STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
BOBBIE D'ALLESSANDRO, )
Superintendent of Schools, )
)
Petitioner, )
)
vs. ) CASE NO. 96-0936
)
CHARLES DAILEY, )
)
Respondent. )
)
RECOMMENDED ORDER
Robert E. Meale, Hearing Officer of the Division of Administrative Hearings, conducted the final hearing in Fort Myers, Florida, on May 6-10 and 13-16, 1996.
APPEARANCES
For Petitioner: John M. Hament
Kunkel, Miller and Hament 1800 Second Street, Suite 882
Sarasota, Florida 34236
For Respondent: Harry A. Blair
Blair and Blair, P.A. 2138-40 Hoople Avenue
Fort Myers, Florida 33901 STATEMENT OF THE ISSUE
The issue is whether Petitioner may lawfully terminate Respondent as principal of the Alternative Learning Center.
PRELIMINARY STATEMENT
By Petition for Suspension Without Pay and Benefits Pending Termination of Employment dated February 20, 1996, Petitioner sought the termination of Respondent. On February 22, 1996, the Lee County School Board voted to suspend Respondent without pay.
The Petition alleges that there is just cause, including misconduct in office and incompetency, for termination of Respondent pursuant to Section 231.36, Florida Statutes.
The Petition alleges that Respondent was employed by the School Board since 1988, after July 1, 1995, as the principal of the Alternative Learning Center.
The Petition alleges that Petitioner suspended Respondent with pay on January 11, 1996.
Paragraph 18 of the Petition alleges that in 1995 Respondent administered corporal punishment in his office to student J. N.. Respondent allegedly failed to comply with School Board Policy 5.16 because he failed to document reasonable alternatives to corporal punishment, obtain written permission for corporal punishment from a parent at the beginning of the school year, and require the presence of a teacher or another administrator when administering corporal punishment. Petitioner alleged that this action also violated School Board Policy 2.26(B)(9) and Section 232.27, Florida Statutes, was inappropriate, and demonstrated bad judgment.
Paragraph 19 of the Petition alleges that in September or October 1995 Respondent administered corporal punishment to student O. B.. The Petition alleges that Respondent called O. B. a liar in the classroom, grabbed the child's neck, took O. B. to the office with Respondent's hand around the student's throat, whipped the child with a belt, and suspended him for five days. The Petition alleges that Respondent failed to call O. B.'s grandfather, who is the child's legal guardian, before administering the corporal punishment. Petitioner alleged that this omission and the same failures as those alleged in the previous paragraph constitute violations of School Board Policies 2.26(B)(9) and 5.16 and Section 232.27. Petitioner alleged that Respondent used bad judgment in imposing excessive punishment by whipping O.B. with a belt and suspending him, humiliating O.B. in front of his class by removing him from the classroom, and using unnecessary force in grabbing O. B. by the neck in the absence of resistance. In Paragraph 24 of the Petition, Petitioner alleged that Respondent's actions were unwarranted, cruel, and abusive, and disparaged the child in front of the class. Paragraph 30 of the Petition repeats the same allegations and alleges that Respondent's actions harassed and humiliated the student and demonstrated bad judgment.
Paragraph 20 of the Petition alleges that in the fall of 1995 Respondent forced three students caught smoking in the school parking lot to do 50 slow pushups in Respondent's office during a faculty meeting. The Petition alleges that Respondent slowed the count toward the end, "causing the students to suffer numb arms and sore muscles. [Respondent] endangered the children's physical well-being, and humiliated them since he made them perform this cruel exercise in front of their teachers during a faculty meeting."
Paragraph 21 of the Petition alleges that in November 1995 Respondent forced two students, B. W. and H. K., to do 50 pushups in his office. The Petition alleges that Respondent slowed the count "until their arms shook and their faces turned red." Petitioner alleged that such conduct "is excessive, abusive, and cruel punishment, and endangered the students' well being."
Paragraph 22 of the Petition alleges that in September or October 1995 Respondent dragged and pushed student C. L. down the hall and into his office, throwing the child into a chair. Petitioner alleged that Respondent's behavior was abusive and completely unwarranted and demonstrated an excessive use of force and endangered the child's health.
Paragraph 23 of the Petition alleges that in December 1995 Respondent choked student S. P. at least three times, making the child cry. Petitioner alleged that Respondent's conduct was inappropriate and abusive and physically endangered the child and constituted an unwarranted use of force.
Paragraph 25 of the Petition alleges that in November 1995 Respondent grabbed an unidentified, slightly built child and shook him by the neck while yelling at the child, who had been walking voluntarily to Respondent's office.
Petitioner alleged that Respondent physically endangered the child and acted in a cruel, unwarranted, excessive, abusive, and humiliating way toward the student in front of the student's teacher.
Paragraph 26 of the Petition alleges that in October or November 1995 Respondent grabbed, pushed, and shoved student D.C.. Petitioner alleged that Respondent endangered the physical well-being of the child and showed excessive, cruel, unwarranted, and abusive behavior.
Paragraph 27 of the Petition alleges that on January 5, 199[6], Respondent shoved, pushed, pulled, and slammed down student T. R.. The Petition alleges that Respondent pushed T. R. back into a chair, punched him in the eye, placed his knees on T.R.'s arms, and placed one knee on T. R.'s throat, which interfered with his breathing. Petitioner alleged that this behavior was excessive and unwarranted and unnecessarily endangered the student's physical well-being.
Paragraph 28 of the Petition alleges that in November 1995 Respondent grabbed student M. B. by the throat, threw him against a wall, and put his hands around the child's neck while taking him from the cafeteria to the office.
Petitioner alleged that Respondent used an inordinate degree of force and acted cruelly, abusively, without justification, and in poor judgment, while also physically endangering the child.
Paragraph 29 of the Petition alleges that in the fall of 1995 Respondent yelled at student M. P., then escalated the situation so as to upset the student and cause a physical confrontation. The Petition notes that the child later had to be admitted to the hospital. Petitioner alleged that Respondent's actions were excessive and unwarranted and escalated the situation without justification and jeopardized the student's physical and emotional health.
Paragraph 31 of the Petition alleges that in early September 1995 Respondent told an unidentified female student to "Get your ass in the office and call your mother. I don't want you in school with that type of top." Petitioner alleged that Respondent disparaged and embarrassed the child.
Paragraph 32 of the Petition alleges that in October or November 1995 Respondent threatened a student receiving exceptional student education services. Respondent allegedly threatened the student that her mother would be thrown out of a public housing project if the student did not behave.
Petitioner alleged that Respondent intimidated the student, abused his power, and showed bad judgment.
Paragraph 33 of the Petition alleges that in the spring and fall of 1995 Respondent showed a badge to students and told them he was the new sheriff in town. The Petition alleges that this behavior frightened and intimidated students, who thought Respondent was a law enforcement officer and had the legal authority to put students in jail. The Petition alleges that the remarks prompted students to misbehave. Petitioner alleged that Respondent's conduct was unprofessional, intimidating, and an abuse of power.
Paragraph 34 of the Petition alleges that in the fall of 1995 Respondent made a student cry in a conference on whether he could return to his geographic school. The Petition alleges that Respondent warned the student that, if he said the wrong thing, he would not be allowed to leave the Alternative Learning Center. The Petition alleges that Respondent badgered the student with questions
until he cried. Petitioner alleged that Respondent's behavior was intimidating, unprofessional, and an abuse of power.
Paragraph 35 of the Petition alleges that in the spring of 1995 Respondent, prior to assuming the role of principal of the Alternative Learning Center, abruptly entered a classroom without permission and addressed the class. He allegedly threatened a student with suspension because he failed to make eye contact with Respondent. Petitioner alleged that Respondent's behavior was unwarranted intimidation and humiliation of a student and an abuse of power.
Paragraph 36 of the Petition alleges that in November 1995 Respondent addressed a teacher, Ms. Holzborne, in a demeaning manner when he said, "Daughter, everything will be fine here." The Petition alleges that the teacher felt humiliated and offended. Petitioner alleged that Respondent's remark was unprofessional, inappropriate, and demeaning.
Paragraph 37 of the Petition alleges that in the fall of 1995 Respondent disrupted classes at the Academy on several occasions when he randomly opened classroom doors seeking various personnel. Petitioner alleged that Respondent's intrusions were an abuse of power and bad judgment.
Paragraph 38 of the Petition alleges that during the fall of 1995 teachers felt intimidated and worried that their jobs were jeopardized when they took students to Respondent for discipline. Petitioner alleged that Respondent's behavior was intimidating and an abuse of power and impaired the educational program at the Alternative Learning Center.
Paragraph 39 of the Petition alleges that in 1995 Respondent stated over the loudspeaker when students were in class, "...and teachers shall do what they are told." Petitioner alleged that such a comment was humiliating to teachers, unprofessional, and an abuse of power.
Paragraph 40 of the Petition alleges that in 1995 Respondent intimidated and humiliated teacher James Nassiff during a faculty meeting. The Petition alleges that Respondent told Mr. Nassiff that he would never be an administrator after Mr. Nassiff gave an inappropriate answer to a question. Petitioner alleged that Respondent's remark was inappropriate and humiliating.
Paragraph 41 of the Petition alleges that Respondent told teacher Jill Culligan that the record did not support her assertion, at a faculty meeting, that, when a teacher sent a child to timeout once, it was generally unnecessary to send the same child again. The Petition alleges that Ms. Culligan felt humiliated, belittled, and intimidated. Petitioner alleged that Respondent's rejoinder was an "unwarranted put-down" and demonstrated Respondent's failure to communicate properly with his teachers.
Paragraph 42 of the Petitioner alleges that on the morning of November 20, 1995, Respondent's supervisors, Dr. Mary Santini and Herbert Wiseman, conducted a meeting with Respondent to discuss "many complaints about [Respondent's] heavyhandedness with students . . . and why he was absent from the [Alternative Learning Center] on the morning of 11/17/95, leaving no one in charge." The Petition alleges that Respondent was loud, rude, and belligerent in the meeting. The Petition alleges that Respondent received a memorandum from Dr. Santini dated November 28, 1995, reprimanding him for his absence on November 17.
Petitioner alleged that Respondent's behavior at the meeting was inappropriate, unprofessional, intimidating, insubordinate, and demonstrative of bad judgment.
Paragraph 43 of the Petition alleges that on December 12, 1995, Academy Principal John Wortham instructed security guard Lisa Krucher to close the back gate to the campus to prevent a gang of boys, who were threatening harm to others, from gaining access to a student, C. C., in the back of the school. The Petition alleges that, for no apparent reason, Respondent rescinded Mr.
Wortham's order. The Petition alleges that, as a result of Respondent's "ill- considered countermanding directive," the gang attacked C.C. and beat him so severely that he had to be taken to the hospital for injuries. The Petition alleges that Respondent received a written letter of reprimand for this incident from Dr. Santini. Petitioner alleges that Respondent's countermanding of Mr.
Wortham's order was an abuse of power, unprofessional, poor management, and a demonstration of bad judgment.
Paragraph 44 of the Petition alleges that on the morning of January 10, 1996, Dr. Santini and Mr. Wiseman visited Respondent's office to discuss a transcript of a hearing held on December 13, 1995, involving student A. B.. The transcript allegedly revealed that Respondent had testified that Dr. Santini had directed him to send students back to their geographic schools when school enrollment at the Alternative Learning Center so warranted. The Petition alleges that Respondent erroneously overlooked the flexibility in the transfer policy and that his statement "failed to reflect the 10/25/95 Administrative Guidelines" and "misrepresented what had been clearly conveyed at principals' meetings on 11/8/95 and 11/15/95." The Petition alleges that Respondent refused to talk to Dr. Santini and Mr. Wiseman and instead shouted, argued, and demonstrated belligerence. According to the Petition, "He finally jumped to his feet, and bellowed, 'This meeting is over!'" The Petition alleges that this misconduct triggered Respondent's immediate suspension with pay on January 11, 1996. Petitioner alleged that Respondent's behavior toward Dr. Santini and Mr. Wiseman was unjustified, unprofessional, insubordinate, and intimidating.
Petitioner dropped Paragraphs 45-47 and 53 of the Petition during the hearing.
Paragraph 48 of the Petition alleges that in December 1995 the police interviewed Respondent about the gate incident. The Petition alleges that Respondent intentionally misrepresented to the police the facts surrounding the incident. Petitioner alleged that Respondent demonstrated a lack of honesty in the performance of his duties.
Paragraph 49 of the Petition alleges that on November 1, 1995, Respondent asked Fort Myers Police Department Officer Garrett Kusienski to arrest and put handcuffs on student W. S.. When the officer asked Respondent why, Respondent allegedly told him, "If you're not going to do your fucking job, then get the fuck off my campus; Get the fuck out of here." Respondent allegedly added, "When I give you a God damn order to arrest someone you had better damn well do as I say. This is my kingdom." Petitioner alleged that Respondent used profane language, which is unacceptable, and that Respondent demeaned, humiliated, and inappropriately treated the law enforcement officer.
Paragraph 50 of the Petition alleges that in September 1995 Respondent told the grandmother of student J. M. that she was not allowed in his office because she was not the legal guardian of J.M. and Respondent did not care if J. M. ever came back to school. Petitioner alleged that Respondent's behavior was unprofessional, offensive, insensitive, and inappropriate.
Paragraph 51 of the Petition alleges that between August 1995 and January 1996 Respondent routinely overloaded classes at the Alternative Learning Center,
routinely accepted too many students back into the Alternative Learning Center just after they had been returned to their middle school, failed to return students such as E. O. to their middle school in a timely manner, and generally failed to follow administrative guidelines for the influx and reflux of students at the Alternative Learning Center. These practices allegedly contributed to student overpopulation at the Alternative Learning Center and jeopardized student safety. The Petition alleges that Petitioner discovered in January 1996 that 326 students were enrolled at the Alternative Learning Center "in total disregard of District guidelines." Petitioner alleged that Respondent's failure to abide by administrative guidelines placed student safety at risk, demonstrated bad judgment, and violated School Board Policy 3.36.
Paragraph 52 of the Petition alleges that Petitioner could not verify the assignment of many students to the Alternative Learning Center or that the students came from Lee County schools. The Petition alleges that, of 326 students who were not exceptional student education students, approximately 31 had no discipline file, leading Petitioner to infer that Respondent "was simply taking students off the street and enrolling them in the [Alternative Learning Center]." The Petition alleges that six exceptional student education students were transferred from the Alternative Learning Center without exit individual educational plans and one such student lacked a placement individual educational plan. The Petition alleges that such a practice violates various laws, including Rule 6A-6.03311, Florida Administrative Code. Petitioner alleged that Respondent improperly admitted and exited students in violation of law and School Board Policy 3.36, thereby demonstrating bad judgment and endangering student safety.
Paragraph 54 of the Petition alleges that on November 17, 1993, Respondent left the Alternative Learning Center without an administrator in the morning in violation of School Board Policy 3.36. Petitioner alleged that Respondent's action was a dereliction of duty and bad judgment.
Paragraph 55 of the Petition alleges that in 1995 Respondent sent Alternative Learning Center students directly to Lee County High Tech Central for enrollment rather than send them through the Employment Skills Program, as required by established procedure. Petitioner alleged that Respondent's behavior was in poor judgment and improper in flouting established procedure, even after being informed of it.
On April 30, 1996, Petitioner filed a Motion for Leave to File Amended Petition for Suspension Without Pay and Benefits Pending Termination of Employment. Petitioner sought to add allegations of staffing-allocation violations, witness tampering, and inappropriate comments to a male student about not giving a "rat's ass" if he did not like what Respondent said for him to do. Petitioner also sought to correct certain dates and initials and make typographical corrections. Respondent objected to the addition of new allegations, but not the corrective amendments.
On the first day of the final hearing, the hearing officer denied leave to amend to add new allegations on which to justify termination, but granted leave to make corrective amendments. The hearing officer advised Petitioner that she could present evidence of witness tampering; she could also introduce other evidence relating to the new allegations, if the evidence were relevant to the allegations in the Petition on which Petitioner relied in seeking to terminate Respondent.
The material amendments to the Petition add conclusory allegations of gross insubordination and immorality to the allegations of misconduct in office and incompetency as grounds for the termination of Respondent. The material amendments also reduce from 31 to 18 the number of exceptional student education students alleged in Paragraph 52 not to have been properly enrolled at the Alternative Learning Center. An amended allegation adds that one exceptional student education student lacked a placement or exit individual educational plan. Material amendments also change the date of the meeting among Respondent, Dr. Santini, and Mr. Wiseman from January 10 to January 9, 1996.
At the hearing, Petitioner called 39 witnesses, and Respondent called 29 witnesses.
Petitioner called Dr. Mary Santini, student M. P., M. P.'s mother, student
M. B., James Nassiff, student C. R., Beth Smith, student T. R., student O. B., Officer Garrett Kusienski, Caroline McCollum, student J. N., J.N.'s mother, student S. P., Janet Harris, Officer Kenneth Winters, Kathleen Holzborne, Sandra Bolduc, Lisa Krucher, Kenneth Vitale, Jill Culligan, Pamela Minton, Cheryl Gruenefeld, Carole Arbolino, Steven A. Cook, Dr. Madeleine Doran, Herbert Wiseman, Dr. Larry Tihen, Ron Pentiuk, and John Hennebery. In rebuttal, Petitioner called Marilynn Strong, Arden Arrington, Martha Keel, Michael Crigger, Richard Hagy, Andres Mejia, Dr. James Browder, John Wortham, and Petitioner, and recalled Mr. Vitale, Mr. Nassiff, Mr. Pentiuk, M.P.'s mother, and Ms. Smith.
