STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF SEMINOLE ) COUNTY, FLORIDA, )

)

Petitioner, )

vs. ) CASE NO. 92-1353

)

RICHARD P. ROST, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing in the above-styled matter was held on May 28 and 29, 1992, in Sanford, Florida, before Joyous D. Parrish, a designated Hearing Officer of the Division of Administrative Hearings. The parties were represented at the hearing as follows:

APPEARANCES

For Petitioner: Ned N. Julian, Jr.

STENSTROM, McINTOSH, JULIAN, COLBERT, WHIGHAM & SIMMONS, P.A.

Post Office Box 4848

Sanford, Florida 32772-4848

For Respondent: Joseph A. Rosier

P.O. Box 95176

Lake Mary, Florida 32795 STATEMENT OF THE ISSUES

The central issue in this case is whether Respondent should be suspended or terminated from his employment with the Seminole County School Board.

PRELIMINARY STATEMENT

This case began on January 27, 1992, when the acting superintendent for the Seminole County School Board (Board) issued a letter to Respondent advising him that he was being suspended from his employment with the Board. The notice further advised Respondent that a recommendation would be made to the Board to terminate Respondent's employment effective February 25, 1992. The grounds for the proposed action was Respondent's alleged misconduct in office. More specifically, Respondent was charged with having improperly placed students in certain classes for the October, 1991 FTE survey period.

Respondent filed a request for an administrative hearing, denied any misconduct, and demanded reinstatement with backpay for the period of time suspended. The case was forwarded to the Division of Administrative Hearings for formal proceedings on February 28, 1992.

At the hearing, the Board presented the testimony of the following witnesses: Nancy Wheeler, the business agent and executive director for the Seminole Education Association; Mary Chambers, former assistant superintendent for business and finance, Seminole County Schools; Dr. Marion Dailey, assistant superintendent for instruction, Seminole County Schools; Rashmikant Khatri, an employee with the Seminole County Schools' budget/FTE office responsible for preparing the budget and conducting the FTE surveys; John Reichert, director of personnel for the Board; Joan Schalls, guidance counselor at Rock Lake Middle School; Annette Bisigni, an executive secretary employed at Rock Lake Middle School responsible for the FTE clerk duties; Randy Walker, a physical education teacher at Rock Lake Middle School; Marshall Ellis Hinson, a physical education teacher at Rock Lake Middle School; Robert John Deyling, the in-school suspension teacher at Rock Lake Middle School for the 1991-1992 school year; Charles C. Thorne, the at-risk/dropout prevention tutorial program teacher at Rock Lake Middle School; James Dawson, coordinator of the dropout prevention program for the Board; and the Respondent. The Petitioner's exhibits numbered 1 through 31 were admitted into evidence.

Respondent testified in his own behalf and offered the testimony of Bruce Bowman, assistant principal at Rock Lake Middle School. Respondent's exhibits numbered 1 through 7 were admitted into evidence.

Portions of the deposition testimony of the Respondent, filed on May 29, 1992, were accepted into evidence, and, by reference, published and made a part of the record. Those portions are as follows: page 2/line 8 through page 2/line 22; page 9/line 16 through page 10/line 13; page 10/line 25 through page 11/line 17; page 18/line 12 through page 21/line 1; page 21/line 6 through page 22/line 17; page 23/line 1 through page 23/line 8; page 23/line 20 through page 24/line 5; page 24/line 23 through page 38/line 19; page 40/line 4 through page 41/line 2; page 44/line 5 through page 45/line 16; page 50/line 15 through page 52/line 8; page 58/line 17 through page 62/line 12; and page 65/line 15 through page 65/line 18.

The transcript of the proceeding was filed with the Division of Administrative Hearings on September 8, 1992. The parties requested, and were granted leave, until October 10, 1992, to file their proposed recommended orders. Specific rulings on the proposed findings of fact are included in the attached appendix.

