STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
LEE COUNTY SCHOOL BOARD,
Petitioner,
vs.
JOHN W. SANDERS,
Respondent.
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) Case No. 03-0988
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RECOMMENDED ORDER
Pursuant to notice, a formal hearing was held in this case on September 22 through 26, 2003, in Fort Myers, Florida, before
Kent Wetherell, II, the designated Administrative Law Judge of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Thomas M. Gonzalez, Esquire
Jason L. Odom, Esquire Thompson, Sizemore & Gonzalez
501 East Kennedy Boulevard Suite 1400
Post Office Box 639 Tampa, Florida 33602
For Respondent: Richard Johnston, Jr., Esquire
Kiesel, Hughes & Johnston Post Office Drawer 1000 Fort Myers, Florida 33902
STATEMENT OF THE ISSUE
The issue is whether the Lee County School Board's termination of Respondent's employment as superintendent was
"for cause," as defined by the employment contract between Respondent and the School Board.
PRELIMINARY STATEMENT
By notice dated March 13, 2003, the Lee County School Board (School Board or District) provided Respondent a statement of the reasons that it was terminating his employment as superintendent of the District's schools. The notice was given pursuant to the employment contract between the School Board and Respondent. By letter dated March 18, 2003, Respondent requested a formal administrative hearing on the School Board's decision as provided for in the employment contract.
On March 24, 2003, the School Board referred the matter to the Division of Administrative Hearings (Division) for the assignment of an Administrative Law Judge to conduct the hearing requested by Respondent. The hearing was originally scheduled for May 27 through 30, 2003, but it was twice continued at the request of the parties. The hearing was ultimately held on September 22 through 26, 2003.
At the hearing, the School Board presented the testimony of Respondent, Louis Karnbach, Dr. Jane Kuckel, Robert Chilmonik, Carl Burnside, Steven Teuber, Joni Logan, Dr. Elinor Scricca, Keith Martin, Dr. Nancy Graham, Charles Dailey, Jeanne Dozier, Dr. William Merwin, and Georgiana McDaniel. The School Board offered the following exhibits, all of which were received into
evidence: P1, P3, P4, P8, P16, P42, P46, P51 through P53, P65, P68 through P114, P120, P139, P151, P152, P167, P168, P170, P171, P176 through P178, P182, P186, P188, P190 through P193, P196, P197, P202 through P204, P214, P220, P221, P224, P231
through P234, P236, P237, R57, and R78.
Respondent presented the testimony of Timothy Hensey, William Humbaugh, Tyler Patak, Scott Danielson, Susan Zellers, Katherine Boren, Dale Wilson, Donald Campbell, Dorothy Hopko, and Dr. Carolyn Marrow (by deposition). Respondent offered the following exhibits, all of which were received into evidence: R3, R7, R10, R11, R13, R16 through R19, R42, R49, R51, R52, R55, R61, R62, R66, R68 through R72, R77, R80 through R82, R85, R87, R88, R90, R92 through R94, P7, P9, P10, P12, P121 through P123,
and P195.
Official recognition was taken of the following statutes and rules: Sections 230.33, 231.09, and 231.36, Florida Statutes (2001); and Florida Administrative Code Rules 6B-1.006 and 6B-4.009.
The nine-volume Transcript of the hearing was filed with the Division on October 22, 2003.1 At the conclusion of the hearing, the parties requested and were given 30 days from the date the Transcript was filed to file their proposed recommended orders (PROs). That deadline was subsequently extended to December 8, 2003, at the parties' request. As a result, the
parties waived the deadline for submittal of this Recommended Order. See Fla. Admin. Code R. 28-106.216(2). The parties' PROs were filed on December 9, 2003, and were given due consideration by the undersigned in preparing this Recommended Order.
FINDINGS OF FACT
Based upon the testimony and evidence received at the hearing and the parties' stipulations, the following findings are made:
Parties
School Board/District
The School Board is the governing body of the local school district in and for Lee County, Florida.
The School Board consists of five elected members who are public officials, rather than employees of the District.
The School Board members are elected for four-year terms. The terms of the School Board members are staggered such that three of the seats on the School Board were up for election in November 2002, while the remaining two seats will be up for election in November 2004.
The three incumbent School Board members whose seats were up for election in November 2002 did not run for re- election. As a result, three new School Board members were elected in November 2002.
The present School Board was constituted in an organizational session held on November 19, 2002. The members of the School Board are Dr. Jane Kuckel, Jeannie Dozier, Robert Chilmonik, Steven Teuber, and Dr. Elinor Scricca.
The District educates approximately 63,000 students in approximately 70 schools. The District has more than 8,300 employees, and its annual budget is more than $800 million.
The District is a "school choice" district, meaning that parents have the opportunity to select the school in the District that their children attend. School choice complicates the formulation of a student transportation system because the bus routes cannot be finalized until the selection process is complete, and it is possible (and not uncommon) that students from one end of the county will choose to attend schools in the other end of the county, and bus routes must be developed to accommodate those students.
All of the District's employees, except the School Board attorney, report through the "chain of command" to the superintendent. The School Board attorney reports directly to the School Board, as does the superintendent.
The grades assigned by the Department of Education to the District's schools showed marginal improvement during Respondent's tenure as superintendent; approximately 80 percent of the District's schools received a grade of "A" or "B" for the
2002-03 school year. However, those facts cannot be directly correlated to Respondent's job performance or attributed to his
leadership of the District.
Respondent
Respondent served as the superintendent of the District's schools for approximately 19 months between September 4, 2001, and March 13, 2003.
Immediately prior to becoming the superintendent of the District's schools, Respondent spent six years as the superintendent of the Hernando County School District. In that position, Respondent became familiar with the Florida School Code and the duties and responsibilities that it imposes on the superintendent of schools.
Prior to his tenure as superintendent in Hernando County, Respondent worked for approximately 25 years as a public school teacher, principal, and administrator outside of the State of Florida. That work included six years as the superintendent of a small school district in Delton, Michigan, and two years as a deputy superintendent of the Jackson, Mississippi, school district.
None of Respondent's prior administrative experience, including his tenure as superintendent of the Hernando County schools, was in a school district as large as the District.
Hernando County, for example, had only 17,000 students and
19 schools.
Respondent's Employment Contract
Respondent's employment with the School Board was governed by a written contract dated July 31, 2001.
The contract was for a three-year term beginning on September 4, 2001, and ending on September 4, 2004.
Section 1 of the contract obligated Respondent to "faithfully perform his duties and obligations [as superintendent] for the School District including, but not limited to, those duties required by state and federal law."
Section 3 of the contract required the School Board to evaluate Respondent's performance on an annual basis.
Section 11.B. of the contract provides in pertinent part that:
Subject to the provisions of this Article, by a majority vote of its members, the School Board shall have the right to terminate this Agreement and remove [Respondent] from office for any of the following reasons:
* * *
vi. The commission by [Respondent] of any offense for which dismissal against instructional personnel may be pursued as set forth in Florida State [sic] 231.36 and more particularly defined in Florida Administrative Code Section [sic] 6B-4.009.
If Respondent's employment was terminated for one of the reasons listed in Section 11.B. of the contract, then the termination was "for cause," and the School Board had no further liability towards Respondent. If, however, Respondent's employment was terminated "without cause," then under
Section 11.A. of the contract, the School Board was required to pay Respondent "a severance payment equal to the salary payments and benefits which [Respondent] would have been receiving over the remaining term of this agreement . . . at
[Respondent's] current rate of pay in effect on the day prior to the date of termination" as liquidated damages.
The termination language was proposed by Respondent and his attorney in their negotiations with the School Board attorney.
Relationship of the School Board and the Superintendent, Generally
The School Board is responsible for the governance of the District and it sets the policy for the District. The School Board acts based upon the formal recommendations given to it by the superintendent in accordance with Florida law.
The School Board uses three types of meetings in its decision making process: briefing meetings, workshops, and action meetings. Briefing meetings are informational in nature and typically involve District staff presenting information to
the School Board on pending projects or issues. Workshops involve more of an interchange between staff and the School Board on pending matters and are used by the School Board to provide staff guidance on matters upon which there is consensus. Those matters would then be brought before the School Board at a subsequent action meeting for formal consideration. Action meetings are either regular or special meetings at which the superintendent makes formal recommendations upon which the School Board votes.
The superintendent is the "chief executive officer" of the school district and is responsible for the day-to-day operation and administration of the school district. Respondent acknowledged at the hearing that, as superintendent, he was ultimately responsible for all operations in the District, including the instructional program, the transportation of the students, and personnel. Respondent also acknowledged that he is ultimately responsible to the School Board for the acts and omissions of the District's employees and ensuring that they comply with District policy.