Respondent called Dr. Doran, Mr. Wiseman, Audrey White, Mr. Hennebery, O. B.'s father, Respondent, Riley Ware, Sondra Saldana, April Pepin, Lisa McKeever, Christine Peete, Dr. Mary Nell Gunter, Michael McNerney, Robert W. Lisenbde, Eva Dais, Melinda Lemmerman, Gina DeMarchena, Brenda Kidd, Terry Smith, student C. L., Martha Jeffers, Gerald Gilmore, Barbara Ann Filipowicz, student J. B., student C. O., Flossy Riley, Officer Fred Jackson, Jean St. Louis, and Dr.
Charley T. Council.
The hearing officer admitted 24 exhibits offered by Petitioner: Petitioner Exhibits 1-4, 6-8, 10-12, 15, 17-20, 22- 28, and 30-31. Petitioner proffered
Petitioner Exhibits 21, 29, and 32. The hearing officer admitted 37 exhibits
offered by Respondent: Respondent Exhibits 2-6, 8-10, 12-16, 20-28, 35, 43-44,
, and 62-63. Respondent proffered Respondent Exhibits 32, 38, 60, and 61.
The hearing officer required that the parties filing proposed recommended orders do so by June 17, 1996, or ten days following the filing of a transcript, whichever occurred first. The court reporter did not file a transcript.
Petitioner and Respondent each filed proposed findings of fact. Rulings on the proposed findings of fact are in the appendix.
FINDINGS OF FACT
Respondent and the Alternative Learning Center
Respondent
In 1974, at 22 years of age, Respondent earned his Bachelor of Science degree in social studies from Florida Memorial College, an historically black college in Miami. In his freshman year, he was named the Outstanding Freshman from Southwest Florida attending historically black colleges. At various times during his last three years of college, Respondent worked in inner-city ministries in St. Louis and New Orleans.
For about five years following graduation, Florida Memorial College employed Respondent, first as Associate Director of Admissions and then as Director of Alumni-Church Relations, assistant basketball coach, head baseball coach, and head volleyball coach.
After moving from Miami to Lee County, Respondent worked for a short time outside of education. At the start of the 1986- 87 school year, Respondent returned to education by accepting employment with the Lee County School District (District) as a social studies teacher at Cypress Lake High School, where he remained for two years. While at Cypress Lake High School, Respondent also served as head girls' basketball coach, head girls' track coach, assistant volleyball coach, and assistant baseball coach.
While employed by the District, Respondent helped with the fathers' program at LAMP, which is an educational program operated by the District at the New Directions Center. The LAMP program provides high-school instruction for teenage mothers. Respondent also headed the District's first mentor program, which finds mentors, without regard to race, to encourage minority students to excel in an academic setting, such as in gifted and honors courses.
In 1988, Respondent earned his Master of Science degree in educational leadership from Nova University. Then-Superintendent Engle named Respondent to serve as principal-on-assignment for the 1988-89 school year to recruit minority teachers for the District. Respondent was the second minority person assigned to an administrative position in the District.
At the time, a federal court had entered a desegregation order against the District. In the ten years prior to Respondent's new assignment, the District had hired about a dozen minority teachers. In one summer, Respondent recruited 30 minority teachers.
After completing his assignment in minority teacher recruitment, Respondent returned to Cape Coral High School as Dean of Students. He served in this position for the 1989-90 school year.
Following the 1989-90 school year, Respondent was appointed the Coordinator of Educational Equity and Reassignments, in which capacity Respondent served for five years. When he assumed the job, he received a $5000 raise to about $40,000 annually.
A coordinator is the lowest level of management in the District office. Coordinators are subordinate to assistant directors or, if none, directors. Directors are subordinate to assistant and associate superintendents, who are subordinate to the Superintendent. The Superintendent is appointed by the Lee County School Board.
As Coordinator of Educational Equity and Reassignments, Respondent monitored the district's desegregation efforts. Due to the nature of his responsibilities, Respondent, even though only a coordinator, had direct access to the Superintendent and School Board attorney.
Working closely with then-Superintendent Adams, who became Respondent's mentor, Respondent helped redraw school- attendance zones to desegregate schools. Respondent also handled racially based complaints from staff, including teachers, and generally tried to assure that poorer schools received the same resources as those enjoyed by wealthier schools.
Respondent became the focus of considerable controversy while Coordinator of Educational Equity and Reassignments. One day, his young daughter answered the phone at home and heard an unidentified caller threaten, "Your nigger father is a dead man."
Shortly after the murder of Superintendent Adams, Petitioner, then serving as Interim Superintendent, informed Respondent that she was removing him from his coordinator position. She created a new position for Respondent as Director of Adult Education and Dropout Prevention. Respondent received a raise from $48,000 to $55,000 annually and assumed his new duties in November 1994. Petitioner disclosed that she made the change based on concerns for Respondent's safety and complaints that she had received from the School Board and parents related to Respondent's rezoning decisions.
Three months after Petitioner created Respondent's new position, she eliminated it and suggested that Respondent apply for other administrative positions with the District. Respondent and Petitioner discussed an opening at the New Directions Center.
The New Directions Center occupies a three-year old facility owned and operated by the Lee County School Board. The New Directions Center comprises three separate programs: the LAMP program, the Academy, and the Alternative Learning Center (ALC).
The Academy, which includes the Employment Skills Program, provides alternative education by offering its students different types of teaching strategies than are typically available at conventional schools. Academy students are not behaviorally much different from students attending regular schools in the District.
Prior to the 1995-96 school year, each program at the New Directions Center had an assistant principal, and a supervisory principal was in charge of the entire New Directions Center. When she mentioned the opening at the ALC, Petitioner informed Respondent that she intended to appoint a separate principal for each of the three programs starting the 1995-96 school year.
In May 1995, Petitioner appointed Respondent to serve as the new ALC Principal, starting July 1. As ALC Principal, Respondent was also the head District administrator at the juvenile detention center, Price Halfway House, and Lee County boot camp.
At the time of assuming his new responsibilities, Respondent had served nine years in the Lee County School system: two years in the classroom, one year in administration at a school, over five years in administration involving minority matters at the District office, and less than one year in Adult Education and Dropout Prevention. Respondent received no training in preparation for his new assignment as a school principal.
As of February 19, 1996, Respondent's District personnel file contained nothing negative, aside from some isolated suggestions recorded on classroom observation sheets. This was the file that Respondent and his attorney examined after giving the District three days' notice of their intent to examine and copy Respondent's personnel file. Discussed below is Petitioner's contention that two missing items should have been included in the file.
Respondent's evaluation for his first year of teaching notes: "Excellent start as a beginning teacher in Lee County." This 1987 evaluation states: "Outstanding teacher. Should be considered for advancement to administration as soon as possible." The 1988 evaluation reports: "Excellent year-- Promoted to dean of students, Cape Coral H.S."
The first administrative evaluation of Respondent is in 1989 and covers his work in minority-teacher recruitment. The 1989 evaluation states that Respondent is "an asset to our team."
The 1990 evaluation, which addresses Respondent's year as Dean of Students, reports: "Charles has demonstrated his concern for young people and has spent many hours above and beyond the call of duty working with and for kids."
For the first year in which Respondent was responsible for desegregation efforts, the 1991 evaluation notes that Respondent has only partially achieved a goal--namely, learning desegregation issues. However, the 1991 evaluation, which was prepared by Dr. Mary Nell Gunter, states: "Charles Daily [sic] demonstrates talent and skill in dealing with people. He is eager to do a good job and I appreciate his professional outlook." A memorandum from Dr. Gunter commends Respondent for his "positive attitude" and work in specific programs. The memorandum suggests, though, that Respondent needs to develop his skills in "facilitative leadership," which he demonstrates in "many instances," but perhaps insufficiently when dealing with "principals and school-based people."
Respondent's evaluation for the 1991-92 school year is missing from Respondent Exhibit 13, which is his District personnel file. The missing evaluation apparently was completed with no remarkable comments.
Respondent's evaluation for the 1992-93 school year is noteworthy because it was prepared by Petitioner, who was not yet Superintendent. This 1993 evaluation finds that Respondent has fully achieved all of his goals, one of which is:
To establish effective communication to the public that would assist in dealing with the increasing cultural, demographic and social change effecting [sic] our students and community.
Petitioner's narrative comments on the 1993 evaluation are:
Charles Dailey is an extremely valued and important member of the Division of Administrative Operations. He has demonstrated outstanding leadership during the Desegregation process.
He is a role model for every administrator in his work ethic, committment [sic], teamwork and educational values.
Petitioner found that Respondent reached an effective level of performance (the only satisfactory rating offered on the evaluation form) in all categories. Categories include judgment issues, including making good decisions based on law and policy, and sensitivity issues, including tact, effective dealing with people over emotional issues, exhibiting a positive professional attitude, and perceiving the needs and concerns of other persons.
Petitioner concluded the 1993 evaluation as follows:
Charles must work under stress everyday in his office due to our desegregation process. He has handled this in an outstanding manner.
The evaluation for the 1993-94 school year should have been performed by Dr. James Browder, who is now principal of Cypress Lake High School. Dr. Adams was murdered on February 7, 1994. Another administrator was responsible for Respondent's evaluation until April or May of 1994. Given the understandable disruption resulting from the sudden death of Dr. Adams and the administration reorganization that followed, Respondent's evaluation for the 1993-94 school year was never prepared. However, Dr. Browder testified that he had perceived no problems with Respondent of sufficient seriousness to document in an evaluation.
The evaluation for the 1994-95 school year should have been performed by Assistant Superintendent Dr. Mary Santini. She assumed that position in January 1995 and may have felt unable to evaluate Respondent by the time the evaluations are due in May.
Respondent has been recognized repeatedly in the educational community. The past three years, Respondent was a finalist for the Ida S. Baker award, which is given to the outstanding minority educator in Florida. Respondent was named in 1995 the administrator of the year for the southeastern United States by the Southeast Desegregation Assistance Center. During this period, Respondent has been serving as a consultant and expert witness in the Rockford (IL) School District desegregation case.
The ALC
In general, the ALC is the District's last-chance school for students whose disciplinary problems have resulted in their removal from their geographical schools. ALC students are the most difficult to manage in the District.
Nearly all ALC students are enrolled in the ALC as an alternative to expulsion from the Lee County School System. A few students are assigned to the ALC through the juvenile justice system.
Almost all of the ALC students have had serious problems with criminal activity, seriously disruptive behavior in school, and school attendance. At any given time, roughly 10-20 students attending the ALC have been convicted of felonies.
On a cumulative basis for the 1995-96 school year, excluding exceptional student education (ESE) students, 80 students enrolled in the ALC sometime during the 1995-96 school year were guilty of felonies, 91 were guilty of the possession of drugs or drug paraphernalia, 29 were guilty of armed burglary or grand theft, 36 were guilty of assault or battery against a teacher or administrator, 68 were guilty of fighting with other students, 38 were guilty of possession of weapons, and numerous others were guilty of other offenses ranging from "sexual misconduct" (7) to "peeing in a bottle" (1). (Some of these students were guilty of more than one offense, and some students entered the ALC more than once during the school year, so their offenses would be counted more than once in each category.)
Prior to the 1995-96 school year, the Supervisory Principal of the New Directions Center was Jeananne Folaros. The ALC Assistant Principal was Richard Hagy. The LAMP Assistant Principal was Carolyn McCollum. And the Academy Assistant Principal was John Wortham. For the 1995-96 school year, Ms. McCollum and Mr. Wortham retained their prior positions except they became principals, and Mr. Hagy and Ms. Folaros were reassigned.
Respondent and the ALC
When Respondent arrived at the ALC, student behavior and academics were both in need of improvement. Perhaps the most dramatic indicator of the situation was that in the prior school year Mr. Hagy had twice required hospital treatment for injuries he had received from being struck by ALC students. The school was the scene of frequent fights with students wandering in the halls and often in possession of drugs, making it hard for motivated students to work.
In an effort to reduce the number of suspensions, the ALC had retained some extremely disruptive students, who sometimes threatened even the teachers. Frightened by these students, some teachers had resorted to a policy of appeasement, allowing difficult students to sleep or play cards in the classroom with academic activity going on around them, or sending these students to a separate timeout room, where they slept and played cards without the distraction of academic activity going on around them.
When Respondent was first appointed as ALC Principal, he spoke with middle- and high-school principals and learned of their concerns that the ALC was a "revolving-door" program. They said that the ALC disrupted regular academic programs at their schools and inadequately served the needs of the students assigned to the ALC. District principals and ALC teachers and students reported that the ALC offered a poor educational program where students could easily avoid academic challenge.
One of Respondent's first moves was to select Beth Smith as the assistant principal for the ALC. Respondent recognized that their strengths and weaknesses were complementary. She was a curriculum specialist, and he was an effective disciplinarian. After hiring Ms. Smith, Respondent formed a curriculum team consisting of her, a guidance counselor, a school psychologist, and a peer-counseling teacher to address curriculum changes.
Respondent reimplemented the 45 good-day policy. This policy meant that the ALC would not return a student to his geographical school until he had
45 days of punctual attendance, good behavior, and successful academics. Respondent developed and enforced a dress code, prohibited sleeping and card games in class, and required teachers to stiffen their academic requirements.
Respondent's disciplinary plan eliminated the separate timeout room, where misbehaving students had enjoyed freedom from academics. Respondent instead introduced a multi-step intervention system where the teacher first warned the misbehaving student in the classroom, then warned the student in the hallway, then placed the student in timeout in the classroom, and then sent him to Respondent, who would warn the student, assign cafeteria duty, or suspend him, depending on the seriousness of the offense.
In all senses of the word, Respondent was a "hands-on" principal. Sondra Saldana, an ALC guidance counselor, best described Respondent's style when she testified that he meets students where they are.
Undoubtedly, Respondent models good behavior in numerous ways. But he does not stop there. With passionate intensity, Respondent readily reveals his love and expectations for each student and satisfaction or dissatisfaction with each student's behavior.
Respondent is direct and frank, not oblique or diplomatic. He demands the respect of all of his students, and he earns the respect of nearly all of them because they see that he cares about them in a vital and effective way.
Many of the ALC students probably would not have responded to Respondent's disciplinary innovations without clear evidence of Respondent's belief in their academic potential. More than anything else, Respondent wanted "to keep turning on lights for students," according to his favorite expression. Refusing to allow ALC students to think of themselves or be treated like academic or cultural outcasts, Respondent made the ALC more like a regular school, not so that he could have the experience of running a regular school, but so that the ALC students could have the experience of attending and succeeding at a regular school.
In giving ALC students more positive opportunities than they had had in the past, Respondent introduced to the ALC student assemblies, a literary magazine, school plays, and other activities typical of regular schools. Respondent ordered the physical education teacher to make the ALC students play sports besides basketball, just like the physical education students were doing at the regular schools. (After hearing the concerns of the physical education teacher about placing bats in the hands of certain students, Respondent agreed to drop softball.)
Respondent personally conducted entrance interviews, so he could explain the rules and purpose of the ALC to each new student and any parents or guardians accompanying him. Respondent made the exit process--merely an exercise in paperwork in prior years--an experience that would bring some closure to the ALC experience and prepare the student for a more successful reentry into his geographical school.
There is no doubt that Respondent was markedly successful in improving the atmosphere at the ALC. Respondent's immediate supervisor, Herbert Wiseman, the District Director of Secondary Operations, twice during the fall of 1995 complimented Respondent on how well run the ALC was. The latter compliment took place on December 15, 1995, when Mr. Wiseman, with whom Respondent had a good relationship, told Respondent that he was running the ALC well.
Mariner High School Principal Michael McNerney described in detail a visit he made to the ALC in November 1995. He was greeted quickly and professionally at the office, rather than allowed merely to walk into the school. Respondent took him to 8-10 classrooms where Respondent and students spoke freely. Respondent knew each of his students and which of them were from Mariner High School. He even knew when each student was due to return to his geographical high school.
Jill Culligan, an ALC teacher who was disaffected with Respondent, noted the positive changes in writing on December 5, 1995:
Under [Respondent's] system of discipline interventions and sensitivity to individual student needs, the students appear to be
exhibiting the better behavior expected of them. Fights are no longer tolerated. More opportunities for assemblies are getting them ready for re-entry into the regular schools.
But Respondent always balanced his academic innovations with disciplinary innovations, recognizing that behavior and academic achievement among ALC students are inextricably linked. Respondent personally led the effort to restore and maintain order at the ALC. It was a considerable, ongoing effort, made more difficult by the fact that the most troublesome students were no longer warehoused in the timeout room or banished from school by suspension.
A key element of Respondent's relationship with the most difficult of these most difficult students is that he literally was not afraid to touch a student. Respondent was unafraid to place an arm around such students and hug them close to his body. The hug conveyed affection and physical constraint. While holding the child firmly, Respondent would then typically say that he had to calm down. In many instances, this approach was successful; in some instances--disproportionately represented in the next section--this approach was not.
There were always clear limits to Respondent's disciplinary efforts. As noted below, he did not believe in striking students, and never did so except one time at the behest of a parent, who sought to avoid the more burdensome punishment of a suspension.
Respondent scrupulously tried to get all significant information before taking any disciplinary action. Though a strong believer in discipline, Respondent was never inflexible. To the contrary, it appears he was always willing to fashion the most appropriate penalty under the circumstances--such as pushups or cafeteria duty--and was often willing to modify a penalty upon request of a parent or guardian or even the student himself.
During Respondent's tenure, which ended with his suspension on January 11, 1996, there was a fight every three weeks among students. After his suspension, there was a fight everyday. During Respondent's tenure, the police were present at school every other week. After his suspension, the police were present every other day.
Despite Respondent's success at the ALC, he encountered some resistance and engendered some resentment among staff. Clearly, disgruntled staff was the source of many of Respondent's problems, causing management problems at school and, more importantly, conveying misinformation to the District office.
In general, at least two-thirds of the ALC staff supported Respondent even after he was suspended. Some staffmembers were neutral. Among staffmembers vocally opposed to Respondent, some were doubtlessly put off by Respondent's assertive personality.
