The Issue The issue in this case is whether Respondent had good cause to reject the then Lake County Schools’ Superintendent’s nomination of Petitioner, Dennis Teasley, to be Assistant Principal I of Eustis High School for the 2008-2009 School year.
Findings Of Fact From 1987 until 2006, Dennis Teasley was employed by the Broward County School System. During those years, he served the school system in a number of capacities, including: dropout prevention teacher from 1987-1988; middle school science teacher from 1988-1999; Assistant Principal of Pines Lakes Elementary from 1999-2004; Intern Principal from 2002-2004; and Principal of Pines Lakes Elementary from 2004-2006. The Intern Principal title was used by Broward County School System to designate an assistant principal as a “principle-in-training.” The designation provided an assistant principal with additional opportunities to become involved on a larger scale with the administrative responsibilities of the school. Mr. Teasley’s performance appraisals from Broward County consistently rated him as “Effective” or “Highly Effective” in all the criteria assessed. Additionally, Mr. Teasley received or was nominated for numerous awards based on his performance or the performance of the schools under his charge. For the school year 2003-2004, when Mr. Teasley served as assistant and intern principal, Pines Lakes Elementary earned an “A” rating. For the school years 2004-2005 and 2005-2006, when Mr. Teasley was principal of Pines Lakes Elementary in Broward County, the school earned grades of “B” and “A,” respectively, and achieved AYP each year. “AYP” refers to Adequate Yearly Progress under the No Child Left Behind Act. To achieve AYP, a certain percentage of students from each population demographic represented at the school must achieve a Level 3 or higher in reading and mathematics, as measured by Florida’s “A-Plus” program. Sometime during the summer of 2006, Mr. Teasley either relocated or intended to relocate to the Lake County area. He applied for a position with the Lake County school system. Eventually, he was hired as a principal by Lake County Schools sometime in July, 2006, just prior to the beginning of the 2006- 2007 school year. Mr. Teasley was assigned to Beverly Shores Elementary School. Beverly Shores has a large population of students from lower socioeconomic backgrounds, as well as a large population of students requiring Exceptional Student Education (ESE). The ESE population includes students designated as Emotionally Handicapped (EH), and Educable Mentally Handicapped (EMH). Indeed, 68 percent of the students at Beverly Shores in 2006- 2007 came from economically disadvantaged homes and 11 percent of the students were classified as ESE. The environment of the school was described by most of the witnesses as being a tough environment with a variety of discipline problems. Prior to Mr. Teasley’s appointment as principal, 447 students were suspended from Beverly Shores during the 2005-2006 school year, with 422 students suspended out-of-school (OSS) and 25 students given in-school suspensions (ISS). Eighty of the students given OSS were kindergartners. The principal for that year was described by the Superintendent as being burned-out and needing a respite from such a tough environment. Mr. Teasley entered this environment with insufficient time to familiarize himself with staff and/or review procedures and policies that were in place. He had one Assistant Principal (AP) to support him. Mr. Teasley’s two goals for the 2006-2007 school year were: 1) improving the academic standing of the school, by raising FCAT scores in mathematics and in the lowest performing quartile of students, all without a reduction in the scores for reading and writing; and 2) reducing the rate of serious discipline incidents by 50 percent. Mr. Teasley wanted to redraft the prior year’s disciplinary policy. There was some lack of communication on the status of the redrafted policy between teachers and Mr. Teasley and lack of activity by the committee responsible for the redraft. Eventually, some teachers felt that Mr. Teasley did not support them when it came to disciplinary matters and that Mr. Teasley allowed the students to get out of control. In September or October of 2006, a first-grade student brought a cellophane baggie containing a white powder to school. The police were called to confirm that the substance was cocaine. After confirmation, the child was removed from the custody of his mother, and immediately suspended from school. There was no evidence to suggest that the discipline imposed for this incident was inappropriate. In early September, Mr. Teasley placed an ESE/EH student in a non-ESE class. The student in question had been “retained” (or “held-back”) twice. As a consequence, the student was a seventh-grade-age student in a classroom of third- grade-age children. Mr. Teasley thought that the student’s development would be better met in middle school with similarly aged peers. He, therefore, hoped to have the student reassigned to middle school. While waiting to hear if the reassignment would happen, Mr. Teasley placed him/her in a non-ESE fifth- grade class under the supervision of a teacher with whom he had a good rapport. The decision to place the student in the non- ESE classroom was predicated on a number of factors, including Mr. Teasley’s desire to put the child in an environment where he/she could be successful, as well as, safety concerns regarding significantly younger ESE students being in the same class as the ESE student. Unfortunately, the student was not reassigned to the middle school and Mr. Teasley transferred him back to his original class. After the ESE/EH student was returned to his/her original class, the student “jumped” another student after school was dismissed, breaking the other student’s wrist. The ESE student was immediately given an out-of-school suspension (OSS). However, because the child was an EH student, he/she could only be suspended for a cumulative maximum of ten days, without convening a special ESE disciplinary staffing. Since the student had already been suspended for five days earlier in the year, his/her suspension was limited to five days. After this incident, the student’s parent consented to placement in an alternative school and the student was transferred to the Lifestream school. Again, there was no evidence that Mr. Teasley’s method of handling this student’s behavior problems was inappropriate given the fact that this student was a special education student and special disciplinary procedures applied to such students. Additionally, during the first semester, there was an on-going concern with a second-grade EH student who was “stalking” a female student. Mr. Teasley attempted to have the EH student assigned to the alternative school. However, the student’s mother was “dead-set” against the assignment and the student remained at Beverly Shores. At the same time, Mr. Teasley immediately informed the mother of the child being stalked of what was going on, as well as the steps that were being taken for the girl’s safety. Mr. Teasley assigned an adult to escort the EH student everywhere he/she went on campus. He also rearranged the lunch schedule for the student’s entire class to ensure that the student was not in the cafeteria at the same time as the girl. Again, there was no evidence that demonstrated the steps taken by Mr. Teasley in regard to this EH student were inappropriate given the fact that the student’s mother refused alternative placement and the student was an EH student. Ms. Jule Hand, a kindergarten teacher at Beverly Shores, provided the only direct testimony regarding Mr. Teasley’s perceived lack of support for the faculty. Specifically, she recounted incidents in which she personally sent referrals to the administration and was disappointed when a referral was not addressed on the same day it was written, or when the consequences were not, in her opinion, suitable for the incident. Ms. Hand testified regarding one incident where a student, with a history of significant disciplinary problems and multiple suspensions, pushed two students in her classroom and then threw down all the chairs around the classroom. In the process of throwing chairs, the child hit her and was physically and verbally abusive to her senior volunteer. Ms. Hand called the office for assistance in removing the child from the classroom. The child was removed and received a verbal reprimand with a warning to discontinue the behavior or harsher consequences would follow. To Ms. Hand’s dismay, the student was returned to the classroom. Ms. Hand went on to detail further incidents of misbehavior by this particular child, such as hitting the physical education teacher, spitting in another child’s face, throwing food, grabbing a child from behind, verbal defiance, swinging a metal pipe, and hitting another student with his/her shoulder hard enough to almost knock her over. During this time, the student’s parent was contacted on numerous occasions by both faculty and administrative personnel. Additionally, the student had been suspended twice during the course of these incidents. However, even with these suspensions, the student continued to have disciplinary problems. Mr. Teasley did not want to expel the student and recommended that Ms. Hand contact a social worker and counselor so that the student could be referred to ITOS, a behavioral- intervention study. Eventually, the student left Beverly Shores to attend the study. However, the year following Mr. Teasley’s term as principal, the student returned to Beverly Shores and continued to have behavioral problems. Again, the evidence did not demonstrate that Mr. Teasley’s handling of this matter was inappropriate, given Mr. Teasley’s desire not to expel the student. Ms. Karen Seltzer also testified at hearing about her impressions of the discipline problems at Beverly Shores under Mr. Teasley. Some of her testimony involved the EH student referenced above who again began stalking during the second half of the school year. Ms. Seltzer’s testimony was quite confusing and based on hearsay she had gathered from discussions with other teachers who did not testify at hearing. Furthermore, she also testified that she was unaware of the actions taken by Mr. Teasley in response to the incidents she related. The Assistant Superintendent, Mr. Cunningham, observed the students and environment of Beverly Shores during his visits in the first semester of the school year. The visits were prompted by complaints he or the Superintendent had received about the lack of discipline at Beverly Shores. During his visits to Beverly Shores, Mr. Cunningham observed behaviors that he reported to Mr. Teasley as situations that should be addressed from a discipline and control standpoint. He witnessed students traveling about the campus unsupervised by adults, as well as various unsafe behaviors such as running and jumping. There was some testimony from staff that indicated Mr. Cunningham’s observations regarding unsupervised students were not isolated incidents. Mr. Cunningham also saw classrooms that were cut-off from casual observation (e.g., the blinds were drawn). He also testified that at the beginning and the end of the day, when the entire student body was on the move, he observed that teachers were not “on duty” supervising the movement of students. He instructed Mr. Teasley that during those times it was especially important that teachers be in “supervisory mode.” Mr. Cunningham did not return to Beverly Shores until just before the end of the school year. At some point around March 2007, a parent named Ms. Burry contacted Mr. Teasley about obtaining a Sheriff’s Resource Officer (SRO) for Beverly Shores. Ms. Burry thought a uniformed officer on campus would help with student discipline. Even though a SRO is not involved with student discipline, Mr. Teasley felt that a uniformed officer on campus would serve as a positive role model at Beverly Shores. In support of Ms. Burry, Mr. Teasley attended a March 12, 2007, Leesburg City Commission meeting in which parents and teachers sought funding for an SRO at Beverly Shores. He spoke in favor of the idea. The City Commission referred the request back to the Board. At that point, Mr. Teasley felt that the SRO issue was “out of his hands.” Ms. Burry began to contact the Board and Superintendent about her desire for an SRO on campus and the need for greater discipline in the school. Around March or April 2007, Mr. Cunningham was again contacted by parents who were concerned about safety at Beverly Shores. At about the same time, a representative from the teacher’s union had come to him with concerns about the administration at Beverly Shores and “suggested pretty strongly that they might file a grievance” regarding Mr. Teasley’s performance. Mr. Cunningham did not identify which or how many parents voiced concerns to him. Likewise, he did not identify which or how many teacher complaints created the impetus for the union to consider filing a grievance. None of the parents testified at the hearing. On April 30, 2007, Mr. Teasley sent a letter to Assistant Superintendent Cunningham requesting that an additional assistant principal be assigned to Beverly Shores. As indicated earlier, Beverly Shores operated with one AP in 2006-2007. The letter, in part recognized there was a significant disciplinary problem at Beverly Shores and that the school did not have adequate administrative staff to handle the number of disciplinary referrals. Mr. Teasley made the request based on the approximately 1,200 disciplinary referrals the administration had processed through April 19th of the school year and the amount of time spent on processing those referrals. Mr. Teasley stated that the time spent processing those referrals reduced the time administrators were able to spend in classrooms or on campus. The number of disciplinary referrals was due, in part, to Mr. Teasley’s philosophy of using OSS as a disciplinary tool of last resort. In his view, a child cannot be educated if they are not in school. At some point, the Superintendent became aware of the complaints and problems at Beverly Shores and decided to meet with the staff and faculty to assess the situation at the school. In May of 2007, the Superintendent held two meetings with some teachers and staff of Beverly Shores. Ms. Rhonda Lynn attended those meetings. Her interpretation of the tone of the first meeting was that some members of the faculty and staff were frustrated and searching for leadership and that such leadership should have been provided by the principal and his administration. Some teachers and staff in attendance voiced complaints about Mr. Teasley’s lack of discipline and control of the student population. The Superintendent indicated such complaints would remain confidential. At the second meeting with the Superintendent, Mr. Teasley was present and either various complaints were mentioned by the Superintendent in Mr. Teasley’s presence or he was clearly aware of the complaints that had been made in the first meeting. Ms. Lynn’s interpretation of the tone of the second meeting was that the Superintendent had breached the confidentiality promised the staff in the first meeting regarding complaints about Mr. Teasley and that the staff was very upset over that breach. Ms. Lynn admitted that she could not speak for how every teacher at Beverly Shores felt about Mr. Teasley. Ms. Lynn stated that she never had any discussions with Mr. Teasley regarding an explicit philosophy for dealing with students who had received multiple referrals. She also testified that she had no responsibilities for the processing of disciplinary referrals. Throughout the time period outlined above, Mr. Teasley was formally evaluated by the School District. Originally, Mr. Cunningham would have been assigned to perform Mr. Teasley’s evaluation. However, at the time he would have performed the evaluation, Mr. Cunningham was assigned other duties within the District. Therefore, Ms. Pat Nave, Assistant Superintendent for Curriculum and Instruction, K-12, completed Mr. Teasley’s evaluation. In the course of performing her evaluation of Mr. Teasley, Ms. Nave made four separate visits to the Beverly Shores’ campus. During those visits, Ms. Nave and Mr. Teasley would discuss a number of different topics regarding the operation of the school. Specifically, Ms. Nave and Mr. Teasley discussed his policies for monitoring faculty and student conduct. One such tool for monitoring the campus was a structured system for scheduling the weekly classroom walk-through assignments by members of the school’s leadership team. Based on the reports Mr. Teasley would receive as a result of these walkthroughs, Mr. Teasley would follow up with individual teachers regarding their performance. Additionally, during the evaluation visits, Ms. Nave and Mr. Teasley would discuss the goals that Mr. Teasley had established at the beginning of the year to gauge the school’s progress in the areas he had identified as needing improvement. As noted earlier, those goals were: 1) improving the academic standing of the school, by raising FCAT scores in mathematics and in the lowest performing quartile of students, all without a reduction in the scores for reading and writing; and 2) reducing the rate of serious discipline incidents by 50 percent. Ms. Nave concluded that all of the strategies that had been outlined for reaching those two goals had been, or were being, implemented. With regards to discipline, she specifically noted that referrals had decreased. Indeed, the evidence demonstrated that out-of-school suspensions decreased from 422 the previous year to 221 for the current year and that on-going concerns were being addressed through the safety and discipline committee Mr. Teasley had established, even though the evidence at the hearing showed that this committee was not very active. Additionally, there was some suggestion at the hearing that disciplinary referrals may have been down because Mr. Teasley was not processing such referrals. There was no competent evidence to support such a conclusion. Evidence did demonstrate that Mr. Teasley preferred ISS to OSS. Toward that end, the ISS procedure was altered from the way it had been operated in the years prior to his tenure at Beverly Shores. During