The Issue The issue presented for decision in these consolidated cases is whether Respondent’s employment with the Polk County School Board, first as an assistant principal, then as a teacher, should be terminated, as recommended by Glenn Reynolds, Superintendent of Schools, pursuant to Section 231.36(6), Florida Statutes.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made: Respondent is an African-American male who attended Florida A&M University and Jacksonville State, earning masters degrees in physical education and educational leadership. Respondent served ten years in the military prior to entering the field of education. Respondent has been employed by the School Board since 1988. From 1988 to 1993, he was a teacher. In 1993, Respondent was promoted to the position of Assistant Principal for Discipline at Boone Middle School ("Boone"). He served in that position until July 23, 1997. Eileen Killebrew was the principal at Boone and was Respondent’s direct supervisor throughout his tenure at Boone. Ms. Killebrew testified that Respondent did a "great job" during his first three years at Boone. Respondent testified that he believed he had a good working relationship with Ms. Killebrew until April 25, 1997, when the events that are the subject of this proceeding commenced. Respondent testified that Ms. Killebrew repeatedly told him he was the best assistant principal she had ever seen and expressed a desire to continue working with Respondent throughout her career. Ms. Killebrew testified that Respondent’s job performance began to suffer during the 1996-1997 school year. He seemed preoccupied and less focused than in prior years. He spent more time on personal telephone calls. Parents complained that they felt Respondent was not listening to their children in his role as Assistant Principal for Discipline. Ms. Killebrew stated that she attributed these problems to difficulties Respondent was having in building a new house and that she referred him to a lawyer who handled such matters. No documentation was produced to corroborate Ms. Killebrew’s testimony regarding Respondent’s performance in the 1996-1997 school year. She did not set forth her concerns in any evaluation or other contemporaneous notation. She testified that parents and teachers had come to her with concerns, but she did not name them and Petitioner did not produce any of them as witnesses. None of the other witnesses in this proceeding testified that they had noted any problems with Respondent’s performance during this period, or that Ms. Killebrew had mentioned her concerns to them prior to April 25, 1997. Respondent testified that throughout the 1996-1997 school year, Ms. Killebrew had been confiding in him regarding her ambition to move up to a higher administrative position in the school district. Ms. Killebrew told Respondent that she had applied for two area superintendent positions, and later that she was a finalist for one of those positions. Ms. Killebrew told Respondent on several occasions that she was convinced that if a woman were to get the job, it would be her. Knowing that Respondent was also ambitious of improving his position, Ms. Killebrew assured him that if she got the area superintendent job, she would recommend him for the position as principal of Boone. At some point in April 1997, Ms. Killebrew learned she would not get the area superintendent job. Shortly thereafter, she learned that she was being reassigned from Boone to Crystal Lake Middle School. Respondent testified that on the afternoon of her reassignment, Ms. Killebrew came into his office. She had tears in her eyes and clearly had been weeping. She told Respondent that she was going home, leaving him and Nancy Woods, the other assistant principal at Boone, in charge of the school for the remainder of the afternoon. The following morning, Ms. Killebrew again came to Respondent’s office. Respondent testified that she began telling him about the reassignment and broke down crying. Respondent testified that Ms. Killebrew was upset partially because she believed that Crystal Lake was the worst school in the district, with students from the worst families in the county, "white trash" and "rednecks." She asked Respondent to transfer with her to continue as her Assistant Principal of Discipline. After thinking about it for a day, Respondent declined Ms. Killebrew’s request to join her at Crystal Lake. He told her that he was in the pool for appointment to a principal’s position, and as one of only two African-American males in the pool, he believed his chances were good. Respondent also had been advised that his chances of getting a principal’s job would be enhanced if he obtained administrative experience outside his current area of discipline. Thus, he told Ms. Killebrew that if he were to spend another year as an assistant principal, he would attempt to become Assistant Principal for Curriculum at Boone. Frances Lee, a teacher at Boone for 32 years, testified that Respondent was a very fair, congenial person. She stated that he was also a very religious person and that she often talked about the Bible with him. Bill Podoski, the guidance counselor at Boone, testified that in his experience, Respondent had always behaved professionally. Raymond Dean Hunt, a teacher at Boone during the relevant time period, testified that he was always impressed with the professional conduct of Respondent. He stated that they had disagreements over the years, and "I’m not one to back down or be quiet . . . but I’ve been impressed with Mr. Mickens, the way he handled me, if you will, on these occasions." He testified that on these occasions, Respondent’s manner was assertive but professional. Rae Fields, a parent and daily volunteer at Boone during the relevant period, testified that Respondent was a very even-tempered person. She had never heard him raise his voice, and noted that he had to use a megaphone in the hallways to make himself heard. She testified that the students respected Respondent and that he could break up school yard fights by simply ordering the combatants to stop. She testified that children would come to him with their problems and that often in the morning there would be a line of students waiting outside his door to talk with him. She told her son that if he was ever in trouble, he should go straight to Respondent. Ms. Fields testified that the idea of Respondent yelling or even raising his voice at anyone would be "totally out of character." She added that she had seen parents "all over his desk, yelling in his face, carrying on," while Respondent sat quietly and listened. Irene Roberts, the PTA President at Boone and a daily volunteer at the school, testified that Respondent was always a gentleman, very polite, and very fair. She took her own child to Respondent, "which I would never have done if I had not felt that Mr. Mickens was fair in his dealings with all children, and that he would help my son and deal with him fairly." Ms. Roberts testified that Respondent treated all children alike and with respect. He never screamed or yelled at the students and was never threatening or rude. Ms. Roberts testified that Respondent was equally adept at dealing with parents: I was amazed, very often, to see this man never lose control. I saw parents come in who were so rude and cruel when they thought the punishment that was meted out to their child wasn’t fair, and I heard him called names and everything, and he never ever lost his temper. He always was polite to them and a gentleman. Ms. Fields and Ms. Roberts were less complimentary toward Ms. Killebrew. Ms. Fields testified that she got to know Ms. Killebrew fairly well as a volunteer at Boone, where she worked for several hours every school day. Ms. Fields characterized Ms. Killebrew as a "bully" who "liked to intimidate the parents. She liked to intimidate the students." More diplomatically, Ms. Roberts described Ms. Killebrew as "feisty." "It was her way or no way. She just didn’t . . . give very easily." When asked if Ms. Killebrew was open-minded, Ms. Roberts replied, "That all depended on what she wanted or what the occasion was." During Ms. Killebrew’s tenure at Boone, there was a certain amount of racial tension at the school. Much of the tension focused on the School Resource Officer ("SRO"), Ed Nixon. The SRO is a local police officer or sheriff’s deputy assigned to each middle school and high school in Polk County. Ms. Roberts, who is white, testified about Officer Nixon as follows: There’s no nice way to say this. I think he was a little bit biased, bigoted. He kind of was very heavy handed with Hispanic kids and sometimes the black children. He just . . . seemed to be a little heavier and hotter on them . . . He was kind of, he was rough with kids and he was especially rough with the Hispanics. Ms. Fields, who is African-American, agreed with Ms. Roberts’ assessment. She testified that Officer Nixon was different with different children, and not friendly with minority children. She testified that "If you were doing something, and you were black or Hispanic, you more than likely got drug [sic] into his office or into the main office for some type of action to be taken." She testified that Officer Nixon was more likely to let white children walk away with a scolding, unless the offense was too severe to overlook. Ms. Fields testified that she was also disturbed that Officer Nixon was actively involved in disciplining children for typical school yard infractions, when she understood the SRO’s job to be deterring illegal activity. Ms. Fields testified that she thought the school, not the SRO, was responsible for primary discipline of children, and she brought her concerns to the attention of Ms. Killebrew. Ms. Fields testified that Ms. Killebrew at first tried to mollify her with a recitation of Officer Nixon’s personal and professional virtues. When Ms. Fields persisted, Ms. Killebrew told Ms. Fields that she could take her child out of the school if she was unhappy with Officer Nixon. Ms. Fields testified that this was a typical reaction by Ms. Killebrew to parents’ expressions of concern. Ms. Killebrew testified that she could not recall whether Officer Nixon was contributing to problems on the Boone campus and that nothing to that effect had ever been reported to her. This testimony is not credible. Both Ms. Roberts and Ms. Fields testified that Officer Nixon tended to harass verbally certain students. Ms. Fields noted this to be especially the case with certain Hispanic children whom Officer Nixon characterized as "known gang members." Ms. Fields testified that the cause of much of the aforementioned parental "yelling and screaming" was Officer Nixon. Parents would come in to complain about Officer Nixon’s treatment of their children, and Mr. Mickens would have to deal with the problem. Respondent testified as to Officer Nixon’s treatment of one particular Hispanic student, J.G. Respondent stated that J.G. had a discipline record that included some time in an alternative school, and that Officer Nixon claimed to have information that J.G. was a "bona fide gang member." Respondent testified that Officer Nixon monitored J.G.’s activity constantly, and that he was always confrontational in his dealings with J.G. Respondent added: And I have to say, I got numerous complaints from Hispanic kids, from black kids . . . it was on a regular basis about how he handled them . . . . [J.G.] had complained to me himself about, you know, Officer Nixon, the way he said things, accusations and things, you know. If there may be some writing on the bathroom wall, or there may be a gang sign on a table, he was always . . . one of the individuals that Officer Nixon would automatically allege or assume had performed the misconduct, you know, without really any evidence. [J.G.] always complained that . . . Officer Nixon always came up and would be questioning him and breaking up their groups, you know, this type thing . . . "He’s not making these other people spread out. Why are we supposed to be gang members, and none of the other people are being accused . . ." And there was always comments about some of the kids’ parents being drug dealers or being, you know, gang members. The morning of Friday, April 25, 1997, was somber on the Boone campus. Ms. Rubio, an aide for special education students at Boone, had died suddenly. Ms. Rubio very well-liked by students and teachers and everyone on the campus was saddened at her death. April 25, 1997, was the date of her funeral. The funeral was scheduled for 11 a.m. at a local church. Respondent came to the campus early that morning. Ms. Killebrew was not on the campus that day. She testified that she was absent because she was at another middle school participating in preparations for a presentation to the School Board. However, she later testified that she remembered attending Ms. Rubio’s funeral. It is undisputed that Ms. Killebrew was not on the Boone campus that morning. Because of Ms. Killebrew’s absence, the two assistant principals met and decided that only one of them should attend the funeral. They decided that Respondent would go to the funeral and that Ms. Woods would stay in charge of the campus. In chatting with Officer Nixon, Respondent mentioned that he was going to the funeral. At that, Officer Nixon "just started crying. He told me that Ms. Killebrew told him that he could not go. He said that he had wanted to lead the procession, you know. He asked me to give his condolences, you know, to the family. And he . . . was just crying about it." Respondent went to the funeral, and returned to the Boone campus around noon. He headed for the patio outside the cafeteria to prepare for monitoring the eighth grade lunch hour. As usual, he carried his megaphone and a portable radio with which he communicated with Officer Nixon. Respondent testified that, as he entered the hallway adjacent to the cafeteria, he saw a student who, upon seeing Respondent, turned on his heels and headed in the other direction toward his class. At about the same time, Officer Nixon radioed Respondent. Respondent testified that he thought Officer Nixon’s message related to the student whom Respondent had just seen heading toward class. Respondent replied to Officer Nixon that all was well, the problem was taken care of. Respondent testified that he later found out that he had misunderstood Officer Nixon’s message. "I learned later on that he had called me to come over to the cafeteria, and I didn’t come. But I did not understand that that was the communication." Respondent testified that he was standing on the patio monitoring the eighth graders going into the cafeteria when Officer Nixon approached him from behind. Officer Nixon asked Respondent if he had disciplined J.G. for running in the bus zone a few days earlier. Respondent answered that he had forgotten. Respondent testified that Officer Nixon then said, "I’m going to handcuff him, slam dunk him, and haul him downtown." Respondent testified that this statement "got my attention," and that he told Officer Nixon to write up a referral on J.G. if he did something wrong. Respondent testified that Officer Nixon was upset, and continued to mutter, to no one in particular, "I’m going to haul him downtown. I’m going to haul his butt off campus." Respondent testified that, up to this point, he had an amicable working relationship with Officer Nixon. They had always been able to talk about Respondent’s concerns with Officer Nixon’s performance. "I treated him with the utmost courtesy, and vice versa. He listened to me. Several things he was doing that I had concerns about, he did proper research and he changed from doing. And we were making progress." Respondent testified that his goal was always to avoid "getting physical" with the children. Two years earlier, Respondent had seen a child handcuffed, thrown to the ground and manhandled, and had vowed that he was going to do everything possible to prevent that from happening again. Thus, when he heard Officer Nixon talking about "slam dunking" J.G., Respondent said, "I don’t want you picking on the kid." With that, Officer Nixon stepped away from