But there were other reasons for the vocal disaffection of some staffmembers, and some of these reasons have a material bearing on the credibility of these persons as witnesses and the weight accorded their testimony.
In some cases, the source of staff disaffection may have been professional, such as when Respondent selected Ms. Smith over Jim Nassiff, an
ALC teacher, for the position of assistant principal. Mr. Nassiff was unhappy with Respondent for choosing Ms. Smith over him.
Most disaffected staffmembers had job-performance problems, which were exacerbated by the demands that Respondent placed upon them in terms of academics and discipline. Teachers in this category included Kenneth Vitale, Pamela Minton, Cheryl Gruenefeld, and Ms. Culligan. To varying degrees, teachers in this category manifested an unwillingness or inability to adapt to the changes implemented by Respondent.
The sources of disaffection of Mr. Vitale and Ms. Culligan are described in connection with incidents involving them. However, two staffmembers were involved in a number of incidents.
Lisa Krucher, a security guard, was notable for the extent of her dissatisfaction with Respondent and her inability to perform her job. She defied Respondent's efforts to ban smoking from the ALC building. She was unable to break up fights and lax in enforcing discipline. She eventually became the eyes and ears of Petitioner by daily reporting incidents to Mr. Wortham, who passed them on to Dr. Santini. Her job-related deficiencies were such that--despite her loyalty--Ms. Krucher was transferred to the Academy after Respondent's suspension.
Ms. Smith offered a more balanced perspective on Respondent than did Ms. Krucher, and the source of Ms. Smith's disaffection with Respondent is more professional.
Previously a guidance counselor in a middle school and dropout prevention program, Ms. Smith is an articulate exponent of the modern disciplinary theories of positive reinforcement and behavior modification. She deemphasizes more traditional, coercive methods of discipline, such as punishment for wrongs-- which of course awaits those ALC students who, having already failed to take their behavioral cues in the setting of the regular schools, continue misbehaving until they encounter the criminal justice system.
Respondent does not advocate the more traditional, coercive disciplinary method of punishment for wrongs to the exclusion of more modern techniques of behavior modification. However, his more intense style of personal involvement with misbehaving students bore little resemblance to Ms. Smith's more restrained style.
Ms. Smith was disturbed by her perception of how Respondent handled certain misbehaving ALC students. The record is less clear in revealing her methods of modifying the behavior of such students. In any event, her reactions to the misbehavior and Respondent's attempts to correct it were entirely sincere. She was frustrated to the point of tears at times, believing at times that students who continued to misbehave simply had not been exposed to sufficient positive reinforcement.
The problem is that Ms. Smith lacked experience with the kinds of students who can be found at the ALC. She was still developing effective means of handling the most dangerous and disruptive of these students when Respondent was suspended. At that time, Ms. Smith still had nothing approaching Respondent's experience in dealing with young persons who, with little if any warning or provocation, explode into a violent frenzy, seriously injuring anyone in their immediate vicinity.
Following Respondent's suspension, Petitioner appointed Ms. Smith as Acting ALC Principal. On February 20, 1996, Petitioner replaced Ms. Smith with Mr. Hagy as Acting ALC Principal.
Respondent and Students
Spring 1995 Visits to ALC: Paragraphs 33 and 35
At the urging of Petitioner, Respondent visited the ALC shortly after Petitioner named him the new principal. He visited the school three times in the spring of 1995 before assuming his duties there on July 1, 1995.
On his first visit, Respondent met briefly with Mr. Hagy and discussed how the school operates. On this visit, Respondent saw students loitering in the halls and cursing loudly. Respondent saw the timeout room, where staff had hung plastic to cover the holes that students had punched in the walls. Respondent saw students were sleeping rather than studying.
Respondent and Mr. Hagy came across a student who was walking out of the class during the school day very upset, using abusive language. Mr. Hagy asked him to stop, but he ignored Mr. Hagy and walked out. In another class, taught by James Nassiff, Respondent found the class watching an entertainment movie.
Mr. Hagy escorted Respondent into several classrooms. These visits were brief. Respondent later made a second visit, without Mr. Hagy, to observe the classes in session. These visits were somewhat longer.
In each classroom during the second visit, Respondent introduced himself as the new ALC principal. He warned the students that things would be changing. He promised that he would suspend any student who talked back to a teacher, swore, or fought. Respondent ordered the students not to call male teachers "man" and female teachers "woman"; teachers would be called "Mr." and "Mrs." Respondent told the students that he would not tolerate sleeping or card playing in class.
In a lighter tone, Respondent added that the students should tell their friends and family that there was a new sheriff in town and the ALC was going to be about education. Respondent then flashed his badge.
The badge is a small shiny badge that designates Respondent as an Honorary Deputy Sheriff for the term of Sheriff McDougal, who remains in office. Respondent understands that the badge confers on him no special power to arrest persons. He has never tried to arrest anyone using the badge, and he has never displayed the badge on the occasions that he has actually summoned law enforcement officers.
In Ms. Gruenefeld's class, Respondent found students sleeping. He approached one student who had his head down on the desk and did not look up when Respondent entered the room. Respondent told him to look at Respondent when he was speaking, or Respondent would suspend the student.
Ms. Gruenefeld tried to justify the student's behavior on the grounds that he was a good student and had been working very hard. She believed that the student, who was Hispanic, did not engage in eye contact for cultural reasons.
Nothing in the record supports the assertion that Hispanics disfavor eye contact. Absent an undisclosed medical condition, the student should have been able to raise his head off the desk and make eye contact with the new principal, who had entered the classroom to introduce himself to the students.
There is no indication that Respondent's first or second visits to the ALC destroyed any instructional momentum in the classrooms. Obviously, the students were off-task for the time that Respondent was in the classroom, in most cases due to Respondent's presence. However, the students did not remain off-task for long and soon returned to whatever they were doing before Respondent entered the classroom. At most, Respondent's comments about changes at the ALC might have caused some harmless confusion among those students who were about to be returned to their geographical schools.
There is no evidence that students were intimidated by Respondent's announcement or his display of a badge. Some students laughed after Respondent's announcement. Some responded more seriously, wanting to know if he were really going to be the new principal. In general, the students listened thoughtfully to Respondent's statement.
Respondent made a third visit to meet with the faculty at the request of an ALC guidance counselor, who had called Respondent and told him that the faculty wanted to meet him. In this meeting, Respondent repeated the ground rules that he had given the students a few days earlier. Respondent invited each teacher to prepare a wish list for the ALC and a list of any concerns that he or she may have. Ending a positive meeting, Respondent introduced the teachers to his favorite expression, "We need to turn lights on for kids."
Following Respondent's visits, Ms. Folaros telephoned Respondent and asked him what had taken place. He explained that he wanted to meet the students at that time because summer school would start before he assumed the role of principal. Respondent added that he wanted the students whom he met to tell other students that he would not tolerate students sleeping and misbehaving, as they had been doing in the past.
Other Incidents of Flashing the Badge: Paragraph 33
In September or October, 1995, M. P. enrolled at the ALC. M. P. is a
14 year-old ninth grader, who started the year at Lehigh High School. M. P. was sent to the ALC after he urinated in the middle of class into a glue bottle because his teacher had refused him permission to use the bathroom. M. P. was accompanied by his mother and sister on the day that he enrolled--a process that took about 20 minutes.
During the entrance interview, Respondent informed M.P. of the rules of the school. They discussed the dress code, the prohibition of drugs on campus, and M. P.'s misbehavior at Lehigh High School. During the conversation, Respondent flashed his badge and warned M. P. not to do anything wrong.
M. P. testified that he was scared at the sight of the badge. This testimony is discredited. It takes more than a badge to frighten M. P.. M. P.'s mother saw Respondent flash the badge, and she decided, based on this meeting, that Respondent would be a good role model for her son.
Respondent flashed the badge on other occasions. One time, four middle-school girls assaulted another student in the cafeteria. They ignored Respondent when he tried to talk to them, so he flashed the badge and warned
them that he could have them arrested. They took him more seriously and listened after that.
Another time, Respondent displayed the badge to a boy who was misbehaving in Respondent's office. Again, Respondent warned that he could have the student arrested.
Respondent displayed the badge several other times and warned misbehaving students that he could have them arrested. Some of the students took him seriously; others did not. The ability of Respondent to have students arrested did not depend on his possession of the badge, and ALC students understood that. Flashing the badge unlikely intimidated anyone.
M. P.'s Other Incident: Paragraph 29
After the entrance interview, M. P.'s mother spoke privately with Respondent about M. P. She described him as emotionally troubled over her recent divorce. She warned that he was quick to anger and especially intolerant of females because he blamed the divorce on his mother. He also resented females because of a gender issue in the family and the teacher who had refused him permission to go to the bathroom at Lehigh High School was a female.
While in April Pepin's class, M. P. walked out of the classroom without permission. Ms. Pepin sent him to Ms. Smith's office. Talking to Ms. Smith, M. P. denied that he had left the classroom without permission and gave Ms. Smith trouble. Ms. Smith determined that he had misbehaved in Ms. Pepin's class, decided to suspend M. P. for one day, and called M. P.'s mother. M. P.'s mother asked Ms. Smith to have Respondent reinforce the point with M. P.
Ms. Smith preceded M. P. to Respondent's office and explained the situation to Respondent, stating that M. P.'s mother wanted Respondent to talk to her son and that Ms. Smith was having trouble dealing with him. Respondent summoned M.P. into the office, leaned over his desk toward M. P., and raised his voice in an authoritative manner. Respondent warned M. P. that he could not act up at Respondent's school and that, if Ms. Smith told him something, it was like Respondent telling him something.
M. P. elected not to listen to Respondent either and tried to walk out of his office. When he turned to walk around the chair, Respondent stopped him by grabbing his arm. Respondent was worried that he might be going after Ms. Smith. Respondent was also intent on not allowing M. P. to disobey Ms. Smith and Respondent by coming and going as he pleased, especially after his mother had asked repeatedly for Respondent's help in dealing with her son. After grabbing M.P.'s arm, Respondent told him to go up against the wall for a search, and, when he did not do so, forced him up against the wall.
When Respondent tried to pat down M. P. for weapons, M.P. lost his composure and began to fight with Respondent. M.P. brought his arms down hard on Respondent and struck him. Respondent wrestled M. P. down to the floor and shouted for someone to call the police. Arriving a few minutes later, the police officers had to bind M.P. by the ankles and drag him to the police car, where he tried to kick out the car window.
M. P.'s mother then had M. P. admitted to Charter Glades Hospital, a psychiatric treatment facility. M. P. remained hospitalized for ten days and remained on homebound instruction for two months. Charter Glades treated M. P. for an anger disorder.
M. P.'s mother blames Respondent for M. P.'s hospitalization. She is understandably worried about her son, but the evidence does not in any way suggest that Respondent initiated, and the greater weight of the evidence does not prove that Respondent exacerbated or unreasonably triggered, M. P.'s obvious behavior disorder, which had manifested itself before his assignment to the ALC.
Ms. Smith felt that Respondent overreacted to the situation, but she was unaware of the details or extent of M.P.'s behavior disorder prior to the incident. Under the circumstances, Respondent was justified in reacting quickly to prevent M. P. from leaving the office and precluding the possibility that the student might strike Ms. Smith.
Pushups: Paragraphs 20 and 21
Respondent sometimes gave the option of pushups to male students whose misbehavior otherwise warranted suspension. (For female and other male students, Respondent would sometimes offer cafeteria duty.) On at least two occasions, students chose to do the pushups.
Respondent demanded 50 pushups and sometimes called out the count himself, starting fast and ending slow. If a student could not do 50 pushups, Respondent allowed him to do as many as he could; in no event would Respondent suspend him for failing to reach 50.
On one occasion, three students were doing their pushups in Respondent's office when a faculty meeting was about to start. The teachers were supportive of the students, cheering them on. When finished, the students, taking the matter in good humor, thanked Respondent for not suspending them.
There is absolutely no evidence that any of the students choosing to do pushups were humiliated, injured, or exposed to a risk of injury. Presumably, as alleged by Petitioner, their arms shook and, for the white boys, their faces reddened. These things happen with pushups.
Spankings: Paragraphs 18 and 19
There were two student spankings during the fall of 1995. One of them took place in October 1995 and involved O. B., who is 13 years old. O. B. lied to Respondent about not being involved in a fight. Based on O. B.'s word, Respondent was about to suspend another boy.
After discovering the truth, Respondent went down to O.B.'s classroom and found the class watching a movie. Respondent said, loud enough for the teacher, Mr. Vitale, and other students to hear, "Son, you've lied to me.
You've lied to me." O. B. answered, "Man, I don't know what you're talking about."
Respondent then grasped O. B. firmly by the back of the neck and walked him down to Respondent's office. In the office, Respondent suspended O.
for five days, called O. B.'s father (his biological grandfather who had adopted O. B.), and told him that he needed to pick up his son.
O. B.'s classmates already knew that O. B. had lied about the incident. O. B. was not embarrassed by the manner in which Respondent removed him from class, nor was he hurt by the grasp of Respondent.
When O. B.'s father arrived, he said to Respondent that O. B. had just been suspended and had been out of school more than he had been in. The father asked Respondent if there were another alternative, like a spanking, and suggested that Respondent spank the child.
Respondent said he did not like to spank students. The father asked if he could, in order to avoid another suspension. Respondent said that was acceptable to him, so the father took his belt and applied it to O. B.'s buttocks five or six times. O. B. cried a little, so Respondent suggested that the father take him home for the rest of the day, rather than return to the classroom after having cried. The father did that.
Respondent, O. B., and O. B.'s father were the only persons present during the spanking. The blinds were drawn in Respondent's office during the spanking.
The other spanking involved J. N., who is also 13 years old. One day, J. N. repeatedly misbehaved. His teacher, Mr. Nassiff, talked to him several times without effect. J. N. got angry at another student and was about to get into a fight. Another teacher told him to be quiet and he refused.
School Resource Officer Fred Jackson and Ms. Krucher also intervened, but failed to calm J. N.
J. N. demanded to talk to Respondent. After a brief discussion, Respondent said that he was going to have to suspend J. N. if he misbehaved again that day. Respondent allowed J. N. to return to his class.
J. N. returned to class and immediately caused trouble by getting into an argument with another student. Mr. Nassiff sent him back to the office. Respondent called J. N.'s mother and said that he was being suspended.
J. N.'s mother asked Respondent to spank her child instead. She explained that she could not afford to arrange for someone to care for J. N. while he was out of school. He had just finished a suspension two or three weeks earlier, and his mother lacked the funds to hire another babysitter.
After expressing some reluctance, Respondent agreed to the spanking, but required J. N.'s mother to come to the office to serve as the witness. She did, and Respondent, behind closed blinds and a closed door, hit J. N. six times with a belt on the buttocks. The spanking did not hurt and J. N. did not cry out.
Lee County School Board Policy 5.16 addresses corporal punishment as follows:
Subject to the provisions of law, if a teacher or school administrator feels that corporal punishment is necessary, at least the following procedures shall be followed:
Reasonable alternatives have been used and documented.
Written permission has been obtained from the student's parent or guardian at the beginning of each school year, and a call to the parent or guardian for each specific incident involved prior to using corporal punishment.
The use of corporal punishment shall
be approved by the principal or designee before it is used.
The use of corporal punishment shall be administered only in the presence of the principal, another administrator, or a teacher. The principal, other administrator, or teacher shall, in the presence of the student, be informed of the reason for the punishment before it is administered.
A principal, or designee who has administered corporal punishment shall, upon request, provide
the student's parent or guardian with written explanation of the reason for the punishment and the name of the administrator or teacher who was present.
Policy 5.16 is inapplicable to the O. B. spanking because O. B.'s father, not an employee of the District, spanked the child.
Policy 5.16 is inapplicable to the J. N. spanking because--consistent with his disciplinary philosophy--Respondent never determined that corporal punishment was necessary. Such a determination is the precondition stated in the flush language of Policy 5.16 for the remaining conditions to apply. Respondent had determined to suspend J. N. Policy 5.16 governs spankings initiated by District employees, not by parents. Respondent merely acceded to the mother's requests that he substitute for suspension the lesser punishment of a mild spanking and that Respondent perform the spanking for her, in her presence--in effect as her agent and not an agent of the School Board.
Violation of Dress Code: Paragraph 31
In September 1995, Respondent noticed an unidentified female student exiting a school bus on her way to class at the ALC. She was wearing a top that exposed her midriff, in violation of the ALC dress code.
In the presence of District Transportation Coordinator Janet Harris, Respondent told the girl, "Get your ass into my office and call your mother. We don't allow those kinds of tops."
Petitioner did not call the improperly clad student as a witness. There was no sexual content to Respondent's ill- chosen word, voiced in the presence of a female employee of the School Board who was a stranger to Respondent. Ms. Harris was not so startled by the comment as to report it at the time to anyone. She first mentioned it the next month to Mr. Wortham.
Absent additional proof of the circumstances surrounding Respondent's isolated remark, including the student's reaction, Petitioner has failed to prove that Respondent's momentary lapse disparaged and embarrassed the student.
C. L. Incident: Paragraph 22
C. L. was a 200-pound female student at the ALC with a history of violent outbursts where she would leave school and not return home for a couple of days. C. L.'s mother asked Respondent, when he became principal, not to allow C. L. to continue to leave school whenever she wanted. Previously, if she were resolved to leave school, no one would try to stop her.
One day at school in September or October 1995, C. L. was out of control, trying to leave the school. Gerald Gilmore, a security guard, was trying to stop her when Respondent approached.
Respondent took one of C. L.'s arms, and she suddenly dropped on him. Respondent and Mr. Gilmore each took an arm and walked her to the office, talking to her the whole way in an attempt to calm her. Respondent summoned Officer Jackson to help calm C. L.
