Findings Of Fact The Respondent holds a valid teaching certificate issued in accordance with the provisions of Chapter 231, Florida Statutes. Prior to March, 1980, the Respondent had been employed at the Eau Gallie High School in Brevard County, Florida, as an "audiovisual specialist" for more than ten years. During his tenure at Eau Gallie High School, the Respondent received satisfactory evaluations, and he generally performed his responsibilities in a diligent and acceptable manner. The Respondent's basic responsibilities were to coordinate audiovisual programs at Eau Gallie High School. Students would be assigned to work with the Respondent as student assistants or aides. He would have a number of students, generally approximately four, to assist him during each period of the school day. The Respondent was considered the students' teacher and his room was the students' classroom during the period that they served as student assistants. During February, 1980, two of the Respondent's female students found a copy of "Hustler" magazine and "Penthouse" magazine in the Respondent's classroom. The students reported this to the school's assistant principal. An investigation ensued, and resulted in the Respondent's being terminated from his teaching position, and in these proceedings. During the 1979-80 school year, Michelle Douglas was a student in the eleventh grade at Eau Gallie High School. She served as an aide in the Respondent's class during the sixth hour of the school day from 1:00 p.m. until 2:00 p.m. Her duties were to log equipment in and out, and to run errands for the Respondent. On several occasions, the Respondent embarrassed and humiliated Michelle Douglas by making suggestive comments about her in the presence of other students, and on one occasion by physically touching her in a sexually suggestive manner. On one occasion, Miss Douglas was seated in the classroom. The Respondent approached her and put his hand on her knee, and moved his hand up her leg on the outside of her dress approximately six inches before she stopped him and ran out of the classroom. On several occasions, the Respondent made comments to Michelle Douglas such as, "Here comes your friend with a nice butt," in connection with one of Michelle Douglas's friends. In conversations with some of the male students in his classroom, the Respondent said that Michelle Douglas would be a "good lay" and, "I bet you'd like to hop on her," in the presence of Michelle Douglas. These were not the only comments of this sort that the Respondent made in the presence of Michelle Douglas, but are demonstrative. During the 1979-80 school year, Vicki Kendall was a student at the Eau Gallie High School. She served as an audiovisual aide in the Respondent's class during the fourth hour of the day during the school year. Her duties were to log in films and equipment, and to assist in the ordering of films. On several occasions during the school year, the Respondent made sexually suggestive comments about Vicki Kendall in the presence of other students. He commented about her figure and about the clothes she was wearing. On one occasion he said in reference to a portion of her anatomy, "Look at the shape of that thing." On one occasion in the presence of other students he called her a "cold fish." While the Respondent did not make any direct physical contact with Vicki Kendall, on one occasion he did blow in her ear while she was in the classroom. During the 1979-80 school year, Kelly Huskey was a student in the twelfth grade at Eau Gallie High School. During the second semester of the school year, she served as an audiovisual aide in the Respondent's classroom during the fourth hour. On one occasion Miss Huskey was trying to learn how to thread a projector. The Respondent came up behind her and grabbed her around the waist very tightly. This was not an innocent touching, but was provocative, and from the perspective of the student could easily have been taken, and was taken as a sexual advance. During the 1979-80 school year, Deborah Ann Bowman was a student in the twelfth grade at Eau Gallie High School. She was not a student in the Respondent's class, but she frequently ate lunch in his classroom with a friend. On one occasion Respondent talked with the male students in the classroom about how nice Miss Bowman's sweater looked on her and how nice it fitted. On another occasion on school property Miss Bowman was laying out material for a sewing project. The Respondent approached her from behind, put his hand on her back and whispered in her ear, "I wanted you to know I like your bikini underwear." There was no appropriate reason for this remark. During the 1979-80 school year, Ramonda Shannon was employed at the Eau Collie High School as an occupational placement specialist. Ms. Shannon utilized an office or storage facility which she could only enter through the Respondent's classroom. On one occasion she walked through the Respondent's classroom to get to that facility. The Respondent said to her, "You are wearing a bra, aren't you?"; he then said that some students said that she must not be because her "boobs" were bouncing up and down. This was said in the presence of students, and students were in a position to overhear the comments. Apparently several students had suggested to the Respondent that Ms. Shannon was not wearing a bra, but there was no appropriate reason for the comment to be made, and Ms. Shannon was understandably humiliated. Approximately four years ago, Ms. Shannon went through the Respondent's classroom, and several female students were looking at literature which included pictures of nude girls. In reference to the literature, the Respondent said that he did not need to look at such pictures in order to get a "hard-on." During February, 1980, the Respondent had an issue of "Penthouse" magazine and "Hustler", magazine in his classroom. The evidence is unclear as to precisely how these magazines came to be in the Respondent's classroom. The Respondent was aware that they were there, and had placed them at the bottom of several stacks of magazines. These stacks of magazines were available to be read by students in the Respondent's class during the lunch hour, and he knew that students in his class frequently perused the magazines. The magazines were actually viewed by several students. The magazines were received in evidence at the final hearing. The magazines included pictures and articles of a sexually provocative nature. The Respondent made numerous other sexually suggestive comments in his classroom in the presence or his students. While many or these comments were not specifically alleged in the administrative complaint, they are the same sort as those which were alleged. On one occasion he told Michelle Douglas that if he made love to her, she would not have to worry because he had had a vasectomy. Numerous other comments of this genre were made by the Respondent in his classroom. The Respondent's effectiveness as a teacher and an employee of the Brevard County school system has been seriously reduced as a result of his conduct as set out herein. It would not be possible for administrators in a school system to have confidence in leaving students, especially teenage female students, in the Respondent's charge. Furthermore, students, especially female students, could not feel secure in the Respondent's presence. While the evidence does not establish that the Respondent actually fondled or made overt physical sexual contact with any of his students, it is clear that he caused many of his students embarrassment and humiliation, and that they properly and logically regarded his comments and conduct as sexually threatening. The Respondent responded to the charges and the testimony by denying that some of the acts took place, by stating that taken in proper context the acts were not improper, and by alleging that other teachers were guilty of worse conduct and that the administrators of the school were corrupt. His testimony and explanations are not persuasive and demonstrate a failure to understand the seriousness of sexually, provocative language and conduct on the part of a teacher toward students, and a lack of any motivation for rehabilitation.
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
Findings Of Fact Allan Bonilla, currently Principal of Riviera Junior High School, was one of at least two assistant principals who attempted to work with Venus Tara Rodriguez during her 7th grade experience there in the 1984-1985 regular school year. He has been employed four years at that facility. Immediately prior to the winter vacation (commonly known as the extended Christmas holidays), on December 20, 1984, Venus left the campus without prior permission, this activity resulted in a two-day indoor suspension. In February, 1985, she received a three-day indoor suspension as the result of tardiness which culminated in an outdoor suspension the same month because her behavior at the three-day indoor suspension was so disruptive that it was deemed ineffective for her and the other students. In March, 1985, her rude and disruptive classroom behavior resulted in two indoor suspensions. In April 1985, as a result of her refusal to work during the last indoor suspension, she was assigned an outdoor suspension. Mr. Bonilla did not work with Venus as regularly as another assistant principal who was not available for hearing, but he expressed personal knowledge of the foregoing events and had interacted with Venus on several occasions for being out of class and boisterous. His assessment was that Venus could do the work required of her but that her behavior was so disruptive in the classroom that at the conclusion of the regular 1984-1985 school year she was failing two out of six subjects and was doing approximately "D" work in the rest. He agreed with the decision to assign her to an alternative school program, which decision was made because of Venus' need of individual attention and smaller class due to her habit of "acting out" in large groups. Venus' parents were contacted concerning each suspension. Mr. Bonilla testified that Venus has successfully finished 7th grade during the 1985 summer school session at GRE Lee opportunity School and he has received notice she will be reassigned and enrolled at Riviera Junior High School for the 1985-1986 school year commencing in September 1985.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the School Board enter a final order returning Venus Tara Rodriguez to Riviera Junior High School. DONE AND ORDERED this 29th day of August, 1985, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of August, 1985. COPIES FURNISHED: Phyllis O. Douglas, Esquire 1410 N. E. Second Avenue Miami, Florida 33132 Madelyn P. Schere, Esquire Dade County Public Schools Board Administration Building 1410 N. E. Second Avenue Miami, Florida 33132 Mark A. Valentine, Esquire 3050 Biscayne Blvd. Suite 800 Miami, Florida 33137-4198 Ms. Wilhelmina A. Rodriguez 4110 S. W. 104th Place Miami, Florida 33165 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1510 N. E. Second Avenue Miami, Florida 33132
The Issue Whether Respondent violated section 1012.795(1)(j), Florida Statutes, and Florida Administrative Code Rule 6A-10.081(2)(a)1., as alleged in the Administrative Complaint; and, if so, the appropriate penalty.
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. § 1012.79(7), Fla. Stat. (2017). 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. (2017). Respondent holds Florida Educator's Certificate 880641, covering the areas of Middle Grades Integrated Curriculum, Physical Education, Social Science, and Exceptional Student Education (ESE), which is valid through June 30, 2022. At all times pertinent hereto, Respondent was employed as an ESE teacher at GHS in the Alachua County School District. Respondent began his teaching career at GHS in 2002 teaching ESE classes. The incident that forms the basis for this proceeding occurred on May 12, 2016, during the 2015-2016 school year. Teachers employed by the Alachua County School Board are subject to the Collective Bargaining Agreement between the Alachua County School Board and the Alachua County Education Association, the local teachers’ union. Article IX, Section 21(a), of the Collective Bargaining Agreement, which was in effect during the 2015-2016 school year, provides that: Subject to the approval of the principal or his designee, a teacher may leave the campus of his particular school if appropriate arrangements are made to insure that students are not left unsupervised. Approval is required for each circumstance or situation. The principal or his designee will not unreasonably deny such a request. A teacher will use this privilege only in unusual circumstances. At the beginning of each school year, before students report, a faculty pre-planning meeting is held at GHS to go over information provided by the school district. Supervision of students is among the topics of discussion, and teachers are advised that they are not to leave students unsupervised in their classrooms. The reason for the instruction is obvious -- GHS, being responsible for the safety of its students, should take all reasonable measures to ensure their safety on campus. In addition to the instruction provided at the pre- planning meeting, GHS sent periodic emails to teachers throughout the year reiterating that students were not to be left unsupervised in classrooms. On April 5, 2016, an email was sent directed to the general problem of unsupervised students “walking around A, B, and C hallways” during the lunch periods. The email noted that some teachers allowed students to come to their classrooms during the lunch period for mentoring, which was recognized as a laudable activity. One teacher responded the next day expressing appreciation for the reminder, noting that “[t]here are students all over upstairs in A & B wings. They also hang out in the stairwells, especially on the West end.” On April 7, 2016, Mr. Shelnutt sent an email to all teachers reiterating that it was “fantastic” that teachers allowed students in their classrooms during the lunch period, but that students were not to be “roaming around.” The email emphasized that “if you chose to allow students in your classroom during your lunch, you are assuming responsibility for supervising them.”2/ During the lunch shifts, school employees were routinely stationed in areas where general education students were allowed to eat lunch in order to provide adult supervision while their teachers took their 30-minute lunch break. As will be described herein, ESE students were subject to a different lunchtime regimen. During the 2015–16 school year, Respondent was assigned to teach a self-contained class of 4 to 7 students with intellectual disabilities. The “self-contained” setting means that students generally remained in the Gaines building on the GHS campus with other students with disabilities. Respondent’s students were intellectually disabled, but functioned at a higher level than their ESE peers in other classrooms, who had more severe disabilities. Respondent’s students identified more with general education students, and were much more likely to interact with general education students than with those in the other ESE classrooms.3/ The Gaines building was a “community of classrooms,” in that a teacher could request and receive assistance from teachers or paraprofessionals in the other two classrooms in the building. The ESE classrooms surround a small courtyard at the Gaines building. The courtyard has a table and seating, and students would most often sit there to eat their lunch. One of the three ESE teachers usually oversaw the courtyard, and the courtyard could be seen from the ESE classroom windows. There is also a basketball court and track behind the Gaines building, which were occasionally used by ESE students before and after school, and during lunch period. The school day at GHS has six periods. Respondent taught ESE students for five of the six daily periods. During the period when Respondent’s ESE students were at their P.E. class, Respondent was assigned to teach a general education history class. Mr. Shelnutt indicated that “[e]very teacher [at GHS] should have a 30-minute duty free lunch in addition to a planning period.” Mr. DeLucas testified that Respondent was in “a very unique situation. The other self-contained rooms had multiple paraprofessionals. He did not have multiple paraprofessionals.”4/ Consequently, Respondent was the only teacher in his classroom and was assigned students every period of the school day with no planning period. Because of the circumstances, if it became necessary for Respondent to leave the classroom, he would ask one of the teachers or paraprofessionals from the other ESE classrooms to watch his class. Unlike the situation that was the subject of the April 5, 2017 and April 7, 2017, emails referenced above, which appears to describe a general education student lunch period, ESE “self-contained” students were allowed to get their lunches and then return to their classrooms, to avoid the crowds and the lines. It was apparently not uncommon for special needs students to go to the cafeteria during the 20-minute break between the end of A-Lunch at around 11:55 a.m. and the beginning of B-Lunch at 12:15 p.m. when there is not a standard lunch shift. Respondent’s only break in the school day was during his students’ lunch period, from 12:15 p.m. to 12:45 p.m. Since ESE students typically had lunch in the Gaines building courtyard or their classrooms, even Respondent’s “duty free lunch” was not free of duties. On May 12, 2016, Respondent released his students -- which on that day were only B.S., B.H., and N.C. -- around 12:05 p.m. to get lunch from the cafeteria. Respondent’s students had been watching a movie, and wanted to finish the movie during the lunch period. Respondent agreed to let the students return to his classroom to finish watching the movie. Before the students returned to the classroom, Respondent received a telephone call from the baseball booster club president regarding an upcoming banquet. When the students returned to the classroom, Respondent continued the telephone call outside. When Respondent ended the telephone call, he realized that the lunch period was “counting down.” Respondent left the Gaines Building, with the students unattended in his classroom, and drove to a sandwich shop several blocks away. There was no explanation as to why Respondent did not ask one of the other ESE teachers or paraprofessionals to watch his classroom. During Respondent’s absence from the classroom, another of Respondent’s students, J.H., entered the classroom and saw male ESE student, B.S., emerging from a storage closet in Respondent’s classroom, and thereafter discovered female ESE student, B.H., in the closet crying. J.H. went to the office and told Ms. Conyers what he had seen. Ms. Conyers radioed for a dean or an administrator to report to Respondent’s classroom. Ms. Gantt and Mr. Bauer arrived at the classroom at about the same time. Ms. Gantt questioned B.H. as to what had happened, and Mr. Bauer went to the nearby basketball court where B.S. had been reported to have gone. B.H. and B.S. were taken to the Dean’s office for questioning. At some point after Ms. Gantt and Mr. Bauer arrived at Respondent’s classroom, and approximately 15 minutes after his departure from campus, Respondent returned from the sandwich shop. There was considerable evidence devoted to the events that occurred in Respondent’s classroom closet during his absence. All of the evidence was hearsay. However, what was established (and agreed upon) is this: On May 12, 2016, while Respondent was absent from his classroom, during which time students were left unsupervised in the classroom, an event occurred that was of sufficient severity that the police were called in, that the police conducted an investigation, and that the police ultimately completed a sworn complaint charging B.S. with lewd and lascivious molestation of B.H. Alachua County Public Schools charged Respondent with violating school board policies regarding student supervision, specifically a policy that required teachers to obtain the permission of the school principal before leaving school campus, and recommended his termination from employment. Respondent contested the recommendation of termination. On February 16, 2017, the Alachua County School Board, the Alachua County Education Association, and Respondent executed a settlement agreement, providing that: (1) the superintendent would rescind the recommendation for Respondent’s termination; (2) Respondent would take an unpaid leave of absence beginning March 1, 2017, until June 6, 2017; Respondent would agree to complete Safe Schools online training regarding classroom supervision and school safety; and upon completion of the Safe Schools training, Respondent would be returned to paid status as an employee of Alachua County Schools. Respondent fulfilled the terms of the settlement agreement and, with regard to the Safe Schools training, exceeded the required courses. For the 2017–2018 school year, Respondent has been assigned as a P.E. teacher at the Sidney Lanier Center, a K-12 public school in Alachua County. Sidney Lanier is a specialized school for ESE students. The principal of Sidney Lanier was aware of the events of May 12, 2016, when Respondent was assigned. It should be acknowledged that Respondent taught ESE classes at GHS for 14 years without incident. He had no prior discipline and received uniformly good evaluations. He was well regarded as a teacher and a coach, and was generally acknowledged to have had a positive impact on students’ lives. Respondent expressed genuine remorse about leaving students unattended in his classroom, and credibly testified that he would never again do so. The incident did not involve Respondent denigrating or disparaging students, or improperly or abusively making physical contact with students. Nonetheless, Respondent violated a clear and direct requirement that he not leave students unattended. Although he believed his students would not engage in the activity described, such action on the part of a high school student was certainly not unforeseeable. There was conflicting evidence as to whether B.H.’s mental health was actually affected by the incident. A preponderance of the evidence indicates that it had some negative effect. However, rule 6A-10.081(2)(a)1. “does not require evidence that Respondent actually harmed [a student]'s health or safety. Rather, it requires a showing that Respondent failed to make reasonable efforts to protect the student from such harm.” Gerard Robinson, as Comm’r of Educ. v. William Randall Aydelott, Case No. 12-0621PL, RO at 76 (Fla. DOAH Aug. 29, 2012; Fla. EPC Dec. 19, 2012). Under the circumstances described herein, Petitioner proved that Respondent, though without specific intent or malice, failed to make reasonable effort to protect his students from conditions harmful to their mental or physical health, or safety, pursuant to rule 6A- 10.081(2)(a)1.