Respondent, pointed his finger, and said, "You’re not my boss. You can’t tell me what to do." Respondent testified that he did not respond because there were still children in the area filing into the cafeteria. Officer Nixon then walked away toward the main office. Respondent waited for the children to finish filing into the cafeteria, which he estimated took a couple of minutes. He then asked another teacher to take over his monitoring duties and went to the office. Upon reaching the office, Respondent told Officer Nixon that they needed to speak. Officer Nixon shrugged dismissively and walked away from Respondent. Respondent again stated that he needed to speak to Officer Nixon and that if Officer Nixon would not speak to him, then Officer Nixon should leave the campus. Respondent testified that they were standing at the door of the office and that there were no threats of violence or belligerence of any kind. Only three other people were in the office area at this time: Bill Podoski and Raymond Dean Hunt, teachers who were in Mr. Hunt’s adjacent guidance office when Respondent and Officer Nixon entered; and the guidance secretary. Mr. Podoski heard the altercation from Mr. Hunt’s office and testified that he did not hear Respondent raise his voice. Mr. Hunt came out of his office and saw the two men. He testified that Officer Nixon was speaking loudly and belligerently, saying something to the effect that Respondent was not his boss and could not tell him what to do. Mr. Hunt stated that Respondent was speaking assertively but not as loudly as Officer Nixon. He testified that Respondent’s tone of voice was no louder than he had heard it in previous disagreements Mr. Hunt had had with Respondent, "assertive but professional." Respondent and Officer Nixon proceeded out the office door to a walkway outside the building. Respondent again told Officer Nixon that he should leave the campus. Officer Nixon responded that he was not going to argue with Respondent in front of students, then walked away. Respondent testified that there were a few students sitting on a bench along the walkway. He testified that he did not believe the bulk of the students sitting on the patio could hear his conversation with Officer Nixon due to the distance and to the fact that the patio was noisy with typical lunchtime activity. Respondent testified that at this point he was content to let Officer Nixon walk away, as he had duties to resume. He did not see Officer Nixon again that day. Respondent testified that Ms. Woods, the other assistant principal, came into his office some time later that afternoon. Ms. Woods told Respondent that she had spoken with Officer Nixon, who told her he was scared that Respondent was calling his boss about the incident. Ms. Woods executed a sworn statement on Monday, April 28, 1997. Her statement reads, in relevant part: I was at eighth grade lunch and Officer Nixon came over to where I was. He was very upset. He said that Mr. Mickens had yelled at him in front of students and told him to get off campus. I tried to calm him down. He went on out the back door of the cafeteria. I walked over to the door with him, still trying to calm him down. He said it wasn’t right for Mr. Mickens to do that in front of students. I went back inside and Officer Nixon went on down the sidewalk. * * * After lunch duty was over, Mr. Brickel and I were walking back to the office and Officer Nixon was standing out there by the wall. He was crying (not boo-hooing, but tears in his eyes). He was saying that Mr. Mickens was calling his chief. He said that several times. We tried to calm him down, and Mr. Brickel told him to get in his car and go off and have a cigarette to help him calm down. James Brickel, the teacher referenced in Ms. Woods’ statement, also provided a written statement that confirmed the essentials of Ms. Woods’ account, as well as Respondent’s testimony regarding the miscommunication over the radio between Respondent and Officer Nixon. Respondent testified that after the incident, he called the office of Carolyn Baldwin, the assistant superintendent, to let her know what he said to Officer Nixon. Respondent also called Angus Williams, the Director of Discipline for the school district, who served as the school system’s liaison to the SROs. Respondent attempted to call Lt. Raggs, who was the charge officer for SROs, or anyone else in authority at the Haines City Police Department, but could not reach anyone there. He instructed his secretary to call them continuously, but was never able to speak to them. Respondent testified that Ms. Woods told him that she would call Ms. Killebrew. Ms. Killebrew testified that Ms. Woods called her. Ms. Killebrew stated that Ms. Woods was upset and told her there had been a loud argument between Mr. Mickens and the SRO. Ms. Killebrew stated that Ms. Woods was concerned because students had heard the argument and were already talking about it. Ms. Killebrew stated that Ms. Woods asked her to come back to Boone quickly. Ms. Killebrew testified that Ms. Woods also told her that Chief Wheeler of the Haines City Police Department wanted Ms. Killebrew to call him. This fact indicates that the Haines City Police Department was aware of the situation and acting upon it, despite Respondent’s futile attempts to contact the police directly. Ms. Killebrew testified that she called Chief Wheeler from her car, and he was "very angry and upset." It was agreed that Ms. Killebrew would meet him at the police station. Ms. Killebrew testified that Chief Wheeler was so angry and upset that she called Mr. Williams, the SRO liaison, to go with her to the police station to help guide her through the meeting. Ms. Killebrew and Mr. Williams first went to Boone, where they heard Respondent’s account of the incident. Ms. Killebrew testified that Respondent was "very calm" as he described what happened. She stated that the one point of contention was Respondent’s statement that he asked Officer Nixon to leave the campus. Mr. Williams informed Respondent that the SROs were not employed by the school district and that school administrators lacked the authority to order them off campus. Ms. Killebrew testified that Respondent believed he should have such authority but that he expressed his disagreement in a calm manner. Respondent generally agreed with Ms. Killebrew’s version of the meeting. His recollection was that it was Ms. Killebrew, not Mr. Williams, who told him he lacked the authority to order Officer Nixon off campus. Respondent also recalled that Mr. Williams cut off the conversation during this disagreement and stated that "we’re going to let administration take care of" investigating the matter. Mr. Williams instructed Respondent to report to the school board offices on the morning of Monday, April 28, 1997. Ms. Killebrew and Mr. Williams then drove to the police station. She testified that Officer Nixon was there when she arrived at the police station. Chief Wheeler and Lt. Raggs told her that Officer Nixon was in an office writing up his statement of what happened. Officer Nixon’s unsworn statement reads as follows, in full: On Friday, April 25, 1997 I, Officer Nixon, was on duty at Boone Middle School (225 South 22nd Street) when I advised the Assistant Principal Ron Mikens [sic] that I was having a problem with a student, [J.G.], in the cafeteria. Mr. Mikens then refused to come to the cafeteria. 8th grade lunch then started and I went outside to speak to Mr. Mikens about the problem. I told Mr. Mikens that [J.G.] was accused of picking on [B.D.] and I asked him if he had done anything about an incident that occured [sic] earlier in the week when [J.G.] refused to leave the bus zone and Mr. Mikens told me he had not done anything. I then told Mr. Mikens that [J.G.]’s behavior was getting worse and I felt that a student may get injured if some action was not taken. Mr. Mikens then got agitated and raised his voice at me and told me that I was picking on the kids. Mr. Mikens then pointed his finger at me and said, "let me tell you something Officer Nixon." I then told Mr. Mikens that I do not work for him and walked away. I then went into the main office and walked down the hall when Mr. Mikens began yelling at me again and pointing his finger in my face. I told him again that I did not work for him and at that point he told me to leave the campus. I told him I would not leave the campus and I walked out the door to Student Services and he followed me out the door. Mr. Mikens then began yelling at me in the hallway adjacent to the 8th grade patio and he put his finger in my face and told me that I did work for him and I will leave the school. Mr. Mikens created a disturbance in front of several 8th grade students and Mr. Mikens also stated that he wished I did put my hands on him. I walked away from him again and told Assistant Principal Becky Woods of the situation. I then left the school to prevent any further incident. Officer Nixon did not testify at the hearing. Ms. Killebrew testified that Chief Wheeler was threatening to arrest Respondent. Mr. Williams interjected that he would go to the school and that he would handle the situation. On Monday, Respondent reported as instructed and was interviewed by Dale McDonald, the school district’s Personnel Investigator Specialist, along with William Londeree, the Director of Employee Relations and Noninstructional Personnel. Respondent testified that he wrote a statement at their request. Respondent then was sent home for the rest of the day. Besides meeting with Respondent, Mr. McDonald talked to roughly ten students and had each of them make a written statement. He testified that Respondent gave him the names of three or four students who might have observed the incident. Mr. McDonald did not indicate the source of the other names. Ms. Roberts, the PTA President, testified that she was in the office on the day the interviews were conducted. Mr. McDonald was calling students down to the office, and Ms. Roberts noted four or five students who were discussing what they were going to say when Mr. McDonald called them in. She also noted that four of these students were members of the "Explorers," a Boy Scout type organization focusing on police work. Officer Nixon ran the Explorers chapter at Boone. Ms. Roberts testified that she interrupted the students’ conversation and told them to cease discussing the matter. She ordered them to sit quietly, wait to be called in, and tell the truth to the investigator. In a subsequent written statement, Mr. McDonald reported that he asked each student interviewed if he or she was a member of the Explorers, and that they all told him they were not. Ms. Roberts, who was at Boone every day during that school year and logged more than 1,000 volunteer hours, was in a position to know that the students in question were members of the Explorers, regardless of what these students told Mr. McDonald, an outsider to the Boone campus. Mr. McDonald also took statements from four staff persons, including the statements of Ms. Woods and Mr. Brickel referenced above. Mr. McDonald did not take the statement of Mr. Hunt because "Mr. Hunt was apparently a witness to only the tail end of the conversation." Mr. McDonald’s reasoning is curious in light of the fact that several of the statements he deemed worth taking were from students who saw only the episode on the walkway, and who could hear nothing of what the two men were saying. The walkway episode occurred later than the scene witnessed by Mr. Hunt. Leaving aside questions of bias on the part of the student witnesses, their hearsay statements are unreliable on their face as the basis for findings of fact. The students claim to have heard statements and seen actions that neither participant made or took. One student claimed to have seen Respondent raise his fist as if to hit Officer Nixon. Given the self-serving tenor of Officer Nixon’s written statement, it is difficult to believe he would have refrained from mentioning such an action if it occurred. The students also placed statements in the wrong person’s mouth. Even Officer Nixon agreed that it was he who substantially stated, "You’re not my boss." Yet one of the students claims Respondent made that statement. Mr. McDonald took the statement of one student who saw nothing of the incident, but whose friends told her that Respondent and Officer Nixon were "mad at each other." Another student heard someone say, "Don’t put your hand on me," but did not know who said it. Mr. McDonald also apparently found some value in the following student statement, which reads in full: Last Friday I had just come out of the lunchroom and I went to go sit with my friends and [S.W.] was sitting down by me and I was starting to talk to him and he told me to be quiet he wanted to hear what Mr. Mickens, Officer Nixon, and Mr. Brickel was saying, so I turned around to see what they were doing and that is all I saw. I could not understand what they were saying. Mr. Mickens was talking, but he usually talks loud. None of the students testified at the hearing, further eroding the probative value of their cursory written statements. The students’ statements are useful as an impressionistic indication that the conversation was somewhat more heated than Respondent recalled. All of the students agreed that both men appeared angry. The statements are also useful to indicate that Officer Nixon was not merely the passive recipient of abuse as he claimed in his self-serving written statement. Finally, the student statements are of some value in corroborating Respondent’s testimony that the conversation was not conducted in loud tones. Some of the students frankly admitted they could not hear what the two men were saying. Others claim to have heard statements that appear to be their surmises of what the men must have been saying, given that they "looked mad." In summary, Respondent’s version of events is the only one made under oath and subject to cross-examination, and was corroborated in part by Mr. Hunt. Petitioner offered no testimony from any eyewitness to the event. Officer Nixon’s unsworn hearsay statement is patently self-serving, portraying him as the victim of an unprovoked tirade by Respondent. The student statements are unreliable, except as indicated above. Respondent’s version is consistent with the descriptions of his character and demeanor and of Officer Nixon’s character and demeanor offered at the hearing. It is found that Respondent’s version of the incident with Officer Nixon is essentially accurate, though it likely understates somewhat the heat of the conversation between the two men. It is found that the confrontation was entirely verbal, and that neither man ever threatened to escalate the matter to physical violence. Both men were in a labile emotional state due to the funeral of Ms. Rubio, which contributed to turning a minor misunderstanding into a confrontation. Respondent calmed down quickly, but Officer Nixon remained upset and fearful that Respondent would report his actions to his superiors. This caused Officer Nixon to preemptively go to his superiors with his one-sided version of events, which outraged Chief Wheeler and led him to demand retribution against Respondent. Returning to the chronology of events, Respondent was sent home on Monday, April 28, 1997, after his meeting with Messrs. Londeree and McDonald. On Wednesday, April 30, Respondent received a phone call from Ms. Baldwin’s secretary, telling him to come to a meeting at which Ms. Baldwin "was going to work this thing out." He was told nothing further about the substance of this meeting or even who would be present. Ms. Baldwin testified that the meeting was attended by herself, Respondent, Officer Nixon, Ms. Killebrew, Chief Wheeler, Angus Williams, and Tillman Sanders, who worked in the Superintendent’s office. Ms. Killebrew recalled that two or three police lieutenants were present along with Chief Wheeler. Respondent also recalled that at least one other police officer besides Officer Nixon and Chief Wheeler was present. All agreed that Ms. Baldwin chaired the meeting. Ms. Baldwin testified that the meeting was called at the