In the office, Respondent and Mr. Gilmore placed C. L. in a chair. Each time she popped out of the chair, they returned her to the chair. Eventually, C. L. calmed down, and they let her return to class.
D. C. Incident: Paragraph 26
One morning in October 1995, Respondent saw D.C. smoking marijuana off-campus before school. When D. C. entered the school, Respondent asked him to come down to the office. D. C. was belligerent. Respondent placed his right arm around the back of the D. C., who was about Respondent's height, and grabbed his right arm, while holding his left arm close to the boy's side. Respondent then walked D.C. down the hall, side-by-side, to the office.
Respondent frequently used this hold on students who were noncompliant. It does not hurt the student, but gives Respondent control over the student's movements. In particular, Respondent can sense immediately if a student is going for a weapon.
Respondent's use of this hold and his readiness to search students (which is also part of his effort to keep drugs off campus) are prompted by Respondent's justified concerns for the safety of students and staff. The ALC has no metal detector and weapons are a constant worry. In the fall of 1995, Respondent found one student at school carrying a .25 caliber pistol with 18 rounds of ammunition in it.
Once in the office, D. C. voluntarily leaned against the wall in Respondent's office so Respondent could search him with an electronic beeper. Respondent did not find any marijuana, but found a tobacco cigarette with half of the tobacco removed from the cigarette. Students smoking marijuana often removed part of the tobacco from a tobacco cigarette and replaced it with marijuana to avoid detection.
Respondent suspended D. C. from school and contacted D.C.'s probation officer. D. C. subsequently violated the conditions of his probation and is now missing.
ESE Student and Housing Project: Paragraph 32
In November 1995, Respondent spoke to an unidentified female student who was repeatedly being suspended for disciplinary reasons. The student lived in a public housing project.
Respondent warned the student that, if she continued to get suspended, stay home, and cause trouble around the project during school hours, she and her mother could be evicted from the project. The student calmed down and behaved appropriately after that.
Respondent was a commissioner of public housing for the City of Fort Myers at the time. He understood the rules of the housing projects, which permit the eviction of tenants whose unsupervised school-age children cause trouble in a project during school hours.
Slightly Built Child: Paragraph 25
Petitioner presented no significant evidence on this allegation. It probably refers to another incident, such as the S. P. incident discussed below.
M. B. Incident: Paragraph 28
In November 1995, M. B. was involved in a fight in the classroom. Respondent gave him the option of a suspension or working in the cafeteria, where he would clean up trays and take out the trash. He chose cafeteria duty.
Shortly after arriving in the cafeteria, M. B. so infuriated the cafeteria manager that he called Respondent and told him that M. B. was the most arrogant boy he had ever seen, and he did not want the student back in the cafeteria again.
Respondent left his office to retrieve M. B. and found him walking toward the office. Respondent said, "Son, come here." M. B. approached Respondent, who asked him what was his problem. M. B. said that he refused to empty any "God damned" trash. Respondent placed his arm around M. B.'s back and escorted him to the office.
M. B. wanted to go straight home, and Respondent would not allow him. Respondent asked him to lean against the wall so Respondent could check him for weapons and drugs. M. B. did so.
Respondent then called M. B.'s grandmother and warned her that, if M.
B. continued to fight, he could be expelled for two years. She asked him not to suspend him. Respondent agreed not to suspend him, and M.B. completed the school day without further incident.
L. S. P. Incident: Paragraph 23
S. P. is a 12 year-old male. He is about five feet one inch tall and is slightly built. He fights constantly. S.P. was sent to the ALC last year for fighting and insubordination. He was transferred from the ALC to his geographical school last Christmas, but, by the time of the final hearing in the present case four months later, he was back at the ALC. On the day of his testimony, S. P. had a black eye from fighting.
On his first day at the ALC, S. P. got into a fight. He had not even reached his classroom when he started fighting with another student while still in the office.
Respondent saw the fight and put his arm around the child's back, grasped the student's right arm, and hugged the boy close to Respondent. Respondent tried to calm him, warning that he did not want to have to suspend S.
P. before he was even enrolled.
S. P. tried to escape Respondent's grasp, but Respondent would not release him until S. P. said that Respondent was choking him. Respondent released him then, even though he was not choking the student. When S. P.
remained noncompliant, Respondent grasped him again in the same manner as before. Respondent warned S. P., as he hugged him close to Respondent, "Son, you can't continue to fight. You're going to force me to suspend you." However, S.
P. swore at Respondent, who replied that S. P. was suspended for the day.
After telling S. P. that he was suspended, Respondent walked S. P. to the bench outside Respondent's office and sat him down. S. P. was upset and, after Respondent walked away, began crying.
M. T. R. Incident: Paragraph 27
J. B. is an 18 year-old female who attended the ALC in the fall of 1995. From the third day of her attendance at the ALC through the remainder of the fall term, she was sexually harassed and physically threatened by T. R., who is another student at the ALC.
On three occasions, J. B. complained of the harassment and threats, including actual touching, to Ms. Krucher, who did nothing about J. B.'s complaints. The first two complaints were early in the fall term and the last complaint was in January 1996.
The day after her last complaint to Ms. Krucher had resulted in no action, J. B. complained directly to Respondent. After interviewing J. B., Respondent sent her back to class and summoned T. R. from his class. Terry Smith, a security guard, escorted T. R. to the office.
Respondent told T. R. that he should not talk to or look at J. B. If he saw her walking down the hall, he should go in a different direction. Above all, T. R. was not to touch her anymore.
T. R. denied any knowledge of who J. B. was. Respondent sent for J. B., who came to Respondent's office and stood in the doorway. When T. R. was told this is who was complaining about him, he jumped up, screaming to J. B., "What the hell are you doing telling people I did this?" He then lunged toward a visibly frightened J. B.
Ms. Krucher pushed J. B. safely out of the doorway and escorted her back to the classroom. Respondent got to T. R. before he got to J. B. and pinned him against the wall. T. R. struggled, hitting Respondent while he tried to control T. R.'s arms. Mr. Smith assisted Respondent, who had T. R.'s upper body, by grabbing T. R.'s legs, and the two men wrestled T. R. to the floor.
Ms. Krucher returned, and Respondent told her to call the school resource officer, so T. R. could be removed from the campus. In the meantime, Respondent and Mr. Smith tried to calm T. R. by talking quietly to him.
Before the school resource officer arrived, T. R. calmed down and pleaded with Respondent not to send him to jail. T. R.'s girlfriend was pregnant, and he had criminal sex abuse charges pending. Respondent agreed to suspend T. R. for the rest of the day and not have him arrested.
Respondent and Teachers
Culligan Incident: Paragraph 41
At a faculty meeting early in the 1995-96 school year, Ms. Culligan addressed Respondent's decision to eliminate the timeout room. Ms. Culligan
endorsed the previous policy where a teacher sent a student to the timeout room for a short period the first time, a longer period the second time, and the remainder of the day the third time on the same day. She said that she typically would not have to send a student back a second or third time.
Respondent answered that that was not what the records showed. He implied that teachers had routinely sent students to the timeout room for long periods of time. He did not state that Ms. Culligan had resorted to the timeout room more than did the rest of the teachers, although she likely had.
Respondent had considerable difficulty with Ms. Culligan. At the start of the 1995-96 school year, Ms. Culligan sent more students to the office for minor offenses than did other teachers. By memorandum dated September 21, 1995, Respondent directed Ms. Culligan to follow the interventions that "have been explained to you countless times."
The memorandum reviews the intervention plan in detail and concludes:
Failure to follow this directive violates the rights of the student in the academic setting when it has been clearly stated in writing, that this school will follow that particular policy. This is the third occasion that I've had the opportunity to address this particular policy with you and am therefore directing you to follow this policy to the letter.
If I can be of assistance, please feel free to contact me.
After receiving this memorandum and the assistance of Ms. Smith in improving her cultural sensitivity, Ms. Culligan reduced her office referrals to an acceptable level. But her claims of humiliation and embarrassment over Respondent's informative reply at the faculty meeting, as well as her testimony concerning other incidents, are largely the product of the early difficulties that Ms. Culligan experienced with Respondent's new, more demanding discipline plan.
Nassiff Incident: Paragraph 41
During another faculty meeting, Respondent was discussing an assembly that was to take place in the next day or two. The assembly, which featured drug-detecting dogs from the Port Authority, would be attended by ALC students. This was to be the first assembly ever for ALC students.
Respondent was discussing the logistical aspects of moving the students into and out of the assembly and explaining how the assembly was part of the academic rehabilitation of ALC students. Suddenly, Mr. Nassiff raised his hand and asked who would be responsible for watching his students. They were in physical education at the time of the assembly, and Mr. Nassiff thought that the physical-education teacher should continue to watch Mr. Nassiff's students during what was Mr. Nassiff's planning period.
Respondent had told the teachers that they could leave school early that day to make up for their lost planning time. Upon hearing Mr. Nassiff's question, some teachers groaned audibly. Respondent replied by asking Mr.
Nassiff, "You're an administrator-in-training. How would you respond to that question?"
Mr. Nassiff answered Respondent's question by saying, "I'd give me my planning period."
Respondent replied, "That's not an appropriate answer. If you want to be an administrator, you wouldn't ask a question like this. Let me see you after the meeting."
After the meeting, Respondent explained to Mr. Nassiff the importance of teamwork. Mr. Nassiff conceded that he had said the wrong thing and knew it the moment he had said it.
Respondent first gave Mr. Nassiff an opportunity to extricate himself gracefully from the awkward situation created by his question. When Mr. Nassiff persisted, Respondent answered him, directly but not in a hostile tone. Most teachers found nothing inappropriate in Respondent's handling of this situation. Mr. Nassiff and the few teachers who felt otherwise evidently preferred that Respondent handle privately an issue that Mr. Nassiff raised publicly. But Mr. Nassiff invited a public response, and Respondent's handling of the matter was entirely suitable.
Announcement Incident: Paragraph 39
One day early in the 1995-96 school year, the students misbehaved badly. The next morning, during the morning announcements, Respondent stated that he expected students to act appropriately in an academic setting. He noted that too many students were coming down to his office and that they needed to do what teachers tell them to do.
Respondent added words to the effect that teachers would continue to follow the intervention plan. The effect of such an announcement, nominally addressed to the teachers, was to notify the students that their teachers had no choice but to follow the intervention plan and, if the students objected to the plan, their problem was with Respondent, not with individual teachers. By this comment, Respondent was trying to take some of the pressure off the teachers for enforcing the new intervention plan, which, as noted above, imposed greater burdens on teachers than the previous policy with its excessive reliance on the timeout room and suspension.
The meaning of Respondent's announcement does not lend itself to contrary interpretations. Two of the three witnesses who testified that the announcement demeaned the teachers testified about a number of incidents. The testimony of these witnesses--Ms. Culligan and Ms. Minton--must be doubted based in part on the fact that their claimed reaction to Respondent's announcement appears disingenuous.
Holzborne Incidents: Paragraphs 36 and 37
Kathleen Holzborne is the lead communications teacher at the Academy.
One school day, Ms. Holzborne saw Respondent opening classroom doors in the Academy looking for someone. This was innocuous. Respondent was likely looking for someone or checking on nearby classrooms after a disturbance.
Another school day, Ms. Holzborne saw Respondent admitting drug dogs and their handlers into Academy classrooms while Mr. Wortham was elsewhere in the building. Respondent was doing this under the authority of Mr. Wiseman, who was also in the building.
Another school day, Respondent and Ms. Holzborne were in the cafeteria while the Academy students were eating lunch. Respondent said she did not need to stay, adding, "Daughter, everything will be fine here."
Respondent is from a family of ministers. He sometimes speaks of persons as sons and daughters, meaning they are sons and daughters of God. He used "daughter" in speaking to Ms. Holzborne in a personal, nonsexual manner not intended to intimidate or offend. Had she objected, he would have apologized and explained his innocent use of the word. However, Ms. Holzborne did not complain to Respondent or anyone else until, months later, she mentioned the comment during Petitioner's investigation. Testifying, Ms. Holzborne seemed much more upset over Respondent's alleged failure to return promptly a piece of a tripod, but Petitioner has not charged Respondent with this omission.
Intimidation Incident(s): Paragraph 38
Respondent did not intimidate his teachers or staff. To the contrary, he was supportive of teachers and staff, although he demanded that they work hard and smart.
At the time of Respondent's suspension, faculty morale was good. A small number of teachers were dissatisfied with Respondent, but not many. The greater part of the faculty got along with each other and Respondent.
A reliable portrayal of Respondent's supportiveness comes from Lisa McKeever, an ALC teacher who displayed an unusual degree of independence for a witness in this controversial case. She testified to tell the truth, unaffected by any fear of retribution from Petitioner or Dr. Santini or from the community of supporters of Respondent. Answering a question about whether she supported the Charles Dailey Foundation, which was organized to help pay Respondent's legal fees, she testified that, if she had money to give away, she would first give it to her children and then to literary or musical organizations before she would give it to the Dailey Foundation or any political organization.
On two occasions, students threatened Ms. McKeever while she was seven months pregnant. In one case, a boy pushed her up against a chalkboard. Respondent asked Ms. McKeever what she wanted him to do about it. Ms. McKeever did not want him suspended, so Respondent dealt with him, but did not suspend him.
In another case, a girl approached her with a clenched fist, threatening Ms. McKeever by saying, "You stupid flat-assed white bitch. Get out of my fucking face." Ms. McKeever was frightened by this assault, and Respondent expelled the student, who that night was arrested after attacking family members with a knife.
Respondent and Administrators, Law Enforcement Officers, Guardians, and School Board Policies
A. Overenrollment: Paragraph 51
The overenrollment issue arose at the start of Respondent's tenure as ALC Principal. Dr. Santini arranged a meeting on June 20, 1995, among the three new principals at the New Directions Center. The purpose of the meeting was to divide responsibilities among the principals. Ominously, Dr. Santini testified that she had had lots of experience with Respondent not cooperating.
It is not entirely clear what specific ALC enrollment policies were advocated by Dr. Santini and Respondent at the June 20 meeting, or even that either of them advocated a specific policy. Dr. Santini stated that the ALC was a short-term program. Respondent wanted the same flexibility that the ALC administrators had had in the past in deciding when to return students to their geographical schools. The ALC enrollment policy from the preceding school year had been the 45 good-day policy described above.
In general, Dr. Santini wanted to limit enrollments due to safety considerations. Overcrowding at the ALC became a bigger problem once the new school year got underway due to the introduction of more students from regular schools, as a result of a new zero-tolerance policy in the regular schools, and increased referrals from the juvenile detention center.
Respondent's argument for greater enrollment flexibility was based on behavioral and academic factors. Behaviorally, an ALC student might need more than 45 days before he is ready to return to his geographical school.
Academically, an ALC student might have difficulty returning to his geographical school due to the differences in the calendars at the ALC and regular schools. The high schools are on a seven-period daily schedule, and the ALC is on an 18- day modular schedule where one class is taught for 18 days. A behaving, attending ALC student could only take two and one-half classes in 45 school days, so that, when returned to his geographical school, he would be behind his classmates in most of his classes.
After the meeting, Dr. Santini spoke with Respondent privately and told him that his behavior during the meeting had bordered on the insubordinate. Respondent countered that Dr. Santini was discriminating against him on the basis of race.
Respondent's continued implementation of the 45 good- day policy at the start of the 1995-96 school year did not violate any directive that Dr. Santini had given him. Their disagreement during the June 20 meeting was probably limited to a disagreement over general philosophy. Most likely, Dr. Santini had decided to see the effect on ALC enrollment levels of Respondent's implementation of the 45 good-day policy.
On October 20, 1995, Dr. Santini conducted another meeting concerning ALC enrollments. This time she met with Respondent and Mr. Wiseman. She called the meeting after receiving a telephone call that a student had remained at the ALC since April 1995. She was also concerned with current ALC enrollment levels under Respondent's approach.
During this meeting, Dr. Santini told Respondent that the ALC building was designed for a maximum of 270 students. She told him to cap enrollment at 250 students.
Dr. Santini testified that she told Respondent that she approved of the 45 good-day policy. She also testified that Respondent was angry at the meeting.
If Dr. Santini approved the 45 good-day policy at the October 20 meeting, the only reason why Respondent would have angered at the meeting would have been a disagreement over the application of the policy; after all, Respondent wanted the 45 good-day policy. Perhaps, Dr. Santini believed that she was approving the 45 good-day policy, but in fact she was not, as evidenced by their closing comments and her October 25 memorandum, described below.
At the end of the October 20 meeting, Dr. Santini promised written guidelines and asked Respondent if he wanted any input. Dr. Santini testified that Respondent said that the only thing that he disagreed with was, if a student must be returned to his geographical school at the end of 45 days, ready or not, that those schools would be prepared to help him in the transition. Mr. Wiseman promised to adopt or modify the PASS program to help with this transition.
The significance of Respondent's comment, as recounted by Dr. Santini, is as additional proof that Dr. Santini had not approved the continuation of the 45 good-day policy and Respondent was resigned to following her new enrollment policy.
The comment tends to prove the elimination of the 45 good-day policy because, if the ALC were permitted to retain students until they were ready to return to their geographical school, there would be little need for the geographical school to help with the transition.
The comment proves the obedience of Respondent because he had disagreed was more than the issue of the preparedness of the geographical school to help the former ALC student. Respondent had tried and failed to win Dr. Santini's approval for the 45 good-day policy, so that the ALC students returning to their geographical schools would not need any special assistance from the geographical schools in the transition. But this comment proves that he was giving up on the 45 good-day policy.
Dr. Santini sent a memorandum dated October 25, 1996, to Respondent with copies to Petitioner, Mr. Wiseman, and all principals in the District. The memorandum largely memorialized what Dr. Santini had said at the meeting five days earlier.