the course of the 2006-2007 school year, Mr. Teasley hired a teacher to monitor the ISS room and provide instruction when necessary, eliminated the practice of sending children to the ISS room as a “time-out” by requiring administrator approval, and required teachers to supply the child’s lessons for the periods that the child was in ISS so that the student could keep up with his or her classes. Finally, Ms. Nave discussed the School Advisory Council’s (SAC) performance rating of Mr. Teasley. SAC had given Mr. Teasley a mixed satisfaction rating at one of its meetings. At that meeting, eight members of SAC were present. Four of those members voted that Mr. Teasley was doing a satisfactory job. Four voted that Mr. Teasley was doing an unsatisfactory job. Ms. Nave and Mr. Teasley, nonetheless, discussed the issue of the need to foster a productive working relationship with SAC. After the discussion, Ms. Nave was satisfied that Mr. Teasley was taking appropriate actions to continue working with SAC members to implement changes at Beverly Shores. As a result of this performance review, Mr. Teasley received the maximum amount of points on his evaluation and met the performance criteria of that evaluation. After the evaluation and three weeks before the end of the school year, a fifth-grade student at Beverly Shores wrapped the leather portion of his belt around his hand and began to swing the belt, striking students and adults with the metal buckle. Mr. Teasley and AP Jeff Williams were called to the classroom to assist with restraining and removing the student. Once they got the student to the office, Mr. Teasley immediately notified the police that a battery had occurred, suspended the student for the ten-day maximum suspension period, and began the expulsion process. The student did not return to school that year. No suggestion was made that Mr. Teasley’s response to this event was inappropriate. The belt incident garnered media attention. Shortly after the incident, the Superintendent went to the Beverly Shores campus, but could not locate Mr. Teasley in his office or on campus. She, therefore, sent Mr. Cunningham to the school. Eventually, she assigned Mr. Cunningham, along with Messrs. Mitchell and Habring, to Beverly Shores for the remainder of the school year. The Board also authorized the placement of an SRO at Beverly Shores. Mr. Cunningham testified that within a few days of the assignment of the extra personnel, the discipline situation began to improve and the school began to operate in an orderly way. Mr. Cunningham stated that he started to do the things that he had told Mr. Teasley needed to be done earlier in the year. The actions of Mr. Cunningham included administrative staff becoming more visible on campus while students were in transit from one place to another and dealing with each and every referral on the day in which it was written. Importantly, these actions were accomplished with a significant increase in administrative personnel. From an academic standpoint, there can be no question that Beverly Shores made significant improvements under Mr. Teasley’s direction. Evidence admitted at hearing showed that the school grades from the Department of Education (DOE) based on the students’ FCAT performance for Beverly Shores for the six school years prior to Mr. Teasley’s tenure (i.e., 2000- 2001 through 2005-2006) were “C”, “B”, “B”, “B”, “C” and “C”, respectively. During Mr. Teasley’s time as principal, Beverly Shores earned a grade of “A.” Beverly Shores also achieved AYP. Additionally, Beverly Shores had increases in the percentage of students meeting high standards in mathematics, as well as an increase in the percentage of students in the lower-quartile who made learning gains. The school’s grades did not decrease in the areas of reading and writing. These improvements show that the school was successful in achieving the academic goals that Mr. Teasley had identified at the beginning of the year. It should also be noted that such improvements were also due to the efforts of teachers and other staff at the school. Due to this achievement, Mr. Teasley was one of only 92 principals in the state to receive recognition as a “Turn- Around” Principal in 2006-2007. The “Turn-Around” award recognizes the principal of a school which improves by at least two letter-grades in one academic year. In 2007-2008, the year after Mr. Teasley’s tenure, Beverly Shores’ grade fell back to a “C” and the school failed to make AYP. The evidence did not demonstrate that Mr. Teasley had more discipline problems at his school than in prior years. There was some evidence to demonstrate that there may have been some student control problems related to monitoring the passageways of the school. Those problems were in part due to a lack of sufficient administrative staff to patrol the school. There was also some evidence to demonstrate that Mr. Teasley had lost the support of some of the faculty because he would return students to the teacher’s classroom or not assess a harsher penalty for misbehavior. However, there was only one teacher who testified to support that conclusion. Other staff testimony regarding lack of support and lack of discipline was based on hearsay. Just as Beverly Shore’s grade was not dependent on one person, Beverly Shores alleged discipline and student control problems cannot be attributed to one person. One teacher’s testimony coupled with hearsay and vague testimony is insufficient evidence to conclude that Mr. Teasley was no longer professionally qualified to perform in some capacity within the School District. At a May 21, 2007 Board meeting, Mr. Cunningham gave a report of the actions that had been taken at Beverly Shores to deal with discipline during the time he was assigned there. He also made suggestions for improving the discipline situation at the school going forward. Some of the suggestions involved actions previously sought by Mr. Teasley. At about the same time, the 2006-2007 school year came to a close. The Superintendent began to finalize the academic teams she would recommend to the Board for the 2007-2008 school year. In fact, for the next year, 2007-2008, the Superintendent and the Board recognized the need for additional supervisory staff at Beverly Shores and appointed two APs and a behavioral specialist to the school. The Superintendent was mindful of the events at Beverly Shores and the fact that some of the faculty and staff had lost confidence in Mr. Teasley’s ability to lead the school as principal. She decided not to recommend Mr. Teasley for principal at Beverly Shores. However, she did not want to lose Mr. Teasley’s skills as an administrator and recommended him for a district level administrative position for the 2007-2008 school year. The Superintendent’s recommendation was accepted by the Board and Mr. Teasley fulfilled the duties of that position during the 2007-2008 school year. At the close of the 2007-2008 school year, the Superintendent again created staffing recommendations for the 2008-2009 school year. Toward that end, the Superintendent created staffing recommendations to the Board that considered many factors. The most important factor was the creation of administrative teams for each school that would serve as that school’s “instructional leaders.” Similarly, it was very important that at least one member of an administrative team be well-versed in making learning-gains, raising student achievement and school grades. Mr. Teasley was clearly well- versed and well-qualified in such areas. The Superintendent recognized that since the 1998-1999 school year, Eustis High School had earned a grade of “C”, except for the year 2006-2007, when the school’s grade was “D.” Because of the high school’s performance, the Superintendent intended to make changes at Eustis High School to attempt to address the academic problems and raise the school’s academic performance. Additionally, the school was not known for having any extraordinary disciplinary issues. Mr. Larry was the principal of Eustis High School. He had been appointed the principal of the school because of his success in implementing advanced programs as a principal at the middle-school level. Mr. Larry was also very strong on discipline, had 4 other APs and did not require additional help in the area of discipline. Therefore, the Superintendent was not worried about discipline-related issues at Eustis High School. In putting together an educational team for the school, the Superintendent wanted to place a person who had demonstrated their ability to raise a school’s academic achievement and performance. As indicated, the Superintendent did not want to place Mr. Teasley back at Beverly Shores because that educational team had not been successful. However, Mr. Teasley had skills in school improvement that were very useful to the District. She recommended Mr. Teasley for appointment as one of Eustis High School’s five APs. Her recommendation was based on Mr. Teasley’s proven ability in achieving AYP, his ability to analyze the raw performance data for AYP and to work with teachers to raise the test scores which form the basis of a school’s grade. Indeed, the Superintendent felt that Mr. Teasley was one of the strongest individuals she could recommend to Eustis High School to work with the current administration and to help improve the school’s academic performance. Mr. Larry indicated to the Superintendent that he could work with Mr. Teasley. There was no direct testimony given at the hearing of how Mr. Larry wanted to use Mr. Teasley at Eustis High School, although there was some hearsay testimony that Mr. Teasley would be placed at the Curtright Center, a separate ninth grade center that is approximately 1.5 miles from the main high school campus. The Superintendent recommended Mr. Teasley for the position of AP-1 at Eustis High School. Ultimately, the Board rejected the Superintendent’s recommendation. The testimony at hearing and the evidence admitted shows that the primary reason that the Board rejected the Superintendent’s nomination was because of the Board’s lack of confidence in Mr. Teasley’s ability to maintain discipline and control at Eustis High School. Mr. Cunningham, Assistant Superintendent for Administration and Safety, testified that he did not believe that Mr. Teasley was qualified to serve as an AP-1 at Eustis High School. He based that opinion on his observations at Beverly Shores during the 2006-2007 school year and his opinion that if one loses his administrative authority at an elementary school, that person has “no business” as an administrator of a high school. Mr. Cunningham did not offer an opinion on the academic-improvement functions the Superintendent intended Mr. Teasley perform in the academic team to which she assigned him. In addition, the individual members of the Board testified regarding their reasons for rejecting the Superintendent’s recommendation. Mr. Strong testified that his basis for rejecting the Superintendent’s recommendation related to the situation at Beverly Shores during the 2006-2007 school year; particularly, the perceived lack of administrative discipline that created a disorderly educational environment, and the Board’s decision in May of 2007 to place an SRO at the school. He also stated that his vote was influenced by the public input of Ms. Pam Burtnett, president of the Lake County Education Association (“LCEA”), received by the Board at the June 23, 2008 meeting, and by his conversations in the spring of 2007 with one parent and one teacher from Beverly Shores, Ms. Denise Burry and Ms. Bordenkircher, respectively. Ms. Burtnett was not a teacher at Beverly Shores. Neither Ms. Burry nor Ms. Bordenkircher testified at hearing. However, Mr. Strong also testified that prior to the School Board meeting on May 7, 2007, no one had previously raised the issue of discipline at Beverly Shores at any previous Board meeting, and that he never personally witnessed any discipline problems at Beverly Shores. Ms. Kyleen Fischer testified that she had visited the Beverly Shores campus while it was under the direction of Mr. Teasley. Specifically, she testified that she observed that Beverly Shores’ students were not under control and that they were disrespectful. Based on her observations, she felt that the appointment of Mr. Teasley to Eustis High School would create a safety issue. Ms. Cindy Barrow testified that she did not believe Mr. Teasley possessed the necessary knowledge, skills and abilities to serve as a high school AP-1. She based her belief on information gathered from many different sources, including reports such as the 2006-2007 climate survey, conversations with Mr. Cunningham and Ms. Burry, reports given orally to the Board at the May 21, 2007 and June 23, 2008, Board meetings, and the fact that 22 teachers and one guidance counselor left the school during or after the 2006-2007 school year. However, she did not speak to any of the departing personnel regarding their reasons for leaving, nor did she testify as to any of the specifics regarding the above. Ms. Barrow’s belief was that Mr. Teasley had not been able to maintain order or deal with behavioral problems at Beverly Shores and, therefore, he would not be successful at dealing with behavioral problems at Eustis High School. However, Ms. Barrow admitted that she had never been to Beverly Shores. She believes that a primary duty of any high school AP-1 is to handle disciplinary issues. However, she also testified that she had no specific conversations with Mr. Larry or the Superintendent about how either planned to use Mr. Teasley as AP-1 at Eustis High School. Mr. Metz, who testified that he had never visited Beverly Shores during its hours of operation prior to May of 2007, stated that his decision to vote against the Superintendent’s recommendation was based on the situation at Beverly Shores in the Spring of 2007, his written and verbal communications with concerned parties, and Ms. Burtnett’s presentation to the Board in June of 2008. The Board re-reviewed the issues the Superintendent had already considered in creating her educational teams at the various schools and in making her recommendations to the Board. The Board concluded that Mr. Teasley was not qualified to serve as an AP-1 at Eustis High School based on very broad generalizations about appropriate discipline. The Board’s action was not based on any knowledge regarding the role Mr. Teasley would play in the Eustis administration. As indicated, the Superintendent, as is her authority, considered all of the issues surrounding Mr. Teasley’s tenure at Beverly Shores. She also recognized the successes in academic improvement achieved during Mr. Teasley’s tenure and that those skills were needed at Eustis High School. The Superintendent assembled an administrative team after discussing the team members with the principal of the High School and assuring as much as possible that Mr. Teasley could function within that team. The evidence did not demonstrate that the Board’s assessment should trump the Superintendent’s recommendation regarding Mr. Teasley, especially given the fact that Mr. Teasley had many years of good performance evaluations as an AP in Broward County and a good performance evaluation in Lake County. As a consequence, the Board has failed to carry its burden of showing “good cause” to reject the Superintendent’s recommendation and the Superintendent’s recommendation should be accepted.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: that the Board enter a Final Order reversing its earlier decision and accepting the nomination of the Superintendent. DONE AND ENTERED this 6th day of March, 2009, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 6th day of March, 2009. COPIES FURNISHED: Susan E. Moxley, Ed.D. Superintendent School District of Lake County, Florida 201 West Burleigh Boulevard Tavares, Florida 32778 Stephen W. Johnson, Esquire McLin & Burnsed Post Office Box 491357 Leesburg, Florida 34749-1357 Martha Harrell Chumbler, Esquire Carlton Fields, P.A. 215 South Monroe Street, Suite 500 Post Office Drawer 190 Tallahassee, Florida 32302-0190 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Dr. Eric J. Smith Commissioner of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
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.
The Issue The issues in this proceeding involve Petitioners' challenge, pursuant to Section 120.54(4), Florida Statutes, of the proposed adoption by the School Board of school attendance boundaries and attendant policy changes for implementation beginning with the 1981-82 school year. Initially, Petitioners challenged both the proposed zones for high and elementary schools. However, during the pendency of this proceeding, Respondent withdrew the proposed attendance zone changes for elementary schools, thereby rendering issues related thereto moot, and leaving only the high school boundaries for further consideration. In summary, Petitioners claim that the proposed rule amendments, including maps prepared in conjunction therewith, are an invalid exercise of delegated legislative authority by virtue of the School Board's failure to comply with procedural and substantive requirements of Chapter 120, Florida Statutes. Petitioners allege that deficiencies exist in procedures utilized by the School Board prior to publication of its notice of intent to adopt the proposed rules, in the advertisements and economic impact statement prepared in conjunction with the proposed rule amendments, and in the allegedly arbitrary and capricious nature of the Proposed changes from current attendance boundaries. Petitioners further claim that the School Board's announced intention to utilize student race as a factor in drawing attendance zones is unconstitutional and beyond the School Board's delegated legislative authority. The Respondent contends that each of the Petitioners is without standing to maintain this rule challenge pursuant to Section 120.54(4), Florida Statutes; that the preadvertisement procedures followed by the School Board are not jurisdictional insofar as this present proceeding is concerned; that any deficiencies in the legal notices or economic impact statement constitute harmless error; and that the proposed rules are a valid exercise of legislative authority delegated to it in Sections 230.23(4) and 230.232, Florida Statutes.
