, cooperated completely with the directives of his superiors. He voluntarily completed an incident report in which he related the facts surrounding the search. An investigation into the incident by the School Board was performed, and a report from the investigation was given to the Superintendent of the Palm Beach County School District. Without performing a personal investigation, talking with Respondent or with Respondent's coworkers about the incident, the Superintendent suspended Respondent and recommended to the School Board that Respondent be suspended without pay and terminated. The Superintendent based his recommendation on his belief that Respondent's conduct violated the school board rule and the Code of Ethics and Principles of Professional Conduct for educators in Florida to the extent that his effectiveness in the school system was impaired. The School Board accepted Respondent's recommendation and this proceeding ensued.

    
    

15. At the time of the incident, Crestwood had four assistant principals in addition to Respondent. At the hearing, three of the four, each of whom had worked with Respondent, had observed Respondent and had shared responsibilities with him, unanimously agreed that his performance in the school system up to the time of the incident was effective and each agreed that they would not object to his return to the school. The fourth was not asked the questions at the hearing. Also, approximately eighty signatures appear on a petition in support of Respondent's effectiveness from the faculty and staff of Crestwood to Petitioner dated January 17, 1990.

l6. Since 1964, except for a brief period, Respondent has been involved in education and primarily working with, teaching about or studying exceptional students. His tenure in the Palm Beach County School District began as Director of Special Education in September 1, 1981 where he was assigned until June 30, 1983. From August 1983 to June 1986, Respondent served in the capacity of a Specialist in Education. In July, 1986, Respondent was appointed as an Assistant Principal at Gove Elementary School. At the request of Mr. Hagan, Respondent was transferred to the Crestwood Community Middle School in January, 1987 and has served in his present capacity since then. While employed as an assistant principal, Respondent has received nothing but outstanding evaluations. Respondent holds a regular instructional certificate in the area of administration and supervision.

1. Respondent is a credible individual, and an experienced educator who has the interest of his students as his main concern. At no time during the incident in question, did Respondent intend to embarrass or disparage any of the students. Instead, in his best professional judgment, under the circumstances, he attempted to protect the students from unnecessary embarrassment and made reasonable efforts to protect the learning environment of all the affected students.

   
   

   CONCLUSIONS OF LAW

   
   

2. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings. Section 120.57(1), Florida Statutes.

3. Petitioner bears the burden of showing, by a preponderance of the evidence, that Respondent committed the actions for which he faces suspension and termination from his employment. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

   
   

4. Section 231.36(1)(a) Florida Statutes, establishes that instructional personnel, such as Respondent, may be dismissed during the term of their contract only for just cause. Just cause is defined therein to include misconduct in office.

   
   

5. Respondent has been charged with violation of school board rule, in particular, Palm Beach County School Board Ruley 5.18(5) on student detention, search and seizure, so as to constitute misconduct in office.

   
   

6. Misconduct in office is defined in Rule 6B- 4.009(3), Florida Administrative Code, as a violation of the Code of Ethics of the Education Profession in Florida as adopted in Rule 6B-1.001, Florida Administrative Code (the "Code of Ethics) and the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule 6B-1.006, Florida Administrative Code (the "principles of Professional Conduct"), which is so serious as to impair the individual's effectiveness in the school system.

   
   

7. Palm Beach County School Board rule 5.18(5)(the "School Board Policy") sets out the circumstances under which a student may be searched by certain school personnel such as Respondent.