FINDINGS OF FACT

Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made:

1. At all times material to the allegations of this case, Respondent, Richard P. Rost, was employed by the Board as the principal at Rock Lake Middle School.

   
   

2. During the week of October 7 through 11, 1991, the Seminole County School District was to perform an FTE survey in accordance with state-mandated guidelines. The purpose of the survey was to perform a head count of the students enrolled in the public school system and to designate an FTE value according to the type of student. The results of the survey were utilized by the state to appropriately distribute funding among the school districts.

   
   

3. Students enrolled in special classes receive a higher weighted FTE than those enrolled in regular classes. Teachers are required to execute rolls and

   to certify the names of the students enrolled in their classes for each period of the surveyed school day.

   
   

4. The pertinent survey date for Rock Lake Middle School (Rock Lake) was October 11, 1991. On that date teachers at Rock Lake filled out FTE forms that listed the students enrolled in their classes for each period of the school day.

   
   

5. On the morning of October 11, 1991, Respondent administratively reassigned thirteen students from their regular class assignments to the in- school suspension program at Rock Lake. None of the students so assigned met the criteria for placement into the in-school suspension program.

   
   

6. Respondent placed the students into the in-school suspension program so that when the FTE survey was performed, the records would show that thirteen students were enrolled in that section. The FTE weight for a student enrolled in an in-school suspension program is greater than the FTE weight for physical education.

   
   

7. Several of the students assigned to the in-school suspension program on October 11, 1991, were pulled from their regular physical education classes.

   
   

8. Respondent has admitted that he made the class changes on the survey date but maintains he was authorized to do so since the students would receive an educational benefit from the placement, and since the placement might be considered a resource period for the students. Further, Respondent maintains that Willie Holt, the director of middle school education, had indicated that it was mandatory for Rock Lake to have fifteen students in its tutorial program and thirteen students in the dropout prevention program.

   
   

9. In order to be placed in the in-school suspension program, a student must have a referral for misconduct that would normally warrant an out-of-school suspension. Additionally, upon completion of the referral form, the student and his parents must complete an in-school suspension contract acknowledging and accepting the placement. No paperwork was completed for the students administratively assigned by Respondent on October 11, 1991.

   
   

10. Because students were erroneously placed in the in-school suspension program, they were surveyed based upon the FTE weighted rate of 1.707. Accordingly, unless caught by the state through an audit, or voluntarily disclosed through an amended FTE report, Seminole County Schools would receive a higher level of funding than it was entitled.

    
    

11. While Respondent could not personally gain from the FTE report and increased funding, his actions placed the Board in a position of liability for the improper survey results.

    
    

12. More critical to this case, however, is the fact that Respondent has never conceded that he made a mistake in placing the students in the in-school suspension program.

    
    

13. Respondent directed his staff to respond to the inquiries about the placements even though he knew, or should have known, that the students placed in the in-school suspension program did not meet the criteria for same. Specifically, Ms. Schalls, the guidance director, wrote a letter explaining the assignments for Respondent's signature as a result of the inquiries related to the placements.

14. Because Respondent directed him to accept the students into the class, Mr. Deyling, the in-school suspension teacher, incorrectly completed the FTE forms on the survey date.

    
    

15. Because Respondent directed her to pull students from classes to send them to the in-school suspension class, Ms. Shalls, the guidance department director, executed passes for the thirteen students. To her credit, when questioned regarding the appropriate paperwork to support the assignment, Ms. Shalls would not complete the forms. The guidance staff had never, prior to this incident, placed students in the in-school suspension class.

    
    

16. Respondent did not direct any school personnel to falsify school records.

    
    

17. There was no drop out prevention program in effect at Rock Lake on October 11, 1991, which would have allowed Respondent to administratively assign the students to in-school suspension.

    
    

18. The Respondent disregarded the rights of students by placing them in the in-school suspension class when he knew they did not meet the criteria for that placement.

    
    

19. The Respondent failed to exercise good judgment in placing the students in the in-school suspension class when he knew they did not meet the criteria for that placement.