Recommendation Upon consideration of the Findings of Fact and Conclusions of Law reached herein, it is RECOMMENDED that the Education Practices Commission enter a final order finding that Respondent violated rule 6A-10.081(2)(a)1. It is further recommended that Respondent’s educator’s certificate be suspended for a period of 30 days, that he be issued a letter of reprimand, and that he be placed on probation for a period of two years following his suspension, which penalty is within the range of penalties established in rule 6B-11.007(2). DONE AND ENTERED this 21st day of November, 2017, 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 November, 2017.
Findings Of Fact Respondent and the Alternative Learning Center Respondent In 1974, at 22 years of age, Respondent earned his Bachelor of Science degree in social studies from Florida Memorial College, an historically black college in Miami. In his freshman year, he was named the Outstanding Freshman from Southwest Florida attending historically black colleges. At various times during his last three years of college, Respondent worked in inner-city ministries in St. Louis and New Orleans. For about five years following graduation, Florida Memorial College employed Respondent, first as Associate Director of Admissions and then as Director of Alumni-Church Relations, assistant basketball coach, head baseball coach, and head volleyball coach. After moving from Miami to Lee County, Respondent worked for a short time outside of education. At the start of the 1986- 87 school year, Respondent returned to education by accepting employment with the Lee County School District (District) as a social studies teacher at Cypress Lake High School, where he remained for two years. While at Cypress Lake High School, Respondent also served as head girls' basketball coach, head girls' track coach, assistant volleyball coach, and assistant baseball coach. While employed by the District, Respondent helped with the fathers' program at LAMP, which is an educational program operated by the District at the New Directions Center. The LAMP program provides high-school instruction for teenage mothers. Respondent also headed the District's first mentor program, which finds mentors, without regard to race, to encourage minority students to excel in an academic setting, such as in gifted and honors courses. In 1988, Respondent earned his Master of Science degree in educational leadership from Nova University. Then-Superintendent Engle named Respondent to serve as principal-on-assignment for the 1988-89 school year to recruit minority teachers for the District. Respondent was the second minority person assigned to an administrative position in the District. At the time, a federal court had entered a desegregation order against the District. In the ten years prior to Respondent's new assignment, the District had hired about a dozen minority teachers. In one summer, Respondent recruited 30 minority teachers. After completing his assignment in minority teacher recruitment, Respondent returned to Cape Coral High School as Dean of Students. He served in this position for the 1989-90 school year. Following the 1989-90 school year, Respondent was appointed the Coordinator of Educational Equity and Reassignments, in which capacity Respondent served for five years. When he assumed the job, he received a $5000 raise to about $40,000 annually. A coordinator is the lowest level of management in the District office. Coordinators are subordinate to assistant directors or, if none, directors. Directors are subordinate to assistant and associate superintendents, who are subordinate to the Superintendent. The Superintendent is appointed by the Lee County School Board. As Coordinator of Educational Equity and Reassignments, Respondent monitored the district's desegregation efforts. Due to the nature of his responsibilities, Respondent, even though only a coordinator, had direct access to the Superintendent and School Board attorney. Working closely with then-Superintendent Adams, who became Respondent's mentor, Respondent helped redraw school- attendance zones to desegregate schools. Respondent also handled racially based complaints from staff, including teachers, and generally tried to assure that poorer schools received the same resources as those enjoyed by wealthier schools. Respondent became the focus of considerable controversy while Coordinator of Educational Equity and Reassignments. One day, his young daughter answered the phone at home and heard an unidentified caller threaten, "Your nigger father is a dead man." Shortly after the murder of Superintendent Adams, Petitioner, then serving as Interim Superintendent, informed Respondent that she was removing him from his coordinator position. She created a new position for Respondent as Director of Adult Education and Dropout Prevention. Respondent received a raise from $48,000 to $55,000 annually and assumed his new duties in November 1994. Petitioner disclosed that she made the change based on concerns for Respondent's safety and complaints that she had received from the School Board and parents related to Respondent's rezoning decisions. Three months after Petitioner created Respondent's new position, she eliminated it and suggested that Respondent apply for other administrative positions with the District. Respondent and Petitioner discussed an opening at the New Directions Center. The New Directions Center occupies a three-year old facility owned and operated by the Lee County School Board. The New Directions Center comprises three separate programs: the LAMP program, the Academy, and the Alternative Learning Center (ALC). The Academy, which includes the Employment Skills Program, provides alternative education by offering its students different types of teaching strategies than are typically available at conventional schools. Academy students are not behaviorally much different from students attending regular schools in the District. Prior to the 1995-96 school year, each program at the New Directions Center had an assistant principal, and a supervisory principal was in charge of the entire New Directions Center. When she mentioned the opening at the ALC, Petitioner informed Respondent that she intended to appoint a separate principal for each of the three programs starting the 1995-96 school year. In May 1995, Petitioner appointed Respondent to serve as the new ALC Principal, starting July 1. As ALC Principal, Respondent was also the head District administrator at the juvenile detention center, Price Halfway House, and Lee County boot camp. At the time of assuming his new responsibilities, Respondent had served nine years in the Lee County School system: two years in the classroom, one year in administration at a school, over five years in administration involving minority matters at the District office, and less than one year in Adult Education and Dropout Prevention. Respondent received no training in preparation for his new assignment as a school principal. As of February 19, 1996, Respondent's District personnel file contained nothing negative, aside from some isolated suggestions recorded on classroom observation sheets. This was the file that Respondent and his attorney examined after giving the District three days' notice of their intent to examine and copy Respondent's personnel file. Discussed below is Petitioner's contention that two missing items should have been included in the file. Respondent's evaluation for his first year of teaching notes: "Excellent start as a beginning teacher in Lee County." This 1987 evaluation states: "Outstanding teacher. Should be considered for advancement to administration as soon as possible." The 1988 evaluation reports: "Excellent year-- Promoted to dean of students, Cape Coral H.S." The first administrative evaluation of Respondent is in 1989 and covers his work in minority-teacher recruitment. The 1989 evaluation states that Respondent is "an asset to our team." The 1990 evaluation, which addresses Respondent's year as Dean of Students, reports: "Charles has demonstrated his concern for young people and has spent many hours above and beyond the call of duty working with and for kids." For the first year in which Respondent was responsible for desegregation efforts, the 1991 evaluation notes that Respondent has only partially achieved a goal--namely, learning desegregation issues. However, the 1991 evaluation, which was prepared by Dr. Mary Nell Gunter, states: "Charles Daily [sic] demonstrates talent and skill in dealing with people. He is eager to do a good job and I appreciate his professional outlook." A memorandum from Dr. Gunter commends Respondent for his "positive attitude" and work in specific programs. The memorandum suggests, though, that Respondent needs to develop his skills in "facilitative leadership," which he demonstrates in "many instances," but perhaps insufficiently when dealing with "principals and school-based people." Respondent's evaluation for the 1991-92 school year is missing from Respondent Exhibit 13, which is his District personnel file. The missing evaluation apparently was completed with no remarkable comments. Respondent's evaluation for the 1992-93 school year is noteworthy because it was prepared by Petitioner, who was not yet Superintendent. This 1993 evaluation finds that Respondent has fully achieved all of his goals, one of which is: To establish effective communication to the public that would assist in dealing with the increasing cultural, demographic and social change effecting [sic] our students and community. Petitioner's narrative comments on the 1993 evaluation are: Charles Dailey is an extremely valued and important member of the Division of Administrative Operations. He has demonstrated outstanding leadership during the Desegregation process. He is a role model for every administrator in his work ethic, committment [sic], teamwork and educational values. Petitioner found that Respondent reached an effective level of performance (the only satisfactory rating offered on the evaluation form) in all categories. Categories include judgment issues, including making good decisions based on law and policy, and sensitivity issues, including tact, effective dealing with people over emotional issues, exhibiting a positive professional attitude, and perceiving the needs and concerns of other persons. Petitioner concluded the 1993 evaluation as follows: Charles must work under stress everyday in his office due to our desegregation process. He has handled this in an outstanding manner. The evaluation for the 1993-94 school year should have been performed by Dr. James Browder, who is now principal of Cypress Lake High School. Dr. Adams was murdered on February 7, 1994. Another administrator was responsible for Respondent's evaluation until April or May of 1994. Given the understandable disruption resulting from the sudden death of Dr. Adams and the administration reorganization that followed, Respondent's evaluation for the 1993-94 school year was never prepared. However, Dr. Browder testified that he had perceived no problems with Respondent of sufficient seriousness to document in an evaluation. The evaluation for the 1994-95 school year should have been performed by Assistant Superintendent Dr. Mary Santini. She assumed that position in January 1995 and may have felt unable to evaluate Respondent by the time the evaluations are due in May. Respondent has been recognized repeatedly in the educational community. The past three years, Respondent was a finalist for the Ida S. Baker award, which is given to the outstanding minority educator in Florida. Respondent was named in 1995 the administrator of the year for the southeastern United States by the Southeast Desegregation Assistance Center. During this period, Respondent has been serving as a consultant and expert witness in the Rockford (IL) School District desegregation case. The ALC In general, the ALC is the District's last-chance school for students whose disciplinary problems have resulted in their removal from their geographical schools. ALC students are the most difficult to manage in the District. Nearly all ALC students are enrolled in the ALC as an alternative to expulsion from the Lee County School System. A few students are assigned to the ALC through the juvenile justice system. Almost all of the ALC students have had serious problems with criminal activity, seriously disruptive behavior in school, and school attendance. At any given time, roughly 10-20 students attending the ALC have been convicted of felonies. On a cumulative basis for the 1995-96 school year, excluding exceptional student education (ESE) students, 80 students enrolled in the ALC sometime during the 1995-96 school year were guilty of felonies, 91 were guilty of the possession of drugs or drug paraphernalia, 29 were guilty of armed burglary or grand theft, 36 were guilty of assault or battery against a teacher or administrator, 68 were guilty of fighting with other students, 38 were guilty of possession of weapons, and numerous others were guilty of other offenses ranging from "sexual misconduct" (7) to "peeing in a bottle" (1). (Some of these students were guilty of more than one offense, and some students entered the ALC more than once during the school year, so their offenses would be counted more than once in each category.) Prior to the 1995-96 school year, the Supervisory Principal of the New Directions Center was Jeananne Folaros. The ALC Assistant Principal was Richard Hagy. The LAMP Assistant Principal was Carolyn McCollum. And the Academy Assistant Principal was John Wortham. For the 1995-96 school year, Ms. McCollum and Mr. Wortham retained their prior positions except they became principals, and Mr. Hagy and Ms. Folaros were reassigned. Respondent and the ALC When Respondent arrived at the ALC, student behavior and academics were both in need of improvement. Perhaps the most dramatic indicator of the situation was that in the prior school year Mr. Hagy had twice required hospital treatment for injuries he had received from being struck by ALC students. The school was the scene of frequent fights with students wandering in the halls and often in possession of drugs, making it hard for motivated students to work. In an effort to reduce the number of suspensions, the ALC had retained some extremely disruptive students, who sometimes threatened even the teachers. Frightened by these students, some teachers had resorted to a policy of appeasement, allowing difficult students to sleep or play cards in the classroom with academic activity going on around them, or sending these students to a separate timeout room, where they slept and played cards without the distraction of academic activity going on around them. When Respondent was first appointed as ALC Principal, he spoke with middle- and high-school principals and learned of their concerns that the ALC was a "revolving-door" program. They said that the ALC disrupted regular academic programs at their schools and inadequately served the needs of the students assigned to the ALC. District principals and ALC teachers and students reported that the ALC offered a poor educational program where students could easily avoid academic challenge. One of Respondent's first moves was to select Beth Smith as the assistant principal for the ALC. Respondent recognized that their strengths and weaknesses were complementary. She was a curriculum specialist, and he was an effective disciplinarian. After hiring Ms. Smith, Respondent formed a curriculum team consisting of her, a guidance counselor, a school psychologist, and a peer-counseling teacher to address curriculum changes. Respondent reimplemented the 45 good-day policy. This policy meant that the ALC would not return a student to his geographical school until he had 45 days of punctual attendance, good behavior, and successful academics. Respondent developed and enforced a dress code, prohibited sleeping and card games in class, and required teachers to stiffen their academic requirements. Respondent's disciplinary plan eliminated the separate timeout room, where misbehaving students had enjoyed freedom from academics. Respondent instead introduced a multi-step intervention system where the teacher first warned the misbehaving student in the classroom, then warned the student in the hallway, then placed the student in timeout in the classroom, and then sent him to Respondent, who would warn the student, assign cafeteria duty, or suspend him, depending on the seriousness of the offense. In all senses of the word, Respondent was a "hands-on" principal. Sondra Saldana, an ALC guidance counselor, best described Respondent's style when she testified that he meets students where they are. Undoubtedly, Respondent models good behavior in numerous ways. But he does not stop there. With passionate intensity, Respondent readily reveals his love and expectations for each student and satisfaction or dissatisfaction with each student's behavior. Respondent is direct and frank, not oblique or diplomatic. He demands the respect of all of his students, and he earns the respect of nearly all of them because they see that he cares about them in a vital and effective way. Many of the ALC students probably would not have responded to Respondent's disciplinary innovations without clear evidence of Respondent's belief in their academic potential. More than anything else, Respondent wanted "to keep turning on lights for students," according to his favorite expression. Refusing to allow ALC students to think of themselves or be treated like academic or cultural outcasts, Respondent made the ALC more like a regular school, not so that he could have the experience of running a regular school, but so that the ALC students could have the experience of attending and succeeding at a regular school. In giving ALC students more positive opportunities than they had had in the past, Respondent introduced to the ALC student assemblies, a literary magazine, school plays, and other activities typical of regular schools. Respondent ordered the physical education teacher to make the ALC students play sports besides basketball, just like the physical education students were doing at the regular schools. (After hearing the concerns of the physical education teacher about placing bats in the hands of certain students, Respondent agreed to drop softball.) Respondent personally conducted entrance interviews, so he could explain the rules and purpose of the ALC to each new student and any parents or guardians accompanying him. Respondent made the exit process--merely an exercise in paperwork in prior years--an experience that would bring some closure to the ALC experience and prepare the student for a more successful reentry into his geographical school. There is no doubt that Respondent was markedly successful in improving the atmosphere at the ALC. Respondent's immediate supervisor, Herbert Wiseman, the District Director of Secondary Operations, twice during the fall of 1995 complimented Respondent on how well run the ALC was. The latter compliment took place on December 15, 1995, when Mr. Wiseman, with whom Respondent had a good relationship, told Respondent that he was running the ALC well. Mariner High School Principal Michael McNerney described in detail a visit he made to the ALC in November 1995. He was greeted quickly and professionally at the office, rather than allowed merely to walk into the school. Respondent took him to 8-10 classrooms where Respondent and students spoke freely. Respondent knew each of his students and which of them were from Mariner High School. He even knew when each student was due to return to his geographical high school. Jill Culligan, an ALC teacher who was disaffected with Respondent, noted the positive changes in writing on December 5, 1995: Under [Respondent's] system of discipline interventions and sensitivity to individual student needs, the students appear to be exhibiting the better behavior expected of them. Fights are no longer tolerated. More opportunities for assemblies are getting them ready for re-entry into the regular schools. But Respondent always balanced his academic innovations with disciplinary innovations, recognizing that behavior and academic achievement among ALC students are inextricably linked. Respondent personally led the effort to restore and maintain order at the ALC. It was a considerable, ongoing effort, made more difficult by the fact that the most troublesome students were no longer warehoused in the timeout room or banished from school by suspension. A key element of Respondent's relationship with the most difficult of these most difficult students is that he literally was not afraid to touch a student. Respondent was unafraid to place an arm around such students and hug them close to his body. The hug conveyed affection and physical constraint. While holding the child firmly, Respondent would then typically say that he had to calm down. In many instances, this approach was successful; in some instances--disproportionately represented in the next section--this approach was not. There were always clear limits to Respondent's disciplinary efforts. As noted below, he did not believe in striking students, and never did so except one time at the behest of a parent, who sought to avoid the more burdensome punishment of a suspension. Respondent scrupulously tried to get all significant information before taking any disciplinary action. Though a strong believer in discipline, Respondent was never inflexible. To the contrary, it appears he was always willing to fashion the most appropriate penalty under the circumstances--such as pushups or cafeteria duty--and was often willing to modify a penalty upon request of a parent or guardian or even the student himself. During Respondent's tenure, which ended with his suspension on January 11, 1996, there was a fight every three weeks among students. After his suspension, there was a fight everyday. During Respondent's tenure, the police were present at school every other week. After his suspension, the police were present every other day. Despite Respondent's success at the ALC, he encountered some resistance and engendered some resentment among staff. Clearly, disgruntled staff was the source of many of Respondent's problems, causing management problems at school and, more importantly, conveying misinformation to the District office. In general, at least two-thirds of the ALC staff supported Respondent even after he was suspended. Some staffmembers were neutral. Among staffmembers vocally opposed to Respondent, some were doubtlessly put off by Respondent's assertive personality. But there were other reasons for the vocal disaffection of some staffmembers, and some of these reasons have a material bearing on the credibility of these persons as witnesses and the weight accorded their testimony. In some cases, the source of staff disaffection may have been professional, such as when Respondent selected Ms. Smith over Jim Nassiff, an ALC teacher, for the position of assistant principal. Mr. Nassiff was unhappy with Respondent for choosing Ms. Smith over him. Most disaffected staffmembers had job-performance problems, which were exacerbated by the demands that Respondent placed upon them in terms of