Findings Of Fact The School Board of Leon County, Florida, is an "agency" as defined in Section 120.52(1), Florida Statutes, and is charged by law with direction and control of grades Kindergarten through 12 for all public schools in Leon County, Florida. Respondent is required by statute to promulgate rules and regulations establishing attendance zones for grades Kindergarten through 12, and has proposed for adoption certain amendments to its existing rules which will have the effect of changing attendance boundaries for middle and high schools located in Leon County, Florida. On May 5, 1981, the School Board withdrew previously advertised plans to adopt modified attendance boundaries for the 1981-82 school year, but announced its intention to continue its rezoning efforts. The School Board held a workshop meeting to discuss rezoning on May 14, 1981. This meeting was noticed in the legal advertisement section of the Tallahassee Democrat on that same date. Action on rezoning was taken at the meeting, and the meeting was recessed until the evening of May 18, 1981. No formal notice of the recessing of the May 14 meeting or the reconvening of that meeting on May 18 was published in any newspaper. On May 18, the May 14 workshop was reconvened. At this meeting the public addressed questions to the School Board members and staff. The Board announced at this meeting that it would discuss the matter further at its regular meeting the following night, May 19, 1981, and that the general issue of rezoning was already on the agenda for the May 19 meeting. The School Board also directed the Superintendent to "take administrative steps as are necessary to schedule a special meeting of the Board pursuant to provisions of Section 230.16, Florida Statutes." This reconvened meeting held on the evening of May 18, 1981, was the subject of an article in the May 18, 1981, edition of the Tallahassee Democrat, which carried a news article reporting on rezoning under the headline, "The rezoners are feeling the pressure." This newspaper article included a special separated section entitled "Meeting is Monday," which directed the public's attention to the time and location of the workshop meeting that night. Toward the end of the regular School Board meeting on May 19, 1981, the School Board recessed and subsequently reconvened to discuss rezoning. The School Board held an extensive discussion on various topics related to rezoning, and responded to questions from the public. Two subsequent meetings were then scheduled. The first was a workshop meeting on rezoning to be held on May 25, 1981, and the second was a meeting scheduled for May 26, 1981, to direct the Superintendent to advertise the proposed modified school attendance boundaries. On May 20, 1981, in the Special Notice section of the Tallahassee Democrat, an ad appeared noticing a "special meeting" of the School Board at Belle Vue Middle School on May 26, 1981, beginning at 7:00 p.m., to discuss rezoning. On May 21, 1981, in the Legal Advertisement section of the Tallahassee Democrat, an ad appeared noticing a "special emergency meeting" at Bond Elementary School beginning at 5:00 p.m. on May 26, 1981, to deal with rezoning, which notice indicated that the meeting time and place was a rescheduling of the meeting previously set for Belle Vue Middle School. The May 25, 1981, workshop meeting was noticed in a legal advertisement in the Tallahassee Democrat on May 22, 1981. In a news article on rezoning published on Sunday, May 24, 1981, in the Tallahassee Democrat, which article was entitled "Rezoners can't find all the answers," the purpose, times and locations for both the May 25 workshop and the May 26 special emergency meeting were contained in a special section set off from the remainder of the article. The Petitioners challenging the modification of the high school attendance boundaries in this proceeding testified that they were each present at the May 26 meeting. At the School Board meeting on May 26, 1981, there were approximately forty to fifty members of the public in attendance. Members of the public addressed the School Board during the meeting. Several modifications were made to the maps and the language of the proposed rule amendments at this meeting. At the conclusion of the meeting, the Superintendent was directed to initiate in accordance with Chapter 120, Florida Statutes, the adoption of modified school attendance boundaries and associated language changes in as expeditious a fashion as possible. On June 3, 1981, four legal advertisements pertinent to this proceeding, each entitled "Notice of Intent to Adopt a Rule," appeared in the Legal Notices section of the Tallahassee Democrat. These notices were titled 6GX37-3.02(1) High School; 6GX37-3.02(1) Middle School; 6GX37-3.02(1) Elementary School; and 6GX37-3.02 Assignment of Pupils. Under the economic impact portion of the four advertisements is the phrase, ". . . [p]arents of students who elect to be grandfathered are responsible for transportation and the costs associated with that responsibility." The maps containing the proposed high school attendance boundaries are Respondent's Exhibits 8(d) High School City Map, and 8(e) High School County Map. The two high school maps were referenced in the legal advertisement denominated 6GX37-3.02(1) High Schools. By its actions, the School Board proposes to amend Rule 6GX37-3.02(1) to read as follows: The Establishment of Schools. All public schools operated by the School Board of Leon County, Florida, shall be for its residents and for such other students as may be authorized by the Board and shall be fully desegregated. The School Board shall from time to time promulgate atten- dance zones so that each school will serve those students residing in each such zone. The Board shall also establish student capacities for, and grades served by, each school in the county, which may be modified by the Board as required. Maps showing the attendance zones applicable to each school, including grades served by each school, shall be maintained in the Office of Student Services and shall be available for public inspection. The School Board also proposes to amend Rule 6GX37-3.02(2) to add the following provision: Grandfathering. The following standards shall be for grandfathering certain students, provided that their residence remains unchanged, in order to preserve educational continuity. Once a student has indicated his or her choice, in writing, changes may be made through application to the Board Reassignment Subcommittee. The Board shall, upon request, allow students who were enrolled in a high school during the 1980-81 school year to remain at that same high school if the new zones for the 1981-82 school year put them in the attendance zone of a different high school so long as the parents shall be responsible for all necessary transportation. (Emphasis added). The School Board is not presently under any federal or state mandate to rezone the school system in Leon County. The School Board is, therefore, performing a purely discretionary function in undertaking its current rezoning effort. Respondent's express purpose in rezoning Leon County high schools for the 1981-82 school year is . . . to make more effective use of school facilities and to seek greater racial balance among the four high schools." In the preparation of school attendance boundaries the School Board, for statistical purposes, divided Leon County into a large number of small geographical areas called "study areas" or "study zones." The number of students residing in each study area was determined by both race and grade level, and this information was then placed in a computer to establish an accurate baseline of current attendance data for making various enrollment projections. In connection with the proposed zoning changes, the School Board administrative staff attempted to bring current and make as accurate as possible the data used in the rezoing process. Current enrollment figures at the high school level were updated through April 8, 1981. In making the various projections based upon available data, the School Board, through its consultant, used "cohort survival rates," a student projection technique developed by the Florida Department of Education for use throughout the state by school districts considering modification of school attendance boundaries. It is recognized that, although this projection technique is commonly accepted, it is subject to the normal errors inherent in any such predictive technique. On February 3, 1981, the School Board adopted five of eight criteria recommended by the Superintendent to be considered in drawing new attendance boundaries. These criteria, although never formally adopted as "rules," were used by community volunteers, staff, consultants, and ultimately the School Board itself in the development of the maps delineating the proposed new attendance boundaries. These criteria are as follows: * * * That the concept of neighborhood schools be adhered to in the revision of the attendance areas, but that non-contiguous attendance areas be allowed where necessary to achieve the desired racial composition. That natural boundaries be used to define attendance areas insofar as it is possible, avoiding duplicate transportation service on individual roadways. That the minority enrollment in any school be not more than 10 percent above or 10 percent below the percent of minority enrollment in that school level in the county as a whole, excluding Chaires, Concord, Fort Braden and Woodville Elementary Schools. That rising 5th, 8th and 12th grade students, on request, be permitted to continue in attendance if their resi- dence is placed in another school attendance area, with any needed transportation being provided by the parent and not the School Board (an exception to this rule should be made for students whose school of atten- dance was changed by the School Board in August, 1980, and transportation be provided at district expense in the event that the attendance areas affecting them are changed this year and the parents desire to have their children continue to attend the school they are attending in 1980-81). That the transportation needed to accomplish the desired racial compo- sition of each school be provided in as efficient and cost effective manner as possible, consistent with Florida Laws and Regulations, and School Board policy on hazardous areas. (Emphasis added). There are four high schools in Leon County: Leon, Godby, Rickards and Lincoln. Enrollment figures for the four high schools, as of April 8, 1981, are as follows: Leon, 1,690; Godby, 1,430; Lincoln, 1,664; and Rickards, 928. White students attending each of the four high schools comprise the following percentages of the total student body: Leon, 78 percent; Godby, 64 percent; Lincoln, 73 percent; and Rickards, 49 percent. The recommended capacities for the high schools in Leon County, based upon the School Plant Survey of Leon District Schools conducted by the Florida Department of Education, are: Leon, 1,644; Godby, 1,556; Lincoln, 1,704; and Rickards, 1,465. In designing the proposed attendance boundaries for the 1981-82 school year, the School Board's consultant used a recommended enrollment figure supplied to him by the School Board staff. This recommended enrollment figure was not the same as the physical plant capacity figure. These recommended enrollment figures were, however, closely related to plant capacities, any differences between the two figures being reflective of various other program considerations. The most reliable prediction of future enrollments at the various high schools, which takes into account the estimated effect of grandfathering under the proposed amendments, reveals that for the first three years in which the proposed school boundaries are to be in effect, anticipated enrollments will be within the physical plant capacities of the various high schools. In addition, under the proposed zone changes, the racial composition of the student populations at each of the four high schools is projected to be within the 10 percent criteria established by the School Board by March of 1984. Rickards is the only high school in Leon County which does not presently meet the plus-or- minus 10 percent racial composition criteria. However, as indicated above, according to the School Board's projections, Rickards should meet that criteria during the 1983-84 school year. The greater number of students assigned to Rickards under the proposed zoning changes will make use of available and currently unused space, and, because of increased student enrollment, the diversity of course offerings should also increase. This is so because the amount of funds allocated to a given school is directly related to the number of students enrolled. Thus, for an under-enrolled school such as Rickards, fewer funds are generated under the statewide funding formula for that facility, which, in turn, may result in fewer programs being offered to students. There are, in fact, some courses not presently offered at Rickards that are available in other county high schools, due, at least in part, to under-enrollment at Rickards. The record in this proceeding does not establish with absolute certainty the total number of students either eligible for or expected to exercise the grandfathering option for the 1981-82 school year. However, a poll conducted by the School Board indicates that from 90 percent to 100 percent of students eligible for grandfathering will exercise that option, and estimates of potential school enrollments are partially based on that assumption. In fact, all student petitioners in this proceeding eligible for grandfathering testified that they would take advantage of that option. The reasons for this choice generally dealt with current school activities and friendships, and was consistent with the policy expressed by the School Board "to preserve educational continuity." The economic impact of the grandfathering provision on parents required to furnish transportation as a result of electing that option was not addressed quantitatively in the School Board's Economic Impact Statement. With regard to this cost factor, the Economic Impact Statement provided that: Current Board policy provides that bus transportation will be provided by the district if the residence of the parent is more than two miles from the assigned school. None of the proposed rule amendments modify this basic policy; however, the policy changes in 3.02 allow for the "grandfather- ing" of students in certain grade levels subject to the requirement that the parents provide all necessary transportation. To the extent that a parent voluntarily chooses to assume that responsibility, that parent may incur associated costs such as gas and oil. There is no indication in this record that the School Board considered the potential cost and feasibility of providing transportation at School Board expense to those students choosing the grandfather option who live two or more miles from the "grandfathered" school. Testimony at the final hearing estimated transportation costs of $367.20 based upon an average driving distance between a student's home and school of 5.1 miles (based on the length of the average bus route), full attendance for the full 180 student school days, and a 20 cents- per-mile cost, which is the current state reimbursement rate for travel by automobile. Naturally, actual transportation costs would vary substantially, depending upon the type of vehicle driven, the number of students transported, the student's actual attendance pattern, carpooling, travel routes, and other associated factors. The parents' responsibility to assume these transportation costs in the event of electing tee grandfathering option is pointed out both in the rule advertisements and the Economic Impact Statement. The School Board has other existing policies which allow a student to attend a school different from that to which he is assigned based upon the location of his residence. These include the School Board's majority/minority transfer policy and instances in which a student requests to attend a special program at another school which is not available at his assigned school. In all such cases, the School Board requires that the student or his parents provide transportation at their own expense. The Economic Impact Statement prepared by the School Board in conjunction with the rule adoption process was based upon materials developed by the School Board staff on impact costs associated with rezoning in their areas of administrative responsibility. The Economic Impact Statement itself was based ". . . upon the premise that only those incremental, out-of-pocket costs attributable to the policy revision and rezoning process are included." Previously committed, or "sunk," costs such as salaries and related employee benefits were explicitly excluded from the analysis, although such costs were significant since the rezoning process absorbed a great deal of staff time. Similarly, "opportunity" costs, in the form of benefits foregone by directing district resources to rezoning rather than other goals were specifically excluded from consideration in the Economic Impact Statement. These base assumptions were described in the Economic Impact Statement itself. Petitioners, Joseph and Piercie Ehrlich, reside in Leon County, Florida, with their two daughters, Stephanie and Betty, who presently attend Lincoln High School. Under the proposed rezoning plan, the Ehrlichs' daughters would be required to attend Rickards High School, unless they choose the grandfather option in order to remain at Lincoln High School. Lincoln High School is located 1.58 miles from the Ehrlich home, and it is approximately 5 miles to Rickards High School from their residence. In the event that the proposed amendments to the school attendance zones are adopted, both of the Ehrlichs' daughters testified that they will exercise the grandfather option in order to continue to attend Lincoln High School. Petitioners, Robert and Joni McDermott, reside in Leon County, Florida, with their daughter, Dana, who is presently a student at Lincoln High School. The McDermotts' daughter will be required to attend Rickards High School, unless, as she testified, she exercises the grandfather option, should the proposed school attendance zones be adopted. The McDermott residence is located 2 miles from Lincoln High School, and approximately 3.5 to 4 miles from Rickards High School. Curt and Linda McKenzie reside in Leon County, Florida, with their daughter, Kris, who is a student at Lincoln High School. If the proposed rezoning amendments are adopted, Kris will be required to attend Rickards High School, unless she chooses to remain at Lincoln under the grand fathering provision. The McKenzie residence is located 1.6 miles from Lincoln High School, and approximately 4 miles from Rickards. A. P. and Judy Floyd reside in Leon County, Florida, with their child, Tracy, who would be entering the 9th grade at Lincoln High School, absent the proposed amendments to the school attendance zones. However, under the proposed plan, Tracy will be required to attend Rickards High School for the 1981-82 school year. Lincoln High School is located 1.6 miles from the Floyd residence, and Rickards High School is located 4.4 miles from their home. Counsel for both Petitioners and Respondent have submitted proposed findings of fact for consideration by the Hearing Officer. To the extent that those findings of fact have not been adopted in this Order, they have been rejected as being either irrelevant to the issues in this cause, or as not having been supported by the evidence.