Respondent communicated with the School Board members in various ways, including formal presentations at School Board meetings and informal meetings with individual School Board members. Respondent also provided the School Board members with a weekly "Friday memorandum," which addressed a broad range of
issues including responses to information requests made by the School Board, updates on matters that the School Board had previously approved, summaries of matters that would be on future School Board agendas, and briefs on District programs or accomplishments that might be of interest to School Board members.
Respondent had a group of assistant superintendents reporting directly to him. One of those assistant superintendents was Donald Campbell, who was the assistant superintendent for operational services and had oversight of the transportation department. Prior to that position, Mr. Campbell had no responsibility over student transportation, but he did have a long work history with the District, including tenures as a teacher, principal, and administrator. Mr. Campbell did not have a good reputation for honesty in the District, and that fact was made known to Respondent by multiple sources early in his tenure as superintendent. Additional concerns about the accuracy and veracity of Mr. Campbell's information were made known to Respondent during the course of the discussions involving the problems with the student transportation system described below.
Multiple department directors reported to each of the assistant superintendents. One of the department directors who reported to Mr. Campbell was Louis Karnbach. Mr. Karnbach was
the director of the District's transportation department, and he had approximately 21 years of experience with student transportation issues in Florida. In fact, he was acknowledged at the hearing to be the most knowledgeable person in the District on student transportation issues.
Background Regarding the Procedural Steps Leading to the Termination of Respondent's Employment
At a workshop held on January 9, 2003, the School Board reached consensus to hire outside counsel to determine whether there were grounds to terminate Respondent's employment as superintendent.
The following week, at the School Board attorney's direction, four of the five School Board members provided the outside counsel with a list of their "concerns" regarding Respondent's job performance. Thereafter, on January 14, 2003, the School Board formally voted to hire outside counsel to investigate whether those concerns provided a basis to terminate Respondent's employment.
At a special meeting held on March 12, 2003, outside counsel presented a report to the School Board regarding his investigation of the concerns identified by the School Board members. The School Board unanimously voted to direct outside counsel to prepare a "charge sheet to consider the termination of [Respondent's] contract."
At a special meeting held the following day, March 13, 2003, outside counsel presented a "proposed charge sheet" to the School Board. The School Board voted to adopt the charge sheet and to immediately terminate Respondent's employment as superintendent based upon those charges.
The vote was four to one, with the dissenting vote being cast by Dr. Kuckel. She believed that Respondent should have been given a remedial plan to correct the deficiencies identified in his October 2002 performance evaluation (discussed below) and that the effective date of the termination should be delayed by a week in order to give Respondent "an opportunity to bring things to closure and [to give] the Board [an opportunity] to develop a direction."
Respondent's employment contract did not require the School Board to give him a remedial plan as suggested by
Dr. Kuckel. Nor did the employment contract require the School Board to impose "progressive discipline" on Respondent prior to terminating his employment.
The Statement of Reasons for Proposed Discharge (hereafter "the Charges") was served on Respondent on March 13, 2003. That document sets forth the factual and legal bases for the School Board's decision to terminate Respondent's employment, and it is the preliminary agency action which gave rise to this formal administrative proceeding.
Substantive Allegations upon which the Termination of Respondent's Employment was Based
The Charges generally allege that Respondent was incompetent in the performance of his duties; that he willfully neglected his duties; that he is guilty of misconduct in office; that he violated the Principles of Professional Conduct for the Education Profession in Florida; and that he failed to faithfully perform his duties and obligations as superintendent. The Charges identified 11 specific acts, events, omissions, and/or circumstances which served as the basis for those general allegations. Each will be discussed in turn.2
Changes to the Student Transportation System and School Start Times
In late 2001, Respondent directed each of his assistant superintendents and department directors to come up with ideas for reducing their operating budgets for the 2002-03 school year. That action was in response to a District-wide budget shortfall created by legislative funding cuts in the wake of the September 11, 2001, terrorist attacks.
Around that same time, Mr. Karnbach was developing the school bus routes for the 2002-03 school year. He initially proposed minor adjustments to the existing routes and school start times, but when no consensus could be reached among the school principals regarding those changes, he suggested to
Mr. Campbell that a two-tier student transportation system be reviewed as a potential cost-saving measure.
The District had historically used a three-tier system for transporting students. Under that system, schools were assigned to one of three tiers and each tier had a different start time. Buses served one tier of schools at a time. A two- tier system operates in the same way, except that instead of three tiers of schools, there were only two tiers.
A critical component of any student transportation system is "turnaround time," which is the amount of time between the start time for one tier of schools and the start time of the next tier of schools. If there is not enough turnaround time provided, the bus will not have enough time to complete its route and pick up the students for the second (or third) tier schools, and as a result, those students will be dropped off late at their schools.
The preferred turnaround time is 90 minutes and, according to Mr. Karnbach, that time-period had been used as the benchmark during his entire 11-year tenure with the District.
Even with a 90-minute turnaround time, it is not uncommon for buses to drop students off late, i.e., after the School's designated start time. Late buses are more common on the later tiers than on the first tier.
Another important component of any school transportation system is having a sufficient number of full-time and substitute bus drivers. This factor is more important in a two-tier system than in a three-tier system, because instead of each bus and driver serving three schools, each bus and driver will only serve two schools. As a result, more buses and drivers are necessary to serve all of the schools under a
two-tier system.
Mr. Karnbach estimated that only a small number of additional bus drivers would need to be hired in order to implement the original two-tier plan that he developed. As discussed below, modifications to the original proposal and other factors resulted in the District's needing to hire considerably more bus drivers than originally projected by
Mr. Karnbach in order to implement the two-tier plan ultimately approved by the School Board.
Despite the need for more bus drivers, the two-tier plan would (in theory) result in cost savings because of a reduction in the number of overtime hours that bus drivers were working under the three-tier plan.
Respondent presented Mr. Karnbach's plan to change the student transportation system from a three-tier system to a
two-tier system to the School Board at its February 7, 2002,
workshop. That plan was viable because it included the necessary 90-minute turnaround time.
The only justification offered for the change was a projected cost savings of approximately $2.4 million. The other options presented to the School Board at the workshop-- continuing with the existing three-tier system, either without modification or with minor adjustments--involved a $200,000 cost increase or no cost savings. In light of the budget shortfall facing the District at the time, the School Board favorably viewed the proposed change to a two-tier system because of its projected cost savings.
At the February 7, 2002, workshop, the Board expressed concerns regarding the viability of the two-tier system, but nevertheless directed staff to further develop the proposal. Specific concerns were raised regarding the prospects of combination bussing and potential adverse impacts on hiring and retaining bus drivers, since they would be driving less and earning less money under a two-tier system. It was also suggested that staff consider moving elementary schools to the first tier, rather than being on a later tier as was the case at the time.
In response to the School Board's concerns regarding the viability of the two-tier system, Mr. Campbell contacted staff at the St. Lucie County School District regarding that
district's experience with a two-tier transportation system. St. Lucie County is a much smaller school district than Lee County, but like Lee County, it is a "school choice" district.
In response to the School Board's comments regarding earlier elementary school start times, Mr. Campbell compiled articles from the Internet discussing educational benefits from early start times for elementary students. He also conducted a non-scientific survey over the Internet which received only 400 responses. Those responses were evenly split on the proposal to start elementary schools earlier and high schools and middle schools later.
Respondent brought the two-tier plan back before the School Board at its March 7, 2002, briefing meeting. Only two options were presented to the School Board at that meeting, both of which involved changing to a two-tier system. The supporting documentation provided to the School Board at that meeting included the information compiled by Mr. Campbell.
The first option, Option A, was a two-tier system with high schools and middle schools on the first tier and elementary schools on the second tier. The second option, Option B, "flipped" the tiers putting elementary schools on the first tier and high schools and middle schools on the second tier. Under Option B, the high schools would start at either 9:00 or
9:15 a.m.
The projected cost savings for each option were significantly less than the $2.4 million presented to the School Board in February. The estimated cost savings for Option A was
$1.3 million, and the estimated cost savings for Option B was
$1.5 million.
Even though the School Board criticized Respondent's failure to obtain input from stakeholders, such as teachers, bus drivers, parents, and school administrators before presenting the plan, the School Board reached a consensus to move forward with Option B. The plan was still viable at that time because it included the necessary 90-minute turnaround time.
The issue was placed on the agenda of the School Board's March 19, 2002, action meeting for formal approval.