Dr. Santini testified that the only change between the October 25 memorandum and what she had said at the October 20 meeting was that she had eliminated the 45 good-day policy. She explained that she did not want Respondent to be the sole person to decide what good days were.
However, the omission of the 45 good-day provision from the memorandum is strong proof that Dr. Santini never approved the 45 good-day policy at the October 20 meeting.
There were less drastic means of eliminating Respondent's discretion in applying the 45 good-day policy, without eliminating the policy itself. Dr. Santini could have reserved such authority for these decisions to Mr. Wiseman, herself, the principal of the geographical school, or some combination of the above.
The October 25 memorandum states in its entirety: The following plan is to be implemented immedi-
ately as a result of our meeting on Friday, October 20, 1995.
High school, middle school and ESE students will be returned to their home schools at the end of a quarter after approximately 45 days at the Alternative Learning Center (ALC).
In most cases, those students entering the ALC during the first three weeks of a quarter would be eligible for return at the end of that quarter. Those students entering after the first three weeks of a quarter would remain at the ALC until the end of the following quarter.
In rare cases a student may be returned to a different high school when recommended by the home school principal and agreed to by the receiving principal.
All high school principals have agreed to alter their PASS program to accommodate an orderly reentry of students into the high schools.
The ALC will not exceed 250 students. When full capacity is reached the student who has made the most progress will be returned to his/her
home school when a new student arrives at the ALC.
The above procedures would not prohibit a principal from requesting an earlier return or an extended stay at the ALC.
The ALC will continue to function in its capacity as a special center serving the high schools, middle schools and special schools with an ongoing influx and reflux of students. It is understood that the school principals and the ALC principal will main- tain open and direct communication in a spirit of cooperation to best help students. Ultimately, the length of a student's stay at the ALC is dependent upon the nature of the original offense and the sound judgment of the principals involved.
There are two possible interpretations of the October 25 memorandum. Either it is a consistent expression of an inflexible enrollment cap with the final sentence as a general surplusage to other, more detailed provisions to the contrary. Or, if the last sentence is to be given real effect, the memorandum is contradictory and meaningless.
Paragraph 1 of the October 25 memorandum states clearly that the duration of a student's enrollment at the ALC is 45 days. As mentioned above, there is no requirement that these be good days. The word "approximately" does not restore any discretion to the ALC principal or anyone else; rather, like Paragraph 2, the word "approximately" allows for some minor flexibility in shortening or lengthening the 45-day enrollment based on the end of the academic quarter.
More importantly, Paragraph 5 of the October 25 memorandum unconditionally limits the enrollment of the ALC to 250 students and supplies a simple procedure for the release of students when the enrollment exceeds 250 students. The student making the most progress when enrollment exceeds 250 students is returned to his geographical school. The returned student is not
necessarily prepared for the transfer; he is only the most prepared among the ALC students.
Paragraph 6 grants some discretion to the principal of the geographical school, not the ALC, to shorten or extend the stay of a student at the ALC. But the provision gives no guidance as to when stays should be lengthened. Nothing in this provision conflicts with the preceding provisions of the October 25 memorandum.
The last sentence of the flush language at the end of the October 25 memorandum seems to ignore the preceding, more- detailed provisions of the memorandum. The last sentence abruptly introduces some discretion to the ALC and geographical school principals as to the length of a student's stay at the ALC.
Respondent could not afford to read his supervisor's memorandum as contradictory and meaningless. His reading of the memorandum was guided by what Dr. Santini had told him at the October 20 meeting, which was that the 45 good- day policy was no longer in effect. When enrollment reached 250 students, Respondent had to return the students who had made the most progress.
As promised, Mr. Wiseman sent a memorandum dated November 1, 1995, to the eight high school principals stating:
Please send to me immediately, above your signature, a statement that you will provide the opportunity for returning students from the ALC to make up their work, and not be denied the chance to pass their classes.
Return your memo to me by Wednesday, November 8, 1995.
The principals did so.
Shortly after receiving the October 25 memorandum, in compliance with her directive, Respondent returned 75-80 students to their geographical schools. Included in this number was A.B., whom Respondent returned to Mariner High School.
Respondent had serious reservations as to A. B.'s readiness to return to a less-structured school setting. Even the student shared these misgivings. When he learned he was to be returned to Mariner High School, A. B. told Respondent that he was worried that he was not ready to return to a regular school. He had been apprehended with drugs or drug paraphernalia twice previously and was undergoing counseling. Three weeks after he was returned to Mariner High School, A. B. was apprehended with marijuana.
On December 13, 1995, a Board-appointed hearing officer conducted A. B.'s formal expulsion hearing. Witnesses at the hearing, including Respondent, were sworn to tell the truth and subject to cross examination. Petitioner was represented by counsel, and A.B. was represented by his father, who has been a law enforcement officer for 21 years and is currently employed with the Cape Coral Police Department.
Petitioner charged that A. B. had been in possession of marijuana and drug paraphernalia on November 28, 1995, and was a repeat offender. Petitioner
sought to expel A. B. for the remainder of the 1995-96 school year and the following year-- evidently, the maximum penalty allowed by law. A. B. had attended the ALC on at least two occasions. His more recent ALC enrollment was from April 17, 1995, through November 6, 1995.
In his opening statement at the expulsion hearing, A.B.'s father admitted that A. B. had been caught possessing marijuana and stated:
But the point of the issue too is that he was sent back to Mariner. He was in the ALC. He was flourishing in ALC for the first time.
Whatever Mr. Dailey sparked in him was the first time since he's ever been in school. He was bringing books home and everything else, which is not heard of from ALC.
When he was alerted to come back to Mariner, he went to Mr. Dailey and told him he wasn't mentally or physically ready to go back.
Because the other problem that if he's offered a joint, he can't say no. And Mr. Dailey agreed and that's when that fell apart less than four weeks later.
The hearing officer asked A. B.'s father if he wanted A. B. to return to the ALC. The father responded by saying, "Yes, sir. I never wanted him to leave. . . . And the result of this too which I wish people would take into consideration, the night that this happened, because of this, my wife tried to commit suicide."
A. B.'s father continued in his opening statement:
In ALC Dailey sparked four point something and he was studying. He was getting high grades. His grade point average went up. He didn't want to leave. He did not have the problem.
Four weeks--it wasn't even four weeks after he was back that this happened. ....
I'm not totally blaming [Mariner High School]. A[.] is at fault with that too.
And that's what we are addressing through the counseling. But to put him out in the street
or expel him I don't think is the answer either. Especially since for the first time in his life he showed an interest in school.
Petitioner's second witness in the expulsion hearing was an assistant principal at Mariner High School. He testified in response to a question directed toward the propriety of the handling of A. B. at Mariner High School:
Our position there is that Mr. Dailey is a competent expert, that he handles the people and when he recommends for us to come--for someone to come back, we take that individual.
. . .
Answering the question whether he would have handled A.B. differently if he had known that he had not successfully completed the ALC program, the assistant principal testified:
. . . You know, we have to accord him his rights like all the kids who complete the program at the Alternative Learning Center. Once he's paid his debt and satisfied them that he's capable, then they send him to us. I don't know of any students they send to us that they don't feel like has made the improvement that the school was set up to start with. Do you understand what I'm saying?
So when they come to us, their staffing to exit over there is telling us that they feel like they had--now the kid has shown improvement and he's now corrected what it is and he's ready to return.
Petitioner's last witness at the expulsion hearing, John Hennebery, who is the District Director of Student Services, testified that the ALC Principal determines when the student is to be returned to his geographical school.
A. B.'s father called Respondent as his sole witness. In response to a question as to A. B.'s progress at the ALC, Respondent testified:
. . . I noticed, number one, he tends to be completely honest and tells the truth. That's the experience I have had with him. He is begin- ning to come around in terms of when he feels someone is making up evidence or getting to that point, he would seek out--attempt to seek out in terms of trying to find some assistance rather than jumping in first. But that again is a kind of structured environment that we have at the Alternative Learning School.
Q: In your professional opinion, do you believe that [A.] at this point in time still needs that structure of school?
A: I most certainly do.
Q: At the time when he was requested from the School Board to go back to Mariner, did [A.] approach you in reference to this?
A: Yes, he did.
Q: And in what aspect did he?
A: The usual policy of the district was that on
a first offense there was a 45 good day policy. That means that the student has the responsi- bility of spending 45 good days there, good days, which are defined as attendance, punctu-
ality, academic and discipline. And on the second offense it's a ninety day offense.
Q: Uh-huh.
A: Then this year the rules are changed. In the middle of the semester. I was given a directive from the Assistant Superintendent, along with other Principals were informed of
it; that the students were called by numbers. At the Alternative Learning School were addi- tional programs of juvenile justice, programs dealing with the number of felons that we were having come into school; that our numbers were getting too large and we had to--I had to send students back.
[A.] was one of the students that had been there a period of time and that based on the period
of--on the time that he had spent there, that we have to send him back to Mariner. [A.] had some concern about that and spoke with me in great detail about going back and being under those pressures.
Now my conversation with [A.] was that because if he had done well at the Alternative Learning School, that my expectations with [A.] would be that he would go over there and do well and make good decisions at Mariner High School.
So that in terms of that's the type of conversa- tion that we had and that's where it led. Now did [A.] complete his stay? No, he did not. And he
is not one that I would have automatically sent back to Mariner because I was not yet convinced of his ability to deal with the pressures that he was
going to have to face at Mariner High School.
* * *
Q: But your general concerns that the peer pressure is basically--or the pressures in the school itself that he couldn't handle was also [A.]'s concerns too when he came to speak to you about going back?
A: Yes, those were [A.]'s concerns but those would be anyone's concerns as relates to going back to the regular school once you have been at the Alternative for a long period of time. You get the anxiety of going back and wanting to do well. So it's not out of the ordinary for students, I might say, to be excited. I have students right now that actually do something wrong so they won't have to go back.
So [A.]'s concern or his emotions that he expressed were not unordinary. I felt at that time that because I was given a directive, that it was my responsibility as a Principal to assist him in moving in that direction and I had all the confi- dence in the world in the Mariner staff that they would assist him in moving in that direction. There is an issue that I must be very honest is that the decisions that [A.] makes is [sic] [A.]'s decisions and once in fact--and this is what we teach them
at the Alternative School; that once in fact you see that kind of situation present, then you must not go to the situation. You must remove yourself from the situation. And, you know, I'm one that's
trying to be very fair and equitable in this hearing and in telling you that this is a situation that, yes, he should have known not to go near that, should have backed off from it.
Q: Did he?
A: No, sir, he didn't. Was I ready to release him? No, I wasn't. I'd like to concur with Mr. McNerney. I'd like to see [A.] back at the Alternative Learning School for ninety days with the approval of the-- with some kind of documentation showing that he has completed his drug testing and after
that, then backing up Mr. McNerney's decision in attendance at the school. And I'm being very honest.
The preceding excerpts from the transcript represent all of Respondent's material testimony. Petitioner conducted limited cross examination, devoted to an exposition of the District's drug policy. A. B.'s father introduced into evidence a letter dated December 12, 1995, from Licensed Mental Health Counselor Beverly Barbato, Ph.D., stating that it is in A. B.'s best interest to return to the structure of the ALC.
On December 18, 1995--working without a transcript in the interest of time--the hearing officer summarized the testimony of the witnesses, commending each of them for some aspect of their participation in the hearing. As to Respondent, the hearing officer stated: "Mr. Dailey should certainly be commended for his honesty and his ability to assess the situation in a very diplomatic manner."
Acknowledging that Petitioner sought expulsion for the maximum time permitted by law, the hearing officer stated that he "sense[d] that both Mr. Hennebery and Mr. McNerney felt that reinstatement should occur in the 1996-1997 school year or upon [A.] completing a successful drug rehabilitation program pursuant to Florida Statutes." Never mentioning old or new enrollment policies at the ALC in his discussion, the hearing officer accepted the recommendations of Respondent, A. B.'s father, the treating health care professional, and A. B. that A. B. be placed on probation for the remainder of the 1995-96 school year at the ALC, subject to additional conditions. In no way did the hearing
officer's recommendation rely on Respondent's brief testimony about the transfer of A. B. under the new ALC enrollment policy.
The court reporter finished the transcript on December 26, 1995. In Exceptions filed January 8, 1996, Petitioner requested that A. B. be expelled at least for the remainder of the 1995-96 school year. The record does not indicate what action the School Board took on the hearing officer's recommendation.
The expulsion transcript reveals that the Assistant Principal at Mariner High School construed the ALC enrollment policy to ensure that students would not be returned to their geographical schools until they were ready to return. The Director of Student Services shared this misinterpretation, at least to the extent of thinking that the transfer decision was made by the ALC principal.
The expulsion transcript reveals that Respondent told the truth that
B. had come to Respondent and said he was afraid he was not ready to return. Respondent told the truth that he too shared these concerns. And Respondent told the truth that the current policy was that he had no choice but to return unprepared students when ALC enrollments reached the cap.
In one respect, Respondent's testimony may have reflected a misunderstanding of a portion of Dr. Santini's policy. He testified that the new policy meant that "the students were called by numbers."
Numbers triggered the necessity to return some students. But the new policy did not require that students be returned on a first in, first out basis. Rather, the students to be returned were to be those most prepared to be returned.
Respondent's testimony seems to indicate that he interpreted the new policy as providing that he return students on a first in, first out basis. He implied that he selected for transfer the students who had been enrolled the longest at the ALC. In his next sentence, Respondent mentioned "numbers" in connection with the enrollment at the ALC getting too high as trigger for the need to transfer some ALC students. This suggests that his reference to "numbers" was not to the determination of who to return to their geographical schools.
But in his next sentence, Respondent implied that the decision to return A. B. was based strictly on how long he had been at the ALC. However, two sentences later, Respondent recounted how A. B. had done well at the ALC, implying that he had at least made some progress, although without any mention of his progress relative to the progress of the other ALC students.
Close analysis of Respondent's testimony does not reveal the basis on which he selected the students to be transferred. However, even if Respondent returned A. B. on a first in, first out basis, this action, although not consistent with the better reading of the October 25 memorandum, would have been consistent with Paragraphs 1 and 2, which imply that the sole criterion of enrollment duration is the length of the student's enrollment. Although close scrutiny of the October 25 memorandum permits a reconciliation of Paragraphs 1, 2, and 5--though not also the last sentence of the flush language-- Respondent cannot be expected to perform such textual analysis to discern meaning from such careless wording.
In any event, Respondent's testimony at the expulsion hearing did not dwell on the inflexible enrollment cap ordered by Dr. Santini. He mentioned it briefly, then proceeded to describe, almost as briefly, his application of the policy in A.B.'s case. He cast his testimony in a light favorable to Petitioner by explaining that many ALC students are worried about their ability to survive in a regular school, A. B. had made some progress at the ALC, Respondent had encouraged A. B. to behave at Mariner High School, and A. B. must bear final responsibility for his poor choices.
After receiving Dr. Santini's memorandum, Respondent was doing the best he could to implement the new enrollment policy. Probably unknown to Dr. Santini at the time, Respondent called Mr. Wiseman around Christmas vacation and asked if he should transfer 112 students then or wait until the end of the semester in January. Mr. Wiseman told Respondent to retain the students until the semester break.
Dr. Santini never tried to clarify her confusing memorandum to Respondent or assist him in its implementation. In response to questioning during a School Board meeting from a School Board member concerning the conflict between Paragraphs 5 and 6 of the October 25 memorandum, Dr. Santini issued a memorandum of clarification dated January 5, 199[6.]
The January 5 memorandum was issued to all middle- and high-school principals. The first four paragraphs are identical to the October 25 memorandum, except for the addition of a sentence to the fourth paragraph mentioning some new software to facilitate the transition of students back to their geographical schools.
The new fifth paragraph states:
The ALC will not exceed 250 students unless there are special circumstances with individual students that may warrant extended time. The principal of the geo-school will discuss these circumstances with the ALC principal. When extended time is recommended, the ALC principal
will then compile a short report to the Secondary
Operations Director that includes the following: the time already spent at ALC by that student, the original offense committed by that student, and any other justification that may warrant extended time (i.e., parent request). The Secondary Operations Director will consider all
above factors and then give approval or disapproval on any requested extended time.
Dr. Santini also revised the last sentence of the October 25 memorandum to reflect that the length of a student's assignment to the ALC is dependent on the nature of the original offense and the sound judgment of the principals and-- now--Director of Secondary Operations.
The overenrollment issue did not end here. Dr. Santini conducted a meeting with Respondent and Mr. Wiseman on January 9, 1996, but this is addressed below in connection with another issue.
However, one more fact has a bearing on the issue of overenrollment itself. Respondent never violated the ALC enrollment policy as Dr. Santini applied it to Respondent's immediate successors, Ms. Smith and Mr. Hagy.
During the 77 days of Respondent's tenure, the average student enrollment was 265 students. During the 73 days of his successors' tenure, the average student enrollment was 253 students. After adjusting for actual attendance, there were 184 students present on average under Respondent's tenure and 189 students present on average under his successors' tenure.
Improper Voluntary Enrollment and ESE Procedures: Paragraph 52
At the end of July 1995, Respondent called Mr. Hennebery and asked if he could voluntarily enroll two students. Mr. Hennebery explained that ALC administrators had made voluntary enrollments before deciding to discontinue the practice one or two school years ago. Since that time, Dr. Santini or Mr. Wiseman had approved all voluntary enrollments.
Mr. Hennebery was not Respondent's direct or indirect supervisor. Mr. Hennebery lacked the authority to accept voluntary enrollments, or to make policy on this issue.
At no time did Respondent's direct supervisors, Dr. Santini or Mr. Wiseman, instruct Respondent as to voluntary enrollments.