Findings Of Fact The Petitioner, James Toward, is the Director of the Glendale Montessori School in Stuart, Florida and is the licensee of a license issued by the Florida Department of Health and Rehabilitative Services ("DHRS") pursuant to Section 402.308, Florida Statutes (1987). DHRS granted Petitioner License Number 093088 to operate a child care facility at 1055 East Tenth Street, Stuart, Florida. DHRS also granted Petitioner License No. 093087 which is not affected by this proceeding. The Glendale Montessori School is based upon the Montessori method of teaching and offers a toddler program, a preschool program, a lower elementary school program, an upper elementary school program and a junior high school. At the time of the hearing, there were approximately one hundred and fifty students at the school, of which fifty-three were in preschool. Brenda Williams was employed at the Glendale Montessori School by James Toward. She was an employee at the school from 1983 through the summer of 1987. Ms. Williams was hired as a receptionist, but her duties evolved into secretarial duties, bookkeeping, escorting children to and from their cars to the school and vice-versa, receiving parents of the children, taking prospective parents through the school, maintaining records and taking payments. She also looked after children when they were hurt, administered first aid and transported children. Brenda Williams' office was located in the front office of the main school building. The office was adjacent to the preschool and the children passed through her office enroute to and from the classroom. On May 26, 1987, Susan K. Barton, District Screening Coordinator for DHRS, sent a letter to the Director of Glendale Montessori School. This letter was received by Petitioner shortly after that date. In her letter, Ms. Barton advised Petitioner that DHRS had conducted a background check on Brenda Williams and that she was disqualified from employment in a sensitive position involving children. The letter further advised Petitioner that "refusal on the part of the licensee or facility to remove a person who has been found to be in noncompliance with minimum standards for good moral character from direct contact with children ... may result in denial, suspension or revocation of ... licensee's license, as well as other penalties." The letter also requested that Petitioner supply written confirmation that Brenda Williams "has been removed from any direct contact with children ... at your facility." The background check conducted by DHRS on Brenda Williams revealed that she had previously been arrested and pled no contest to a controlled substance violation. Adjudication was withheld. Ms. Barton did not direct Petitioner to "fire" Brenda Williams nor to remove her from contact with elementary school children. Her focus was to remove Brenda Williams from direct contact with preschool children by which she believed meant "being in general proximity" of the preschool children. In response to DHRS' letter, Petitioner removed Brenda Williams from her secretarial duties and changed the location of her office. She was given responsibility for bookkeeping and accounting for the school. Her new duties included working on financial books, closing accounts, preparing registration documents and contacting parents by telephone. Brenda Williams' office location was removed from the front office of the main school building and placed in a separate building approximately fifty yards from the classroom building where the preschool children were located. On June 1, 1987, Petitioner sent a letter to Ms. Barton in response to her letter and stated that Brenda Williams had been removed from direct contact with the children of the school. The Petitioner did not inform any of the other employees or the parents of Brenda Williams' shift in responsibilities because he did not want to cause her any embarrassment since she had been employed there for five years and had done excellent work. Although Petitioner changed Brenda Williams' office location and responsibilities, Ms. Williams performed some of her old duties while Petitioner was not on the premises. On occasion during July and August of 1987, Brenda Williams occupied her initial position at the front office and escorted children to and from the school. In addition, during the same time period, children would sleep or rest in her office while no other employees of the school were present. On September 26, 1987, Petitioner received a Notice of License Denial dated September 25, 1987, notifying him that DHRS was denying the renewal of his license to operate a preschool day care facility. The notice further stated that the license denial was predicated upon the fact that although he was previously notified that one of his child care personnel was disqualified from working at his facility in contact with children, the employee had continued in such capacity during the summer of 1987. Brenda Williams was no longer employed at the Glendale Montessori School when the Notice of License Denial was issued on September 25, 1987.
The Issue Whether Respondent shall be dismissed from employment with the Dade County School Board upon grounds of incompetency and gross insubordination pursuant to Section 321.36, Florida Statutes, and Rules 6B-4.09(1) and 6B-4.09(4), Florida Administrative Code.
Findings Of Fact Respondent was, at all times relevant, an employee of the School Board of Dade County, Florida on an continuing contract as a teacher. Respondent is a 49 year old native of Bolivia, South America. She was educated in Bolivia, Paris, and the United States, receiving a Bachelor's degree from the University of Miami in approximately 1969 and a Master's degree from Northwestern University. Respondent's positions with the Dade County School Board may be summarized as follows: In early 1970 she was a teacher of English as a Second Language (ESOL). From 1971 to 1973, she served as a media specialist (librarian) at Blue Lakes Elementary School. From 1973 to 1978 she was a media specialist (librarian) at Seminole Elementary School. From 1978 to 1981 she was a third grade teacher of normal students at Douglas Elementary School and from 1981 until her suspension between the 1983-1984 and 1984- 1985 school terms, she was a first grade teacher at Kinloch Park Elementary School. Respondent started employment with the Dade County School Board in 1970. While employed, she received annual evaluations; her evaluations and performance from 1971 to November 1, 1983 were all favorable, except for an evaluation in the 1979-1980 school year. Approximately June 3, 1980, Respondent was given an annual evaluation for her performance as a third grade teacher at Douglas Elementary School for the 1979-1980 school year. Therein, then-principal Eugene Turano found her unacceptable in six of the eight observable evaluation criteria. This annual evaluation resulted from two formal observations. In February 1980, Respondent was observed and evidenced disciplinary and teaching difficulties related to the reading program. This was Respondent's first experience teaching third grade and her first assignment to that school. Mr. Turano assigned Ms. Whipple, his assistant principal, to work with Respondents concentrating on lesson planning. The subsequent observation did not indicate much improvement. At each of these observations, Respondent had the entire third grade in one reading group, which grouping was felt by Mr. Turano not to respond to individual needs. Also bulletin board use by Respondent was not conducive to encouraging student interest or providing assessment feedback. Respondent stayed at her desk instead of giving children individual attention. Because Respondent was thereafter absent on sick leave from March until May 1980, there was no time for diagnostic prescription. As a results Mr. Turano gave Respondent the benefit of the doubt and did not formally recommend her termination or return to annual contract as he normally would have done. He did formally recommend her for employment and did personally suggest to Respondent that she take some summer school courses. In March, 1981, the Respondent received an official letter of reprimand for failure to implement her authorization for a period of leave of absence from the school system. Although this constitutes official disciplinary action by Petitioner, Dr. Gray's explanation of the reasoning behind it is not persuasive that anything occurred here beyond an absenteeism problem eventually fully- authorized by Petitioner. Respondent came to Kinloch Park Elementary in the 1981- 1982 school term to teach first grade. Respondent's 1981-1982 annual evaluation by then- principal Dr. James McKenna was overall acceptable. Then-Assistant Principal Lucy Williams observed Respondent in the 1982- 1983 term and, finding her teaching deficient, put Respondent on prescription. Her class of two groups of non-readers and one group which had just begun to read at the first grade level was kept small. Mrs. Williams taught all lessons herself for a while and gradually released the class to Respondent's full control again. Because Respondent complied by keeping adequate grades and lesson plans, by dividing her reading students into three groups, and by decorating with visual aids on the bulletin boards, Mrs. Williams removed Respondent from reading class prescription in the spring of 1983 before Mrs. Williams' transferred to another elementary school. Mrs. Williams removed Respondent from the prescription without observing her in reading. At that time, however, Respondent continued to have assistance in the area of math instruction. Starting in the 1983-1984 term, Respondent taught a Chapter One first grade class of 15 both English-speaking and non-English-speaking students. Kinloch Park Elementary had become an all Chapter One school in February, 1983. "Chapter One" is a classification that comprises students in a federally funded program designed to teach only basic skills for the entire day. The Chapter One first grade class of Respondent was in the lower twentieth percentile of learning ability. On November 1, 1983, Respondent was formally observed by Kinloch's new principal, Dr. Cecelia Hack, for evaluation purposes. New, more detailed observation forms were being used by Dade County at this time. Respondent was found to be unacceptable in six of the eight standard evaluation criteria. Most noticeably, Respondent was failing to use the directed reading approach all teachers had been instructed by Dr. Hack to use. This system, contemplated by the teacher's manual, provides for assembling three reading groups based on individual student assessments, which groups rotate through activities made up of teacher direction and two varieties of follow-up activities. Based upon Dr. Hack's observations and testimony, it is found that on this occasion, Respondent concentrated too much time on the workbooks did not provide the group working independently with sufficient and correct materials, did not have her evaluation folders up to date and had only one grade per child and that grade was for report card purposes. She also had not returned adequate amounts of graded materials to the students so as to provide acceptable feedback and encouragement to them. Dr. Hack further observed lack of courteous interchange between Respondent and her class. Respondent's comments to her students were terse, intimidating, and not encouraging to small children. The Room was cold and sterile without lively bulletin boards to spark student interest, encourage desire to learn, or to provide pride of accomplishment and additional feedback to the students. Respondent conferenced with Dr. Hack and the assistant principal, Norma Aguilar, on November 3, 1983 and was put on prescription. Among other actions for remediation, Dr. Hack suggested that Respondent provide classroom activities reflecting the assigned instruction policy. She further suggested that Respondent sit and plan on a regular basis with two other teachers of Chapter One first graders. She arranged for Respondent to visit other classrooms and asked Dr. Charles Sherwood, Petitioner's Director of Basic Education, to send members of his staff to work with Respondent. A Mrs. Gonzalez, Chapter One Specialist, came several times to assist Respondent in implementing the Chapter One program. Mrs. Ellen Williams came to update the student assessments for Respondent. A time- line was established for December 1, 1983. Assistant Principal Aguilar's assistance was part of the prescriptive measures assigned for Respondent. She visited Respondent on at least a weekly basis to check on Respondent's lesson plans and to talk about what Respondent was supposed to be doing. Respondent was instructed that she must duplicate her own materials for class as that was part of each teacher's duties, but she was provided reading materials she needed on her prescription and tapes with recorded lessons so that the children could do more independent work. Respondent expressed resentment of the prescribed activities. She turned in no lesson plans. Mrs. Hack also expected Respondent to attend an in- service course on the primary education program (PREP) and that she use "RSVP," a diagnostic prescriptive reading program. Although Respondent completed the in-service workshop ending in late February or early March, she did not complete her material to be turned in until June 25, 1985. On December 6, 1983, Respondent was formally observed by Assistant Principal Norma Aguilar, for evaluation purposes and was found unacceptable in three categories of the standard evaluation criteria. Mrs. Aguilar had been part of Respondent's previous prescription. Because of hers and Ellen Williams' involvement, the requirement for assessment techniques had been met and the grade book was up-to-date. Respondent had improved her teacher-student relationships somewhat in that Respondent had learned to give some positive reinforcement to her students. At that time, although some deficiencies had been corrected pursuant to the previous prescription, Respondent remained unsatisfactory in preparation and planning knowledge of the subject matter, and in techniques of instruction. Instructional activities, and follow-up thereto and reading progress were inappropriate for the students. Various groups now were set up but all groups were set at the same activity at the same time instead of each group rotating through three activities within each instructional hour. Respondent continued to use terms considerably above the children's understanding; her directions were unclear to small children; and she persisted in using only the workbooks for directed teaching. Prescriptive measures were again set out for the improvement of Respondent's teaching performance. On February 15, 1984, Respondent was again formally observed for evaluation purposes by Dr. Hack and was found unacceptable in five categories of the standard evaluation criteria. One category was not rated. The deficiencies were much the same as in November 1983. Particular problems were again noted in preparation and planning knowledge of the subject matter, classroom management, and techniques of instruction. Arrangements had not been made by Respondent for materials and the supplemental activities were not appropriate for the children doing the lesson plans. The children exhibited little respect for the material and did not seem to understand what was expected of them. Respondent constantly found fault with the children but contrariwise accepted sloppy written work. Respondent answered this criticism by saying she did not concern herself with neatness and manuscript form on math papers. Mrs. Hack felt Respondent was confused about what she was doing and although Respondent was grading more papers, Respondent was not returning graded papers regularly to meet the constant need of the children for feedback. Mrs. Hack felt Respondent's class should have moved much faster by so late in the school year and that the reading aspect was very weak. As remediation, Dr. Hack prescribed that Respondent use the teacher's manual and the "RSVP" decoding kits and books and that Respondent emphasize independent student activities that would keep all the students constructively occupied throughout each class hour. Further prescriptive measures were assigned. On March 22, 1984, Respondent was formally observed by Dr. Charles Sherwood, Petitioner's Director of Basis Education, for evaluation purposes and was rated unacceptable in four of the standard evaluation criteria. One category was not rated. At that time, Respondent's lesson plan was unacceptable because it provided insufficient student work. She was not using the required "9-block plan," rotating three groups of readers three times during the class session in twenty minute intervals per rotation. Her lesson plan showed an absence of anything but page numbers, which was directly contrary to county policy requiring minimally that objectives, independent activities, and evaluation methods be set out in the formal lesson plan. Appropriate classroom management was lacking in that many students were off- tasks although Dr. Sherwood noted that there was no genuine misbehavior. Respondent's only technique of instruction remained the directive approach. Her assessment technique was deficient in that only the first few weeks' assessment scores were evident. The children were about five months behind others comparably situated. In Dr. Sherwood's opinion, Respondent's excessive verbal instruction was not good for young students struggling with English who needed demonstrations rather than lectures. He felt Respondent's students were making less progress than normal for a Chapter One class. Further prescriptive measures were assigned Respondent after a conference with Dr. Hack. On April 18, 1984 Respondent was observed and evaluated again by Dr. Sherwood as unacceptable in four criteria. Two criteria were not rated. This left Respondent unacceptable in four out of six categories. Because of the short timeframe for prescribed remediation, Dr. Sherwood had assigned Ellen Williams' Director of the South Central Reading Center, to help Respondent. Mrs. Williams had worked with Respondent on methods of directing a reading lesson, maintaining close access to a chalkboard for introducing new vocabulary in context without the teacher having to leave the reading group, and had helped Respondent arrange the classroom furniture for group reading (instead of using rigid rows of desks). Thereafter, Respondent had returned the room to its original state. Dr. Hack and Mrs. Aguilar confirmed that a mobile chalkboard had been provided Respondent. Respondent explained her removal of the mobile chalkboard from her room as being done due to safety considerations occasioned by its sharp edges in near proximity to the faces of small children, but this does not explain why Respondent could not accomplish physical rotation of three groups of children so that each reading group would be near Respondent at the wall chalkboard during one of the required three teaching activities. The problems and unacceptable teaching activities observed by Dr. Sherwood on his second visit were very similar to those he observed on his first visit: absence of evaluation procedures and all students doing the same lesson regardless of their level of achievement. However, with Mrs. Williams' help, Respondent's records for evaluating student levels remained relevantly current. Dorothy Adside, an administrator at the level between area supervisor and school principal observed Respondent teaching on May 30, 1984. Prior to this observation, Mrs. Adside dispatched a primary educational specialist Mrs. Fulton, who conferred with Respondent and gave Respondent in-the-classroom assistance on two occasions. At the May 30 observation, however, Mrs. Adside found Respondent not acceptable in the categories of preparation and planning classroom management, techniques of instruction, and teacher-student relationships. She noted that there were no motivations for the children, not sufficient vocabulary development and not sufficient questioning from Respondent or use by her of visual study aids. Respondent's use of the "Round Robin" method of oral reading prevented the children from following her in their books as she read and otherwise thwarted the idea of rotating three activities for each group within a single class period. As a result of all the previous observations, evaluations, and unfulfilled prescriptions, Respondent's annual evaluation for the 1983-1984 school year was found to be unacceptable in four categories and unacceptable overall on June 1, 1984. There is a significant discrepancy between the testimony of the Petitioner's witnesses and that of Respondent with regard to the in-service courses assigned as prescriptive measures. On the basis of the documentary evidence as well as the candor, demeanor, and credibility of all witnesses as well as the detail provided by Dr. Hack and Mrs. Aguilar concerning these prescriptive measures and their personal observation of Respondent's participation and non-participation in all or part of these courses, Respondent's testimony that no course assignment was ever made is not persuasive. It is found that Respondent was orally requested to enroll in certain in-service training programs offered for February 25 to March 3, 1984, April 10 to May 15, 1984, May 5 to May 12, 1984, and June 2 to June 9, 1984, but these requests were not always reduced to a written prescription and Respondent may, indeed, have understood that she was only required to attend in-service training when the instruction was reduced to writing. None the less, Respondent enrolled in one course February 25 to March 3, 1984, but did not complete her work until ordered to do so by Mrs. Aguilar in June 1984. At the conference-for-the-record on April 30, 1984, Dr. Hack observed Respondent changed facial expression and made sounds expressing resentment of various remedial prescriptions required of her. Respondent attributed most of her difficulties to a personality clash with Dr. Hack and to Dr. Hack's calling Respondent to her office on twelve occasions during the 1983-1984 school year to discuss Respondent's problems. In light of so many unacceptable evaluations from so many observers, Respondent's analysis is rejected. While testifying concerning her reading groups, Respondent demonstrated a lack of understanding of the threefold rotating group concept based on individual student assessments by stating that she had created a fourth group for four new Nicaraguan students who spoke no English merely because they entered her class in the middle of the year and that she had created the fourth group on the theory that the new students would have to start with the first work book in the first grade series. Respondent has had admitted in evidence her grade book for the 1983- 1984 term. It does not in every instance corroborate Petitioner's witnesses' testimony. It evidences at least one weekly grade in each subject but each subject is on a different page. This finding does not, however, significantly diminish or impugn the credibility of a number of Petitioner's witnesses who observed that Respondent kept insufficient grades. In making this determination considerable weight is attached to Respondent's own testimony that she chose to record only one weekly grade instead of recording all test and progress scores by date of the item graded. Her voluntary election to use one weekly grade per subject over grades on all items falls short of the prescription assigned to her. Respondent maintained that evaluations of her performance are clouded by the evaluators' failure to take into account the many problems inherent in anyone educating the Chapter One child. This premise is not accepted. Six of other Kinloch Park Elementary teachers of larger Chapter One first grade classes managed adequately in the 1983-1984 term. Mrs. Lucy Williams, Respondent's witness, testified that it should be easier to teach Chapter One students because there are less subjects and fewer students in classes under such a program. Dr. Gray, Petitioner's Executive Director of its Division of Standards, testified by way of expert opinion that he had considered transferring Respondent to a non-Chapter One school but decided against it because the nature of the assessment system used by Dade County is a measurement of basic teaching skills and is not a measurement of only specialized skills for Chapter One classes. Petitioner did not offer Respondent the opportunity to transfer to a different (Non- Chapter One) type of class. Dr. Patrick Gray further testified that in his opinion, Respondent's first grade class in 1983-1984 was deprived of a minimal educational experience. This opinion is accepted over Respondent's assertion that a promotion of the majority of her class to second grade demonstrates her competency as a teacher. Respondent's premise is rejected in part upon Dr. Hack's testimony that even the students' Stanford Achievement Test scores would not give an accurate picture of what Respondent had successfully taught because these scores measure only all accumulated knowledge from all sources throughout broad fields of knowledge up to a specific time in each child's life. The witnesses who testified for Petitioner established the Respondent was unable to properly teach the Chapter One students.
