Findings Of Fact Edward Pressley, the Respondent, has been a teacher in the Orange County school system for approximately 12 years. Mr. Pressley was serving as a physical education teacher and a remedial teacher for high school students with scholastic difficulty at all times pertinent hereto. In August of 1978, Mr. Pressley had been transferred from the Magnolia School to Cherokee School as a physical education teacher for the 1978-79 school year. On March 28, 1979, Karen Werrenrath, the Principal of Cherokee School and Mr. Pressley's immediate supervisor, determined that he was not at his assigned work location at about the middle of the morning. Mr. Pressley had earlier reported to the Principal that he had discovered the theft of a film projector from the school and that he had reported the theft to a policeman he had observed driving by the school after discovering it missing. Mrs. Werrenrath had inquired about Mr. Pressley's whereabouts because she had received a call from the school system's media center inquiring about the projector which Mr. Pressley had checked out and then reported stolen. The media center required the police department case number which was assigned to the stolen article. Upon calling the police department, Mrs. Werrenrath was informed that the police had no record of any such report, and on March 28, 1979, she therefore informed Mr. Pressley that she had had difficulty in obtaining the number and requested that he obtain it for her. On that date, however, the Respondent left the school campus without permission of the Principal between 10:30 and 11:00 a.m. and did not return to his duty station until approximately 1:15 p.m. Mrs. Werrenrath inquired about his whereabouts during that period of time, and he stated he had gone to the police department and sat on a bench waiting for the police officer to whom he had reported the theft to walk by, and after that he went to lunch. Immediately upon his return to the school campus, however, and during the course of his attempt to explain his previous whereabouts, Mrs. Werrenrath smelled alcohol on Mr. Pressley's breath. Mrs. Werrenrath informed Mr. Pressley that she detected alcohol on his breath, and he offered the explanation that he was taking medication for a halitosis condition. On March 29, 1979, a "workshop" or seminar for physical education teachers in the Orange County school system was held at Meadowbrook Junior High School. Judith Walker is the physical education coordinator for the Orange County public school system and attended that meeting. Ms. Walker is acquainted with the Respondent and saw him at the meeting. Mr. Pressley asked her if he could talk to her, apparently with regard to what he felt was a situation of personal harassment by the school administration. Ms. Walker assented, and the two of them left for lunch together, riding in Mr. Pressley's car. Mr. Pressley was driving. Ms. Walker has known the Respondent for approximately seven years and has observed him on those occasions when he has obviously not been drinking or under the influence of any sort of drug. On those occasions he has been polite and gentlemanly in his conduct, has been able to speak clearly and concisely, and articulate his thoughts reasonably. When she got into Mr. Pressley's car, Ms. Walker noticed a very definite odor of alcoholic beverages. As they drove to a local fast food restaurant, Ms. Walker observed that Mr. Pressley had difficulty controlling the car. He was unable to stay in his lane and was "weaving" from the center line to the side of the road and drove in the wrong way to a drive-in window of the fast food restaurant. In attempting to back out of the drive-in lane, he ran into a post and ultimately hit another post with his car before leaving the restaurant parking area. Ms. Walker also established that the Respondent appeared disoriented and unable to locate the familiar restaurant without her assistance, spoke with slurred speech, and articulated his thoughts in an erratic and disorganized manner. He was unable to conduct a conversation about a subject in a clear and concise manner. Ms. Walker has frequently been in contact with people who have been drinking alcoholic beverages with her knowledge and has seen people in an intoxicated condition. Based upon her experience in observing people in that condition and her observations of Mr. Pressley while she was with him during the school day on March 30, 1979, she felt he was under the influence of alcohol during that time. Shortly after this episode, Ms. Walker reported the incident to the Superintendent of Schools for Orange County at that time, Mr. L. Linton Deck, Jr. She also, shortly thereafter, reduced her observations and impressions regarding the incident to writing in a memorandum to the Superintendent dated April 17, 1979. (Petitioner's Exhibit 3). During the course of their conversation, while Ms. Walker was riding in Mr. Pressley's car on March 30, he informed her that he had been taking pain medication for a back injury and that it was his practice to take beer with his pain pills in order to hasten the comforting effects. Ultimately, in a letter dated April 24, 1979, the Superintendent of public schools in Orange County charged Mr. Pressley with misconduct in office based upon the observations of the two above witnesses that he had been drinking or had been under the influence of alcohol during duty hours. (Petitioner's Exhibit 1). Mr. Pressley retained counsel at that time and, after various negotiations between the Petitioner and the Respondent, an agreement was worked out between counsel for the School Board and Mr. Pressley such that no final disciplinary action was taken with respect to those charges, with the express understanding that Mr. Pressley would enroll in an alcoholic rehabilitation program and would be removed from continuing contract status and placed on annual contract status henceforth. Mr. Pressley was also transferred to Evans High School for employment. Petitioner's Exhibit 1, stipulated into evidence, reveals that the Superintendent's action in deferring taking any formal action against Mr. Pressley on the basis of the charges was purely a result of this agreement. The Respondent expressly agreed, as the letter from his counsel dated May 4, 1979, contained in this exhibit establishes, that the School Board's forbearance in pressing formal action on the charges would not prejudice the School Board in any way with regard to reinstituting the charges at a later time should Mr. Pressley's subsequent conduct justify resumption of their prosecution. Accordingly, as a result of that agreement, Mr. Pressley was allowed to return to the Orange County school system as a teacher on annual contract and was transferred to Evans High School for the 1979-80 school year as a teacher of remedial classes for students who were having scholastic difficulties. Magnolia School is a special education center in the Orange County school system. The Respondent was employed at the Magnolia School some years prior to 1980. On Friday, May 23, 1980, while Mr. Pressley was on personal leave from his job at Evans High School, he appeared upon the grounds of Magnolia School. Jessie D. Smith is a special education teacher who was acquainted with Mr. Pressley from the time he was employed at Magnolia School. On this particular day, Ms. Smith was conducting a private conference with Mrs. Margaret Murray. Mrs. Murray had a son enrolled in the untrainable mentally retarded program at Magnolia Center under Ms. Smith's supervision. This was a private conference between Mrs. Murray and Ms. Smith regarding Mrs. Murray's son's progress in the program and his prognosis for the future. Mr. Pressley had nothing to do with the education of Mrs. Murray's child and had no business being in attendance at the private conference between Ms. Smith and Mrs. Murray. Mr. Pressley had no official business to conduct which justified his presence on the grounds of Magnolia School on that or any other day. The Respondent was not invited by either of the participants in this private conference to participate in it, and indeed Mrs. Murray had never seen Mr. Pressley before he walked into the room, interrupting their conference. Mr. Pressley did not know Mrs. Murray and, although he was not invited to participate in the conference, interrupted it by taking a seat in close proximity to Ms. Smith and Mrs. Murray and abruptly started questioning Mrs. Murray. The Respondent asked Mrs. Murray impertinent and inappropriate questions regarding her marital status, whether she was able to care for her child, and whether she had a boy friend. He insinuated that he felt Mrs. Murray was wasting the school's time by requesting and conducting this conference regarding her child and then declared if he were in her position he would remove her child from school immediately. Ms. Smith naturally became quite irritated with Mr. Pressley's shockingly inappropriate conduct and escorted Mrs. Murray into the next classroom in order to attempt to finish their conference without further interference by the Respondent. Ms. Smith was unable to say whether or not Mr. Pressley had been indulging in alcoholic beverages on the day in question, but she stated, with a view toward her long experience with the Respondent's personality and behavior, that he definitely was not behaving and conducting himself in a normal manner during her observations of him on May 23, 1980. Ms. Smith was shocked and embarrassed that Mr. Pressley as a professional colleague and employee of the same school system would conduct himself in that manner in the presence of the parent of one of her students. When the Respondent first sat down at the conference between Ms. Smith and Mrs. Murray, Mrs. Murray believed him to be a teacher, but when he began talking he was mumbling and slurring his words and speaking in an incoherent manner which led Mrs. Murray to believe that he was in some way retarded. After hearing him converse in that fashion for awhile, she then formed the opinion that he was simply drunk. Ms. Phyllis Albert was employed as a teacher's aide at Magnolia School and was present in the room on May 23, 1980, when Mr. Pressley entered it prior to Ms. Smith and Mrs. Murray coming into the room. Ms. Albert has known the Respondent for a substantial period of time and described him as quiet, reserved and somber. On the day in question, however, Ms. Albert established that Mr. Pressley was acting quite differently from his normal behavior in that he was acting and speaking very exuberantly and in general behaving in an outgoing, extroverted fashion. When the Respondent shook Ms. Albert's hand, she detected a definite odor of alcoholic beverages on the Respondent's breath. She recalled that her impression at the time was that he was "really bombed out of his mind." Olla Evans, the Assistant Principal at Evans High School, observed the Respondent on two occasions between September and December of 1980, when he brought students to her office for disciplinary purposes. On each of these occasions she detected the odor of alcoholic beverages on the Respondent and on the Respondent's breath when he was in her office. On one of these occasions, the odor was so strong that she had to open the door to clear the smell out of her office. On this occasion she also observed that the Respondent's eyes were markedly red. Witness Evans also established that on repetitive occasions (five or six), during the fall of 1980, the Respondent was late arriving for work and that she had to call substitute teachers to take his classes for him until he arrived. Catherine Melton was a regular, continuing substitute teacher for Mr. Pressley's classes at Evans High School in the fall of 1980. She was called to substitute for Pressley's classes at least three or four times during the course of the fall school term. She substituted for his second period class in December on the day before the Christmas holidays commenced. At approximately 8:30 that morning the Respondent appeared, looking in the window of the classroom door. She opened the door and asked him if he was coming into the class at that time. He did not respond but walked into the classroom and appeared confused and disoriented. She observed the Respondent in this disoriented state for several minutes, during which time he did not acknowledge her presence or respond to her in any way. On another occasion, in December of 1980, the Respondent was escorted from the school by two police officers. On that occasion the Respondent missed the entire afternoon of that working day without his absence being excused. He was thus unable to perform his duties as a teacher that afternoon and did not obtain leave approval for that time. On January 7, 1981, Juana Senter, who is an Assistant Principal at Evans High School, reported to John Pitts, the Principal, that Mr. Pressley was late again and had not called in to report that he would be late nor to seek an excuse for his absence. She reported this to the Principal at approximately 8:15 or 8:20 a.m. The official starting time for teachers at Evans High School at all times pertinent hereto was 7:00 a.m. The students then report at 7:15 a.m., and the tardy bell for students and teachers is rung at 7:20 a.m. Inasmuch as Mr. Pressley had already been late reporting for work five or six times during the fall of 1980, and now once again on January 7, 1981, Ms. Senter suggested to the Principal that "something should be done about it." Mr. Pitts directed Ms. Senter to secure a substitute teacher for Mr. Pressley's classes and direct Mr. Pressley to report to his office when he arrived at school. The Respondent arrived at school at approximately 8:30 a.m. on that day and reported to Mr. Pitts' office. Mr. Pitts was taken aback at the Respondent's appearance. The Respondent was untidy, with wrinkled, rumpled clothes, and Mr. Pitts detected the strong odor of alcoholic beverages on or about the Respondent's person as soon as the Respondent entered his office. Mr. Pitts described the Respondent as "either getting drunk or doing some drinking, or coming off a real tough night." The witness then established that he had had substantial experience in the Navy, and since, around people who have been drinking in various amounts, and described his observations as to how people act when under the influence of alcohol. In his experience, people who have been drinking late into the night or early in the morning usually carry evidence of the odor of alcoholic beverages on their breath or on their clothing and generally act, move or behave in an unsteady manner. The witness established that the Respondent acted in this manner on this occasion and that his presence was accompanied by a strong odor of alcoholic beverages. There was no question in this witness' mind that the Respondent had been drinking shortly before coming into his office. Mr. Pitts therefore was not desirous of the Respondent coming in contact with the students while he was in that condition. He therefore directed that Mr. Pressley return home and "get himself straightened out" and report back to Mr. Pitts for a conference about his problem before returning to the classroom to conduct business with his students. Mr. Pitts was aware that the Respondent was enrolled in an alcoholic rehabilitation program, and he described himself and the school administration as making every effort to be supportive of the Respondent in his rehabilitation effort. The Respondent failed to return to the school that day and did not come in for a conference with Mr. Pitts, but rather returned the next day to the regular conduct of his classes without further discussing the incident with Mr. Pitts. The Respondent has been on medication of one type or another since January of 1979. He has had prescribed for him and has been taking various types of pain and tranquilizer medications and muscle relaxants such as Fiorinal No. 3, Talwin, Vicodin, Tylox, Librium and Valium. The Respondent contends he has never taken an overdose of any of his various types of medication, but acknowledges that he has at times taken medication in conjunction with alcoholic beverages in order to speed up the comforting effects of the medication. Although the Respondent stated at one point that he had had no difficulties occasioned by mixing his medications with alcoholic beverages, he has admitted that he was convicted of driving while intoxicated as a result of mixing medication and alcohol on two occasions: January 22, 1979; and again on March 7, 1980. Parenthetically, it should be noted that portions of the arrest record for the Respondent's arrests for Driving While Intoxicated were admitted for the narrow reason of demonstrating that he was aware of the effects of consuming alcohol and his medication contemporaneously prior to his engaging in some of the conduct described in the Findings of Fact above. In any event, Mr. Pressley has admitted that on those two occasions he was mixing medications with alcoholic beverages with the convictions resulting. Mr. Pressley, in testifying concerning the episode occurring at Magnolia School, stated that he had been taking medication that day prior to going to the school. Later in his testimony he recanted and testified that he could not remember if he had been taking medication, and he denied drinking that day. The Respondent's testimony is repeatedly characterized by the statement, "I don't recall," or "I don't remember." He recalls being in the room with Ms. Smith and another person at Magnolia School, but does not recall who that person was, nor does he remember participating in the meeting with Mrs. Murray and Ms. Smith. He claims not to remember anything he asked Mrs. Murray. Mr. Pressley also maintains he cannot recall any of the details of the episode at Magnolia School, although he maintains he definitely does recall that he had not been drinking that day. The undersigned finds the Respondent's testimony and demeanor on the witness stand characterized by poor memory or evasiveness or both.
Recommendation In consideration of the foregoing Findings of Fact and Conclusions of Law, the candor and demeanor of the witnesses, the evidence in the record, and the pleadings and arguments of counsel, it is RECOMMENDED: That a final order be entered by the School Board of Orange County, Florida, dismissing the Respondent as an instructional employee of the School Board of Orange County, Florida. RECOMMENDED this 27th day of July, 1981, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF, 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 27th day of July, 1981. COPIES FURNISHED: John W. Bower, Esquire Bowen and King 217 North Eola Drive Orlando, Florida 32802 Mark F. Kelly, Esquire 341 Plant Avenue Tampa, Florida 33606
The Issue The issue is whether Petitioner, the Lake County School Board, has just cause to terminate the employment of Respondent, teacher Deborah Harkleroad.
Findings Of Fact Respondent Deborah Harkleroad has been employed by the School Board as a teacher for ten years. She is a member of the Lake County Education Association, the collective bargaining unit for teaching personnel. She is covered by the collective bargaining agreement between the School Board and the Lake County Education Association (the "CBA"), and holds a professional service contract with the School Board pursuant to Section 1012.33, Florida Statutes.1/ During the first two years of her employment, the 2001- 2002 and 2002-2003 school years, Ms. Harkleroad was assigned to Tavares Middle School. At the start of her third year in the fall of 2003, she transferred to Fruitland Park as that school's first elementary literacy coach. During the 2007-2008 school year, Ms. Harkleroad transitioned into teaching a regular third-grade class at Fruitland Park. She remained in that position during the 2009- 2010 school year. The School Board employs a performance evaluation methodology called "Instructional Personnel Performance Appraisal System" or "IPPAS." The standards for evaluation, the methodology to be used by evaluators, and the documents used in the evaluation of instructional personnel are set forth in the IPPAS Handbook. Article XI of the CBA acknowledges that the IPPAS is the vehicle for the evaluation and assessment of teachers employed by the School Board. Section 7 of Article XI of the CBA provides that an IPPAS Joint Committee composed of an equal number of representatives of the School Board and the Lake County Education Association will coordinate and monitor the development and implementation of the assessment process. Section 12 of Article XI of the CBA states that any teacher in danger of dismissal because of poor performance will be afforded the procedure set forth in section 1012.34, Florida Statutes. This procedure is given the colloquial acronym "NEAT," which stands for: N-- Notice of alleged deficiencies which, if not corrected, would lead to dismissal; E-- Explanation to the teacher of alleged deficiencies and suggestions for correction; A-- Assistance rendered by the administration to correct alleged deficiencies; and T-- Time for alleged deficiencies to be corrected. In accordance with the CBA and the IPPAS Handbook, the School Board evaluates teacher performance using an "Observation/Assessment of Professional Performance Standards" form in a procedure called an "Appraisal I." The Appraisal I is the standard evaluation for teachers employed by the School Board. The Observation/Assessment form contains 6 sections and subsections. The subsections are further divided into sub- subsections. The evaluator gives the teacher a score of "acceptable" or "unacceptable" in each sub-subsection. The overall evaluation is graded on a 12-point scale, one point for each of the 12 subsections. If the teacher's performance is graded unacceptable in even one sub-subsection, then the teacher receives an unacceptable score for the overall subsection. The only acceptable overall score on the Observation/Assessment form is a perfect 12. If a teacher does not receive an acceptable score in each of the 12 subsections, then the teacher's overall performance is deemed deficient. A deficient Appraisal I triggers the NEAT procedure and further evaluations. The IPPAS provides a voluntary alternative evaluation for experienced teachers who have received scores of 12 on the Appraisal I for the two immediately preceding years and have a professional service contract with the School Board. This alternative is called "PG-13," and allows the teacher to select a “professional growth” objective for the school year, work with an administrator in devising a strategy for attaining the objective, and demonstrate the attainment of the objective. Finally, the IPPAS contains an evaluation instrument called a "Professional/Personal Action Report Relating to Work Experience," or "Appraisal II." The Appraisal II is used to document individual instances of deficiency in a teacher's work performance that have been identified outside of the formal evaluation process. In order to become eligible for the voluntary PG-13, a teacher must have received no Appraisal II reports during the two years immediately preceding entry into PG-13. In order to remain eligible for the PG-13, a participating teacher must continue to meet the standard competency level for teaching performance, which includes receiving no Appraisal II reports. Since the 2004-2005 school year, Ms. Harkleroad had participated in the PG-13 evaluation process every year except 2007-2008, when she had back surgery and was unable to complete her PG-13 project. For the 2007-2008 school year, Ms. Harkleroad received an Appraisal I score of 12. On March 19, 2009, Ms. Harkleroad received an Appraisal II report from the principal of Fruitland Park, Melissa DeJarlais. The "Area of Concern" listed on the Appraisal II form was "Personal Characteristics and Professional Responsibilities." Dr. DeJarlais wrote the following explanation of Ms. Harkleroad's deficient performance: On 3-5-09, teachers required to administer the FCAT assessment were mandated to attend the annual FCAT administration training. Mrs. Harkleroad was observed nodding off and/or sleeping during this training. She later explained that she did not feel well and it was possible that her prescribed medication was causing her to be overly sedated. As a precautionary measure, Mrs. Harkleroad's testing responsibilities were changed to that of a proctor thus requiring us to assign another instructional person to her classroom for the express intention of administering the FCAT. Mrs. Harkleroad did not perform her proctoring duties and instead spent time working on school related activities not germane to FCAT testing. These activities included printing her substitute or lesson plans while students were actively taking the FCAT assessment thus compromising the testing environment. At the time she received the Appraisal II, Ms. Harkleroad wrote the following response: In response to the Professional/Personal Action Report dated 3-19-09, I was running a temperature of 102.6 and my blood pressure was dipping dangerously low due to being sick on 3-5-09. I should have taken a sick day on this date, but I didn't due to the diminishing amount of teaching time left before the FCAT. I did fully perform my duties as a proctor for the math FCAT testing, and I did not at any time perform the activities alleged. During the time when I was printing my students' cloze practice reading assignments, no students were actively taking the test. At the hearing, Dr. DeJarlais offered no first hand testimony regarding the allegation that Ms. Harkleroad did not perform her proctoring duties and printed documents in the classroom while the FCAT was being administered. She testified that she relied on the reports of the test administrator and the testing coordinator in issuing the Appraisal II to Ms. Harkleroad. Ms. Harkleroad testified that, unlike the previous principals she had worked for at Fruitland Park, Dr. DeJarlais had never liked her or appreciated the extra work she did in compiling data that tracked student performance on the FCAT and other standardized tests. Ms. Harkleroad testified that she had always received "rave reviews" for the extra work she did in creating and maintaining the school wide data bank for tracking standardized test scores. She resented the fact that Dr. DeJarlais neglected to rave over the data notebooks when Ms. Harkleroad presented them to her. Ms. Harkleroad felt personally snubbed and concluded that Dr. DeJarlais did not like her. As to the events of March 5, 2009, Ms. Harkleroad surmised that the test administrator was trying to make "brownie points" with Dr. DeJarlais by maliciously reporting falsehoods about Ms. Harkleroad's actions in the classroom. Ms. Harkleroad asserted that the administrator was a friend of Dr. DeJarlais, and that the principal simply took the administrator's word for what happened without conducting any further investigation. Ms. Harkleroad disputed the incident to Dr. DeJarlais to the point of crying, and she was so upset she had to leave school early that day. She testified that at the time she was unaware that the CBA allowed her to file a union grievance over the Appraisal II. Neither party called the test administrator, Kimberly Belcher, to testify. Based on the testimony, the undersigned is not inclined to second-guess Dr. DeJarlais' decision