   
   

8. Initially, paragraph (a) of the School Board Policy addresses the grounds and circumstances for the detention of a suspect student prior to the commencement of a search. The rule authorizes the appropriate school personnel to "temporarily detain" a student for questioning if the circumstances "reasonably indicate" that the student has coinmitted a violation of law. The detention "shall not extend beyond the place where it was first effected, or the immediate vicinity thereof." The detention of the students, in this instance, is questioned by Petitioner only through its allegation that Respondent removed the students from the "immediate vicinity" to conduct the search. The stipulated facts of record in this matter indicate that the clinic was not in the immediate vicinity of the shop class. However, the procedure at Crestwood is, contrary to the School Board Policy, to take a student to the administrative office area, which includes the clinic, for detention, questioning and search, thus removing the student from the classroom and preventing the disturbance which may result from such activity occurring in the classroom itself. Here, the proof demonstrated that Respondent's action was in accordance with the accepted procedure at Crestwood. Although Respondent's actions complied with his school's procedure, they were contrary to, and in technical violation of, the School Board Policy.

   
   

9. Additionally, Petitioner argued that Respondent violated the subject rule because he did not have "reasonable suspicion" that any particular student had stolen the baseball card as required by paragraph (b) of the rule. Paragraph (b) of the School Board Policy states, in relevant part, the following:

   
   

   If, at any time after the onset of the temporary detention, reasonable suspicion arises that the detained student ... has ... stolen or has illegal property on the student's

   person, ... a member of the instructional staff may search the temporarily detained student ... only to the extent necessary to disclose, and

   for the purpose of disclosing, the presence of stolen or illegal property.

   
   

   The evidence established that reasonable suspicion did exist for a search.

   Prior to the incident in question, other property had been stolen in close proximity to the same shop class which was searched. In addition, thefts at the school were not infrequent. These facts are enhanced by the parties' stipulation that, "Presumably, it [the baseball card] had been taken by someone in the class." From the combination of these facts, it was reasonable for Respondent to suspect that someone in the class had taken the baseball card, and the proof demonstrated that reasonable suspicion to search the detained students existed. Petitioner's argument, that reasonable suspicion to search arises only if one particular student is suspected, is not supported by a reasonable reading of the rule.

   
   

10. More troublesome, however, is whether reasonable suspicion to search all of the detained students survived after the allegation had been made that one particular student had the card. In hindsight, the best professional judgment in that circumstances, arguably, would have been to stop the search of each student and search just the one student. However, Respondent was bound at the time of the search by not only the reasonable suspicion requirement of the School Board Policy, but also by the Code of Ethics and the principles of Professional Conduct. As discussed in the following paragraphs, the Principles of Professional Conduct require that Respondent not intentionally expose a student to unnecessary embarrassment. The students making the allegation did not testify at the hearing and the credibility of their statements could not be judged. The proof failed to demonstrate that Respondent had any reason to suspect the accused student over the other students. Instead, Respondent was placed in the positions of having to balance the unproven allegations of the students against his responsibility to not intentionally cause unnecessary embarrassment of the accused student. On balance, the evidence demonstates that Respondent's action under the circumstances was not unreasonable and that the reasonable suspicion to search the entire group was not defeated after the allegations that one particular student had the card were made.

    
    

11. Petitioner also alleged that the search procedure itself exceeded that "necessary to disclose the presence of the stolen property." The facts, as stipulated by the parties, support that after Respondent turned his back and asked the students to anonymously place the card on the table, he did not attempt a less intrusive means of searching for the card before he asked the students to surrender their clothes to him that he could individually search each parcel. However, the proof failed to demonstrate the existence of a less intrusive means of searching, if any. Assuming arguendo that a search of the student's pockets would be a less intrusive means of search than the one performed, Respondent had been instructed by Mr. Noland, an expert on search procedure, that a search of the pockets was fruitless. He told Respondent that student's did not hide items in their pockets. Instead, the better place to locate missing articles was in the waistband of the clothing or in the shoes and socks. Also, the proof demonstrated that the faculty had been cautioned about the possibility of allegations of child abuse. It was with this knowledge that Respondent undertook the search procedure he used in this instance.

    Respondent's search procedure, under the circumstances, was necessary.