The issue of voluntary enrollments is not, in any event, of major importance. Of the hundreds of students enrolled at the ALC during Respondent's tenure, not more than 18 of them were voluntarily enrolled. Most if not all of the students whom Respondent voluntarily enrolled were exceptional cases who were ineligible to return to their geographical schools or enter the Academy.
During Respondent's tenure, six ESE students were transferred from the ALC without individual educational plans. Respondent relied on Mr. Vitale, who was the ESE department head, and Ms. Smith to handle ESE paperwork, as Respondent candidly admitted at the hearing that he was unknowledgeable about ESE procedures.
Five of the six students left the ALC and entered Adult Education. These were obviously older students for whom an individual educational plan is of less importance than it would be for students with many more years in the educational system.
Ultimate responsibility for ensuring compliance with ESE procedures at the ALC rests with Respondent. However, the circumstances suggest only an innocent mistake on Respondent's part, not incompetency, misconduct in office, or gross insubordination.
Student Visits to Hi Tech Center Central: Paragraph 55
One day in late November 1995, Ms. Saldana had arranged for two students to visit the District's High Tech Center Central, which is a vocational school. When they returned, they told her that, at the end of the day, the counselor at High Tech Center Central had refused to talk to them because they were ALC students.
Ms. Saldana called High Tech Center Central Director Ron Pentiuk, who confirmed that he would not allow ALC students to enroll directly from the ALC or even to visit his campus while still enrolled at the ALC. He said that this had been his agreement with Ms. Folaros.
Ms. Saldana explained that, in the case of three to five students, they could not first return to their geographical schools because they were graduating early. If they could not enroll in High Tech Center Central directly from the ALC, they could not attend the vocational school. Mr. Pentiuk refused to consider the request, insisting the students still had to spend six to nine weeks at their geographical schools before they could enroll at the vocational school. He said someone in the District office told him not to accept any more ALC students.
By letter to Respondent dated December 19, 1995, with copies to Dr. Santini, Mr. Wiseman, Mr. Wortham, and others, Mr. Pentiuk restated his position: "no ALC students will have direct access to High Tech Central programs. . . . [A]ll visitations shall come from the student[']s geo school and not ALC directly." The letter cites as authority for this policy a meeting that took place at the start of the 1994-95 school year between representatives of High Tech Center Central and the New Directions Center. The implicit reason for this policy is that Mr. Pentiuk wanted someplace to send a student if he failed to perform at High Tech Center Central.
By memorandum dated January 10, 1996, to Mr. Pentiuk, Respondent memorialized a discussion at a principals' meeting earlier that day. The agreement appears to allow ALC students who are ready to be returned to their geographical schools, but have not yet been returned, to visit the High Tech Center Central.
The record reveals only that Respondent tried to send ALC students to the High Tech Center Central for visits. When they were treated rudely by Center personnel, Respondent and Ms. Saldana discovered an unreasonable policy that emanated not from the District office, but from an understanding reached by Mr. Pentiuk and Respondent's predecessor.
This agreement had little logic to commend it. It delayed and, in some cases, denied ALC students access to important vocational training. Mr. Pentiuk explained that he could not deal directly with ALC students because he needed to have a place to which to return them if they misbehaved. However, his concern does not address the aspect of the policy prohibiting even campus visits by ALC students. And his concern fails even to address the remainder of the policy, as the record does not explain why Mr. Pentiuk could not expel students back to the ALC as easily as to their geographical schools.
In any event, Respondent and Ms. Saldana rectified the situation, achieving a much-improved policy than the one that preceded Respondent's involvement.
Refusal to Reenroll J. M.: Paragraph 50
In September 1995, Respondent refused to reenroll J.M. when his grandmother brought him back to school after an unexcused absence. J. M.'s father had called Respondent and complained that his mother was interfering with
J. M., her grandson. The boy was skipping school with the father's brother, who was also of school age. J.M. asked Respondent not to let the grandmother return the boy to school or supply a legal excuse for his absence.
When J. M.'s grandmother brought the boy back to school one day, Respondent did as the father had directed him. Respondent told the grandmother, "Ma'am, you can't bring your child back. I got a call from your son, and he is the legal guardian. Call your son and get it straight with him. I shouldn't even be talking to you about J. M."
E. Arrest of W. S.: Paragraph 49
On November 1, 1995, W. S. tried to leave the cafeteria without permission. She has a history of violent outbursts. Riley Ware, a teacher, tried to stop her. W. S. asked him who he thought he was with that crooked gold tooth. Mr. Ware responded by telling her to sit her "big-lipped" self down. (Respondent later reprimanded Mr. Ware for this comment.) W. S. swore at Mr. Ware, calling him, among other things, a "black bitch."
Teacher Christine Peete then intervened. She said, "Young lady, you've been very inappropriate." Gently placing her arm on W. S.'s shoulder, Ms. Peete added, "Come with me until you cool off."
W. S. angrily responded by slinging Ms. Peete's arm off of her shoulder. She shouted, "Get your hands off me, bitch. I'll dip on [beat up] all of you. Ms. Peete had to return to her class, so she asked Ms. Krucher to escort W. S. to the office. Ms. Peete found Respondent in the middle-school area and told him that he needed to deal with W. S.
Respondent returned to his office to find W. S. leaving. He greeted her by saying, "Well, daughter, Ms. Peete tells me that you called her a bitch."
S. said she called Mr. Ware a bitch, but she did not call "that bitch" (Ms. Peete) a bitch. Respondent told her she was suspended for five days, and W. S. replied, "I don't give a fuck about five days." Respondent raised the suspension to seven days, and W. S. lunged toward Respondent and Ms. Peete, who was standing next to him.
W. S.'s initial lunge threw Respondent, herself, and a computer to the floor. Respondent wrestled his way to the top, and W. S. demanded that he get his "big belly" off her. She scratched him or snapped his suspenders, causing his chin to bleed. She grabbed his tie and choked him. She tried to bite and kick him. Respondent ordered a nearby staffperson to call the police.
Officer Garrett Kusienski of the Fort Myers Police Department responded to the call and arrived at the school in a three or four minutes. When he arrived at the ALC office, Respondent and W. S. had just gotten off the floor, and Respondent and several male staffmembers were escorting her into the office.
Respondent approached Officer Kusienski and asked him to arrest W. S. Officer Kusienski asked why, and Respondent directed him to handcuff and remove her. Officer Kusienski refused to do so until Respondent explained why.
Officer Kusienski's police report, which is credited, states Respondent answered that, if Officer Kusienski were not going to do his job, "I needed to get off his campus." Officer Kusienski asked again what happened, and Respondent "stated that he would give all the details to Chief Hart when he was contacted, to get the hell off his campus if I wasn't going to arrest anyone." Officer Kusienski left the building, but returned a few minutes later, spoke with W. S. and possibly others, and took her into custody. The police report
notes that another officer, who had arrived on the scene as backup, took statements from witnesses.
At the hearing, Officer Kusienski testified that Respondent said, "If I'm not going to do my fucking job to get the fuck off this campus." Officer Kusienski did not explain at the hearing why he deleted one "fuck" entirely and replaced another with "hell" in his police report. It is unlikely that Officer Kusienski was graciously sparing Respondent any embarrassment in the report because he also noted that Respondent became "very disorderly toward me."
The only other evidence that Respondent said "fuck" is Ms. Krucher, who testified that Respondent said it to Officer Kusienski once, not twice as Officer Kusienski testified. However, her testimony is contradicted by numerous other witnesses, who testified that she was not there and they did not hear Respondent say "fuck" to the officer or otherwise during the incident. Ms. Krucher's testimony has not generally been credited on grounds, among others, that she harbored considerable ill-will toward Respondent.
The testimony of Officer Kusienski is countered by the testimony of Officer Jackson, also of the Fort Myers Police Department. Officer Jackson testified that Respondent did not use foul language toward Officer Kusienski.
There is no preponderance of the evidence as to what Respondent said to Officer Kusienski.
Respondent Late to Work: Paragraph 54
On November 16, 1995, the parent of a student at Cape Coral High School called Respondent and asked him to attend a meeting for the purpose of determining whether to transfer the parent's child to the ALC.
The parent did not want the child transferred to the ALC and asked for Respondent's help at the meeting. Seeing a chance to help control the ALC enrollment, Respondent agreed to attend the meeting, which was scheduled for 7:00 a.m., and try to help the student remain at his geographical school.
Respondent's intent was to speak first and then drive back to the ALC, which was about 20-30 minutes away at that time of day. Respondent reasonably expected that he would arrive at the ALC between 7:30 a.m. and 7:45
a.m. Respondent typically arrived at school at 7:30 a.m. and took cafeteria duty until school starts at 8:00 a.m.
The evening of November 16, Respondent called Mr. Ware and told him to cover the cafeteria the following morning in case Respondent was late. Ms. Smith was on personal leave on November 17. However, Respondent and LAMP principal McCollum had an agreement that, if one of them was absent from the campus, the other would serve as acting administrator to be called upon by teachers or staff as needed. Their agreement--which was a necessity for Ms. McCollum because she lacked an assistant principal--did not require that either give the other advance notice of his absence.
Unfortunately, Respondent did not get to speak first at the meeting, which ran longer than Respondent had expected because the student had been charged with drug possession, not merely disrespect to a teacher, as Respondent had been told. From the meeting at Cape Coral High School, Respondent called someone--probably Mr. Ware--and told him that he would be later than he had
anticipated the prior night. Respondent returned to the ALC between 8:30 a.m. and 8:45 a.m.
When Respondent did not appear at school by 8:00 a.m., Ms. Krucher told Mr. Wortham that Respondent had left the ALC without an administrator. Mr. Wortham called Dr. Santini and told her. The same afternoon, Dr. Santini or her designee called Respondent and asked him where he had been that morning.
Dr. Santini and Mr. Wiseman met with Respondent on November 20 to discuss Respondent's tardiness on November 17. This meeting is described in the following section. By memorandum to Respondent dated November 28, 1995, with copies to Petitioner and Mr. Wiseman, but not to Respondent's personnel file, Dr. Santini concluded as to the incident:
As per our conversation of November 20, 1995, I am reminding you that I consider the fact that you were not in school on November 17, 1995 until 8:45 A.M. with no assistant present, a serious offense.
The students at ALC need constant monitoring
and supervision and to have the school unstaffed by any administrator, even for forty minutes, could lead to a catastrophe. I do not expect this to happen again.
By letter dated December 8, 1995, to Dr. Santini, with copies to Petitioner and Mr. Wiseman, Respondent acknowledged receipt of her November 28 "letter relating to your concerns of me not being present in my building without an assistant." The letter explains that, once at the Cape Coral High School meeting, Respondent learned that the student had not only threatened a teacher, but had also used drugs. The letter states that Respondent had previously covered for Mr. Wortham and Ms. McCollum.
Respondent's letter concludes:
This is not to say that I don't concur with you. I most certainly agree with you whole heartedly that not only in ALC but all schools, we must have an administrator on duty. An administrator was on duty, as I had informed you verbally. Mrs. McCollum and I had total agreement relating to coverage without any problems.
Your letter gives the perception that I was purposely avoiding my responsibility and was irresponsible in fulfilling my duty as a principal. I would like the record to show that I was fulfilling my duty as an educator, as a principal and as a community leader.
Through my efforts, I was able to at least save the life of a young man that we could have possibly lost to drugs. This is one I don't have to look over and he not look back.
Thank you for your concern and I accept your
letter of concern and would vow that I will continue to work with you and to make the ALC the best learning environment that I can.
Dr. Santini's November 28 letter is not a letter of reprimand, nor did she intend for a copy of the letter to be included in Respondent's personnel file. Her intent is inferred from the absence of the letter from Respondent's personnel file in mid-February, the omission from the letter of any express notation of copies to Respondent's personnel file (as contrasted to the January
2 letter described below), and the failure of Dr. Santini to respond to Respondent's subsequent characterization of the letter in his letter of December 8.
Petitioner failed to prove that Respondent violated any policy of the District in effect on November 17. The record reveals no prohibition against having another administrator, such as Ms. McCollum, cover for Respondent for a short time, even in the absence of advance notice.
November 20, 1995, Meeting: Paragraph 42
Three days after Respondent was late to work due to the meeting at Cape Coral High School, Dr. Santini and Mr. Wiseman visited Respondent to discuss the incident, as well as charges of heavy-handed dealing with students, yelling at teachers, and leaving campus early. Dr. Santini and Mr. Wiseman dismissed as unfounded all charges except for Respondent's tardiness on November 17.
Around this time, Ms. Krucher, who had been talking to Mr. Wortham daily, began contacting Dr. Santini and possibly Petitioner, whom Dr. Santini testified that she had suggested Ms. Krucher call. The purpose of these calls was to supply, on a confidential basis, unfavorable information about Respondent. If the information resembled her testimony, nearly all of it was unreliable.
One incident illustrates the lengths to which unidentified persons would go to fabricate evidence unfavorable to Respondent. By two-page, handwritten letter dated February 17, 1996, from Ms. Pepin to Ms. Minton, Ms. Pepin objected to a statement attributed to Ms. Minton in the newspaper to the effect that she spoke for all of the ALC staff when she criticized Respondent. In her letter, which is entirely supportive of Respondent, Ms. Pepin admitted that, last June, she had not much liked Respondent entering her classroom and giving his "new sheriff in town" speech. But the letter continues to state that she now understands the effectiveness of Respondent's style.
Someone--not in the office of Petitioner's counsel-- fraudulently altered Ms. Pepin's letter and sent it to Petitioner's counsel. By careful folding, whiting out, and photocopying, this person reduced the two-page letter to five and one-half lines and moved Ms. Pepin's signature beneath these lines, so as to make the letter look like a short note objecting to the "new sheriff" speech. This person then passed the counterfeit note as a gross distortion of Ms. Pepin's views-- literally out of context.
It is highly unlikely that such fraud would be perpetrated by someone in the District office. The record does not reveal who had access to the letter after it was received by Ms. Minton. But the incident reveals indisputably the unreliability of at least some of the information that Dr. Santini and Petitioner received about Respondent.
In any event, toward the end of the November 20 meeting, Respondent demanded that Dr. Santini tell him who had made the allegations against him. The request was not unreasonable given the inaccuracy of most of the charges.
Dr. Santini refused to divulge the name or names of these persons. She explained reasonably that, if she were going to do something about the charges, she would tell him, but she was not going to do anything about them.
Petitioner failed to prove that Respondent was rude in the November
20 meeting. Dr. Santini's November 28 memorandum makes no mention of any rudeness. Petitioner's counsel did not inquire of Mr. Wiseman as to Respondent's behavior at the November 20 meeting.
Dr. Santini's testimony was not detailed in its description of Respondent's behavior at the November 20 meeting. On direct, she testified only that Respondent exhibited an "insubordinate attitude," and "we couldn't talk to him for his continuing to talk to us." Dr. Santini did not use the word "shout" or "yell" to describe Respondent's manner of speaking. On cross, Dr. Santini added only that Respondent was "insubordinate, rude, and unreceptive."
Gate Incident: Paragraph 43
Immediately after school on December 12, 1995, a boy hit a girl near the front gate of the New Directions campus. Respondent, Mr. Ware, Mr. Gilmore, Mr. Smith, Ms. Krucher, Mr. Nassiff, Mr. Wortham, and other adults immediately went to the scene.
At first, the two students refused to tell Respondent what had happened. A group of boys outside of the gate had seen the altercation. Respondent motioned them to enter the school grounds, but, before he could talk to them, Mr. Nassiff told Respondent that he had seen the altercation. Not needing to speak to the group of boys, Respondent motioned them to go back. However, two or three of them were already inside the gate.
A security guard was in the process of locking the two front gates, so Respondent told Mr. Ware and Mr. Smith to escort the two or three boys off campus through the back gate, which was closer to their homes. Unknown to Respondent, the remaining boys from the group had just told Mr. Wortham that they were going to beat up the next student whom they saw. Respondent, the two students involved in the altercation, and other staff, except for Mr. Ware and Mr. Smith, walked toward the ALC where Respondent could deal with the two students.
Respondent saw Mr. Wortham signalling to Ms. Krucher, and Respondent asked her what he wanted. She replied that he wanted her to close the back gate. Respondent told her not to close the back gate because he had just sent Mr. Ware and Mr. Smith with some students to let them out the back gate. He reminded her that he, not Mr. Wortham, was her boss.
At the time, Respondent was unaware that some Academy students were preparing Christmas decorations inside the back gate, which typically remained open before and after school for deliveries. Respondent was also unaware that Mr. Ware and Mr. Smith had not gone to the back gate because they had been able to get the students through one of the front gates before it had been locked.
After Respondent returned to the ALC building, the group of students walked around the side the school to the back gate, where one or more of them beat up an Academy student so badly that he required hospitalization.
As soon as Respondent learned of the incident in the back, Respondent called Mr. Wortham, who said he was angry and had some concerns. Respondent invited him to discuss them, but he declined, saying he would instead call Dr. Santini. Respondent suggested that he take his concerns directly to Petitioner in that event.
Respondent then found out from Mr. Nassiff and Ms. Krucher what had happened. Respondent asked Mr. Nassiff to explain to Mr. Wortham that Respondent had not known that there were students in the back inside the gate and that Respondent had sent two teachers back there to escort students out of the campus.
Shortly after that, Respondent went to the Academy building to speak to Mr. Wortham. Respondent explained what had happened from his perspective, and Mr. Wortham acknowledged that he had later found that out, but, by that time, he had already called Dr. Santini.
Petitioner did not call Mr. Wortham to testify about the gate incident, even though Petitioner claims it was his order that Respondent countermanded.
Under the circumstances reasonably known to him at the time, Respondent behaved responsibly throughout the gate incident. He did not know he lacked crucial information when he told Ms. Krucher not to go to the back gate. But he reasonably assumed that he had more information than did Mr. Wortham. He knew that he had already sent two men to the back. Even had he known that the boys wanted to beat someone up and that an Academy student was in the back, Respondent would reasonably have relied on Mr. Ware and Mr. Smith to prevent the attack.