to take the word of Ms. Belcher as to what occurred in the classroom on March 5, 2009. Ms. Harkleroad offered only speculation as to any motive Ms. Belcher had to concoct a story about Ms. Harkleroad's actions during the FCAT. To accept Ms. Harkleroad's version of events, it is necessary to believe not only that Dr. DeJarlais was out to get Ms. Harkleroad, but that Dr. DeJarlais' vendetta against Ms. Harkleroad was such common knowledge that Ms. Belcher knew she could win "brownie points" by lying about the teacher to the principal. The evidence does not support such a chain of inferences. Ms. Harkleroad testified that during the meeting about the Appraisal II, Dr. DeJarlais emphasized that she would no longer be eligible for the PG-13 evaluations and would have to revert to the Appraisal I evaluation. Ms. Harkleroad stated, "I knew then, when she told me that, that she was out to destroy my career." This extraordinary statement was premised on Ms. Harkleroad's assertion that she has a severe panic disorder that renders her unable to withstand the situation presented by an Appraisal I, in which she must teach while an evaluator sits in the room and judges her performance. Ms. Harkleroad asserted that Dr. DeJarlais was aware of this condition, and purposely contrived to force Ms. Harkleroad back into the Appraisal I process in order to get rid of her. At this point, it is useful to digress from the main narrative to provide a brief history of Ms. Harkleroad's medical travails. She testified that she has a severe form of stress or panic disorder that makes her paranoid and unable to function in situations in which she thinks people are judging her. Earlier in her career, she was able to control the panic attacks with a prescribed medication, Xanax (alprazolam), and was able to perform well in Appraisal I situations. At some unspecified time prior to the 2005-2006 school year, Ms. Harkleroad underwent spinal fusion surgery. During the 2005-2006 school year, Ms. Harkleroad was involved in an incident requiring her to restrain a kindergarten student who was throwing wooden chairs in the library. Ms. Harkleroad's back was injured. Ms. Harkleroad alleged that the School Board's contract workers' compensation physician misdiagnosed the injury and sent her back to work. Two years later, another physician examined Ms. Harkleroad's MRI from the incident and determined that her fusion had been shattered. During the 2007-2008 school year, Ms. Harkleroad had major back surgery that kept her away from school for 12 weeks. When she returned to work during the spring semester of 2008, she was in a body cast, followed by approximately five months in a brace. Ms. Harkleroad testified that the damage to her back was so severe that it could not be completely repaired. She was subject to muscle spasms due to pressure on her sciatic nerve. The pain became so severe that in February 2009 she began seeing a physician for pain management. The physician prescribed what Ms. Harkleroad called "pretty heavy duty" medications such as Oxycontin (oxycodone). Ms. Harkleroad's physicians advised her that Xanax cannot be taken with Oxycontin. Therefore, she was forced to forego her panic disorder medication after February 2009. Dr. DeJarlais came to Fruitland Park at the start of the 2008-2009 school year. Ms. Harkleroad was unsure how much Dr. DeJarlais knew about her medical history, though she specifically recalled telling Dr. DeJarlais that she was the teacher who had back surgery and came back in a body cast. Ms. Harkleroad also recalled that, in her first conversation with the new principal, she told Dr. DeJarlais about her panic disorder. Dr. DeJarlais testified that she was unaware that Ms. Harkleroad claimed any disabilities. She knew that Ms. Harkleroad took pain medications for her back, but knew no specifics about them. Ms. Harkleroad testified that at the time of the FCAT administration meeting on March 5, 2009, she was sick and had just started on the pain management medications. She had taken Nyquil for a cold on top of the Oxycontin, and the combination caused her to fall asleep at the meeting. As noted above, she absolutely denied the other statements in the Appraisal II. Shortly after receiving the Appraisal II, Ms. Harkleroad was involved in an automobile accident that kept her out of work for the remainder of the 2008-2009 school year. She had further surgical procedures on her back and remained on pain medications as the 2009-2010 school year began. Patricia Nave, a veteran administrator, arrived at Fruitland Park as assistant principal at the start of the 2009- 2010 school year. Dr. DeJarlais assigned Ms. Nave to conduct the Appraisal I performance evaluations of Ms. Harkleroad. Ms. Nave did not know Ms. Harkleroad before August 2009, and testified she was not aware that Ms. Harkleroad had anxiety issues. On February 18, 2010, from 12:45 p.m. until 1:45 p.m., Ms. Nave observed Ms. Harkleroad and scored her on the Appraisal I form. Ms. Nave gave Ms. Harkleroad a score of 10 on the appraisal, rating her unsatisfactory in two of the 12 subsections. Under the section "Teaching Procedures," Ms. Harkleroad was rated unsatisfactory in the sub-subsection titled "Gives clear and explicit directions" within the subsection titled "Displays skills in making assignments." Under the section "Classroom Management," Ms. Harkleroad was rated unsatisfactory in the sub-subsections titled "Applies the established rules and standards for behaviors consistently and equitably" and "Provides conscious modeling to modify attitudes and behaviors" within the subsection titled "Creates and maintains positive environments in which students are actively engaged in learning." In the area of Teaching Procedures, Ms. Nave testified that in making an assignment, the teacher is expected to use appropriate vocabulary. The teacher tells the students what the assignment is and when it is due, then checks with the students to ensure they comprehend the assignment before releasing them to do the work. Ms. Harkleroad did not make a comprehension check. She simply told the students what to do. In the area of Classroom Management, Ms. Nave had "many, many concerns" regarding Ms. Harkleroad's "conscious modeling to modify attitudes and behaviors." Ms. Harkleroad made unacceptable comments to students throughout the lesson, such as: "I don't understand what you're not getting, probably because you're not paying attention," "Your rudeness scale is going up," and "You are all just counting, not paying attention to what you are counting." Ms. Nave found that Ms. Harkleroad was not setting a proper example to the students. The teacher is expected to be respectful and to set an example by being fair. Ms. Harkleroad was neither consistent nor fair. At times, she would scold the students for calling out without raising their hands, but at other times she would allow them to call out. Some children were walking around the room when they should have been sitting down for the lesson. Ms. Harkleroad admonished some of the students for walking around but allowed others to do it. She allowed the students to engage in off-task behavior. Ms. Harkleroad testified that in her experience, evaluations last for about 35 minutes. She testified that she was doing fine for the first 35 minutes of Ms. Nave's evaluation. However, when Ms. Nave stayed beyond the 35-minute mark, Ms. Harkleroad began to panic, believing that Ms. Nave intended to stay until she could find something wrong. Her performance fell apart in the latter part of the hour. Ms. Harkleroad stated that she told Ms. Nave about her panic disorder after the evaluation. Ms. Nave noted no dramatic change in Ms. Harkleroad's performance from the first half to the second half of her one- hour observation. Ms. Nave also had no recollection of Ms. Harkleroad discussing her panic disorder at any time, before or after the evaluation. When a teacher receives a deficient Appraisal I, the NEAT procedures require that the teacher also receive a Prescription/Assistance form to outline areas for improvement, recommendations on how to accomplish those improvements, and a time period for a follow-up observation. Ms. Nave met with Ms. Harkleroad on February 22, 2010 to go over the Prescription/Assistance form. Ms. Nave noted the areas of deficient performance and recommended that Ms. Harkleroad review sections of the IPPAS manual that prescribe methods for the areas in which she had been found deficient and watch certain DVDs on effective teaching methods. Ms. Nave gave Ms. Harkleroad four weeks, rather than the usual three weeks, to correct the deficiencies and undergo another observation. To further lessen the pressure on Ms. Harkleroad, Ms. Nave exercised her prerogative to use the February 18, 2010, Appraisal I as an "observation" rather than a formal appraisal that would be counted against Ms. Harkleroad. School Board records indicated that Ms. Harkleroad checked out the recommended DVDs from the Fruitland Park library. Ms. Harkleroad testified that she watched the DVDs. Ms. Nave performed a second Appraisal I on Ms. Harkleroad on March 26, 2010. This appraisal also resulted in a total score of 10. On this appraisal, deficiencies were found under the sections titled "Classroom Management" and "Presentation and Knowledge of Subject Matter." As to Classroom Management, Ms. Harkleroad was rated unsatisfactory in the same sub-subsections as on the February 18, 2010, appraisal: "Applies the established rules and standards for behaviors consistently and equitably" and "Provides conscious modeling to modify attitudes and behaviors" within the subsection titled "Creates and maintains positive environments in which students are actively engaged in learning." As to Presentation and Knowledge of Subject Matter, Ms. Harkleroad's performance was found unsatisfactory in the sub-subsection titled "Uses questioning techniques" under the subsection titled "Communicates and presents subject matter in a manner that enables students to learn." Ms. Nave testified that in the area of questioning techniques, the preferred technique is to ask a question, wait for the students to process the question, and then call on one student to answer the question. Ms. Harkleroad was asking "multiple questions," meaning that she would ask a question, then ask another question or ask the same question in a different way, before the students had a chance to respond. Ms. Nave stated that teachers are counseled not to ask multiple questions because it confuses the children. Ms. Nave stated that Ms. Harkleroad failed to exhibit another aspect of proper questioning. A teacher should ask a question, and then call the name of a student to answer the question. Asking the question before calling on a student ensures that the whole class pays attention to the question. If the teacher calls on one student, then asks the question, the other children are off the hook and feel free to pay less attention. Ms. Harkleroad frequently called on students before asking a question. Ms. Harkleroad agreed that her performance during this evaluation was "awful." Ms. Nave had come in to the classroom a day or two before and stayed for about 25 minutes. According to Ms. Harkleroad, "Everything went great. I thought that was my evaluation. A couple days later, here she comes in again. And immediately that's like, 'Okay, what are they doing? They couldn't find anything wrong that time, so they're coming in to find something wrong this time?'" She had a panic attack, and knew that the evaluation was "horrible." Again, Ms. Nave made no note of the dichotomy claimed by Ms. Harkleroad. Her observations were consistent over time. Ms. Nave saw no "great" lessons taught by Ms. Harkleroad. Nonetheless, Ms. Nave continued to encourage Ms. Harkleroad to improve her performance and genuinely believed that "she could get it together" with hard work and a sincere commitment to the recommendations she was receiving. On March 29, 2010, Ms. Nave completed a Prescription/Assistance form and reviewed it with Ms. Harkleroad. Ms. Nave again stated the areas of deficient performance and listed sections of the IPPAS manual that addressed Ms. Harkleroad's deficiencies. Ms. Nave also obtained the assignment of Linda Bradley, a School Board employee who works as a mentor to beginning teachers, to visit Ms. Harkleroad's class every week to observe and assist her with her ongoing remediation strategies. The Prescription/Assistance form provided that Ms. Harkleroad would correct her deficiencies by the end of the school year, June 9, 2010. Ms. Harkleroad would then go through a 90-day performance probation period during the upcoming school year. Also on March 29, 2010, Dr. DeJarlais issued a memorandum to Ms. Harkleroad titled "Performance Probation" that read as follows: Pursuant to the provisions of Florida Statutes 1012.34, I am writing to inform you that you have performance deficiencies in the areas of Classroom Management and Presentation and Knowledge of Subject Matter. Based on the deficiencies, I am placing you on performance probation for 90 calendar days beginning on 8-23-2010. The 90 calendar days will end on November 23, 2010. By letter dated March 31, 2010, Superintendent of Schools Susan Moxley warned Ms. Harkleroad of the consequences of failure to correct her performance deficiencies: Pursuant to Florida Statutes 1012.33, I am writing to inform you that performance deficiencies have been identified by your principal. I understand that your principal has already met with you and made recommendations for improvement. Your principal will provide assistance to help you correct the performance deficiencies during the subsequent school year. Please be advised that your contract with the Lake County Schools District may be terminated without correction of these performance deficiencies. Pursuant to s. 1012.33, you may request to meet with the Superintendent or her designee for an informal review of the determination of unsatisfactory performance. You may also request to be considered for a transfer to another appropriate position under a different supervising administrator for the subsequent school year. Such transfer, however, does not reverse this year's identification of performance deficiencies. Both Ms. Nave and Dr. DeJarlais testified as to other problems with Ms. Harkleroad's performance in the classroom. The parents of two children in Ms. Harkleroad's class complained that their children were receiving too many disciplinary referrals to the office. Upon investigation, the administrators agreed with the parents and Ms. Harkleroad was counseled on the issue. As an alternative to referring minor disciplinary cases to the office, teachers at Fruitland Park are allowed to send students to another teacher's classroom for a time. Placed in a strange class with students who do not know him, the recalcitrant student usually will calm down and quietly do his work. Ms. Harkleroad's grade level peers complained to Ms. Nave that Ms. Harkleroad took excessive advantage of this option, sending children to their classrooms more frequently than should have been necessary. Ms. Nave's major problem with Ms. Harkleroad was her classroom management, her "with-itness," in Ms. Nave's terminology. Ms. Harkleroad too often appeared unaware of the things she was saying to the children, and unaware of what the children were doing in the classroom. She would not notice that children were up and walking around the classroom during lessons. Ms. Nave stated that during her observations, as many as 12 out of 22 children in Ms. Harkleroad's classroom would not be focused on the lesson, and Ms. Harkleroad did nothing to put them back on task. Dr. DeJarlais noted that some parents had complained about Ms. Harkleroad's odd behavior at a student assembly. Her speech was slurred, she called out the same student's name more than once, and she seemed disoriented. Dr. DeJarlais witnessed the assembly, and agreed with the parents that there was a problem. She spoke to Ms. Harkleroad about maintaining a sense of awareness on stage.2/ Dr. DeJarlais mentioned several other minor incidents. In the spring of 2010, Ms. Harkleroad did not fill out her report cards correctly. She once walked into the wrong grade level meeting and had to be directed to the right one. There was an incident in which she placed a child on the floor during a disciplinary timeout, and Dr. DeJarlais counseled her to use a desk. During a walkthrough, Dr. DeJarlais saw Ms. Harkleroad teaching the wrong subject. In each of these instances, Dr. DeJarlais counseled Ms. Harkleroad rather than giving her an official disciplinary or performance write-up. Ms. Harkleroad was convinced that Dr. DeJarlais was intentionally using her panic disorder to get rid of her. This was based partly on a conversation Ms. Harkleroad claimed to have overheard in which Dr. DeJarlais referred to Ms. Harkleroad as a "liability" because of her use of pain medications. Ms. Harkleroad believed that Dr. DeJarlais thought of her as a drug addict. She testified that Dr. DeJarlais made frequent comments that insinuated that she was an addict, asking whether she had a "problem" or needed "counseling." Ms. Harkleroad believed these insinuations were intended to add to the pressure she felt at school and therefore increase the anxiety and panic she would feel during her evaluations. Dr. DeJarlais denied ever calling Ms. Harkleroad an addict or even suggesting such a thing. She did recall that she and Ms. Nave had conversations with Ms. Harkleroad about her nodding off in front of the class, and that Ms. Harkleroad mentioned that she might need to adjust her medications. Dr. DeJarlais did not pry into the kinds of medications Ms. Harkleroad was taking. Ms. Harkleroad spoke to her several times in general terms about seeking help for medical conditions such as back pain. Dr. DeJarlais' only suggestion regarding counseling came when Ms. Harkleroad told her that she feared she was having a nervous breakdown. Dr. DeJarlais credibly denied doing anything to intimidate or humiliate Ms. Harkleroad. Ms. Nave confirmed that she had seen Ms. Harkleroad appear to be sleeping or nodding off while standing in front of the class. At the time, Ms. Nave was unaware that Ms. Harkleroad took prescribed pain medications. Ms. Nave stated that Ms. Harkleroad was unaware that she was nodding off and denied it until Dr. DeJarlais confirmed that two other persons had reported seeing Ms. Harkleroad nod off. At that point, Ms. Harkleroad stated she would go see a physician. Ms. Harkleroad testified that her physician assured her that she could not have been falling asleep on her feet. The physician stated that one of her medications may have been causing mini seizures that resembled nodding off. Ms. Harkleroad testified that she passed this information on to both Dr. DeJarlais and Ms. Nave, though neither of the administrators recalled such a conversation. Given her feelings about Dr. DeJarlais, it was not surprising that Ms. Harkleroad chose the option of transferring to another school for the 2010-2011 school year. Ms. Harkleroad testified that she chose a transfer only after Dr. DeJarlais made it clear that she would prefer for Ms. Harkleroad to move on to another school. Dr. DeJarlais denied expressing such a preference. Ms. Nave recalled that she and Dr. DeJarlais met with Ms. Harkleroad to discuss her options for the 2010-2011 school year, which included transferring to another school or trying to work through the probationary process at Fruitland Park. Ms. Nave testified that when the discussion turned to the 90-day probationary period, Ms. Harkleroad mentioned that she might be having a nervous breakdown. This conversation occurred near the end of the school year, and was the first mention of any mental problems that Ms. Nave could recall. Ms. Harkleroad testified that the "nervous breakdown" conversation was more complicated than Dr. DeJarlais and Ms. Nave indicated. Ms. Harkleroad stated that she told the administrators that she was having multiple anxiety attacks, one after the other, and that she would have a nervous breakdown "if they kept on pushing me and pushing me." Though she had requested assignment to a middle school, Ms. Harkleroad was transferred to Beverly Shores Elementary School ("Beverly Shores") for the 2010-2011 school year and assigned to a third-grade classroom. At the end of the 2009-2010 school year, the School Board notified Jeffrey Williams, the principal at Beverly Shores, that Ms. Harkleroad would be joining his staff in August 2010. The notice informed Mr. Williams that Ms. Harkleroad was on performance probation, and that her issues were classroom management and presentation of subject matter. Mr. Williams also received a phone call from Dr. DeJarlais to discuss the transfer. Dr. DeJarlais did not go into the details surrounding Ms. Harkleroad's probation aside from stating that she believed the move would be good for Ms. Harkleroad. Mr. Williams contacted Ms. Harkleroad and suggested they meet to discuss her transition to Beverly Shores. Ms. Harkleroad met with Mr. Williams at his office. Ms. Harkleroad told Mr. Williams that she had received a deficiency in her IPPAS evaluation and had requested a transfer, though Beverly Shores was not really where she wanted to be. Ms. Harkleroad mentioned that she had a back problem. Mr. Williams did not recall anything in the conversation concerning panic attacks, an anxiety disorder, or any other condition that would hinder Ms. Harkleroad's ability to pass an Appraisal I evaluation. Ms. Harkleroad denied telling Mr. Williams that she did not want to be at Beverly Shores, though she conceded that she told him she would rather be in a middle school because her back problems made it difficult to keep up with younger children. Ms. Harkleroad testified that she told Mr. Williams about her panic disorder, and further told him that she could not take medication for it because of the medication she took for her back pain. She requested that Mr. Williams use the PG- evaluation tool, or record her class, anything other than having people come into her classroom to judge her. She said that Mr. Williams replied that the rules required the use of the Appraisal I. Mr. Williams did not see Ms. Harkleroad again until school started in August 2010. He assigned assistant principal Tanya Rogers to be the supervising administrator handling all issues related to Ms. Harkleroad's job performance. During the first 90 days of the 2010-2011 school year, Mr. Williams limited his involvement to walkthroughs of Ms. Harkleroad's classroom. Ms. Rogers is an experienced assistant principal who has performed many teacher evaluations under the provisions of the IPPAS and the CBA. Ms. Rogers knew that Ms. Harkleroad was on performance probation, and saw to it that her Prescription/Assistance form from Fruitland Park was implemented at Beverly Shores. Linda Bradley was retained as Ms. Harkleroad's instructional coach, and Ms. Harkleroad was offered classes through the school's learning resource center. Ms. Rogers conducted frequent classroom walkthroughs and met with Ms. Harkleroad to assist her in preparing for her evaluation. Upon her arrival at Beverly Shores in August, Ms. Harkleroad discovered that her classroom was "filthy. There were mouse droppings all over. It took four of us six hours to get the room just clean enough that I'd bring my stuff in there. No air conditioning. . . It was almost six weeks before that air conditioning was fixed." Mr. Williams testified that the classroom was clean when Ms. Harkleroad arrived at the school in August 2010. Ms. Harkleroad estimated that the air conditioning was not repaired until September 27, and testified that the temperature reached 100 degrees in the afternoons. She had complained to Ms. Rogers but nothing was done until the date of the second observation by Ms. Rogers, when Ms. Harkleroad repeatedly noted how hot it was in the classroom and how difficult for the students to concentrate on their lessons. Ms. Harkleroad also testified that there was a "horrible" burning smell in the classroom. She complained to Mr. Williams about it. Eventually, on December 9, 2010, the Lake County Health Department came to the school to investigate the source of the smell. Ms. Harkleroad denied having called the Health Department. Ms. Rogers agreed that Ms. Harkleroad complained about the air conditioning in September. However, Ms. Rogers testified that she entered a work order and that the air conditioning was repaired on September 7. Ms. Rogers recalled no complaints about a smell in the classroom, though she did acknowledge that the Health Department was at the school on December 9, and that it found everything in Ms. Harkleroad's classroom to be in satisfactory condition. Mr. Williams recalled that Ms. Harkleroad complained about an odor in her classroom. Mr. Williams was convinced that Ms. Harkleroad had called the Health Department for the simple reason that the inspectors went straight to her classroom when they arrived at the school. However, Mr. Williams had no firm evidence that Ms. Harkleroad made the call and no way of knowing whether a concerned parent had made the call. In the absence of any stronger evidence, Ms. Harkleroad's denial is credited. There was no indication that either Ms. Rogers or Mr. Williams took retaliatory action against Ms. Harkleroad for her various complaints about conditions in her classroom, or that the performance appraisals Ms. Harkleroad received at Beverly Shores were based on anything other than her performance in the classroom. As part of her efforts to help Ms. Harkleroad prepare for her Appraisal I, Ms. Rogers conducted two classroom observations using the "Screening/Summative Observation Instrument" of the Florida Performance Measurement System ("FPMS"). This form was developed by the Florida Department of Education to enable an observer to calculate the frequency of effective and ineffective teaching techniques. In the first observation, conducted on September 7, 2010, Ms. Rogers found performance deficiencies in the areas of classroom management and presentation and knowledge of subject matter. In the second observation, conducted on September 27, 2010, Ms. Rogers found performance deficiencies in the same two areas, particularly in the area of managing student conduct. Ms. Rogers testified that she saw a great deal of choral reading and review of prior knowledge taking place in the classroom but observed no teaching of new content. She also noted that Ms. Harkleroad had a punitive approach to classroom management, and took a sarcastic tone with the children that tended to escalate discipline problems rather than calm them. Based on her observations, Ms. Rogers wrote a Prescription/Assistance form on September 29, 2010, and met with Ms. Harkleroad to go over the needed improvements. Ms. Rogers recommended weekly visits by Ms. Bradley, who would conduct FPMS observations in the problem areas and provide specific feedback to Ms. Harkleroad. Ms. Rogers also recommended specific classes offered at the School Board's staff development training facility: "Increasing Student Engagement," "Motivating Students," and "Classroom Management for Elementary Teachers." Ms. Rogers wrote that Ms. Harkleroad "will correct these behaviors by October 25, 2010, two weeks after staff development opportunity." Ms. Harkleroad