On March 18, 2002, the day before the plan was to be voted on by the School Board, Respondent met for the first time with the principals of all of the District's schools.
Mr. Campbell and Mr. Karnbach attended the meeting with Respondent.
Prior to that meeting, Respondent and his staff had not solicited any input on the proposed two-tier plan from the principals or other stakeholders, except for Mr. Campbell's Internet survey that received only 400 responses.
The elementary school principals overwhelmingly favored the proposed plan (Option B) because their schools would
be moved from the later tiers to the first tier. The middle school principals also favored the plan for the same reason, but they were more split than the elementary school principals.
The high school principals overwhelmingly opposed the proposed plan. Their opposition was based primarily on the fact that the later starting times would adversely affect their students' after-school jobs, athletics, and other extracurricular programs.
Shortly before the end of the meeting, Respondent guaranteed the high school principals that their schools would start no later than 8:20 a.m. in an effort to ameliorate their concerns. This guarantee effectively doomed the proposed
two-tier plan because it reduced the turnaround time below the necessary 90 minutes.
Mr. Karnbach told Respondent at the meeting that the plan would not work with the reduced turnaround time, but Respondent ignored Mr. Karnbach's warning. He simply told Mr. Karnbach to "hire more drivers," which was not a viable option because the District was already facing a bus driver
shortage, and that shortage was going to be further exacerbated by the reductions in driver pay that resulted from the two-tier plan. Indeed, Mr. Karnbach told Respondent at the time that he "can't get the people to do that."
Despite Mr. Karnbach's warning, Respondent recommended that the School Board approve the two-tier plan (Option B), as modified to include the 8:20 a.m. start time for the high schools. The School Board approved that recommendation at its March 19, 2002, action meeting.
The School Board was not expressly told that the plan that it was approving did not have the necessary 90-minute turnaround time, nor was it expressly told about the need that the plan created for hiring more bus drivers than originally anticipated. Mr. Karnbach did tell the School Board that "I don't know how this is going to work, its never been tried before in this district," and for that comment, he received a verbal reprimand from Mr. Campbell.
The plan approved by the School Board generated considerable public controversy even before the school year began in August 2002. For example, 48 citizens (including current School Board members Scricca and Chilmonik) spoke in opposition to changes to the school start times in the two-tier plan at the School Board's July 16, 2002, meeting, and current School Board member Teuber urged the School Board to "revert to last year's school [start] times" at the August 28, 2002, meeting.
The School Board considered a return to the three-tier system at its July 18, 2002, meeting. It also considered a
"flip flop" of the tiers to return the high schools to the earlier tier at that meeting. After considerable debate, those changes were not made. However, a slight modification was made to the elementary school start times.
In August 2002 after the "bidding" process for the bus routes required under the bus drivers' collective bargaining agreement had been completed, it was apparent that the District would not have enough drivers to make the two-tier plan work. Mr. Karnbach informed Respondent of this fatal problem, but this information was not conveyed to the School Board.
The problems with the plan became apparent immediately after the school year began. The District had hundreds of late buses each day during the first several weeks of school. The late buses were primarily at the high schools since they were on the second tier, but even first-tier schools had late buses.
In an effort to address the late bus problems, the School Board voted at its August 28, 2002, meeting to authorize Respondent to adjust the school start times "plus or minus 15 minutes" without School Board approval.
Before the motion was approved, an amendment was adopted to specifically exclude high schools from the authorization given to Respondent. This restriction somewhat limited Respondent's ability to solve the late bus problem since most of the late buses were on the second-tier, which is the
tier that most of the high schools were on. The restriction was lifted by a separate vote of the School Board at its October 15, 2002, meeting.
Respondent knew that his authorization from the School Board was limited to changes of "plus or minus 15 minutes," and he further knew that changes in excess of 15 minutes required School Board approval. Despite that knowledge (and as discussed more fully below), Respondent changed the start time of the North Fort Myers Academy for the Arts by 20 minutes in
December 2002.
Respondent made some minor adjustments to school start times, but the late buses continued into September 2002. During that time Respondent continued to tell the School Board that the problem would be solved soon because the District had hired additional drivers. That information was not accurate and the late buses continued.
In an effort to find a solution to the continuing late buses, Respondent convened a task force of interested parties in late September 2002. As more fully discussed below, the purpose of the task force was to "tell [Respondent] what to do" to solve the transportation problem, and several of the task force's recommendations were presented to and approved by the School Board at its September 30, 2002, meeting.
At that September 30, 2002, meeting Respondent presented the School Board with several options for the second semester of the 2002-03 school year, including returning to a three-tier system and "flip flopping" the start times of the two-tier system to return high schools to the first tier. Respondent recommended that the School Board "stay the course," which was the action ultimately taken by the School Board after considerable debate.
Efforts were made by Respondent's administration to keep the School Board members apprised of the status of the transportation problem and the efforts being taken by the transportation department to solve the problem. For example, Mr. Campbell provided the School Board members daily updates from August 21, 2002, through November 4, 2002, regarding the number of late buses at each school and the status of bus driver recruitment and training efforts.
At the November 19, 2002, organizational meeting of the "new" School Board, specific criteria were established with respect to the student transportation system for the second semester of 2002-03. Staff was directed to bring back a recommendation consistent with those criteria for the School Board's consideration, which Respondent did at the School Board's November 25, 2002, meeting.
At that meeting, the School Board approved the expenditure of $1.14 million to hire over 89 permanent bus drivers and 25 substitutes. That expenditure was intended to alleviate the late bus problem and to ensure that no elementary student was picked up prior to 6:30 a.m., which were two of the criteria established by the School Board. The School Board members who testified at the hearing acknowledged that the support documentation and cost information provided with Respondent's recommendation was satisfactory or, at least, better than it had been in the past.
The late bus problem began to improve towards the end of the first semester of the 2002-03 school year. However, there continued to be late buses at Dunbar and other schools in November and December.
Throughout the first semester of the 2002-03 school year, the School Board was critical of the information that it was receiving from Respondent and his administration regarding the problems with the transportation system and the potential solutions to those problems. The criticisms related to the quantity, quality, completeness, and accuracy of the information that Respondent and his staff were providing to the School Board. For example, Mr. Campbell told the School Board at its January 14, 2003, meeting that there were no late buses at
Dunbar, even though School Board member Chilmonik had gone to Dunbar and personally observed buses arriving late.
Respondent never disciplined Mr. Campbell for providing false information to the School Board regarding the late buses at Dunbar. Nor did Respondent discipline
Mr. Campbell through the School Board's formal disciplinary process for providing misinformation or incomplete information in connection with the formulation of the two-tier plan.
Respondent did send Mr. Campbell a memorandum dated September 20, 2002, which was critical of Mr. Campbell's job performance in several respects, including his failure to inform Respondent of the historical shortage of bus drivers in the District and his tendency to take action without a complete analysis of the situation. That letter was not included in
Mr. Campbell's personnel file, and it is of limited significance because it did not result in any material change to the level of scrutiny that Respondent gave Mr. Campbell's recommendations or the information that he passed on to the School Board from
Mr. Campbell.
The controversy surrounding the change in the school start times and the problems with late buses consumed a significant amount of the School Board's time during the first semester of the 2002-03 school year. The issue was discussed at nearly every School Board meeting during that period, and School
Board members received numerous comments from parents regarding the transportation problems, both at the School Board meetings and in their offices.
As a result of the continuing problems with the student transportation system, the "old" (i.e., pre-November 2002) School Board members lost confidence in Respondent's ability to provide leadership to the District, and fair or not, the "new" (i.e., post-November 2002) School Board members never had confidence in Respondent's judgment and leadership abilities.
The School Board's concerns regarding Respondent's leadership abilities and the completeness and accuracy of his communications with School Board were expressed in a variety of forums--both publicly at School Board workshops and meetings and, privately, by individual School Board members--during the course of Respondent's tenure with the District. Of particular significance is Respondent's annual performance evaluation by the School Board in October 2002 when he received an overall score of 1.74 out of four.
On the evaluations, each of the School Board members expressed dissatisfaction with the level of communication between Respondent and the School Board. Additionally, the evaluations were critical of Respondent with respect to his "identification of causes of operational problems [and] timely
solutions" and not giving stakeholders information "in a timely manner when requested."
Dunbar High School Issues
Dunbar High School (Dunbar) is of special interest to the School Board because of its location in a predominately minority area of Lee County and its history as the minority school during segregation. The Dunbar community is particularly sensitive with respect to the treatment received by Dunbar in comparison to the treatment received by Fort Myers High School, which was the predominately white school in the District during segregation.