request of Chief Wheeler because he was "very upset about what he perceived to be unprofessional treatment of a police officer on our school campus." Ms. Baldwin testified that her agenda for the meeting was to assure Chief Wheeler that the incident would not be repeated and to allow Chief Wheeler to speak directly to Respondent. She did not testify as to any effort made by her or her staff to inform Respondent of the purpose of the meeting. Ms. Baldwin testified that Respondent spoke at length, giving his version of events. She opined that he seemed "pretty defensive," and became upset with Officer Nixon’s version of events. Ms. Killebrew testified that she was instructed by Ms. Baldwin during the meeting to write a letter of reprimand to be placed in Respondent’s file. She stated that Respondent was upset by this instruction and continued to argue that such a letter was not in order. Ms. Baldwin also testified that she "recommended" to Ms. Killebrew that a letter of reprimand be written for unprofessional behavior in front of staff and students. Ms. Killebrew testified that Ms. Baldwin gave her detailed instructions as to the form and content of the letter. Respondent testified that he was puzzled throughout the meeting. He testified that Ms. Baldwin lectured him that he was not under any circumstances to order a police officer off the campus. He testified that Chief Wheeler was extremely angry at the statement he had written, which contradicted that of Officer Nixon. At some point, it became clear to Respondent that the purpose of the meeting was to give him a letter of reprimand, not to air the facts of the situation. He testified that he had never heard of any school employee receiving such a public reprimand. Respondent testified that Ms. Baldwin stated that she had not read Mr. McDonald’s report and was not interested in reading it. This was essentially confirmed by Ms. Baldwin, who testified that her basic understanding of the facts came by way of conversations with Ms. Killebrew. Ms. Baldwin testified that it was not her role to investigate the facts. As found above, Ms. Killebrew was not a witness to any of the events on the Boone campus. Thus, Ms. Baldwin’s version of the facts was a third hand retelling of Officer Nixon’s story and need not be repeated here. Ms. Baldwin testified that Ms. Killebrew assured her that "numerous" staff members at Boone confirmed her version of the story, essentially an adoption of Officer Nixon’s statement. Neither Ms. Baldwin nor Ms. Killebrew provided the names of these "numerous" staff members. Ms. Baldwin admitted she performed no independent investigation of the facts or of the credibility and emotional state of Officer Nixon. She was not made aware of teachers from Boone who disagreed with Ms. Killebrew’s version of the facts. Based upon all the testimony, it is found that the principal purpose of this meeting was to publicly reprimand Respondent in an effort to mollify Chief Wheeler of the Haines City Police Department. The testimony indicates that every school board employee at the meeting, except Respondent and Angus Williams, was aware beforehand that he or she was present for a public chastisement of Respondent, not for a fair hearing. Both Ms. Baldwin and Ms. Killebrew insisted that the reprimand had nothing to do with whether Respondent was right or wrong in the argument, but was based on his behavior in front of students and staff. Their testimony was that they were not required to choose between the stories of Respondent and Officer Nixon in order to reprimand Respondent. This testimony is belied by the actual text of the letter of reprimand, dated April 30, 1997, which states in relevant part: I regret that I must reprimand you for unprofessional behavior in the performance of your duties as Assistant Principal at Boone Middle School. This comes as a result of the incident that took place with School Resource Officer Ed Nixon on Friday, April 25, 1997. I am also requiring that you get counseling through the Employee Assistance Program in the hope that it may help you understand the situation better. Despite its use of the first person singular, the letter was signed by both Ms. Baldwin and Ms. Killebrew. The first paragraph of the letter is consistent with the testimony that Respondent was reprimanded for having an argument with Officer Nixon in front of students and staff, regardless of the motivation or whose version of the story Ms. Baldwin and Ms. Killebrew believed. However, in the second paragraph of their letter, Ms. Baldwin and Ms. Killebrew order Respondent to enter counseling. This order indicates that Respondent’s version of events was disregarded and that Officer Nixon’s was entirely accepted. If Respondent was confronting Officer Nixon to protect a student from harassment and possibly from physical abuse, counseling would hardly be necessary to help him "understand the situation." Counseling might be called for if Respondent had gone into an unprovoked rage in response to an innocuous question by Officer Nixon. The finding that Respondent’s story was disregarded is supported by the fact that no disciplinary action was taken against Officer Nixon, the other participant in the incident. Respondent was required to stay home for at least three school days while his supervisors contemplated a course of action. Officer Nixon returned to Boone on the Monday following the incident. It is understood that the school district apparently lacked authority to take direct disciplinary action against Officer Nixon. However, nothing in the record of this case indicates that anyone from the school district even suggested disciplinary action to Officer Nixon’s superiors, despite his participation in the incident and despite repeated complaints from parents about Officer Nixon’s methods and actions on the Boone campus generally. This supports the finding that Respondent’s superiors accepted wholesale the facts as stated by Officer Nixon. Ms. Baldwin testified that the words "I am requiring that you get counseling" did not mean that she was requiring Respondent to get counseling. She stated that the words actually meant that she was "requesting" Respondent to obtain an "evaluation" because of "some behaviors . . . which appeared to be unusual to the supervisory people." She admitted that the "supervisory people" she referenced included no one other than Ms. Killebrew, who testified that the counseling requirement was placed in the letter on Ms. Baldwin’s instructions. Ms. Baldwin’s testimony cannot be credited as anything other than an effort to finesse the fact that she ordered Respondent to enter counseling when she lacked the authority to do so. Petitioner offered no evidence that Ms. Baldwin, as East Area Superintendent, was authorized to require Respondent to obtain counseling through the Employee Assistance Program. Ms. Baldwin testified that it was her understanding that her "recommendations" in this regard must be affirmed by the Superintendent and that she could take no disciplinary action against Respondent for refusing to enter counseling. When asked point blank if she believed she had the authority to require Respondent to submit to the Employee Assistance Program, she answered, "I had the authority to say that I thought that was an appropriate recommendation." Dennis Dunn, the Assistant Superintendent for Human Resources Services, testified that area superintendents such as Ms. Baldwin only have authority to recommend participation in the Employee Assistance Program. He stated that it would be gross misconduct for an area superintendent to require an employee to do something she lacks authority to require. When confronted with the actual letter of reprimand, Mr. Dunn decided that he might be wrong about the area superintendent’s authority in these matters. Ms. Killebrew testified that when she gave Respondent the letter of reprimand, she advised him to drop the matter and "let it go," that with good performance the reprimand letter would "go away." She testified that she told Respondent not to discuss the incident at school because she did not want staff and students gossiping and taking sides in the matter. Respondent testified that Ms. Killebrew never instructed him not to discuss the matter with his co-workers or students. Under cross-examination, Ms. Killebrew conceded that she never "ordered" Respondent not to discuss the matter, and that there was no written directive from her on the subject. She stated that, "I asked him not to, in a professional manner." In early May 1997, Respondent returned to his duties at Boone. On May 8, 1997, two incidents occurred involving Respondent. The first involved a conflict over whether Respondent or Officer Nixon should respond to altercations in classrooms. Ms. Killebrew’s version of events, as she stated was relayed to her by her secretary, is that the secretary placed a call sending Officer Nixon to remove disruptive students from a class pursuant to Ms. Killebrew’s general instruction to always send Officer Nixon on such calls. Shortly thereafter, Respondent approached the secretary and told her that from this point forward she was to send Respondent, not Officer Nixon, to address classroom disturbances. Ms. Killebrew’s secretary did not testify at the final hearing. It is also noted that Ms. Killebrew’s written statement describing these events appears not to have been typed by her secretary. The other letters in the record signed by Ms. Killebrew were typed by her secretary. Ms. Roberts, the PTA President, told a different version of this event. She was in the office when the call came in. She testified that Officer Nixon had just come in the front door when Respondent exited to go to the classroom. She stated that Officer Nixon ran out and said, "I’ll take it, I’ll take it," but that Respondent was already gone. She testified that Officer Nixon returned to the office angry, and said, "That’s it, I’m calling Carolyn Baldwin. He’s fighting me every inch of the way." Ms. Roberts testified that she was puzzled as to what Officer Nixon was talking about, because in her view Respondent was just doing his job. The second incident was caused by the first. Ms. Killebrew testified that she went into Respondent’s office to discuss the ongoing friction between Respondent and Officer Nixon, and particularly the incident between Respondent and her secretary. Ms. Killebrew testified that she also wished to discuss an incident relayed to her by "a teacher," in which Respondent allegedly pulled a child out of class to ask him about the incident with Officer Nixon. Again, Ms. Killebrew did not identify this teacher, and Petitioner offered no corroboration for her hearsay testimony. Thus, this portion of Ms. Killebrew’s testimony cannot be credited. Ms. Killebrew’s written statement of the incident, which she verified as accurate at the final hearing, states in relevant part: I told him that the conflict with Officer Nixon has to stop and that we all have to work together until school is out. I also told him that the staff was becoming divided because he was continuing to discuss it. He responded that he was going to the school board because everybody had lied about him. I told him that was fine, but it needed to be kept away from the school. I reminded him that I had asked him not to discuss the incident when I gave him the letter. He said, "That’s a lie. You never told me that." I asked, "You’re calling me a liar?" He responded, "Yes, I am. After all I’ve did for you, you sat up in that meeting and told those lies . . ." At this point, I stopped him and told him that he needed to take the afternoon off. He continued to go on. Several more times I had to try to stop him and repeat myself. Finally, he acknowledged that he had heard me. Respondent’s version of the incident basically coincides with Ms. Killebrew’s, with some differences in the particulars. When she asked if he was calling her a liar, Respondent testified that his answer was, "Ms. Killebrew, if you said you told me that, yes, you are lying." Respondent testified that he did not say that Ms. Killebrew lied at the earlier meeting with the police officers, but he did reproach her for not supporting him at the meeting. Respondent’s testimony is consistent with Ms. Killebrew’s own testimony that she sat silently at that meeting. Respondent testified that, although he was surprised at Ms. Killebrew’s statements, he responded calmly. On the advice of Dr. Neriah Roberts, Executive Director of the Association of School Based Administrators, Respondent requested that Ms. Killebrew put in writing her order that he go home for the remainder of the day. After obtaining direction from William Londeree, the district’s Director of Employee Relations and Non-Instructional Personnel, Ms. Killebrew put her order in writing and Respondent went home. On the afternoon of May 8, 1997, Ms. Killebrew wrote the statement quoted above, in the form of a letter to Superintendent Glenn Reynolds. The letter concludes as follows: Due to Mr. Mickens’ insubordinate, disrespectful behavior to me, I am asking that you suspend him, without pay, from his duties as assistant principal at Boone Middle School. I am also asking that you consider reassigning him to another location. Not only has he compromised his working relationship with me, he has also put his effectiveness here at the school in jeopardy by failing to behave in a professional manner. Ms. Killebrew testified that she wrote this letter according to instructions given her by Ms. Baldwin, as she had the earlier reprimand letter. She testified that Ms. Baldwin instructed her as to the form and content of the letter, including the suspension recommendation. Ms. Killebrew testified that Ms. Baldwin told her that the School Board has progressive discipline. Ms. Baldwin told Ms. Killebrew that "He had been given a letter of reprimand. This would be step two, therefore I should ask for a suspension." As will be discussed more fully in the conclusions of law below, Ms. Baldwin was correct in stating that the Polk County School Board has progressive discipline. However, "step two" in the progression set forth in Section 3.005(II)(A) of the School Board policies is a "written reprimand," not a suspension. "Suspension or demotion" is step three in the progression. In their eagerness to pacify Chief Wheeler, the district administrators passed over step one in the School Board’s progressive discipline scheme, "verbal reprimand." It is found that Respondent was truthful in testifying that he did not understand Ms. Killebrew to have directed him to refrain from discussing these matters at school. Ms. Killebrew herself softened her recollection to testify that she had "asked" Respondent not to discuss the incident. However, it is also found that such an instruction should not have been necessary. Whether or not Ms. Killebrew said anything at all to Respondent, he should have understood that no good to the school could come from hallway discussions of the incident with Officer Nixon. Respondent did not deny talking about the incident upon his return to Boone. Ms. Killebrew’s testimony that she was hearing from staff that Respondent was discussing the matter is credited. Thus, Ms. Killebrew was justified in confronting Respondent about the matter. Whatever his feelings, Respondent was impolitic at best in accusing Ms. Killebrew of lying. Her immediate reaction in sending Respondent home for the rest of the afternoon was also justified. Tempers could cool and the matter could be addressed rationally at a later time. Nonetheless, it cannot be overlooked that Ms. Killebrew appears to have been pursuing a personal agenda against Respondent. Ms. Roberts, the PTA President, testified that she spoke with Respondent on the day he returned to the Boone campus in early May and offered to be a character witness for him. Shortly thereafter, she was approached by Ms. Killebrew: Eileen Killebrew came up to me and advised me not to talk to him and not to ask him questions about it or to be friendly, and she made the statement, I want him off my campus, or something to that effect . . . I said, Mr. Mickens, he’s so nice, he’s