testified that she attended one of the recommended classes, but found that it was unrelated to anything occurring in her classroom. She declined to attend the other classes. As the end Ms. Harkleroad's 90-day performance probation approached, Ms. Rogers notified Ms. Harkleroad of her intent to perform the Appraisal I. Ms. Harkleroad requested a conference with Ms. Rogers prior to the evaluation. At the conference, Ms. Harkleroad requested that Mr. Williams perform the Appraisal I evaluation. Ms. Rogers testified that Ms. Harkleroad told her that she found it difficult to respect women in positions of authority. Ms. Harkleroad believed that women should be at home taking care of their children, and that society's problems could be traced to women working outside the home. Ms. Rogers found this logic confusing because Ms. Harkleroad was herself a woman working outside the home. When Ms. Rogers pointed this out, Ms. Harkleroad responded that she did not have children. Ms. Rogers responded that her own children were grown and not living with her. Ms. Harkleroad asked Ms. Rogers whether her daughter stayed home with her children. Ms. Rogers replied that her daughter worked. Ms. Harkleroad said, "See, that's what I'm talking about. That's what's wrong with society." At the hearing, Ms. Harkleroad testified that her request had nothing to do with any general complaint about women in the workplace.3/ Her problem was with Ms. Rogers, whom she found to be unreasonably critical. Ms. Rogers conducted her first observation before Ms. Harkleroad even had a chance to learn the names of the children in her classroom, then told Ms. Harkleroad that she was an incompetent teacher, which caused Ms. Harkleroad to lose all respect for her. Thus, she told Ms. Rogers that she preferred to have Mr. Williams perform her Appraisal I. Ms. Rogers' version of the conference with Ms. Harkleroad is credited. Mr. Williams testified that Ms. Rogers came to him and told him that Ms. Harkleroad did not respect women in authority. Ms. Harkleroad did not think she could get a fair evaluation from Ms. Rogers and requested that Mr. Williams perform the appraisal. Without delving too deeply into the reasons for Ms. Harkleroad's request, Mr. Williams agreed to perform the Appraisal I. Ms. Rogers and Mr. Williams agreed that he declined to take the file that Ms. Rogers had developed on Ms. Harkleroad. He wanted a clean slate, and did not want to be influenced by the prior observations of Ms. Rogers. He wanted to evaluate what was happening in the classroom without preconceptions. Mr. Williams intended to evaluate Ms. Harkleroad as he would any other teacher. He entered Ms. Harkleroad's classroom several times during the week before the evaluation and performed a lengthy walkthrough to assess the overall learning environment. Mr. Williams conducted the Appraisal I on or about November 22, 2010.4/ He gave Ms. Harkleroad a score of 11. Mr. Williams found a deficiency in the section titled "Presentation and Knowledge of Subject Matter." Ms. Harkleroad was rated unsatisfactory in the subsection titled, "Communicates and presents subject matter in a manner that enables students to learn." This subsection contains seven sub-subsections, and Mr. Williams graded Ms. Harkleroad unsatisfactory in six of them: "Treats concepts/cause and effect/or states and applies rules;" "Teacher directed/guided practice is provided;" "Uses questioning techniques;" "Directs lesson;" "Provides periodic review;" and "Poses problems, dilemmas, and questions to promote critical thinking." Mr. Williams found these deficiencies because there was no direct instruction taking place in the classroom that would satisfy those areas of observation. Shortly after the evaluation, Ms. Harkleroad told him that she "just didn't have it today" and that she knew her performance had not been good. Ms. Harkleroad testified as to her problems with Mr. Williams' evaluation. These problems were related to her panic disorder and to an illness she claimed she had on the day of the evaluation. When Mr. Williams did his preparatory walkthrough of her classroom on the Friday before the evaluation, Ms. Harkleroad mistakenly believed that he was conducting the Appraisal I. As she had with Ms. Nave's earlier pre-evaluation classroom visit, Ms. Harkleroad claimed that the lesson went very well. She was jubilant that she had passed the evaluation. Mr. Williams noted no variance between what he observed on his walkthroughs of Ms. Harkleroad's classroom and what he observed during the November 22, 2010, Appraisal I. On the following Monday morning, Ms. Harkleroad was at an IEP meeting when she started pouring sweat and finding it difficult to breathe. The problem became worse as the day went by. She told Mr. Williams how sick she felt and that she might have to go home. Less than 30 minutes later, Mr. Williams appeared in her classroom to conduct the Appraisal I. Ms. Harkleroad stated that Mr. Williams' arrival "just blew it." She knew then that "all they wanted to do was fire me. They didn't care how they did it." After the evaluation, Ms. Harkleroad's husband picked her up from school because she was too ill to drive. Ms. Harkleroad testified that she was diagnosed with bacterial pneumonia. She did not return to school until the Monday after Thanksgiving, November 29, at which time Mr. Williams met with her to review her evaluation. Mr. Williams testified that Ms. Harkleroad said nothing to him about being sick and that he would have rescheduled the evaluation had he known. Before and during the evaluation, she showed no signs of illness. It was only after the evaluation, when they were discussing her poor performance, that Ms. Harkleroad appeared to become ill. Mr. Williams called the school nurse and Ms. Harkleroad's husband. Ms. Harkleroad later told him she had been hospitalized, but Mr. Williams had no firsthand knowledge of her medical treatment. On November 29, 2010, Mr. Williams conducted a post- evaluation conference with Ms. Harkleroad. He presented her options, which at that point were limited to resigning her position or facing formal termination procedures by the School Board. To Mr. Williams' surprise, Ms. Harkleroad chose termination. He was surprised because termination would likely end Ms. Harkleroad's teaching career. When Mr. Williams inquired further, Ms. Harkleroad told him that she chose termination in order to preserve her unemployment benefits. At the hearing, Ms. Harkleroad testified that she chose termination because resigning would have constituted an admission she had done something wrong. As to aspects of Ms. Harkleroad's performance outside the formal evaluation, Mr. Williams stated that there had been a couple of parent complaints. One child was moved out of her classroom due to what the parent termed "poor communication" with Ms. Harkleroad. Mr. Williams had to tell Ms. Harkleroad to stop asking the child why he had moved from her class. In a memorandum to Dr. Moxley dated December 9, 2010, and titled "Recommendation of Termination," Mr. Williams wrote as follows, in relevant part: Pursuant to Florida Statutes 1012.34, I am writing to inform you that Mrs. Deborah Harkleroad has completed his/her 90-calendar day performance probation and has failed to correct his/her performance deficiencies. I do not believe that Mrs. Harkleroad can correct said deficiencies and his/her employment should be terminated. I have complied with all applicable provisions of Florida Statutes 1012.34.... On the morning of December 13, 2010, Ms. Harkleroad wrote the following email to Dr. Moxley: Before a final decision is made on my employment status, I would like the opportunity to meet with you in order to discuss my current situation. It is my contention that I was performing my duties as a teacher in a manner that supported Literacy First guidelines on the date and time my evaluation was conducted. If I had been doing any type of activity other than something similar to what I was doing, I would not have been in compliance with established guidelines. Literacy First is a research-based, data-driven, comprehensive program designed to accelerate reading achievement. Beverly Shores implements the Literacy First program,5/ which includes explicit directives as to what should take place in whole group and small group instruction. Ms. Harkleroad did not raise Literacy First concerns with Mr. Williams at the time of the evaluation or even at the November 29 conference. After the fact, however, she contended that during the hour in which Mr. Williams conducted the evaluation, the Literacy First schedule called for her to perform whole group activities, which do not include "instruction." The children were building fluency by engaging in group reading practice. Had Mr. Williams stayed through the next hour, he would have seen explicit instruction when the class was broken into small groups. Ms. Harkleroad's argument that Literacy First mandated that she not teach the class is not credited. As early as her first observation on September 2, 2010, Ms. Rogers had noted that Ms. Harkleroad's whole group method appeared limited to "echo reading" rather than any of the other various strategies called for by the Literacy First program. Ms. Rogers did not formalize this observation in writing because echo reading is a legitimate Literacy First strategy, and she wanted to give Ms. Harkleroad the benefit of the doubt. Mr. Williams understood Ms. Harkleroad's class schedule, and as principal of Beverly Shores he understood the Literacy First guidelines. When he conducted his evaluation, he knew that Ms. Harkleroad's class was involved in whole group reading. It was in this context, with a full understanding of what should have been happening under Literacy First, that Mr. Williams concluded that no instruction took place during his observation. Ms. Harkleroad was not leading the class. Dr. Moxley did not meet with Ms. Harkleroad. By letter dated December 13, 2010, Dr. Moxley informed Ms. Harkleroad that, pursuant to section 1012.34, Florida Statutes, Ms. Harkleroad had failed to correct performance deficiencies identified by her principal and Dr. Moxley intended to recommend to the School Board that Ms. Harkleroad's employment be terminated as of January 10, 2011. At the hearing, Ms. Harkleroad contended that she had placed the School Board on notice of her panic disorder before the 2009-2010 school year, and that she specifically requested that school administrators use the PG-13 evaluation process as an accommodation to her disability. Ms. Nave recalled Ms. Harkleroad requesting that she be allowed to use the PG-13 evaluation. Ms. Nave stated that Ms. Harkleroad gave no reason for the request, other than an assertion that she had earned the right not to go through the Appraisal I process. Ms. Harkleroad testified that she also pleaded with Mr. Williams to allow her to use the PG-13 evaluation because of her panic disorder. Mr. Williams flatly and credibly denied that any such conversation occurred.6 Dr. DeJarlais had no recollection of Ms. Harkleroad asking for the PG-13 evaluation. She testified that Ms. Harkleroad made no complaints about the Appraisal I procedure until after the evaluation had been completed. The testimony of the four administrators permits the inference that, far from being open with her superiors about her mental and physical problems, Ms. Harkleroad tended to downplay them because of the intense scrutiny she felt she was receiving regarding her job performance. On several occasions, Ms. DeJarlais and Ms. Nave made tentative inquiries into Ms. Harkleroad's emotional well being only to have Ms. Harkleroad sidestep their questions with vague assurances that she was seeing a doctor.7/ Out of respect for her privacy, the administrators left it at that and focused on her classroom performance. The first duty of the school administrators is to ensure that the children in their charge receive adequate instruction from a qualified, competent teacher. If Ms. Harkleroad's panic disorder required an accommodation, it was her responsibility to come forward and request it. The evidence established that she did not do so. It was not the duty of her superiors to tease the information out of her. As Mr. Williams pointed out, he is responsible for 55 teachers at Beverly Shores. He does not have the time to delve into all their personal lives and medical conditions, and tries to respect their privacy. Under all the circumstances, his focus was properly on the classroom. Aside from alleging a conspiracy of sorts to get rid of her,8/ Ms. Harkleroad could not explain why four experienced school administrators would lie about having no recollection of talking with her about her panic disorder, though they all testified that they knew about her back problems and had at least some knowledge that she took pain medications. Ms. Harkleroad testified that two previous principals at Fruitland Park, Joan Denson and Charles McDaniel, had been aware of and made accommodations for her panic disorder. She called neither of these former principals as witnesses to corroborate her version of events. The failure to corroborate her testimony was a theme of Ms. Harkleroad's overall presentation. She offered no documentary evidence regarding her medical condition. None of her physicians were called to testify. No fellow employees, friends or neighbors were called to testify that Ms. Harkleroad had discussed her panic disorder with them. Ms. Harkleroad testified that her students and their parents loved her as a teacher, but she called none of them to testify. Ms. Harkleroad's only supportive witness, teacher Norma Jean Miller, had not worked with Ms. Harkleroad for several years and only knew her as a literacy coach, not a classroom teacher. Ms. Miller knew of Ms. Harkleroad's back problems, but said nothing about a panic disorder. In the absence of corroborating evidence, it strains credulity beyond all reason to accept the sole word of Ms. Harkleroad that Dr. DeJarlais decided to get rid of her because of her drug use, realized that Ms. Harkleroad's panic disorder was a means to insure that she failed her evaluations, then apparently recruited the administration of another school to complete the process.9/ Because there is no evidence beyond Ms. Harkleroad's less than credible testimony to establish that the evaluation process was conducted in bad faith, it is found that the administrators at Fruitland Park and Beverly Shore judged Ms. Harkleroad on the merits of her teaching performance and graded that performance accordingly. Ms. Harkleroad complains that the criteria used in the evaluations were vague to the point of opacity, and did not take into account that different teachers may have different approaches to their work. She believes that some of the standard rules for classroom instruction are "ridiculous." When Ms. Rogers told her that she should make the children raise their hands and be called on before speaking in class, she airily dismissed the criticism as a "philosophical difference." Though the specific problems with Ms. Harkleroad's classroom performance were eminently correctible, her obstinacy and/or obtuseness in rejecting pointed advice from her superiors made it clear that she was highly unlikely ever to correct her performance deficiencies. The evidence established that the process followed by School Board personnel in evaluating Ms. Harkleroad's performance before and during her probationary period followed the letter of the IPPAS and the CBA, including the NEAT procedure set forth in Section 12 of Article XI of the CBA. The criteria and forms used to evaluate her performance were taken directly from the IPPAS Handbook. However, even though all procedures were correctly followed in the evaluation process, the School Board failed to establish grounds for terminating Ms. Harkleroad's employment pursuant to Section 1012.34(3), Florida Statutes, because it failed to offer evidence, apart from the anecdotal reports of the evaluators, that Ms. Harkleroad's teaching performance adversely affected the academic performance of the students assigned to her classroom.10/ The assessment procedure is to be "primarily based on the performance of students," and the absence of data such as FCAT scores or other objective comparators renders the School Board's case insufficient under section 1012.34, Florida Statutes.11/ The issue then becomes whether the School Board has established sufficient grounds for "just cause" termination pursuant to section 1012.33(1), Florida Statutes. On the sole statutory ground available under the evidence of this case, incompetency, the School Board has met its burden and justified its decision to terminate Respondent's employment. The evidence produced at the hearing demonstrated that the School Board had just cause to terminate the employment of Ms. Harkleroad for incompetency.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order terminating Respondent's professional service contract and dismissing Respondent on the ground of incompetency. DONE AND ENTERED this 24th day of June, 2011, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of June, 2011.
The Issue Whether Respondent should be dismissed from her employment as a teacher in the Orange County Public Schools based on charges of incompetency and gross insubordination, as set forth in the letter of L. Linton Deck, Jr., dated August 16, 1977.
Findings Of Fact Respondent Ethel R. Jones has been an elementary school teacher for twelve years. She taught a year in Georgia before obtaining her degree in commercial education at Bethune-Cookman College at Daytona Beach, Florida, in 1960. After teaching for one year at Hungerford Elementary School in Eatonville, Orange County, Florida, in 1963, she pursued further studies and received her certification in elementary education. After teaching several years in various Orange County and Highlands County public schools, she became employed at Ocoee Elementary School, Ocoee, Florida, in 1970 and taught there for seven years through the 1976-77 school year. She was on annual contract for the first four years and then was granted a continuing contract the following year. She taught a sixth-grade class her first year at Ocoee and then became a fourth-grade teacher until the 1976-77 year when she again instructed a class of approximately 31 sixth-grade pupils. (Testimony of Respondent) Respondent served under three principals at Ocoee from 1972 to 1977. School records reflect that from 1973 two of the principals each rendered two annual performance reports on respondent termed "Assessment of Instruction." During the first year of each of these periods, the principals noted that respondent needed improvement in maintaining good rapport with students, parents and co-workers. During the second year of each period, each principal rated the respondent satisfactory in all respects. The third principal, Maxie Cinnamon, assumed her duties at Ocoee during the 1976-77 school year. (Petitioner's Composite Exhibit 1) During the first month of the school year, Principal Cinnamon received approximately twelve-complaints about the respondent from parents of children in her class. Most of these complaints dealt with apprehensions concerning respondent's teaching ability based on her prior performance with fourth-grade students. As a result, Cinnamon visited the respondent's classroom on September 9, 1976, and observed class instruction for several hours. She noted a number of deficiencies in the quality of respondent's teaching. These included unfamiliarity with the definitions of common words, inadequate preparation and lesson plans, inappropriate grouping of students and poor communication with students. These observations were set forth in great detail in a written document, dated September 14, 1976, which was provided to respondent as recommendations for improvement. Additionally, an unofficial "Assessment of Instruction" was rendered by the principal that indicated need for improvement in various areas. (Testimony of Cinnamon, Petitioner's Composite Exhibits 1, 7) During the course of the school year, the principal continued to receive complaints from parents and requests that their children be transferred from respondent's class. These complaints included reports that respondent was an inadequate teacher and that her disciplinary methods were inappropriate. In addition, no improvement in the previously-noted areas of deficiency had been observed by the principal. A number of conferences between Cinnamon and the respondent transpired in the fall of 1976 in an attempt to resolve these continuing problems, but achieved little or no success. Cinnamon directed a number of memorandums to respondent pointing out problem areas and suggesting remedial steps. She also suggested special courses and seminars that respondent could attend to improve her classroom instruction and to achieve a better relationship with parents and students. The respondent referred students to the principal's office on disciplinary matters some 35 times during the school year. For the most part, these referrals involved male students who were low achievers and either disrupted the classroom or failed to complete lesson assignments. (Testimony of Cinnamon, Respondent, Petitioner's Exhibits 8,9, 11-14) In December, 1976, Principal Cinnamon requested the Professional Practice Council of the State Department of Education to make a professional reviewer available to observe respondent's classroom performance and provide any necessary suggestions or recommendations for improvement. Thereafter, on January 31 and February 1, 1977, Mrs. Gretchen M. Olcott, a classroom teacher from Pinellas County, was sent to Ocoee Elementary School and conducted a "remediation review" concerning respondent. She rendered a report of her observations which was furnished to the respondent on March 11, 1977. The report contained many critical remarks concerning the quality of respondent's teaching ability and included detailed recommendations and suggestions for improvement. Most of Olcott's observations paralleled closely the previous deficiencies noted by Cinnamon and dealt primarily with inadequate lesson plans, lack of organization, poor student behavior patterns, lack of effective use of teaching materials and equipment, and the need to establish clear objectives and long-range goals. Also on March 11, Cinnamon wrote a letter to the respondent again listing her deficiencies and providing recommendations in that regard. The letter informed the respondent that unless she showed substantial improvement in all the noted areas by May 1, 1977, it would be necessary that she be recommended for dismissal to the Superintendent of the Orange County Schools. (Testimony of Cinnamon, Petitioner's Exhibits 3-5) During the ensuing weeks, Cinnamon was of the opinion that respondent had not materially improved her shortcomings despite efforts to assist her. At a conference in March, she told respondent that if she made no substantial improvement by May 23, she would recommend dismissal. She also requested that another reviewer be provided by the Professional Practices Council. Mr. Richard Svirskas visited respondent's classroom from May 11 to 13, 1977, for the Professional Practices Council. His report was similar to that of the previous reviewer and it concluded that respondent was far below average in ability in comparison with the majority of teachers known to the reviewer. (Testimony of Cinnamon, Petitioner's Exhibit 6) As a result of the reviewers' reports and respondent's failure to show improvement, Principal Cinnamon, on June 7, 1977, recommended to the Superintendent of Orange County public schools that she be dismissed from employment. Based on this recommendation, the Superintendent, by letter of August 16, 1977, charged the respondent with 14 areas of incompetency and three instances of gross insubordination. On August 18, 1977, the Superintendent recommended to the School Board of Orange County that respondent be suspended without pay pending a hearing on the charges if requested. The school board approved the recommendation and suspended the respondent without pay. Respondent thereafter requested a hearing in the matter. (Testimony of Cinnamon, Case File) Respondent testified as a witness and maintained that she had received no support during the year from the school administration and that she could not please Principal Cinnamon in any respect. She feels that she was the victim of a conspiracy between Cinnamon and parents of her students, and that the independent reviewers sent to assess her classroom performance were "against" her because they had met with Cinnamon in private during their visit. The respondent further implied that Cinnamon had a dislike for her because she was the only black teacher in the intermediate level. No black students were enrolled at Ocoee Elementary School during the 1976-77 school year, but there were five black teachers including the respondent. The respondent further claimed that she had done her utmost to follow the recommendations for improvement made to her by Cinnamon and the reviewers, but that she received no assistance from the administration in this regard. Further, she claimed that she was unable to enroll in certain reading, student discipline, and teacher effectiveness courses for various reasons; however, she did take a mathematics course at her own expense and attended several seminars. Although Cinnamon had testified that she had instructed respondent not to set up learning centers in her classroom because of her lack of organizational ability, the respondent denied that she was given such instructions. She testified that she established this system of instruction because Cinnamon had recommended it to her. She also denied that she had placed children in the halls for disciplinary reasons, or deliberately omitted to teach reading and math on each school day, contrary to instructions, as claimed by Cinnamon. (Testimony of Jones, Cinnamon) Based on the evidence presented at the hearing, it is found that during the 1976-77 school year: Respondent failed to make adequate plans and set definite objectives for her class- room instruction. Respondent failed to provide learning situations consistent with students' abilities. Respondent failed to exhibit adequate command of the subject matter that she taught. Respondent failed to communicate clearly and effectively with the students. Respondent failed to control the class so that a positive learning environment was created and maintained. Respondent failed to adequately pursue her professional growth and to seek ways of correcting identified deficiencies. It is further found that there is insufficient evidence to establish that the respondent committed the following alleged acts of gross insubordination: Suspended children from class by placing them in the hall and otherwise leaving them unsupervised after being specifically told not to do so. Failed to teach reading and math on each school day as specifically instructed to do. Failed and refused to maintain and utilize a plan book as instructed by the principal. It is further found that insufficient evidence was presented to establish that the respondent was a victim of a conspiracy by the principal of Ocoee Elementary School or anyone else, or that any racial discrimination was practiced against her.