When Respondent told Ms. Krucher that he, not Mr. Wortham, was her boss, he was merely emphasizing his direction that she not close the back gate. He was not stating the cause for the direction. The cause was that he had sent two men to the back gate. Respondent's comment about who was Ms. Krucher's boss was thus not an act of insubordination or lack of cooperation.
I. Respondent's Police Interview About Gate Incident: Paragraph 48
Mr. Nassiff witnessed the police interview of Respondent concerning the gate incident. In the interview, Respondent did not state that he countermanded Mr. Wortham's order to Ms. Krucher to go lock the back gate.
Respondent did not withhold material information from the police, who were investigating the beating of the Academy student, not Respondent. The direction that Respondent gave Ms. Krucher was entirely appropriate under the circumstances as reasonably understood by Respondent at the time that he told her not to close the back gate. There was no reason for Respondent to mention this minor point to the police.
J. January 9, 1996, Meeting: Paragraph 44
Three days after the gate incident, Dr. Santini asked Respondent to come to her office that day. He said that he was helping students deliver Christmas food baskets to the needy and could not, so they set up a 7:00 a.m. appointment for the following Monday, December 18.
When Respondent arrived at the meeting, expecting it to be between him and Dr. Santini, he found Mr. Wiseman and Mr. Wortham, who had prepared a written statement. Dr. Santini said she wanted to hear both sides of the gate incident. Respondent objected that the meeting was unfair because he had not had the chance to prepare a statement. Dr. Santini replied that she had not asked Mr. Wortham to prepare a statement, and Respondent said that at least he had known what the meeting was about.
Mr. Wortham and Respondent each stated what happened. Mr. Wiseman asked Mr. Wortham if he had disclosed to Respondent the threat by the group of boys in the front, and Mr. Wortham admitted that he had not. Dr. Santini said that she would speak to Ms. Krucher to obtain a statement, but refused Respondent's request that she also speak to Mr. Ware and Mr. Smith.
Respondent was worried that he was being set up and informed Dr. Santini that he would be requesting a meeting with Petitioner to complain about the discriminatory treatment that he was receiving. Respondent contacted Petitioner's office to set up a meeting.
Petitioner contacted Respondent during Christmas break, and, at her request, the two of them met for two hours on December 28 at a local restaurant. They discussed the ALC enrollment policy, Respondent's testimony at the expulsion hearing, Respondent's claims of harassment by Dr. Santini, Dr. Santini's practice of invariably bringing Mr. Wiseman with her on visits with Respondent, Respondent's good relationship with Mr. Wiseman whenever he was separated from Dr. Santini, and the gate incident. Petitioner told Respondent that he needed to return to school after Christmas break and work more closely with his supervisors, as well as Ms. McCollum and Mr. Wortham. Petitioner promised to set up a meeting among her, Respondent, and Dr. Santini. This meeting was later scheduled for January 9, 1996, at 3:00 p.m.
By letter to Respondent dated January 2, 1996, with copies to Petitioner, Mr. Wiseman, and Respondent's personnel file, Dr. Santini stated that she had completed her investigation into the gate incident and had spoken with Respondent, Mr. Wortham, and Ms. Krucher following the meeting of December
Dr. Santini concluded:
the key issue is the fact that after Mr. Wortham asked your security guard, Lisa Krucher, to run to the back of the school and lock the gate because he felt the boys who were threatening to harm someone would
come in through the back gate, you instructed Lisa Krucher not to lock the gate because she worked for you and not Mr. Wortham. I consider this action on your part a poor judgment call and a lack of cooperation with other adminis- trators on campus.
* * *
I am directing you from this point on, to work together with Mr. Wortham for the benefit of the children in the school. The attitude that
employees work for one principal and not another is an attitude that can cause disruption and,
as we have seen with regard to this incident, harm to a student.
Dr. Santini's letter misstates an important fact. Respondent did not redirect Ms. Krucher "because she worked for you and not Mr. Wortham." He redirected her because he had sent two able staffpersons to the back gate, and there was no need to send a third person.
Dr. Santini evidently discredited an important element of Respondent's version of the gate incident. She could not have determined that Respondent countermanded Ms. Wortham's order for the sole reason of showing Ms. Krucher who was her boss, unless Dr. Santini had eliminated the possibility that Respondent countermanded the order because he had already sent two men back there.
Whether Respondent sent the two men to the back or not is a difficult fact question. Although Dr. Santini might reasonably have concluded that Respondent, Mr. Ware, and Mr. Smith were lying, her factual determination is deficient as long as she refused to talk to Mr. Ware and Mr. Smith. Respondent was reasonably concerned with Dr. Santini's fairness when she talked to Mr. Wortham's corroborating witness, but refused even to talk to Respondent's corroborating witnesses.
On January 5, 1996, which was the date that Dr. Santini issued her letter clarifying the October 25 memorandum on the ALC enrollment policy, Dr. Santini contacted Respondent's office to set up a meeting for January 8, which was the day prior to their meeting with Petitioner. She had by now seen the transcript of the expulsion hearing and wanted to discuss this matter with Respondent.
Taking the advice of Dr. Cecil Carter, an administrator in the District, Respondent called Dr. Santini's office back and asked the purpose of the meeting. Dr. Santini relayed the information through someone in her office that they were going to discuss Respondent's "deposition."
The only deposition with which Respondent was familiar was in connection with his testimony in the Rockford, Illinois desegregation case. Dr. Santini inadvertently used "deposition" to mean Respondent's testimony at the A.
B. expulsion hearing. However, Respondent assumed that she was going to discuss some aspect of desegregation with him.
Around 2:00 p.m. on January 8, Respondent told his secretary to call Dr. Santini's office and cancel the meeting. He told his secretary that he was ill and going home directly after school, but told her to tell Dr. Santini that she could call Respondent at home and they could at least talk on the phone.
Dr. Santini did not call Respondent at home. Instead, she and Mr. Wiseman appeared, without prior notice, in Respondent's office between 8:00 and 8:30 a.m. on January 9, 1996, which was the day of the meeting with Petitioner. Respondent said he was busy with school duties, and they waited until he could see them.
In a few minutes, Respondent, Dr. Santini, and Mr. Wiseman met. Dr. Santini started the meeting by saying, "Charles, I'm going to talk to you about this deposition." She showed him the transcript of the A. B. expulsion hearing. She stated, "The way this looks, I'm going to have to write you up."
Understandably worried that Dr. Santini had already made her decision to discipline him, Respondent asked for permission for his secretary to attend the meeting as a witness. Dr. Santini said no. Respondent then asked to tape the meeting. Dr. Santini agreed. As Respondent left to find a tape recorder, Mr. Wiseman said, "Mary, you're going to have to give him a chance to tell his side of the story." Unable to find a tape recorder, Respondent returned to the meeting.
Dr. Santini pointed to a page of the transcript and, without discussing the testimony directly, declared that Respondent had testified that numbers were more important than students.
Respondent tried to interrupt, but Dr. Santini would not allow him. Respondent stated, "You can't accuse me of things and expect me not to respond." Dr. Santini replied, "You are going to listen to me."
Dr. Santini accused Respondent of talking to A. B.'s father. In fact, Respondent had told him to work with Mr. Hennebery's office.
Suddenly, Respondent told her that the meeting was over until we meet Petitioner. Dr. Santini slammed a book and told Respondent that he had "disrespected me and Mr. Wiseman." Respondent answered, "My dear friend, how have I disrespected you?" Dr. Santini stated, "That's it." She turned and walked out the door.
Mr. Wiseman was still seated when she left. He then jumped up, shook Respondent's hand, and said, "See you later, baby boy." Alone among the key participants in this case, Mr. Wiseman appears to have maintained his sense of humor. During this brief meeting, for example, Mr. Wiseman was the only person not to have raised his voice.
Later on the day of January 9, the meeting with Petitioner took place with Respondent, Dr. Santini, Mr. Wiseman, Dr. Carter, Dr. Counsel, and an administrative assistant in attendance. Respondent began the meeting by reading a letter from him to Petitioner dated January 8, 1996. The letter reviews the condition of the ALC when he was appointed principal, the changes that he has made, and the problems posed by the ALC enrollment policy stated in the October
25 memorandum.
The participants discussed the ALC enrollment policy. Respondent objected that it appeared that they had met with other principals and not him. Mr. Wiseman admitted that they had met and had excluded Respondent because he had threatened another principal. There is no evidence of such a threat.
After the discussion about ALC enrollments ended, Petitioner said that she was out of time and everyone would have to return to finish their discussion. Petitioner told Respondent that she had sent Dr. Santini and Mr. Wiseman to see him, and she did not want him calling off meetings with her staffmembers, such as he had done that morning. Respondent understood that he should not do that.
Respondent complained that he had thought that he was doing an outstanding job and could not understand what the problem was with his job performance. Dr. Santini disagreed with him about the job he was doing.
Respondent stated that no one had ever sufficiently spelled out a problem so that he could address it. He asked who was complaining about what. He asked Dr. Santini directly if she had any complaints.
Dr. Santini said she had one complaint, but would not disclose it to Respondent, even after being urged to do so by all of the other participants, except the administrative assistant. Dr. Santini said that the attorneys had told her that she did not have to disclose it. She then said to Petitioner, "Bobbie, the problem is he will listen to you, not me."
Respondent and Dr. Santini began to argue about the meeting earlier in the day. In anger, Respondent said he would not follow Dr. Santini's directions, but go directly to Petitioner. He also admitted that he was afraid of Dr. Santini. Petitioner closed the meeting by promising to check with the attorneys and see if she could supply Respondent with a copy of the complaint to which Dr. Santini had referred.
Two days later, on January 11, Petitioner sent a letter to Respondent suspending him with pay due to "your conduct in a meeting with Mr. Herb Wiseman
. . . and Dr. Mary Santini on January 9, 1996." The letter adds: "you should know that other allegations have been made against you that are currently being investigated by the District."
V. Conclusion
Petitioner failed to prove by a preponderance of the evidence that Respondent is guilty of misconduct in office, incompetency, gross insubordination, or immorality.
Petitioner never trained Respondent to serve as a school principal. Respondent's previous administrative roles provided valuable experience, but they had also permitted Respondent to become accustomed to serving in a close relationship with a Superintendent who was also a mentor, working outside the normal hierarchical channels of the District office, and alienating numbers of parents, teachers, and administrators in making tough rezoning and equity decisions.
But Respondent's qualifications were obvious. As Petitioner wrote in one evaluation, Respondent was a "role model" for other administrators in, among other things, teamwork. Despite the gaps in his experience, Respondent employed vast stores of energy, enthusiasm, and commitment to make the ALC work for its students. He intelligently assessed the situation at the ALC and devised strategies for exploiting the available resources. Fully aware of his own limitations, for instance, he hired Ms. Smith for her knowledge of curriculum. In a short time, he had produced dramatic results at the ALC.
Respondent complied with Dr. Santini's directives, although before adoption he argued with those of them with which he disagreed. The October 25 memorandum, as well as the October 20 meeting, set an enrollment cap.
Respondent acceded to Dr. Santini's decision. He closed the October 20 meeting with a plea that geographical schools be prepared to finish the job that the ALC would not have time to finish. He transferred 75-80 students out by early November. He asked Mr. Wiseman around Christmas break if he should transfer
another 112 students back to their geographical schools. And his average enrollment exceeded the enrollment of his successors by 13 students--while his average actual attendance was five students less than the average actual attendance of his successors.
By mid-December, Dr. Santini, misinformed by unreliable information from Ms. Krucher and possibly other informants at the ALC, was concerned about whether Respondent would work out as the ALC Principal. This concern may have influenced her gate investigation and reaction to Respondent's testimony at the expulsion hearing.
The situation rapidly deteriorated when Dr. Santini visited Respondent, unannounced, on the morning of the day that they had a meeting with Petitioner and began the meeting by saying that she would probably have to write up Respondent for his testimony.
A supervisor should always be able to conduct a meeting with a subordinate. Respondent should not have abruptly terminated the meeting with Dr. Santini. Supervisors terminate meetings, not subordinates. However, this was an isolated action by Respondent, who had never before terminated a meeting with a supervisor.
Respondent had understandably felt that Dr. Santini had treated him unfairly in the gate incident, heard her announce at the start of this meeting what looked like a decision, and decided to deal with all of this at the meeting with Petitioner later that day. Under the circumstances, Respondent's imprudent decision to end the meeting did not rise to gross insubordination.
In the final analysis, as Petitioner testified, it is good practice to document problems with employees before terminating them. And, as Petitioner testified, her staff did not do so here.
Clearly, Respondent and Dr. Santini have a serious communications problem, for which each bears some responsibility, even though, by the nature of things, a communications problem is typically a bigger problem for the subordinate employee than it is for his boss. But as Dr. Council and Dr. Gunter testified, there was no reason for this case to proceed this far. And the case would not have come this far if District staff had tried to help Respondent or even treated this case as a performance case--where, under the law, District staff would have had to identify Respondent's deficiencies and help him eliminate them.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes.)
Section 231.36 addresses contracts between district school systems and their instructional and supervisory staff, including principals.
Section 231.36 differentiates between continuing contracts and professional service contracts. Respondent commenced his employment with the District at a point that suggests that he would not be entitled to a continuing contract. In general, according to Section 231.36(3), continuing contracts were replaced by professional service contracts after July 1, 1984. Respondent's
commencement of service with the District seems to indicate that he would only be eligible for a professional service contract.
There are two ways for a district school system to remove an employee with a professional service contract-- nonrenewal and termination. Nonrenewal occurs at the end of a school year, and termination occurs during a school year. The grounds for nonrenewal are broader than the grounds for termination, although the procedure for nonrenewal is more involved than the procedure for termination.
A superintendent must renew a professional service contract each year unless the superintendent, after receiving statutorily required recommendations, charges the employee with "unsatisfactory performance," as set forth in Section 231.36(4). In such a case, the superintendent must notify the employee, at least six weeks prior to the end of the school year, of the "performance deficiencies which may result in termination of employment, if not corrected during the subsequent year of employment."
The statutes supply detailed requirements that a school district must meet, both before and after the six-week notification described in the preceding paragraph, in order not to renew a professional service contract at the end of the following school year. Section 231.29(4) provides that, prior to the notification, the employee's supervisor must assess the employee, in the manner set forth in Section 231.29, and forward the assessment to the superintendent. Section 231.29(2) directs that the school district provide assessments at least annually. If the employee's performance is unsatisfactory, Section 231.29(2) requires that the evaluator "shall notify the employee in writing of such determination and describe such unsatisfactory performance" and later "confer with the employee, make recommendations with respect to specific areas of unsatisfactory performance, and provide assistance in helping to correct such deficiencies within a reasonable, prescribed period of time."
Section 231.36(3)(e) provides that, after receipt of the six-week notification of unsatisfactory performance, the employee has the right to meet with the superintendent or her designee to review the determination, ask for a transfer, "assistance and inservice training opportunities to help correct the noted performance deficiencies . . .," and periodic evaluations to inform the employee of his progress during the subsequent year.
By contrast, the grounds for the more extraordinary remedy of terminating a professional service contract during the school year are limited to "just cause" for instructional employees and the so-called Seven Deadly Sins for district administrative staff and supervisory staff, including principals. Section 231.36(6)(b) identifies the seven criteria for termination as "immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, drunkenness, or conviction of any crime involving moral turpitude." Upon the filing of charges of any of these violations, the school board may suspend the principal without pay, but, if the charges are not sustained, it must immediately reinstate the principal and pay his back salary.
At the hearing, counsel for both parties agreed that the issue in this case is whether Petitioner has just cause to terminate Respondent. It was unclear whether Respondent's employment contract, if any, contains such a provision. However, the provisions of Section 231.36 govern covered employment contracts, whether or not an individual contract expressly incorporates the statutory provisions. Thus, the hearing officer accepts the stipulation only on the condition that "just cause" encompasses only the Seven Deadly Sins and no
more. Otherwise, the hearing officer rejects the stipulation and shall apply only the seven statutory criteria of Section 231.36(6)(b).
In Smith v. School Board of Leon County, 405 So. 2d 183 (Fla. 1st DCA 1981), the school board suspended a noninstructional employee for an incident that took place during an evaluation conference between the employee and her supervisor. After the employee read an unfavorable evaluation, she crumbled it into a small ball, threw it on her supervisor's desk, and declared, "This is what I think of this and you too." After a formal hearing, the hearing officer found that other charges were baseless, but found that the evaluation incident had taken place and constituted gross insubordination and misconduct in office. The school board entered a final order consistent with the recommended order.
The Smith court reversed the final order because the employee's conduct constituted neither misconduct in office nor gross insubordination, as those terms are used in Section 231.36(6). Referring by analogy to rules defining these terms for instructional, not administrative, personnel, the court concluded that misconduct in office is a violation of the Code of Ethics of the Education Profession "so serious as to impair the individual's effectiveness in the school system" and gross insubordination is a "constant or continuing intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority." 405 So. 2d at 184-85.
Addressing insubordination, the Smith court reasoned that the employee's action was an "isolated outburst." And if the evaluation were somehow deemed an order, it was not a reasonable order, which must be obeyed, because the evaluation was based on items proved to be unfounded in the hearing. The Smith court determined that the employee's action was at most "contemptuous," which is not synonymous with "insubordinate."
Addressing misconduct in office, the Smith court noted that the thrust of the Code of Ethics "deals with a teacher's relationships with the public or with the school administration as it affects the public." The incident in this case was "purely an interoffice dispute which occurred after office hours."
The Smith court acknowledged that a school board could articulate policy setting different standards for administrative employees than for instructional personnel. But the School Board did not produce any evidence that it did so in the present case.