    
    

20. The Respondent's effectiveness has been seriously impaired by the acts described above. Such acts constitute misconduct.

    
    

    CONCLUSIONS OF LAW

    
    

21. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

    
    

22. Section 231.36(4)(c), Florida Statutes, provides, in part:

    
    

    Any member of the district administrative or supervisory staff and any member of the instructional staff, including any principal, 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 office, incompetency, gross insubordination, willful neglect of duty, drunkenness, or conviction of a crime involving moral turpitude.

    
    

23. The Board has established, by clear and convincing evidence, that the Respondent acted inappropriately in connection with the FTE survey performed at Rock Lake on October 11, 1991. Respondent disregarded the rights of students, caused at least one teacher to execute a false FTE report, and compromised his staff by directing them to assist with the placement of the students in the in- school suspension program. Such acts constitute misconduct.

    
    

24. Further, when confronted with the foregoing, Respondent consistently failed to acknowledge the inappropriateness of his actions. In light of such

failure, Respondent's ability to perform the duties required of a principal must be questioned.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

That the School Board of Seminole County, Florida enter a final order finding the Respondent guilty of misconduct in office and terminating his employment as a principal at Rock Lake.

DONE and ENTERED this 17th day of November, 1992, in Tallahassee, Leon County, Florida.

JOYOUS D. PARRISH

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32301

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this 17th day of November, 1992.

APPENDIX TO CASE NO. 92-1353

RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER:

1. Paragraphs 1 through 10, 12 through 17, 20, 22, 23, 25, 27, 28, 30 through 33, 35, 40, 41, and 44 are accepted.

2. Paragraph 11 is accepted but is irrelevant.

3. Paragraph 18 is rejected as contrary to the weight of the evidence.

4. The first sentence of paragraph 19 is accepted; the remainder is rejected as contrary to the record. Rost maintained he had the authority to make the placements complained of; in truth, he knew or should have known such placements were inappropriate.

5. Paragraph 21 is rejected as argument.

6. Paragraph 24 is rejected as irrelevant.

7. Paragraph 26 is rejected as hearsay or irrelevant.

8. Paragraph 29 is rejected as argument.

9. With regard to paragraphs 34, 36, and 37, it is accepted that Respondent placed the students in the program inappropriately; otherwise rejected as repetitive, unnecessary or irrelevant.

10. Paragraphs 38 and 39 are rejected as contrary to the weight of the evidence. Respondent requested that an explanation be drafted, he did not request any employee to falsify records or misrepresent what had occurred.

11. Paragraphs 42 and 43 are rejected as contrary to the weight of the- evidence in that Respondent did not direct employees to violate the law. He directed the guidance team to choose students who might benefit from the decisions film to be placed in the class. That such action constituted error is based upon Respondent's indifference to the criteria for in school suspension and his goal of achieving a number in that program for FTE purposes.

12. With the addition of the phrase "or should have known" after the word "knew" paragraph 45 is accepted.

RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT:

1. Paragraphs 1, 24, 25, 41, 70, 71, 74, and 80 are accepted.

2. Paragraphs 2 through 10 are rejected as argument, contrary to the weight of credible evidence, or irrelevant.

3. With regard to paragraph 11, it is accepted that Respondent would not financially gain personally from the FTE survey; however, that he would seek to file a false survey suggests that he perceived some benefit from doing so. Otherwise, when questioned initially about the matter he would have confessed error and acted to correct the problem.

4. Paragraphs 12 and 13 are rejected as contrary to the weight of the credible evidence except as to the statement that Mr. Evans was absent on the survey date.

5. Paragraph 14 is rejected as recitation of testimony not accepted as an ultimate fact of this case.

6. Paragraphs 15 through 18 are rejected as contrary to the weight of the evidence.

7. Paragraphs 19 through 23 are accepted only to the extent that they suggest Respondent did not direct employees to after-the-fact fabricate records to justify the placement of the students; otherwise, rejected as recitation of testimony, irrelevant, argument or contrary to the weight of the credible evidence.