Recommendation That respondent Ethel R. Jones be dismissed from employment by the School Board of Orange County, Florida, for incompetency, pursuant to Section 231.36(6), Florida Statutes. Done and Entered this 5th day of December, 1977, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Joseph W. DuRocher, Esquire 326 North Fern Creek Avenue Orlando, Florida 32803 Howard W. Cooper, Esquire 101 South Lake Avenue Orlando, Florida 32801 John W. Bowen, Esquire 308 North Magnolia Avenue Orlando, Florida 32801
Findings Of Fact At all times material hereto, Respondent was the holder of a Rank III teacher's certificate, and was under continuing contract as a teacher with the Citrus County School Board. Respondent was assigned as a teacher to Crystal River Middle School for the 1978-1979 school year. Respondent was informed that all instructional personnel were to report to Crystal River Middle School on August 22, 1978. Respondent failed to report on August 22, 1978, and, in fact, has not communicated directly with any representative of the Citrus County School Board as of the date of the hearing in this cause. Respondent did cause a letter to be forwarded to the Principal of Crystal River Middle School, which letter was written on May 24, 1978, indicating that he had experienced some difficulty with her health, and was unable to advise Petitioner as to her future plans. At no time after the end of the 1977-1978 school year has Respondent requested or been granted a leave of absence. Representatives of Petitioner have attempted unsuccessfully on numerous occasions to contact Respondent to discuss her absence. These attempts have been to no avail, and Respondent's continued absence remains unexplained. Citrus County School Board Policy No. 6GX9-3.30(7)(h) provides as follows: Any member of the instructional staff who is willfully absent from duty without leave shall forfeit compensation for the time of such absence and his contract shall be subject to cancellation by the Board according to Florida Statute.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered by the Citrus County School Board cancelling the continuing contract of Respondent, DeLoriss Fort, and dismissing her as an instructional employee of the Citrus County School Board. RECOMMEND this 24th day of April, 1979, in Tallahassee, Florida. WILLIAM E. WILLIAMS Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: J. Pattinson, Esquire P.O. Box 1506 Crystal River, Florida 32629 Mrs. DeLoriss Fort P.O. Box 492 Wildwood, Florida 32785 Thomas Skidmore, Esquire P.O. Drawer D Wildwood, Florida 32785
The Issue The issue is whether Juan Jiminez should be assigned to J.R.E. Lee Opportunity School-South?
Findings Of Fact Juan is an 8th grade student at the Citrus Grove Middle School in Dade County, Florida. According to the school records, Juan has been involved in a number of instances of misconduct. On January 12, 1988, he received a referral to the school office for generally disruptive conduct, defiance of school authority, and excessive tardiness. On January 14, 1988, he received another referral for general disruptive conduct, and received in-school suspension. On March 9, 1988, he was involved in a fight, was suspended from the school grounds, and a letter concerning the matter was written to his parents. After he returned to school, on March 21, 1988, he again received a referral for disruptive behavior, followed by another suspension on April 18, 1988, for generally disruptive conduct and defiance of school authority, for which he received an in-school suspension. On May 2, 1988, he received a referral for cutting classes, which resulted in a conference with his parents. He received another referral on May 6, 1988, for general disruptive conduct and excessive tardiness, for which he received an in-school suspension. As the result of his poor performance during the 1987-88 school year, at the beginning of the 1988-9 school year in September of 1988, Juan was selected for participation in a drop-out prevention program, known in the Dade County schools as the Student At Risk Program (SARP). As a result of, the referral, a multi-disciplinary child study team considered his record. It was recommended to Juan's mother that Juan be placed in an opportunity school, but she resisted the suggestion, and the school's administrators agreed to continue the placement at Citrus Grove Middle School while Juan participated in the SARP program. In that program, Juan would be in small classes (usually 18-20) students in order to provide him additional attention. The school and the parents have been working, to some extent, at cross purposes. The parents regard Juan as a good child because he was not a gang member. The school was not concerned because they thought Juan was a member of a gang, but because of his disinterest in his subjects, and his cutting classes, being tardy, or acting out in class which inhibited not only his learning, but that of other students in the class. Even in the SARP program, Juan's situation did not improve a great deal. On November 15, 1988, he received another disciplinary referral for general disruptive conduct, for which he received a reprimand. On November 23, 1988 he received another referral for fighting, and he was suspended from the school grounds. On January 25, 1989, he received a referral to the administration from his reading teacher in the drop-out prevention program, Ms. Jane Liberman. Juan and two friends had come in late, been disruptive in class, and disturbed other students. He was reprimanded and given detention. Juan's excessive absences resulted in a home visit by W. Chester on March 8, 1989. The school administrators hoped for behavioral improvement following the visit, but Juan's behavior did not improve. Juan received at least three more disciplinary referrals that year for disruptive conduct, defiance of school authority, and for cutting class. Juan's disruptive behavior continued in the 1989-90 school year. On September 21, 1989, he received a disciplinary referral from Ms. Sonia Alcazar, his math teacher, for arriving late, being disruptive in class, using foul language, and making fun of the teacher. September 21, 1989, was only his fourth day in math class. He had come to school on September 5, 1989, but then had cut class until September 19, 1989. He attended on the 19th, 20th, and 21st, when the disciplinary referral occurred. Juan needs the increased structure and discipline that is available for students disinterested in education and which is offered at an opportunity school. That program should assist him academically. His current pattern of conduct is a substantial disruption which inhibits other students in his classes at Citrus Grove Middle School from taking advantage of instruction.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the assignment of Juan Jiminez to the J.R.E. Lee Opportunity School-South be upheld. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 23rd day of March, 1990. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of March, 1990. COPIES FURNISHED: Frank R. Harder, Esquire 2780 Galloway Road, Suite 100 Twin Oaks Building Miami, Florida 33165 Gladys Jiminez 1512 Northwest 25th Avenue Miami, Florida 33125 Dr. Joseph A. Fernandez Superintendent of Schools Dade County Public Schools School Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132 Honorable Betty Castor Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32399-0400 Sydney H. McKenzie, General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400
The Issue The issue presented is whether a rule establishing high school attendance zones is an invalid exercise of delegated legislative authority within the meaning of Subsection 120.52(8), Florida Statutes (2004).
Findings Of Fact Respondent is the School Board of Orange County, Florida (School Board). The School Board is an educational unit and an agency defined in Subsections 120.52(1)(b)7. and (6), Florida Statutes (2004). Respondent is the governing body of the Orange County School District (School District or District). In relevant part, Respondent has exclusive constitutional authority to "operate, control and supervise all free public schools" within the District pursuant to Article IX, Section 4(b) of the Florida Constitution (2004) (Florida Constitution). On January 11, 2005, Respondent adopted a rule establishing attendance zones for four high schools in western Orange County, Florida (Orange County). The rule modifies previously existing attendance zones for Apopka High School (Apopka), Olympia High School (Olympia), and West Orange High School (West Orange); and establishes a new attendance zone for Ocoee High School (the relief school). It is undisputed that the establishment and modification of school attendance zones involves rulemaking. The parties agree that the adoption of the relevant school attendance zones satisfies the definition of a rule in Subsection 120.52(15), Florida Statutes (2004). Petitioners challenge the rule as an invalid exercise of delegated legislative authority defined in Subsection 120.52(8), Florida Statutes (2004). In relevant part, Petitioners allege that Respondent violated Subsections 120.52(8)(a) and (e), Florida Statutes (2004), by materially failing to follow applicable rulemaking requirements and by adopting a rule in an arbitrary and capricious manner. Before proceeding to the merits of the rule challenge, it is important from a jurisdictional and contextual perspective to note that this Final Order does not reach any matter that falls within the scope of Respondent's exercise of constitutional authority. For reasons discussed in the Conclusions of Law, Respondent has exclusive constitutional authority to operate, control, and supervise public schools within the District (local control). The Legislature has constitutional authority over matters of statewide concern.2 The Legislature cannot statutorily delegate authority that is constitutionally vested in Respondent.3 For purposes of the rule challenge, the exercise of constitutional authority by Respondent is not the exercise of delegated legislative authority within the meaning of Subsections 120.56(1) and (3), Florida Statutes (2004). As a factual matter, the challenged rule involves local control of only those public schools within the District that are affected by the rule. The school attendance zones do not have application beyond the boundaries of the School District. The school attendance zones do not benefit or otherwise affect citizens of the state outside the District.4 The trier of fact has avoided findings concerning matters of local control, including the merits of the school attendance zones, the wisdom of the collective decision of the School Board, and the motives and intent of the individual members of the School Board. Jurisdiction to determine the invalidity of a rule involving matters of local control is the exclusive province of the courts.5 Legislative authority over matters of statewide concern includes the authority to ensure that local school attendance zones are drawn in a manner that complies with uniform requirements for fairness and procedural correctness. The Legislature delegated that authority to Respondent when it enacted Subsections 1001.41(6) and 1001.42(4)(a), Florida Statutes (2004). The trier of fact has made only those findings needed to determine whether the exercise of delegated legislative authority is invalid within the meaning of Subsections 120.52(8) and 120.56(1), Florida Statutes (2004). The challenged rule affects the substantial interests of Petitioners within the meaning of Subsections 120.56(1) and (3), Florida Statutes (2004). Petitioner, Citrus Oaks Homeowners Association, Inc. (Citrus Oaks), is a Florida nonprofit corporation, organized as a homeowners' association pursuant to Chapters 617 and 720, Florida Statutes (2004). The members of Citrus Oaks own residences in the Citrus Oaks subdivision. A substantial number of the members of Citrus Oaks are substantially affected by the challenged rule. A substantial number of members have children who are students in a public school affected by the challenged rule. The challenged rule reassigns many of those students from the Olympia school zone to the West Orange school zone. The subject matter of the rule is within the general scope of interest and activity of Citrus Oaks. The relief requested is of a type that is appropriate for Citrus Oaks to receive on behalf of its members. Citrus Oaks has represented its members in previous litigation, although this is the first administrative proceeding for Citrus Oaks. More than a substantial majority of the members of Citrus Oaks expressly authorized Citrus Oaks to undertake this proceeding for their benefit. Petitioner, Joy Hutchison, is the mother of Jamie Petkov and Kirsta Petkov. Mrs. Hutchinson and her children reside in Citrus Oaks in a neighborhood identified in the record as Gotha, Florida. At the time of the administrative hearing, Jamie Petkov and Kirsta Petkov attended Gotha Middle School (Gotha). Jamie Petkov and Kirsta Petkov would have attended Olympia in the absence of the challenged rule. The challenged rule changes the attendance zone of each student to West Orange. The challenged rule splits feeder patterns intended to ensure that students in adjacent neighborhoods stay together through progressive grades. The challenged rule assigns some students from Gotha to the Olympia school zone and assigns other Gotha students to the West Orange school zone. Differences in West Orange and Olympia do not affect the substantial interests of Petitioners. The two schools offer comparable, but not identical, educational programs. Each school is accredited by the Southern Association of Accreditation. Each is a comprehensive high school with a full range of academic opportunities for students and Advanced Placement (AP) classes for college credit. Each school offers comparable student-teacher ratios, teachers with advanced degrees, and extracurricular activities. West Orange and Olympia are not identical. Homebuyers generally prefer Olympia to West Orange. Area realtors emphasize location within the Olympia school zone as a marketing feature for homes. Prospective homebuyers generally request homes within the Olympia school zone. Approximately 100 students residing outside the Olympia attendance zone have falsified their domicile information in order to enroll in Olympia. Disparities between West Orange and Olympia do not deny Petitioners a uniform system of education. A uniform system of education does not require uniformity among individual schools in physical plant, curricula, and educational programs.6 The rule development process that culminated in the challenged rule began sometime in March 2004. Three staff members in the District office of the Director of Pupil Assignment (the Director) were responsible for recommending school attendance zones to the Superintendent and his cabinet. The Director and her staff pursued negotiated rulemaking within the meaning of Subsection 120.54(2)(d), Florida Statutes (2004). In March 2004, the staff began to establish relevant time lines. In April and May of the same year, staff met with principals of schools potentially subject to rezoning. Staff requested each school principal to submit the names of three individuals to serve on a school rezoning committee to work with the staff. Each school rezoning committee was comprised of the "PTSA president, SAC chairperson, and another member." Each school rezoning committee was a negotiating committee within the meaning of Subsection 120.54(2)(d), Florida Statutes (2004). Each school rezoning committee was a balanced committee of interested persons who drafted complex rules in anticipation of public opposition. Each committee worked in good faith to develop group consensus for a mutually acceptable proposed rule. The Director and her staff provided packages to each school rezoning committee. The packages included information concerning time lines; rezoning criteria; maps; demographic information about neighborhoods; transfer policies; transportation; and school data such as demographics, enrollment, and original design capacity. Each committee developed proposed attendance zones based on eight rezoning criteria prescribed in the packages. The eight rezoning criteria are identified in the record as: operate under the current desegregation order; consider future planning and growth of attendance zones; equally distribute population to balance facility use of affected schools; consider reducing student transportation distances, when necessary; maximize the number of students walking to school; maximize the school feeder pattern structure; minimize the disruption of residential areas; and ensure demographic balance, when possible. Each committee was required to give overriding importance to the first three of the eight criteria. The school rezoning committees produced approximately 11 initial proposals. The Director and her staff scrutinize various proposals and received citizen input during three public meetings on August 25 and October 5 and 25, 2004. Each public meeting was a rule development workshop within the meaning of Subsection 120.54(2)(c), Florida Statutes (2004). Approximately 600 members of the public attended the first workshop conducted on August 25, 2004. Many members of the public spoke at the meeting or provided written input concerning the various proposals. Staff and committee members considered the public input and scrutinized the proposals. Staff reduced the number of proposals to seven, identified in the record as options A through G, and conducted a second workshop on October 5, 2004. Between 400 and 500 members of the public attended the second workshop. As the meeting "wore on," the Director concluded that no consensus on a single proposal was attainable at that time and adjourned the meeting. After the second workshop on October 5, 2004, the staff developed one recommendation for rezoning and two best options identified in the record as the recommendation, option A, and option F. Staff presented the recommendation to the Superintendent at a cabinet meeting, but also included, for informational purposes, the two options. Attendees at the cabinet meeting included "area superintendents," the chief financial officer, the chief facilities officer, the chief operations officer, and the deputy superintendent for curriculum instruction. The Superintendent and his staff vetted the recommendation before the recommendation was presented to the public as the "Staff Proposal" during a third workshop conducted on October 26, 2004. Approximately 500 members of the public attended the third workshop. The Director presented the Staff Proposal and received public input. The Staff Proposal reassigns 435 students from Apopka to the relief school; 136 students from Olympia to West Orange; and 2,315 students from West Orange to the relief school. The Staff Proposal does not rezone students in Citrus Oaks from Olympia to West Orange. There was no discussion at the third workshop of rezoning options other than the Staff Proposal. It is undisputed that Respondent complied with applicable rulemaking procedures from the initiation of the rulemaking process, through the third workshop conducted on October 25, 2004, when staff presented the Staff Proposal. The alleged violations of applicable rulemaking procedures occurred from October 26, 2004, through January 11, 2005. During that interval, Respondent amended the Staff Proposal and adopted the challenged rule. From October 26 through November 29, 2004, Mrs. Karen Ardaman, a member of the School Board, conducted several non- public conferences with the Director and her staff. The non- public conferences were workshops conducted for the purpose of rule development within the meaning of Subsection 120.54(2)(c), Florida Statutes (2004) (private workshops). The private workshops did not involve negotiated rulemaking within the meaning of Subsection 120.54(2)(d), Florida Statutes (2004). The private workshops were conducted between a member of the School Board and District staff for the official business of rule development. Mrs. Ardaman stated to the Director and her staff that the purpose of the private workshops was to "tweak" the Staff Proposal. Mrs. Ardaman expressed a specific goal of rezoning at least 300 students from Olympia and an optimal goal of reducing Olympia enrollment to design capacity, if possible. The workshops were extensive and produced four "work-up" proposals identified in the record as Petitioner's Exhibits 20 through 23. One of the work-up proposals was adopted by Respondent as the challenged rule on January 11, 2005.7 Each private workshop included "what-if" questions from Mrs. Ardaman to staff members intended to scrutinize alternative school rezoning scenarios. Each scenario involved specific neighborhoods, the demographic breakdown for the neighborhood, the actual number of students, and the number of students to be reassigned. One work-up extended the West Orange zone to an area north of State Road 50. Another work-up reduced the Apopka enrollment from 4,265 to 3,830, or approximately 650 students over design capacity of 3,187. The private workshops included conversations regarding the use of permanent modular classrooms to relieve overcrowding at Olympia. Mrs. Ardaman requested staff to explore the possibility of adding permanent modular classrooms. On November 30, 2004, the Superintendent published in an area newspaper of general circulation a Notice of School Board Meeting scheduled for December 6, 2004. In relevant part, the notice stated that the purpose of the meeting is to discuss "West Orange Apopka Relief School Rezoning." The public meeting conducted on December 6, 2004, was a rule development workshop within the meaning of Subsection 120.54(2), Florida Statutes (2004). The School Board considered the Staff Proposal and the Ardaman alternative (the alternative proposal). The alternative proposal was circulated to the other members of the School Board. Two members left the workshop early. The remaining five members, including Mrs. Ardaman, reached consensus to reject the Staff Proposal and to advertise the alternative proposal as the proposed rule. On December 11, 2004, the Superintendent published a Notice of Proposed Action on High School Attendance Zones in The Orlando Sentinel. The public notice advertised a public hearing scheduled for January 11, 2005, to adopt the proposed rule. That portion of the public notice entitled, "Summary of Proposal" states, in relevant part, that the proposed rule reassigns students residing in Citrus Oaks from Olympia to West Orange. The meeting conducted on January 11, 2005, was a public hearing within the meaning of Subsection 120.54(3)(c)1., Florida Statutes (2004). Members of the School Board adopted the proposed rule by a vote of four to three. Mrs. Ardaman voted with the majority. The private rule development workshops between a school board member and District staff failed to follow applicable rulemaking procedures prescribed in Subsections 120.54(2)(a) and (c), Florida Statutes (2004). Respondent provided no public notice of the private workshops. Respondent failed to follow applicable rulemaking procedures prescribed in Subsections 120.54(2)(a) and (c), Florida Statutes (2004), for the rule development workshop that Respondent conducted in public on December 6, 2004. The notice published on November 30, 2004, was less than 14 days before December 6, 2004. The published notice did not include an explanation of the purpose and effect of either the Staff Proposal or the alternative proposal. The published notice did not cite the specific legal authority for either proposal and did not include the preliminary text of each proposal. Respondent failed to comply with other rulemaking procedures prescribed in Subsection 120.54(2)(c), Florida Statutes (2004). Respondent precluded public participation during the rule development workshop on December 6, 2004. Therefore, the persons responsible for preparing the respective proposals did not explain either proposal to the public and were not available to answer questions from the public or to respond to public comments. The failure to comply with applicable rulemaking procedures is presumed to be material within the meaning of Subsection 120.52(8)(a), Florida Statutes (2004). § 120.56(1)(c), Fla. Stat. (2004). The burden of proof shifts to Respondent to rebut the presumption. Id. Respondent did not rebut the presumption with evidence that the fairness of the proceeding was not impaired or that the proceeding was procedurally correct. Respondent did not show that it cured the materiality of the failure to comply with applicable rulemaking procedures (procedural errors) by satisfying other rulemaking requirements such as those in Subsection 120.54(3)(e), Florida Statutes (2004). After December 11, 2004, when Respondent published the notice of proposed agency action to adopt the proposed rule, Respondent did not show that it filed a certified copy of the proposed rule with the agency head, together with other relevant materials, for public inspection. For reasons stated hereinafter, the public hearing conducted on January 11, 2005, did not cure the materiality of prior procedural errors. A preponderance of evidence shows the failure to comply with applicable rulemaking procedures was material within the meaning of Subsection 120.52(8)(a), Florida Statutes (2004). The procedural errors impaired the fairness and procedural correctness of the development and adoption of the challenged rule. In relevant part, the failure to provide public notice of the private workshops deprived members of the School Board and the public from equal participation, an opportunity to scrutinize various scenarios, and an opportunity for input and comment. The private workshops circumvented six months of prior negotiated rulemaking and public workshops between District staff, rezoning committees, the public, and the Superintendent and his cabinet; and reduced the public process to a shell into which non-public decisions were later poured. The public notice advertised on November 30, 2004, was inadequate. The notice deprived interested members of the School Board and the public of prior notice that the scope of the workshop on December 6, 2004, would include rezoning proposals not addressed in previous public workshops. The procedural errors materially changed the Staff Proposal and materially affected some students not assigned to Olympia in the Staff Proposal. For example, the Staff Proposal decreases Olympia enrollment, through reassignment of students to West Orange, by 136 students; or approximately four percent of the 3,337 students enrolled in Olympia on October 15, 2004; and approximately three percent of the 3,410 students projected to be enrolled in Olympia in the next school year (the 2005-2006 school year). The challenged rule decreases Olympia enrollment by 285 students. That is more than twice the decrease in enrollment in the Staff Proposal. The challenged rule decreases enrollment at Olympia by approximately eight percent of the 3,332 students enrolled in Olympia on November 15, 2004; and approximately eight percent of the projected enrollment of 3,410 for the following school year. The procedural errors materially impact the original design capacities at Olympia and West Orange. The original design capacities