Recommendation Upon the foregoing findings of fact and conclusion of law, it is RECOMMENDED that a Final Order be entered ratifying Respondent's dismissal without pay and denying any claims for back-pay and benefits. DONE and ORDERED this 17th day of December, 1985, in Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 FILED with the Clerk of the Division of Administrative Hearings this 17th day of December, 1985.
Findings Of Fact The School Board of Leon County, Florida ("Respondent") is an "agency" as defined in Section 120.52(1), Florida Statutes, and is charged by law with direction and control of grades Kindergarten through 12 for all public schools in Leon County, Florida. Respondent is required by statute to promulgate rules and regulations establishing attendance zones for grades Kindergarten through 12, and has proposed for adoption Rule Gx37-3.02, which establishes 1980-1981 school attendance zones for public school students in Leon County, Florida. Respondent published notice of its intent to adopt Rule Gx37-3.02 in the April 12, 1980, edition of the Tallahassee Democrat. In advertising its intent to adopt the proposed rule, insofar as relevant to this proceeding, Respondent indicated that attendance zones ". . . of several elementary schools are being examined for possible rezoning to reduce overcrowding and to eliminate underutilization." The proposed rule would modify attendance zones for the following Leon County elementary schools: Astoria Park, Riley, Ruediger, Sabal Palm and Kate Sullivan. The proposed attendance zones would also have some impact on students currently attending Carolyn Brevard. In its advertising notice Respondent listed Sections 230.22(2) and 230.23(4), Florida Statutes, as authority for adoption of the proposed rule. Section 230.22(2), Florida Statutes, empowers Respondent to: . . . adopt such rules and regulations to supplement those prescribed by the state board as in its opinion will contribute to the more orderly and efficient operation of the district school system. Section 230.23(4)(a), Florida Statutes, authorizes Respondent to "[a]dopt and provide for the execution of plans for the establishment, organization, and operation of the schools of the district . . .," and further, after considering recommendations of the superintendent of schools concerning attendance areas: . . . to authorize schools to be located and maintained in those communities in the district where they are needed to accommodate, as far as practicable and without unnecessary expense, all the youths who should be entitled to the facilities of such schools, and to approve the area from which children are to attend each such school. Although not cited by Respondent in its advertising notice as authority for adoption of the proposed rule, Section 230.232(1), Florida Statutes, provides that: The school boards of the several districts are hereby authorized and directed to provide for the enrollments in a public school in the district of each child residing in such district who is qualified under the laws of this state for admission to a public school and who applies for enrollment in or admission to a public school in such district. The authority of each such board in the matter of the enrollment of pupils in the public schools shall be full and complete. No pupil shall be enrolled in or admitted to attend any public school in which such child may not be enrolled pursuant to the rules, regulations, and decisions of such board. Section 230.232(2), Florida Statutes, also not cited in Respondent's public notice, provides that: In the exercise of authority conferred by subsection (1) upon the school boards, each such board shall provide for the enrollment of pupils in the respective public schools located within such district so as to provide for the orderly and efficient administration of such public schools, the effective instruction of the pupils therein enrolled, and the health, safety, education and general welfare of such pupils. In the exercise of such authority the board shall prescribed school attendance areas and school bus transportation routes and may adopt such reasonable rules and regulations as in the opinion of the board shall best accomplish such purposes. The school boards shall prescribe appropriate rules and regulations to implement the provisions of this subsection and other applicable laws of this state and to that end may use all means legitimate, necessary and proper to promote the health, safety, good order, education, and welfare of the public schools and the pupils enrolling therein or seeking to enroll therein. In the accomplishment of these objectives the rules and regulations to be prescribed by the board may include, but be not limited to, provisions for the conduct of such uniform tests as may be deemed necessary or advisable in classifying the pupils according to intellectual ability and scholastic proficiency to the end that there will be established in each school within the district an environment of equality among pupils of like qualifications and academic attainments. In the preparation and conduct of such tests and in classifying the pupils for assignment to the schools which they will attend, the board shall take into account such sociological, psychological and like intangible social scientific factors as will prevent, as nearly as practicable, any condition of socio-economic class consciousness among the pupils attending any given school in order that each pupil may be afforded an opportunity for a normal adjustment to his environment and receive the highest standard of instruction within his ability to understand and assimilate. In designating the school to which pupils may be assigned there shall be taken into consideration the request or consent of the parent or guardian or the person standing in loco parentis to the pupil, the available facilities and teaching capacity of the several schools within the district, the effect of the admission of new students upon established academic programs, the effect of admission of new pupils on the academic progress of the other pupils enrolled in a particular school, the suitability of established curriculum to the students enrolled or to be enrolled in a given school, the adequacy of a pupil's academic preparation for admission to a particular school, the scholastic aptitude, intelligence, mental energy or ability of the pupil applying for admission and the psychological, moral, ethical, and cultural background and qualifications of the pupil applying for admission as compared with other pupils previously assigned to the school in which admission is sought. It is the intention of the legislature to hereby delegate to the district school boards all necessary and proper administrative authority to prescribe such rules and regulations and to make such decisions and determinations as may be requisite for such purposes. The 1980-1981 enrollment in the elementary schools of Leon County, Florida, is projected to be approximately 10,404 students, excluding those elementary students participating in special programs. Of this total, the proposed rule would require an estimated 262 elementary school pupils to change schools for the 1980-1981 school year. Petitioners are a group of parents and children residing in the affected attendance areas who will be required to change schools if the proposed rule is adopted. Respondent proposes to modify its current attendance zones by shifting three study areas to new schools. If the proposed rule is adopted, Study Area 0360 will be moved from Sabal Palm Elementary to Astoria Park Elementary; Study Area 0460 will be moved from Sabal Palm Elementary; Study Area 0460 will be moved from Sabal Palm Elementary to Riley Elementary; Study Area 2365 will be moved from Kate Sullivan Elementary to Ruediger Elementary. Petitioners reside within Study Area 0460, and would be transferred under the proposed rule from Sabal Palm Elementary to Riley Elementary. The closest school to Study Area 0460, where Petitioners reside, is Astoria Park Elementary. Four of Respondent's elementary schools are closer to Study Area 0460 than Riley Elementary, where Petitioners will attend if the proposed rule is adopted. Study Area 0460 was rezoned in 1975 so as to shift Petitioners from Astoria Park Elementary, the school closest to their homes, to Sabal Palm Elementary, where they currently are enrolled. Respondent challenges Petitioner's standing to contest the validity of the proposed attendance boundaries, and, alternatively, contends that adoption of the proposed attendance boundaries is within Respondent's statutory authority under Sections 230.23(4) and 230.232, Florida Statutes. In support of their contention that they are "substantially affected" by the proposed rule in order to maintain this action pursuant to Section 120.54(4), Florida Statutes, Petitioners allege that: [They] attend the public schools of [Leon County], which are under the direction and control of the respondent . . . and [are] regulated by rules and regulations concerning public school zones promulgated by respondent. . . . Petitioners are entitled to an orderly and effective educational program which is not arbitrarily and unreasonably disturbed and disrupted. The proposed rule arbitrarily disrupts petitioners' educational progress by moving them to a different and less academically advantageous school facility and program. The proposed rule will disrupt the educational progress of petitioner children to their substantial detriment by transferring them to a school (Riley Elementary) which produces students who score persistently lower on the Statewide Student Assessment Tests (SSAT) than students from the school (Sabal Palm Elementary) petitioners currently attend. On the SSAT tests administered in October, 1979, Riley was designated as one of four elementary schools in the district which failed to meet the composite student performance criteria in mathematics, writing, and reading at the fifth grade level; on the same test, Sabal Palm fifth graders tied for second in mathematics, tied for first in writing, and ranked fourth in reading when compared with other district schools. The proposed rule will disrupt and adversely affect the educational progress of petitioner children by assigning them to a school (Riley) which produces students who demonstrate less proficiency on the Comprehensive Tests of Basic Skills than those students from the school (Sabal Palm) petitioners now attend. Although students at Sabal Palm and Riley schools show little difference in attainment of basic skills of reading, language, and mathematics when measured at the first grade level, by fifth grade the students at Riley are performing the basic skills at approximately a grade level lower than students at Sabal Palm. The academic progress of petitioner children will be substantially slowed and adversely affected by transferring them from a school which stimulates performance at or above grade level norms to a school whose program is geared to lower levels of attainment. The rule as proposed requires an estimated 262 public elementary students, including petitioner children, to leave the school and the educational program in which they are now enrolled while the remaining 10,142 elementary students are not required to move. Respondent is not required by court order to carry out this rezoning. The proposed rule contains no "grandfather" clause or exemption which would prevent its application to petitioners. The proposed rule will operate unequally and arbitrarily on petitioners by requiring them to change schools while others similarly situated are not so required. The proposed rule violates petitioners' right to equal protection under Article I, section 2 of the Florida Constitution and Amendment XIV of the United States Constitution. Section 229.57, Florida Statutes, establishes a statewide student assessment program, one of the purposes of which is to assess how well districts and schools are meeting state goals and minimum performance standards. Respondent administers two tests in elementary schools which measure mastery of basic skills. The Florida Statewide Student Assessment Tests, commonly know as "SSAT", are administered in October of each year to all third and fifth grade students not participating in exceptional education programs. Skills tested on the SSAT are reading, writing and mathematics. On the SSAT, schools with a composite student performance score below 70 are reported as below minimum standards in those areas tested. The 1980 SSAT results show a composite score for both Riley Elementary and Sabal Palm Elementary in excess of 70 in all areas tested at the third grade level. At the fifth grade level, Riley Elementary's composite scored were below 70 in all three areas, while composite scores of Sabal Palm Elementary students were among the top scores in the Leon County School District. The Comprehensive Test of Basic Skills ("CTBS") is administered by Respondent to students in the regular school program in grades one through five in the Spring of each school year. The CTBS measures achievement in reading, language and mathematics. On the 1979-1980 CTBS, both Riley Elementary and Sabal Palm Elementary students exceeded national norms at the first and third grade levels. At fourth and fifth grade levels, however, Sabal Palm Elementary students continued to perform at or above national norms, while Riley Elementary students dropped well below these norms. At the fifth grade level, Riley Elementary students performed a full grade level or more lower than Sabal Palm Elementary students in all areas tested. Testing data compiled over a five-year period indicate a pattern of comparable performance of basic skills at lower grade levels at both Riley Elementary and Sabal Palm Elementary. However, at the fourth and fifth grade levels, the test scores of Riley Elementary students are consistently lower than those obtained by Sabal Palm Elementary students. There exist recognized non-school variables which affect student performance on the SSAT. These variable are: percentage of students eligible for free or reduced-price lunches; percentage of students' families with some amount of college education; percentage of students' families whose head of household is employed in a white-collar occupation; percentage of students who are members of minority groups; percentage of black minority students; and percentage of students with Spanish has a native language. If accepted as accurate, these variables should affect test scores at all grade levels. However, as noted above, standardized test-score results at the first grade level indicate Sabal Palm Elementary and Riley Elementary students functioning at about the same level, whereas test scores obtained at later stages in their elementary school tenure indicate a drop-off in performance by Riley Elementary students. These test score results indicate that the instructional program at Riley Elementary School, for some reason not entirely clear from the record in this proceeding, is not meeting state goals and minimum performance standards as well as the program at Sabal Palm Elementary. Section 120.52(14), Florida Statutes, defines "rule" as ". . . each agency statement of general applicability that implements, interprets, or prescribes law or policy . . ." In Polk v. School Board of Polk County, 373 So.2d 960, 961 (2nd DCA Fla. 1979), the Court refused to invalidate the restructuring of high school attendance zones for failure of the school board to submit an economic impact statement. In the course of its decision, however, the Court specifically pointed out that "[b]y definition the action of the school board in adopting the attendance plan constituted the making of a rule." Id. at 961. Accordingly, Rule Gx37-3.02, as proposed by Respondent, is a rule within the meaning of Section 120.52(14), Florida Statutes. Section 120.54(4), Florida Statutes, provides that: Any substantially affected person may seek an administrative determination of the invalidity of any proposed rule on the ground that the proposed rule is an invalid exercise of delegated legislative authority. Section 120.52(10)(b), Florida Statutes, defines "party" as: Any . . . person who, as a matter of constitutional right, provision of statute, or provision of agency regulation, is entitled to participate in whole or in part in the proceeding, or whose substantial interests will be affected by proposed agency action, and who makes an appearance as a party. (Emphasis added). Section 230.232(2), Florida Statutes, quoted fully above, requires that in the course of setting school attendance zones ". . . there shall be taken into consideration the request or consent of the parent or guardian or the person standing in loco parentis to the pupil. . . ." Thus, the interests of parents, and through them, their school-age children, must be considered by Respondent in the context of any proposed changes of school attendance zones. In School Board of Broward County v. Constant, 363 So.2d 859 (4th DCA Fla. 1978), the school board, after holding a series of public hearings, established school attendance lines, and several parents and school children filed complaints in circuit court to set aside the board's action. The school board moved to dismiss the complaint on the grounds that the sole remedy available for parents and school children to contest the Board's action was by appeal to the District Court of Appeals, pursuant to Chapter 120, Florida Statutes. The trial court denied the board's motion to dismiss and an appeal was taken. One of the contentions advanced by the parents and school children on appeal was that even if Chapter 120, Florida Statutes, were applicable to the decision of the school board in adopting the school attendance lines, the parents and children were not "parties" to that decision, and would not, therefore, have standing to pursue appellate review under Chapter 120. In reversing the decision by the trial court, the District Court of Appeal held, in part, that: . . . we reject appellees' contention that they are not parties within the meaning of Section 120.52(10). On the contrary, appellees fit the description of any person who, as a matter of agency regulation, have substantial interests which will be affected by the proposed agency action. Such a person is a party within the meaning of the [Administrative Procedure] Act. Thus, appellees are entitled to be heard but via the Administrative Procedure Act and not by resort to collateral action in the Circuit Court. In Polk v. the School Board of Polk County, supra, several members of a group known as "Concerned Citizens" opposed the restructuring of high school attendance zones because the proposed plan would force their children to move to a school further from their home than the school they had been attending, and asserted that such a change ". . . was an unwarranted disruption of their children's school lives and . . . would be the third or fourth such disruption." 373 So.2d at 961. In the course of its opinion, the Polk court pointed out that the "[a]ppellant represents a group known as Concerned Citizens, South Lakeland, who are adversely affected because the new attendance lines will require their children to attend a different school." Id. (Emphasis added).