academics and discipline. Teachers in this category included Kenneth Vitale, Pamela Minton, Cheryl Gruenefeld, and Ms. Culligan. To varying degrees, teachers in this category manifested an unwillingness or inability to adapt to the changes implemented by Respondent. The sources of disaffection of Mr. Vitale and Ms. Culligan are described in connection with incidents involving them. However, two staffmembers were involved in a number of incidents. Lisa Krucher, a security guard, was notable for the extent of her dissatisfaction with Respondent and her inability to perform her job. She defied Respondent's efforts to ban smoking from the ALC building. She was unable to break up fights and lax in enforcing discipline. She eventually became the eyes and ears of Petitioner by daily reporting incidents to Mr. Wortham, who passed them on to Dr. Santini. Her job-related deficiencies were such that--despite her loyalty--Ms. Krucher was transferred to the Academy after Respondent's suspension. Ms. Smith offered a more balanced perspective on Respondent than did Ms. Krucher, and the source of Ms. Smith's disaffection with Respondent is more professional. Previously a guidance counselor in a middle school and dropout prevention program, Ms. Smith is an articulate exponent of the modern disciplinary theories of positive reinforcement and behavior modification. She deemphasizes more traditional, coercive methods of discipline, such as punishment for wrongs-- which of course awaits those ALC students who, having already failed to take their behavioral cues in the setting of the regular schools, continue misbehaving until they encounter the criminal justice system. Respondent does not advocate the more traditional, coercive disciplinary method of punishment for wrongs to the exclusion of more modern techniques of behavior modification. However, his more intense style of personal involvement with misbehaving students bore little resemblance to Ms. Smith's more restrained style. Ms. Smith was disturbed by her perception of how Respondent handled certain misbehaving ALC students. The record is less clear in revealing her methods of modifying the behavior of such students. In any event, her reactions to the misbehavior and Respondent's attempts to correct it were entirely sincere. She was frustrated to the point of tears at times, believing at times that students who continued to misbehave simply had not been exposed to sufficient positive reinforcement. The problem is that Ms. Smith lacked experience with the kinds of students who can be found at the ALC. She was still developing effective means of handling the most dangerous and disruptive of these students when Respondent was suspended. At that time, Ms. Smith still had nothing approaching Respondent's experience in dealing with young persons who, with little if any warning or provocation, explode into a violent frenzy, seriously injuring anyone in their immediate vicinity. Following Respondent's suspension, Petitioner appointed Ms. Smith as Acting ALC Principal. On February 20, 1996, Petitioner replaced Ms. Smith with Mr. Hagy as Acting ALC Principal. Respondent and Students Spring 1995 Visits to ALC: Paragraphs 33 and 35 At the urging of Petitioner, Respondent visited the ALC shortly after Petitioner named him the new principal. He visited the school three times in the spring of 1995 before assuming his duties there on July 1, 1995. On his first visit, Respondent met briefly with Mr. Hagy and discussed how the school operates. On this visit, Respondent saw students loitering in the halls and cursing loudly. Respondent saw the timeout room, where staff had hung plastic to cover the holes that students had punched in the walls. Respondent saw students were sleeping rather than studying. Respondent and Mr. Hagy came across a student who was walking out of the class during the school day very upset, using abusive language. Mr. Hagy asked him to stop, but he ignored Mr. Hagy and walked out. In another class, taught by James Nassiff, Respondent found the class watching an entertainment movie. Mr. Hagy escorted Respondent into several classrooms. These visits were brief. Respondent later made a second visit, without Mr. Hagy, to observe the classes in session. These visits were somewhat longer. In each classroom during the second visit, Respondent introduced himself as the new ALC principal. He warned the students that things would be changing. He promised that he would suspend any student who talked back to a teacher, swore, or fought. Respondent ordered the students not to call male teachers "man" and female teachers "woman"; teachers would be called "Mr." and "Mrs." Respondent told the students that he would not tolerate sleeping or card playing in class. In a lighter tone, Respondent added that the students should tell their friends and family that there was a new sheriff in town and the ALC was going to be about education. Respondent then flashed his badge. The badge is a small shiny badge that designates Respondent as an Honorary Deputy Sheriff for the term of Sheriff McDougal, who remains in office. Respondent understands that the badge confers on him no special power to arrest persons. He has never tried to arrest anyone using the badge, and he has never displayed the badge on the occasions that he has actually summoned law enforcement officers. In Ms. Gruenefeld's class, Respondent found students sleeping. He approached one student who had his head down on the desk and did not look up when Respondent entered the room. Respondent told him to look at Respondent when he was speaking, or Respondent would suspend the student. Ms. Gruenefeld tried to justify the student's behavior on the grounds that he was a good student and had been working very hard. She believed that the student, who was Hispanic, did not engage in eye contact for cultural reasons. Nothing in the record supports the assertion that Hispanics disfavor eye contact. Absent an undisclosed medical condition, the student should have been able to raise his head off the desk and make eye contact with the new principal, who had entered the classroom to introduce himself to the students. There is no indication that Respondent's first or second visits to the ALC destroyed any instructional momentum in the classrooms. Obviously, the students were off-task for the time that Respondent was in the classroom, in most cases due to Respondent's presence. However, the students did not remain off-task for long and soon returned to whatever they were doing before Respondent entered the classroom. At most, Respondent's comments about changes at the ALC might have caused some harmless confusion among those students who were about to be returned to their geographical schools. There is no evidence that students were intimidated by Respondent's announcement or his display of a badge. Some students laughed after Respondent's announcement. Some responded more seriously, wanting to know if he were really going to be the new principal. In general, the students listened thoughtfully to Respondent's statement. Respondent made a third visit to meet with the faculty at the request of an ALC guidance counselor, who had called Respondent and told him that the faculty wanted to meet him. In this meeting, Respondent repeated the ground rules that he had given the students a few days earlier. Respondent invited each teacher to prepare a wish list for the ALC and a list of any concerns that he or she may have. Ending a positive meeting, Respondent introduced the teachers to his favorite expression, "We need to turn lights on for kids." Following Respondent's visits, Ms. Folaros telephoned Respondent and asked him what had taken place. He explained that he wanted to meet the students at that time because summer school would start before he assumed the role of principal. Respondent added that he wanted the students whom he met to tell other students that he would not tolerate students sleeping and misbehaving, as they had been doing in the past. Other Incidents of Flashing the Badge: Paragraph 33 In September or October, 1995, M. P. enrolled at the ALC. M. P. is a 14 year-old ninth grader, who started the year at Lehigh High School. M. P. was sent to the ALC after he urinated in the middle of class into a glue bottle because his teacher had refused him permission to use the bathroom. M. P. was accompanied by his mother and sister on the day that he enrolled--a process that took about 20 minutes. During the entrance interview, Respondent informed M.P. of the rules of the school. They discussed the dress code, the prohibition of drugs on campus, and M. P.'s misbehavior at Lehigh High School. During the conversation, Respondent flashed his badge and warned M. P. not to do anything wrong. M. P. testified that he was scared at the sight of the badge. This testimony is discredited. It takes more than a badge to frighten M. P.. M. P.'s mother saw Respondent flash the badge, and she decided, based on this meeting, that Respondent would be a good role model for her son. Respondent flashed the badge on other occasions. One time, four middle-school girls assaulted another student in the cafeteria. They ignored Respondent when he tried to talk to them, so he flashed the badge and warned them that he could have them arrested. They took him more seriously and listened after that. Another time, Respondent displayed the badge to a boy who was misbehaving in Respondent's office. Again, Respondent warned that he could have the student arrested. Respondent displayed the badge several other times and warned misbehaving students that he could have them arrested. Some of the students took him seriously; others did not. The ability of Respondent to have students arrested did not depend on his possession of the badge, and ALC students understood that. Flashing the badge unlikely intimidated anyone. M. P.'s Other Incident: Paragraph 29 After the entrance interview, M. P.'s mother spoke privately with Respondent about M. P. She described him as emotionally troubled over her recent divorce. She warned that he was quick to anger and especially intolerant of females because he blamed the divorce on his mother. He also resented females because of a gender issue in the family and the teacher who had refused him permission to go to the bathroom at Lehigh High School was a female. While in April Pepin's class, M. P. walked out of the classroom without permission. Ms. Pepin sent him to Ms. Smith's office. Talking to Ms. Smith, M. P. denied that he had left the classroom without permission and gave Ms. Smith trouble. Ms. Smith determined that he had misbehaved in Ms. Pepin's class, decided to suspend M. P. for one day, and called M. P.'s mother. M. P.'s mother asked Ms. Smith to have Respondent reinforce the point with M. P. Ms. Smith preceded M. P. to Respondent's office and explained the situation to Respondent, stating that M. P.'s mother wanted Respondent to talk to her son and that Ms. Smith was having trouble dealing with him. Respondent summoned M.P. into the office, leaned over his desk toward M. P., and raised his voice in an authoritative manner. Respondent warned M. P. that he could not act up at Respondent's school and that, if Ms. Smith told him something, it was like Respondent telling him something. M. P. elected not to listen to Respondent either and tried to walk out of his office. When he turned to walk around the chair, Respondent stopped him by grabbing his arm. Respondent was worried that he might be going after Ms. Smith. Respondent was also intent on not allowing M. P. to disobey Ms. Smith and Respondent by coming and going as he pleased, especially after his mother had asked repeatedly for Respondent's help in dealing with her son. After grabbing M.P.'s arm, Respondent told him to go up against the wall for a search, and, when he did not do so, forced him up against the wall. When Respondent tried to pat down M. P. for weapons, M.P. lost his composure and began to fight with Respondent. M.P. brought his arms down hard on Respondent and struck him. Respondent wrestled M. P. down to the floor and shouted for someone to call the police. Arriving a few minutes later, the police officers had to bind M.P. by the ankles and drag him to the police car, where he tried to kick out the car window. M. P.'s mother then had M. P. admitted to Charter Glades Hospital, a psychiatric treatment facility. M. P. remained hospitalized for ten days and remained on homebound instruction for two months. Charter Glades treated M. P. for an anger disorder. M. P.'s mother blames Respondent for M. P.'s hospitalization. She is understandably worried about her son, but the evidence does not in any way suggest that Respondent initiated, and the greater weight of the evidence does not prove that Respondent exacerbated or unreasonably triggered, M. P.'s obvious behavior disorder, which had manifested itself before his assignment to the ALC. Ms. Smith felt that Respondent overreacted to the situation, but she was unaware of the details or extent of M.P.'s behavior disorder prior to the incident. Under the circumstances, Respondent was justified in reacting quickly to prevent M. P. from leaving the office and precluding the possibility that the student might strike Ms. Smith. Pushups: Paragraphs 20 and 21 Respondent sometimes gave the option of pushups to male students whose misbehavior otherwise warranted suspension. (For female and other male students, Respondent would sometimes offer cafeteria duty.) On at least two occasions, students chose to do the pushups. Respondent demanded 50 pushups and sometimes called out the count himself, starting fast and ending slow. If a student could not do 50 pushups, Respondent allowed him to do as many as he could; in no event would Respondent suspend him for failing to reach 50. On one occasion, three students were doing their pushups in Respondent's office when a faculty meeting was about to start. The teachers were supportive of the students, cheering them on. When finished, the students, taking the matter in good humor, thanked Respondent for not suspending them. There is absolutely no evidence that any of the students choosing to do pushups were humiliated, injured, or exposed to a risk of injury. Presumably, as alleged by Petitioner, their arms shook and, for the white boys, their faces reddened. These things happen with pushups. Spankings: Paragraphs 18 and 19 There were two student spankings during the fall of 1995. One of them took place in October 1995 and involved O. B., who is 13 years old. O. B. lied to Respondent about not being involved in a fight. Based on O. B.'s word, Respondent was about to suspend another boy. After discovering the truth, Respondent went down to O.B.'s classroom and found the class watching a movie. Respondent said, loud enough for the teacher, Mr. Vitale, and other students to hear, "Son, you've lied to me. You've lied to me." O. B. answered, "Man, I don't know what you're talking about." Respondent then grasped O. B. firmly by the back of the neck and walked him down to Respondent's office. In the office, Respondent suspended O. for five days, called O. B.'s father (his biological grandfather who had adopted O. B.), and told him that he needed to pick up his son. O. B.'s classmates already knew that O. B. had lied about the incident. O. B. was not embarrassed by the manner in which Respondent removed him from class, nor was he hurt by the grasp of Respondent. When O. B.'s father arrived, he said to Respondent that O. B. had just been suspended and had been out of school more than he had been in. The father asked Respondent if there were another alternative, like a spanking, and suggested that Respondent spank the child. Respondent said he did not like to spank students. The father asked if he could, in order to avoid another suspension. Respondent said that was acceptable to him, so the father took his belt and applied it to O. B.'s buttocks five or six times. O. B. cried a little, so Respondent suggested that the father take him home for the rest of the day, rather than return to the classroom after having cried. The father did that. Respondent, O. B., and O. B.'s father were the only persons present during the spanking. The blinds were drawn in Respondent's office during the spanking. The other spanking involved J. N., who is also 13 years old. One day, J. N. repeatedly misbehaved. His teacher, Mr. Nassiff, talked to him several times without effect. J. N. got angry at another student and was about to get into a fight. Another teacher told him to be quiet and he refused. School Resource Officer Fred Jackson and Ms. Krucher also intervened, but failed to calm J. N. J. N. demanded to talk to Respondent. After a brief discussion, Respondent said that he was going to have to suspend J. N. if he misbehaved again that day. Respondent allowed J. N. to return to his class. J. N. returned to class and immediately caused trouble by getting into an argument with another student. Mr. Nassiff sent him back to the office. Respondent called J. N.'s mother and said that he was being suspended. J. N.'s mother asked Respondent to spank her child instead. She explained that she could not afford to arrange for someone to care for J. N. while he was out of school. He had just finished a suspension two or three weeks earlier, and his mother lacked the funds to hire another babysitter. After expressing some reluctance, Respondent agreed to the spanking, but required J. N.'s mother to come to the office to serve as the witness. She did, and Respondent, behind closed blinds and a closed door, hit J. N. six times with a belt on the buttocks. The spanking did not hurt and J. N. did not cry out. Lee County School Board Policy 5.16 addresses corporal punishment as follows: Subject to the provisions of law, if a teacher or school administrator feels that corporal punishment is necessary, at least the following procedures shall be followed: Reasonable alternatives have been used and documented. Written permission has been obtained from the student's parent or guardian at the beginning of each school year, and a call to the parent or guardian for each specific incident involved prior to using corporal punishment. The use of corporal punishment shall be approved by the principal or designee before it is used. The use of corporal punishment shall be administered only in the presence of the principal, another administrator, or a teacher. The principal, other administrator, or teacher shall, in the presence of the student, be informed of the reason for the punishment before it is administered. A principal, or designee who has administered corporal punishment shall, upon request, provide the student's parent or guardian with written explanation of the reason for the punishment and the name of the administrator or teacher who was present. Policy 5.16 is inapplicable to the O. B. spanking because O. B.'s father, not an employee of the District, spanked the child. Policy 5.16 is inapplicable to the J. N. spanking because--consistent with his disciplinary philosophy--Respondent never determined that corporal punishment was necessary. Such a determination is the precondition stated in the flush language of Policy 5.16 for the remaining conditions to apply. Respondent had determined to suspend J. N. Policy 5.16 governs spankings initiated by District employees, not by parents. Respondent merely acceded to the mother's requests that he substitute for suspension the lesser punishment of a mild spanking and that Respondent perform the spanking for her, in her presence--in effect as her agent and not an agent of the School Board. Violation of Dress Code: Paragraph 31 In September 1995, Respondent noticed an unidentified female student exiting a school bus on her way to class at the ALC. She was wearing a top that exposed her midriff, in violation of the ALC dress code. In the presence of District Transportation Coordinator Janet Harris, Respondent told the girl, "Get your ass into my office and call your mother. We don't allow those kinds of tops." Petitioner did not call the improperly clad student as a witness. There was no sexual content to Respondent's ill- chosen word, voiced in the presence of a female employee of the School Board who was a stranger to Respondent. Ms. Harris was not so startled by the comment as to report it at the time to anyone. She first mentioned it the next month to Mr. Wortham. Absent additional proof of the circumstances surrounding Respondent's isolated remark, including the student's reaction, Petitioner has failed to prove that Respondent's momentary lapse disparaged and embarrassed the student. C. L. Incident: Paragraph 22 C. L. was a 200-pound female student at the ALC with a history of violent outbursts where she would leave school and not return home for a couple of days. C. L.'s mother asked Respondent, when he became principal, not to allow C. L. to continue to leave school whenever she wanted. Previously, if she were resolved to leave school, no one would try to stop her. One day at school in September or October 1995, C. L. was out of control, trying to leave the school. Gerald Gilmore, a security guard, was trying to stop her when Respondent approached. Respondent took one of C. L.'s arms, and she suddenly dropped on him. Respondent and Mr. Gilmore each took an arm and walked her to the office, talking to her the whole way in an attempt to calm her. Respondent summoned Officer Jackson to help calm C. L. In the office, Respondent and Mr. Gilmore placed C. L. in a chair. Each time she popped out of the chair, they returned her to the chair. Eventually, C. L. calmed down, and they let her return to class. D. C. Incident: Paragraph 26 One morning in October 1995, Respondent saw D.C. smoking marijuana off-campus before school. When D. C. entered the school, Respondent asked him to come down to the office. D. C. was belligerent. Respondent placed his right arm around the back of the D. C., who was about Respondent's height, and grabbed his right arm, while holding his left arm close to the boy's side. Respondent then walked D.C. down the hall, side-by-side, to the office. Respondent frequently used this hold on students who were noncompliant. It does not hurt the student, but gives Respondent control over the student's movements. In particular, Respondent can sense immediately if a student is going for a weapon. Respondent's use of this hold and his readiness to search students (which is also part of his effort to keep drugs off campus) are prompted by Respondent's justified concerns for the safety of students and staff. The ALC has no metal detector and weapons are a constant worry. In the fall of 1995, Respondent found one student at school carrying a .25 caliber pistol with 18 rounds of ammunition in it. Once in the office, D. C. voluntarily leaned against the wall in Respondent's office so Respondent could search him with an electronic beeper. Respondent did not find any marijuana, but found a tobacco cigarette with half of the tobacco removed from the cigarette. Students smoking marijuana often removed part of the tobacco from a tobacco cigarette and replaced it with marijuana to avoid detection. Respondent suspended D. C. from school and contacted D.C.'s probation officer. D. C. subsequently violated the conditions of his probation and is now