a nice man. And she said, oh, you don’t know, you don’t know. I want him out of here. The vehemence of Ms. Killebrew’s statements to Ms. Roberts cannot be explained by Respondent’s set-to with Officer Nixon, or by her vague comments that she had noted some slippage in Respondent’s performance during the 1996-1997 school year, even if those comments could be credited as more than after-the-fact rationalizations for her actions. Respondent noted that Ms. Killebrew’s change in attitude toward him coincided with his rejection of her request that he join her in transferring to Crystal Lake Middle School. The facts also demonstrate that Ms. Killebrew was well aware that parents and Respondent were concerned about the bullying methods of Officer Nixon and that Ms. Killebrew stood squarely behind Officer Nixon. It is found that these factors best explain why Ms. Killebrew would seize upon a brief argument that occurred behind closed doors as a pretext for attempting to have Respondent suspended from his job without pay and reassigned. She did not wait for tempers to cool, did not attempt to have a rational conversation with Respondent, or otherwise seek a less drastic remedy. Ms. Killebrew wanted an excuse to get Respondent "off her campus," and this incident could do the job. The following day, May 9, 1997, Superintendent Glenn Reynolds sent a letter to Respondent advising that he was placing Respondent on paid leave, effective May 12, 1997. The letter also stated that Mr. Reynolds was "requiring you to submit to a complete medical and psychological evaluation," and provided a list of physicians and psychologists from which Respondent could choose. The letter required Respondent to choose one physician and one psychologist and to inform the Employee Relations Office of his choices no later than May 14, 1997. Unlike Ms. Baldwin, Mr. Reynolds freely admitted that the word "requiring" in his letter meant "requiring." However, as with Ms. Baldwin, Petitioner offered no evidence to demonstrate that Mr. Reynolds had the authority to require Respondent to submit to a complete medical and psychological examination. Mr. Reynolds essentially contended that he had the inherent authority as Superintendent to require Respondent to submit to these examinations. The school district’s Contract of Employment for Administrators for the school year 1997-1998 contained a provision stating as follows: The Employee, at his expense, agrees to submit to the Board, if required, prior to the effective date of this contract written evidence of good health as required by Board policy. The Employee, at the expense of the Board, further agrees, upon request of the Board at any time during the school term, to submit to a physical or psychiatric examination by a qualified physician or physicians to be selected by the Employee from a list consisting of not less than three (3) names approved by the Board. The Employee further agrees to allow the report of the physicians to be submitted to the board with a copy being forwarded to the Employee. The quoted provision was not contained in the contracts for prior years, including the 1996-1997 school year that is the relevant time period for this hearing. Mr. Reynolds testified that he could not recall the particulars regarding this change to the employment contract. It is noted that even if the quoted provision had been in effect, the authority to require an employee to submit to a psychiatric examination is vested in the School Board, not the Superintendent. Respondent replied by letter dated May 12, 1997, informing Mr. Reynolds of his selection of a physician and a psychologist. Respondent’s letter also requested a conference with Ms. Killebrew and a reason in writing from Mr. Reynolds for the medical and psychological evaluation. By letter dated May 14, 1997, Mr. Reynolds responded as follows, in relevant part: I have required the evaluations to provide me with an independent, professional opinion as to whether there are stress-related or medical reasons for reported behaviors which had not been evidenced in your previous work experience. The information will help me in making decisions relating to behaviors which have been recently reported and/or investigated. Mr. Reynolds’ letter was silent as to Respondent’s request for a meeting with Ms. Killebrew. Mr. Reynolds use of "recently reported and/or investigated" in the statement quoted above is technically accurate but misleading in its implication that an "investigation" may have occurred. Mr. Reynolds in fact relied on Ms. Killebrew’s version of events as conveyed to him by Ms. Baldwin, along with the uninformative statements collected by Mr. McDonald and the self-serving written statement of Officer Nixon, which Mr. Reynolds inaptly termed a "deposition." Mr. Reynolds neither conducted nor ordered an independent investigation of the events at Boone. Respondent was dissatisfied with the reasons given for subjecting him to a psychological evaluation and met with Mr. Reynolds. Respondent testified that at the meeting, Mr. Reynolds would only say that he wanted an independent opinion regarding Respondent’s mental health and told Respondent that he would likely be terminated if he didn’t do it. Respondent testified that he was a former military officer, and if his superior ordered him to see a psychologist, he would see a psychologist. At the hearing, Mr. Reynolds was unable to recall lucidly the chronology of events. He justified ordering the psychological exam by reference to "threats" Respondent had made. Further inquiry revealed that the referenced "threats" related to events that allegedly occurred three months after Mr. Reynolds ordered the examination. Mr. Reynolds also suggested that he was acting to help Respondent and perhaps prevent a situation such as later occurred at Littleton, Colorado, and Conyers, Georgia. This suggestion was irrational, given that Respondent had been accused only of having a shouting match with a School Resource Officer and an argument with Ms. Killebrew. Mr. Reynolds frankly admitted he was relying on the word of Ms. Killebrew regarding the events at Boone and Respondent’s mental state. It is not surprising that someone relying entirely on Ms. Killbrew’s version of events would come away believing that Respondent was emotionally unstable, and come away knowing none of the details regarding Officer Nixon’s pattern of behavior at the school or Ms. Killebrew’s resentment of Respondent. Mr. Reynolds justified his reliance on Ms. Killebrew’s word by saying, "We have to assume that our administrators are going to be honest, be straightforward." He failed to explain why Respondent, also an administrator, did not enjoy the benefit of the same assumption. It is found that Mr. Reynolds lacked a sufficient factual basis for taking the serious, potentially stigmatizing step of ordering Respondent to submit to a psychological examination, even if it is assumed that Mr. Reynolds had the authority to do so. The only facts before Mr. Reynolds were that Respondent had arguments with Ms. Killebrew and Officer Nixon, plus Ms. Killebrew’s vague impressions that Respondent appeared to be under stress. Mr. Reynolds made no independent investigation of the situation. He expressed no curiosity as to whether there were personal grudges or emotional issues on the part of Officer Nixon and Ms. Killebrew, even after a group of parents and teachers including Ms. Fields, Ms. Roberts, and Mr. Hunt met with him to state their support of Respondent and their concerns about Officer Nixon’s behavior on the Boone campus. Respondent submitted to the psychological exam on June 11, 1997. Respondent testified that the psychologist presented him with release forms and asked Respondent to sign them. Respondent refused his consent to allow any examination report to be turned over to the school district. Discussions ensued between Respondent and Messrs. Dunn and Londeree of the school district over the release of the examination report. Respondent testified that the psychologist refused to go over the results of the examination with him unless he would sign the release forms. Respondent testified that Mr. Dunn later phoned him to say that he had spoken with the psychologist and arranged for Respondent to go back in and sit down with the psychologist to go over the report. Respondent returned to the psychologist, who told him that he had not written a "report" and did not intend to do so. Respondent testified that the psychologist said to him, "Your problem is not with me, it’s with the Superintendent of Schools." Respondent testified that he next received a call from Mr. Londeree, who wanted to make a deal. Mr. Londeree asked Respondent to permit the psychologist to send a copy of the report to the school district at the same time a copy was sent to Respondent. Respondent testified that his answer was, "I don’t make deals." Respondent testified that Mr. Londeree told him that if the school district did not receive a copy of the psychologist’s report, then it would go to "Plan B." Respondent stated that he and Dr. Roberts puzzled over what "Plan B" might be. Respondent testified that, in retrospect, he assumed "Plan B" was to transfer him to McLaughlin Middle School, because the transfer occurred immediately after he confirmed his refusal to release his records. By letter dated July 23, 1997, Mr. Reynolds informed Respondent that he was reassigned to the assistant principal position at McLaughlin Middle School, effective immediately. Mr. Reynolds testified that Respondent’s refusal to release the exam results played no part in his decision to transfer Respondent, though he offered no alternative explanation for the timing of his decision. The same alleged facts were before Mr. Reynolds on May 9, 1997, when he suspended Respondent with pay, yet more than two months lapsed before this reassignment, just after Respondent’s refusal to release the records of a psychological examination he should not have been required to take. Ronald Rizer, the principal of McLaughlin Middle School, testified that he could not remember the date he was told that Respondent would begin work at his school. He remembered that Ms. Baldwin called him and asked if he would be willing to swap his current assistant principal for Respondent. Mr. Rizer testified that he told Ms. Baldwin he would work with her and the Superintendent in any way he could. Mr. Rizer did not testify as to whether Ms. Baldwin or Mr. Reynolds briefed him on the previous spring’s events at Boone or gave him their opinion of Respondent’s mental and emotional state. Respondent took a few days’ personal leave, then reported at McLaughlin on Tuesday, August 5, 1997. Classes had not begun, but the faculty had returned to prepare for the approaching school year. Mr. Rizer testified that he greeted Respondent and told him he would introduce him to the faculty via the intercom. He told Respondent that he had no basic assignments for him that day and that Respondent should spend the day getting acquainted with the faculty. Alan Jostes was the Dean of Students at McLaughlin. He testified that he learned that morning there was a new assistant principal, and went to Respondent’s office to introduce himself. He testified that Mr. Rizer had assigned him to prepare the duty assignment list, and that he began going over the list with Respondent. Mr. Jostes testified that Respondent saw his name on the list for morning bus duty and immediately became "very upset, yelling at me, ‘Why is my name on this? I don’t do any duties.’" Mr. Jostes told Respondent that he had simply plugged Respondent’s name into the spots on the list that had been filled by the previous assistant principal the year before. Mr. Jostes testified that Respondent became very angry with him: "I felt very threatened at that point. Accusing me of, you know, being insubordinate and not doing my job, when I was asked by the building Principal." Respondent testified that he never yelled at anybody. He stated that when he saw Mr. Jostes had assigned him to bus duty five days a week, he told Mr. Jostes, "I’m a rover. I have to do student, teachers, parent conferences in the morning. I have to check the teachers’ duty stations." Respondent told Mr. Jostes to take the morning bus duty until Respondent could evaluate the personnel and assign someone to the duty on a permanent basis. Mr. Jostes testified that things calmed down as he took Respondent for a tour of the various duty stations, but that Respondent again became agitated when he saw his name on the assignment list for eighth grade cafeteria duty. Mr. Jostes testified that Respondent became "very confrontational" and yelled at him. Mr. Jostes stated that at this point the conversation was going nowhere and he asked Respondent if he needed anything else. Respondent asked Mr. Jostes to show him the classrooms. They walked down the sixth and eighth grade hallways, after which Respondent said, "That’s all I need. You may go back to your office." Respondent agreed that Mr. Jostes took him around the campus. He testified that when he saw Mr. Jostes had put him down for one hour’s duty in the cafeteria, he informed Mr. Jostes that "I pull lunch duty all three hours. I said this is my time to be proactive with the students. I explained all this to him. And I said, Mr. Jostes, [you’re] really talking to me in a condescending manner. [You’re] talking to me like you’re the assistant principal. Mr. Jostes just kind of turned his head." Respondent testified that he then asked Mr. Jostes to show him the sixth and eighth grade wings, after which he told Mr. Jostes that was all he needed. Respondent’s version of these events is credited as a more objectively accurate statement, though it is found that Mr. Jostes’ honestly perceived that Respondent was "yelling" at him. In his demeanor while testifying, Mr. Jostes appeared to be a soft-spoken, sensitive, somewhat timorous gentleman. Respondent does not speak in a loud voice, but his voice does carry conviction and assertiveness. Respondent is also sensitive to what he perceives as condescension, and likely took on a stern tone when he felt Mr. Jostes was talking down to him. This in turn intimidated Mr. Jostes, who considered it "yelling." Supporting the finding that Mr. Jostes’ reactions do not provide an accurate measure of Respondent’s "anger" and propensity for "yelling" is the testimony of Gene Carroll, the in-school suspension instructor at McLaughlin. Over the course of two days, Respondent and Mr. Carroll engaged in serious discussions over the direction of the discipline program at McLaughlin. There were times when the two men were at loggerheads over changes that Respondent wished to make in the program. Despite these serious disagreements, Mr. Carroll testified that Respondent "always had a good attitude, I thought. Very pleasant to speak to, and I like him real well as far as [that]. I just didn’t like his program." Mr. Jostes testified that the next afternoon, he went to Respondent’s office at Respondent’s request. Mr. Jostes then stated: When I arrived back about 12:30, I went directly to his office. And I said, "Is now a good time?" And he’s sitting at his desk, and he said, "You need to shut both doors," after I walked into the office. The conversation in his office turned to, "You have an attitude. You’re very insubordinate to me," and it went from nothing to yelling and screaming at me. I mean, it was not a directive voice, it was yelling and screaming. "You’re insubordinate. You’re very . . . you have an attitude. And if you don’t like the way I do things around here, I’m going to find someone else for the job, and I will get you out of here." And he said, "Do you have any questions?" And before I could even answer that, he says, "And if you don’t like what I’m saying, we’ll get Mr. Rizer in here." And at that point, I said, "I think that would be a good idea." Respondent’s recollection of this incident was markedly different: I guess a little bit before 1:00, I called Mr. Jostes into my office, and I want to go over and want to make sure that he was prepared to, you know, take part, you know, in the afternoon [teachers’] meeting. Mr. Jostes [sat] down . . . and my door was here. I asked him, I said would you please close the door. He just [sat] there. And he said, I think we need to see Mr. Rizer. Q. Had you had a conversation? A. No. He said, I think we need to go see Mr. Rizer. So I said, all right, let’s go see Mr. Rizer. Respondent’s version of this encounter is credited. It appears that Mr. Jostes confused statements that Respondent made during the subsequent meeting with Mr. Rizer with statements made in Respondent’s office. It is also more plausible that Mr. Jostes would be the person to suggest taking their dispute to Mr. Rizer, because Mr. Jostes had a long-standing working relationship with Mr. Rizer. Respondent had met Mr. Rizer only the previous day. The two men went to Mr. Rizer’s office. Mr. Rizer testified that they came in because of Respondent’s concerns that Mr. Jostes was being insubordinate and trying to tell him what to do. Mr. Rizer testified that Mr. Jostes had already reported to him the difficulties he was having with Respondent. This supports Respondent’s testimony that it was Mr. Jostes who suggested a meeting with Mr. Rizer. Mr. Rizer testified that he attempted to explain to Respondent that he had assigned Mr. Jostes the duty assignment list, but had difficulty getting a word in edgewise. He testified that Respondent repeatedly interrupted him. Mr. Rizer testified that he became irritated and slammed his hand down on his desk and said, "Wait a minute. I’m the Principal here and I’m the boss. You’re not, and you’re going to do things my way." Mr. Rizer testified that Respondent settled down at that point and listened. Mr. Rizer testified that the latter portion of the meeting was productive. He explained to Respondent that he had carved out a special role for Mr. Jostes to further his career goals, and that role was somewhat different than that of the typical dean of students. Mr. Rizer testified that he felt there was a meeting of minds as to the way he had established things as principal of McLaughlin Middle School. Mr. Jostes and Respondent generally agreed with Mr. Rizer’s testimony regarding their meeting. Mr. Jostes agreed that the meeting ended calmly and positively. He also stated that he and Respondent returned to Respondent’s office after the meeting, and "we actually had a very productive communication." Respondent testified that in the early part of the meeting, he complained about the lack of cooperation from Mr. Jostes and told Mr. Rizer that "I can carry it by myself until we can bring in somebody who wants to cooperate and be my Dean of Students." Respondent did not recall Mr. Rizer's slamming his hand on the desk, but agreed there came a point at which Mr. Rizer asserted control of the meeting and Respondent listened to what he said. Respondent testified that by meeting’s end, all three participants seemed happy. Mr. Jostes agreed that Respondent seemed better to understand the situation on the campus at the end of the meeting. Respondent said to Mr. Jostes, "Let’s get out of here and go to work." They returned to Respondent’s office and prepared for the afternoon meetings, then sat together in those meetings for the rest of the afternoon. Gene Carroll was in charge of the In-School Suspension ("ISS") program at McLaughlin. On the afternoon of August 5, he introduced himself to Respondent and showed him a copy of the written protocols for the ISS program. Mr. Carroll testified that Respondent handed the paper back to him and said that he did not want a concrete program because he preferred flexibility in making disciplinary decisions. This commenced a substantive dispute, the narrow details of which are unnecessary to recite in this Order. In essence, Respondent had been in charge of discipline at Boone and had run it with a measure of personal discretion in meting out punishment. The program at McLaughlin was a more lockstep system of progressive punishment. Mr. Carroll conceded that Respondent’s program worked well at Boone, but testified that he and Mr. Rizer believed the stricter program was needed at McLaughlin because of its larger and more diverse student population. Respondent believed that his methods were in keeping with school district policy, and that McLaughlin was out of step with the district’s disciplinary philosophy. Mr. Carroll believed that Respondent was "coming on a little strong" in light of the facts that he had just been assigned to the school, that he was unfamiliar with the McLaughlin community and problems, and especially that the McLaughlin ISS program had been developed by Mr. Rizer when he was Assistant Principal for Discipline. However, Mr. Carroll stated that his differences with Respondent were philosophical, not personal. The only point of contention was Mr. Carroll’s testimony that at one point in the discussions, Respondent told him that he would do it Mr. Rizer’s way for a while, but then would run the program as he saw fit. Mr. Carroll testified that he told Respondent that he needed to talk to Mr. Rizer and straighten things out. Respondent testified that Mr. Carroll misunderstood his comments. He was trying to convey to Mr. Carroll that as disciplinarian, he believed he had to personalize the program. He testified that he was willing to do things in any way Mr. Rizer saw fit. Respondent stated that he told Mr. Carroll to do exactly what Mr. Rizer told him to do. Mr. Carroll agreed that Respondent accepted the ISS program once he understood it. Mr. Carroll’s written statement of events concluded, "I left with a very good feeling that everything would be fine and we would continue our successful program." On Friday, August 8, 1997, Respondent attended a semi- annual district-wide meeting of assistant principals, school resource officers, and deans of students. The purpose of these meetings is to discuss code of conduct and other disciplinary issues. The meeting was chaired by Robert Bondurant, Director of Discipline and Security for the Polk County School Board. During the meeting, Respondent raised his hand during a question session. Mr. Bondurant recognized him. Respondent asked if the district could provide a written definition of the duties and scope of authority of assistant principals and school resource officers. Mr. Bondurant testified that this was a prudent request and agreed to provide the requested definition. While he had the floor, Respondent also spoke for several minutes about his own dispute with Officer Nixon regarding the scope of the SRO’s authority on the Boone campus, and the response of district administrators to the dispute. Mr. Bondurant characterized this portion of Respondent’s remarks as an unprofessional "lambasting" of district administration for its handling of Respondent’s situation. Mr. Bondurant did not believe that what took place between Respondent and his principal or district administration was a proper subject for this meeting, even though it provided the factual context of Respondent’s request for written definitions of duties. Mr. Bondurant conceded that his was a subjective judgment, and that another witness might have no objection to Respondent’s statements. Mr. Jostes was present at the meeting and agreed with Mr. Bondurant that Respondent’s comments were inappropriate. He opined that Respondent was "airing out a lot of anger and frustrations that should have been done in a one-on-one situation with . . . the powers that be in the county." Mr. Jostes, too, conceded that this was his subjective assessment of Respondent’s statements. Patricia Barnes is an assistant principal at Mulberry High School, and was present at the meeting. She testified that Respondent spoke for a long time, but that he spoke in a professional manner and that his statements were relevant to the audience of assistant principals, deans of students, and school resource officers. Keith Mitchell is a 17-year veteran of the City of Bartow Police Department. He was present at the meeting and testified that Respondent spoke in a professional manner and that his statements were relevant to the subject matter of the meeting. On the afternoon of August 8, 1997, a coordinated letter writing effort began. It is unclear precisely who instigated this effort, but the testimony of Dennis Dunn, the Assistant Superintendent for Human Resource Services, makes it clear that Mr. Rizer was instructed by someone in the Superintendent’s office to write a statement. Mr. Dunn testified that he could not recall the precise date when the instruction was given or whether the instruction came directly from Mr. Reynolds or from an associate superintendent. He conceded that the instruction had to have been given some time between Tuesday, August 5, when Respondent commenced work at McLaughlin, and Friday, August 8, when the letters were written. In any event, on August 8, 1997, Mr. Rizer wrote a three-page memorandum to Glenn Reynolds in which he repeated, as fact, the accusations of Mr. Jostes and Mr. Carroll concerning events which Mr. Rizer did not witness. He also repeated comments made by "a teacher," who allegedly told him that "a lot of other teachers" had "concerns" about Respondent. One of these "other teachers" "wondered how many personalities Mr. Mickens has." Mr. Rizer stated that "he was told" that Respondent "seemed not to have his act together" while speaking at a faculty meeting. Mr. Rizer skipped the faculty meeting to write the memorandum. Most damaging to Respondent was the following statement in Mr. Rizer’s memorandum: I personally have some concerns about Mr. Mickens; one minute he is calm and the next minute he is very angry. This man has a lot of anger and I feel something serious could happen when he is in his angry state. I do not feel comfortable him being here. Mr. Rizer spent a total of two to three hours in the same room as Respondent. He estimated that he spent about a half-hour with Respondent in a one-on-one basis. He claimed to have seen Respondent become angry one time and testified that Respondent calmed down after Mr. Rizer asserted himself and that they went on to have a productive meeting. Mr. Rizer had no factual basis for the opinion quoted above, plainly implying that he believes Respondent is a danger to the school. He witnessed nothing that would lead a rational person to fear that Respondent might do "something serious." His sources of information were the exaggerations of Mr. Jostes and some hallway gossip by unnamed teachers. Even Mr. Carroll testified that there was no problem with Respondent’s behavior. At the hearing, Mr. Rizer denied that his memorandum was an attempt to portray Respondent as an emotionally unstable person. In fact, this appears to have been his precise purpose. In addition to writing his own memorandum, Mr. Rizer secured written statements from Mr. Jostes, Mr. Carroll, and Russell Aaron, a teacher at McLaughlin. Also on August 8, Mr. Bondurant wrote a letter to Mr. Reynolds concerning Respondent’s comments at the assistant principals’ meeting, a further indication that the Superintendent’s office was coordinating this effort. The letters from Mr. Jostes and Mr. Carroll recapitulate their testimony outlined above. Mr. Carroll states that he is writing his letter "at the request of Mr. Rizer." The letter from Mr. Aaron to Mr. Rizer, dated August 8, 1997, states, in full: After your phone call this evening about the situation with Mr. Mickens, I felt I should write this letter about an incident that took place last week. On Friday, August 1, 1997, I was riding by the school and saw Mr. Hardee [the former Assistant Principal at McLaughlin] standing in front of the school. I had already been informed that he was leaving our school so I stopped to tell him goodbye. He was talking to another man and when I walked up he introduced Mr. Mickens to me. I asked Mr. Hardee [why] he was leaving McLaughlin Middle and he said Mrs. Baldwin asked him to. At that Mr. Mickens said "Carolyn Baldwin, that Fat Bitch, I’m suing her, Glenn Reynolds and all those Bitches over there. I got my Due Process, they didn’t give me my Due Process. I’m gonna get all of them." At that point you walked out of the door and he (Mr. Mickens) stopped talking and walked back in the building with you. Mr. Aaron testified at the hearing. Mr. Hardee did not. Despite the statement that he was writing this letter "After your phone call this evening about the situation with Mr. Mickens," Mr. Aaron testified that it was he who called Mr. Rizer, on a Friday evening a week after the alleged incident occurred. When asked why he waited a week before calling Mr. Rizer about this incident, Mr. Aaron stated, "I think maybe we had talked about it at school, and then we talked about me putting it in writing, and I had called him that night or something, about how I was supposed to go about doing that. He knew about it before that week was out." This testimony cannot be credited. The letter itself indicates that Mr. Aaron was solicited by Mr. Rizer on Friday evening, not vice versa. Given the opprobrious hearsay that Mr. Rizer saw fit to include in his own memorandum to Mr. Reynolds, it is implausible to believe he would not have included this incident had he known of it on Friday afternoon. Mr. Aaron testified that he had never met Respondent before this incident. He testified that Respondent made his statements at the mention of Ms. Baldwin’s name. He testified that neither he nor Mr. Hardee used any profanity during this conversation. Mr. Aaron’s testimony is credited to the extent that Respondent made some sort of derogatory comments about Ms. Baldwin and Mr. Reynolds. Given the prior testimony regarding Respondent’s character and manner, it seems unlikely that he would have erupted with such vehement language, particularly in front of a complete stranger and without so much as a nudge from those in his company. Under the circumstances of the conversation, it also seems unlikely that Respondent was the only person present who made derogatory remarks about district administrators. Mr. Aaron’s credibility is compromised by his equivocations about the phone call from Mr. Rizer, and by the fact that he did nothing for a week and apparently required some coaxing to write his letter reporting the incident. These findings are also influenced by the fact that Mr. Hardee did not testify to corroborate Mr. Aaron’s story. It is found that Mr. Rizer’s actions on August 8, 1997, were out of all proportion to the minor incidents that occurred on the McLaughlin campus, which a rational person might attribute to a new assistant principal’s over-eagerness to take control and make a good impression and to the natural resistance he would meet from entrenched employees less than eager to change their established methods of doing business. The testimony of Respondent, Mr. Carroll, Mr. Jostes, and even Mr. Rizer himself, indicated that Respondent was beginning to settle in to a smooth working relationship with his peers at McLaughlin after an admittedly rocky start. Mr. Rizer’s actions are made even more irrational by the fact that, though he was contemplating action that he hoped would remove Respondent from the campus, he never mentioned to Respondent that there was even a problem. Respondent testified that he believed things were going well at McLaughlin. He presided over an open house on the morning of Thursday, August 7, 1997, and over teacher meetings all that afternoon with Mr. Jostes. He testified that these were "great" meetings. Respondent testified that after he returned from the assistant principals’ meeting on Friday, Mr. Carroll approached him and told him "point blank" that he would work with Respondent in every way. Respondent testified that he liked Mr. Carroll very much, and that Mr. Carroll seemed to like him. Mr. Rizer had given him a project to complete by Friday. He intervened in a situation in which a parent had a "heated, profane argument" with a school secretary, and resolved it such that the parent left the school "super happy." He made a short presentation to the teachers on Friday afternoon, then completed a video for a presentation he planned to make on Monday. Counsel for Respondent pressed the theory