The Issue The issue to be determined is whether Respondent committed the acts alleged in the Administrative Complaint and if so, what penalties should be imposed?
Findings Of Fact Petitioner is the head of the state agency responsible for certifying and regulating public school teachers in the State of Florida. At all times relevant to these proceedings, Respondent has been licensed in the fields of elementary education and exceptional student education. Her Florida education certificate number is 840291. Her certificate expires on June 30, 2010. Respondent was employed by the Bradford County School District from 1994 to 1996, from 1998 to 2001, and finally from 2004 to 2007. She has worked as a substitute teacher, a parent specialist, and a teacher of varying exceptionalities. At the time of the events alleged in the Administrative Complaint, Respondent was the principal and teacher at Believer's School of Learning (Believer's School) in Bradford County School District. Believer's School was a charter school, for grades K-3, meant to give alternatives to traditional public school. Charter schools fulfill various purposes such as improving student learning and increasing learning opportunities. With respect to the Believer's School, a special emphasis was placed on low- performing students and reading. An "exceptional student" is defined by Section 1003.01(3)(a), Florida Statutes, as: ny student who has been determined eligible for a special program in accordance with rules of the State Board of Education. The term includes students who are gifted and students with disabilities who have an intellectual disability; autism spectrum disorder; a speech impairment; a language impairment; an orthopedic impairment; an other health impairment; traumatic brain injury; a visual impairment; an emotional or behavioral disability; or a specific learning disability, including, but not limited to, dyslexia, dyscalculia, or developmental aphasia; students who are deaf or hard of hearing or dual sensory impaired; students who are hospitalized or homebound; children with developmental delays ages birth through 5 years, or children, ages birth through 2 years, with established conditions that are identified in State Board of Education rules pursuant to s. 1003.21(1)(e). Respondent had Exceptional Student Education (ESE) students in her school. Believer’s School was required to follow federal and state guidelines with respect to ESE students. Those requirements include keeping complete, current and accurate records with respect to exceptional education students. These recordkeeping requirements are required by federal and state law and are necessary for the school system of Bradford County, of which Believer's School was a part, to remain eligible for federal and state funds allocated to pay costs associated with educating exceptional students. In accordance with Florida Administrative Code Rule 6A- 6.03028(3), Respondent was required to prepare an Individual Education Plan (IEP) for each ESE student attending Believer's school. Rule 6A-6.03028(3) states: (3) IEP Requirements. An IEP or individual family support plan (IFSP) must be developed, reviewed, and revised for each eligible student or child with a disability served by a school district, or other state agency that provides special education and related services either directly, by contract, or through other arrangements, in accordance with this rule. Parents are partners with schools and school district personnel in developing, reviewing, and revising the IEP for their student. An IEP is necessary to evaluate the student's educational level, to establish short and long-term educational objectives, to develop alternative ways to accomplish those objectives, and to record the progress of the plan and establish a means for review of the student's educational progress. The proper preparation and maintenance of an IEP is a basic responsibility of the Respondent for exceptional education students at Believer's School. An improperly prepared IEP is potentially harmful to the learning of an ESE student because services and accommodations must be listed on the student's IEP before they can be provided. IEP’s are created by an IEP Team during a meeting involving the parties as set out in Florida Administrative Code Rule 6A-6.03028(3)(c) as follows: (c) IEP Team participants. The IEP Team, with a reasonable number of participants, shall include: The parents of the student; Not less than one (1) regular education teacher of a student with a disability... Not less than one (1) special education teacher of the student, or where appropriate, not less than one special education provider of the student; A representative of the school district who is qualified to provide or supervise the provision of specially designed instruction to meet the unique needs of students with disabilities, is knowledgeable about the general curriculum, and is knowledgeable about the availability of resources of the school district. . . An individual who can interpret the instructional implications of evaluation results who may be a member of the IEP Team as described in subparagraphs (3)(c)3., or (3)(c)4., of this rule;. . . Upon completion, the IEP is signed by the regular education teacher, the ESE teacher, the local education agency (LEA), and the parent or guardian of the student. The LEA is ultimately responsible for what goes into the IEP. If something is in the IEP it is because the LEA determined that it was feasible to carry out. The ESE teacher examines the psycho-educational reports and the specialized needs of the student. He or she often provides strategies to the regular education teacher to use with the ESE student. The regular education teacher is the most familiar with the curriculum being used for the student’s grade level. He or she provides insight as to how that curriculum can be adapted for the ESE student. Members of the IEP Team for an ESE student are supposed to be teachers and individuals associated with the student’s current grade level and involved in the student's education, in order to provide accurate curriculum and services for the student. The IEP Team is supposed to review the child’s test scores or have access to the child, know about the curriculum being used, and what types of accommodations an ESE student of the particular grade level would need. By signing the IEP, the individual team members are stating they met to discuss the ESE student, to develop goals and objectives and services for the student, and that they will follow up on making sure those goals and objectives are met. IEP's are updated on an annual basis. The annual IEP conference is mandatory, and failure to provide such a conference is a violation of federal, state, and School Board rules and policies. Failure to hold such a conference deprives the parents of the exceptional student any meaningful participation in determining the student's educational goals and may deprive the child of the assistance to which he or she is entitled. It also jeopardizes continued state and federal funding of the School Board's exceptional education program. Respondent was instructed, as were other teachers of exceptional students in the school district, that every IEP must be reviewed at least once a year through an annual IEP conference. Respondent was trained in how to prepare IEPs by the Bradford County School District on July 19, 20, and 21, 2005. Florida Administrative Code Rule 6A-6.03028(3)(b) requires that the school notify parents of an ESE student that an IEP meeting is scheduled prior to the IEP Team Meeting taking place. This notification is more than a formality; it is meant to insure meaningful participation by parents or guardians in the IEP process. Rule 6A-6.03028(3)(b) states as follows: (b) Parental participation in meetings. Each school district shall establish procedures that provide the opportunity for one or both of the student’s parents to participate in meetings and decisions concerning the IEP for the student. Parents of each student with a disability must be members of any group that makes decisions on the educational placement of their student. Procedures to ensure participation in meetings shall include the following: Notifying parents of the meeting early enough to ensure that they will have an opportunity to attend; and Scheduling the meeting at a mutually agreed on time and place. A written notice of the meeting must be provided to the parents and must indicate the purpose, time, and location of the meeting, and who, by title or position, will be attending. . . . * * * A meeting may be conducted without a parent in attendance if the school district is unable to obtain the attendance of the parents. In this case, the district must have a record of its attempts to arrange a mutually agreed on time and place, such as: Detailed records of telephone calls made or attempted and the results of those calls; Copies of correspondence sent to the parents and any responses received; and Detailed records of visits made to the parents’ home or place of employment and the results of those visits. To comply with Rule 6A-6.03028(3)(b), it is Bradford County School District’s policy to send out a Parent Notification Form 10 days prior to an IEP team meeting. A few days after the first notification was sent, a second notification is sent to the parent. After the two written notifications are sent, a phone call is made to the parent of the ESE student. Student S.B. began school in the Bradford County School District when she was in pre-K. She was identified as a student with developmental disabilities. In 2005, she was living in Richmond, Virginia, and found to be eligible for exceptional education services as a student with a developmental disability. Upon return to Florida, S.B. was enrolled in Southside Elementary on March 17, 2005. In May 2005, an IEP team met, determined that S.B. was a student with specific learning disabilities, and developed an IEP outlining the services required for S.B. Without those services, S.B. would not receive a free appropriate public education as contemplated under the Individuals with Disabilities Education Act (IDEA), or Florida law regarding the provision of exceptional education. IEPs for exceptional education students are required to be completed every year before the prior year’s IEP expires. S.B.’s next IEP was due on May 17, 2006. On February 13, 2006, S.B. enrolled in Respondent’s charter school, Believer's School of Learning, approximately three months before S.B.’s next IEP was due. There was apparently some delay in providing S.B.'s May 2005 IEP to Respondent, but the length of the delay is unclear. In order for a school district to receive the extra funding for its ESE students all the ESE students’ IEP’s must be current by "FTE week." FTE week is when the schools determine a final head count of all the students that are in attendance. The FTE week for Bradford County School District in 2006 was October 13, 2006. All the ESE students within the school district had to have their IEPs in by that date or the schools would not receive the extra funding associated with that student. If S.B.’s IEP was not turned in before October 13, 2006, Believer's School would have only received its normal funding only instead of the additional ESE funding. As of the last week of September 2006, Respondent had not completed the IEP for S.B. In late September, Respondent called Verdell Long, and asked for some assistance in preparing an IEP for a third grader. On September 28, 2006, Respondent met with Verdell Long, at Bradford County High School, during Ms. Long’s lunch break, for assistance with preparing an IEP for a third grader at her charter school. Verdell Long was a high school teacher at Bradford County High School who had worked with ESE students, with a focus on mental retardation from grades K-12. She had assisted Respondent with IEPs in the past. She understood that she was assisting with a “sample” IEP to be used as a model. However, it was Respondent’s intention to use the product created as an IEP for the student S.B. The day of the meeting Verdell Long’s computer was not working so she could not access the IEPs she had on file. She asked another high school teacher, Dr. Vivian Haynes to assist in the meeting. Dr. Haynes was an ESE teacher at Bradford County High School in September 2006. She was very experienced with preparing and writing IEPs, having just completed a doctoral dissertation which included copies of third and fifth grade IEPs. Dr. Haynes had not previously met Respondent. Dr. Haynes brought several blank “dummy” IEPs with her to the meeting in order to have examples to show Respondent. The IEP prepared at the meeting included the various components of an IEP, such as the measurable goals and objectives for a third grader, but did not include the demographic information on any student. The document prepared at the meeting did not have a student’s name or test scores on it anywhere. Respondent did not bring the student S.B. or her test scores with her to the meeting. However, neither Ms. Long nor Dr. Haynes expected to see individualized information because they did not understand that an IEP for an actual child was being prepared. Verdell Long signed the IEP as the ESE teacher, Dr. Vivian Haynes signed as the LEA, and Respondent signed as the regular education teacher. Neither Verdell Long nor Dr. Vivian Haynes was contracted with Believer's School by the Bradford County School District to provide services as an LEA representative or an ESE teacher. Both Verdell Long and Dr. Vivian Haynes believed the purpose of the meeting was to construct a model IEP in order to assist Respondent with properly preparing an IEP for an ESE student. Neither expected the document created at their meeting to be submitted as an actual IEP for S.B., or any other student, and neither considered the meeting to be an IEP team meeting. Neither Verdell Long nor Dr. Vivian Haynes was shown a Parent Notification Form indicating that their meeting was to be an IEP team meeting. Neither would have signed the IEP if they had seen such a form because they did not believe that an IEP team meeting was being conducted. After the meeting on September 28, 2006, Respondent took the IEP form prepared with the help of Ms. Long and Dr. Haynes, and inserted information specific to S.B. She then submitted the form as S.B.’s IEP and turned in to the Bradford County School District. Submitted with the IEP form was a document which purported to be the Notification of Meeting Form for the IEP team meeting. Only one notification is referenced. The form was dated September 15, 2006, and identified Dr. Vivian Haynes and Verdell Long as participants in the meeting, notwithstanding Respondent's acknowledgement that she did not meet Dr. Haynes until September 28, 2006, and did not know until that time that Dr. Haynes would be participating in the meeting. The form also indicated that the IEP meeting would take place at the Believer's School, as opposed to the Bradford County High School, where the meeting between Respondent, Ms. Long and Dr. Haynes took place. There is no other indication of other attempts of notification. The signature line reserved for a parent or legal guardian is signed by a Rudolph Williams and dated September 29, 2006, the day after the meeting took place. Respondent claims that Mr. Williams is S.B.'s stepfather. However, there is nothing in the Bradford County School District's records to indicate that Mr. Williams is a parent or legal guardian of S.B., and school district officials were not aware of anyone by that name living in the home. By her own admission, Respondent did not keep "official records" for any of her students, including ESE students. She was not particularly concerned with who signed the IEP, because she apparently considered it to be simply a matter of paperwork to be filed with the School District. In her view, the person responsible for ensuring that a child is receiving the appropriate education is her teacher, regardless of the directives in the IEP. She felt that some of the things identified as required simply could not be done at a school her size. She did not consider the role of the LEA and the ESE teacher on the IEP to be all that important. To her, the real responsibility for the child's education lay with the teacher who worked with her on a daily basis. S.B. was later withdrawn from Believer's School and now attends Starke Elementary School. Believer's School has since closed and is no longer operating as a charter school.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered finding Respondent to be guilty of the violations alleged in Counts Two through Seven and dismissing Count One of the Administrative Complaint; imposing a fine of $500; suspending her certificate for one year and placing Respondent on probation for a period of three years. DONE AND ENTERED this 22nd day of October, 2009, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 22nd day of October, 2009.
The Issue Whether Respondent should be subject to discipline as a result of the violations of section 1012.795(1)(j) and rule 6A-10.081(2)(c)4., as alleged in the Administrative Complaint and, if so, the nature of the sanctions.