missing. ESE Student and Housing Project: Paragraph 32 In November 1995, Respondent spoke to an unidentified female student who was repeatedly being suspended for disciplinary reasons. The student lived in a public housing project. Respondent warned the student that, if she continued to get suspended, stay home, and cause trouble around the project during school hours, she and her mother could be evicted from the project. The student calmed down and behaved appropriately after that. Respondent was a commissioner of public housing for the City of Fort Myers at the time. He understood the rules of the housing projects, which permit the eviction of tenants whose unsupervised school-age children cause trouble in a project during school hours. Slightly Built Child: Paragraph 25 Petitioner presented no significant evidence on this allegation. It probably refers to another incident, such as the S. P. incident discussed below. M. B. Incident: Paragraph 28 In November 1995, M. B. was involved in a fight in the classroom. Respondent gave him the option of a suspension or working in the cafeteria, where he would clean up trays and take out the trash. He chose cafeteria duty. Shortly after arriving in the cafeteria, M. B. so infuriated the cafeteria manager that he called Respondent and told him that M. B. was the most arrogant boy he had ever seen, and he did not want the student back in the cafeteria again. Respondent left his office to retrieve M. B. and found him walking toward the office. Respondent said, "Son, come here." M. B. approached Respondent, who asked him what was his problem. M. B. said that he refused to empty any "God damned" trash. Respondent placed his arm around M. B.'s back and escorted him to the office. M. B. wanted to go straight home, and Respondent would not allow him. Respondent asked him to lean against the wall so Respondent could check him for weapons and drugs. M. B. did so. Respondent then called M. B.'s grandmother and warned her that, if M. B. continued to fight, he could be expelled for two years. She asked him not to suspend him. Respondent agreed not to suspend him, and M.B. completed the school day without further incident. L. S. P. Incident: Paragraph 23 S. P. is a 12 year-old male. He is about five feet one inch tall and is slightly built. He fights constantly. S.P. was sent to the ALC last year for fighting and insubordination. He was transferred from the ALC to his geographical school last Christmas, but, by the time of the final hearing in the present case four months later, he was back at the ALC. On the day of his testimony, S. P. had a black eye from fighting. On his first day at the ALC, S. P. got into a fight. He had not even reached his classroom when he started fighting with another student while still in the office. Respondent saw the fight and put his arm around the child's back, grasped the student's right arm, and hugged the boy close to Respondent. Respondent tried to calm him, warning that he did not want to have to suspend S. P. before he was even enrolled. S. P. tried to escape Respondent's grasp, but Respondent would not release him until S. P. said that Respondent was choking him. Respondent released him then, even though he was not choking the student. When S. P. remained noncompliant, Respondent grasped him again in the same manner as before. Respondent warned S. P., as he hugged him close to Respondent, "Son, you can't continue to fight. You're going to force me to suspend you." However, S. P. swore at Respondent, who replied that S. P. was suspended for the day. After telling S. P. that he was suspended, Respondent walked S. P. to the bench outside Respondent's office and sat him down. S. P. was upset and, after Respondent walked away, began crying. M. T. R. Incident: Paragraph 27 J. B. is an 18 year-old female who attended the ALC in the fall of 1995. From the third day of her attendance at the ALC through the remainder of the fall term, she was sexually harassed and physically threatened by T. R., who is another student at the ALC. On three occasions, J. B. complained of the harassment and threats, including actual touching, to Ms. Krucher, who did nothing about J. B.'s complaints. The first two complaints were early in the fall term and the last complaint was in January 1996. The day after her last complaint to Ms. Krucher had resulted in no action, J. B. complained directly to Respondent. After interviewing J. B., Respondent sent her back to class and summoned T. R. from his class. Terry Smith, a security guard, escorted T. R. to the office. Respondent told T. R. that he should not talk to or look at J. B. If he saw her walking down the hall, he should go in a different direction. Above all, T. R. was not to touch her anymore. T. R. denied any knowledge of who J. B. was. Respondent sent for J. B., who came to Respondent's office and stood in the doorway. When T. R. was told this is who was complaining about him, he jumped up, screaming to J. B., "What the hell are you doing telling people I did this?" He then lunged toward a visibly frightened J. B. Ms. Krucher pushed J. B. safely out of the doorway and escorted her back to the classroom. Respondent got to T. R. before he got to J. B. and pinned him against the wall. T. R. struggled, hitting Respondent while he tried to control T. R.'s arms. Mr. Smith assisted Respondent, who had T. R.'s upper body, by grabbing T. R.'s legs, and the two men wrestled T. R. to the floor. Ms. Krucher returned, and Respondent told her to call the school resource officer, so T. R. could be removed from the campus. In the meantime, Respondent and Mr. Smith tried to calm T. R. by talking quietly to him. Before the school resource officer arrived, T. R. calmed down and pleaded with Respondent not to send him to jail. T. R.'s girlfriend was pregnant, and he had criminal sex abuse charges pending. Respondent agreed to suspend T. R. for the rest of the day and not have him arrested. Respondent and Teachers Culligan Incident: Paragraph 41 At a faculty meeting early in the 1995-96 school year, Ms. Culligan addressed Respondent's decision to eliminate the timeout room. Ms. Culligan endorsed the previous policy where a teacher sent a student to the timeout room for a short period the first time, a longer period the second time, and the remainder of the day the third time on the same day. She said that she typically would not have to send a student back a second or third time. Respondent answered that that was not what the records showed. He implied that teachers had routinely sent students to the timeout room for long periods of time. He did not state that Ms. Culligan had resorted to the timeout room more than did the rest of the teachers, although she likely had. Respondent had considerable difficulty with Ms. Culligan. At the start of the 1995-96 school year, Ms. Culligan sent more students to the office for minor offenses than did other teachers. By memorandum dated September 21, 1995, Respondent directed Ms. Culligan to follow the interventions that "have been explained to you countless times." The memorandum reviews the intervention plan in detail and concludes: Failure to follow this directive violates the rights of the student in the academic setting when it has been clearly stated in writing, that this school will follow that particular policy. This is the third occasion that I've had the opportunity to address this particular policy with you and am therefore directing you to follow this policy to the letter. If I can be of assistance, please feel free to contact me. After receiving this memorandum and the assistance of Ms. Smith in improving her cultural sensitivity, Ms. Culligan reduced her office referrals to an acceptable level. But her claims of humiliation and embarrassment over Respondent's informative reply at the faculty meeting, as well as her testimony concerning other incidents, are largely the product of the early difficulties that Ms. Culligan experienced with Respondent's new, more demanding discipline plan. Nassiff Incident: Paragraph 41 During another faculty meeting, Respondent was discussing an assembly that was to take place in the next day or two. The assembly, which featured drug-detecting dogs from the Port Authority, would be attended by ALC students. This was to be the first assembly ever for ALC students. Respondent was discussing the logistical aspects of moving the students into and out of the assembly and explaining how the assembly was part of the academic rehabilitation of ALC students. Suddenly, Mr. Nassiff raised his hand and asked who would be responsible for watching his students. They were in physical education at the time of the assembly, and Mr. Nassiff thought that the physical-education teacher should continue to watch Mr. Nassiff's students during what was Mr. Nassiff's planning period. Respondent had told the teachers that they could leave school early that day to make up for their lost planning time. Upon hearing Mr. Nassiff's question, some teachers groaned audibly. Respondent replied by asking Mr. Nassiff, "You're an administrator-in-training. How would you respond to that question?" Mr. Nassiff answered Respondent's question by saying, "I'd give me my planning period." Respondent replied, "That's not an appropriate answer. If you want to be an administrator, you wouldn't ask a question like this. Let me see you after the meeting." After the meeting, Respondent explained to Mr. Nassiff the importance of teamwork. Mr. Nassiff conceded that he had said the wrong thing and knew it the moment he had said it. Respondent first gave Mr. Nassiff an opportunity to extricate himself gracefully from the awkward situation created by his question. When Mr. Nassiff persisted, Respondent answered him, directly but not in a hostile tone. Most teachers found nothing inappropriate in Respondent's handling of this situation. Mr. Nassiff and the few teachers who felt otherwise evidently preferred that Respondent handle privately an issue that Mr. Nassiff raised publicly. But Mr. Nassiff invited a public response, and Respondent's handling of the matter was entirely suitable. Announcement Incident: Paragraph 39 One day early in the 1995-96 school year, the students misbehaved badly. The next morning, during the morning announcements, Respondent stated that he expected students to act appropriately in an academic setting. He noted that too many students were coming down to his office and that they needed to do what teachers tell them to do. Respondent added words to the effect that teachers would continue to follow the intervention plan. The effect of such an announcement, nominally addressed to the teachers, was to notify the students that their teachers had no choice but to follow the intervention plan and, if the students objected to the plan, their problem was with Respondent, not with individual teachers. By this comment, Respondent was trying to take some of the pressure off the teachers for enforcing the new intervention plan, which, as noted above, imposed greater burdens on teachers than the previous policy with its excessive reliance on the timeout room and suspension. The meaning of Respondent's announcement does not lend itself to contrary interpretations. Two of the three witnesses who testified that the announcement demeaned the teachers testified about a number of incidents. The testimony of these witnesses--Ms. Culligan and Ms. Minton--must be doubted based in part on the fact that their claimed reaction to Respondent's announcement appears disingenuous. Holzborne Incidents: Paragraphs 36 and 37 Kathleen Holzborne is the lead communications teacher at the Academy. One school day, Ms. Holzborne saw Respondent opening classroom doors in the Academy looking for someone. This was innocuous. Respondent was likely looking for someone or checking on nearby classrooms after a disturbance. Another school day, Ms. Holzborne saw Respondent admitting drug dogs and their handlers into Academy classrooms while Mr. Wortham was elsewhere in the building. Respondent was doing this under the authority of Mr. Wiseman, who was also in the building. Another school day, Respondent and Ms. Holzborne were in the cafeteria while the Academy students were eating lunch. Respondent said she did not need to stay, adding, "Daughter, everything will be fine here." Respondent is from a family of ministers. He sometimes speaks of persons as sons and daughters, meaning they are sons and daughters of God. He used "daughter" in speaking to Ms. Holzborne in a personal, nonsexual manner not intended to intimidate or offend. Had she objected, he would have apologized and explained his innocent use of the word. However, Ms. Holzborne did not complain to Respondent or anyone else until, months later, she mentioned the comment during Petitioner's investigation. Testifying, Ms. Holzborne seemed much more upset over Respondent's alleged failure to return promptly a piece of a tripod, but Petitioner has not charged Respondent with this omission. Intimidation Incident(s): Paragraph 38 Respondent did not intimidate his teachers or staff. To the contrary, he was supportive of teachers and staff, although he demanded that they work hard and smart. At the time of Respondent's suspension, faculty morale was good. A small number of teachers were dissatisfied with Respondent, but not many. The greater part of the faculty got along with each other and Respondent. A reliable portrayal of Respondent's supportiveness comes from Lisa McKeever, an ALC teacher who displayed an unusual degree of independence for a witness in this controversial case. She testified to tell the truth, unaffected by any fear of retribution from Petitioner or Dr. Santini or from the community of supporters of Respondent. Answering a question about whether she supported the Charles Dailey Foundation, which was organized to help pay Respondent's legal fees, she testified that, if she had money to give away, she would first give it to her children and then to literary or musical organizations before she would give it to the Dailey Foundation or any political organization. On two occasions, students threatened Ms. McKeever while she was seven months pregnant. In one case, a boy pushed her up against a chalkboard. Respondent asked Ms. McKeever what she wanted him to do about it. Ms. McKeever did not want him suspended, so Respondent dealt with him, but did not suspend him. In another case, a girl approached her with a clenched fist, threatening Ms. McKeever by saying, "You stupid flat-assed white bitch. Get out of my fucking face." Ms. McKeever was frightened by this assault, and Respondent expelled the student, who that night was arrested after attacking family members with a knife. Respondent and Administrators, Law Enforcement Officers, Guardians, and School Board Policies A. Overenrollment: Paragraph 51 The overenrollment issue arose at the start of Respondent's tenure as ALC Principal. Dr. Santini arranged a meeting on June 20, 1995, among the three new principals at the New Directions Center. The purpose of the meeting was to divide responsibilities among the principals. Ominously, Dr. Santini testified that she had had lots of experience with Respondent not cooperating. It is not entirely clear what specific ALC enrollment policies were advocated by Dr. Santini and Respondent at the June 20 meeting, or even that either of them advocated a specific policy. Dr. Santini stated that the ALC was a short-term program. Respondent wanted the same flexibility that the ALC administrators had had in the past in deciding when to return students to their geographical schools. The ALC enrollment policy from the preceding school year had been the 45 good-day policy described above. In general, Dr. Santini wanted to limit enrollments due to safety considerations. Overcrowding at the ALC became a bigger problem once the new school year got underway due to the introduction of more students from regular schools, as a result of a new zero-tolerance policy in the regular schools, and increased referrals from the juvenile detention center. Respondent's argument for greater enrollment flexibility was based on behavioral and academic factors. Behaviorally, an ALC student might need more than 45 days before he is ready to return to his geographical school. Academically, an ALC student might have difficulty returning to his geographical school due to the differences in the calendars at the ALC and regular schools. The high schools are on a seven-period daily schedule, and the ALC is on an 18- day modular schedule where one class is taught for 18 days. A behaving, attending ALC student could only take two and one-half classes in 45 school days, so that, when returned to his geographical school, he would be behind his classmates in most of his classes. After the meeting, Dr. Santini spoke with Respondent privately and told him that his behavior during the meeting had bordered on the insubordinate. Respondent countered that Dr. Santini was discriminating against him on the basis of race. Respondent's continued implementation of the 45 good- day policy at the start of the 1995-96 school year did not violate any directive that Dr. Santini had given him. Their disagreement during the June 20 meeting was probably limited to a disagreement over general philosophy. Most likely, Dr. Santini had decided to see the effect on ALC enrollment levels of Respondent's implementation of the 45 good-day policy. On October 20, 1995, Dr. Santini conducted another meeting concerning ALC enrollments. This time she met with Respondent and Mr. Wiseman. She called the meeting after receiving a telephone call that a student had remained at the ALC since April 1995. She was also concerned with current ALC enrollment levels under Respondent's approach. During this meeting, Dr. Santini told Respondent that the ALC building was designed for a maximum of 270 students. She told him to cap enrollment at 250 students. Dr. Santini testified that she told Respondent that she approved of the 45 good-day policy. She also testified that Respondent was angry at the meeting. If Dr. Santini approved the 45 good-day policy at the October 20 meeting, the only reason why Respondent would have angered at the meeting would have been a disagreement over the application of the policy; after all, Respondent wanted the 45 good-day policy. Perhaps, Dr. Santini believed that she was approving the 45 good-day policy, but in fact she was not, as evidenced by their closing comments and her October 25 memorandum, described below. At the end of the October 20 meeting, Dr. Santini promised written guidelines and asked Respondent if he wanted any input. Dr. Santini testified that Respondent said that the only thing that he disagreed with was, if a student must be returned to his geographical school at the end of 45 days, ready or not, that those schools would be prepared to help him in the transition. Mr. Wiseman promised to adopt or modify the PASS program to help with this transition. The significance of Respondent's comment, as recounted by Dr. Santini, is as additional proof that Dr. Santini had not approved the continuation of the 45 good-day policy and Respondent was resigned to following her new enrollment policy. The comment tends to prove the elimination of the 45 good-day policy because, if the ALC were permitted to retain students until they were ready to return to their geographical school, there would be little need for the geographical school to help with the transition. The comment proves the obedience of Respondent because he had disagreed was more than the issue of the preparedness of the geographical school to help the former ALC student. Respondent had tried and failed to win Dr. Santini's approval for the 45 good-day policy, so that the ALC students returning to their geographical schools would not need any special assistance from the geographical schools in the transition. But this comment proves that he was giving up on the 45 good-day policy. Dr. Santini sent a memorandum dated October 25, 1996, to Respondent with copies to Petitioner, Mr. Wiseman, and all principals in the District. The memorandum largely memorialized what Dr. Santini had said at the meeting five days earlier. Dr. Santini testified that the only change between the October 25 memorandum and what she had said at the October 20 meeting was that she had eliminated the 45 good-day policy. She explained that she did not want Respondent to be the sole person to decide what good days were. However, the omission of the 45 good-day provision from the memorandum is strong proof that Dr. Santini never approved the 45 good-day policy at the October 20 meeting. There were less drastic means of eliminating Respondent's discretion in applying the 45 good-day policy, without eliminating the policy itself. Dr. Santini could have reserved such authority for these decisions to Mr. Wiseman, herself, the principal of the geographical school, or some combination of the above. The October 25 memorandum states in its entirety: The following plan is to be implemented immedi- ately as a result of our meeting on Friday, October 20, 1995. High school, middle school and ESE students will be returned to their home schools at the end of a quarter after approximately 45 days at the Alternative Learning Center (ALC). In most cases, those students entering the ALC during the first three weeks of a quarter would be eligible for return at the end of that quarter. Those students entering after the first three weeks of a quarter would remain at the ALC until the end of the following quarter. In rare cases a student may be returned to a different high school when recommended by the home school principal and agreed to by the receiving principal. All high school principals have agreed to alter their PASS program to accommodate an orderly reentry of students into the high schools. The ALC will not exceed 250 students. When full capacity is reached the student who has made the most progress will be returned to his/her home school when a new student arrives at the ALC. The above procedures would not prohibit a principal from requesting an earlier return or an extended stay at the ALC. The ALC will continue to function in its capacity as a special center serving the high schools, middle schools and special schools with an ongoing influx and reflux of students. It is understood that the school principals and the ALC principal will main- tain open and direct communication in a spirit of cooperation to best help students. Ultimately, the length of a student's stay at the ALC is dependent upon the nature of the original offense and the sound judgment of the principals involved. There are two possible interpretations of the October 25 memorandum. Either it is a consistent expression of an inflexible enrollment cap with the final sentence as a general surplusage to other, more detailed provisions to the contrary. Or, if the last sentence is to be given real effect, the memorandum is contradictory and meaningless. Paragraph 1 of the October 25 memorandum states clearly that the duration of a student's enrollment at the ALC is 45 days. As mentioned above, there is no requirement that these be good days. The word "approximately" does not restore any discretion to the ALC principal or anyone else; rather, like Paragraph 2, the word "approximately" allows