Dunbar was re-opened as a "magnet school" in
August 2002 as part of a 1999 settlement agreement approved by the Federal District Court. That settlement agreement resolved a 30-year-old desegregation lawsuit against the School Board and resulted in a declaration that the District was "unitary."
The settlement agreement required the School Board to establish the Unitary School System Advisory Committee (USSAC) to monitor the District's compliance with the settlement agreement. USSAC is comprised of various members of the community, including individuals involved as plaintiffs in the desegregation lawsuit.
Because of Dunbar's history and its role in the settlement agreement, Dunbar and its problems receive special
attention from the School Board. For the same reasons, it is important for the School Board to maintain a good relationship with USSAC. Indeed, School Board policy expressly requires the superintendent to "respond as promptly as practicable to all [USSAC] requests for information."
Respondent was aware of Dunbar's special status in the District and understood the sensitivity of the issues relating to Dunbar. He also understood the importance of ensuring that Dunbar was not only treated equally, but also that the Dunbar community believed that the school was being treated equally. The allegations against Respondent involving Dunbar must be evaluated against this background.
The first allegation against Respondent involving Dunbar is that he failed to timely resolve problems with the school's security alarm system.
Those problems were caused, at least in part, by the renovation of Dunbar which began in the summer of 2000. The renovation involved the construction of several new buildings and the refurbishment of most of the existing buildings at the school.
The renovation contract, which was executed prior to Respondent's tenure as superintendent, provided for the installation of a new alarm system in the new buildings and the integration of that system with the existing alarm system at the
school. For a variety of reasons, this integrated alarm system did not work.
Respondent's staff became aware of the problems with the alarm system as early as August 2002. Nevertheless, no meaningful action was taken until December 2002 to repair the system. By that time, there had been three break-ins at Dunbar involving damages and the theft of thousands of dollars worth of equipment.
On December 18, 2002, the day after the third break- in, Dunbar's principal sent an e-mail detailing his frustration with the security alarm system and other matters. Among other things, the e-mail stated that Dunbar needed 24-hour security immediately and that the "Bridges grant" money awarded to Dunbar "last spring" needed to be released so ten-foot fences could be constructed on the west and south side of the Dunbar campus.
Respondent was copied on the e-mail, and it was the first notice of the security alarm problem that Respondent personally received.
Respondent took immediate action in response to the
e-mail. He directed that a 24-hour security guard be posted at Dunbar until the problems with the security alarm were resolved, and he got the grant money released so that the security fence could be installed around Dunbar.
On December 19, 2003, Dunbar's leadership team sent a letter to Respondent (with copies to the School Board members) detailing their frustration with the security alarm problems and other issues.
In response to that letter, Respondent met with the Dunbar leadership team shortly after the Christmas break. Although Respondent initially berated the leadership team for what he viewed as a violation of the "chain of command" by their sending a copy of the letter to the School Board members, the meeting also involved "give and take" between Respondent and the leadership team regarding their concerns.
Around the time of the third break-in, Respondent's staff was attempting to get the contractor to accept responsibility for the problems with the alarm system. The contractor initially denied responsibility for making the integrated alarm system work, but it ultimately relented and began working in January 2003 to fix the alarm system. The alarm system was not fully functional until March 2003, at the earliest.
Respondent never disciplined anyone on his staff for his or her failure to take timely appropriate action to fix the problems with the security alarm at Dunbar, even though it was apparent from the December 18, 2002, e-mail and the December 19, 2003, letter that Dunbar's principal and leadership team felt
that Respondent's staff was not being responsive to their concerns. Nor did Respondent discipline anyone on his staff for their failure to keep him advised of the continuing problem with the security alarm system at Dunbar prior to it becoming a significant issue, both financially (because of the multiple break-ins) and politically (because of the perceived inequitable treatment expressed by the Dunbar leadership team).
The second allegation against Respondent involving Dunbar is that he failed to respond to a December 14, 2002, letter sent to him by USSAC.
The letter was directed to Respondent. Copies of the letter were sent to the School Board attorney and Ms. Boren, who was the School Board's liaison to USSAC at the time.
The letter alleged that Dunbar and Dunbar Middle School were being treated inequitably with respect to the transportation of students, specifically as to the use of "shared" buses, rather than "dedicated" buses to serve those schools.
A dedicated bus serves only one school, whereas a shared bus serves more than one school. Shared buses are used to serve schools that are located in close proximity to each other, as are Dunbar and Dunbar Middle School. This practice creates efficiencies since it increases the bus load factor (i.e., the number of students on each bus) and it concomitantly
decreases the number of buses and bus drivers needed to serve each school.
Despite the sound rationale for shared buses, USSAC was offended by their continued use at the Dunbar schools. Indeed, the USSAC letter stated in no uncertain terms that by not providing the Dunbar schools with dedicated buses, "the district has made a conscious choice to defy the Unitary Status order and reestablish the vestiges of a dual school system." The letter closed with a request that the School Board be advised of USSAC's demand for dedicated buses at the
December 16, 2002, briefing meeting and requested "a response to this recommendation immediately."
Despite the strong tone of the USSAC letter, Respondent did not advise the School Board of the letter, nor did he substantively respond to USSAC, as requested. In fact, his only response to the letter was a short phone call to the USSAC chairman acknowledging receipt of the letter.
Respondent testified that he chose not to put his response in writing because he did not want to commit the School Board to providing "dedicated" buses for the Dunbar schools, because he understood that it would be difficult or impossible to do. In this regard, Respondent understood from Mr. Campbell that it would have taken 26 additional buses to provide dedicated buses to Dunbar and Dunbar Middle School. It turns
out that Mr. Campbell was incorrect and that it would have required as few as four buses.
In any event, Respondent's understanding at the time does not justify his failure to provide a substantive response to USSAC's concerns, even if the substance of the response would not have been what USSAC wanted to hear.
Mr. Campbell subsequently attended a USSAC meeting to formally brief the committee on the bussing situation. However, it was not until a School Board member (Mr. Teuber) became actively involved in the Dunbar issues and met with Respondent that Respondent directed Mr. Campbell to attend the USSAC meeting.
The cumulative effect of the ongoing security problems at Dunbar and the continuation of shared buses at the Dunbar schools was that the Dunbar community perceived that their concerns were being "totally disregarded" by the District's administration. This was creating a "volatile" situation, which Respondent did very little to address and, in fact, helped to foster by failing to substantively respond to the USSAC letter.
Hiring of Charles R. Lyons
On June 20, 2002, Respondent recommended that the School Board hire Charles R. Lyons to be the District's director of facilities. In that position Mr. Lyons would supervise a
staff of seven employees and would be responsible for, among other things, overseeing the management of the performance contracts between the District and various vendors.
At the time, Mr. Lyons was employed by Florida Gulf Coast University (FGCU). He was the top-ranked applicant, as determined by the District's "targeted-selection" interview process.
As part of the interview process, assistant superintendent William Humbaugh contacted Mr. Lyons' supervisor at FGCU. Mr. Humbaugh was told that Mr. Lyons was under investigation for alleged violations of university policy regarding use of leave time and misuse of university property. Mr. Humbaugh was told or led to believe that the allegations against Mr. Lyons were unfounded or insignificant.
As he did in every reference check, Mr. Humbaugh specifically asked whether there was any reason that the District should not hire Mr. Lyons and whether Mr. Lyons would be "an embarrassment" to the District. He was told "no" to each question.
Based upon this reference check and Mr. Lyons' status as the top-ranked applicant in the targeted-selection process, Mr. Humbaugh recommended to Respondent that he recommend
Mr. Lyons' hiring to the School Board.
Respondent spoke with FGCU's president, Dr. William Merwin, on two occasions regarding Mr. Lyons. The first occasion was by telephone, and the second occasion was in person on the day that Respondent's recommendation to hire Mr. Lyons was on the School Board's agenda.
At the time of the first conversation, Dr. Merwin did not know the full extent of the allegations against Mr. Lyons. He told Respondent that he thought the allegations involved "some very disgruntled employees" and that the university was "looking into" the matter. Respondent, like Mr. Humbaugh, was led to believe that the allegations against Mr. Lyons were relatively minor and/or unfounded.
At the time of the second conversation, the university's investigation of Mr. Lyons had been completed. Dr. Merwin did not inform Respondent that the matter had been referred to the State Attorney's office, but he did indicate that the alleged improprieties involved Mr. Lyons' questionable relationships with several university vendors. Nevertheless, he told Respondent that the results of the university's investigation did not give the university a basis to terminate Mr. Lyons' employment. This conversation, as a whole, again
left Respondent with the impression that the allegations against Mr. Lyons were relatively minor and/or unfounded.