12. Thus, although Respondent's search procedure was necessary under the circumstances and reasonable suspicion did exist to undertake a search of the magnitude of the one performed, the proof failed to demonstrate that the search did occur in the immediate vicinity of the detention. Accordingly, Respondent committed a technical violation of the Palm Beach County School Board Rule 5.18(5). 1/

    
    

13. Whether the violation constitutes misconduct in office is the ultimate question here. To demonstrate proof of misconduct in office, Petitioner must show three elements: violation of The Code of Ethics, violation of the Principles of Professional Conduct and that these violations were so serious as impair Respondent's effectiveness in the school system. To support his recommendation that Respondent committed misconduct in office, the Superintendent alleged at the hearing that Respondent had violated the Code of Ethics and paragraphs 3(a), (e)(f) and (g) of Rule 6B-1.006 which constitutes the Principles of Professional Conduct.

    
    

14. Paragraph 3(a) of Rule 6B-1.006 reads as follows:

    
    

    1. Obligation to the student requires that the individual:

       1. Shall make reasonable effort to protect the student from conditions

          harmful to learning or to health or safety.

          
          

          The proof was silent as to any condition which, a result of the search, was harmful to the learning or health or safety of the students searched. To the contrary, Respondent's action when he removed the students from the classroom was, in fact, a reasonable effort to protect the students from the harm contemplated by the rule.

          
          

15. Paragraph (e) of Rule 6B-1.006 reads as follows:

    
    

    1. Obligation to the student requires that the individual:

       Shall not intentionally expose a student to unnecessary embarrassment or disparagement.

       
       

       To demonstrate a violation of paragraph (e), Petitioner must show that the students were (1) embarrassed or disparaged by the search, (2) the embarrassment or disparagement was unnecessary and (3) that the action which created the unnecessary embarrassment or disparagement was intentional. By asking the students to remove their clothes in his presence in addition to the occasional presence of another student, Respondent may have placed the students in an embarrassing situation, as Petitioner argues. However, the proof failed to demonstrate whether any of the students were unnecessarily embarrassed.' One student expressed concern over the search. However, the reason for that student's objection was not proven. Furthermore, the embarrassment or disparagement, if any, was necessary under the circumstances. Respondent had requested the students to voluntarily produce the card. He asked to students to remove one article of clothing at a time, then searched the one item and returned it to the student. He made reasonable attempts to prevent the exposure of one student to another during the search procedure. Overriding this, Petitioner had no intent of embarrassing or disparaging the students by his actions. Instead, it was his intent to lessen any anguish on their parts by

       taking them away from the classroom and by searching them on an individual basis, albeit some students were briefly exposed to the presence of another during the search.

       
       

16. Paragraph (f) of Rule 6B-1.006 reads, in pertinent part as follows:

    
    

    1. Obligation to the student requires that the individual:

       1. Shall not intentionally violate or deny a student's legal rights.

          
          

          Essential to proof of this allegation is a demonstration that Respondent intended to abrogate the students legal rights. Petitioner failed not only to prove, but allege, any specific right which Respondent's action may have violated. Beyond that, however, the proof failed to demonstrate that Respondent manifested the necessary intent to withhold anything from the students.

          Respondent's actions, on the other hand, were proven to be directed toward protecting the students from harm and embarrassment. Accordingly, the evidence does not support the allegation that Respondent intentionally abridged the students' legal rights.

          
          

17. Paragraph (g) of Rule 6B-1.006 reads, in pertinent part, as follows:

    
    

    1. Obligation to the student requires that the individual:

       1. Shall not on the basis ... sex

       ... exclude a student from participation in a program; deny a student benefits;

       or grant a student advantages.

       
       

       In support of its proposition that paragraph (g) was violated, the Superintendent testified that Respondent chose only the male students to search to the exclusion of the female students in the class. However, the evidence established that another assistant principal assumed the responsibility of the search of the female students. Since Respondent was not responsible for the female students, Petitioner's argument that he segregated only the male students for the search fails, as does the alleged violation of paragraph (g).