for some minor flexibility in shortening or lengthening the 45-day enrollment based on the end of the academic quarter. More importantly, Paragraph 5 of the October 25 memorandum unconditionally limits the enrollment of the ALC to 250 students and supplies a simple procedure for the release of students when the enrollment exceeds 250 students. The student making the most progress when enrollment exceeds 250 students is returned to his geographical school. The returned student is not necessarily prepared for the transfer; he is only the most prepared among the ALC students. Paragraph 6 grants some discretion to the principal of the geographical school, not the ALC, to shorten or extend the stay of a student at the ALC. But the provision gives no guidance as to when stays should be lengthened. Nothing in this provision conflicts with the preceding provisions of the October 25 memorandum. The last sentence of the flush language at the end of the October 25 memorandum seems to ignore the preceding, more- detailed provisions of the memorandum. The last sentence abruptly introduces some discretion to the ALC and geographical school principals as to the length of a student's stay at the ALC. Respondent could not afford to read his supervisor's memorandum as contradictory and meaningless. His reading of the memorandum was guided by what Dr. Santini had told him at the October 20 meeting, which was that the 45 good- day policy was no longer in effect. When enrollment reached 250 students, Respondent had to return the students who had made the most progress. As promised, Mr. Wiseman sent a memorandum dated November 1, 1995, to the eight high school principals stating: Please send to me immediately, above your signature, a statement that you will provide the opportunity for returning students from the ALC to make up their work, and not be denied the chance to pass their classes. Return your memo to me by Wednesday, November 8, 1995. The principals did so. Shortly after receiving the October 25 memorandum, in compliance with her directive, Respondent returned 75-80 students to their geographical schools. Included in this number was A.B., whom Respondent returned to Mariner High School. Respondent had serious reservations as to A. B.'s readiness to return to a less-structured school setting. Even the student shared these misgivings. When he learned he was to be returned to Mariner High School, A. B. told Respondent that he was worried that he was not ready to return to a regular school. He had been apprehended with drugs or drug paraphernalia twice previously and was undergoing counseling. Three weeks after he was returned to Mariner High School, A. B. was apprehended with marijuana. On December 13, 1995, a Board-appointed hearing officer conducted A. B.'s formal expulsion hearing. Witnesses at the hearing, including Respondent, were sworn to tell the truth and subject to cross examination. Petitioner was represented by counsel, and A.B. was represented by his father, who has been a law enforcement officer for 21 years and is currently employed with the Cape Coral Police Department. Petitioner charged that A. B. had been in possession of marijuana and drug paraphernalia on November 28, 1995, and was a repeat offender. Petitioner sought to expel A. B. for the remainder of the 1995-96 school year and the following year-- evidently, the maximum penalty allowed by law. A. B. had attended the ALC on at least two occasions. His more recent ALC enrollment was from April 17, 1995, through November 6, 1995. In his opening statement at the expulsion hearing, A.B.'s father admitted that A. B. had been caught possessing marijuana and stated: But the point of the issue too is that he was sent back to Mariner. He was in the ALC. He was flourishing in ALC for the first time. Whatever Mr. Dailey sparked in him was the first time since he's ever been in school. He was bringing books home and everything else, which is not heard of from ALC. When he was alerted to come back to Mariner, he went to Mr. Dailey and told him he wasn't mentally or physically ready to go back. Because the other problem that if he's offered a joint, he can't say no. And Mr. Dailey agreed and that's when that fell apart less than four weeks later. The hearing officer asked A. B.'s father if he wanted A. B. to return to the ALC. The father responded by saying, "Yes, sir. I never wanted him to leave. . . . And the result of this too which I wish people would take into consideration, the night that this happened, because of this, my wife tried to commit suicide." A. B.'s father continued in his opening statement: In ALC Dailey sparked four point something and he was studying. He was getting high grades. His grade point average went up. He didn't want to leave. He did not have the problem. Four weeks--it wasn't even four weeks after he was back that this happened. .... I'm not totally blaming [Mariner High School]. A[.] is at fault with that too. And that's what we are addressing through the counseling. But to put him out in the street or expel him I don't think is the answer either. Especially since for the first time in his life he showed an interest in school. Petitioner's second witness in the expulsion hearing was an assistant principal at Mariner High School. He testified in response to a question directed toward the propriety of the handling of A. B. at Mariner High School: Our position there is that Mr. Dailey is a competent expert, that he handles the people and when he recommends for us to come--for someone to come back, we take that individual. . . . Answering the question whether he would have handled A.B. differently if he had known that he had not successfully completed the ALC program, the assistant principal testified: . . . You know, we have to accord him his rights like all the kids who complete the program at the Alternative Learning Center. Once he's paid his debt and satisfied them that he's capable, then they send him to us. I don't know of any students they send to us that they don't feel like has made the improvement that the school was set up to start with. Do you understand what I'm saying? So when they come to us, their staffing to exit over there is telling us that they feel like they had--now the kid has shown improvement and he's now corrected what it is and he's ready to return. Petitioner's last witness at the expulsion hearing, John Hennebery, who is the District Director of Student Services, testified that the ALC Principal determines when the student is to be returned to his geographical school. A. B.'s father called Respondent as his sole witness. In response to a question as to A. B.'s progress at the ALC, Respondent testified: . . . I noticed, number one, he tends to be completely honest and tells the truth. That's the experience I have had with him. He is begin- ning to come around in terms of when he feels someone is making up evidence or getting to that point, he would seek out--attempt to seek out in terms of trying to find some assistance rather than jumping in first. But that again is a kind of structured environment that we have at the Alternative Learning School. Q: In your professional opinion, do you believe that [A.] at this point in time still needs that structure of school? A: I most certainly do. Q: At the time when he was requested from the School Board to go back to Mariner, did [A.] approach you in reference to this? A: Yes, he did. Q: And in what aspect did he? A: The usual policy of the district was that on a first offense there was a 45 good day policy. That means that the student has the responsi- bility of spending 45 good days there, good days, which are defined as attendance, punctu- ality, academic and discipline. And on the second offense it's a ninety day offense. Q: Uh-huh. A: Then this year the rules are changed. In the middle of the semester. I was given a directive from the Assistant Superintendent, along with other Principals were informed of it; that the students were called by numbers. At the Alternative Learning School were addi- tional programs of juvenile justice, programs dealing with the number of felons that we were having come into school; that our numbers were getting too large and we had to--I had to send students back. [A.] was one of the students that had been there a period of time and that based on the period of--on the time that he had spent there, that we have to send him back to Mariner. [A.] had some concern about that and spoke with me in great detail about going back and being under those pressures. Now my conversation with [A.] was that because if he had done well at the Alternative Learning School, that my expectations with [A.] would be that he would go over there and do well and make good decisions at Mariner High School. So that in terms of that's the type of conversa- tion that we had and that's where it led. Now did [A.] complete his stay? No, he did not. And he is not one that I would have automatically sent back to Mariner because I was not yet convinced of his ability to deal with the pressures that he was going to have to face at Mariner High School. * * * Q: But your general concerns that the peer pressure is basically--or the pressures in the school itself that he couldn't handle was also [A.]'s concerns too when he came to speak to you about going back? A: Yes, those were [A.]'s concerns but those would be anyone's concerns as relates to going back to the regular school once you have been at the Alternative for a long period of time. You get the anxiety of going back and wanting to do well. So it's not out of the ordinary for students, I might say, to be excited. I have students right now that actually do something wrong so they won't have to go back. So [A.]'s concern or his emotions that he expressed were not unordinary. I felt at that time that because I was given a directive, that it was my responsibility as a Principal to assist him in moving in that direction and I had all the confi- dence in the world in the Mariner staff that they would assist him in moving in that direction. There is an issue that I must be very honest is that the decisions that [A.] makes is [sic] [A.]'s decisions and once in fact--and this is what we teach them at the Alternative School; that once in fact you see that kind of situation present, then you must not go to the situation. You must remove yourself from the situation. And, you know, I'm one that's trying to be very fair and equitable in this hearing and in telling you that this is a situation that, yes, he should have known not to go near that, should have backed off from it. Q: Did he? A: No, sir, he didn't. Was I ready to release him? No, I wasn't. I'd like to concur with Mr. McNerney. I'd like to see [A.] back at the Alternative Learning School for ninety days with the approval of the-- with some kind of documentation showing that he has completed his drug testing and after that, then backing up Mr. McNerney's decision in attendance at the school. And I'm being very honest. The preceding excerpts from the transcript represent all of Respondent's material testimony. Petitioner conducted limited cross examination, devoted to an exposition of the District's drug policy. A. B.'s father introduced into evidence a letter dated December 12, 1995, from Licensed Mental Health Counselor Beverly Barbato, Ph.D., stating that it is in A. B.'s best interest to return to the structure of the ALC. On December 18, 1995--working without a transcript in the interest of time--the hearing officer summarized the testimony of the witnesses, commending each of them for some aspect of their participation in the hearing. As to Respondent, the hearing officer stated: "Mr. Dailey should certainly be commended for his honesty and his ability to assess the situation in a very diplomatic manner." Acknowledging that Petitioner sought expulsion for the maximum time permitted by law, the hearing officer stated that he "sense[d] that both Mr. Hennebery and Mr. McNerney felt that reinstatement should occur in the 1996-1997 school year or upon [A.] completing a successful drug rehabilitation program pursuant to Florida Statutes." Never mentioning old or new enrollment policies at the ALC in his discussion, the hearing officer accepted the recommendations of Respondent, A. B.'s father, the treating health care professional, and A. B. that A. B. be placed on probation for the remainder of the 1995-96 school year at the ALC, subject to additional conditions. In no way did the hearing officer's recommendation rely on Respondent's brief testimony about the transfer of A. B. under the new ALC enrollment policy. The court reporter finished the transcript on December 26, 1995. In Exceptions filed January 8, 1996, Petitioner requested that A. B. be expelled at least for the remainder of the 1995-96 school year. The record does not indicate what action the School Board took on the hearing officer's recommendation. The expulsion transcript reveals that the Assistant Principal at Mariner High School construed the ALC enrollment policy to ensure that students would not be returned to their geographical schools until they were ready to return. The Director of Student Services shared this misinterpretation, at least to the extent of thinking that the transfer decision was made by the ALC principal. The expulsion transcript reveals that Respondent told the truth that B. had come to Respondent and said he was afraid he was not ready to return. Respondent told the truth that he too shared these concerns. And Respondent told the truth that the current policy was that he had no choice but to return unprepared students when ALC enrollments reached the cap. In one respect, Respondent's testimony may have reflected a misunderstanding of a portion of Dr. Santini's policy. He testified that the new policy meant that "the students were called by numbers." Numbers triggered the necessity to return some students. But the new policy did not require that students be returned on a first in, first out basis. Rather, the students to be returned were to be those most prepared to be returned. Respondent's testimony seems to indicate that he interpreted the new policy as providing that he return students on a first in, first out basis. He implied that he selected for transfer the students who had been enrolled the longest at the ALC. In his next sentence, Respondent mentioned "numbers" in connection with the enrollment at the ALC getting too high as trigger for the need to transfer some ALC students. This suggests that his reference to "numbers" was not to the determination of who to return to their geographical schools. But in his next sentence, Respondent implied that the decision to return A. B. was based strictly on how long he had been at the ALC. However, two sentences later, Respondent recounted how A. B. had done well at the ALC, implying that he had at least made some progress, although without any mention of his progress relative to the progress of the other ALC students. Close analysis of Respondent's testimony does not reveal the basis on which he selected the students to be transferred. However, even if Respondent returned A. B. on a first in, first out basis, this action, although not consistent with the better reading of the October 25 memorandum, would have been consistent with Paragraphs 1 and 2, which imply that the sole criterion of enrollment duration is the length of the student's enrollment. Although close scrutiny of the October 25 memorandum permits a reconciliation of Paragraphs 1, 2, and 5--though not also the last sentence of the flush language-- Respondent cannot be expected to perform such textual analysis to discern meaning from such careless wording. In any event, Respondent's testimony at the expulsion hearing did not dwell on the inflexible enrollment cap ordered by Dr. Santini. He mentioned it briefly, then proceeded to describe, almost as briefly, his application of the policy in A.B.'s case. He cast his testimony in a light favorable to Petitioner by explaining that many ALC students are worried about their ability to survive in a regular school, A. B. had made some progress at the ALC, Respondent had encouraged A. B. to behave at Mariner High School, and A. B. must bear final responsibility for his poor choices. After receiving Dr. Santini's memorandum, Respondent was doing the best he could to implement the new enrollment policy. Probably unknown to Dr. Santini at the time, Respondent called Mr. Wiseman around Christmas vacation and asked if he should transfer 112 students then or wait until the end of the semester in January. Mr. Wiseman told Respondent to retain the students until the semester break. Dr. Santini never tried to clarify her confusing memorandum to Respondent or assist him in its implementation. In response to questioning during a School Board meeting from a School Board member concerning the conflict between Paragraphs 5 and 6 of the October 25 memorandum, Dr. Santini issued a memorandum of clarification dated January 5, 199[6.] The January 5 memorandum was issued to all middle- and high-school principals. The first four paragraphs are identical to the October 25 memorandum, except for the addition of a sentence to the fourth paragraph mentioning some new software to facilitate the transition of students back to their geographical schools. The new fifth paragraph states: The ALC will not exceed 250 students unless there are special circumstances with individual students that may warrant extended time. The principal of the geo-school will discuss these circumstances with the ALC principal. When extended time is recommended, the ALC principal will then compile a short report to the Secondary Operations Director that includes the following: the time already spent at ALC by that student, the original offense committed by that student, and any other justification that may warrant extended time (i.e., parent request). The Secondary Operations Director will consider all above factors and then give approval or disapproval on any requested extended time. Dr. Santini also revised the last sentence of the October 25 memorandum to reflect that the length of a student's assignment to the ALC is dependent on the nature of the original offense and the sound judgment of the principals and-- now--Director of Secondary Operations. The overenrollment issue did not end here. Dr. Santini conducted a meeting with Respondent and Mr. Wiseman on January 9, 1996, but this is addressed below in connection with another issue. However, one more fact has a bearing on the issue of overenrollment itself. Respondent never violated the ALC enrollment policy as Dr. Santini applied it to Respondent's immediate successors, Ms. Smith and Mr. Hagy. During the 77 days of Respondent's tenure, the average student enrollment was 265 students. During the 73 days of his successors' tenure, the average student enrollment was 253 students. After adjusting for actual attendance, there were 184 students present on average under Respondent's tenure and 189 students present on average under his successors' tenure. Improper Voluntary Enrollment and ESE Procedures: Paragraph 52 At the end of July 1995, Respondent called Mr. Hennebery and asked if he could voluntarily enroll two students. Mr. Hennebery explained that ALC administrators had made voluntary enrollments before deciding to discontinue the practice one or two school years ago. Since that time, Dr. Santini or Mr. Wiseman had approved all voluntary enrollments. Mr. Hennebery was not Respondent's direct or indirect supervisor. Mr. Hennebery lacked the authority to accept voluntary enrollments, or to make policy on this issue. At no time did Respondent's direct supervisors, Dr. Santini or Mr. Wiseman, instruct Respondent as to voluntary enrollments. The issue of voluntary enrollments is not, in any event, of major importance. Of the hundreds of students enrolled at the ALC during Respondent's tenure, not more than 18 of them were voluntarily enrolled. Most if not all of the students whom Respondent voluntarily enrolled were exceptional cases who were ineligible to return to their geographical schools or enter the Academy. During Respondent's tenure, six ESE students were transferred from the ALC without individual educational plans. Respondent relied on Mr. Vitale, who was the ESE department head, and Ms. Smith to handle ESE paperwork, as Respondent candidly admitted at the hearing that he was unknowledgeable about ESE procedures. Five of the six students left the ALC and entered Adult Education. These were obviously older students for whom an individual educational plan is of less importance than it would be for students with many more years in the educational system. Ultimate responsibility for ensuring compliance with ESE procedures at the ALC rests with Respondent. However, the circumstances suggest only an innocent mistake on Respondent's part, not incompetency, misconduct in office, or gross insubordination. Student Visits to Hi Tech Center Central: Paragraph 55 One day in late November 1995, Ms. Saldana had arranged for two students to visit the District's High Tech Center Central, which is a vocational school. When they returned, they told her that, at the end of the day, the counselor at High Tech Center Central had refused to talk to them because they were ALC students. Ms. Saldana called High Tech Center Central Director Ron Pentiuk, who confirmed that he would not allow ALC students to enroll directly from the ALC or even to visit his campus while still enrolled at the ALC. He said that this had been his agreement with Ms. Folaros. Ms. Saldana explained that, in the case of three to five students, they could not first return to their geographical schools because they were graduating early. If they could not enroll in High Tech Center Central directly from the ALC, they could not attend the vocational school. Mr. Pentiuk refused to consider the request, insisting the students still had to spend six to nine weeks at their geographical schools before they could enroll at the vocational school. He said someone in the District office told him not to accept any more ALC students. By letter to Respondent dated December 19, 1995, with copies to Dr. Santini, Mr. Wiseman, Mr. Wortham, and others, Mr. Pentiuk restated his position: "no ALC students will have direct access to High Tech Central programs. . . . [A]ll visitations shall come from the student[']s geo school and not ALC directly." The letter cites as authority for this policy a meeting that took place at the start of the 1994-95 school year between representatives of High Tech Center Central and the New Directions Center. The implicit reason for this policy is that Mr. Pentiuk wanted someplace to send a student if he failed to perform at High Tech Center Central. By memorandum dated January 10, 1996, to Mr. Pentiuk, Respondent memorialized a discussion at a principals' meeting earlier that day. The agreement appears to allow ALC students who are ready to be returned to their geographical schools, but have not yet been returned, to visit the High Tech Center Central. The record reveals only that Respondent tried to send ALC students to the High Tech Center Central for visits. When they were treated rudely by Center personnel, Respondent and Ms. Saldana discovered an unreasonable policy that