Respondent requested a copy of the investigative report from Dr. Merwin, but Dr. Merwin told him that he could not give him a copy since he considered the matter to still be open. It was not until July 11, 2002, that the School Board received a copy of the investigative report from FGCU.
Respondent did not inform the School Board of his conversations with Dr. Merwin, nor did he inform the School Board of FGCU's investigation of Mr. Lyons. The Board approved Mr. Lyons' hiring as recommended by Respondent on June 20, 2002.
Mr. Lyons was scheduled to begin work at the District on July 8, 2002, but for the reasons described below, he never did so.
The day after Mr. Lyons' hiring was approved, the District received an anonymous fax which included a local newspaper article from May 2002 entitled, "Alleged theft at FGCU plant probed." The article did not mention Mr. Lyons by name, but a document included with the newspaper article stated, among other things, "[y]our new Director of Facilities (CR Lyons) is the person who has left the University for misappropriation of funds. . . You may NOT want to be involved in another scandal. PROTECT YOURSELF."
Upon receipt of the fax, Ms. Dozier confronted Respondent regarding his recommendation to hire Mr. Lyons. She demanded that Respondent bring forward a recommendation to
terminate Mr. Lyons' employment. Respondent initially refused to do so, but shortly before the School Board meeting on
July 16, 2002, Respondent relented and brought forward a recommendation that Mr. Lyons be terminated. The School Board approved that recommendation, and Mr. Lyons never worked for the District.
The State Attorney's office ultimately decided not to bring criminal charges against Mr. Lyons. That decision was not made until March 2003, well after the events surrounding
Mr. Lyons' hiring and firing by the District.
Confirming Purchase Orders
Under District policy, all expenditures in excess of
$25,000 must be approved by the School Board before a purchase order is issued for the goods or services. On occasion in the past, the School Board has approved "confirming purchase orders" for purchases that have been made in violation of this policy.
Two "confirming purchase orders" were placed on the agenda for the February 18, 2003, School Board meeting. The items appeared on the "consent agenda" and were not expressly designated as "confirming purchase orders." In fact, it is nearly impossible to tell from the back-up material provided to the School Board for the agenda items that they involved "confirming purchase orders."
The first purchase order was for approximately
$352,000 and was for Internet services rendered by Sprint under a multi-year contract that was previously approved by the School Board. The second purchase order was for approximately $29,000 and was for cables installed by Fiber Solutions at several schools' cafeterias.
There are extenuating circumstances that explain how the "confirming purchase orders" came to be necessary,3 but the fact remains that the agenda item presented to the School Board failed to explain those circumstance or otherwise indicate that approval of "confirming purchase orders" was being sought. Indeed, the placement of the purchase orders on the "consent agenda," which is typically reserved for non-controversial and routine matters, suggests an intent to conceal the true nature of these purchase orders from the School Board.
There is no evidence that Respondent was personally aware of the circumstances underlying the "confirming purchase orders" prior to their placement on the February 18, 2003, agenda.
Ms. Dozier brought the matter to Respondent's attention on the day of the School Board meeting after she received an unsolicited call from a District employee regarding the matter. She directed Respondent to remove the Sprint and
Fiber Solution purchase orders from the "consent agenda," which he did.
The matter was discussed at the School Board meeting on February 18, 2003, as part of the general agenda, but no action was taken at that time. The School Board members expressed significant concerns regarding the matter and directed Respondent to investigate the circumstances surrounding the placement of the Sprint and Fiber Options purchase orders on the "consent agenda."
Despite the significant and well-founded concerns expressed by the School Board members, Respondent failed to hold anyone accountable for the misleading agenda item, even though it is clear that a member of Respondent's executive team, Dale Wilson, placed the items on the "consent agenda" with a misleading summary in order to conceal the fact that School Board approval had not been obtained prior to receipt of services, which exceeded $25,000. Neither Mr. Wilson nor Susan Zellers, another member of the executive team who was also actively involved in the effort to obtain School Board approval for the previously performed work, was disciplined for their actions.
The only employees who were disciplined in connection with this matter were two lower-level District employees who had no direct role in the preparation of the misleading agenda
items. Those employees received verbal reprimands based upon their acts and omissions which resulted in the need for the "confirming purchase orders."
The matter was brought before the School Board again on March 4, 2003, as regular agenda items. The explanation provided with those agenda items made it clear that the School Board was being asked to approve "confirming purchase orders." The School Board approved the "confirming purchase orders" upon the advice of its attorney.
Alleged Violation of the Sunshine Law
In late September 2002, Respondent created a Transportation Task Force (Task Force), which consisted of employees of the District's transportation department (including Mr. Campbell and Mr. Karnbach), bus drivers, school principals, teachers, parents and other members of the public.
As explained by Respondent in his September 20, 2002, weekly memorandum to the School Board members, the Task Force was formed to "discuss" a variety of transportation issues and to "bring forward recommendations to the superintendent." Respondent confirmed in his testimony at the hearing that the purpose of the Task Force was to "tell [him] what to do" with respect to the District's transportation problems and that he understood that the Task Force would be using a facilitated
interest-based decision-making process to present him with "consensus" recommendations.
The interest-based decision-making process involved the Task Force members first identifying as many possible solutions as they could and then discussing each option in an effort to reach a consensus. In the end, the Task Force reached consensus on ten of the 39 options that it discussed.
The first meeting of the Task Force was held on September 23, 2002. No public notice of the meeting was given, and a reporter from the local newspaper was denied access to the meeting.
Later that day, School Board attorney Keith Martin was contacted by the attorney for the local newspaper regarding the denial of access to the Task Force meeting. The newspaper's attorney did not threaten a lawsuit based upon the reporter's being denied access to the meeting, and no lawsuit was ever filed by the newspaper or anyone else against the School Board for violating the Sunshine Law in connection with the Task Force meetings.
After receiving the call from the newspaper's attorney, Mr. Martin immediately contacted Respondent to ascertain whether the claims made by the newspaper's attorney were true and to discern whether the Task Force is subject to the Sunshine Law. After a brief discussion with Respondent
regarding the purpose of the Task Force and its use of the interest-based decision-making process, Mr. Martin gave Respondent his legal opinion that the Task Force meetings were subject to the Sunshine Law and that public notice of the meetings must be given and minutes must be kept.
Mr. Martin's legal opinion was based upon his understanding that the ultimate product of the Task Force would be a list of consensus recommendations and that the Task Force would not present any of its non-consensus options to Respondent.
Mr. Martin never advised Respondent not to hold the Task Force meeting scheduled for the following day, even though Mr. Martin knew that the meeting had not been properly advertised.
Respondent disagreed with Mr. Martin's legal opinion, but he nevertheless allowed the local newspaper and interested members of the public to attend the subsequent meetings of the Task Force. Despite public access being allowed, the meetings were still not in full compliance with the Sunshine Law because they were not properly advertised and minutes of the meetings were not kept.
After its last meeting on September 25, 2002, the Task Force provided Respondent with a list of all of the options that it discussed, including those options on which no consensus
was reached. The ten options on which the Task Force reached consensus were highlighted in bold on the list provided to Respondent in order to distinguish them from the non-consensus items.
On September 30, 2002, Respondent presented the ten options on which the Task Force reached consensus to the School Board. However, he recommended that the School Board only approve several of the options recommended by the Task Force.
Respondent did not present any of the options on which the Task Force failed to reach a consensus to the School Board.
Mr. Martin did not report Respondent's failure to allow public access to the first Task Force meeting to the School Board, even though he considered Respondent's actions to be a violation of the Sunshine Law. Indeed, the issue was formally discussed by the School Board prior to March 2003, when it voted to bring the Charges against Respondent.
Change in Start Time for the North Fort Myers Academy of the Arts
As part of the changes to the school start times approved by the School Board in November 2002, the start time for the North Fort Myers Academy of the Arts (Academy) was changed from 8:45 a.m. to 9:05 a.m. That change was to go into effect in January 2003 when the second semester of school began.
In early December 2002, Respondent was asked by the Academy's principal whether the school's start time could be changed back to 8:45 a.m. That change was supported by school's advisory counsel, its teachers, and its administration.
After being told by Mr. Campbell that changing the Academy's start time back to 8:45 a.m. would not impact the transportation plan, fiscally or otherwise, Respondent approved the change. The effect of the change was that the Academy's start time was moved back 20 minutes.
At the time he approved the change, Respondent only had the authority to change start times by "plus or minus 15 minutes." That authority had been granted to Respondent in August 2002. Accordingly, the 20-minute change exceeded Respondent's legal authority by five minutes.