at the respective schools are 2,781 and 3,195 students. The enrollment at Olympia on October 15, 2004, in the amount of 3,337 students, exceeded original design capacity by 556 students (overcrowding), or approximately 19.9 percent. The enrollment at West Orange on the same date, in the amount of 4,320 students, exceeded original design capacity by 1,035 students, or approximately 32.4 percent. The Staff Proposal reduced overcrowding at Olympia to 420 students, or approximately 15.1 percent of original design capacity; and added 136 students to West Orange enrollment, or approximately 4.2 percent of original design capacity at West Orange. Based on enrollment on October 15, 2004, the challenged rule decreases overcrowding at Olympia to 271 students, or approximately 9.7 percent of original design capacity; and adds 285 students to the West Orange enrollment, or approximately 8.9 percent of original design capacity.8 The materiality of the procedural errors is exacerbated by the scheduled loss of the Ninth Grade Center at West Orange in the 2005-2006 school year. That event will reduce actual capacity at West Orange from the original design of 3,195 students to 1,993 students. This is a capacity loss of 1,202 students. The challenged rule adds 285 students to West Orange enrollment next year, which is an increase of approximately 14.3 percent over actual capacity. The Staff Proposal adds 136 students to West Orange enrollment, which is an increase of approximately 6.8 percent over actual capacity. The Staff Proposal and challenged rule leave West Orange with 2,236 and 2,385 students, respectively, or approximately 243 and 392 students over next year's actual capacity of 1,993 students. Overcrowding at West Orange from the Staff Proposal is approximately 12.19 percent of actual capacity next year, and overcrowding from the challenged rule is approximately 19.66 percent of actual capacity. The Staff Proposal reduces overcrowding at Olympia next year from 19.99 percent to 15.1 percent over capacity and leaves overcrowding at West Orange over 12.19 percent. The challenged rule reduces overcrowding next year at Olympia from 19.99 percent to approximately 9.7 percent and leaves overcrowding at West Orange at 19.66 percent over actual capacity. The procedural errors facilitated a challenged rule that departs materially from recommendations by the Olympia rezoning committee. The rezoning committee recommended no change at the school. In relevant part, the committee wrote: While we recognize that Olympia remains overcrowded, aggressive, proactive measures should be taken to address overcrowding of Olympia in other ways. Specifically those measures include: Exploring the possibility of adding "permanent" modular structures; and Increasing efforts to remove students who attend Olympia illegally claiming an address in our zone but who actually live out of zone. West Orange is left with room for the growth they expect. Petitioner's Exhibit 14 (P-14). The Orange County Commission, in a decision entered on July 14, 1998, prohibited "portable" classrooms on the Olympia campus in the original design of the school. The decision, however, does not expressly prohibit "permanent" modular classroom structures. Sufficient property exists on the Olympia campus to accommodate permanent modular classroom structures. The procedural errors that occurred in adopting the challenged rule materially affected students in Citrus Oaks who are reassigned to West Orange. The challenged rule will interrupt feeder patterns at Gotha by reassigning some Gotha students to West Orange and allowing others to attend Olympia. The preceding findings concerning variations between the Staff Proposal and the challenged rule are made solely for examining the materiality of procedural errors. The findings do not examine the merits of the challenged rule or the wisdom of the decision of the School Board. Respondent maintains a stated agency policy that prohibits an individual member of the School Board from participating in any matter pending before the Board in which the member has a conflict of interest. In relevant part, the written policy provides: Board members are expected to avoid conflicts of interest involving any matter pending before the board. A conflict of interest is deemed to exist when the member is confronted with an issue in which the member has a personal . . . interest or . . . circumstance that could render the member unable to devote complete loyalty and singleness of purpose to the public interest. . . . The accountability to the whole district supersedes: * * * c. Conflicts based upon the personal interest of a board member who is a parent of a student in the district. P-6, at 001945. Mrs. Ardaman is a member of the School Board who is a parent of three students in the Olympia school zone. When District staff presented the Staff Proposal, one student was a senior at Olympia, another was a sophomore at Olympia, and the youngest was in the sixth grade at Gotha. Mrs. Ardaman did not have a conflict of interest concerning the Staff Proposal, option A, or option F. None of those proposals reassigned any of the Ardaman children from Olympia to West Orange. A deemed conflict of interest existed for Mrs. Ardaman during: the private workshops she conducted with District staff for the purpose of rule development; the public deliberations at the meeting conducted on December 6, 2004; and the vote of the School Board members that took place at the public hearing conducted on January 11, 2005. Courts have recognized that each concerned parent has an interest in his or her children, the educational program in which each is enrolled, the prevention of disruption in the educational progress of each child, and any unwarranted disruption in the child's educational experience.9 Mrs. Ardaman had a judicially recognized interest in developing and adopting a rule that minimized the foregoing impacts on her children. Citrus Oaks sits on the northern boundary of Old Winter Garden Road (Winter Garden). The Ardaman children reside in a neighborhood to the south of Winter Garden. Mrs. Ardaman chose to reassign Olympia students to West Orange from three neighborhoods north of Winter Garden, including students in Citrus Oaks, and to reassign Olympia students to West Orange from only one neighborhood south of Winter Garden. The challenged rule does not achieve the optimal goal sought by Mrs. Ardaman of reducing Olympia enrollment to the original design capacity. The challenged rule could have achieved that goal by increasing the number of reassignments to West Orange from the geographic area south of Winter Garden. Mrs. Ardaman declined that option. During the non-public workshops, Mrs. Ardaman asked District staff to analyze numerous school rezoning scenarios based on reassignments from specific neighborhoods. Although the various scenarios included neighborhoods south of Winter Garden, Mrs. Ardaman did not ask staff to analyze a scenario that would have reassigned students in her neighborhood from Olympia to West Orange. Reassignment of Olympia students in the neighborhood in which Mrs. Ardaman resides would have interrupted feeder patterns for Gotha students. At the time, Mrs. Ardaman had a child in the sixth grade at Gotha. The challenged rule interrupts feeder patterns at Gotha for students residing in neighborhoods north of Winter Garden. Respondent exercised agency discretion in adopting the challenged rule in a manner that was inconsistent with officially stated agency policy. Respondent permitted a member of the School Board with a personal interest deemed to be a conflict of interest to participate in a pending matter before the School Board. The deviation from agency policy was material. The members of the School Board voted on January 11, 2005, to adopt the proposed rule by a vote of four to three. Mrs. Ardaman cast the deciding vote. Without the vote of Mrs. Ardaman, the remaining tie vote would have been insufficient to adopt the proposed rule.10 The deviation from agency policy was material for other reasons previously stated in the discussion of procedural errors and not repeated here. Respondent did not explain the deviation from officially stated agency policy. The adoption of the challenged rule was neither arbitrary nor capricious within the meaning of Subsection 120.52(8)(e), Florida Statutes (2004). The agency action is supported by logic and essential facts. Respondent did not adopt the proposed rule without thought or reason, and the proposed rule is not irrational. Between December 6, 2004, and January 11, 2005, the members of the School Board received data sheets and impact assessments for the proposed rule. The members had already received the data supporting the Staff Proposal. The members had adequate time between December 6, 2004, and January 11, 2005, to evaluate the logic, essential facts, and rationality of the proposed rule. The members of the School Board were faced with a controversial issue and a difficult decision. Reasonable individuals arguably may have decided to draw the school attendance zones differently. However, it is not appropriate for the trier of fact to substitute his judgment for that of the members of the School Board or to examine the wisdom of the decision of the School Board. Even though Respondent did not adopt the challenged rule in an arbitrary or capricious manner, the procedural errors and deviations from officially stated agency policy were material. Each impaired the fairness of the proceedings and prevented the agency action from being procedurally correct.
The Issue The issues for determination in this matter are: 1) whether the Respondent committed the violations alleged in the Notice of Specific Charges filed on March 5, 2003; and 2) if so, whether Respondent should be dismissed from her employment with the School Board of Miami-Dade County.
Findings Of Fact The Parties Petitioner, the School Board of Miami-Dade County (School Board), is responsible for operating, controlling, and supervising the free public schools in the Miami-Dade County school district and has the power to suspend and dismiss employees. Art. XI, § 4(b), Fla. Const; § 1001.32, Fla. Stat. Respondent, Debbie T. Darlington, at all material times, was employed by the School Board. Respondent is a member of the American Federation of State, County, and Municipal Employees, Local 1184 (AFSCME), and covered by a collective bargaining agreement between the School Board and AFSCME (the Contract). Respondent is now, and at all material times was, married to Ernest Myles. Her mother-in-law is Charlie Mae Myles. Neither Ernest Myles nor Charlie Mae Myles is or was at any time employed by the School Board. Respondent's Employment History with the School Board Respondent was first employed by the School Board on December 4, 1981, as an associate educator at Westview Elementary School. Respondent had a break in service from August 23, 1983 to November 1, 1993. Respondent then worked as a part-time food service worker at Westview Middle School from November 1, 1993 to January 12, 1995. Respondent had another break in service from January 12, 1995 to August 27, 1997. From August 27, 1997 to March 19, 1999, Respondent worked as a part-time food service worker at North Miami Beach Senior High School. Beginning on March 20, 1999, Respondent worked as a part-time food service worker at Sabal Palm Elementary School. At some time thereafter, Respondent entered the Food Service Manager Training Program. As part of this training program, Respondent was required to serve in a variety of school settings, including elementary, middle and high schools. In March of 2000, Respondent began her training rotation for elementary schools at Liberty City Elementary School (Liberty City). When Respondent first went to Liberty City, she was working in the capacity as a trainee in the Food Service Manager program. Respondent was under the supervision of Margaret Poole, who was then serving as the Food Service Manager for Liberty City. During Respondent's first week at Liberty City, Ms. Poole was injured on the job and did not return to Liberty City. Because Respondent was performing very well, Linda Whye, the principal at Liberty City requested that Respondent stay as temporary Food Service Manager until the completion of the school year. Respondent finished her Food Service Manager program in July 2000. After Respondent satisfactorily completed the 1999-2000 school year, Principal Whye hired Respondent to serve as the Food Service Manager at Liberty City. Respondent was assigned permanently to Liberty City as of October 19, 2000. Respondent served as the Food Service Manager at Liberty City during the 2000-2001 and 2001-2002 school years. In that capacity, Respondent supervised eight to nine employees. Her job responsibilities included the fiscal management and operation of the food services program at Liberty City. Until January of 2002, Respondent generally received satisfactory-to-excellent evaluations in the performance of her duties. Respondent was noted on occasion for failing to keep an accurate daily food record. Reports of Improprieties Sometime in January 2002, Principal Whye learned that Respondent had set off the school alarm system in the cafeteria. This incident occurred at a time after Respondent's regularly scheduled work hours. About a week after the alarm system was set off by Respondent, Samuel Woodside the head custodian at Liberty City, contacted Principal Whye regarding a break-in at Liberty City which occurred over the Martin Luther King holiday weekend. Because of the proximity in time to Respondent's setting off the alarm system, Principal Whye asked Woodside if he had noticed anything unusual going on at the cafeteria. Woodside responded that he had observed an increase in deliveries to the cafeteria, and that he had seen Respondent's husband, Ernest Myles, and Respondent's mother-in-law, Charlie Mae Myles, in the cafeteria workplace area on several occasions. Principal Whye then contacted Penny Parham, former Food Service Director of Operations for Regions I, II and III, which Region III included Liberty City. Ms. Parham currently serves as the Administrative Director for the Miami-Dade Public Schools Food and Nutrition Department. Principal Whye asked Ms. Parham if she could determine whether food or supplies were missing from the cafeteria inventory at Liberty City. In response to Principal Whye's request, Ms. Parham prepared a comparison report from one school year to the next to determine whether the amounts of food and supplies consumed at Liberty City were substantially equal. Ms. Parham's report, which was sent to Principal Whye on March 4, 2002, showed that in comparing the same period (September/October) at Liberty City in 2000 to 2001, there was a 23.6 percent increase in purchased food costs, and a 57.9 percent increase in cost of supplies, without any corresponding increase in the student population at Liberty City. Ms. Parham also reported that when costs and revenues were balanced, the food service program at Liberty City showed a 438.7 percent negative change. Ms. Parham recommended that a more detailed audit be performed to account for these increases in food services at Liberty City. Sometime in February 2002, after she had already contacted Ms. Parham, Principal Whye was contacted by Margaret Lloyd, an employee in the cafeteria who told her that some food and supplies from the cafeteria had been taken for use at the Martin Luther King parade. Principal Whye also received an anonymous note stating that she should watch what Respondent was doing in the cafeteria at Liberty City. Because the note was anonymous, Principal Whye took no specific action in regard to those allegations at that time. Margaret Lloyd later revealed that she was the author of the anonymous note. On March 4, 2002, after receiving Ms. Parham's report, and in light of the concerns raised by statements of employees, Principal Whye requested that the Miami-Dade Schools Police Department (Department) conduct an investigation to determine whether food and supplies were being removed from the Liberty City cafeteria by the Respondent and her husband. The Investigation On March 6, 2002, the Department assigned the case to Detective Norman Santana to conduct a Preliminary Personnel Investigation. On March 13, 2002, Detective Santana interviewed Principal Whye, Samuel Woodside, and Margaret Lloyd, each of whom provided written statements confirming their previous observations regarding improprieties at the Liberty City cafeteria. Also on March 13, 2002, Detective Santana contacted Julio Miranda, District Director for Investigative Audits, to advise him of the ongoing personnel investigation. Mr. Miranda was already aware of the case and stated that he would conduct an audit investigation. On March 14, 2002, Detective Santana interviewed Ms. Parham, who provided him with her report and a written statement confirming the results of her comparison review, as well as the profit and loss statement for Liberty City's food service program. On March 28, 2002, Detective Santana interviewed Susan Keye, Assistant Principal at Liberty City. Ms. Keye provided a written statement regarding an incident in the fall of 2001, when Respondent reported to Principal Whye that a freezer had broken and food had spoiled; however, there was no verification that a report of the freezer malfunctioning had been made, nor any work order showing repair of the freezer. On April 24, 2002, Detective Santana met with Mr. Miranda who stated that through the audit investigative process, no investigative research was done. Also on April 24, 2002, Detective Santana interviewed several cafeteria workers at Liberty City: Eric Curtis, Barbara Jackson, Mildred Bennett, and Dorothy Paulk. Each provided written statements. Ms. Jackson and Ms. Bennett stated that they did not observe Respondent remove any food or supplies from the Liberty City cafeteria. Mr. Curtis and Ms. Paulk each stated to Detective Santana that they had at various times observed Respondent and her husband and her mother-in-law remove items from the Liberty City cafeteria. On June 7, 2002, Detective Santana filed Preliminary Personnel Investigation Report G14335. Incorporated in Detective Santana's report were the written statements of all the above-listed persons whom he interviewed, along with the profit and loss report prepared by Ms. Parham. The Preliminary Personnel Investigation Report G14335 concluded that a violation of School Board Rule 6Gx13-4A-1.21 by Respondent was substantiated. Post Investigation Proceedings On September 26, 2002, a conference-for-the-record was conducted in order to address the findings against Respondent, set out in Preliminary Personnel Investigation Report G143335. In attendance at the conference-for-the-record were Frederic E. Conde, Executive Director; Essie S. Pace, Region Director, Region III Operations; Principal Whye; Herman Bain and Sonia Devoe, AFSCME representatives; and Respondent. The purpose of the conference for the record was to review the results of the investigation, the investigation's substantiation of Respondent's violation of School Board Rule 6Gx13-4A-1.21, and Respondent's future employment status with the School Board. At the conclusion of the conference for the record, Respondent was provided "the option of resignation, retirement and/or redirection" on or before November 8, 2002. On December 19, 2002, the School Board Superintendent sent Respondent a letter recommending her dismissal from employment with the School Board. On January 15, 2003, the School Board took action to suspend Respondent and initiate proceedings to dismiss her from employment. Respondent filed a timely notice contesting her dismissal. Notice of Specific Charges The essential factual allegations set forth in the Notice of Specific Charges as stated in paragraph 9 allege that "Respondent had removed food and supplies from the cafeteria and allowed her husband to remove food and supplies from the cafeteria for the Respondent's personal use." Three counts are set forth in the Notice of Specific Charges. Count I alleges that "Respondent's removal of food and supplies from the worksite is considered conduct unbecoming a school employee, and constitutes just cause and a sufficient basis for Respondent's dismissal, pursuant to Articles II and XI, s. 4C of the AFSCME Contract, and pursuant to s. 1022.22(1)(f)(formerly s. 230.23(5)(f)),s. 1012.40 (formerly s.447.209, Fla. Stat. (2002)." Count II alleges that "Respondent's removal of food and supplies from the work site for her own personal use is considered non-performance and deficient performance of duties and constitutes just cause and a sufficient basis for Respondent's dismissal, pursuant to Articles II and XI, s.4C of the AFSCME Contract, and pursuant to ss 1022(1)(f)(formerly s. 230.23(5)(f), s. 1012.40 (formerly s. 231.3605), and s. 447.209, Fla. Stat. (2002)." Count III alleges that "Respondent's conduct, as set forth herein, constitutes conduct that failed to bring credit upon herself or the school system and is thereby conduct that is not in compliance with School Board Rule 6Gx13-4A-1.21." School Board Rule 6Gx13-4A-1.21 provides in pertinent part, "All persons employed by the School Board of Miami-Dade County, Florida are representatives of the Miami-Dade County Public Schools. As such, they are expected to conduct themselves, both in their employment and in the community, in a manner that will reflect credit upon themselves and the school system." The Notice of Specific Charges seeks that Respondent's dismissal be sustained and that her employment with the School Board be terminated. Proof of Charges During the 2001-2002 school year, Respondent's husband, Ernest Myles, regularly was observed on the Liberty City campus, and was specifically observed in the kitchen area of the cafeteria workplace. Mr. Myles was in the kitchen area of the cafeteria on a weekly basis, at least twice a week. During the same time period, Respondent's mother-in- law, Charlie Mae Myles, was also regularly observed on the Liberty City campus, and specifically in the kitchen area of the cafeteria workplace. Mrs. Myles was not as frequently observed in the cafeteria as her son. Neither Ernest Myles nor Charlie Mae Myles was authorized to be on the Liberty City campus. Neither Ernest Myles nor Charlie Mae Myles was authorized to be in the Liberty City kitchen area of the cafeteria workplace. Samuel Woodside, the head custodian at Liberty City, observed an increase in food and supplies being delivered to the cafeteria during the 2001-2002 school year, even though the number of students at the school had not increased. Mr. Woodstock, when questioned about the cafeteria, reported this to Principal Whye, who then contacted Ms. Parham. Mr. Woodside's observations were confirmed by Ms. Parham's comparative review contained in her profit and loss report filed with Principal Whye on March 4, 2002. The increases in food and supplies at Liberty City are not explained by transfer slips or other evidence showing that significant amounts of food and supplies were transferred out of Liberty City to other schools. Similarly, the increase in food and supplies at Liberty City is not explained by evidence of spoilage. Although Respondent told Principal Whye that the freezer had broken in the fall of 2001, there is no evidence of any repairs performed on the freezer to account for missing food due to spoilage. Dorothy Paulk has worked for the School Board for more than 29 years. Ms. Paulk is affectionately known at Liberty City as "Miss Dot," and attends the same church as the Respondent. Respondent and Ms. Paulk had a good working relationship. Ms. Paulk has no animosity toward Respondent and her testimony is deemed highly credible. Ms. Paulk observed Respondent remove items from the Liberty City cafeteria and spoke to Respondent regarding her taking items from the cafeteria prior to being interviewed by Detective Santana. Ms. Paulk also observed Respondent's husband remove some oil and other supplies from the Liberty City cafeteria. Ms. Paulk also stated that other employees, including herself, had removed items from the Liberty City cafeteria. Margaret Lloyd worked in several capacities at the Liberty City cafeteria during the 2001-2002 school year. Ms. Lloyd saw Respondent's husband and mother-in-law in the kitchen area of the cafeteria on numerous occasions. Ms. Lloyd did not have a good working relationship with Respondent, and in March of 2002 was reassigned from the cafeteria to work as a teacher's aide in the Liberty City pre-school program. Ms. Lloyd no longer works for the School Board, and testified that she holds no animosity toward Respondent. Ms. Lloyd observed Respondent and her husband, Ernest Myles, remove food and supply items from the Liberty City cafeteria including meats, fruits, food containers, and wrapping paper. Ms. Lloyd's testimony was consistent with her prior statements to Principal Whye, as well as her interview and handwritten statement provided to Detective Santana on March 14, 2002, and her typewritten statement of April 25, 2002, to the audit investigator, Mr. Miranda. Ms. Lloyd's testimony is deemed credible. The value of the food and supply items removed from the Liberty City cafeteria during the 2001-2002 school year by the Respondent and her husband was not established. Progressive Discipline On February 7, 2002, Respondent received a written memorandum from Principal Whye referencing a verbal warning Respondent had received regarding Respondent's absenteeism for the pay period in February 2, 2001, and Respondent's falsification of attendance records more than one year earlier. The memorandum further admonished Respondent for failing to be on duty and not notifying Ms. Keye. On March 7, 2002, Principal Whye issued a written memorandum from Principal Whye referencing a verbal warning Respondent had received for inappropriate behavior with Ms. Lloyd and another cafeteria worker. Both of these warnings to Respondent occurred after Principal Whye was aware of the reported improprieties in the cafeteria.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order sustaining the discipline of Debbie T. Darlington for just cause, and imposing a one-year suspension without pay and a demotion to food service worker. DONE AND ENTERED this 24th day of November, 2003, in Tallahassee, Leon County, Florida. S RICHARD A. HIXSON 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 24th day of November, 2003. COPIES FURNISHED: Denise Wallace, Esquire Miami-Dade County Public Schools 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132 Manny Anon, Jr., Esquire AFSCME Council 79 99 Northwest 183rd Street, Suite 224 North Miami, Florida 33169 Honorable Jim Horne Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Daniel J. Woodring, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Merrett R. Stierhelm, Superintendent Miami-Dade County Public Schools 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132
The Issue Whether Respondent, Robert P. Sulcer, as principal of Riverland Elementary School, is guilty of "incompetency, and/or misconduct in office and/or willful neglect of duty" as charged in a 28-count "Amended Petition for Dismissal from Broward County School System," filed September 6, 1984, and should be dismissed from employment with the Petitioner, Broward County School Board.