that the transfer to McLaughlin was a set-up from the outset, that the Superintendent’s office planned from the beginning to move Respondent there for a short period before cooking up some reason to terminate him. Based on the evidence presented, it would be fair to reach this conclusion. However, a more plausible explanation of events is that, at the time Ms. Baldwin asked Mr. Rizer about the trade of assistant principals between Boone and McLaughlin, she or someone else in the Superintendent’s office fully briefed Mr. Rizer about the events at Boone and their aftermath. It makes sense that anyone in Mr. Rizer’s position would ask why Ms. Baldwin wanted to make this switch and that she would respond with a recitation of the Boone events according to Ms. Killebrew. If Mr. Rizer "knew" on August 23 that he was getting an emotionally unstable, insubordinate, over-stressed employee who had been ordered to visit a psychologist and refused to release the results, then his disproportionate response to Respondent’s actions and the fearful tone of his letter become understandable. Nothing in the record directly indicates that Mr. Rizer had been briefed about Respondent before he arrived, but that is a rational explanation for his actions. Respondent had no idea of the machinations going on between Mr. Rizer and the Superintendent’s office until the morning of Saturday, August 9, 1997. Dennis Dunn phoned Respondent and told him not to report to the school on the following Monday. Rather, Respondent was told to report to the district office. Respondent reported to the district office on Monday, August 11, 1997. He was told to turn in his keys and handed a letter from Mr. Reynolds that read, in relevant part: Based upon reports of your misconduct in office and gross insubordination, which are grounds for suspension or termination of your employment as provided in Section 231.36(6)(b), Florida Statutes, please be advised that I am suspending you with pay effective August 11, 1997 pending the completion of an investigation. You will be given an opportunity to give your explanations regarding the accusations and will be notified of the results of the investigation. As with the incidents at Boone, there was no "investigation" of the events at McLaughlin as that term is commonly used, i.e., an independent effort to ascertain the relevant facts. Mr. Reynolds and his subordinates simply took at face value the materials provided by Mr. Rizer and others, then met to decide on a course of discipline for Respondent. This is borne out by Mr. Reynolds’ letter to Respondent of August 14, 1997, stating, "Enclosed are letters and reports of incidents upon which I could impose disciplinary action." In other words, the "investigation" lasted less than three days, and the investigative report consisted of the letters from Messrs. Rizer, Jostes, Carroll, Aaron, and Bondurant. Mr. Reynolds testified that he met with Ms. Baldwin, Mr. Londeree, Mr. Dunn, and his legal counsel, Donald Wilson, Jr., to deliberate action against Respondent. This meeting was not noticed or open to the public. Respondent was given no notice or opportunity to attend. Mr. Reynolds solicited and received the advice and recommendations of those present at the meeting. He received legal advice from Mr. Wilson. Mr. Dunn testified that the group "collectively" participated in the decision-making process. On August 29, 1997, Mr. Wilson wrote a letter to Respondent’s lawyer, which stated in relevant part: I am writing this letter at the direction of the Superintendent. It is the Superintendent’s opinion that Mr. Mickens’ actions constitute misconduct in office as an assistant principal and that generally his ongoing conduct and repeated actions are wholly incompatible with the standard of conduct the Superintendent reasonably requires from school based administrators. Further, Mr. Mickens’ actions at both Boone Middle School and McLaughlin Middle School and his conduct toward and statements to members of the staff at those schools have made it impossible for him to continue to effectively perform the duties of an assistant principal. In summary, the Superintendent has concluded that Mr. Mickens has specifically engaged in misconduct in office as an assistant principal and that his conduct generally is so serious as to constitute just cause for termination of his position as an assistant principal. The Superintendent will be recommending to the School Board at its regular meeting on September 9, 1997 that Mr. Mickens be removed as an assistant principal. He will continue to be suspended with pay until that time. Mr. Mickens holds a professional services contract pursuant to Section 231.36(3), Florida Statutes, and the Superintendent’s recommendation regarding his contract as an assistant principal is not intended to affect his professional services contract. Accordingly, if the School Board should act favorably on the recommendation on September 9th, Mr. Mickens will be asked to report on September 10, 1997 to Assistant Superintendent Denny Dunn to available teaching positions to determine an appropriate position to which Mr. Mickens will be assigned. It is noted that Mr. Reynolds’ suspension letter of August 11 also accused Respondent of "gross insubordination." Mr. Wilson’s letter mentions only "misconduct in office." The reference to "Mr. Mickens’ actions at both Boone Middle School and McLaughlin Middle School and his conduct toward and statements to members of the staff at those schools" is as close to a formal statement of factual allegations as Respondent ever received in this process. No formal charging document enumerating the facts upon which the Superintendent based his recommendation was ever provided to Respondent or this tribunal, even after Judge Cave directed the School Board to provide a statement of factual allegations at the motion hearing of February 25, 1999. No charging document was ever filed setting forth the particular provisions of the Code of Ethics of the Education Profession, Rule 6B-1.001, Florida Administrative Code, or the Principles of Professional Conduct for the Education Profession in Florida, Rule 6B-1.006, Florida Administrative Code, that Respondent was alleged to have violated. In fact, Petitioner’s first mention of those rules in this case occurred in its Proposed Recommended Order. At its meeting of September 9, 1997, the School Board took up the Superintendent’s recommendation. Mr. Reynolds addressed the School Board, reciting that Respondent "has engaged in a series of actions which constitute misconduct in office as an Assistant principal, and that his ongoing conduct and repeated actions are generally and wholly incompatible with the standard of conduct we reasonably require from school based administrators." Mr. Reynolds did not state any factual allegation against Respondent. During the lengthy deliberations that ensued, at least two members of the School Board voiced concerns over being asked to vote on a matter without knowing any of the underlying facts. The School Board’s lawyer was Steven L. Selph. Mr. Selph advised the School Board that it would be "inappropriate" and possibly "prejudicial" for the board to hear the alleged facts of the case because the board would later be required to enter a final order. Mr. Selph advised the board that its only choices were to vote on the Superintendent’s recommendation in a factual vacuum, or to hold a full evidentiary hearing before the board itself. Mr. Selph stated that "the main thing the board has to consider is whether the recommendation is based on just cause for the purpose of approving it subject to the outcome of a hearing." Mr. Selph did not explain to the inquiring board members how they could determine "just cause" when they did not know what Respondent was alleged to have done. Mr. Selph assured the School Board that its adoption of the Superintendent’s recommendation was a mere formality necessary to trigger Respondent’s right to a formal administrative hearing. Comments by School Board members prior to their vote indicate that they accepted Mr. Selph’s opinion that the vote was essentially procedural, a necessary step to secure Respondent’s right to an administrative hearing, and thus the board did not need to know the factual allegations. Mr. Selph did not explain that the School Board’s vote to accept the Superintendent’s recommendation would become final agency action if Respondent did not timely request an administrative hearing. On the basis of the Superintendent’s recommendation that Respondent committed misconduct in office, the School Board voted to terminate Respondent from his assistant principal position and to place Respondent into a teacher’s position during the pendency of any administrative hearing. It is found that the School Board’s action was a perfunctory ratification of a decision made earlier by Mr. Reynolds in consultation with his subordinates and lawyer. While there was a lengthy discussion of procedural matters at the School Board meeting, no discussion of the ultimate facts alleged to constitute misconduct in office, or of any facts at all, was allowed. Thus, the School Board did not and could not assess the merits of Mr. Reynolds’ probable cause determination. The School Board’s vote was simply a vote of confidence in Mr. Reynolds. The undersigned viewed a videotape of the School Board meeting. Respondent addressed the board concerning the denial of due process he believed was about to occur. It is noted that Respondent’s presentation was forceful and articulate, but not disrespectful, loud, angry or abusive. It is also noted that Mr. Reynolds testified that Respondent was "agitated." By letter dated September 10, 1997, Mr. Reynolds formally notified Respondent that his employment as an assistant principal had been terminated and that he would be returned to an appropriate teaching position for the remainder of the 1997-1998 school year. Mr. Reynolds’ letter also made reference to a statement made by Respondent to Mr. Dunn that he could not return to a teaching position at that time and desired to use his accumulated sick leave. The letter informed Respondent that he could use the leave if he provided medical certification from a physician that he was unable to work and the anticipated amount of time he would be away from work. Mr. Dunn, the Assistant Superintendent for Human Resource Services, testified that Respondent was placed in a teaching position because "my hands were tied" by the fact that Respondent had a continuing contract that had to be honored. By letter dated September 14, 1997, Respondent requested an administrative hearing regarding his termination as an assistant principal. The letter also stated that Respondent would provide the requested medical certification. On November 5, 1997, Mr. Wilson wrote on behalf of Superintendent Reynolds to Respondent. Mr. Wilson reminded Respondent of his September 14, 1997, letter promising medical certification to justify his sick leave and of a conversation he had with Respondent on November 3, 1997, during which Respondent indicated he had a doctor’s appointment to obtain the certification on November 17. Mr. Wilson informed Respondent that the physician’s certification must be received by Mr. Londeree on or before November 20, 1997, and that failure timely to file the certification would be deemed an abandonment of Respondent’s employment with the Polk County School Board. Respondent never provided the physician’s certification. Mr. Dunn and Mr. Londeree testified as to a conference call with Respondent, during which Respondent conceded that he was not sick but that he could not come back to work under the circumstances. Respondent confirmed that he did not accept the teaching position because his reputation had been destroyed. He believed that he could not be effective in the classroom because people were afraid of him. By letter dated December 12, 1997, Mr. Reynolds notified Respondent that he had been determined to have abandoned his teacher’s position and that Mr. Reynolds would recommend to the School Board that Respondent’s employment be terminated. At its meeting of January 13, 1998, the School Board voted to terminate Respondent’s employment.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the School Board enter a final order reinstating Respondent for the remainder of his assistant principal contract for the 1997-1998 school year, and enter into assistant principal contracts with Respondent for the 1998-1999 and 1999-2000 school years. DONE AND ENTERED this 2nd day of March, 2000, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON 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 2nd day of March, 2000. COPIES FURNISHED: Donald H. Wilson, Jr., Esquire Boswell & Dunlap, LLP 245 South Central Avenue Post Office Drawer 30 Bartow, Florida 33831 Timothy G. Schoenwalder, Esquire Hopping Green Sams & Smith, P.A. 123 South Calhoun Street Tallahassee, Florida 32314 Glenn Reynolds, Superintendent School Board of Polk County 1915 South Floral Avenue Bartow, Florida 33831-0391
Findings Of Fact On November 27, 1985, Respondent Samuel David Sorrells entered the seventh grade at Nautilus Junior High School. On January 10, 1986, Respondent did not have his textbook with him in his math class. He was given permission to get another book to use during that class, and when he did so another student took that book away from him. Respondent started cursing that other student. When a third student told Respondent to control his language, Respondent physically attacked that third student. On February 14, 1986, Respondent's apparent intention to cut school that day was thwarted when he was picked up by the Miami Beach Police Department and escorted by the police to school in time for his second period class. Although Respondent went to the physical education field, he refused to "dress out" for physical education, refused to stand where he was instructed to by the teacher, and then cursed the teacher and threatened her with physical violence. On March 17, 1986, Respondent was caught writing on the walls in the school hallways and in the school bathrooms. A conference among various school personnel and Respondent's mother was held on March 17, 1986, to determine how to best fulfill Respondent's needs. The recommendation by school personnel attending that conference was that Respondent would be better served by the educational alternative program at Jan Mann Opportunity School-North for the reasons that that school offers smaller classes so that more attention can be given to each individual student and there are more trained counselors available to assist the students with their specialized needs. Between November 27, 1985, when Respondent first enrolled at Nautilus Junior High School and April 8, 1986, when Petitioner determined that Respondent should be administratively re-assigned, Respondent was absent from school on 10 days and was suspended from attending classes on 18 additional days. Respondent received F's in all classes at Nautilus Junior High School although he is able to do the work given to him. He simply does not do it.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered assigning Respondent Samuel David Sorrells to the educational alternative program at Jan Mann Opportunity School-North until such time as his performance reveals that he can be returned to the regular school program. DONE and RECOMMENDED this 9th day of September, 1986, at Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of September, 1986. COPIES FURNISHED: Leonard Britton, Superintendent School Board of Dade County 1410 Northeast Second Avenue Miami, Florida 33132 Phyllis O. Douglas Assistant Board Attorney Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132 Frank R. Harder, Esquire Twin Oaks Building, Suite 100 2780 Galloway Road Miami, Florida 33165 Patricia Sorrells Simpson 1321 Biarritz Drive Miami Beach, Florida 33184
The Issue The issues are whether Respondent had good cause to reject the Escambia County School Superintendent's nomination of Petitioner to be principal of Woodham High School, and, if not, what relief should be granted to Petitioner.