emanated not from the District office, but from an understanding reached by Mr. Pentiuk and Respondent's predecessor. This agreement had little logic to commend it. It delayed and, in some cases, denied ALC students access to important vocational training. Mr. Pentiuk explained that he could not deal directly with ALC students because he needed to have a place to which to return them if they misbehaved. However, his concern does not address the aspect of the policy prohibiting even campus visits by ALC students. And his concern fails even to address the remainder of the policy, as the record does not explain why Mr. Pentiuk could not expel students back to the ALC as easily as to their geographical schools. In any event, Respondent and Ms. Saldana rectified the situation, achieving a much-improved policy than the one that preceded Respondent's involvement. Refusal to Reenroll J. M.: Paragraph 50 In September 1995, Respondent refused to reenroll J.M. when his grandmother brought him back to school after an unexcused absence. J. M.'s father had called Respondent and complained that his mother was interfering with J. M., her grandson. The boy was skipping school with the father's brother, who was also of school age. J.M. asked Respondent not to let the grandmother return the boy to school or supply a legal excuse for his absence. When J. M.'s grandmother brought the boy back to school one day, Respondent did as the father had directed him. Respondent told the grandmother, "Ma'am, you can't bring your child back. I got a call from your son, and he is the legal guardian. Call your son and get it straight with him. I shouldn't even be talking to you about J. M." E. Arrest of W. S.: Paragraph 49 On November 1, 1995, W. S. tried to leave the cafeteria without permission. She has a history of violent outbursts. Riley Ware, a teacher, tried to stop her. W. S. asked him who he thought he was with that crooked gold tooth. Mr. Ware responded by telling her to sit her "big-lipped" self down. (Respondent later reprimanded Mr. Ware for this comment.) W. S. swore at Mr. Ware, calling him, among other things, a "black bitch." Teacher Christine Peete then intervened. She said, "Young lady, you've been very inappropriate." Gently placing her arm on W. S.'s shoulder, Ms. Peete added, "Come with me until you cool off." W. S. angrily responded by slinging Ms. Peete's arm off of her shoulder. She shouted, "Get your hands off me, bitch. I'll dip on [beat up] all of you. Ms. Peete had to return to her class, so she asked Ms. Krucher to escort W. S. to the office. Ms. Peete found Respondent in the middle-school area and told him that he needed to deal with W. S. Respondent returned to his office to find W. S. leaving. He greeted her by saying, "Well, daughter, Ms. Peete tells me that you called her a bitch." S. said she called Mr. Ware a bitch, but she did not call "that bitch" (Ms. Peete) a bitch. Respondent told her she was suspended for five days, and W. S. replied, "I don't give a fuck about five days." Respondent raised the suspension to seven days, and W. S. lunged toward Respondent and Ms. Peete, who was standing next to him. W. S.'s initial lunge threw Respondent, herself, and a computer to the floor. Respondent wrestled his way to the top, and W. S. demanded that he get his "big belly" off her. She scratched him or snapped his suspenders, causing his chin to bleed. She grabbed his tie and choked him. She tried to bite and kick him. Respondent ordered a nearby staffperson to call the police. Officer Garrett Kusienski of the Fort Myers Police Department responded to the call and arrived at the school in a three or four minutes. When he arrived at the ALC office, Respondent and W. S. had just gotten off the floor, and Respondent and several male staffmembers were escorting her into the office. Respondent approached Officer Kusienski and asked him to arrest W. S. Officer Kusienski asked why, and Respondent directed him to handcuff and remove her. Officer Kusienski refused to do so until Respondent explained why. Officer Kusienski's police report, which is credited, states Respondent answered that, if Officer Kusienski were not going to do his job, "I needed to get off his campus." Officer Kusienski asked again what happened, and Respondent "stated that he would give all the details to Chief Hart when he was contacted, to get the hell off his campus if I wasn't going to arrest anyone." Officer Kusienski left the building, but returned a few minutes later, spoke with W. S. and possibly others, and took her into custody. The police report notes that another officer, who had arrived on the scene as backup, took statements from witnesses. At the hearing, Officer Kusienski testified that Respondent said, "If I'm not going to do my fucking job to get the fuck off this campus." Officer Kusienski did not explain at the hearing why he deleted one "fuck" entirely and replaced another with "hell" in his police report. It is unlikely that Officer Kusienski was graciously sparing Respondent any embarrassment in the report because he also noted that Respondent became "very disorderly toward me." The only other evidence that Respondent said "fuck" is Ms. Krucher, who testified that Respondent said it to Officer Kusienski once, not twice as Officer Kusienski testified. However, her testimony is contradicted by numerous other witnesses, who testified that she was not there and they did not hear Respondent say "fuck" to the officer or otherwise during the incident. Ms. Krucher's testimony has not generally been credited on grounds, among others, that she harbored considerable ill-will toward Respondent. The testimony of Officer Kusienski is countered by the testimony of Officer Jackson, also of the Fort Myers Police Department. Officer Jackson testified that Respondent did not use foul language toward Officer Kusienski. There is no preponderance of the evidence as to what Respondent said to Officer Kusienski. Respondent Late to Work: Paragraph 54 On November 16, 1995, the parent of a student at Cape Coral High School called Respondent and asked him to attend a meeting for the purpose of determining whether to transfer the parent's child to the ALC. The parent did not want the child transferred to the ALC and asked for Respondent's help at the meeting. Seeing a chance to help control the ALC enrollment, Respondent agreed to attend the meeting, which was scheduled for 7:00 a.m., and try to help the student remain at his geographical school. Respondent's intent was to speak first and then drive back to the ALC, which was about 20-30 minutes away at that time of day. Respondent reasonably expected that he would arrive at the ALC between 7:30 a.m. and 7:45 a.m. Respondent typically arrived at school at 7:30 a.m. and took cafeteria duty until school starts at 8:00 a.m. The evening of November 16, Respondent called Mr. Ware and told him to cover the cafeteria the following morning in case Respondent was late. Ms. Smith was on personal leave on November 17. However, Respondent and LAMP principal McCollum had an agreement that, if one of them was absent from the campus, the other would serve as acting administrator to be called upon by teachers or staff as needed. Their agreement--which was a necessity for Ms. McCollum because she lacked an assistant principal--did not require that either give the other advance notice of his absence. Unfortunately, Respondent did not get to speak first at the meeting, which ran longer than Respondent had expected because the student had been charged with drug possession, not merely disrespect to a teacher, as Respondent had been told. From the meeting at Cape Coral High School, Respondent called someone--probably Mr. Ware--and told him that he would be later than he had anticipated the prior night. Respondent returned to the ALC between 8:30 a.m. and 8:45 a.m. When Respondent did not appear at school by 8:00 a.m., Ms. Krucher told Mr. Wortham that Respondent had left the ALC without an administrator. Mr. Wortham called Dr. Santini and told her. The same afternoon, Dr. Santini or her designee called Respondent and asked him where he had been that morning. Dr. Santini and Mr. Wiseman met with Respondent on November 20 to discuss Respondent's tardiness on November 17. This meeting is described in the following section. By memorandum to Respondent dated November 28, 1995, with copies to Petitioner and Mr. Wiseman, but not to Respondent's personnel file, Dr. Santini concluded as to the incident: As per our conversation of November 20, 1995, I am reminding you that I consider the fact that you were not in school on November 17, 1995 until 8:45 A.M. with no assistant present, a serious offense. The students at ALC need constant monitoring and supervision and to have the school unstaffed by any administrator, even for forty minutes, could lead to a catastrophe. I do not expect this to happen again. By letter dated December 8, 1995, to Dr. Santini, with copies to Petitioner and Mr. Wiseman, Respondent acknowledged receipt of her November 28 "letter relating to your concerns of me not being present in my building without an assistant." The letter explains that, once at the Cape Coral High School meeting, Respondent learned that the student had not only threatened a teacher, but had also used drugs. The letter states that Respondent had previously covered for Mr. Wortham and Ms. McCollum. Respondent's letter concludes: This is not to say that I don't concur with you. I most certainly agree with you whole heartedly that not only in ALC but all schools, we must have an administrator on duty. An administrator was on duty, as I had informed you verbally. Mrs. McCollum and I had total agreement relating to coverage without any problems. Your letter gives the perception that I was purposely avoiding my responsibility and was irresponsible in fulfilling my duty as a principal. I would like the record to show that I was fulfilling my duty as an educator, as a principal and as a community leader. Through my efforts, I was able to at least save the life of a young man that we could have possibly lost to drugs. This is one I don't have to look over and he not look back. Thank you for your concern and I accept your letter of concern and would vow that I will continue to work with you and to make the ALC the best learning environment that I can. Dr. Santini's November 28 letter is not a letter of reprimand, nor did she intend for a copy of the letter to be included in Respondent's personnel file. Her intent is inferred from the absence of the letter from Respondent's personnel file in mid-February, the omission from the letter of any express notation of copies to Respondent's personnel file (as contrasted to the January 2 letter described below), and the failure of Dr. Santini to respond to Respondent's subsequent characterization of the letter in his letter of December 8. Petitioner failed to prove that Respondent violated any policy of the District in effect on November 17. The record reveals no prohibition against having another administrator, such as Ms. McCollum, cover for Respondent for a short time, even in the absence of advance notice. November 20, 1995, Meeting: Paragraph 42 Three days after Respondent was late to work due to the meeting at Cape Coral High School, Dr. Santini and Mr. Wiseman visited Respondent to discuss the incident, as well as charges of heavy-handed dealing with students, yelling at teachers, and leaving campus early. Dr. Santini and Mr. Wiseman dismissed as unfounded all charges except for Respondent's tardiness on November 17. Around this time, Ms. Krucher, who had been talking to Mr. Wortham daily, began contacting Dr. Santini and possibly Petitioner, whom Dr. Santini testified that she had suggested Ms. Krucher call. The purpose of these calls was to supply, on a confidential basis, unfavorable information about Respondent. If the information resembled her testimony, nearly all of it was unreliable. One incident illustrates the lengths to which unidentified persons would go to fabricate evidence unfavorable to Respondent. By two-page, handwritten letter dated February 17, 1996, from Ms. Pepin to Ms. Minton, Ms. Pepin objected to a statement attributed to Ms. Minton in the newspaper to the effect that she spoke for all of the ALC staff when she criticized Respondent. In her letter, which is entirely supportive of Respondent, Ms. Pepin admitted that, last June, she had not much liked Respondent entering her classroom and giving his "new sheriff in town" speech. But the letter continues to state that she now understands the effectiveness of Respondent's style. Someone--not in the office of Petitioner's counsel-- fraudulently altered Ms. Pepin's letter and sent it to Petitioner's counsel. By careful folding, whiting out, and photocopying, this person reduced the two-page letter to five and one-half lines and moved Ms. Pepin's signature beneath these lines, so as to make the letter look like a short note objecting to the "new sheriff" speech. This person then passed the counterfeit note as a gross distortion of Ms. Pepin's views-- literally out of context. It is highly unlikely that such fraud would be perpetrated by someone in the District office. The record does not reveal who had access to the letter after it was received by Ms. Minton. But the incident reveals indisputably the unreliability of at least some of the information that Dr. Santini and Petitioner received about Respondent. In any event, toward the end of the November 20 meeting, Respondent demanded that Dr. Santini tell him who had made the allegations against him. The request was not unreasonable given the inaccuracy of most of the charges. Dr. Santini refused to divulge the name or names of these persons. She explained reasonably that, if she were going to do something about the charges, she would tell him, but she was not going to do anything about them. Petitioner failed to prove that Respondent was rude in the November 20 meeting. Dr. Santini's November 28 memorandum makes no mention of any rudeness. Petitioner's counsel did not inquire of Mr. Wiseman as to Respondent's behavior at the November 20 meeting. Dr. Santini's testimony was not detailed in its description of Respondent's behavior at the November 20 meeting. On direct, she testified only that Respondent exhibited an "insubordinate attitude," and "we couldn't talk to him for his continuing to talk to us." Dr. Santini did not use the word "shout" or "yell" to describe Respondent's manner of speaking. On cross, Dr. Santini added only that Respondent was "insubordinate, rude, and unreceptive." Gate Incident: Paragraph 43 Immediately after school on December 12, 1995, a boy hit a girl near the front gate of the New Directions campus. Respondent, Mr. Ware, Mr. Gilmore, Mr. Smith, Ms. Krucher, Mr. Nassiff, Mr. Wortham, and other adults immediately went to the scene. At first, the two students refused to tell Respondent what had happened. A group of boys outside of the gate had seen the altercation. Respondent motioned them to enter the school grounds, but, before he could talk to them, Mr. Nassiff told Respondent that he had seen the altercation. Not needing to speak to the group of boys, Respondent motioned them to go back. However, two or three of them were already inside the gate. A security guard was in the process of locking the two front gates, so Respondent told Mr. Ware and Mr. Smith to escort the two or three boys off campus through the back gate, which was closer to their homes. Unknown to Respondent, the remaining boys from the group had just told Mr. Wortham that they were going to beat up the next student whom they saw. Respondent, the two students involved in the altercation, and other staff, except for Mr. Ware and Mr. Smith, walked toward the ALC where Respondent could deal with the two students. Respondent saw Mr. Wortham signalling to Ms. Krucher, and Respondent asked her what he wanted. She replied that he wanted her to close the back gate. Respondent told her not to close the back gate because he had just sent Mr. Ware and Mr. Smith with some students to let them out the back gate. He reminded her that he, not Mr. Wortham, was her boss. At the time, Respondent was unaware that some Academy students were preparing Christmas decorations inside the back gate, which typically remained open before and after school for deliveries. Respondent was also unaware that Mr. Ware and Mr. Smith had not gone to the back gate because they had been able to get the students through one of the front gates before it had been locked. After Respondent returned to the ALC building, the group of students walked around the side the school to the back gate, where one or more of them beat up an Academy student so badly that he required hospitalization. As soon as Respondent learned of the incident in the back, Respondent called Mr. Wortham, who said he was angry and had some concerns. Respondent invited him to discuss them, but he declined, saying he would instead call Dr. Santini. Respondent suggested that he take his concerns directly to Petitioner in that event. Respondent then found out from Mr. Nassiff and Ms. Krucher what had happened. Respondent asked Mr. Nassiff to explain to Mr. Wortham that Respondent had not known that there were students in the back inside the gate and that Respondent had sent two teachers back there to escort students out of the campus. Shortly after that, Respondent went to the Academy building to speak to Mr. Wortham. Respondent explained what had happened from his perspective, and Mr. Wortham acknowledged that he had later found that out, but, by that time, he had already called Dr. Santini. Petitioner did not call Mr. Wortham to testify about the gate incident, even though Petitioner claims it was his order that Respondent countermanded. Under the circumstances reasonably known to him at the time, Respondent behaved responsibly throughout the gate incident. He did not know he lacked crucial information when he told Ms. Krucher not to go to the back gate. But he reasonably assumed that he had more information than did Mr. Wortham. He knew that he had already sent two men to the back. Even had he known that the boys wanted to beat someone up and that an Academy student was in the back, Respondent would reasonably have relied on Mr. Ware and Mr. Smith to prevent the attack. When Respondent told Ms. Krucher that he, not Mr. Wortham, was her boss, he was merely emphasizing his direction that she not close the back gate. He was not stating the cause for the direction. The cause was that he had sent two men to the back gate. Respondent's comment about who was Ms. Krucher's boss was thus not an act of insubordination or lack of cooperation. I. Respondent's Police Interview About Gate Incident: Paragraph 48 Mr. Nassiff witnessed the police interview of Respondent concerning the gate incident. In the interview, Respondent did not state that he countermanded Mr. Wortham's order to Ms. Krucher to go lock the back gate. Respondent did not withhold material information from the police, who were investigating the beating of the Academy student, not Respondent. The direction that Respondent gave Ms. Krucher was entirely appropriate under the circumstances as reasonably understood by Respondent at the time that he told her not to close the back gate. There was no reason for Respondent to mention this minor point to the police. J. January 9, 1996, Meeting: Paragraph 44 Three days after the gate incident, Dr. Santini asked Respondent to come to her office that day. He said that he was helping students deliver Christmas food baskets to the needy and could not, so they set up a 7:00 a.m. appointment for the following Monday, December 18. When Respondent arrived at the meeting, expecting it to be between him and Dr. Santini, he found Mr. Wiseman and Mr. Wortham, who had prepared a written statement. Dr. Santini said she wanted to hear both sides of the gate incident. Respondent objected that the meeting was unfair because he had not had the chance to prepare a statement. Dr. Santini replied that she had not asked Mr. Wortham to prepare a statement, and Respondent said that at least he had known what the meeting was about. Mr. Wortham and Respondent each stated what happened. Mr. Wiseman asked Mr. Wortham if he had disclosed to Respondent the threat by the group of boys in the front, and Mr. Wortham admitted that he had not. Dr. Santini said that she would speak to Ms. Krucher to obtain a statement, but refused Respondent's request that she also speak to Mr. Ware and Mr. Smith. Respondent was worried that he was being set up and informed Dr. Santini that he would be requesting a meeting with Petitioner to complain about the discriminatory treatment that he was receiving. Respondent contacted Petitioner's office to set up a meeting. Petitioner contacted Respondent during Christmas break, and, at her request, the two of them met for two hours on December 28 at a local restaurant. They discussed the ALC enrollment policy, Respondent's testimony at the expulsion hearing, Respondent's claims of harassment by Dr. Santini, Dr. Santini's practice of invariably bringing Mr. Wiseman with her on visits with Respondent, Respondent's good relationship with Mr. Wiseman whenever he was separated from Dr. Santini, and the gate incident. Petitioner told Respondent that he needed to return to school after Christmas break and work more closely with his supervisors, as well as Ms. McCollum and Mr. Wortham. Petitioner promised to set up a meeting among her, Respondent, and Dr. Santini. This meeting was later scheduled for January 9, 1996, at 3:00 p.m. By letter to Respondent dated January 2, 1996, with copies to Petitioner, Mr. Wiseman, and Respondent's personnel file, Dr. Santini stated that she had completed her investigation into the gate incident and had spoken with Respondent, Mr. Wortham, and Ms. Krucher following the meeting of December Dr. Santini concluded: the key issue is the fact that after Mr. Wortham asked your security guard, Lisa Krucher, to run to the back of the school and lock the gate because he felt the boys who were threatening to harm someone would come in through the back gate, you instructed Lisa Krucher not to lock the gate because she worked for you and not Mr. Wortham. I consider this action on your part a poor judgment call and a lack of cooperation with other adminis- trators on campus. * * * I am directing you from this point on, to work together with Mr. Wortham for the benefit of the children in the school. The attitude that employees work for one principal and not another is an attitude that can cause disruption and, as we have seen with regard to this incident, harm to a student. Dr. Santini's letter misstates an important fact. Respondent did not redirect Ms. Krucher "because she worked for you and not Mr. Wortham." He redirected her because he had sent two able staffpersons to the back gate, and there was no need to send a third person. Dr. Santini evidently discredited an important element of Respondent's version of the gate incident. She could not have determined that Respondent countermanded Ms. Wortham's order for the sole reason of showing Ms. Krucher who was her boss, unless Dr. Santini had eliminated the possibility that Respondent countermanded the order because he had already sent two men back