Findings Of Fact RESPONDENT: BACKGROUND AND PAST PERFORMANCE In 1955, Respondent received a Master's Degree in Education, Supervision, and Administration from Southern Illinois University. He moved to Broward County in 1957 and was first employed by the School Board as a teacher at McNab Elementary School. He has been employed as a principal for 25 years. In 1960, he became the principal of McNab Elementary and continued as a principal in various elementary schools until 1971 or 1972, when he became a principal at Pompano Beach Middle School for seven years. He was assigned the principalship at Lake Forest Elementary School for 5 years, then became principal of Riverland Elementary School in 1982. When he was suspended without pay on August 2, 1984, based on the charges which are the subject of this proceeding, he had a continuing contract (as principal) with the School Board. His supervisors evaluated (in writing) his performance as a principal during each of the 25 years he was a principal, including the 1982-83 and 1983- 84 school years. All evaluations were positive and described his performance as satisfactory. There were no negative comments. II COUNTS 1 AND 2: CONSISTENT DISCIPLINE PLAN Count 1 You are hereby charged with failing to estab- lish and/or maintain and/or formally present consistent rules and/or regulations regarding student discipline and/or student behavior for the staff and student body at Riverland Elementary School for the 1982-83 school year, which constitutes incompetency and/or misconduct in office and/or willful neglect of duty. Count 2 You are hereby charged with failing to estab- lish and/or maintain and/or formally present consistent rules and/or regulations regarding student discipline and/or student behavior for the staff and student body at Riverland Elementary School for the 1983-84 school year, which constitutes incompetency and/or misconduct in office and/or willful neglect of duty. Counts 1 and 2 center on the "development of a consistent disciplinary plan" at Riverland Elementary School, including rules and regulations for the 1982-83 and 1983-84 school years. To sustain these charges the School Board must demonstrate that there was no consistent disciplinary plan including rules and regulations in effect at Riverland Elementary School for the years 1982-1983 and 1983-84 and that such omission constituted incompetency, misconduct in office or willful neglect of duty. The evidence not only fails to substantiate these two charges but affirmatively establishes that a consistent formal disciplinary plan and procedure was in effect at Riverland Elementary School during the 1982-83 and 1983-84 school years. A. 1982-83 During the 1982-83 school year, the Student Conduct and Discipline Code ("Discipline Code") for Broward County was in effect and fully utilized. Riverland Elementary School received its accreditation at the conclusion of that year and there was no reference to an inconsistent or non-existent disciplinary plan. There were no reports of a non-existent or inappropriate disciplinary system at Riverland Elementary School during 1982-83 made to School Board administrators at any time prior to the lodging of initial charges in March 1984. (R-2; TR-IV, p.467; TR-V, p.712; TR-XI, pp.42,108) The Discipline Code delineated the teachers' responsibilities for student discipline as well as the consequences for student misconduct. During school year 1982-83, Respondent utilized the disciplinary referral system and handled student discipline problems in a manner consistent with the Discipline Code. (Conversely, there is no evidence demonstrating that Respondent failed to follow the Student Discipline Code in any instance, whatsoever during the year 1982-83.) He made sure (that parents, teachers, and students were aware of the Discipline Code. When he became principal of Riverland he discussed discipline with the students during an orientation assembly. He met with the grade level chairpersons on a daily basis and discussed discipline with them. They, in turn, were instructed to direct the teachers under their jurisdiction to review the contents of the Discipline Code with their students and ensure that students took the Code pamphlets home to be signed by their parents. In connection with the SACS review process, a student assembly was held to discuss discipline. Because of the type of children in the school and the age of the majority of the students, however, school-wide assemblies to discuss discipline proved to be less effective than small group discussions. Respondent's preferred use of small group settings and his utilization of the Discipline Code was deemed acceptable by his immediate supervisor. Other teachers followed a similar practice without objection. (TR-III, p.372; TR-IX, p.40, TR-X, p.83, TR-XIII, p.77, TR-XV, pp.38 169,2,192-193; TR-XVI, pp.8-9,16,48-49) B. 1983-84 During school year 1983-84, the Discipline Code remained in effect. Respondent continued to utilize it as the foundation for the disciplinary process in place at Riverland Elementary School. Indeed, use of the Discipline Code, as adopted by the School Board of Broward County, was mandated. Although several teachers testified that there should be a school-wide code which overlaps or supercedes the official county-wide Discipline Code, there is no showing that a school-wide code, other than the Discipline Code, was required or even customarily used in the school system (TR-I, pp.89,90, TR-II, p.201; TR- IV, p.467, TR-V, p.712; TR-IX, p.38; TR-XI, p.108; TR-XV, p.16) Several teachers critical of Respondent's performance testified that he should have adopted a code listing infractions which would automatically lead to specific consequences. To comply with this request, Respondent would have had to enact a code inconsistent with the Discipline Code mandated by the School Board. Page 6 of the Code sets forth the criteria to be used by a principal or his designee in meting out discipline. The Code attempts to match specific conse- quences with specific behavior. The numbers in brackets which follow each rule refer to consequences which may be used if misbehavior occurs. With the exception of Attendance, consequences are listed on page 24. Under certain circumstances, specification is mandatory and is so identified by an asterisk (*). When discipline problems occur in the pres- ence of a teachers it is the responsibility of the teacher to handle the situation until all strategies available to the teacher according to the School Board Policy have been exhausted. School personnel are encouraged to employ realistic and appropriate methods of disci- pline not necessarily outlined in this Code. For example, cleaning desk tops is an appro- priate consequence for writing on them. When determining the consequences, the fol- lowing circumstances should be taken into consideration: age and/or grade level of student; frequency of misconduct; seriousness of particular misconduct; attitude of student; student records; any other relevant factors including but not limited to, handicapped students who are governed by provi- sions outlined in School Board Policy 5006.1. (e.s.) Under this disciplinary scheme, a principal administers discipline not only to punish students but to encourage behavior modification. To accomplish the latter a principal is given alternatives and combinations of alternatives for use based on the unique circumstances of each situation. Factors to be taken into account include the number of prior referrals, the seriousness of the situation, the child's previous disciplinary record, the age of the child, the intellectual level of the child, the emotional level of the child, and any learning disabilities that might be associated with the child. Respondent followed the Discipline Code and administered discipline based upon the referrals he received from teachers. There was no showing that he failed to follow the student Discipline Code. If the charge is that the Discipline Code, itself, lacks "consistent rules and regulations," or fails to conform to "consistent rules and regulations" such charge is more appropriately directed at the School Boards which adopted the Coded than Respondent who merely implemented it. (TR-XV, pp.38-39, 54; TR-XVI, p.31) At the outset of the 1983-84 school year, Respondent again directed his grade level chairpersons to disseminate the Code to teachers and instruct them to teach the Code to their students. The teachers were instructed to use the Discipline Code in conjunction with I.T.V. programs during the first week or two of school. The teachers carried out these instructions. Students were taught the Code, and their understanding of the Code was reinforced throughout the year. (R,4, TR-II, pp.184, 189,201; TR-V, pp.638,640; TR-X, p.126; TR-XVI, pp.48-49,5-6) In addition to the grade level chairpersons' meetings, Respondent disseminated various bulletins dealing with discipline, specifically Bulletin 83-9, which set forth the steps the teachers were to utilize in the disciplinary process. He issued Bulletin 83-9 because some teachers were not following the Discipline Code and meting out the appropriate discipline in the classrooms (per the Code) before sending students to his office. This bulletin was intended to reinforce the Code's recognition that teachers are primarily responsible for discipline in the classroom. The Code recognizes that classroom management is an integral part, if not the most important component, in the disciplinary process: When discipline problems occur in the pres- ence of a teacher, it is the responsibility of the teacher to handle the situation until all strategies available to the teacher according to the School Board Policy have been exhausted. (R-4; TR-III, P.394; TR-V, p.708)(R-2, p.6, TR-XV, p.31) COUNTS 3 AND 4: INCONSISTENT METING OUT OF DISCIPLINE Count 3 You are hereby charged with failing to admin- ister discipline consistently and/or effec- tively for students referred to you by staff members during the 1982-83 school year, which constitutes incompetency and/or misconduct in office and/or willful neglect of duty. Count 4 You are hereby charged with failing to admin- ister discipline consistently and/or effec- tively for students referred to you by staff members during the 1983-84 school year, which constitutes incompetency and/or misconduct in office and/or willful neglect of duty. These charges allege inconsistency in the meting out of discipline by Respondent as opposed to the failure to establish or maintain consistent disciplinary rules alleged in Counts 1 and 2. Although inconsistent discipline was alleged, none has been shown. The only evidence offered to support these charges was innuendo and vague, elusive accusations or perceptions by several teachers, most of which were based on hearsay consisting of generalizations uttered by others. The record is devoid of specific, concrete examples of "inconsistent" disciplinary action by Respondent. The complete lack of specific evidence is not due to want of records. Detailed records of every disciplinary action taken by Respondent during 1983-84 were available for analysis. (743 discipline referral slips covering school year 1983-84 were retained by Respondent and available for review.) There is no evidence, however, that anyone critical of Respondent's meting out of discipline ever took the time to, or went to the trouble of, reviewing them. Indeed, no one on behalf of the School Board even asked to see them.) It was Respondent who offered all referral slips (identifying details of each infraction and Respondent's action) into evidence. Some teachers testified that there were too many steps in the referral process although how this complaint relates to inconsistency was not shown. Others testified that they had to go through every single disciplinary step in order to refer a child to Respondent for discipline. The opposite was proven to be true. If a situation was serious enough, the disciplinary steps prescribed by Respondent (which were essentially the same steps as those prescribed by the Discipline Code) could be short, circuited and an immediate referral made. When serious disciplinary problems occurred, teachers brought students directly to Respondent's office and he handled the situation. (TR-II, p.219; TR-III, p.425; TR-IV, p.475; TR-X, p.15; TR-XI, P.24) Respondent made an effort to insure that the disciplinary process at Riverland was rational, and known to and followed by all. In addition to Bulletin 83-9 (delineating the steps in the process), Respondent disseminated numerous other bulletins and materials dealing with assertive discipline as part of the Faculty Handbook. He met with the faculty and discussed the disciplinary process. He insisted they use the detailed referral process which he established. The referral slips themselves show that he used all of the allowable disciplinary consequences--individually or in combination--including, but not limited to, student conferences, verbal reprimands written punishments, parental contacts, internal suspensions, corporal punishments, and external suspensions based upon the unique circumstances of each case. (TR-III, P.427; TR-XVI, pp.15,31; R-1; R-2) A. 1982-83 Count 3 alleges that Respondent failed to administer discipline in a consistent manner for the school year 1982-83. There was no meaningful evidence of any inconsistent discipline administered in 1982-83. There was no testimony or documentation of one specific incident which Respondent could cross-examine or refute. 2/ Indeed the record supports an inference that discipline was meted out consistently during 1982-83. There was a detailed Discipline Code in effect, known to all, and he insisted that it be followed. The SACS Report, prepared by the teachers at Riverland, and the grant of accreditation do not reflect that discipline was being inconsistently administered. Ms. Swilley, the Department of Education's competence reviewer, doesn't find inconsistent discipline; she refers to materials appended to her report, and then states the referrals reflect the teacher "concerns." The appended material only contains referrals from 1983-84 gathered together by Ms. Elmore, one of Respondent's harshest critics. The official Broward County School Board Progress Reports for Riverland Elementary School during 1982-83 and 1983-84, reflect teachers', students', and parents', attitudes, all of which are extremely high. (Teachers- -86 percent, parent--92 percent, and students--88 percent) There is no evidence that this alleged deficiency was ever complained of or mentioned in any memoranda, read-react-and-return memo, grade level chairperson minutes, faculty minutes, correspondence to Respondent's supervisor or Board administrators, notes or minutes of the P.T.A., parents advisory group, Respondent's performance evaluation, or any other document. (R-4; Appendix 14; P-4; P-3; R-19) B 1983-84 Similarly, no factual basis has been shown for the charge that Respondent inconsistently administered discipline during the 1983-84 school year. This charge, too, is unsubstantiated. No systematic analysis of the 1983-84 disciplinary records of particular students was done to demonstrate that students were disciplined differently when the facts indicate they should have been disciplined the same. Although some witnesses generally testified that Respondent disciplined students inconsistently during 1983-84, their conclusions were not substantiated. Although one teacher, Ms. Ordway, claimed inconsistency in the meting out of discipline, she could not give one specific example. Similar negative conclusions by Ms. Ross, another teacher, were based on "what the [other] teachers would say." The testimony of Ms. Kasmarik, another teacher, supports the opposite conclusion: Q. (By Mr. Panza) Ms. Kasmarik, let me ask you do you know what--can you give me specific instances that Mr. Sulcer treated two children with disparate consequences for the same act? Can you give me an example? A. That I personally saw it or that I heard about it? Q. No. You are the witness. What you saw, personally were involved in. A. With the referrals that he wrote up, Mr. Sulcer--The only referrals I wrote up were for fighting. That's the only referrals I wrote up, and when I got the response from that, Mr. Sulcer had used corporal punishment on both children. Q. So they were consistent as it goes to your personal observations? A. As my personal observations, it was consistent, yes. (e.s.) (TR-VI, p.826, TR-X, p.147) Likewise, Ms. Bullock, another teacher critical of Respondent's performance, testified: A. I would say that the punishment was consistent. Now, the problem is I didn't feel it was severe enough because it didn't prevent them from repeating the same incidents. (TR-XI, p.23) Mr. Dandy, Respondent's supervisor throughout, and the person who initially pressed him to correct alleged deficiencies, was unable to recall any specific instance of inconsistent discipline being meted out; rather, his criticism of Respondent only reflected the "teachers' perceptions." The unsubstantiated "perceptions" of other teachers based on nothing more than generalized complaint or hearsay are patently insufficient to sustain the charge. (TR-XIII, pp.82- 83,92,97) Respondent followed a set procedure in disciplining students. Before referral the child would describe, in writing, the misbehavior so that the child would understand the significance and inappropriateness of the conduct. On referral to the principal the child would bring with him or her the written description of the incident. Respondent would discuss the situation with the child review any prior disciplinary problems, and then determine the appropriate consequence based on the Discipline Code. He often gave verbal reprimands arranged for parent conferences, or wrote letters to parents. (TR- XVI, pp.10,11,20,31) Witnesses who complained of Respondent's disciplinary actions at hearing never stated what they expected him to do other than to formulate an additional code specifying an automatic consequence for every conceivable infraction. Such a rigidly defined code is neither required nor customary in Broward County. Moreover, it would be difficult, if not impossible, to construct a code with such mathematical precision. The effective disciplining of students is an art, not a science, involving many human variables. It requires flexibility and the exercise of professional judgment. A rigid code which precludes a principal from taking into account the unique circumstances of each case would be inconsistent with the Discipline Code adopted by the Board. COUNTS 5 AND 6: DETERRENCE OF CHRONIC BEHAVIOR OFFENDERS Count 5 You are hereby charged with failing to estab- lish adequate deterrent as a result of your action of causing or allowing students to become chronic or serious behavior offenders as a result of your inadequately disciplining said, students referred to you by teachers during the 1982-83 school year, which consti- tutes incompetency and/or misconduct in office and/or willful neglect of duty. Count 6 You are hereby charged with failing to estab- lish adequate deterrent as a result of your action causing or allowing students to become chronic or serious behavior offenders as a result of your inadequately disciplining said students referred to you by teachers during the 1983-84 school year, which constitutes incompetency and/or misconduct in office and/or willful neglect of duty. Here, the Board charges that Respondent failed to establish adequate deterrents and, as a result, he allowed or caused students to become chronic or serious behavior offenders during school year 1982-83. A. 1982-83 The Board has not shown what a "chronic behavior offender" 3/ is or how many students, out of the total student population of approximately 600, fit this category. Neither was it shown that there were a significant number of chronic offenders that "were caused" by Respondent's disciplinary actions. There was student misbehavior at Riverland Elementary School while Respondent was principal, as there was prior to his arrival and after his departure. It has not been shown that the misbehavior was caused by Respondent's efforts to enforce the Student Discipline Code. Many of the children at Riverland came from poor families. These children had little respect for authority and had attitude problems stemming from background and upbringing. Many came from single-parent homes. Many of the children who had behavior problems at school came from homes where discipline was lax or nonexistent. The student population was transient--students were constantly checking in or out of the school. Some students had repeated at least two grade levels so there were several children 13 or 14 years old. Some children had learning disabilities and could be disciplined only in accordance with their prescribed plans. (TR-II, pp.193,222; TR-X, pp.39, 40, 131; TR-XI, p.27; TR-XV, pp.39, 44, 46) Given the diversity and nature of this student body, it has not been shown how the repetitive misbehavior of five to ten of the students can be fairly or logically imputed to Respondent's action or inaction. These students, which the Board (at least for the purpose of this proceeding) classifies as "chronic offenders," were not identified, neither was each incident of misbehavior together with Respondent's disciplinary action, analyzed, compared and critiqued by qualified witnesses. Finally, though some students were referred numerous times, it has not been shown that there was an inordinate number of such students, given the nature and diversity of the student population. Neither does it appear that such repetitive referrals became a problem of serious concern to teachers. The SACS Report, prepared by the teachers at Riverland, does not indicate that a "chronic offender" problem existed at the school. (R-13) B. 1983-84 The nature of students at Riverland Elementary School during 1983-84 was similar to that of the previous year and the Board's failure of proof is, likewise, the same. Respondent applied the district-wide Discipline Code in disciplining the students. The teachers were responsible for the teaching of the Code to students, and for the management of students in their classrooms. All acknowledged that the proper disciplining of students is a joint or cooperative effort by teachers, administrators, and principals. The evidence fails to show that there was an inordinate number of repetitive referrals, neither does it disclose the identity of these children (including their particular acts of misbehavior and the discipline administered) or how Respondent's action was deficient. To the extent some children were repeatedly referred for misbehavior, it has not been shown that Respondent's disciplinary action was the cause. It may well be that the teachers of these children failed to properly control and prevent their misbehavior, or the misbehavior may be due more to the unique personality and family context of each child. (R-2) Indeed, the parents of some of these children tried, without success, to modify their behavior. There were occasions when Respondent would have two or three parental conferences concerning a child's misbehavior, yet--a few weeks later--the child would revert to inappropriate conduct. Several teachers who testified were critical of the effectiveness of Respondent's disciplinary action, but failed to indicate action that would have been more effective. Some teachers favored more use of external suspensions, but under School Board policy external suspensions are to be used only as the last resort. Respondent did suspend some students and the referral slips for 1983-84 showed he used corporal punishment extensively. (R-66) As with school year 1982-83, the record does not establish the identity and number of the "chronic or serious behavior offenders". A reasonable estimate would be that there were between five and ten children (out of 600 students) who had repetitive disciplinary referrals. There is no basis to conclude that this is an inappropriate or unusually high number. In a student population of this nature and diversity, it is perhaps unavoidable that there will be some students who will be repetitively referred for disciplinary action. This condition existed before Respondent arrived at Riverland--and has persisted since he left. COUNTS 7 AND 8 VERBAL AGREEMENTS-1982-83 AND 1983-84 Count 7 You are hereby charged with repeatedly ac- cepting or entering into verbal agreements with students who are repeat offenders that they will not repeat said negative behav- ior/offense in lieu of providing appropriate discipline which has resulted in a negative impact on student behavior and/or student discipline at Riverland Elementary School during the 1982-83 school year, which consti- tutes incompetency and/or misconduct in office and/or willful neglect of duty. Count 8 You are hereby charged with repeatedly ac- cepting or entering into verbal agreements with students who are repeat offenders that they will not repeat said negative behav- ior/offense in lieu of providing appropriate discipline which has resulted in a negative impact on student behavior and/or student discipline at Riverland Elementary School during the 1983-84 school year, which consti- tutes incompetency and/or misconduct in office and/or willful neglect of duty. A. 1982-83 In order to substantiate this charge, it was incumbent on the Board to identify those "repeat offender" students with whom Respondent entered into verbal agreements not to engage in the same conduct to specify the circumstances surrounding the infraction and to show that such verbal agreements were inappropriate. The appropriateness of a disciplinary action (otherwise authorized) cannot be determined without considering the facts and circumstances of the case. The Board has failed to substantiate its charges with concrete and specific evidence. Indeed the record is devoid of evidence establishing that Respondent even entered into verbal agreements with students during 1982-83, under any circumstances. (The Board apparently assumed that he entered into verbal agreements with children who were repeat offenders, that such agreements were "in lieu of providing any appropriate discipline," and that such action had a negative impact on student behavior and student discipline at Riverland Elementary School.) It was not shown that Respondent inappropriately used the Student Discipline Code in any instance when he "counseled" with students concerning inappropriate conduct. 