Findings Of Fact The Florida Education Practices Commission is the state agency charged with the duty and responsibility to revoke or suspend, or take other appropriate action with regard to teaching certificates as provided in sections 1012.795 and 1012.796, Florida Statutes (2020). § 1012.79(7), Fla. Stat. Petitioner, as Commissioner of Education, is charged with the duty to file and prosecute administrative complaints against individuals who hold Florida teaching certificates and who are alleged to have violated standards of teacher conduct. § 1012.796(6), Fla. Stat. (2020). Stipulated Facts Respondent holds Florida Educator’s Certificate 766965, covering the areas of Educational Leadership, Elementary Education, and School Principal, which is valid through June 30, 2023. During the 2017-2018 school year, Respondent was employed as a Principal at GES in the LCSD, where he had been employed since 2008. During the 2017-2018 school year, Brooke Jahn (now Brooke Solz) was employed as a classroom teacher at GES, and, therefore, under the Respondent’s supervision. Ms. Jahn was married to a LCSD employee assigned to another school. Ms. Jahn was an adult during all times material to this complaint. On June 11 and 12, 2018, Respondent and Ms. Jahn attended the Instructional Leadership Team Summer Institute hosted by the Florida Department of Education at the Innisbrook Resort & Golf Club in Palm Harbor, Florida. On or about July 11, 2018, Ms. Jahn requested a transfer from GES to another school within the LCSD. On or about July 12, 2018, Mr. Solz reported to LCSD Superintendent Rocky Hanna that he was involved in a romantic relationship with Ms. Jahn. On July 18, 2018, Superintendent Hanna placed Respondent on administrative leave with pay pending the pending the outcome of an investigation. On August 31, 2018, Leon County Schools Superintendent Rocky Hanna issued Respondent a letter of reprimand. On August 31, 2018, Mr. Solz was reassigned to the LCSD Department of Teaching and Learning, effective September 4, 2018. On September 17, 2018, Professional Practices Chief John Hunkiar reported Mr. Solz to the Office of Professional Practices Services. On November 8, 2018, the Florida Department of Education, Office of Professional Practices Services, initiated an investigation into alleged misconduct by Respondent. On or about July 9, 2019, Mr. Solz was reassigned as the principal at Astoria Park Elementary School in Leon County.1 Evidentiary Findings The following findings of fact are supported by the record. Contrary testimony and evidence has been considered and rejected. David Solz Mr. Solz is, by all credible accounts, a “wonderful” principal and administrator, with a solid reputation as an LCSD administrator. Prior to this proceeding, he had not been the subject of any previous complaints or disciplinary actions during his 20-plus years in education. Testimony and recorded statements that Mr. Solz gave preferential treatment to others, including Ms. Jahn, that he targeted or “formally” wrote up teachers that were not on his preferential list, or that he “only hires young, attractive teachers,” were neither credible nor persuasive. The more credible testimony demonstrated that Mr. Solz was even-handed in his approach to the teachers at GES. If someone showed an interest in moving up in the academic system, he was willing to support them. If they wanted to 1 The Joint Pre-hearing Stipulation identified the date as July 9, 2018. The date was corrected to 2019 on the record at the hearing. stay in the classroom, he was accepting. If they felt they needed time away, even up to a year, he was accommodating. He did not show favoritism, and he did not “punish” those who disliked him. By the 2017-2018 school year, Mr. Solz had been divorced for several years. By April of 2018, he was apparently dating a woman who taught at either Ft. Braden Elementary School or Riley Elementary School. That person may have thought that she had some “power” because she was dating a principal, but there was no evidence that she did. More to the point, that person was not Ms. Jahn. Mr. Solz was an “open door” administrator. His office was in plain view, and he made it a practice to never be alone in his office with another teacher with the door closed. There was no evidence that he ever did so. The evidence unequivocally established that Mr. Solz was a good leader at GES, that he was purposefully respectful of his female colleagues, and avoided situations that could be misconstrued. Brooke Jahn Ms. Jahn was a teacher at GES starting in August 2013. By all credible accounts, Ms. Jahn was ambitious and a go-getter. She knew that she wanted to move from being a classroom teacher into administration. She set high goals, and was willing to take on the work necessary to advance in her career in education, work that others were not willing to do. During the 2017-2018 school year, in addition to her duties as a GES teacher, Ms. Jahn was taking classes to earn her Master’s Degree in Education Leadership. Holding a Master’s Degree in Education Leadership allows one to take a position as a dean, an assistant principal, a principal, or a leader at the school district in some capacity. As part of the curriculum for her degree, Ms. Jahn was required to serve an internship. Ms. Sumner supervised Ms. Jahn, which required Ms. Jahn to spend “lots of time” in the office, generally during her planning period or after school. Ms. Wyatt documented her progress. Mr. Solz was not overly involved with Ms. Jahn’s internship. Upon her completion of her Master’s program, Ms. Jahn became one of only three teachers or counselors at GES holding that degree, the others being Mr. McKhan and Ms. Wyatt. In addition to receiving her Master’s Degree in Education Leadership, Ms. Jahn took and passed the Florida Educational Leadership Exam (FELE) during the 2017-2018 school year, which qualified her to be considered for a position in education administration. During the period at issue, she had not yet applied to the administrator pool. During the 2017-2018 school year, Ms. Jahn taught third grade at GES. In previous years, Ms. Jahn taught kindergarten. Ms. Jahn wanted to move to the third-grade classroom for several reasons. She wanted experience in detecting early reading deficits. Her kindergarten students were “learning to read.” By third grade, students are “reading to learn.” Therefore, reading deficits by third grade can affect student achievement. In addition, third grade is a Florida Statewide Assessment (FSA) standardized test grade. Ms. Jahn recognized that experience in administering the FSA was almost a requirement for assignment as an assistant principal.2 During the 2016-2017 school year, Ms. Jahn was selected by her kindergarten teacher peers to be the team leader for the kindergarten section. Mr. Solz had no role in that process. Ms. Jahn’s selection as kindergarten team leader earned her a spot on the SITE Committee. The SITE Committee consists of grade-level team leaders, as well as persons representing paraprofessionals, custodians, cafeteria workers, ESE students, parents, and other school functions. As a SITE-based school, the SITE Committee serves to decentralize decision 2 Respondent suggested that Ms. Jahn’s transfer from kindergarten to third grade was evidence of favoritism. There was no evidence that the transfer was anything other than a normal and routine transfer, and showed no more favoritism than Ms. Vasquez teaching kindergarten and second grade at GES, Ms. Baggett being assigned to teach second, third, and fourth grades over the years at GES, or Ms. O’Brien teaching third and first grades at GES. making away from the Principal, and allows for a collaborative process by representatives of all segments of GES employees. Ms. Jahn was thereafter nominated and selected by the other members of the SITE Committee as the SITE Facilitator. That position required a great deal of work and effort, which Ms. Jahn gladly took on, realizing the career benefits derived from the experience. Mr. Solz had no role in that process. Ms. Jahn was also selected to serve on the Teacher Education Center (“TEC”) as a professional learning advocate. As a TEC representative, Ms. Jahn provided teachers with opportunities for training to maintain their teaching certifications and assisted them in making their way through the certification process. The TEC is also engaged in managing the professional development budget for the school. Ms. Jahn had to be involved in professional development as part of her Master’s Degree internship, and the TEC helped to fill that requirement. The TEC representative is open for any teacher who wants to apply. Other than complaints from several witnesses that they were not solicited by school-wide email, or by personal entreaty from Mr. Solz “and offered for nomination or from, you know, veteran teachers who have that experience,” there was no evidence that any teacher other than Ms. Jahn, including the complaining witnesses, had the interest, drive, or commitment to apply for the TEC. There was no evidence that the position was required to be advertised by email or subject to personal invitation. Ms. Jahn sought out the position, and applied. The process of appointment was somewhat vague, except that Mr. Solz did not unilaterally appoint Ms. Jahn to the position.3 3 Ms. Baggett, despite averring that Mr. Solz appointed Ms. Jahn to the TEC, admitted at the hearing that she had no information that Mr. Solz appointed Ms. Jahn to that position “[o]ther than it's just, I guess, common knowledge that the principal of the school would, you know, would approve these positions.” Supposition, speculation, and “common knowledge” are not substitutes for competent, substantial, and persuasive evidence. The team leader, SITE facilitator, and TEC representative positions were subject to a modest stipend, but the duties involved work that far exceeded the pay -- “probably cents on the hour” -- she received for serving. However, Ms. Jahn understood that having experience in various areas would benefit her in achieving her long term goals. Ms. Jahn was also selected to serve on the District Advisory Council (“DAC”), a group of teachers, parents, administrators, and school board members that meet to discuss issues that affect students and classrooms. It is an unpaid, volunteer position that meets after school hours. Dr. Smith asked Mr. McKhan, Ms. Wyatt and Ms. Jahn to share the role. Since Mr. McKhan and Ms. Wyatt had previously served, Ms. Jahn took on most of the duties. Mr. Solz had no role in that process. Ms. Jahn was part of a group of teachers invited by Dr. Smith to observe other schools in the District in order to implement the “Leader in Me” program at GES. Ms. Jahn was exposed to leadership techniques that she would not have been exposed to as a classroom teacher. Mr. Solz had no role in that process. Ms. Jahn routinely attended monthly faculty meetings, which were open to all faculty at GES. She was able to apply some of the faculty meetings into credit for her Master’s Degree. She was required to mark attendance and document credit for every faculty meeting. There was no evidence that Mr. Solz was involved in that process. Ms. Jahn was an active participant in the faculty meetings, which may have rubbed some less participatory teachers the wrong way, with witnesses complaining that Mr. Solz gave undue weight to Ms. Jahn’s contributions, but was dismissive of their comments, failing to take them “seriously.” The evidence, such as it was, that Ms. Jahn was given some sort of preferential treatment at the faculty meetings was not supported by a single specific instance, but was “supported” by the fall-back phrase that “it was, again, another one of the school-wide known fact.” Even if it was established that Mr. Solz valued Ms. Jahn’s input, such would not establish preferential treatment. It is just as easy to draw the inference that Ms. Jahn’s statements were more pertinent than others. The more credible testimony established that Mr. Solz was not dismissive or disrespectful to any of the staff at faculty meetings.4 The testimony that Mr. Solz afforded preferential treatment to Ms. Jahn at faculty meetings lacked even basic credibility, and is not accepted. Ms. Jahn also trained a teaching intern, Ms. Hobbs. Ms. Hobbs was effusive in her praise of Ms. Jahn, crediting her success and her teaching style to Ms. Jahn’s tutelage. Because of Ms. Jahn’s success in mentoring Ms. Hobbs, Ms. Hobbs was, by the end of the 2017-2018 school year, able to handle the class on her own, which is the goal of a successful internship. While the class was under Ms. Hobbs’ instruction, Ms. Jahn was able to leave the classroom -- though not the campus. The evidence firmly established that Ms. Jahn set her goals high, and took steps that were not easy to achieve those goals. There was no credible evidence to suggest that she expected to be given anything by Mr. Solz or anyone else. She was not, as intimated by others, appointed to her duties by Mr. Solz. By all credible accounts, she earned her accolades. Though others reacted negatively, there was nothing to suggest that others were willing to put in the effort, or that they had earned the respect necessary to be selected by their peers to one of the many available positions. Allegations in the Administrative Complaint During the 2017-2018 school year, Respondent engaged in a sexual relationship with Brooke Jahn, a married teacher who was a direct report to Respondent. 4 Mr. Solz was more forceful; stating that the allegation he was dismissive or rude during faculty meetings “is a lie, a purposeful lie.” As described, during the 2017-2018 school year, Ms. Jahn took on a steady stream of jobs designed to advance her career. As a result, she met often with members of the GES administration, including primarily Ms. Wyatt and Ms. Sumner. The previous year she met frequently with Dr. Smith. She also met with Mr. McKhan and Mr. Solz. There was nothing in any of those meetings that contained even a whiff of impropriety. The 2017-2018 school year ended for teachers the first week of June 2018. Teacher contracts end on the second day after the last day of school. If a teacher’s contract is renewed, the contract renewal becomes effective on the first day of school in August for teachers. Ms. Jahn was not under contract and did not work at GES over the summer.5 Ms. Jahn was not seeing Mr. Solz in anything other than a professional capacity during the 2017-2018 school year. Despite the rumors, gossip, and innuendo bandied about by several witnesses, there was absolutely no competent, substantial, and credible evidence to support that Mr. Solz and Ms. Jahn were engaged in any sort of romantic, much less sexual, relationship at any time prior to the last day of classes during the 2017-2018 school year. By the time the 2017-2018 school year ended, Ms. Jahn had received her Master’s Degree in Education Leadership and passed the FELE. She had been a classroom teacher for eight years, and was starting to look for other opportunities. However, for reasons related to the LCSD summer teacher transfer policy and postings, she had not yet done so. During this same period, difficulties in Ms. Jahn’s marriage began to come to a head. The reasons are unimportant, except for the fact that they had nothing to do with Mr. Solz. 5 Ms. Jahn had signed a contract for the coming school year, but it was pending board approval. She was not working as a teacher at GES, but was slated to teach private swimming lessons over the summer “to make extra summer money.” In late May 2018, Mr. Solz became aware that the 2018 Instructional Leadership Team Summer Institute was to be held over the weekend of June 11 and 12, 2018, in Tampa, Florida. The conference was limited to 25 principals from around the state. Mr. Solz applied, and was accepted. He then realized that he could bring a qualified teacher leader from his school. Since it was a leadership conference, leadership experience was a prerequisite. The only people at GES who were not already administrators and who were qualified were Ms. Wyatt and Ms. Jahn.6 Ms. Wyatt was already slated to attend the Superintendent’s Leadership Academy in Tallahassee. She did not want to pass it up because she had applied for the assistant principal pool that year. People who were interviewing applicants for the pool were leading that meeting, creating a good networking opportunity for Ms. Wyatt. Mr. Solz invited the other leadership candidate, Ms. Jahn. He extended the invitation for her family to attend as well, a common practice. Ms. Jahn accepted the invitation. She had to rearrange swimming lessons and child care in order to attend, but did so because it was important to her efforts to professionally advance. Her husband could not attend for professional reasons. Mr. Solz and Ms. Jahn travelled separately to Tampa. By the time of the conference, Ms. Jahn had come to the conclusion that her marriage was heading for divorce. She took the opportunity to visit her sister in the Tampa area. It was a stressful period. Mr. Solz and Ms. Jahn arrived separately at the convention hotel on Friday evening. Other than Mr. Solz assisting Ms. Jahn in getting checked in, they had no contact with one another that evening. After the conference sessions on Saturday, Mr. Solz and Ms. Jahn had dinner as part of a group. It was, according to both, the first time they had 6 By this time, Mr. McKhan had been appointed and was serving as an assistant principal at Pineview Elementary School. ever been alone with one another. There was no evidence to the contrary. During dinner, Ms. Jahn disclosed to Mr. Solz that she was having marital difficulties, but no more. The next morning, after a difficult conversation with her husband the night before, Ms. Jahn came down from her room in obvious distress. She indicated that she was having a “panic attack.” Mr. Solz walked with her to get coffee, talked with her, told her it would be OK, and gave her an “awkward side-ways hug.” He made sure she was engaged in the Sunday conference sessions, which eased her anxiety. After the Sunday session was over, Ms. Jahn went back to Tallahassee. Mr. Solz stayed for a while to meet with principals he knew who were coming in for a separate Florida school administrators conference. He had dinner with several of his colleagues, and drove home. Mr. Solz and Ms. Jahn did not see each other for several weeks after. Mr. Solz visited family in Savannah for a week and, upon his return, had his children