Respondent did not request approval from the School Board to change the Academy's start time nor did he inform the School Board that he made the change. The School Board members first became aware of the change when they were asked for comments on the change by the local newspaper.
being confronted by the School Board members regarding the fact that the change exceeded his delegated authority, Respondent apologized for not communicating with the School Board regarding the change, and he moved the Academy's start time to 8:50 a.m. so that it was within the 15-minute
deviation authorized by the School Board. Respondent did not expressly apologize for exceeding the authority delegated to him
by the School Board.
CONCLUSIONS OF LAW
n and Burden of Proof
Division has jurisdiction over the parties to and subject matter of this proceeding pursuant to Sections 120.569 and 120.57(1), Florida Statutes (2003), and Paragraph 11.B.vii. of Respondent's employment contract with the School Board.4
School Board has the burden to establish by a preponderance of the evidence the grounds for terminating Respondent's employment. See, e.g., McNeill v. Pinellas County School Board, 678 So. 2d 476, 477 (Fla. 2d DCA 1996); Sublett v. Sumter County School Board, 664 So. 2d 1178, 1179 (Fla. 5th DCA 1995); Allen v. School Board of Dade County, 571 So. 2d 568, 569 (Fla. 3d DCA 1990); Dileo v. School Board of Dade County, 569 So. 2d 883, 884 (Fla. 3d DCA 1990).
Termination Under Paragraph 11.B.vi of Respondent's Employment Contract
11.B.vi. of Respondent's employment contract with the School Board provides that Respondent's employment may be terminated for "any offense for which dismissal against instructional personnel may be pursued."
231.36(6)(a), Florida Statutes (2001), provides that "[a]ny member of the instructional staff . . . may be suspended or dismissed at any time during the term of the contract for just cause as provided in paragraph (1)(a)."
231.36(1)(a), Florida Statutes (2001), provides that "[j]ust cause includes, but is not limited to, the following instances defined by rule of the State Board of Education: misconduct in office, incompetency, gross insubordination, willful neglect of duty, or conviction of a crime involving moral turpitude."
specific grounds alleged by the School Board in this case--"incompetency," "misconduct in office," and "willful neglect of duties"--are defined in the Florida Administrative Code Rule 6B-4.009. That Rule provides:
The basis for charges upon which dismissal action against instructional personnel may be pursued are set forth in Section 231.36, Florida Statutes. The basis for each of such charges is hereby defined:
Incompetency is defined as inability or lack of fitness to discharge the required duty as a result of inefficiency or incapacity. Since incompetency is a relative term, an authoritative decision in an individual case may be made on the basis of testimony by members of a panel of expert witnesses appropriately appointed from the teaching profession by the Commissioner of Education. Such judgment shall be based on a preponderance of evidence showing the existence of one (1) or more of the following:
Inefficiency: (1) repeated failure to perform duties prescribed by law (Section 231.09, Florida Statutes);
Repeated failure on the part of a teacher to communicate with and relate to children in the classroom, to such an extent that pupils are deprived of minimum educational experience; or (3) repeated failure on the part of an administrator or supervisor to communicate with and relate to teachers under his or her supervision to such an extent that the educational program for which he or she is responsible is seriously impaired.
(b) Incapacity: (1) lack of emotional stability; (2) lack of adequate physical ability; (3) lack of general educational background; or (4) lack of adequate command of his or her area of specialization.
* * *
Misconduct in office is defined as a violation of the Code of Ethics of the Education Profession as adopted in Rule
6B-1.001, F.A.C., and the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule
6B-1.006, F.A.C., which is so serious as to impair the individual's effectiveness in the school system.
[W]illful neglect of duties is defined as a constant or continuing intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority.
a Administrative Code Rule 6B-1.006(5)(l), which is incorporated by reference into Rule 6B-4.009(3), provides that persons subject to its terms:
Shall not assist entry into or continuance in the profession of any person known to be unqualified in accordance with these Principles of Professional Conduct for the Education Profession in Florida and other applicable Florida Statutes and State Board of Education Rules.
e Respondent was serving as superintendent rather than a teacher, it is somewhat difficult to apply the foregoing definitions to Respondent. For example, most of the Code of Ethics of the Education Profession and the Principles of Professional Conduct for the Education Profession (which are incorporated by reference in Florida Administrative Code
Rule 6B-4.009(3)) refer to duties of a classroom teacher. Similarly, the definitions of "inefficiency" in Florida Administrative Code Rule 6B-4.009(1)(a) refer primarily to interactions between a teacher and his or her students.
are no reported Florida decisions applying the definitions in Florida Administrative Code Rule 6B-4.009 to a superintendent. However, the case of Schrimsher v. School Board of Palm Beach County, 694 So. 2d 856 (Fla. 4th DCA 1997), which involved the termination of an assistant superintendent, is instructive in applying that rule to a non-instructional employee such as Respondent.
r, the court affirmed the school board's demotion of an assistant superintendent based upon his incompetence for, among other things, his failure to
appropriately oversee the construction of certain capital improvements, inaccurate reporting of the status of capital improvement projects to the school board, and exceeding the budget for a new school construction project without notifying the school board. Id. at 858. As in this case, those acts and omissions involved "poor communications, . . . a breakdown of authority and responsibility, poor planning, deficient administration, . . . [and] a lack of responsible supervision." Id. at 864 (Stone, J., concurring specially).
court approved the "expansive definition" of incompetency for non-instructional personnel applied by the school board as a result of the "very highly regarded position of public trust" (i.e., assistant superintendent), which Schrimsher held. Id. at 863. The court also rejected Schrimsher's efforts to place blame for what occurred on others and affirmed the school board's decision to hold him accountable based upon the high-level management position which he held. Id. at 864 (Stone, J., concurring specially).
of Schrimsher, Respondent's argument that the School Board is required to establish that Respondent failed to perform (or incompetently performed) the duties of an educator is rejected, notwithstanding the contract's incorporation of the statute governing educational employees. Instead, the School Board must only establish that Respondent
failed to perform (or incompetently performed) his duties as superintendent as set forth in Section 230.33, Florida Statutes (2001), and the employment contract.
Incompetency
charge of "incompetency" is based primarily on Respondent's recommendation that the School Board adopt a two- tier plan for student transportation and his handling of the problems which that plan created. See School Board PRO at
70-71. That charge also involves Respondent's failure to provide effective leadership to the District; his failure to hold his staff accountable for providing false or misleading information to him and the School Board; his failure to hold his staff accountable for their failure to promptly address the security problems at Dunbar; and for exceeding his delegated authority by changing the Academy's start time by 20 minutes.
See School Board PRO at 26; Charges, at paragraph 7(B).
g the definitions of incompetency in Florida Administrative Code Rule 6B-4.009(1) to Respondent's conduct, the undersigned finds the following comments from Judge Stone's concurring opinion in Schrimsher to be particularly persuasive:
"Competence", in this context, is not necessarily a lack of ability. Rather, it may be found in a myriad of acts or failures to act in a given context. To hold
otherwise gives carte blanche to highest level management to escape accountability.
Schrimsher, 694 So. 2d at 864-65 (Stone, J., concurring specially). In this regard, even though Respondent's acts and omissions are being analyzed separately throughout this Recommended Order, they cannot be viewed in isolation for purposes of determining Respondent's competence or incompetence. Instead, Respondent's acts and omissions must be viewed collectively and must be analyzed in the context of Respondent's role as the "chief executive officer" of the District whose responsibilities include making "sound recommendations, nominations, proposals and reports" to be acted on by the School Board. See generally § 230.33, Fla. Stat. (2001).
evidence establishes that the two-tier student transportation plan was put together without adequate input from parents, principals, and other stakeholders. The evidence further establishes that the plan was doomed to fail from the outset, due in significant part to Respondent's guarantee to the high school principals of an 8:20 a.m. start time which eliminated the 90-minute turnaround time necessary to make the plan work. Indeed, even though Mr. Karnbach immediately told Respondent that the plan would not work as a result of that concession and that he could not hire the drivers necessary to make the plan work, Respondent still recommended that the School
Board approve the plan; and notwithstanding the continued late buses, he persisted with the assurances to the School Board that the plan would work with the minor modifications that were approved upon his recommendations. As a result, Respondent failed to competently perform his obligations under
Section 230.33(10), Florida Statutes (2001), which required him to "determine the most effective arrangement of [student] transportation routes [and to] recommend such routing to the school board."
evidence also establishes multiple instances of Respondent's failure to provide adequate leadership to the District by not holding his staff accountable for providing the School Board (and him) incomplete or false information (such as with the "confirming purchase orders"), and by not holding anyone on his staff responsible for their failure to take timely appropriate action to fix the security alarm problems at Dunbar.
evidence also establishes, and Respondent conceded at the hearing, that he exceeded the authority delegated to him by the School Board when he changed the Academy's start time. This isolated incident, which involved a change in the start time by only five minutes more than that allowed by the School Board's delegation of authority (i.e., 20 minutes verses 15 minutes), does not in and of itself provide a
basis to find Respondent "incompetent," particularly since he immediately corrected the action when confronted by Ms. Dozier.