4/ To determine appropriate discipline for an individual student, all of the factors contained on page 6 of the Discipline Code would have to be considered in light of the specific infraction. Because of the flexibility and discretion given school principals, any analysis less definitive would be incomplete. (R-2) B. 1983-84 In 1983-84, Respondent--who continued to use the Student Discipline Code--entered into verbal agreements with students, whereby the students agreed not to engage in further inappropriate conduct. It has not been shown that he entered such verbal agreements in lieu of any other more appropriate discipline, or that, in any particular case, the verbal agreement was inappropriate. "Repeat offenders" were not identified nor Respondent's action in any particular incident shown to be improper. As already mentioned, the Board has not demonstrated that Respondent failed to follow the Student Discipline Code in the meting out of discipline. Under this Code, the use of verbal agreements, as part of the overall discipline process, is appropriate. Thus the critical factor is not the entering into of verbal agreements (because verbal agreements are permitted), but rather whether he did so in lieu of other more appropriate discipline. But disciplinary action--otherwise permissible--cannot be found inappropriate without knowing the specific facts of an incident. Such facts have not been shown. COUNTS 9 AND 10 RAMPANT DISRESPECT AND VERBAL ABUSE Count 9 You are hereby charged with unacceptable performance in administering the school discipline program during the 1982-83 school year and said performance has led to rampant disrespect by students toward teachers through verbal abuse and defiance of teacher instructions, which constitutes incompetency and/or misconduct in office and/or willful neglect of duty. Count 10 You are hereby charged with unacceptable performance in administering the school discipline program during the 1983-84 school year and said performance has led to rampant disrespect by students toward teachers through verbal abuse and defiance of teacher instructions, which constitutes incompetency and/or misconduct in office and/or willful neglect of duty. A. 1982-83 Here the Board charges Respondent with "unacceptable performance" in administering the school discipline program during school year 1982-83. Respondent's discipline program was based on the Student Discipline Code and it was not shown that he ever violated that Code. The Board further charges that Respondent's disciplinary performance led to "rampant disrespect" by students towards teachers through verbal abuse and defiance of teachers' instructions. The evidence is insufficient to sustain a finding of rampant disrespect for teachers by students. 5/ Neither was it shown that any specific incident of disrespect was attributable to Respondent's implementation of the Student Discipline Code. Once again, this charge rests on supposition and generalization and lacks a factual foundation. Assuming, arguendo, that a student verbally defies a teacher's instructions, the question becomes whether the defiance is attributable to a principal's conduct. There are several plausible reasons as for defiance of a teacher's instructions, many of them unrelated to a principal's actions or inactions. Teachers may fail in managing their classrooms and earning the respect of their students, parents may have neglected to teach their children to respect and obey teachers. Here, the Board has not established a causal relationship between Respondent's conduct and any defiance of teachers by students. Speculation or generalization cannot substitute for specific and concrete evidence. (TR-X, pp. 100,101) B. 1983-84 For similar reasons, the charge relating to school year 1983-84 is unsubstantiated. Rampant disrespect for teachers has not been shown. (TR-X, pp.9,10,16,17) It has not been shown that Respondent violated the Discipline Coded the foundation of his disciplinary process, during 1982-83 or 1983-84. Neither has rampant disrespect for teachers been shown. The SACS Report completed by the teachers at the conclusion of the 1983 school year, makes no mention of it. Neither do any memoranda, documents, or other school records support this claim. If student disrespect and defiance had been so widespread, it is likely that it would have been brought to the attention of School Board officials long before Mr. Dandy came to Riverland to listen to teachers' grievances on February 17, 1984. (R-13) COUNTS 11 AND 12 CONTRIBUTING TO SERIOUS DISCIPLINE AND/OR BEHAVIOR PROBLEMS WHEREIN STUDENTS EXHIBITED DEFIANCE Count 11 You are hereby charged with contributing to the serious discipline and/or student behav- ior problems which occurred at Riverland Elementary School during the 1982-83 school year, wherein students exhibited defiance and disrespect toward authority figures and toward fellow students which constitutes incompetency and/or misconduct in office and/or willful neglect of duty. Count 12 You are hereby charged with contributing to the serious discipline and/or student behav- ior problems which occurred at Riverland Elementary School during the 1982-83 school year, wherein students exhibited defiance and disrespect toward authority figures and toward, fellow students which constitutes incompetency and/or misconduct in office and/or willful neglect of duty. Counts 11 and 12, virtually identical to Counts 9 and 10, are, likewise, unsubstantiated by the evidence. The record is inadequate to support a conclusion that Respondent contributed to serious discipline or student behavior exhibiting defiance and disrespect toward teachers and fellow students. It is likely that student disrespect for or defiance of teachers occurs, at least occasionally, in every elementary school. Relevant questions are what was the frequency and magnitude of the defiance and disrespect; who were the offenders, and what factors or combination of factors caused or contributed to it? The evidence offered by the Board is non-specific and incapable of supplying answers to these questions. Count 13 THE LOCKING OF THE BATHROOMS BECAUSE OF VANDALISM Count 13 You are hereby charged with failing to di- rect, administer and maintain a program to foster proper student behavior in the halls to such an extent that during the 1983-84 school year one set of bathrooms had to be locked because of fights among students and vandalism of bathrooms during the school day, which constitutes incompetency and/or miscon- duct in office and/or willful neglect of duty. Here, alleged student misbehavior (establishing Respondent's incompetence and/or misconduct in office and/or willful neglect of duty) was so bad that one set of bathrooms had to be locked because of fights among students and vandalism. This charge is unsubstantiated by concrete factually meaningful evidence; it is based, in the main, on hearsay and the unsupported conclusions of several teachers. It was not shown that vandalism in the bathrooms at Riverland Elementary increased or was at an unacceptably high level during 1983-84, or that any property damage was attributable to Respondent's performance of his duties. An occasional act of vandalism or damage to school property cannot, by itself and without more, support a conclusion that a principal is guilty of incompetency, misconduct in officer or willful neglect of duty. Neither was it shown that there were students fights in the bathrooms, or that fights occurred with such frequency that Respondent was forced to close the bathrooms. Rather, students would gather in the bathrooms prior to school starting and get into mischief. Mary Jo Sluder a teacher who was also Safety Patrol Director and supervised the school hallways, complained to Respondent that she was having problems watching both sets of bathrooms before school started. Respondent asked if it would help if one set of bathrooms remained locked until the second bell at 8:15 a.m., signaling the start of school. Ms. Sluder replied that it would be helpful and the plan was implemented. So one set of bathrooms remained locked for approximately 15 minutes, between 8:00 a.m. and 8:15 a.m., while children were at school. At 8:15 a.m., it was opened. (TR- XVI, pp.41,42; TR-IV, p.452) This was an acceptable strategy used by other principals under similar circumstances, and violated no rule or policy of the School Board. Between the first (8:00 a.m.) and second (8:15 a.m.) bells, bathrooms were always accessible to students. Respondent's action was a rational measured response to a problem perceived by the Safety Patrol Director and it obtained positive results without imposing a hardship on anyone. The danger of relying on hearsay and generalized conclusions of others is illustrated by the testimony offered to support this charge. Mr. Dandy, Respondent's immediate Area Supervisor and an individual who identified Respondent's action as deficient, admitted that he had no specific facts to support this charge; he had only talked to teachers and had reviewed no vandalism records at the school. Of the teachers who testified, one did not know if vandalism had increased during Respondent's tenure over that which had occurred under his predecessor; one did not know how long the bathrooms were closed. Although one teacher testified that it was common knowledge that the bathroom was locked because of vandalism--and this was the extent of her knowledge--vandalism was not discussed at the faculty meetings. Teachers would sometimes stop in the girls' and boys' bathrooms, to tell them to quit playing around. One teacher who complained of vandalism never witnessed conditions inside the bathrooms, never wrote disciplinary referrals for students who congregated in them, and never sent them to Respondent's office. (TR-V, pp. 578,774, TR-II, pp.242, 243, 245, 324; TR-IV, pp. 433, 451; TR-VI, pp. 871,872; TR-X, p.150) COUNTS 14 AND 15: TOO MUCH TIME OFF-CAMPUS AND NOT ENOUGH ON-CAMPUS VISIBILITY Count 14 You are hereby charged with spending too much or inordinate amounts of time in your office and/or off campus and not making yourself visible enough among students which has contributed to poor student disci- pline/behavior problems at Riverland Elemen- tary School during the 1982-83 school year, which constitutes incompetency and/or miscon- duct in office and/or willful neglect of duty. Count 15 You are hereby charged with spending too much or inordinate amounts of time in your office and/or off campus and not making yourself visible enough among students which has contributed to poor student disci- pline/behavior problems at Riverland Elemen, tary School during the 1983-84 school year, which constitutes incompetency and/or miscon, duct in office and/or willful neglect of duty. These charges accuse Respondent of spending too much time off-campus or in his officer and not making himself "visible enough" among students, thus contributing to poor student disciplinary behavior. Once again, as with the other charges, there is no evidence that Respondent, during 1982-83, spent too much time or an inordinate amount of time in his office or off-campus. This was not identified as a problem by the SACS Report or documented by any exhibit in evidence. A principal is evaluated based on his or her performance. Respondent's evaluations for the years 1982-83 and 1983-84 were totally acceptable. Neither indicates Respondent spent inordinate amounts of time in his office or off-campus, or that he did not make himself "visible enough." Respondent, charged with the responsibility of administering an entire school, attended numerous off-campus functions such as county directed meetings, parent conferences, visitations, professional meetings, and community service projects relating to Riverland Elementary School. His attendance was legitimate and, in most instances, required. (TR-I, p.74; TR-VIII, pp.40,42; TR-XIII, pp.14,16,20; TR-XV, p.46, R-45) It was not shown (nor was it alleged) that Respondent was unlawfully or inappropriately engaging in personal activities off campus. The charges focus on the frequency of his absences, not his whereabouts. The school district official who prepared this charge had no independent knowledge of Respondent's absences, and did no analysis to determine the extent of his absences from campus. Rather, he simply relied on and reiterated vague conclusions offered by several teachers dissatisfied with Respondent's performance. (TR-II, p.246; TR-IV, p.888; TR-VIII, pp.23, 24, 143) Mr. Stephenson, the school district official who helped prepare the charge, never asked Respondent about his alleged excessive absenteeism from campus because (according to Stephenson) that would be a normal routine matter discussed between a principal and his Area Superintendent (Mr. Dandy). But Mr. Dandy never asked Respondent about alleged excessive absenteeism either. (TR- XIII, p.140) The evidence is insufficient to support a conclusion that Respondent was absent from campus for an inordinate amount of time. The only evidence in support of the accusation is sporadic hearsay, or conclusions by others lacking a factual basis. Rather, the evidence establishes that Respondent's presence on campus was sufficient and that, if he left campus, he handled any disciplinary problems (that arose in his absence) upon his return. His secretary always knew where he was. A teacher could find out where he was by simply asking his secretary. (TR-I, p.75; TR-X, p.32) As to Respondent's alleged poor visibility among students, there is no specific factual information pertaining to 1982-83, so this charge is unsubstantiated. As for 1983-84, the evidence was also insufficient to support a conclusion that Respondent was not "visible enough." No standard of visibility was established against which Respondent's conduct could be measured. There is no evidence in the record that anyone (teachers, parents, or administrators) complained to Respondent about his visibility or asked that he become more visible on campus. (TR-VIII, p.91) Testimony by several teachers on this subject was inconsistent and contradictory. Some offered critical opinions, but their conclusions lacked factual support, they simply had a feeling that he should have been more visible. In contrast, some teachers felt that Respondent was "sufficiently visible;" Ms. Kasmarik testified that he was always around the campus and always walking down the halls: CROSS-EXAMINATION Q. (By Mr. Panza) Ms. Kasmarik, isn't it a fact that it's your opinion that you're better off with discipline when Mr. Sulcer was there than you are right now with the new principal? Isn't that a fact? Isn't that what you just said within the last couple of weeks? A. We have the same kinds of problems that we had when Mr. Sulcer was there. Q. Same kinds of problems with the new principal, is that right? A. Yes. Q. Okay. Are those same kinds of problems based upon the type of children, in your opinion, that are in that school? A. Yes. Q. Now, you mentioned--Just kind of working backwards a little bit--that visibility was a problem or--not was a problem, is not a problem. You said Mr. Sulcer was walking the hall? A. Yes. Q. Mr. Sulcer went into classrooms, is that correct? A. Yes. He was in and out of the classroom all the time. Q. So teachers could see him around the school. He wasn't--he was there physically in the school? A. Yes. (TR-X, pp.121-122) Ms. Bullock, another teacher critical of Respondent's performance, admitted that he had been visible and had visited her classroom 15 to 20 times: DIRECT-EXAMINATION Q. (By Mr. Montante) Did you ever tell him it was necessary to come down [to observe her class? A. No. Q. Did you ever tell him it was necessary to become visible? A. No. Q. Did he ever offer to become visible to you? A. No. I felt he was visible. Q. Several times a year? A. Yes. Q. How long is the school year, ma'am? A. From August until June. Q. August until June? A. Yes. Q. That's a period of 11 months. A. Ten months. The school year is ten months. Q. He came down to the classroom several times: A. Several times. Q. Three times in 11 months. A. I didn't say three times. Several. How many is several? A. Ten, 15, 20. (e.s.) (TR-XI, pp.61,62) Although Ms. Ross, another teachers claimed that his visibility was almost non- existent, her location in the library (where she worked) was such that she would not have known when he was out of his office or in it. Ms. Bullock, another teacher, never asked him to come to her room because it wasn't necessary. (TR- VI, pp. 823,828; TR-XI, p.61) The vague and indefinite charge of not "enough visibility" must be based on more then the subjective, unsubstantiated judgment of a critical teacher. To be meaningful, the charge must be put in a factual context. In a letter to Dr. Stephenson, the district administrator involved in preferring the charges, Respondent's counsel asked for specific information on the charge so that Respondent could comply with Mr. Dandy's March 21, 1984 directive requiring improvement in this area: 4. Monitor hallways frequently through- out the school day (in an attempt to assist in undesirable behavior on the part of students (Effective immediately) Mr. Sulcer will, as he always has, monitor the hallways. As I am certain you are well aware, it is impossible to be in the hallway all day if one is expected to be a Principal of a school. Once again, I would request specific instances of when Mr. Sulcer was negligent in his monitoring of the hallways which allowed undesirable behavior to take place. I would also like to have the specif- ic set of circumstances that the administra- tion of the School Board can demonstrate that there was undesirable behavior on the part of students because of Mr. Sulcer's conduct. I would like to know the exact amount of time required by Mr. Dandy so Bob Sulcer can comply. If Mr. Dandy is going to evaluate Bob Sulcer in this area, he (Dandy) must know exactly how much time he expects Sulcer to spend. (R-50) This letter went unanswered. COUNTS 16 AND 17 SUPPLIES Count 16 You are hereby charged with failing to supply teachers with basic materials and supplies such as paper, crayons, scissors, etc., thus depriving student [sic] from essential mate- rials necessary for optimum instructions during the 1982-83 school year, which consti- tutes incompetency and/or misconduct in office and/or willful neglect of duty. Count 17 You are hereby charged with failing to supply teachers with basic materials and supplies such as paper, crayons, scissors, etc., thus depriving student [sic] from essential mate- rials necessary for optimum instructions during the 1983-84 school year, which consti- tutes incompetency and/or misconduct in office and/or willful neglect of duty. There were no records of any kind, type or description, offered in evidence to support the allegations that school supplies were inadequate during 1982-83. One team chairperson during 1982-83 and 1983-84 never heard a complaint about lack of supplies. Dr. Stephenson, the school district administrator who helped prepare this charge, became aware of the alleged budget problem through information he received in writing from Ms. Elmore, a teacher critical of Respondent's performance. Based on Ms. Elmore's submittal, he concluded that there was a lack of materials and supplies at Riverland, a situation which should not have existed because adequate funds were available. He never independently investigated to determine if Ms. Elmore's statements were correct. (TR-XI, p.19; TR-VIII, pp.11,151) Ms. Elmore, a Faculty Chairperson at Riverland, had been told by the school bookkeeper that there was a freeze on supplies in 1983-84. She never personally asked Respondent for supplies, and he never told her that funds were unavailable. She felt that it was unnecessary to bother Respondent "with things that minor." (TR-V, pp.771,776) Ms. Ross, a grade level chairperson responsible for coordinating the ordering of supplies for teachers under her control, had no difficulty ordering supplies or books except that, when the funds were frozen, she "couldn't spend the money in my budget for awhile." (TR-VI, p.819) (She never asked Respondent if the budget was frozen.) She had all materials needed to currently teach her students. (Funds were temporarily unavailable only while the F.T.E. count was underway, a situation which was not unusual in the school district). When told the budget was frozen during F.T.E. count, she simply delayed ordering until the count was completed, she "had enough (supplies) to carry (her) over past the F.T.E. count." (TR-VI, p.865) After the count, she was allowed to order whatever she needed. (TR-VI, pp.819, 862, 864, 865) Ms. Ordway, a fifth grade teacher, who had switched to kindergarten, testified that she was unable to get necessary books and supplies for her kindergarten class. However, Ms. Callender, her Faculty Grade Level Chairperson, testified that Ms. Ordway as well as the rest of her grade group, had supplies the entire year. Ms. Callender also testified that Ms. Ordway was given permission to go to the A.B.C. Store to purchase whatever supplies she needed. Ms. Callender's testimony, more precise and less emotional than Ms. Ordway's, is accepted as persuasive. (TR-X, pp.28,48) Respondent did not turn down any supply order for materials that were needed for classes during 1982-83 and 1983- 84. The charge that teachers lacked supplies in 1983-84 is unsubstantiated by the evidence. (TR-XVI, pp.57,58,61) Finally, Ms. Elmore, one of the teachers most critical of Respondent's performances testified that she did not have enough supplies for 1982-83 and 1983-84. Her testimony was conclusory and is rejected as lacking in credibility. Finally, the SACS Report does not mention any problem with supplies at Riverland Elementary School for 1982-83. It is likely that if there was a supply problem of the magnitude alleged, it would have been mentioned in the SACS Report. The evidence does not establish that any children at Riverland were denied instructional materials due to lack of supplies. These charges are unsubstantiated. (TR-V, p.580; R-13) COUNTS 18 AND 19: SECOND IN COMMAND Count 18 You are hereby charged with failing to desig- nate a teacher as second in command and/or failing to inform the faculty which teacher would be in charge during your absence during the 1982-83 school year, thereby leaving the school unsupervised during your absences from campus, which constitutes incompetency and/or misconduct in office/and or willful neglect or duty. Count 19 You are hereby charged with failing to desig- nate a teacher as second in command and/or failing to inform the faculty which teacher would be in charge during your absence until approximately January 1984 of the 1983-84 school year, thereby leaving the school unsupervised during your absences from cam- pus, which constitutes incompetency and/or misconduct in office and/or willful neglect of duty. Respondent appointed a second in command or designee at Riverland Elementary School for years 1982-83 and 1983-84. For 1982-83, Respondent appointed Polly Jones as his second in command or designee. There was no requirement to identify the second in command by posting a notice. However, Mr. Dandy, the Area Superintendent, required principals within his area to advise him of the name of the second in command at the commencement of the school year. Respondent notified him in accordance with this requirement. (TR-I, p.32; TR- VII, p.92; TR-XVI, p.7) During 1982-83, Ms. Jones handled discipline referrals during Respondent's absence and signed as designee. Teachers who were unaware of who the second in command needed only to ask. Respondent's secretary, the office personnel, and administrative staff were informed that Ms. Jones was the appointed second in command. (TR-XVI, pp.7,104) The contention that problems resulted from some teachers not knowing who was second in command during 1982-83, is unsupported by the evidence. No teacher asked Respondent who was second in command--either in person (at grade level chairperson meetings, faculty meetings, in the halls, at SACS Committee Meetings) or by memorandum. Ms. Elmore who was Faculty Chairperson during 1982- 83, never placed the question of who was second in command on the faculty agendas though she had the authority to do so. Although she testified that she did not know who was second in command in 1982-83, she did not ask