       
       

18. Also, inherent in the alleged commission of misconduct in office is proof of a violation of The Code of Ethics. The Code of Ethics provides that an educator's primary professional concern is always for the student and the development of the student's potential. Therefore, an educator must seek to exercise the best professional judgment and integrity, and strive to maintain the respect and confidence of students and parents through achieving and sustaining the highest degree of ethical conduct. Rule 6B-1.001(2)'and (3), Florida Administrative Code.

    
    

19. Respondent's ethical conduct was not questioned in this proceeding; however, his professional judgment is at issue. In the exercise of his professional judgment, Respondent was presented with the necessity of balancing the School Board Policy with the Principles of Professional Conduct. The evidence supported that the choice he made was in his best professional judgment under the circumstances.

20. Incidents may occur, and more likely than not do occur, when a search by the means and the magnitude of the one here is not necessary and the potential of harm or unnecessary embarrassment to the students may occur. Under the circumstances presented here, when supported by the facts proven at the hearing as applied to the law presented, the search procedure was necessary and was not performed to intentionally embarrass or disparage the students.

    
    

21. The final, and overriding, prong of the test which constitutes misconduct in office is Petitioner's proof, by a preponderance of the evidence, that Respondent's violation of the Code of Ethics and the Principles of Professional Conduct, if any, were so serious as to impair his effectiveness in the school system. The sole evidence presented that Respondent's effectiveness was impaired by his actions was the opinion of the Superintendent. However, the bases for the formation of the Superintendent's opinion rests on his belief that Respondent had violated the School Board Policy, the Code of Ethics and the portions of the Principles of Professional Conduct distinguished in the above paragraphs. Although the proof demonstrated that Respondent violated the School Board Policy, violation of the Principles of Professional Conduct or the Code of Ethics was not likewise proven. Accordingly, the Superintendent's testimony concerning Respondent's effectiveness is not, here, given the weight attributed to an expert opinion, Braddock v. school Board of Nassau County, 455 So.2d 394 (Fla. 1st DCA 1984).

    
    

22. To the contrary, competent substantial evidence was received which demonstrated that, in fact, Respondent's effectiveness in the school system had not been impaired by his actions on December 14, 1989. His principal and each of his coworkers, who were asked, testified at the hearing that, even considering Respondent's action, they would not object to his returning to work with them at the school. On balance, the proof failed to demonstrate that Respondent's effectiveness was impaired.

    
    

23. Accordingly, although Respondent violated the School Board Policy, he did not breach either the Code of Ethics or the Principles of Professional Conduct to the extent that his effectiveness within the school system was impaired. He did not commit misconduct in office. Accordingly, just cause does not exist to suspend or dismiss Respondent.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is:

RECOMMENDED that the School Board of Palm Beach County issue a Final Order reinstating Respondent with full back pay and benefits retroactive to January 24, 1990.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 13th day of June, 1990.

JANE C. HAYMAN

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 13th day of June, 1990.

ENDNOTE

1/ In her proposed recommend order, Petitioner's counsel stated in her first proposed finding of fact that, "petitioners' Policy 6Gx-3.27 delineates the grounds for suspension and dismissal of School Board employees and governs Petitioners' actions in this instance." Palm Beach County School Board Rule 6Gx-

3.27 was not offered or received into evidence at the hearing nor was a request made that the undersigned take official recognition of the rule. Accordingly, no determination as to the applicabi1ity of the rule to this proceeding has been considered or made.

APPENDIX TO RECOMMENDED ORDER, IN CASE NO. 90-1140

The following represents the Hearing Officer's rulings on the proposed findings of fact submitted by the parties. The rulings are listed by paragraph within the proposed findings of fact and indicate the paragraph in the findings of fact section of the attached recommended order which addresses the proposed finding of fact, if deemed appropriate.