, although not an independent basis for finding Respondent to be "incompetent," it is significant that Respondent's various acts and omissions caused the pre-November 2002 School Board to evaluate his performance as being below expectations--i.e., an overall score of 1.74 out of four--and caused the post-November 2002 Board members to lose (or never have) trust in Respondent's judgment and ability to provide effective leadership to the District. These factors do, however, support the conclusion that Respondent's ability and "competence" to perform the job of superintendent was seriously undermined by the various acts and omissions established by the School Board and analyzed elsewhere in this Recommended Order. And cf. § 230.33(16), Fla. Stat. (2001) (requiring the superintendent to cooperate with the school board "in every manner practicable" towards the improvement of the school district).
has attempted throughout this proceeding to place the blame for the problems with the student transportation system and the other matters set forth in the Charges, except the change in the Academy's start time, on the School Board, his subordinates, and/or others. Even if there were blame to be shared (and clearly there is5), Respondent was
the "chief executive officer" of the District, and as he acknowledged at the hearing, he was ultimately responsible to the School Board for the efficient and effective operation of the District. See generally § 230.33, Fla. Stat. (2001). As a result, it is entirely appropriate for the School Board to hold him responsible for not only his own shortcomings, but also those of his administration.
point, the following comments made by Judge Stone in his concurring opinion in Schrimsher are equally applicable in this case:
I note that as to many of the allegations, it was Scrimsher's position that blame for what occurred should be placed elsewhere; as to some, with the School Board; as to some, the "system"; as to some, his boss; and as to some, the lower level employees or others. However, even if fault should be shared for the various actions or failures to act, there is no reason why the School Board may not hold one in Schrimsher's position accountable . . . for a lack of competence.
See Schrimsher, 694 So. 2d at 864 (Stone, J., concurring specially).
the foregoing reasons, the School Board established Respondent's "incompetency" in the performance of his duties as superintendent, as that term is defined by Florida Administrative Code Rule 6B-4.009(1).
Misconduct in Office
charge of "misconduct in office" relates to the alleged Sunshine Law violation and the hiring of Mr. Lyons. See School Board PRO at 54, 74; Charges at paragraph 7(C).
Sunshine Law provides in pertinent part:
All meetings of any board or commission of any state agency or authority or of any agency or authority of any county, municipal corporation, or political subdivision, except as otherwise provided in the Constitution, at which official acts are to be taken are declared to be public meetings open to the public at all times, and no resolution, rule, or formal action shall be considered binding except as taken or made at such meeting. The board or commission must provide reasonable notice of all such meetings.
The minutes of a meeting of any such board or commission of any such state agency or authority shall be promptly recorded, and such records shall be open to public inspection. . . .
§ 286.011(1)-(2), Fla. Stat. (2003).
Sunshine Law applies to local school boards. See Mitchell v. School Board of Leon County, 335 So. 2d 354 (Fla. 1st DCA 1976). It also applies to any group established by a governmental entity or official for purposes of assisting in the decision-making process beyond performing mere fact-finding. See, e.g., Wood v. Marston, 442 So. 2d 938 (Fla. 1983) (committee appointed by university president to screen applications for a deanship which had the power to reject
applicants from further consideration is subject to the Sunshine Law, even though the full faculty reviewed the committee's work before the list of applicants was submitted to the president); Krause v. Reno, 366 So. 2d 1244 (Fla. 3d DCA 1979) (citizens' advisory group appointed by city manager to screen applications for police chief position and to recommend the best candidates to the city manager was subject to the Sunshine Law, even though city manager was not required to select the police chief from the candidates recommended to him); Spillis Candela & Partners, Inc. v. Centrust Sav. Bank, 535 So. 2d 694, 695 (Fla. 3d DCA 1988) ("An ad hoc advisory board, even if its power is limited to making recommendations to a public agency and even if it possesses no authority to bind the agency in any way, is subject to the Sunshine Law.").
the determination as to whether the Task Force is subject to the Sunshine Law turns on whether it was performing only a fact-finding function or whether its function was something more. Even though the Task Force presented Respondent with a list of all of the options that it considered, including those options on which it did not reach consensus, the greater weight of the evidence establishes that the Task Force was not simply performing a fact-finding or "brain-storming" function as Respondent argues. Instead, the evidence establishes that Respondent intended to use and, in fact, did
use the Task Force as a tool to weed through various options to solve the District's transportation problems and to present him with a list of "consensus" options which framed the recommendations that he made to the School Board.
significance to this conclusion are Respondent's description of the purpose of the Task Force in his September 20, 2002, weekly memorandum; his testimony at the hearing that the purpose of the Task Force was to "tell [him] what to do" with respect to the District's transportation problems; his testimony that he understood (and expected) that the interest-based decision-making process would result in some of the options not being brought forward as consensus recommendations; his testimony that he was ultimately interested only in the Task Force's consensus recommendations; and the fact that Respondent only presented the Task Force's consensus recommendations to the School Board.
the Sunshine Law applies to the meetings of the Task Force. See Wood, supra; Krause, supra. See also
Silver Express Company v. District Board of Trustees of Miami- Dade Community College, 691 So. 2d 1099, 1100-01 (Fla. 3d DCA 1997) (committee appointed by college purchasing director, whose function was to weed through proposals to determine which were acceptable and to rank them accordingly, was subject to the
Sunshine Law because it helped to crystallize the ultimate decision made by the college).
evidence establishes that Respondent failed to comply with the requirements of the Sunshine Law in connection with the Task Force meetings. Specifically, public notice of the meetings was not given, public access to the first meeting was not allowed, and minutes were not kept.
t's failure to comply with the Sunshine Law constitutes misconduct in office only if it is (1) a violation of the Code of Ethics of the Education Profession (the Code) or the Principles of Professional Conduct for the Education Profession in Florida (the Principles), and (2) "so serious as to impair the individual's effectiveness in the school system." See Fla. Admin. Code R. 6B-4.009(3); MacMillan v. Nassau County
School Board, 629 So. 2d 226 (Fla. 1st DCA 1993). But cf. Purvis v. Marion County School Board, 766 So. 2d 492, 498 (Fla. 5th DCA 2000) ("impaired effectiveness in the school system can be inferred from certain misconduct") (emphasis supplied); Walker v. Highlands County School Board, 752 So. 2d 127, 128 (Fla. 2d DCA 2000) (stating that proof of impaired effectiveness would be superfluous where the "very nature" of a teacher's misconduct demonstrates his ineffectiveness).
School Board did not cite any provision of the Code or the Principles that Respondent allegedly violated by not
holding the Task Force meetings in accordance with the Sunshine Law, and no such provision is apparent from the undersigned's review of Florida Administrative Code Rules 6B-1.001 and
6B-1.006. As a result and as a matter of law, Respondent could not (and did not) violate the Code or the Principles by failing to hold those meetings in accordance with the Sunshine Law.
Therefore, the School Board failed to prove that Respondent committed misconduct in office with respect to his failure to comply with the Sunshine Law.
if the violation of the Sunshine Law could somehow be construed as a violation of the Code or the Principles, there is absolutely no credible evidence that the violation impaired Respondent's effectiveness in the school system. Nor can such impairment be inferred from the violation itself, as was the case in Purvis and Walker. Indeed, unlike the violations at issue in those cases -- lying under oath by the teacher in his criminal trial for domestic violence and resisting arrest (Purvis) and the "chaos" in the teacher's "out of control" classroom (Walker) -- the Sunshine Law violation committed by Respondent was not considered by the School Board attorney to be significant enough to report to the School Board when it happened; public access to all of the meetings except the first one was provided; and the issue was not formally
discussed by the School Board prior to March 2003 when it voted to bring the Charges against Respondent.
respect to the hiring of Mr. Lyons, the greater weight of the evidence establishes that Mr. Humbaugh and Respondent did not know the precise nature or extent of the allegations against Mr. Lyons prior to recommending his hiring to the School Board. While in hindsight it may have been prudent for Respondent to delay action on Mr. Lyons' hiring until he was able to obtain further details regarding the severity of the allegations against him, the conversations he had with Dr. Merwin did not provide him with specific knowledge that Mr. Lyons was unqualified for the position for which he was being hired. To the contrary, those conversations and the conversation that Mr. Humbaugh had with his counterpart at FGCU clearly led them to believe that the allegations against
Mr. Lyons were minor and/or unfounded. Accordingly, the evidence fails to establish that Respondent's recommendation that the School Board hire Mr. Lyons (or his reluctance to recommend Mr. Lyons' termination) constitutes a violation of Florida Administrative Code Rule 6B-1.006(5)(l), which is incorporated by reference into Florida Administrative Code Rule 6B-4.009(3).
the foregoing reasons, the School Board failed to establish that Respondent committed misconduct in office as defined by Florida Administrative Code Rule 6B-4.009(3).