Findings Of Fact Pensacola High School (PHS) is located in Pensacola, Escambia County, Florida. It is an inner city school of approximately 2000 students with a diverse population. Petitioner was appointed principal at PHS for the 1994- 1995 school year by Dr. Bill Malloy, the former Superintendent of Escambia County Schools. Petitioner served in that capacity until Superintendent Malloy transferred him in March of 1996 to the position of Director of Student Transfers. At all times material to this proceeding, Respondent had a policy requiring principals to report incidents of suspected child abuse immediately to the Department of Health and Rehabilitative Services (HRS)(currently the Department of Children and Families.) Another policy required principals to immediately report bomb threats to the district office and to proceed with the evacuation of the school property as instructed. Before school began in the fall of 1995, Petitioner assigned Kevin Sanders to be the teacher in charge of the In School Suspension (ISS) class. Petitioner made this assignment because Mr. Sanders previously had developed and successfully operated a similar class at PHS. The school district approved the plan at PHS for an ISS unit as designed by Mr. Sanders. Mr. Sanders also served as a weight training coach at PHS. He was not the only teacher/coach to run an ISS program for Respondent during the 1995-1996 school year. At least three other schools had coaches running their respective ISS programs in the fall of 1995. There is no persuasive evidence that the assignment of a coach to be in charge of an ISS class was in direct contravention of the Superintendent's instructions. No one ever told Petitioner that the Superintendent did not want a coach-like person in charge of the ISS class. Mr. Sanders wanted to work in the weight room at the stadium during the last period of the school day. Petitioner told Mr. Sanders that he could work in the weight room, provided he found someone to supervise his ISS class during that period. There is no credible evidence that Mr. Sanders had permission from Petitioner to take his ISS students to the stadium and leave them unattended in the bleachers. On October 16, 1995, a fifteen-year-old female student skipped school. The police returned the female student to PHS. As a consequence of her actions, the female student was temporarily assigned to the ISS class taught by Mr. Sanders. Normally, the female student attended a class for special students in the Exceptional Student Education (ESE) program. She functioned academically on a third or fourth grade level. On October 17, 1995, Ms. Sanders took his ISS class to the stadium and told them to sit in the bleachers. He then went to the weight room leaving the class unsupervised. The female student went into one of the restrooms in the stadium. She performed fellatio on a number of male students, primarily football players, in the presence of many other students. In the fall of 1995, PHS had several deans who served the general student population. Richard Sousa was the dean of students for ESE participants. He also served as the crisis teacher for the total student population at PHS. On October 18, 1995, Mr. Sousa saw a group of students outside the dean's office. When he investigated, Mr. Sousa found the female student sitting in a chair with her hands on her head. After Mr. Sousa closed the door to the deans' office, the female student stated that other students were falsely accusing her of performing oral sex with some boys. Mr. Sousa then took the female student to an ESE self-contained classroom so that she would not be harassed. Next, Mr. Sousa called the female student's mother and reported the facts as he understood them. The mother told Mr. Sousa that her daughter was not sexually active. Mr. Sousa asked the mother to pick up her daughter from school because the child was visibly upset. Later that day, Mr. Sousa reported to Petitioner that he had heard a rumor about sexual activity occurring in the stadium, on the fifty-yard line, or on the practice field. Mr. Sousa told Petitioner that other students were teasing the female student who denied being involved in any sexual behavior. After receiving this report, Petitioner directed Assistant Principal Leo Carvalis to contact Coach David Wilson, the head football coach. Petitioner instructed Coach Wilson and Mr. Sousa to investigate the rumor regarding the sexual activity. Coach Wilson talked to the football team that afternoon. The team assured him that they knew nothing of any sexual incident in the stadium, the football field, or the practice field. Coach Wilson and Petitioner discussed the situation again later that day. Petitioner told Coach Wilson to continue to listen to what was going on among the students, to ask questions, and to make his findings known. Petitioner gave other members of his staff and faculty the same instructions. Petitioner wanted to determine whether there was any truth to the rumor about the sexual incident. He wanted to discipline any students involved, including football players. However, Petitioner did not want to accuse any student, including the alleged victim, of inappropriate behavior until he had more facts. At the end of the day on October 18, 1995, Mr. Sousa did not believe that the sexual incident had occurred. He knew that special education students are often harassed, ostracized and picked on. Mr. Sousa thought the teasing would blow over and the female student could be returned to her regular classroom. Mr. Sousa expressed this opinion to Petitioner. For the rest of the week, Mr. Sousa took lunch to the female student in the ESE self-contained classroom because other students teased and pointed fingers at her. Mr. Sousa had to walk to the bus with the female student for the same reason. Nevertheless, Mr. Sousa continued to believe the rumor was false. His disbelief was based in part on the female student's persistent denials. Additionally, it was not uncommon for a rumor such as the one at issue here to prove to be unfounded. The next week, the female student requested that she be permitted to return to her regular ESE classes because she believed the teasing was over. Mr. Sousa granted the female student's request; however, after a couple of class periods, Mr. Sousa returned her to the self-contained classroom because even the special education students were saying things about her. Amanda Williams and Naomi Ferguson were guidance counselors at PHS during the fall of 1995. On October 26, 1995, Ms. Ferguson indicated to PHS Assistant Principal Sarah Armstrong that Petitioner knew about the sexual incident involving some of the football players. According to Ms. Ferguson, Petitioner was trying to cover up the situation because the football team was doing well. Later that day, Petitioner held a meeting in his office with Ms. Ferguson, Ms. Williams, Mr. Sousa, Ms. Armstrong, and Mr. Carvalis. During the meeting, Ms. Armstrong advised Petitioner that Ms. Williams had information from a male student (an informant) confirming the sexual incident but would not reveal her source because of confidentiality concerns. Petitioner asked Ms. Williams to speak with him in private. During their private conversation Ms. Williams revealed that an informant had given her information about a second male student who was involved in the sexual incident at the stadium. Ms. Williams gave Petitioner the names of both students. When he and Ms. Williams returned to the meeting, Petitioner stated, "I believe something must have happened. This is a credible witness." He also stated, "To hell with the football team. If these players can get away with this now, what will they think they can get away with in the future?" For the first time, Petitioner began to suspect that the sexual incident was factual and not an unfounded rumor. Ms. Ferguson revealed additional information about the female student at the meeting on October 26, 1995. Ms. Ferguson stated that the female student's mother intended to send her daughter to live with an uncle in Tampa, Florida. The female student did not want to make this move. The female student told Ms. Ferguson that the uncle had sexually molested her in the past. Ms. Armstrong stated that someone needed to call HRS to report the suspected sexual abuse by a family member. The group decided that HRS should also look into the allegations of sexual activity at the school. Petitioner instructed Ms. Ferguson to call HRS. He asked her to wait just long enough for someone to advise the female student's mother that an investigation was pending. There is no persuasive evidence that Petitioner ever intended to cover up the sexual incident. Likewise, he did not unreasonably delay his staff from reporting their suspicions to HRS. On October 26, 1995, Petitioner mistakenly understood that cases of suspected child abuse had to be reported to HRS within 24 hours instead of immediately. The last instructions he gave in the meeting on October 26, 1995, was to remind Ms. Ferguson to call HRS. She made that call on October 27, 1995. The female student was isolated from the general student population in the self-contained ESE classroom at PHS. Therefore, Mr. Sousa recommended at the meeting on October 26, 1995, that the school conduct an Individual Education Plan (IEP) meeting to review the female student's placement. He believed that the female student should be transferred to another school so that she could attend classes with the general population. After receiving Petitioner's authorization, Mr. Sousa contacted the Exceptional Student Education (ESE) district staff to arrange for an IEP meeting. Mr. Sousa also called the female student's mother on October 27, 1995, to advise her of his recommendation. On October 27, 1995, Petitioner talked to the male student who, according to Ms. Williams' informant, participated in the sexual incident at the stadium. The male student confirmed that the sexual incident occurred in the stadium. However, there is no evidence that the student admitted his personal involvement in the sexual activity to Petitioner at that time. The police investigation later revealed that the male student was one of the students who had participated in the sexual incident. At the IEP meeting on October 31, 1995, the entire IEP team, including ESE teachers from PHS and Woodham High School (WHS), ESE district staff, and the female student and her mother, discussed the reasons for changing the student's placement to WHS. Everyone on the IEP team, except the female student, believed that she should be transferred to a new school environment with peers who did not know her. The female student begged her mother not to permit the transfer. However, the parent agreed that the transfer was in her daughter's best interest and offered to provide transportation. On November 1, 1995 or November 2, 1995, the female student was supposed to enroll at WHS. Instead, she returned to PHS. Mr. Sousa called the mother to pick up her daughter and take her to WHS. On November 3, 1995, Mr. Sousa called the female student's mother. She stated that everything was all right with her daughter at WHS. On Monday, November 6, 1995, the female student's mother called Mr. Sousa because her daughter had run away from home. The mother wanted Mr. Sousa to be on the lookout for her daughter. During the conversation, the mother stated for the first time that the rumors about the sexual incident might be true because, despite her daughter's denials, it had been confirmed by one of her daughter's friends. Mr. Sousa informed Petitioner about the suspicions of the female student's mother. Petitioner then directed Coach Wilson to talk with the football team again. No one on the team would admit their involvement in the sexual incident. Petitioner also told the deans and the assistant principals to see if they could determine what had happened and who was involved. The efforts of the faculty and staff to verify the rumors were unsuccessful. On November 9, 1995, Petitioner received a letter from Ms. Ferguson suggesting that he was responsible for trying to cover up the sexual incident. He also received a call from Special Assistant to the School Superintendent Jerry Watson, stating that he had heard "bad things" were going on at PHS. Petitioner called a meeting with the appropriate PHS staff to discuss information about the alleged sexual incident. They reviewed information furnished by the male students and the female student's mother. During this meeting, Petitioner expressed his concern that someone in the group was acting unprofessionally by leaking confidential information about students to persons outside of PHS. Petitioner advised the group that he would try to transfer anyone who breached the students' confidentially. Petitioner did not make these comments to threaten or intimidate his staff and faculty or to cover up the sexual episode. After the meeting on November 9, 1995, Petitioner took Ms. Ferguson's letter to the district office where he met with Sherman Robinson, Deputy School Superintendent. Petitioner told Mr. Robinson about the facts leading up to the receipt of the letter. Mr. Robinson told Petitioner to contact Joe Hammons, the Superintendent's attorney, for advice as to the appropriate action. Petitioner then made an appointment with Mr. Hammons for Monday, November 13, 1995, because Friday, November 10, 1995, was a holiday. On November 13, 1995, Mr. Hammons met with Petitioner. At this meeting, Petitioner told Mr. Hammons what he knew concerning the sexual incident. Mr. Hammons then scheduled a meeting for November 14, 1995, with Petitioner, Mr. Robinson, and two members from the school district's risk management department. At the meeting on November 14, 1995, the group determined that information available from the male students and the female student's mother, justified contacting the Pensacola Police Department. Upon leaving that meeting, Petitioner contacted Sergeant Potts at the police department. The deans at PHS generally handled all disciplinary problems until they determined that a crime had been or might have been committed. At that point, the staff involved the school resource officer. In this case Petitioner relied on his staff to investigate the rumors of the sexual incident and did not involve the school resource officer. Until November 1995, Petitioner was not aware that, if the rumors of the sexual incident proved true, a crime had been committed. Shortly thereafter, Dusty Cutler of the Pensacola Police Department was assigned to investigate the sexual incident at PHS. On November 15, 1995, Officer Cutler talked to the female student who continued to deny all allegations. The female student did not admit to being involved in the sexual incident for several weeks after Officer Cutler began her investigation. Pursuant to Petitioner's suggestion, Officer Cutler also talked to the male student identified by Ms. Williams' informant as one of the participants in the sexual incident. The female student's mother told Officer Cutler that she did not want a police investigation. The mother became upset with the way Officer Cutler was talking to her. Petitioner complained to Lieutenant Knowles of the Pensacola Police Department about Officer Cutler's "abusive" behavior to the mother of the female student. From that time forward, Officer Cutler never spoke to Petitioner even though she spent six months investigating the sexual incident on a daily basis. There is no persuasive evidence that Petitioner interfered with Officer Cutler's investigation or failed to cooperate with her in any way. Officer Cutler reported the sexual incident to HRS. The agency gave her the same response they had given Ms. Ferguson, i.e., HRS would not investigate or follow the case because the sexual activity was not a rape and a family member was not involved. After Officer Cutler was assigned to the case, Petitioner was instructed by the school district to do nothing further until the police investigation was concluded. The Grand Jury released its Amended Report on Pensacola High School on April 15, 1996. The report indicted several male students involved in the sexual incident. Petitioner did not have an opportunity to discipline the students because he was not working at PHS at that time. In the spring of 1996, a number of middle school and high schools in the Pensacola area received bomb threats over the telephone. PHS received bomb threats on at least three occasions. The school evacuated to the adjoining football stadium on one occasion, to the fairgrounds on another occasion, and to Pensacola Junior College on a third occasion. On March 29, 1996, about 7:00 a.m., a school secretary, received a bomb threat call at PHS. Mr. Sousa received a second bomb threat call at PHS around 7:15 or 7:30. On both occasions the caller's voice was a raspy, young man's voice. The school secretary and Mr. Sousa recognized the voice of the caller as a young man in one of the self-contained classrooms. The student had created problems in the past. Each time he behaved improperly, the student would use his raspy voice. Mr. Sousa reported the first bomb threat to Mr. Carvalis. Mr. Carvalis called Petitioner at his home. Petitioner was not at school because he was not feeling well because he had been at the emergency room much of the night before. Petitioner instructed Mr. Carvalis to initiate a search. The search included a sweep of the stadium in case the school had to evacuate to that area. Petitioner advised Mr. Carvalis that he was on his way to the school. When Petitioner arrived at PHS, Mr. Carvalis informed him of the second threatening call. The staff again assured Petitioner that they knew the caller's identity, and that both calls had been made by the same student. The student was not at school. Therefore, Petitioner directed Mr. Sousa and the resource officer, Max Cramer, to go to the student's home and request the student's parent to bring the student to school. In the meantime, a third call was received from the same caller. Next, Petitioner phoned Deputy Superintendent Sherman Robinson. Petitioner explained to Mr. Robinson about the bomb threat and the school's discovery of the identity of the caller. Jones believed from his discussion with Mr. Robinson that his handling of the situation and his decision not to evacuate the school had the tacit approval, if not the explicit permission, of the district office. Petitioner believed Mr. Robinson concurred in his decision not to evacuate. The student with the raspy voice and his parent subsequently arrived at the school. After questioning the student, Petitioner believed the student was the caller. Petitioner decided to continue the search of the school without evacuating it. Petitioner directed Mr. Carvalis and the maintenance men to divide into teams and sweep the campus using the techniques taught by a handler of a bomb sniffing dog after previous threats. On one occasion a bomb sniffing dog and his handler came to PHS from Eglin Air Force Base in Ft. Walton. The PHS campus was so large that the dog got tired and refused to work about half way through the search. On that occasion, the search continued in the same manner employed by Petitioner on March 29, 1996. During the search on March 29, 1996, seven different groups looked for anything that was out of place. All of the deans had assigned areas where they searched trash bins, open lockers, and open classrooms. Later in the school day, Mr. Carvalis reported that the entire campus, including the portables, had been swept and nothing found. Petitioner does not dispute that he did not follow the Superintendent's policy regarding bomb threats on the day in question. Petitioner believed that he knew the identity of the caller. He also was concerned about the disruption that the bomb threats were causing to the academic programs at PHS. The students in the gifted program were preparing to take their advanced placement tests. The students in the International Baccalaureate program were studying for their exams. Additionally, March 29, 1996 was the last chance for some students to take the high school competency test before graduation. Superintendent Malloy was particularly concerned that Petitioner failed to evacuate the school. The previous day he had reiterated his policy of evacuation to all principals. However, Petitioner did not attend the meeting; one of Petitioner's assistant principals attended that meeting in his absence. On March 30, 1996, Superintendent Malloy placed Petitioner on administrative leave with pay, pending an investigation of his failure to evacuate PHS after a bomb threat. Superintendent Malloy subsequently assigned Petitioner to his current position as Director of Student Transfers. On June 3, 1996, Superintendent Malloy issued a letter reprimanding Petitioner for the following reasons: (1) failing to ensure that the ISS class had appropriate supervision; (2) failing to follow up on information regarding sexual activity in the stadium in a timely manner; and (3) failing to evacuate the school after receiving a bomb threat. In November of 1996, Jim May was elected Escambia County School Superintendent. On or about June 10, 1997, the Commissioner of Education, Frank T. Brogan, filed an Administrative Complaint against Petitioner in Education Practices Commission (EPC) Case Number 956-1609-B. This complaint alleged that Petitioner failed in his responsibilities to ensure that all students under his charge were properly supervised. The complaint also alleged that Petitioner failed to evacuate the school after receiving a bomb threat. On June 24, 1997, Superintendent May nominated Petitioner to be principal of WHS. At the time of the nomination, Superintendent May was aware of the relevant facts concerning the PHS sex incident and bomb threat incident. Additionally, he had been in contact with counsel for the Florida Department of Education regarding EPC Case Number 956-1609-B. Respondent rejected Petitioner's nomination to be principal of WHS. On a 3 to 2 vote, Respondent found good cause to reject the nomination based on the following: Among the reasons articulated by the three Board Members who voted against the nomination were, in addition to the reasons presented by the other speakers, Mr. Jones' unsatisfactory past performance of his duties when he served as Principal of Pensacola High School (which events were the subject of a grand jury report and are the subject of an administrative complaint by the Commissioner of Education now pending before the Education Practice Commission proceeding, . . . his lack of subsequent training to improve his skills in the areas in which his poor performance resulted in his 1996 removal as Principal of Pensacola High School, and his apparent violation of certain of the principles of Professional Conduct for the Education Profession in Florida, in addition to gross insubordination and willful neglect of duty in connection with the Pensacola High School incidents. In sum the three Board Members who voted against the nomination felt that Mr. Jones is presently unqualified to be a Principal. After Respondent rejected his nomination, Petitioner told Superintendent May that it was unfair to the students of WHS to make them wait for a principal. On July 22, 1997, Superintendent May nominated another person to be principal at WHS. On or about November 6, 1997, the Florida Department of Education decided that it would withdraw its probable cause determination against Petitioner and enter into a Deferred Prosecution Agreement with him. The department requested the Education Practices Commission to close EPC Case Number 956-1609-B. On or about March 9, 1998, Superintendent May advised the Florida Department of Education that Petitioner had performed his assigned duties and responsibilities in a professional manner during the period of January 10, 1997 and March 1, 1997. Petitioner had fully complied with all district and state rules and regulations. On or about March 26, 1998, Education Commissioner Brogan determined that there was no probable cause to suspend or revoke Petitioner's teacher's certificate. Petitioner was released from his Deferred Prosecution Agreement with the department. Petitioner holds the proper state certification for a high school principal. Except for the two incidents in question, Petitioner's performance at PHS was exemplary. Under his leadership, the school population was stable and well under control. Petitioner created an atmosphere at PHS where high quality performance on the part of a number of students was recognized, encouraged, and supported by the faculty and staff. Petitioner had an excellent relationship with students, teachers, and the PHS Advisory Council. Petitioner genuinely cared for the health, safety and welfare of the students at PHS. He was concerned more about the feelings and self-esteem of the students than with winning academic and athletic competitions, and he did not make accusatory judgments about his students until he had the necessary facts and proof to support those accusations.