8. Paragraphs 26 through 38 are rejected as irrelevant, contrary to the weight of credible evidence, repetitive, or argument.

9. The first sentence of paragraph 39 is accepted; otherwise rejected as irrelevant or recitation of testimony.

10. Paragraphs 42 through 69 are rejected as irrelevant, recitation of testimony not accepted as ultimate fact, contrary to the weight of credible evidence, argument, or unnecessary to the resolution of the issues of this case. Respondent had, prior to the incident complained of, enjoyed a good reputation in the school community and Rock Lake had had no major problems. Had Respondent acted differently in this instance, these proceedings would not have been required as his judgment would not have been made suspect.

11. Paragraphs 72 and 73 are rejected as contrary to the weight of credible evidence.

12. Paragraphs 75 through 79 are rejected as contrary to the weight of credible evidence or irrelevant.

13. Paragraphs 81 through 90 are rejected as contrary to the weight of the credible evidence or argument.

COPIES FURNISHED TO:

Ned N. Julian, Jr. STENSTROM, McINTOSH, JULIAN,

COLBERT, WHIGHAM & SIMMONS, P.A.

Post Office Box 4848 Sanford, Florida 32772-4848

Joseph A. Rosier

P.O. Box 95017

Lake Mary, Florida 32795

Dr. Paul Hagerty Superintendent of Schools Seminole County School Board 1211 Mellonville Avenue

Sanford, Florida 32771

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.

=================================================================

AGENCY FINAL ORDER

================================================================= BEFORE THE SCHOOL BOARD OF SEMINOLE COUNTY, FLORIDA

THE SCHOOL BOARD OF SEMINOLE COUNTY, FLORIDA,

Petitioner,

1. DOAH CASE NO. 92-1353

   
   

   RICHARD ROST,

   
   

   Respondent.

   /

   
   

   FINAL AGENCY ORDER

   
   

   This matter coming on for hearing before The School Board of Seminole County, Florida in regular session on January 26, 1993 on the issue of the entry of final agency order and the tribunal having considered the record and

   stipulation entered into by and between Dr. Paul J. Hagerty, Superintendent, and respondent, Richard Rost, and being otherwise fully advised in the matter hereby orders as follows:

   
   

   1. That the stipulation entered into by and between Dr. Paul J. Hagerty, Superintendent, and respondent, Richard Rost, having been executed by the respondent and his counsel of record is hereby ratified, approved and adopted in haec verba by reference as the final agency order.

      
      

   2. That the hearing officer's recommended order is rendered moot by the decision of this tribunal to adopt the above identified and referenced stipulation as the final order of the agency.

      
      

   3. That the hearing for the purpose of considering the hearing officer's recommended order as scheduled for January 28, 1993 is hereby canceled.

Dated at Sanford, Florida on February 1, 1993.

JEANNE MORRIS, CHAIRMAN

COPIES FURNISHED:

Ned N. Julian, Jr., Esquire Attorney for the School Board

Joseph Rosier, Esquire Attorney for the Respondent

Sharyn Smith, Director

Division of Administrative Hearings

IF ANY PARTY DESIRES TO APPEAL THIS FINAL AGENCY ORDER, THEY MAY DO SO PURSUANT TO THE PROVISIONS OF S. 120.68, FLORIDA STATUTES, BY FILING A NOTICE OF APPEAL IN THE MATTER PROVIDED BY FLA. R. APP. P. 1.910 WITH JOAN WALKER, AGENCY CLERK, THE SCHOOL BOARD OF SEMINOLE COUNTY, FLORIDA, 1211 MELLONVILLE AVENUE, SANFORD, FLORIDA 32771 ON OR BEFORE 30 DAYS FROM THE DATE OF THE FILING OF THIS ORDER WITH AGENCY CLERK WHICH IS THE DATE OF ENTRY.

Docket for Case No: 92-001353

Orders for Case No: 92-001353