for a week which entailed a trip to Disney World. Although Ms. Jahn’s divorce was moving forward, she took a pre-planned cruise with her then-husband and her children. However, during that period, Mr. Solz and Ms. Jahn had begun to text one another and spoke on the phone. They started to realize they had things in common, and might like to pursue a relationship. Before they did anything to advance any sort of sexual relationship, they mutually decided that Mr. Solz should self-report their interest to the Superintendent. At that time, the “relationship” was all verbal and through texts. Other than the “awkward side-ways hug,” there had been no physical component to the relationship. Mr. Solz testified credibly that when he met with Superintendent Hanna on July 12, 2018, “I felt like we [he and Ms. Jahn] had a friendship that was easily blossoming into a romantic relationship.”7 Prior to their decision to self-report, Ms. Jahn had already decided she needed to move from GES to diversify her experience to ultimately move out of the classroom into administration. For a person holding an Education Leadership degree, it is common knowledge that in order to advance, a teacher must move around to different schools. Ms. Jahn had been researching other opportunities with the LCSD, and had applied to be a reading coach at Griffin Middle School, as well as several other less desirable positions. On July 11, 2018, and again on July 12, 2018, Ms. Jahn requested, in writing, a transfer from GES. In describing her interview with Ms. Jahn on July 12, 2020, Ms. Kraul testified that: She indicated again that she wants an administrative experience. She used the figure 150 percent leaving Gilchrist of her own free will. That she wants a middle school experience and she was very aware that she would not be eligible for an assistant principal position straight out of the classroom. That this was her ticket to get more experience. Ms. Jahn also believed it would be easier for her to stand out professionally at Griffin Middle School. Ms. Kraul testified that Ms. Jahn was waiting out the LCSD teacher transfer period and “that's, I believe, where she was when I met with her in July.” There is not a shred of competent substantial evidence to suggest that Ms. Jahn’s desire to transfer from GES was based on anything other than her desire to pursue her long-held goal of moving from a classroom position into a position in administration. There is no evidence that Ms. Jahn was pressured 7 Though not relevant to the specific allegations of this proceeding, it merits acknowledgement that Mr. Solz and Ms. Jahn have since married, and were married as of the date of the final hearing. into seeking the transfer, or that her request had anything to do with Mr. Solz. On July 12, 2018, Mr. Solz reported to Superintendent Hanna that he and Ms. Jahn were involved in a relationship that was becoming romantic. They had not been “caught.” There was no evidence that they knew of the purported “anonymous emails.”8 Mr. Solz and Ms. Jahn were early in their “romance,” having not yet passed out of the talking and texting stage. The decision to report was a volitional act designed to avoid gossip and innuendo, and establish a path forward without “direct report” conflict. Mr. Solz was not even certain that he was required to report, since the LCSD fraternization policy prohibited contact between staff and students, and the sexual harassment policy dealt with “unwelcomed” conduct. Nonetheless, Mr. Solz decided to report their blossoming interest because it “just felt like it was the right thing to do.” The evidence conclusively established, despite the suppositions and gossip of others, that there was no sexual relationship between Mr. Solz and Ms. Jahn prior to the July 12, 2018, self-report. On July 18, 2018, Superintendent Hanna placed Mr. Solz on administrative leave with pay. There was no competent, substantial, or persuasive evidence to support a finding that, at the time of Mr. Solz’s suspension, he and Ms. Jahn had commenced a sexual relationship. 8 The first “anonymous email” was not received in evidence. The alleged recipient, Ms. Paul, had no recollection of it, other than she forwarded it to Ms. McAllister. Ms. McAllister had no recollection of receiving, reviewing, or forwarding the first email. Its contents are a mystery. That alleged email has no evidentiary value. The second “anonymous email” came to Ms. Paul on July 15, 2018, and she forwarded it to Ms. McAllister and Superintendent Hanna on July 16, 2018. The anonymous “former [formal?] complaint by teachers” could not have come from anyone with much knowledge of Ms. Jahn, since the “teachers” could not even manage to get her name right, calling her “Mrs. Garret.” Garrett is the first name of Ms. Jahn’s ex-husband. As with the illusory first email, the second “anonymous email” has no evidentiary value. On August 31, 2018, Superintendent Hanna issued Respondent a letter of reprimand which included reassignment of Mr. Solz as a Principal on alternative assignment in the Department of Teaching and Learning.”9 The allegation that “[d]uring the 2017/2018 school year, Respondent engaged in a sexual relationship with Brooke Jahn, a married teacher who was a direct report to Respondent,” was not proven. Petitioner failed to establish that Respondent committed the acts alleged as a material allegation in paragraph 3. of the Administrative Complaint. During the course of their relationship, Respondent afforded Teacher Jahn preferential treatment as compared to similarly situated employees thereby creating a hostile work environment. Respondent’s preferential treatment of Teacher Jahn included . . . training not offered or made available to other teachers. This allegation is predicated on there having been a “relationship.” Since there was no relationship, the allegation was not proven. However, in addition, there was no evidence that Respondent afforded Ms. Jahn preferential treatment as compared to similarly situated employees. There were only two other “similarly situated” employees who had the education and the ambition to be considered for leadership roles at GES, Mr. McKhan and Ms. Wyatt. By the time the more serious allegations in this case were alleged to have occurred, Mr. McKhan had been assigned as Assistant Principal at Pineview Elementary School. 9 Respondent appears to argue that a negative inference should be drawn from Mr. Solz’s failure to file a grievance regarding the reprimand. A review of the letter shows it to have involved an allegation of conduct in April 2018, which Ms. Kraul testified “was nobody’s business what he did in his personal time, after hours,” and an allegation of use of electronic media for non-educational purposes,” which was not an issue in this proceeding at all. Why Mr. Solz elected not to grieve the reprimand was not explained, but no inference of wrongdoing can be drawn. If anything, the decision not to grieve the letter could just as easily be explained by its giving notice of his transfer as Principal that he had already determined to be an acceptable alternative to allow his “blossoming interest” in Ms. Jahn to move forward. The testimony established that many of the opportunities provided to Ms. Jahn came from Ms. Wyatt, her mentor; Dr. Smith and Ms. Sumner, GES assistant principals; and from her peers, including her fellow grade-level teachers and those on the SITE committee. Except for the Instructional Leadership Team Summer Institute, which came after the close of the 2017- 2018 school year, and after Ms. Wyatt’s election to attend a different conference, Mr. Solz made no assignments or invitations to Ms. Jahn. Ms. Jahn earned the opportunities to advance her career. She was not “given” those opportunities by Mr. Solz or anyone else at GES. Much of the testimony critical of the “relationship” between Mr. Solz and Ms. Jahn came from employees who either could not or would not put in the work to qualify for leadership positions. They did not seek to earn degrees in Education Leadership, did not actively seek out extracurricular leadership positions, and were not elected by their peers to leadership positions, including SITE Facilitator. The evidence established that the witnesses who provided many of the statements that precipitated this proceeding were irritated by Mr. Solz for any number of reasons: that they were “angry” at Mr. Solz for being assigned to teach in a portable classroom; that Mr. Solz was monitoring their Facebook posts; that Mr. Solz used the iObservation system “against” them; that they were “formally written up” for infractions when other (non-comparable) teachers were not; or that they simply were not evaluated as highly as they believed they deserved.10 Much of the evidence provided in support of Petitioner’s case consisted of statements and testimony that were directed 10 It is not overlooked that the three primary witnesses offered by Petitioner to substantiate wrongdoing by Mr. Solz were clearly antagonistic towards him, which pre-dated anything alleged in this case. Ms. Vasquez testified that she and Mr. Solz “had a history of -- very, very hostile history,” and she “did not feel comfortable talking to Mr. Solz.” Ms. Baggett exhibited obvious animosity, feeling the Mr. Solz “was very dismissive,” and that “[p]rofessionally I don't respect his practice.” Ms. O’Brien testified that during the period from 2008 through May of 2018, “Mr. Solz and I did not see eye-to-eye most of the time.” The witnesses’s antipathy towards Mr. Solz is not a primary basis for assigning their testimony little weight. However, it does nothing to bolster their credibility. towards Mr. Solz’s previous relationships, that were imprecise and unsubstantiated gossip, or that were pure uncorroborated hearsay. The allegations that Mr. Solz “appointed” Ms. Jahn to “TEC Rep., SITE Facilitator, DAC, and Kdg. Team Leader” were either based on ignorance of the process or, more likely, a conscious misrepresentation of the criteria by which those positions are filled. As to the only allegation that had any basis in fact -- Ms. Jahn’s attendance at the Instructional Leadership Team Summer Institute -- the complaining teachers simply lacked the requisite leadership qualifications. That was not the fault of either Mr. Solz or Ms. Jahn. There was not a speck of competent, substantial evidence to establish that Mr. Solz afforded Ms. Jahn preferential treatment as compared to similarly situated employees, including training not offered or made available to other teachers. Given the facts of this case, it is found that no rational person could reasonably conclude that training opportunities provided by GES administrators, including Mr. Solz, created a hostile work environment. Petitioner failed to establish that Respondent committed the acts alleged as a material allegation in paragraph 3.a) of the Administrative Complaint. During the course of their relationship, Respondent afforded Teacher Jahn preferential treatment as compared to similarly situated employees thereby creating a hostile work environment. Respondent’s preferential treatment of Teacher Jahn included ... [having] Jahn accompany him on at least one school related out of town trip without making the opportunity available to other teachers. This allegation has been addressed in detail herein. In addition to the fact that there was no “relationship” when Mr. Solz invited Ms. Jahn to attend the Instructional Leadership Team Summer Institute, the evidence in this case established, conclusively, that Mr. Solz did not afford Ms. Jahn preferential treatment as compared to similarly situated employees. Attendance at the conference was offered to Ms. Jahn as the only qualified attendee since Ms. Wyatt had a conflicting leadership-based conference that drew her attention, and was based on absolutely no improper motive. Given the facts of this case, it is found that no rational person could reasonably conclude that Mr. Solz’s offer to Ms. Jahn to attend the conference (with her family) created a hostile work environment.11 Petitioner failed to establish that Respondent committed the acts alleged as a material allegation in paragraph 3.b) of the Administrative Complaint. During the course of their relationship, Respondent afforded Teacher Jahn preferential treatment as compared to similarly situated employees thereby creating a hostile work environment. Respondent’s preferential treatment of Teacher Jahn included ... [r]ules regarding supervision of students [being] relaxed for Jahn as compared to other teachers. In addition to the fact that there was no “relationship,” the evidence in this case established, conclusively, that rules for supervision of students were not relaxed for Ms. Jahn as compared to other teachers. The evidence demonstrates that Ms. Jahn went to various administrative offices -- primarily those of Ms. Wyatt (her mentor) and Ms. Sumner (her education leadership internship supervisor), as well as that of Dr. Smith the preceding year -- before school, at lunch, or during her planning period. It is common for intern/student teachers to earn the right to “solo” teach a class. As Ms. Jahn’s intern, Ms. Hobbs, gained in competency, she 11 On a practical note, the conference was held in June of 2018, after the conclusion of the 2017-2018 school year for teachers. By the time teachers returned to campus in the fall, Mr. Solz had been transferred from GES. If Mr. Solz was able to create a hostile work environment at GES from his post at the Department of Teaching and Learning, it would have been quite a trick. was allowed to take on more of the teaching responsibilities for Ms. Jahn’s class on her own, as was the goal. Finally, Ms. Jahn was able to leave the classroom for periods of time, which gave Ms. Hobbs valuable experience and confidence. However, the evidence establishes that Ms. Jahn did not abuse her time during those periods, but was working at necessary and requested school-related activities. The suggestion that there was some impropriety involved when Ms. Jahn left Ms. Hobbs in charge is simply not supported. Ms. Baggett complained that she was “formally written up” (by the Assistant Principal, not Mr. Solz) because she “left [her] students unsupervised.” Why she was disciplined is a matter between Ms. Baggett and the Assistant Principal. However, that disciplinary matter (which might also explain her complained-of, less-than-stellar evaluation) does not establish that Ms. Jahn violated any rules regarding supervision of students, does not establish any other teacher as a valid comparator, and does not lend support to the allegations in this case. Ms. Vasquez testified that Ms. Jahn left her class during the school day, and “made it known that she was getting her dog groomed” on one occasion, and on another occasion “she told me she was getting her hair done.” Ms. Hobbs openly scoffed at the idea, a rejection that is supported by the record. Despite the hearsay nature of Ms. Vasquez’s testimony, it might have retained some thin thread of credibility if it did not directly conflict with her written statement provided during the investigation, in which she stated: I had been made aware of, several years ago, a relationship with Jessica Scully. She was seen in [Mr. Solz’s] office quite frequently-and would talk openly about the special treatment she was getting from David. How David would allow her to leave school to run her errands. She left school to get her dog groomed and told several teachers that David knew where she was and approved it. (emphasis added). Either Mr. Solz is attracted to women with poorly-groomed dogs, or the testimony regarding Ms. Jahn’s personal off-campus errands, including dog- grooming, was a fabrication. The evidence supports the latter. There is no competent, substantial, and credible evidence to support a finding that Ms. Jahn ever left her students with inadequate supervision, that she ever left campus to perform personal errands, or that she violated any disciplinary standard regarding student supervision. There was not a shred of evidence that Mr. Solz relaxed or disregarded any rules regarding the supervision of students for Ms. Jahn as compared to other teachers. Given the facts of this case, it is found that no rational person could reasonably conclude that Mr. Solz relaxed any rules regarding supervision of students for Ms. Jahn so as to create a hostile work environment. Petitioner failed to establish that Respondent committed the acts alleged as a material allegation in paragraph 3.c) of the Administrative Complaint. Summary The tone of the Administrative Complaint gives the impression that Respondent and Ms. Jahn were carrying on a torrid sexual relationship from the confines of Respondent’s office, and that Mr. Solz was lavishing Ms. Jahn with perquisites as the 2017-2018 school year was ongoing. Nothing could be further from the truth. The facts show that Ms. Jahn had high professional goals, and worked hard -- on her own -- to achieve them. The suggestion that Respondent favored Ms. Jahn to advance his prurient interest in her, or that Ms. Jahn was using Respondent as a stepping stone to some higher goal are equally unsupported, and equally fallacious. The allegation that Mr. Solz engaged in harassment or discriminatory conduct which unreasonably interfered with any GES employee’s performance of their professional or work responsibilities, or with the orderly processes of education, or that he undertook any action vis-a-vis Ms. Jahn that created a hostile, intimidating, abusive, offensive, or oppressive environment is simply not supported by the facts of this case.12
Recommendation Upon consideration of the Findings of Fact and Conclusions of Law reached herein, it is RECOMMENDED that the Administrative Complaint be dismissed in its entirety. DONE AND ENTERED this 21st day of September, 2020, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 21st day of September, 2020. COPIES FURNISHED: Ron Weaver, Esquire Post Office Box 770088 Ocala, Florida 34477-0088 (eServed) Stephen G. Webster, Esquire Law Office of Stephen G. Webster, LLC Suite 5 1615 Village Square Boulevard Tallahassee, Florida 32309 (eServed) Lisa M. Forbess, Program Specialist IV Education Practices Commission 325 West Gaines Street, Room 316 Tallahassee, Florida 32399 (eServed) Bonnie Ann Wilmot, Esquire Department of Education 325 West Gaines Street Tallahassee, Florida 32399 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Randy Kosec, Jr., Chief Office of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