Respondent or her grade/level chairperson who, ironically, was Ms. Jones, the second in command. In any case, most teachers at Riverland knew Polly Jones handled disciplinary problems in Respondent's absences and expected her to do so. (TR- V, pp.598, 763) For school year 1983-84, Respondent designated Elaine Callender as his second in command. Again, he informed Mr. Dandy of his action at the beginning of the school year. Although most teachers knew that she was the second in command, they did not hear it officially from Respondent. They knew that Ms. Callender could, and did, administer corporal punishment in Respondent's absence. Finally, teachers in 1983-84 knew, or should have known, that Ms. Callender was the second in command because she signed referral slips above the signature line marked "Designee": copies of the completed slip are normally returned to the referring teacher. (TR-I, pp.34,35; TR-X, p.5, TR-XVI, p. 175) These charges must fail since Respondent did, in fact, appoint a designee, and the teachers knew or could have known by simply asking him. Although it was suggested (through hearsay testimony) that students were disciplined by secretaries, there is no substantial evidence to support that implication. When the issue of who was second in command surfaced up at the faculty meeting on November 15, 1983 (as part of 12 identified concerns) would it not have seemed reasonable at the time for someone to ask Respondent who was second in command? The Faculty Council, after it was organized and operational in the early part of January, did ask Respondent, stating that some teachers claimed they did not know who was second in command and wanted this information posted. Respondent posted his second in command that very day. (Mr. Dandy's testimony that the second in command was not posted until mid-February is rejected as clearly erroneous.) (TR-XII, p.87; TR-XIII, p.123) COUNTS 20 AND 21: MORALE Count 20 You are hereby charged with failing to estab- lish and maintain positive lines of communi- cation with the faculty and students during the 1982-83 school year at Riverland Elemen- tary regarding student discipline which has contributed to the decline of faculty morale toward the principal relative to student discipline, which constitutes incompetency, and/or misconduct in office and/or willful neglect of duty. Count 21 You are hereby charged with failing to estab- lish and maintain positive lines of communi- cation with the faculty and students during the 1983-84 school year at Riverland Elemen- tary regarding student discipline which has contributed to the decline of faculty morale toward the principal relative to student discipline, which constitutes incompetency. These two Counts center on the issue of faculty morale as it related to student discipline caused allegedly by Respondent's failure to maintain positive lines of communication with faculty and students during schools years 1982-83 and 1983, 84. Morales a somewhat amorphous term, is defined in the American Heritage Dictionary as "the state of the spirits of an individual or group as shown in willingness to perform assigned tasks, confidence, cheerfulness, and discipline." Although affected by many variables, morale is not a subject incapable of measurement. Instead of utilizing an objective or standard method to determine the level of morale at Riverland the School Board presented the testimony of selected teachers, for the most part, the same teachers who were on the ad hoc disciplinary committee and among Respondent's most avid critics. Their testimony lacks credibility and fails to support a conclusion that morale was lowered due to Respondent's handling of discipline problems. They were the teachers who complained most about morale. They gave secret testimony to Dr. Stephenson, the ranking administrator, who developed the charges against Respondent and they were, generally, unwilling to cooperate with Respondent and other teachers (led by the Faculty Council), who were attempting (between November, 1983 and March 1984) to develop ways to improve discipline at Riverland. 6/ No systematic evaluation of faculty morale, using any acceptable and reliable method, was ever undertaken. A poll was conducted at Riverland Elementary in connection with the Official Progress Report of the School Board. The poll indicated that 86 percent of the teachers thought that Riverland was a good school. Ninety-two percent of the parents with children at Riverland responded, "this is a good school." (TR-IV 34 p.461) These results detract from the weight to be given the adverse opinions of the several teachers (testifying at hearing) most critical of Respondent's performance. (TR-IV, p.461; R-19) COUNT 22 FAILING TO DISCIPLINE A STUDENT Count 22 You are hereby charged with failing to disci- pline a student who said to a teacher's aided "Fuck You," during the 1983-84 school year, which constitutes incompetency and/or miscon- duct in office and/or willful neglect of duty. On one occasion during the 1983-84 school year, a child cursed at a teacher's aide, Ms. Williams, who promptly referred the student to Respondent's office. Respondent asked the student for an explanation and the child admitted that he had said the disrespectful words and was ready to be spanked. Respondent asked Ms. Williams (the aide that was cursed at) to enter the office and witness the corporal punishment. After she entered, the child refused to submit to the spanking and constantly moved around, putting his hands across his buttocks and fidgeting making it difficult for Respondent to administer corporal punishment without injuring him. Under these circumstances, Respondent decided not to administer the corporal punishment for fear of injuring the child's hands. Instead, he telephoned the child's parents and told them the child refused the spanking. The parents told him they would punish the child, by using a belt. (TR-XVI, pp.53-54; TR-X, pp.67-68,85) This particular child did not have any further behavior problems at Riverland Elementary. Respondent did not ignore, dismiss, or fail to discipline this child. His handling of this incident of disrespect toward an aide was appropriate and consistent with the Discipline Code. (Although the Board faults him for not reporting the incident to the Department of Internal Affairs, Board Policy 4018, reasonably construed, does not require the reporting of every instance of student disrespect toward a teacher.) Since Respondent properly disciplined the child, the charge must fail. COUNT 23 RAT-INFESTED ROOM Count 23 You are hereby charged with failing to take appropriate action to remove kindergarten students at the request of the teacher from a rat infested room after being informed by the teacher that rats were prevalent in the area, subjecting kindergarten students to rat poison which had been placed by custodial personnel in the students' classroom, and refusing from approximately February 28, 1984, to March 7, 1984, to relocate said kindergarten students from said classroom to an empty portable on the school site which action had been formerly requested by the complaining kindergarten teachers which constitutes incompetency and/or misconduct in office and/or willful neglect of duty. On March 1, 1984, Ms. Ordway, a kindergarten teacher at Riverland Elementary, complained to Respondent about a mouse she had seen in her classroom. He told her that he would get the custodian on it right away, which he did on that same day. The custodian set out traps that night, Respondent also went to Ms. Ordway's classroom that night to make sure that the traps were placed so that there would be no danger to the children. He continued to periodically check the room after school throughout the week, he looked for evidence of mice, but found none. Meanwhile, Ms. Ordway did not ask to have her class moved and her class remained at its regular location. (TR-XVI, pp.71- 73,87,155,254) On Thursday, March 8, 1984, approximately one week after Ms. Ordway had complained of a mouse, Mr. Dandy telephoned Respondent and told him of a complaint he had received (presumably from Ms. Ordway) concerning the mice situation. Respondent immediately called the Area Maintenance Office and requested assistance, then contacted Omni Pest Control and asked them to come out that day. (Respondent had not called the exterminator prior to this because neither he nor the custodian had found evidence of mice, and the custodian was actively addressing the complaint.) (TR-XVI, pp.72,154,157) Omni Pest Control came out on Monday, March 12, 1984, around noontime. Respondent immediately relocated Ms. Ordway's class since he assumed that the exterminator might use chemicals hazardous to children. The exterminator treated the classroom and returned two days later to do a follow- up. At 7:30 a.m. on March 19, 1984, the exterminator returned to check the classroom. Respondent, unavailable to talk to him at that time, called him later to check on the classroom's condition. The exterminator, having found no evidence of mice, told him that the mouse sighting "must have been a fluke." (TR-XVI, pp.72-73,86,88,155,157,159) The evidence does not support a conclusion that Ms. Ordway's classroom was infested with mice or rats. She is the only person who sighted one, and her testimony about what she saw, and the frequency of her sighting's, was inconsistent. No other mice were sighted and no evidence of mice was found by those who investigated and responded to her complaint: Respondent, a Health Department inspector, the school custodian, and the professional exterminator. Respondent reacted to Ms. Ordway's complaint in a reasonable and timely manner. The school custodian was the person who would normally investigate and handle such a complaint. When Respondent received a second complaint, he immediately contacted a professional exterminator despite the fact that he and others had found no evidence of mice in the classroom. This charge is based on the exaggerated complaint of Ms. Ordway, a teacher who, seemingly, Respondent could not mollify. COUNTS 24 AND 25 FAILING TO COOPERATE Count 24 You are hereby charged with failing to util- ize the suggestions of parents and teachers and/or work cooperatively with said groups to improve the declining [sic] student disci- pline/behavior problems at Riverland Elemen- tary during the 1982-83 school year, which constitutes incompetency and/or misconduct in office and/or willful neglect of duty. Count 25 You are hereby charged with failing to util- ize the suggestions of parents and teachers and/or work cooperatively with said groups to improve the increasing student disci- pline/behavior problems at Riverland Elemen- tary during the 1983-84 school year, which constitutes incompetency and/or misconduct in office and/or willful neglect of duty. The School Board failed to substantiate its charge that during 1982-83 or 1983-84, Respondent failed to utilize the suggestions of parents and work with them to improve student discipline at Riverland Elementary. Indeed, there is no evidence that any parents made specific suggestions to Respondent concerning ways to improve student discipline. Even if, arguendo, suggestions were submitted, there was no showing that Respondent was obliged to follow theme irrespective of their merit. Although the School Board also charges Respondent with failing to utilize the suggestions of, and work with, teachers, the opposite was shown. Respondent relied on the teachers of Riverland. He routinely asked them to address problems, and suggest specific changes, usually he implemented their suggestions. One of his management techniques to maximize participation was to set up committees of teachers to address problems and make recommendations. His conviction was that since teachers were a vital part of the school, they should have a say in how it was run--and what changes should be made. He respected their views and welcomed their comments. For example, in late 1983 and early 1984, he encouraged the Faculty Council to devise ways to improve student discipline. When the Council presented him with a School Wide Disciplinary Plan (suggesting numerous changes to improve student discipline) he promised to implement it. (In contrast, some teachers refused to cooperate with either the Faculty Council or Respondent, and were determined to leave student discipline problems to Respondent--alone--to solve.) Another example was his formation of a Cafeteria Committee (of teachers) to address student misbehavior in the cafeteria--a focal point of student "horseplay" in most elementary schools. The Committee met and formulated a plan, which Respondent approved and implemented. Both charges must be dismissed for failure of proof. (TR-III, p.387; TR-V, p.708; TR-VI, p.819; TR-XI, pp. 143,149,150,162; TR-XV, pp.59,110; TR-XVI, p.76) COUNT 26 THE CAFETERIA Count 26 You are hereby charged with failing to prop- erly maintain student control and discipline in the cafeteria and/or inadequately super- vising and/or providing inadequate supervi- sion of students which has resulted in chaos throughout the 1982-83 school year and has continued through the 1983-84 school year, which constitutes incompetency and/or miscon- duct in office and/or willful neglect of duty. The School Board has not established a standard against which the adequacy of the supervision and control of students in school cafeterias can be judged. Elementary school students abound with energy and will sometimes run in cafeterias. Such running occurred prior to Respondent's arrival at Riverland, and continues, even now. As one witness summed it up, "Every child runs." . . . [and] "Kids are kids." (TR-X, p.78) These cafeterias are noisy, relatively unstructured places where children, within limits, are free to be themselves. No evidence was presented showing that, on a comparative basis, student behavior in the Riverland cafeteria was any worse than that prevalent in the other elementary schools. Indeed, Dr. Gail Daly (an experienced elementary school principal and chosen by the School Board to investigate Respondent's performance at Riverland) visited the school's cafeteria and found student behavior acceptable. (TR-XV, p.59) Although some teachers were critical of Respondent's visibility in the student cafeteria, they rarely ate their own lunches there (to help maintain order)-- even though they could leave school a half-hour early for doing so. Since most teachers did not eat their lunches with the students, supervision of student behavior in the cafeteria was left, for the most part, to teachers' aides. This was an acceptable practice in the various elementary schools. Any student misbehavior which may have existed in the cafeteria was not serious enough to warrant being brought to Respondent's attention, either by the group of teachers who identified "12 concerns" at Riverland or to Mr. Dandy, the Area Supervisor who responded to them. The teachers "12 concerns" do not mention misbehavior in the cafeteria, neither do Mr. Dandy's letters of February 24, and March 1, 1984 (which identify deficiencies in Respondent's performance and require corrective action). This charge must fail for lack of proof. (P-5, P-6, R-2) COUNT 27 FAILURE TO PERFORM DUTIES AS ALLEGED IN COUNTS 1-26 Count 27 You are hereby charged with failing to ade- quately perform your duties as principal with respect to student discipline/behavior as enumerated in the above counts during the 1982-83 and 1983-84 school years to such an extent that your effectiveness as a principal in this area has been impaired serious enough to warrant your dismissal as principal for "good and sufficient reasons, which consti- tutes incompetency and/or misconduct in office and/or willful neglect of duty. The efficacy of this charge depends on a positive finding that Respondent failed to adequately perform his duties as principal with respect to student discipline during 1982-83 and 1983-84, as alleged in the foregoing counts, Nos. 1 through 26. Since these counts were not sustained by the evidence, the charge fails. COUNT 28 SWILLEY REPORT Count 28 You are hereby charged with failing to demon- strate competent performance as an adminis- trator in one or more of the following areas: the administrative and supervisory require- ments and/or communication skills and/or management techniques and/or exercise learn- ing and goal achievement and/or human and interpersonal relationships for the school year (or any part thereof) 1983-84, which constitutes incompetency and/or misconduct in office and/or willful neglect of duty. Dr. Stephenson, then Associate Superintendent of Personnel, requested a review of Respondent on April 3, 1984, for the purpose of determining his competence. The Department of Education selected Henrietta Swilley (from Bay County) to conduct the competency review. She visited Riverland Elementary from May 1, 1984, to May 3, 1984, (2 1/2 days) one-half day short of the three-day observation required by 6B-5.02(12) Florida Administrative Code. On or about July, 1984, she sent to the School Board her undated and unsigned report. This report was placed in evidence by the School Board as an attachment to a deposition taken of Respondent. Neither Ms. Swilley nor any School Board official testified about the contents of this report, or vouched for its accuracy. Consequently, Respondent's ability to challenge the accuracy of its opinions and conclusions, or examine those who developed or relied on it, was limited. The report, however, is hearsay which, though admissible, can be used only to explain or corroborate other evidence, it cannot, in itself, support a finding of fact. See, 120.58(1)(a), Florida Statutes. Apart from this limitation on its use, the report is replete with factual errors, misstatements, and inconsistencies. It appends materials which do not correspond to references in the report. These errors detract from the weight which might otherwise be given to the report, and place in doubt the credibility of its assertions and conclusions. Several examples should suffice. On pages 4 and 5 of the report, Ms. Swilley reviews teacher observations and evaluations. Of the eight teachers listed, the evaluations of only four were included in the appendix. She indicates that Respondent held conferences with all eight teachers on the same day, May 17, 1983. The four evaluations appended, however, show that the conferences were held on March 3, 16, and April 12 and 15, 1983. On page 5, she faults Respondent of using similar or "patterned" comments on seven of the eight teachers evaluated. But she does not show how this violated any rule or standard of practice. (Mr. Dandy, Area Supervisor, using a similar form, includes no comments, whatsoever, on his evaluations of principals, a practice which, in his views was perfectly acceptable. (TR-XII, p.43).) On page 6, she states: From studying the 1983 evaluations of Ms. Elayna Cross and Ms. Catherine Phoenix it was unclear to this reviewer as to how much time Mr. Sulcer spent observing these teachers. Yet, the time Respondent spent in observing Ms. Phoenix (9:15 to 10:15 on March 3, 1983) is shown on the top of her evaluation contained in the appendix. On page 6, Ms. Swilley further states: If the sampling of evaluations studied is an indication of administrative progress in the area of assessment, all other continuing contract employees on staff would have to be evaluated within 25 days from my visit in order to stay within the confines of the negotiated contract [which prohibited princi- pals from conducting evaluations during the last week of school]. But the evaluations in her sampling were completed, and applied only to the prior school year--1982-83, not 1983-84. Thus her conclusion lacks support. (In fact, Respondent had approximately ten teachers left to evaluate after Ms. Swilley's visit in May, 1984 [TR-XVI, p.77].) Finally, on pages 6,7, Ms. Swilley questions whether Respondent acted as an instructional leader at Riverland. She opines as to what Respondent would have observed if he had visited the classrooms, and includes the results of her interviews with an unknown number of teachers. Among those teachers were Ms. Ross, Ms. Sluder and Ms. Elmore. (These were Respondent's most vociferous critics and members of the original ad hoc faculty committee which identified "12 concerns" at Riverland.) The assertions of Ms. Ross and Ms. Sluder--hearsay, once removed--concerning Respondent's alleged failure to visit or observe their classes are rejected in favor of Respondent's more persuasive testimony to the contrary. (TR-X, p.121; TR-XVI, pp.46-47) The School Board has not shown, by independent evidence, that Respondent failed to demonstrate competence in any of she areas described in this charge. Thus the Swilley Report, even if internally consistent, cannot support a finding of incompetence. This charge must also fail. FAILURE OF SCHOOL SYSTEM TO FOLLOW PROCEDURAL RULES In recommending the suspension and dismissal of Respondent, the Superintendent of Schools failed to follow procedures governing dismissal. Rule 6B-4.08, entitled, "Criteria for Dismissal Procedures," provides: 6B-4.08 Criteria for Dismissal Procedures. When an action or other matter appears to exist which may possibly result in the future dismissal of any employee, the immedi- ate supervisor of the individual should take appropriate action to advise the employee of the matter and the potential consequence if not corrected. Every possible helpful effort should be made by the immediate supervisor to aid the employee to correct the matter which could cause his or her dismissal if not corrected. Except in extremely serious circum- stances, the employee should be given suffi- cient time, following notification, for improvement. Any charges of undesirable traits or practices should be bona fide, verifiable, and clearly stated to the employee in writ- ing. Any employee thus charged should have a fair opportunity to explain or otherwise defend himself or herself, as provided in Section 231.36, Florida Statutes. These criteria mandate that an employee be advised of deficiencies which may result in his dismissals and that he be given sufficient time, following notice, to improve or correct the deficiencies. Here, Mr. Dandy, as Area Supervisor, routinely evaluated Respondent on January 31, 1984, and found him satisfactory when judged against all performance criteria. On February 17, 1984, approximately two weeks later, Mr. Dandy--at the invitation of Ms. Elmore or Ms. Sluder--came to Riverland Elementary and met with some teachers who had gathered to complain to him about lack of student discipline. After hearing the complaints of several teachers, Mr. Dandy--precipitously--told them he was now in control, that they should hence forth come directly to him. Some teachers were intimated by his manner and aggressiveness. Instead of asking individual teachers about any perceived problems, he asked, "Do you feel the rest of the teachers feel . . . is a problem?" or words to that effect. On February 21, 1984, three days later, Mr. Dandy met with the teachers again and, this time, invited Respondent to attend. Respondent, though genuinely surprised by this turn of events, came to the meeting and responded to each of the complaints or concerns raised by the teachers. On February 24, 1984, three days later, Mr. Dandy wrote Respondent outlining the teachers' complaints or concerns and asked for a written response by March 1, 1984. Respondent complied, submitting a timely response addressing, as specifically as possible, each of the concerns. Mr. Dandy responded with a second letter on March 21, 1984, directing Respondent to take eight corrective actions (Mr. Dandy never subsequently evaluated Respondent to determine if those directives were satisfactorily carried out, though he admits improvements were being made.) On March 22, 1984, one day after receiving Mr. Dandy's eight directives, the Superintendent filed the charges against Respondent which later (with one added count) became the basis for Respondent's dismissal. (P-5; P-6; P-19; TR-XII, p.47; TR-XIII, pp. 14, 47, 72, 128, 129) The complaint about Respondent's performance voiced by some teachers to Mr. Dandy were never thoroughly, and conscientiously, investigated or verified by Mr. Dandy prior to his undermining Respondent's authority and, to some extent, taking control of the school away from him. When Respondent was finally informed of the complaints he responded to each in a professional and meaningful way. He was then given "directives," quickly followed by charges, without being given a fair opportunity to take corrective action and effectively respond to the complaints. In their hasty action, school board officials disregarded or were oblivious to the requirements of Rule 6B-4.08. This is all the more perplexing in light of the fact that Mr. Dandy, the Area Supervisor and Respondent's immediate supervisor, never recommended--then or now--that Respondent be dismissed.
Recommendation Based on the foregoing, it is RECOMMENDED: That all charges against Respondent be dismissed, that he be reinstated with full back-pay and emoluments of employment; and that he be awarded reasonable attorney's fees which he actually expended in his defense or which he has legal duty to pay. DONE and ORDERED this 14th day of November, 1985, in Tallahassee, Florida. L. CALEEN, JR. 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 14th day of November, 1985.