Recommendation Based upon the findings of fact and conclusions of law, it is, RECOMMENDED: That Respondent enter a Final Order finding that there is no good cause to reject Superintendent May's nomination of Petitioner to be principal at WHS, promoting him to that position, and awarding him any back pay to which he may be entitled. DONE AND ENTERED this 15th day of October, 1998, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 Filed with the Clerk of the Division of Administrative Hearings this 15th day of October, 1998.
Findings Of Fact Allan Bonilla, currently Principal of Riviera Junior High School, was one of at least two assistant principals who attempted to work with Venus Tara Rodriguez during her 7th grade experience there in the 1984-1985 regular school year. He has been employed four years at that facility. Immediately prior to the winter vacation (commonly known as the extended Christmas holidays), on December 20, 1984, Venus left the campus without prior permission, this activity resulted in a two-day indoor suspension. In February, 1985, she received a three-day indoor suspension as the result of tardiness which culminated in an outdoor suspension the same month because her behavior at the three-day indoor suspension was so disruptive that it was deemed ineffective for her and the other students. In March, 1985, her rude and disruptive classroom behavior resulted in two indoor suspensions. In April 1985, as a result of her refusal to work during the last indoor suspension, she was assigned an outdoor suspension. Mr. Bonilla did not work with Venus as regularly as another assistant principal who was not available for hearing, but he expressed personal knowledge of the foregoing events and had interacted with Venus on several occasions for being out of class and boisterous. His assessment was that Venus could do the work required of her but that her behavior was so disruptive in the classroom that at the conclusion of the regular 1984-1985 school year she was failing two out of six subjects and was doing approximately "D" work in the rest. He agreed with the decision to assign her to an alternative school program, which decision was made because of Venus' need of individual attention and smaller class due to her habit of "acting out" in large groups. Venus' parents were contacted concerning each suspension. Mr. Bonilla testified that Venus has successfully finished 7th grade during the 1985 summer school session at GRE Lee opportunity School and he has received notice she will be reassigned and enrolled at Riviera Junior High School for the 1985-1986 school year commencing in September 1985.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the School Board enter a final order returning Venus Tara Rodriguez to Riviera Junior High School. DONE AND ORDERED this 29th day of August, 1985, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of August, 1985. COPIES FURNISHED: Phyllis O. Douglas, Esquire 1410 N. E. Second Avenue Miami, Florida 33132 Madelyn P. Schere, Esquire Dade County Public Schools Board Administration Building 1410 N. E. Second Avenue Miami, Florida 33132 Mark A. Valentine, Esquire 3050 Biscayne Blvd. Suite 800 Miami, Florida 33137-4198 Ms. Wilhelmina A. Rodriguez 4110 S. W. 104th Place Miami, Florida 33165 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1510 N. E. Second Avenue Miami, Florida 33132
Findings Of Fact Luis Ortiz was a seventh grade student at Nautilus Junior High School during the 1984-85 school year until his assignment to the alternative school. Ortiz is 13 years old and was born on March 11, 1972. Prior to his enrollment in junior high school in 1984, Ortiz was an A and B student who exhibited good behavior. He did not adjust well to the new school at which he began junior high school. Ortiz was involved in eight incidents of misbehavior at Nautilus. On October 29, 1984, Ortiz was rude, discourteous; failed to complete an assignment and engaged in general disruptive behavior. He was placed on indoor suspension for general disruptive behavior and defiance of school authority on December 6, 1984. On January 11, 1985, Ortiz was referred for discipline for general disruptive behavior, use of provocative language and defiance of school authority. He was referred for counseling for general disruptive behavior, being rude and discourteous, and cutting class on January 25, 1985. Ortiz was placed on outdoor suspension for general disruptive behavior and defiance of school authority on January 28, 1985. Ortiz' behavior appeared to improve and he was not involved in further disciplinary incidents until April 2, 1985, when he was again placed on outdoor suspension for general disruptive behavior end defiance of school authority. He was recommended for assignment to opportunity school for general disruptive behavior and defiance of school authority on May 15, 1985. Before he was reassigned to opportunity school, Ortiz was reprimanded for general disruptive behavior, use of provocative reprimanded for general disruptive behavior, use of provocative language, defiance of school authority, and being rude and discourteous. Ortiz has been somewhat unsuccessful academically in his first year in junior high school. He was failing three classes before his last outdoor suspension and assignment to opportunity school. He then failed all of his subjects because he failed to complete his course work and failed to take his final exams. Ortiz must repeat seventh grade. The School Board failed to present any evidence of efforts made to provide assistance to Ortiz regarding this lack of success in academics. In fact, the school board's only witness had no knowledge of Ortiz' grades or behavior prior to beginning seventh grade at Nautilus. Additionally, the school board's witness provided no details about the actual misbehavior of Ortiz. Instead, Smith merely read from a computer printout, without specifying the nature of the acts which lead to the disciplinary referrals. It is therefore impossible to determine if Ortiz' acts were of a major or minor nature. Dennis Segall, a teacher who knew Ortiz from elementary school, has continued to work with Ortiz in the last year. According to Segall, Ortiz was successful and well-behaved prior to the 1984-85 school year. He recognizes that Ortiz' behavior changed at Nautilus and states that Ortiz knows he "messed up" at Nautilus and is ready to change his attitude. Mrs. Ortiz moved during the summer of 1985, and now resides in a different school district. If Ortiz is allowed to return to the regular school program, he would attend Citrus Grove Junior High School.
Recommendation Based upon the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the School Board of Dade County enter a Final Order assigning Luis Ortiz to the regular school program. DONE and ENTERED this 26th of September, 1985, in Tallahassee, Leon County, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, FL 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 26th day of September, 1985. COPIES FURNISHED: Jackie Gabe, Esq. Suite 800, 300 Executive Plaza 3050 Biscayne Boulevard Miami, FL 33137 Mrs. Maeva Hipps School Board Clerk 1450 N.E. 2nd Avenue Room 401 Miami, FL 33132 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1450 N.E. 2nd Avenue Miami, FL 33132 Ms. Esther Ortiz 1255 S.W. 1st Street Apartment 403 Miami, FL 33135
Findings Of Fact During the 1985-86 school year Respondent Gregory Hunter Stephens was a student in the tenth grade at Miami Sunset Senior High School. On April 18, 1986, during the lunch period Respondent drove into the faculty parking lot in his Corvette with the police following closely behind. It was determined that during his lunch break Respondent had been driving his Corvette in a nearby condominium development threatening residents and throwing beer cans on the lawns. The residents had summoned the police. An Assistant Principal held a conference with Respondent's father whose response was that the police should have better things to do than to bother his son for drinking beer and driving around during his lunch break. Respondent was given a three-day suspension. On May 22, 1986, Respondent got into a fight in class, a Group III violation of the Code of Student Conduct. A conference was held with Respondent's father, and Respondent was given a ten-day suspension. Although other informal discussions were held with Respondent's father during that school year, by the end of the third grading period Respondent's grades were one "C," one "D," and 4 "Fs." His absences from his classes during the third grading period alone ranged between 2 and 13. He received only a "3" for his effort in each and every class. During the 1985-86 school year, Respondent was absent 95 days out of the 180-day school year. On March 3, 1987, an Assistant Principal observed Respondent leaving the campus during Respondent's second-period class. He stopped Respondent and gave him a warning. A few minutes later he caught Respondent again attempting to leave. Respondent's mother was contacted, and Respondent was given a "work detail detention." On April 2, 1987, a fight broke out off campus between a group of Latin students and a group of Anglo students. On the following day Respondent admitted to an Assistant Principal that he was one of the participants. All of the students involved (including Respondent) were suspended for three days for that Group III Code violation. On October 19, 1987, Respondent was nearly involved in a collision in the parking lot. Respondent got out of his car and started pushing the other driver. A fight ensued. Respondent's parents were contacted, and he was given a ten-day suspension. By the time of the October 19th incident, Respondent had already been absent 6 days that school year. Further, although the Assistant Principal had two conferences with Respondent's father during the month of October, Respondent was receiving one "C," one "D," and five "Fs" in his classes. A Child Study Team was convened, and a meeting was held on November 3, 1987. Respondent and his parents refused to attend. The Team recommended that Respondent be transferred to Douglas MacArthur Senior High School-South, based upon the October 19, 1987, incident, his failing grades during the most-recent two years, and Respondent's chronic aggressive behavior which constituted a threat to the welfare of the other students. It was determined that Respondent required assistance a normal school could not provide and that a structured environment would be more appropriate since the educators at Miami Sunset Senior High School had unsuccessfully attempted to modify Respondent's behavior by conferences between Respondent and a counselor, meetings between Respondent's parents and assistant principals, indoor suspensions, outdoor suspensions, and work detail suspensions
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered assigning Respondent Gregory Hunter Stephens to the opportunity school program at Douglas MacArthur Senior High School-South until such time as his performance reveals that he can be returned to the regular school program. DONE and RECOMMENDED this 29th day of March, 1988, at Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675, Filed with the Clerk of the Division of Administrative Hearings this 29th day of March, 1988. COPIES FURNISHED: JOSEPH A. FERNANDEZ, SUPERINTENDENT SCHOOL BOARD OF DADE COUNTY 1410 NORTHEAST SECOND AVENUE MIAMI, FLORIDA 33132 FRANK R. HARDER, ESQUIRE 175 FONTAINEBLEAU BOULEVARD SUITE 2A-3 MIAMI, FLORIDA 33172 LANA STEPHENS 15490 S.W. 85TH LANE MIAMI, FLORIDA 33183 MADELYN P. SCHERE, ESQUIRE ASSISTANT BOARD ATTORNEY DADE COUNTY PUBLIC SCHOOLS 1410 NORTHEAST SECOND AVENUE MIAMI, FLORIDA 33132 PHYLLIS O. DOUGLAS, ESQUIRE ASSISTANT BOARD ATTORNEY DADE COUNTY PUBLIC SCHOOLS 1410 NORTHEAST SECOND AVENUE MIAMI, FLORIDA 33132