there. Whether Respondent sent the two men to the back or not is a difficult fact question. Although Dr. Santini might reasonably have concluded that Respondent, Mr. Ware, and Mr. Smith were lying, her factual determination is deficient as long as she refused to talk to Mr. Ware and Mr. Smith. Respondent was reasonably concerned with Dr. Santini's fairness when she talked to Mr. Wortham's corroborating witness, but refused even to talk to Respondent's corroborating witnesses. On January 5, 1996, which was the date that Dr. Santini issued her letter clarifying the October 25 memorandum on the ALC enrollment policy, Dr. Santini contacted Respondent's office to set up a meeting for January 8, which was the day prior to their meeting with Petitioner. She had by now seen the transcript of the expulsion hearing and wanted to discuss this matter with Respondent. Taking the advice of Dr. Cecil Carter, an administrator in the District, Respondent called Dr. Santini's office back and asked the purpose of the meeting. Dr. Santini relayed the information through someone in her office that they were going to discuss Respondent's "deposition." The only deposition with which Respondent was familiar was in connection with his testimony in the Rockford, Illinois desegregation case. Dr. Santini inadvertently used "deposition" to mean Respondent's testimony at the A. B. expulsion hearing. However, Respondent assumed that she was going to discuss some aspect of desegregation with him. Around 2:00 p.m. on January 8, Respondent told his secretary to call Dr. Santini's office and cancel the meeting. He told his secretary that he was ill and going home directly after school, but told her to tell Dr. Santini that she could call Respondent at home and they could at least talk on the phone. Dr. Santini did not call Respondent at home. Instead, she and Mr. Wiseman appeared, without prior notice, in Respondent's office between 8:00 and 8:30 a.m. on January 9, 1996, which was the day of the meeting with Petitioner. Respondent said he was busy with school duties, and they waited until he could see them. In a few minutes, Respondent, Dr. Santini, and Mr. Wiseman met. Dr. Santini started the meeting by saying, "Charles, I'm going to talk to you about this deposition." She showed him the transcript of the A. B. expulsion hearing. She stated, "The way this looks, I'm going to have to write you up." Understandably worried that Dr. Santini had already made her decision to discipline him, Respondent asked for permission for his secretary to attend the meeting as a witness. Dr. Santini said no. Respondent then asked to tape the meeting. Dr. Santini agreed. As Respondent left to find a tape recorder, Mr. Wiseman said, "Mary, you're going to have to give him a chance to tell his side of the story." Unable to find a tape recorder, Respondent returned to the meeting. Dr. Santini pointed to a page of the transcript and, without discussing the testimony directly, declared that Respondent had testified that numbers were more important than students. Respondent tried to interrupt, but Dr. Santini would not allow him. Respondent stated, "You can't accuse me of things and expect me not to respond." Dr. Santini replied, "You are going to listen to me." Dr. Santini accused Respondent of talking to A. B.'s father. In fact, Respondent had told him to work with Mr. Hennebery's office. Suddenly, Respondent told her that the meeting was over until we meet Petitioner. Dr. Santini slammed a book and told Respondent that he had "disrespected me and Mr. Wiseman." Respondent answered, "My dear friend, how have I disrespected you?" Dr. Santini stated, "That's it." She turned and walked out the door. Mr. Wiseman was still seated when she left. He then jumped up, shook Respondent's hand, and said, "See you later, baby boy." Alone among the key participants in this case, Mr. Wiseman appears to have maintained his sense of humor. During this brief meeting, for example, Mr. Wiseman was the only person not to have raised his voice. Later on the day of January 9, the meeting with Petitioner took place with Respondent, Dr. Santini, Mr. Wiseman, Dr. Carter, Dr. Counsel, and an administrative assistant in attendance. Respondent began the meeting by reading a letter from him to Petitioner dated January 8, 1996. The letter reviews the condition of the ALC when he was appointed principal, the changes that he has made, and the problems posed by the ALC enrollment policy stated in the October 25 memorandum. The participants discussed the ALC enrollment policy. Respondent objected that it appeared that they had met with other principals and not him. Mr. Wiseman admitted that they had met and had excluded Respondent because he had threatened another principal. There is no evidence of such a threat. After the discussion about ALC enrollments ended, Petitioner said that she was out of time and everyone would have to return to finish their discussion. Petitioner told Respondent that she had sent Dr. Santini and Mr. Wiseman to see him, and she did not want him calling off meetings with her staffmembers, such as he had done that morning. Respondent understood that he should not do that. Respondent complained that he had thought that he was doing an outstanding job and could not understand what the problem was with his job performance. Dr. Santini disagreed with him about the job he was doing. Respondent stated that no one had ever sufficiently spelled out a problem so that he could address it. He asked who was complaining about what. He asked Dr. Santini directly if she had any complaints. Dr. Santini said she had one complaint, but would not disclose it to Respondent, even after being urged to do so by all of the other participants, except the administrative assistant. Dr. Santini said that the attorneys had told her that she did not have to disclose it. She then said to Petitioner, "Bobbie, the problem is he will listen to you, not me." Respondent and Dr. Santini began to argue about the meeting earlier in the day. In anger, Respondent said he would not follow Dr. Santini's directions, but go directly to Petitioner. He also admitted that he was afraid of Dr. Santini. Petitioner closed the meeting by promising to check with the attorneys and see if she could supply Respondent with a copy of the complaint to which Dr. Santini had referred. Two days later, on January 11, Petitioner sent a letter to Respondent suspending him with pay due to "your conduct in a meeting with Mr. Herb Wiseman . . . and Dr. Mary Santini on January 9, 1996." The letter adds: "you should know that other allegations have been made against you that are currently being investigated by the District." V. Conclusion Petitioner failed to prove by a preponderance of the evidence that Respondent is guilty of misconduct in office, incompetency, gross insubordination, or immorality. Petitioner never trained Respondent to serve as a school principal. Respondent's previous administrative roles provided valuable experience, but they had also permitted Respondent to become accustomed to serving in a close relationship with a Superintendent who was also a mentor, working outside the normal hierarchical channels of the District office, and alienating numbers of parents, teachers, and administrators in making tough rezoning and equity decisions. But Respondent's qualifications were obvious. As Petitioner wrote in one evaluation, Respondent was a "role model" for other administrators in, among other things, teamwork. Despite the gaps in his experience, Respondent employed vast stores of energy, enthusiasm, and commitment to make the ALC work for its students. He intelligently assessed the situation at the ALC and devised strategies for exploiting the available resources. Fully aware of his own limitations, for instance, he hired Ms. Smith for her knowledge of curriculum. In a short time, he had produced dramatic results at the ALC. Respondent complied with Dr. Santini's directives, although before adoption he argued with those of them with which he disagreed. The October 25 memorandum, as well as the October 20 meeting, set an enrollment cap. Respondent acceded to Dr. Santini's decision. He closed the October 20 meeting with a plea that geographical schools be prepared to finish the job that the ALC would not have time to finish. He transferred 75-80 students out by early November. He asked Mr. Wiseman around Christmas break if he should transfer another 112 students back to their geographical schools. And his average enrollment exceeded the enrollment of his successors by 13 students--while his average actual attendance was five students less than the average actual attendance of his successors. By mid-December, Dr. Santini, misinformed by unreliable information from Ms. Krucher and possibly other informants at the ALC, was concerned about whether Respondent would work out as the ALC Principal. This concern may have influenced her gate investigation and reaction to Respondent's testimony at the expulsion hearing. The situation rapidly deteriorated when Dr. Santini visited Respondent, unannounced, on the morning of the day that they had a meeting with Petitioner and began the meeting by saying that she would probably have to write up Respondent for his testimony. A supervisor should always be able to conduct a meeting with a subordinate. Respondent should not have abruptly terminated the meeting with Dr. Santini. Supervisors terminate meetings, not subordinates. However, this was an isolated action by Respondent, who had never before terminated a meeting with a supervisor. Respondent had understandably felt that Dr. Santini had treated him unfairly in the gate incident, heard her announce at the start of this meeting what looked like a decision, and decided to deal with all of this at the meeting with Petitioner later that day. Under the circumstances, Respondent's imprudent decision to end the meeting did not rise to gross insubordination. In the final analysis, as Petitioner testified, it is good practice to document problems with employees before terminating them. And, as Petitioner testified, her staff did not do so here. Clearly, Respondent and Dr. Santini have a serious communications problem, for which each bears some responsibility, even though, by the nature of things, a communications problem is typically a bigger problem for the subordinate employee than it is for his boss. But as Dr. Council and Dr. Gunter testified, there was no reason for this case to proceed this far. And the case would not have come this far if District staff had tried to help Respondent or even treated this case as a performance case--where, under the law, District staff would have had to identify Respondent's deficiencies and help him eliminate them.
Recommendation It is RECOMMENDED that the School Board of Lee County enter a final order dismissing the Petition, reinstating Respondent, and awarding him back pay as provided by law. ENTERED on June 28, 1996, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings on June 28, 1996. APPENDIX Rulings on Petitioner's Proposed Findings 1: adopted or adopted in substance except as to date of initial employment. 2-3: adopted or adopted in substance. 4: rejected as unsupported by the appropriate weight of the evidence, to the extent of the implication that these behaviors were more than isolated or represented significant problems. 5: rejected as unsupported by the appropriate weight of the evidence. 6-7: adopted or adopted in substance. 8-9: rejected as unsupported by the appropriate weight of the evidence. 10 (first two sentences): adopted or adopted in substance, as to the back of the neck. 10 (remainder)-12: rejected as unsupported by the appropriate weight of the evidence. 13 (through "end"): adopted or adopted in substance. (remainder): rejected as unsupported by the appropriate weight of the evidence. (first two sentences): adopted or adopted in substance. (remainder): rejected as unsupported by the appropriate weight of the evidence. (through "classroom"): adopted or adopted in substance, except as to throwing C. L. into the chair. (remainder): rejected as unsupported by the appropriate weight of the evidence. (through "credited"): adopted or adopted in substance. 16 (remainder): rejected as unsupported by the appropriate weight of the evidence. 17: rejected as unsupported by the appropriate weight of the evidence. 18 (first sentence): rejected as subordinate. 18 (remainder): rejected as unsupported by the appropriate weight of the evidence. 19: rejected as unsupported by the appropriate weight of the evidence. 20: rejected as unsupported by the appropriate weight of the evidence, except that O. B. complied with Respondent, who did not apply force to move him. 21: rejected as unsupported by the appropriate weight of the evidence. The testimony of Ms. Culligan is not credible. 22 (first sentence): adopted or adopted in substance. 22 (remainder): rejected as unsupported by the appropriate weight of the evidence. 23: rejected as subordinate. 24: rejected as unsupported by the appropriate weight of the evidence. 25: adopted or adopted in substance, except that Ms. Krucher did not witness the entire incident. 26: adopted or adopted in substance, except that Ms. Krucher did not step between J. B. and T. R., nor did she witness the rest of the incident. She prevaricated the portion of the incident that she missed while returning J. B. to her classroom, J. B. testified that Ms. Krucher returned her to her classroom. J. B. also testified that Ms. Krucher even tried to convince her than T. R. had not lunged at J. B. Ms. Krucher's credibility as a witness is very poor. 27: rejected as unsupported by the appropriate weight of the evidence, except that T. R.'s testimony was stricken after several vacillations demonstrated that, as to this incident, he could not distinguish between the truth and fiction. 28: rejected as unsupported by the appropriate weight of the evidence. 29 (first two sentences): adopted or adopted in substance. (remainder): rejected as unsupported by the appropriate weight of the evidence. (first two sentences): adopted or adopted in substance. 30 (remainder): rejected as unsupported by the appropriate weight of the evidence. 31: Respondent's testimony that he feared M. P. was on drugs is not credited, at least to the extent of attempting to create a well-founded fear in Respondent's mind that the mental state of M. P. was so altered as to render him dangerous. However, Respondent intervened with M. P. to stop him from leaving and preclude the possibility that this student, who obviously is afflicted with a serious behavior disorder, might strike Ms. Smith. The remainder of this proposed finding is rejected as unsupported by the appropriate weight of the evidence. 32 (first two sentences): adopted or adopted in substance. (remainder): rejected as unsupported by the appropriate weight of the evidence. (except last sentence): adopted or adopted in substance. There is no need to resort to Ms. Keel's testimony about the "rat's ass" remark. 33 (last sentence): rejected as unsupported by the appropriate weight of the evidence. 34: adopted or adopted in substance, except as to crediting Ms. Krucher's testimony and as to any harm to the student's mental health. 35 (except last sentence): adopted or adopted in substance, except that the displaying of the badge never frightened or intimidated anyone and no student believed that Respondent had extraordinary arrest powers by virtue of the badge. When Respondent spoke to the class, they presumably were off-task, but he did not destroy any instructional momentum. 35 (last sentence): rejected as unsupported by the appropriate weight of the evidence. 36: adopted or adopted in substance, except that Respondent did not badger the student or mistreat him in any way. 37: rejected as unsupported by the appropriate weight of the evidence. 38: adopted or adopted in substance, although Respondent appropriately dealt with the student, who should have raised his head to meet the new principal. 39: rejected as unsupported by the appropriate weight of the evidence, except that Respondent threatened the student with suspension if he did not make eye contact and listen to him. 40 (first two sentences): adopted or adopted in substance. 40 (third sentence): rejected as unsupported by the appropriate weight of the evidence. 40 (fourth sentence): rejected as irrelevant and unsupported by the appropriate weight of the evidence. 41: rejected as recitation of evidence and unsupported by the appropriate weight of the evidence. 42: rejected as unsupported by the appropriate weight of the evidence, except that on rare occasions Respondent opened doors to Academy classrooms. 43-45: rejected as unsupported by the appropriate weight of the evidence. 46: rejected as unsupported by the appropriate weight of the evidence, except to the extent of findings in the recommended order. 47-48 (except last sentence): adopted or adopted in substance, except Respondent did not say, "her record." (last sentence): rejected as unsupported by the appropriate weight of the evidence. (first sentence): adopted or adopted in substance. 49 (remainder): rejected as unsupported by the appropriate weight of the evidence. 50-51 (first sentence): adopted or adopted in substance. 51 (remainder)-52: rejected as unsupported by the appropriate weight of the evidence. 53: rejected as unsupported by the appropriate weight of the evidence. 54 (first sentence): adopted or adopted in substance. 54 (remainder): rejected as unsupported by the appropriate weight of the evidence. Respondent had not made a prior arrangement with Ms. McCollum, but Petitioner failed to prove that he was required to. 55: rejected as unsupported by the appropriate weight of the evidence. 56 (first two sentences): adopted or adopted in substance. 56 (remainder): rejected as unsupported by the appropriate weight of the evidence. 57: rejected as unsupported by the appropriate weight of the evidence. 58: rejected as unsupported by the appropriate weight of the evidence, except that Respondent terminated the meeting. The behavior was inappropriate, but did not constitute either insubordination or, more to the point, gross insubordination. 59 (first two sentences): adopted or adopted in substance. 59 (remainder): rejected as unsupported by the appropriate weight of the evidence. 60: adopted or adopted in substance. 61: rejected as unsupported by the appropriate weight of the evidence, as to no reason to arrest W. S. at the time. However, the altercation had ceased, and Respondent should have answered the reasonably inquiry of the officer. But his behavior did not constitute misconduct in office, gross insubordination, incompetency, or immorality. 62: rejected as unsupported by the appropriate weight of the evidence. Petitioner never accounted adequately for Officer Kusienski's omission of the word "fuck" from his police report or, less importantly, the discrepancy between Ms. Krucher and Officer Kusienski as to the number of times that Respondent uttered the expletive. Another problem for Petitioner was the contrary testimony of another officer of the Fort Myers Police Department. 63: rejected as unsupported by the appropriate weight of the evidence. 64 (first two sentences): adopted or adopted in substance, at least as to the effect that the grandmother could not serve as the legal guardian of J. M. because she was not. 64 (remainder): rejected as unsupported by the appropriate weight of the evidence and hearsay. 65-66: rejected as unsupported by the appropriate weight of the evidence. 67 (first sentence): adopted or adopted in substance. 67 (remainder): rejected as unsupported by the appropriate weight of the evidence, except that Respondent voluntarily admitted up to 18 students. 68: rejected as unsupported by the appropriate weight of the evidence. 69 (first sentence): adopted or adopted in substance. 69 (second sentence): rejected as unsupported by the appropriate weight of the evidence. 69 (remainder): rejected as unsupported by the appropriate weight of the evidence, as to Respondent's role in the failure to obtain individual educational plans constituting misconduct in office, incompetency, or gross insubordination. 70-71: rejected as unsupported by the appropriate weight of the evidence. Rulings on Respondent's Proposed Findings 1-13: adopted or adopted in substance, although there is some uncertainty as to the dates of Respondent's early employment with the District. The findings in the recommended order are guided by the dates and job descriptions contained in the evaluations. 13A: rejected as irrelevant. 14-15: adopted or adopted in substance, except that M. P. was not fearful. 16-29: adopted or adopted in substance. 30: rejected as unsupported by the appropriate weight of the evidence. The incident did occur. 30A-43: adopted or adopted in substance. 44: adopted or adopted in substance, but Respondent's brief conversation with Ms. Krucher more closely resembled the version in the recommended order, rather than the more elaborate version in the proposed finding. 45-46: adopted or adopted in substance. 47 (first sentence): rejected as unsupported by the appropriate weight of the evidence. Dr. Santini never reviewed several lines of the testimony. She focused only on one phrase. (remainder)-48 (through "Wiseman"): adopted or adopted in substance. (remainder): adopted or adopted in substance, although it is unclear the extent to which they discussed the January 5 memorandum itself, as opposed to the ALC overenrollment issue generally. 49-55: adopted or adopted in substance. 56-57: rejected as subordinate, except to the extent described in the recommended order. 58-62: adopted or adopted in substance, although the fact that Respondent's enrollments were no higher than the enrollments of his successors suggests that Respondent's enrollments did not exceed the cap or the cap as applied. 63: rejected as subordinate. 64-68: adopted or adopted in substance. COPIES FURNISHED: Superintendent Bobbi D'Allessandro The School District of Lee County 2055 Central Avenue Fort Myers, Florida 33901-3988 John M. Hament Kunkel, Miller and Hament 1800 Second Street, Suite 882 Sarasota, Florida 34236 Harry A. Blair Blair & Blair, P.A. 2138-40 Hoople Avenue Fort Myers, Florida 33901 The Honorable Frank T. Brogan Commissioner of Education The Capitol Tallahassee, Florida 32399-0400
Findings Of Fact At the administrative hearing which was scheduled for the time and place shown above, Mr. Carlos Viciedo, Sr., father of the minor student named as Respondent herein, announced that his son, Carlos Viciedo, Jr., had been moved to Los Angeles, California, by his Mother. The student, Carlos Viciedo, Jr., has been enrolled in the school system of Los Angeles, and removed from the Dade County School system. The principal at South Miami Junior High School where Carlos Viciedo, Jr., was enrolled prior to the transfer to Douglas MacArthur Senior High School -- South, verified that papers have been received from the Los Angeles, California, school system to demonstrate that the student has requested a transfer from the schools in Dade County to the schools in Los Angeles. Mr. Carlos Viciedo, Sr., plans to join his family in Los Angeles, and the enrollment of his son in the school system there is permanent.