In Rosario v. Burke, 605 So. 2d 523 (Fla. 2d DCA 1992), the superintendent terminated a head custodian for gross insubordination. The head custodian had strongly disagreed with the decision of the school principal to terminate the contract of another custodian. Without detailing the head custodian's resulting behavior, the court stated only that it was "impolite and disrespectful."
Citing the Smith court's treatment of gross insubordination as requiring a "constant or continuing intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority," the Rosario court stated that it was inclined to believe that the custodian could commit gross insubordination by conduct not encompassed by the Smith definition.
However, the Rosario court noted that Section 231.36(6) is penal in nature and must be construed in favor of the punished employee. The court determined that there was no evidence that the custodian refused to obey a
direct order and added: "If Mr. Rosario had been given a letter of warning directly instructing him to cease his disruptive campaign in favor of the fired custodian and against the principal, our result would almost certainly be different." Instead, the head custodian's behavior "may have been contemptuous and may have risen even to the level of simple insubordination, but there is no competent substantial evidence in this case of gross insubordination."
Petitioner is required to prove the facts of the case by a preponderance of the evidence. Sublett v. Sumter County School Board, 664 So. 2d 1178 (Fla. 5th DCA 1995).
Petitioner has failed to prove any of the charges of misconduct in office, incompetency, gross insubordination, or immorality.
It is
RECOMMENDED that the School Board of Lee County enter a final order dismissing the Petition, reinstating Respondent, and awarding him back pay as provided by law.
ENTERED on June 28, 1996, in Tallahassee, Florida.
ROBERT E. MEALE
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 on June 28, 1996.
APPENDIX
Rulings on Petitioner's Proposed Findings
1: adopted or adopted in substance except as to date of initial employment.
2-3: adopted or adopted in substance.
4: rejected as unsupported by the appropriate weight of the evidence, to the extent of the implication that these behaviors were more than isolated or represented significant problems.
5: rejected as unsupported by the appropriate weight of the evidence. 6-7: adopted or adopted in substance.
8-9: rejected as unsupported by the appropriate weight of the evidence.
10 (first two sentences): adopted or adopted in substance, as to the back of the neck.
10 (remainder)-12: rejected as unsupported by the appropriate weight of the evidence.
13 (through "end"): adopted or adopted in substance.
(remainder): rejected as unsupported by the appropriate weight of the evidence.
(first two sentences): adopted or adopted in substance.
(remainder): rejected as unsupported by the appropriate weight of the evidence.
(through "classroom"): adopted or adopted in substance, except as to throwing C. L. into the chair.
(remainder): rejected as unsupported by the appropriate weight of the evidence.
(through "credited"): adopted or adopted in substance.
16 (remainder): rejected as unsupported by the appropriate weight of the evidence.
17: rejected as unsupported by the appropriate weight of the evidence.
18 (first sentence): rejected as subordinate.
18 (remainder): rejected as unsupported by the appropriate weight of the evidence.
19: rejected as unsupported by the appropriate weight of the evidence. 20: rejected as unsupported by the appropriate weight of the evidence,
except that O. B. complied with Respondent, who did not apply force to move him.
21: rejected as unsupported by the appropriate weight of the evidence.
The testimony of Ms. Culligan is not credible.
22 (first sentence): adopted or adopted in substance.
22 (remainder): rejected as unsupported by the appropriate weight of the evidence.
23: rejected as subordinate.
24: rejected as unsupported by the appropriate weight of the evidence. 25: adopted or adopted in substance, except that Ms. Krucher did not
witness the entire incident.
26: adopted or adopted in substance, except that Ms. Krucher did not step between J. B. and T. R., nor did she witness the rest of the incident. She prevaricated the portion of the incident that she missed while returning J. B. to her classroom, J. B. testified that Ms. Krucher returned her to her classroom. J. B. also testified that Ms. Krucher even tried to convince her than T. R. had not lunged at J. B. Ms. Krucher's credibility as a witness is very poor.
27: rejected as unsupported by the appropriate weight of the evidence, except that T. R.'s testimony was stricken after several vacillations demonstrated that, as to this incident, he could not distinguish between the truth and fiction.
28: rejected as unsupported by the appropriate weight of the evidence.
29 (first two sentences): adopted or adopted in substance.
(remainder): rejected as unsupported by the appropriate weight of the evidence.
(first two sentences): adopted or adopted in substance.
30 (remainder): rejected as unsupported by the appropriate weight of the evidence.
31: Respondent's testimony that he feared M. P. was on drugs is not credited, at least to the extent of attempting to create a well-founded fear in Respondent's mind that the mental state of M. P. was so altered as to render him dangerous. However, Respondent intervened with M. P. to stop him from leaving and preclude the possibility that this student, who obviously is afflicted with a serious behavior disorder, might strike Ms. Smith. The remainder of this proposed finding is rejected as unsupported by the appropriate weight of the evidence.
32 (first two sentences): adopted or adopted in substance.
(remainder): rejected as unsupported by the appropriate weight of the evidence.
(except last sentence): adopted or adopted in substance. There is no need to resort to Ms. Keel's testimony about the "rat's ass" remark.
33 (last sentence): rejected as unsupported by the appropriate weight of the evidence.
34: adopted or adopted in substance, except as to crediting Ms. Krucher's testimony and as to any harm to the student's mental health.
35 (except last sentence): adopted or adopted in substance, except that the displaying of the badge never frightened or intimidated anyone and no student believed that Respondent had extraordinary arrest powers by virtue of the badge. When Respondent spoke to the class, they presumably were off-task, but he did not destroy any instructional momentum.
35 (last sentence): rejected as unsupported by the appropriate weight of the evidence.
36: adopted or adopted in substance, except that Respondent did not badger the student or mistreat him in any way.
37: rejected as unsupported by the appropriate weight of the evidence. 38: adopted or adopted in substance, although Respondent appropriately
dealt with the student, who should have raised his head to meet the new principal.
39: rejected as unsupported by the appropriate weight of the evidence, except that Respondent threatened the student with suspension if he did not make eye contact and listen to him.
40 (first two sentences): adopted or adopted in substance.
40 (third sentence): rejected as unsupported by the appropriate weight of the evidence.
40 (fourth sentence): rejected as irrelevant and unsupported by the appropriate weight of the evidence.
41: rejected as recitation of evidence and unsupported by the appropriate weight of the evidence.
42: rejected as unsupported by the appropriate weight of the evidence, except that on rare occasions Respondent opened doors to Academy classrooms.
43-45: rejected as unsupported by the appropriate weight of the evidence. 46: rejected as unsupported by the appropriate weight of the evidence,
except to the extent of findings in the recommended order.
47-48 (except last sentence): adopted or adopted in substance, except Respondent did not say, "her record."
(last sentence): rejected as unsupported by the appropriate weight of the evidence.
(first sentence): adopted or adopted in substance.
49 (remainder): rejected as unsupported by the appropriate weight of the evidence.
50-51 (first sentence): adopted or adopted in substance.
51 (remainder)-52: rejected as unsupported by the appropriate weight of the evidence.
53: rejected as unsupported by the appropriate weight of the evidence.
54 (first sentence): adopted or adopted in substance.
54 (remainder): rejected as unsupported by the appropriate weight of the evidence. Respondent had not made a prior arrangement with Ms. McCollum, but Petitioner failed to prove that he was required to.
55: rejected as unsupported by the appropriate weight of the evidence.
56 (first two sentences): adopted or adopted in substance.
56 (remainder): rejected as unsupported by the appropriate weight of the evidence.
57: rejected as unsupported by the appropriate weight of the evidence. 58: rejected as unsupported by the appropriate weight of the evidence,
except that Respondent terminated the meeting. The behavior was inappropriate,
but did not constitute either insubordination or, more to the point, gross insubordination.
59 (first two sentences): adopted or adopted in substance.
59 (remainder): rejected as unsupported by the appropriate weight of the evidence.
60: adopted or adopted in substance.
61: rejected as unsupported by the appropriate weight of the evidence, as to no reason to arrest W. S. at the time. However, the altercation had ceased, and Respondent should have answered the reasonably inquiry of the officer. But his behavior did not constitute misconduct in office, gross insubordination, incompetency, or immorality.
62: rejected as unsupported by the appropriate weight of the evidence. Petitioner never accounted adequately for Officer Kusienski's omission of the word "fuck" from his police report or, less importantly, the discrepancy between Ms. Krucher and Officer Kusienski as to the number of times that Respondent uttered the expletive. Another problem for Petitioner was the contrary testimony of another officer of the Fort Myers Police Department.
63: rejected as unsupported by the appropriate weight of the evidence.
64 (first two sentences): adopted or adopted in substance, at least as to the effect that the grandmother could not serve as the legal guardian of J. M. because she was not.
64 (remainder): rejected as unsupported by the appropriate weight of the evidence and hearsay.
65-66: rejected as unsupported by the appropriate weight of the evidence.
67 (first sentence): adopted or adopted in substance.
67 (remainder): rejected as unsupported by the appropriate weight of the evidence, except that Respondent voluntarily admitted up to 18 students.
68: rejected as unsupported by the appropriate weight of the evidence.
69 (first sentence): adopted or adopted in substance.
69 (second sentence): rejected as unsupported by the appropriate weight of the evidence.
69 (remainder): rejected as unsupported by the appropriate weight of the evidence, as to Respondent's role in the failure to obtain individual educational plans constituting misconduct in office, incompetency, or gross insubordination.
70-71: rejected as unsupported by the appropriate weight of the evidence.
Rulings on Respondent's Proposed Findings
1-13: adopted or adopted in substance, although there is some uncertainty as to the dates of Respondent's early employment with the District. The findings in the recommended order are guided by the dates and job descriptions contained in the evaluations.
13A: rejected as irrelevant.
14-15: adopted or adopted in substance, except that M. P. was not fearful. 16-29: adopted or adopted in substance.
30: rejected as unsupported by the appropriate weight of the evidence.
The incident did occur.
30A-43: adopted or adopted in substance.
44: adopted or adopted in substance, but Respondent's brief conversation with Ms. Krucher more closely resembled the version in the recommended order, rather than the more elaborate version in the proposed finding.
45-46: adopted or adopted in substance.
47 (first sentence): rejected as unsupported by the appropriate weight of the evidence. Dr. Santini never reviewed several lines of the testimony. She focused only on one phrase.
(remainder)-48 (through "Wiseman"): adopted or adopted in substance.
(remainder): adopted or adopted in substance, although it is unclear the extent to which they discussed the January 5 memorandum itself, as opposed to the ALC overenrollment issue generally.
49-55: adopted or adopted in substance.
56-57: rejected as subordinate, except to the extent described in the recommended order.
58-62: adopted or adopted in substance, although the fact that Respondent's enrollments were no higher than the enrollments of his successors suggests that Respondent's enrollments did not exceed the cap or the cap as applied.
63: rejected as subordinate.
64-68: adopted or adopted in substance.
COPIES FURNISHED:
Superintendent Bobbi D'Allessandro The School District of Lee County 2055 Central Avenue
Fort Myers, Florida 33901-3988
John M. Hament
Kunkel, Miller and Hament 1800 Second Street, Suite 882
Sarasota, Florida 34236
Harry A. Blair Blair & Blair, P.A.
2138-40 Hoople Avenue
Fort Myers, Florida 33901
The Honorable Frank T. Brogan Commissioner of Education
The Capitol
Tallahassee, Florida 32399-0400
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 within which to submit written exceptions. Some agencies allow a longer period within which to submit written exceptions. You should contact the agency that will issue the final order 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.
| Issue Date | Proceedings |
|---|---|
| Sep. 27, 1996 | Final Order filed. |
| Jun. 28, 1996 | Recommended Order sent out. CASE CLOSED. Hearing held May 6-10 and 13-16, 1996. |
| Jun. 17, 1996 | Petitioner`s Proposed Recommended Order filed. |
| Jun. 14, 1996 | Proposed Recommended Order by Respondent; Letter to HO from S. Saldana Re: Documents referred to during testimony; Cover letter from H. Blair filed. |
| May 30, 1996 | Letter to HO from J. Hament Re: Petitioner`s Exhibits; Exhibits filed. |
| May 16, 1996 | Deposition of Saundra Saldana ; Deposition of Lisa Krucher ; Deposition of John Henneberry ; Deposition of Jill Culligan ; Deposition of Pam Minton ; Deposition of RogerVollmer ; Pet itioner Exhibit 1 (Tagge |
| May 16, 1996 | Deposition of Malinda Lemmerman ; Deposition Linda McKeever ; Deposition of Brenda Kidd ; Deposition of April Peppin ; Deposition of Jamie Barnett ; Deposition of Ruby Newsome ; Deposition of Barbara Filipow |
| May 16, 1996 | Deposition of Martha Jeffers ; Deposition of James Nassiff ; Deposition of Terry Smith ; Deposition of Gerald Gilmore ; Deposition of Otis Brown, Jr. ; Deposition of Shane Potter ; Deposition of Steven A. Co |
| May 16, 1996 | (Petitioner) Notice of Service of Discovery; Petitioner`s Response in Opposition to Respondent`s Third Objection to Additional Witnesses and Documents; Petitioner`s Fourth Amended Response to Respondent`s Request for Production of Documents No. 4 and No. |
| May 13, 1996 | CASE STATUS: Hearing Held. |
| May 06, 1996 | CASE STATUS: Hearing Held. |
| May 06, 1996 | Respondent`s Third Objection to Additional Witnesses and Documents (as amended by Petitioner via fax on May 1, 1996); Cover Letter filed. |
| May 03, 1996 | (Petitioner) Notice of Service of Discovery filed. |
| May 01, 1996 | Petitioner`s Response in Opposition to Respondent`s Two Motions for a Protective Order filed. |
| Apr. 30, 1996 | (Petitioner) Motion for Leave to Amend Petition for Suspension Without Pay and Benefits Pending Termination of Employment; Cover Letter filed. |
| Apr. 29, 1996 | Amended Notice of Hearing (as to date, Time, and place) sent out. (hearing set for May 6-10, 1996; 12:00; Fort Myers) |
| Apr. 29, 1996 | Respondent`s Second Objection to Additional Witnesses and Documents; Objection to Proposed Additional Charges; and Motion for Protective Order filed. |
| Apr. 29, 1996 | Memo to REM from Harry A. Blair (RE: response to status report) filed. |
| Apr. 26, 1996 | Memorandum to HO from H. Blair Re: Clearing calendar on 5/6/96 filed. |
| Apr. 25, 1996 | Fax cover sheet to HO from H. Blair Re: Extending Hearing to five days; Location of Hearing; Fax cover sheet to K. Combs from H. Blair Re; Securing location filed. |
| Apr. 25, 1996 | Letter to HO from H. Blair Re: Ruling on Objections to Petitioner`s amendments to witnesses and documents and Motion for Protective Order; Memorandum to J. Hament from H. Blair Re: Scheduling filed. |
| Apr. 25, 1996 | (Petitioner) Amended Notice of Taking Deposition; (18) Affidavit of Service; (18) Subpoena Duces Tecum (From J. Hament); (18) Notice of Taking Deposition filed. |
| Apr. 25, 1996 | (Petitioner) Notice of Service of Pleadings and Discovery; Second Amended Notice of Taking Deposition; Third Amended Notice of Taking Deposition; Notice of Deposition and Request for Production of Documents; Amended Notice of Deposition and Request for Pr |
| Apr. 25, 1996 | Objection to Additional Witnesses and Documents; Objection to Proposed Additional Charges; and Motion for Protective Order; Cover Letter filed. |
| Apr. 24, 1996 | Respondent`s Second Objection to Additional Witnesses and Documents: Objection to Proposed Additional Charges: And Motion for Protective Order; Cover Letter; Sixth Amended Notice of Taking Deposition (amending deposition of Hearb Wiseman, only) filed. |
| Apr. 23, 1996 | Letter to HO from H. Blair Re: Scheduling hearing location filed. |
| Apr. 15, 1996 | (Respondent) Motion to Amend Answer and Affirmative Defenses; Amended Answer and Affirmative Defenses filed. |
| Apr. 03, 1996 | (From J. Hament) (4) Notice of Taking Deposition; (4) Subpoena Duces Tecum filed. |
| Apr. 01, 1996 | Petitioner`s Second Request for Production of Documents filed. |
| Apr. 01, 1996 | Petitioner`s First Set of Interrogatories; Petitioner`s Response to Request for Production; (14) Notice of Taking Deposition (W/Subpoena Duces Tecum) filed. |
| Mar. 26, 1996 | Amended Notice of Hearing (as to room only) sent out. (hearing set for May 7-10, 1996; 12:00; Fort Myers) |
| Mar. 14, 1996 | (Respondent) Answer and Affirmative Defenses; Notice of Service of Interrogatories; Interrogatories w/cover letter filed. |
| Mar. 13, 1996 | Notice of Hearing sent out. (hearing set for May 7-10, 1996; 12:00; Ft. Myers) |
| Mar. 11, 1996 | Joint Response to Initial Order w/cover letter filed. |
| Mar. 05, 1996 | Order sent out. (Respondent`s Motion to Strike and/or Dismiss is denied) |
| Mar. 04, 1996 | (Petitioner) Notice of Deposition and Request for Production of Documents filed. |
| Mar. 01, 1996 | (Respondent) Motion to Strike and/or Dismiss; Request for Discovery; Demand for Formal Administrative Hearing filed. |
| Feb. 27, 1996 | Initial Order issued. |
| Feb. 23, 1996 | Agency Referral Letter; Petition For Suspension Without Pay And Benefits Pending Termination Of Employment (w/attachments tagged) filed. |
| Feb. 22, 1996 | Agency Referral Letter filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Sep. 18, 1996 | Agency Final Order | |
| Jun. 28, 1996 | Recommended Order | Petitioner failed to prove gross insubordination, misconduct, incompetency or immorality. |