Willful Neglect of Duties
charge of "willful neglect of duties" primarily relates to the "confirming purchase orders" and Respondent's alleged failure to promptly resolve the security alarm problems at Dunbar. See School Board PRO at 13, 66; Charges at paragraph 7(A). Other issues, including the failure to respond to the USSAC letter and the violation of the Sunshine Law, are also implicated. Id.
evidence establishes that Respondent was unaware of the "confirming purchase orders" until the matter was brought to his attention by Ms. Dozier. His failure to investigate the circumstances, which gave rise to the "confirming purchase orders" after the Board expressed concerns about the situation, does not rise to the level of a "constant or continuing intentional refusal to obey a direct order." The cases cited by the School Board on this issue are distinguishable on their facts. However, as discussed above, Respondent's failure to thoroughly investigate the circumstances surrounding the "confirming purchase orders" and his failure to hold accountable the members of his staff directly responsible for the misleading
information weighed into the undersigned's determination regarding Respondent's incompetency.
evidence establishes that Respondent was unaware of the problems with the alarm system at Dunbar until
December 18, 2002, and that upon becoming aware of the situation, he immediately took action to increase security at Dunbar. There is no credible evidence that Respondent intentionally disobeyed any direct order with respect to the handling of the security alarm situation at Dunbar. However, as with the "confirming purchase orders," Respondent's failure to hold any member of his staff accountable for letting the situation get to the point that it did weighed into the undersigned's determination regarding Respondent's incompetency.
e extent that Respondent's 20-minute change to the Academy's start time could be construed as disobedience of a direct order since he was only authorized to make changes of "plus or minus 15 minutes," the evidence fails to establish that the disobedience was "constant or continuing." Indeed, the change was an isolated incident, which Respondent immediately corrected upon it being brought to his attention.
Respondent's failure to respond to the USSAC letter and his failure to comply with the Sunshine Law in connection with the Task Force meeting were either not the subject of a direct order from the School Board and/or were
isolated incidents, which were not "constant or continuing." With respect to the Sunshine Law violation, even if Mr. Martin's legal advice to Respondent regarding the applicability of the Sunshine Law to the Task Force could somehow be construed as a direct order that Respondent not hold any subsequent meetings unless he complied with the Sunshine Law, Respondent's failure to comply with that "order" would not constitute a willful neglect of his duties because Mr. Martin did not have authority to give orders to Respondent.6
the foregoing reasons, the School Board failed to establish that Respondent willfully neglected his duties, as defined by Florida Administrative Code Rule 6B-4.009(4).
Conclusion
the conclusions in this Recommended Order, the undersigned has not overlooked Respondent's argument that his termination was politically motivated and, indeed, was a foregone conclusion once the new School Board members were elected in the wake of the ongoing problems with the student transportation system. This argument is not entirely without merit since the process to terminate Respondent's employment was initiated less than two months after the new School Board members were elected and the testimony of several of the new School Board members reflects their general philosophical disagreement with Respondent's management style. Whatever
political motivation there may have been for Respondent's termination, it is overshadowed by the shortcomings in Respondent's administration described in this Recommended Order. Those shortcomings gave the School Board ample legal basis under Respondent's employment contract to terminate his employment as superintendent.
s not for the undersigned to determine whether the new School Board members should have given Respondent an opportunity to change his management style or his administration to suit their desires. Nor is it for the undersigned to determine whether the School Board and Respondent could have or should have come to a more amiable and equitable parting of the ways. Instead, the undersigned's only function is to determine whether, based upon the testimony and evidence presented at the hearing, the School Board had "cause" under the employment contract to terminate Respondent's employment contract. Having done so, the undersigned's role in this matter is now complete.
RECOMMENDATION
Based upon the foregoing findings of fact and conclusions of law, it is
RECOMMENDED that the Lee County School Board issue a final order which determines that its termination of Respondent's employment as superintendent was "for cause."
DONE AND ENTERED this 7th day of January, 2004, in Tallahassee, Leon County, Florida.
S
T. KENT WETHERELL, II Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 7th day of January, 2004.
ENDNOTES
1/ Volumes VII, VIII, and IX of the Transcript were filed on October 21, 2003, and the remainder of the Transcript (Volumes I through VI) was filed on October 22, 2003.
2/ Each of the 11 allegations is not discussed under a separate heading, but rather similar allegations (e.g., the multiple "confirming purchase orders" and the various issues involving Dunbar High School) are discussed together; and other allegations which are implicated in multiple circumstances (e.g., the alleged failure to provide leadership and accountability and the alleged failure to respond to the School Board's concerns) are discussed under multiple headings as appropriate. This organization of the facts is based upon the undersigned's rulings at the hearing that limited testimony and evidence regarding Respondent's alleged managerial shortcomings and alleged non-responsiveness to those events specifically described in the Charges.
3/ For example, the evidence establishes that the Sprint purchase order came about because of the contract manager's use of a manual spreadsheet to monitor the "balance" of the initial
$200,000 approved by the School Board for the first year of the
$552,000 contract and her failure to timely get approval for the
second year of expenditures (i.e., $352,000) before the balance from the first year ran out. The evidence establishes the Fiber Solutions purchase order came about because approval of the bid for the contract came out of one department in the District, whereas the services were being rendered to another department. Changes were made in the District's policies and practices to ensure that these problems did not arise again.
4/ Paragraph 11.B.vii. of the contract provides that:
Reasons for proposed discharge for cause pursuant to subparagraphs v. and vi. of this paragraph shall be provided in writing . . . and [Respondent] shall be entitled to a hearing in accordance with Chapter 120, Florida Statutes.
5/ For example, the undersigned does not accept the proposition that the School Board was entirely blameless with respect to the problems with the transportation system or that it was somehow "duped" by Respondent into taking the action that it did because of the inexperience or naïveté of the School Board members.
Indeed, the pre-November 2002 School Board members who testified at the hearing were extremely competent in the area of public school administration, and the minutes of the meetings where the two-tier plan was discussed prior to the start of the 2002-03 school year reflect that there was considerable debate as to whether to accept Respondent's recommendation to adopt the
two-tier plan or to remain with the three-tier student transportation system. Thus, even though the evidence establishes that the School Board's decision to change to a
two-tier student transportation system was not a fully-informed decision, it clearly was not an uninformed decision and the School Board must take some level of responsibility for the decision and the problems resulting therefrom.
6/ It is also unnecessary to determine whether Respondent's decision to ignore Mr. Martin's legal advice (which, as discussed above, turned out to be sound) constitutes the "knowing and intentional violation by Superintendent of any State . . . law," which would give the School Board "cause" to terminate Respondent under Paragraph 11.B.v. of his employment contract because the Charges did not seek to justify Respondent's termination under that paragraph.
COPIES FURNISHED:
Thomas M. Gonzalez, Esquire Thompson, Sizemore & Gonzalez
501 East Kennedy Boulevard, Suite 1400 Post Office Box 639
Tampa, Florida 33602
Richard Johnston, Jr., Esquire Kiesel, Hughes & Johnston Post Office Drawer 1000
Fort Myers, Florida 33902
Dr. James W. Browder, III Superintendent of Schools Lee County School Board 2055 Central Avenue
Fort Myers, Florida 33901-3916
Honorable Jim Horne Commissioner of Education Department of Education Turlington Building, Suite 1514
325 West Gaines Street Tallahassee, Florida 32399-0400
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within
15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
| Issue Date | Document | Summary |
|---|---|---|
| Mar. 22, 2004 | Agency Final Order | |
| Jan. 07, 2004 | Recommended Order | The School Board had cause to terminate Superintendent`s employment based upon his incompetence, as defined in the Board of Education`s rules. The evidence failed to establish misconduct in office or willful neglect of duties. |