PETITIONER

1. Rejected, in part, as not supported by competent substantial evidence; adopted, in part, in paragraph 11.

2. Adopted in paragraph 16.

3. Adopted in paragraphs 2-4.

4. Adopted in paragraphs 4-5.

5. Adopted, in part, paragraphs 6,

   11,12,12, and 2;rejected in part, as not supported by competent substantial evidence.

6. Adopted, in part, in paragraphs 7 and 13, in part; rejected as not supported by competent substantial evidence.

7. Adopted, in part in paragraph 9; rejected, in part, as immaterial.

8. Adopted, in part, in paragaph 10; rejected, in part, as not supported by competent substantial evidence.

9. Adopted, in part, in paragraph 4; rejected, in part, as not supported by competent substantial evidence and irrelevant.

10. Adopted, in part, in paragaph 11; rejected in part as not supported by competent substantial evidence.

11. Adopted, in part, in paragaphs 14; rejected, in part, as not supported by competent substantial evidence.

12. Adopted as subordinate to the findings of fact.

13. Adopted, in part, as subordinate to the finding of fact; rejected, in part, as not supported by competent substantial evidence.

14. Rejected as immaterial.

15. Adopted in paragraph 11.

16. Adopted, in part, in paragraph 12; in part, rejected as not supported by competent substantial evidence.

17. Adopted as subordinate to the findings of fact.

RESPONDENT

1. Adopted in paragraphs 2, 3, and 4.

2. Adopted in paragraphs 5, 6, 7, and 10.

3. Adopted, in part, in paragraph 9; rejected, in part, as uncorroborated hearsay.

4. Adopted in paragraph 10.

5. Adopted, in material part, in paragraph 10.

6. Adopted, in material part, in paragraph 14.

7. Adopted, in material part, in paragraph 13; rejected in part as a preliminary matter.

8. Adopted, in part, as subordinate to the findings of fact; rejected, in part, as immaterial.

9. Adopted, in part, in paragraph 12 and, in part, as subordinate to the findings of fact.

10. Adopted, in part, in paragraph 5 and 15 and, in part, as subordinate to the findings of fact; rejected, in part, as immaterial.

11. Adopted, in part, in paragraph 12 and, in part, as subordinate to the findings of fact.

12. Adopted, in part, in paragraph 13,

    16, 15 and, in part, as subordinate to the findings of fact; rejected, in part, as immaterial.

13. Adopted, in part, in paragraph 14 and, in part, subordinate to the findings of fact; rejected, in part,as immaterial.

14. Adopted, in part, in paragraph 15, in part, subordinate to the findings of fact; rejected, in part, as immaterial.

15. Adopted, in part, in paragraph 15, in part, subordinate to the findings of fact; rejected, in part, as immaterial.

16. Adopted, in part, in paragraph 15, in part, subordinate to the findings of fact.

17. Adopted, in part, in paragraph 15, in part, subordinate to the findings of fact.

18. Adopted, in part, in paragraph 15, in part, subordinate to the findings of fact.

19. Adopted, in parts in paragraph 15, in part, subordinate to the findings of fact.

20. Adopted, in part, in paragraphs 11, 4, 12, 2, 9 10, 14 and, in part, as subordinate to the findings of fact.

COPIES FURNISHED:

Hazel Lucas, Esquire

School Board of Palm Beach County Florida

3970 RCA Boulevard, Suite 7010 Palm Beach Gardens, Florida 33410

Gary A. Chernay, Esquire Weissman and Chernay, P.A.

250 Australian Avenue South, Suite 1000 West Palm Beach, Florida 33401

Thomas J. Mills Superintendent of Schools

School Board of Palm Beach County Florida

3970 RCA Boulevard, Suite 7010 Palm Beach Gardens, Florida 33410

Honorable Betty Castor Commissioner of Education The Capitol

Tallahassee, Florida 32399-0400

Docket for Case No: 90-001140

Orders for Case No: 90-001140