Recommendation On the basis of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Dade County dismiss the proceeding it initiated to effect a transfer of the Respondent, Carlos Viciedo, Jr., from South Miami Junior High School to the Alternative Education Program at Douglas MacArthur Senior High School -- South. THIS RECOMMENDED ORDER entered on this 17th day of February, 1983. WILLIAM B. THOMAS, 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 February, 1983. COPIES FURNISHED: Michael J. Neimand, Esquire Suite 300 3000 Executive Plaza 3050 Biscayne Boulevard Miami, Florida 33137 Carlos Viciedo, Sr. 1122 Southwest 134th Place Miami, Florida 33183 Phyllis O. Douglas, Esquire Assistant Board Attorney Dade County Public School 1410 Northeast 2nd Avenue Miami, Florida 33132 Dade County School Board 1410 Northeast 2nd Avenue Miami, Florida 33132
The Issue The issue is whether Petitioner, the Nassau County School Board, has just cause to terminate the employment of Respondent, D. Lynn Owen, a teacher on a professional services contract.
Findings Of Fact The School Board employs Respondent D. Lynn Owen as a teacher. Dr. Owen holds a professional service contract with the School Board pursuant to section 1012.33, Florida Statutes.2/ During the 2011-2012 school year, Dr. Owen taught at West Nassau High School ("West Nassau") in Callahan. Fall 2011-2012 Debate 4 class During the 2011-2012 school year, West Nassau operated on a four-period block schedule rather than the six-period schedule followed by most Florida public schools. Under the block schedule, the school year consisted of two semesters, fall and spring. Students took four classes per day, each class lasting 90 minutes. Students received a full credit per semester for each of the four classes. In addition to her qualifications as an English teacher, Dr. Owen is a nationally ranked speech and debate coach. During the 2010-2011 school year, Dr. Owen started a debate team at West Nassau. She taught Debate 3 during the 2010-2011 school year with a class consisting largely of freshmen recruited from her honors English class. The debate team enjoyed some success in debate competitions and the students wanted to continue taking a debate class in the 2011-2012 school year. West Nassau Principal Ronald Booker was amenable to establishing a Debate 4 class, but was concerned that Dr. Owen's other duties would preclude her teaching the class given the limits of a four-period school day. After some discussion, Dr. Owen volunteered to teach Debate 4 class as a "fifth-period" class to be held after the close of the regular school day. The regular school day began at 9:05 a.m. and ended at 3:25 p.m. Thus, during the Fall Semester of the 2011-2012 school year, Dr. Owen taught Debate 4 as an elective honors class that convened daily from 3:30 until 4:15. In the block schedule system, this class was referred to as a "skinny" block. Unlike the regular block courses, a skinny block met every day for 45 minutes for the full 180 days of the school year. The skinny block class was graded in quarters rather than semesters, and a full credit was earned only if the student remained in the class for the entire school year. Because the Debate 4 class was taught outside of regular school hours, Dr. Owen was not paid to teach the course. West Nassau had several "zero-period" classes that met before the start of the regular school day. Mr. Booker testified that Debate 4 was the only fifth-period class he knew of at the start of the 2011-2012 school year. He testified that he only learned about another fifth-period class, Band 2, after the school year began. William Eason, the band director at West Nassau, testified that he taught Band 2 as a fifth period class during the Fall Semester of the 2011-2012 school year. Mr. Eason testified that Mr. Booker approved the class for credit during the summer before the start of the school year. Mr. Eason stated that he was paid for the class, receiving a stipend for after- school instruction. Mr. Eason's testimony regarding the provenance of the Band 2 class is credited. Both Mr. Eason and Mr. Booker appeared to be testifying honestly, but Mr. Booker's recollection on this point was imprecise. Mr. Booker clearly recalled his approval of Debate 4 but was fuzzy as to when Band 2 came about, though he recalled discussions about the need for the class. Mr. Eason taught the class and naturally had a more specific recollection of the approval process than did the principal. Band 2 met daily at 3:45 p.m. until roughly 5:00 p.m. This was the time during which the marching band rehearsed for its appearances at West Nassau football games and for band competitions. Mr. Eason testified that he had no attendance problems with his Band 2 students. He took regular attendance at the start of the class. Also, if a student were missing, the hole in the marching band formation would be obvious. Three students, A.H., L.C., and C.P., were enrolled in Dr. Owen's Debate 4 class and in Mr. Eason's Band 2 class. It fell to Dr. Owen to fashion a solution to this conflict because it was critical that these students attend band practice every day after school, particularly A.H., who was the band's drum major. No flexibility could come from the Band 2 side of the conflict. Mr. Booker asked Dr. Owen to "work with" these students to provide a way for them to make up missed class time in Debate 4. If they had to miss two days because of band, then Dr. Owen should meet with them for a longer class period on the remaining three days to make sure they met the seat time requirement.3/ Dr. Owen testified that she understood Mr. Booker's instruction to mean that she should be flexible regarding regular class attendance for her Debate 4 students, provided they put in the time required to receive credit for the course. Eight students were in the course at the start of the year, and three dropped out. Dr. Owen stated that the five who remained in Debate 4 met their seat time requirement for the 2011-2012 school year. C.P., now a tenth grader at West Nassau, was in the marching band during Fall Semester of the 2011-2012 school year. He was enrolled in Band 2 and stated that the marching band practiced every day at 4:00 p.m., except for Thursdays when band practice convened at 4:30. C.P. enrolled in Debate 4 during September 2011, on Dr. Owen's recommendation, creating a conflict with his attendance at Band 2. On a few occasions, C.P. split his time at Band 2 and Debate 4. On most days, he would attend Debate 4 from 3:30 until 4:00 p.m. and then go to band practice. If there was no band practice, he would stay in Debate 4 until 5:00 p.m. On Thursdays he was able to stay in Debate 4 for a full hour, but on Fridays during the football season he was not able to attend Debate 4 at all due to his band commitments. C.P. testified that Dr. Owen allowed him to make up the missed time by coming in early in the morning, before first- period began at 9:05 a.m. In this way, C.P. was able to put in at least 30 minutes daily on his Debate 4 assignments. C.P. estimated that 95 percent of his class time was spent performing research on debate topics with his debate partner, which facilitated working independently of the regular class period. C.P. testified that his grade in Debate 4 was based on class participation, including debate practice once a week, and that there were no term papers or written assignments in the conventional sense. Dr. Owen testified that sixty percent of the grade for Debate 4 was based on class work, twenty percent was based on writing, and twenty percent was based on her assessments of the students. She stated that C.P. was not doing things that he would normally do in an English class for "writing," but that she graded the students based on their research, their notes, and their debate outlines, all of which are components of "writing" under the Sunshine State Standards. Her assessments were based on weekly practice debates. C.P. stated that his classmates A.H. and L.C. eventually dropped out of Debate 4 because they were unable to keep up with the requirements of the class in addition to their Band 2 commitments. The School Board has alleged that although C.P., A.H., and L.C. attended fifth-period band practice virtually every day during the Fall Semester of the 2011-2012 school year, and although band practice directly conflicted with Dr. Owen's fifth period Debate 4, those students were marked "present" in the Debate 4 class when they were not present. In fact, the fifth-period classes overlapped but did not conflict at all points. Mr. Eason testified that the band class began at 3:45, but C.P. testified that in practice the class did not commence until 4:00 p.m. C.P. was able to attend debate for thirty minutes, from 3:30 until 4:00 p.m., and then attend the band class starting at 4:00 p.m. C.P.'s testimony was entirely credible on this point. The evidence establishes that it was possible for the three students enrolled in both classes to attend at least portions of both classes. Assuming that the "flexibility" urged by Mr. Booker included the ability for students to make up class time at other times of the day, it was possible for C.P., A.H., and L.C. to meet the seat time requirements for Debate 4 while also maintaining their attendance at the fifth-period Band 2 class. A.H. and L.C. dropped out of Debate 4 halfway through the school year, each receiving a half-credit for the class. C.P. remained in Debate 4 for the entire school year. C.P. testified that A.H. and L.C. dropped the debate class because they were unable to put in the time to meet the seat requirements for the class while maintaining their level of participation in band. Dr. Owen's handwritten attendance sheets for August 29 through October 13, 2011, indicate a total of 16 absences from Debate 4, including five absences for A.H., the band's drum major. However, the attendance records submitted by Dr. Owen for the school's official records show no absences at all from Debate 4 until October 19, 2011. Dr. Owen did not have an adequate explanation for this discrepancy. In response to a direct question as to whether she had marked the students absent on the official attendance sheet, Dr. Owen said, "I don't know. Probably not." Because Dr. Owen was teaching the Debate 4 class voluntarily, without pay, the school would not pay for a substitute teacher. Therefore, Dr. Owen did not have a substitute teacher to fill in for her when she missed Debate 4. Records produced at the hearing indicated that Dr. Owen was absent from the West Nassau campus on September 14 and 23, October 4, November 9, December 8 and 9, and December 14 through 16, 2011. However, Dr. Owen's handwritten attendance sheets show that on September 14, when Dr. Owen was at the hospital for her husband's surgery, four students spent the entire class period in Debate 4 and four others at least checked in with Dr. Owen. The attendance sheets show that on September 23, when Dr. Owen was attending a conference in Baltimore, three students spent the entire fifth-period in Debate 4, three other students checked in, and two were absent. Dr. Owen had no adequate explanation for these discrepancies. On October 4, Dr. Owen was out of school for AVID professional training. Dr. Owen was the AVID coordinator for West Nassau. AVID, or Advancement Via Individual Determination, is the curriculum component of GEAR UP (Gaining Early Awareness and Readiness for Undergraduate Programs), a grant program established by the U.S. Department of Education to increase the number of low income students who are prepared to enter and succeed in postsecondary education. West Nassau was part of a three-year GEAR UP grant. Dr. Owen's handwritten attendance sheets for October 4 indicate that six students were present for the entire class period and two others checked in with Dr. Owen. In this instance, Dr. Owen explained that the AVID training session in Jacksonville concluded at the end of the school day and that she immediately drove to Callahan to be there for the Debate 4 class. As to Dr. Owen's other listed absences, the record contains no handwritten attendance sheets with which to compare them. In her deposition, Dr. Owen testified that she kept handwritten attendance sheets for the entire school year, but that during its initial investigation the School Board asked only for her attendance sheets for the first quarter of the 2011-2012 school year. She was subsequently suspended and barred from the West Nassau campus and therefore unable to provide the rest of the attendance sheets in response to the School Board's discovery request. West Nassau also generated a daily "subsequent period absentee report." The first-period teacher would take the roll of the students in her class and send the results to the school office. The office would then generate a report of absent students that would be distributed the next day to teachers of subsequent classes. Those teachers would check their own attendance record against the report and mark whether the students were present or absent for their classes. The subsequent period absentee reports for November 9, and December 14 and 15, 2011, each indicate that A.H. was marked absent for her first period class but was marked "present" for Debate 4. On all three of these dates, Dr. Owen was not present at the school. West Nassau maintains a "teacher sign-in sheet for payroll" that is treated as the official record of when a teacher comes into and leaves the school every day. Several of these sheets for the 2011-2012 school year were submitted into evidence. The sheets indicate that on most days, Dr. Owen worked well in excess of eight hours, often well into the evening hours. However, the sheets also indicate several days during the Fall semester on which Dr. Owen signed out of the school at 3:30 p.m. or before, indicating that she could not have been present to teach Debate 4: August 16, September 1, October 26 and 27, and November 2, 2011. There were also a few dates on which Dr. Owen left school after 3:30 but before the 4:15 dismissal time for Debate 4: September 20, October 25, and November 3, 2011. The handwritten attendance sheets for Debate 4 indicate that the class convened on August 16 and September 1, 2011, despite the fact that Dr. Owen had signed out of the school at 3:30 p.m. The evidence indicated that on at least two occasions Dr. Owen chaired meetings of the West Nassau AVID teachers at 3:45 p.m., in conflict with Debate 4. Dr. Owen testified that the AVID meetings occurred 15 minutes after the start of Debate 4, and that she was able to take roll and get the class started on independent work before the AVID meeting started. The AVID meetings were in the same connected suite of classrooms in which Dr. Owen conducted her classes, so that she was at all times within earshot of the Debate 4 class. She could not, however, state with certainty that the students were in the class and working during the class period. The School Board has also alleged that Dr. Owen did not establish or follow any discernible academic standards for the Debate 4 class. The School Board offered little evidence to support this allegation.4/ Dr. Owen provided a detailed course syllabus that included cognitive and behavioral objectives, targets for subject matter mastery, and the specific Sunshine State Standards met by the course. She also provided the students with a classroom management plan with clear rules for the functioning of the classroom and a set of student, parent and teacher expectations requiring the signatures of all parties. Regarding the lack of traditional writing assignments in the Debate 4 class, Dr. Owen testified as follows: If I had any less experience, maybe I would have to have a piece of paper for every single thing that they did. But I didn’t have to have that because I have been trained to assess everything a student has learned in ten minutes or less. And the minute they start talking, whether it's a national competition or in my classroom, in ten minutes or less I can tell you whether they've done any or all of the work that they have been given to do. It's part of knowing how to judge and coach debate. Dr. Owen's testimony on this point is credible. Debate 4 was a performing arts class, and as such did not fit the profile of a standard academic classroom course. To prepare for debates, students were required to perform extensive research and to demonstrate complete mastery of the materials they compiled. At the suggestion of the West Nassau principal, Dr. Owen provided the students some flexibility in making up their seat time due to the recognized conflict during the fifth-period. C.P., for example, made up his seat time by coming in early in the mornings and staying past 4:15 on afternoons when he could be in the class. Dr. Owen estimated that C.P. put in 130 hours of seat time during fourth quarter alone as he prepared for a national competition, when only 135 hours were required to obtain credit for the entire school year. Dr. Owen's clear mastery of the subject matter entitled her to some deference as to the extent to which the students were able to work independently of her. However, on this point, Superintendent of Schools John Ruis testified persuasively that regardless of how much independent study the student is responsible for, there is an expectation that instruction will occur in the classroom and that the students will be under the supervision of the teacher who is responsible for them. Dr. Ruis believed that some arrangement should have been made for supervision of the class in Dr. Owen's absence, regardless of the time the class convened. In summary, as to the allegations regarding the Debate 4 class, the School Board failed to demonstrate that Dr. Owen did not establish or follow any discernible academic standards for the class during the Fall Semester of the 2011-2012 school year. The School Board did demonstrate that Dr. Owen falsified records pertaining to the fifth-period Debate 4 class. It is understood that "falsification" carries a connotation of intentional action. Based on all the evidence, there is simply no way to find that Dr. Owen's actions constituted anything other than an intentional misreporting of student attendance in her Debate 4 class. Dr. Owen submitted attendance reports that were clearly incorrect, showing students present for classes that could not have taken place because Dr. Owen was not present on the West Nassau campus at the time in question.5/ When she filled out the attendance reports, Dr. Owen had to know that she was submitting inaccurate records. Spring 2011-2012 Speech 1 class During the Spring Semester of the 2011-2012 school year, Dr. Owen taught an AVID Speech 1 class at West Nassau. As noted above, AVID is the curriculum component of the federal GEAR UP grant program, the purpose of which is to increase the number of low-income students who are prepared to succeed in postsecondary education. The program's emphasis is on students who show the potential to do college work but who lack the financial and family resources to prepare in the manner available to their more well-to-do classmates. The elective AVID program aims to nurture these students and inculcate in them a desire to succeed in college.6/ The final exam for the Spring Semester AVID Speech 1 class consisted of four parts, each worth 200 points. The 800-point final exam counted for roughly one quarter of the student's grade for the nine-week period.7/ One of the 200-point segments of the final exam was a written essay test. The exam's instructions provided as follows: Please choose ONE (1) essay question. Your essay response should be a minimum of three (3) pages, and a maximum of four (4) pages. Please include an introduction, body, and conclusion. Your response is based off of your own experiences, not just the class's as a whole. Write your responses on a separate sheet of notebook paper. There followed a list of five essay questions: Compare and contrast your 1st semester at WNHS to your 2nd semester. What has changed? How have you improved, and what can you do to continue to improve? What recommendations would you give to the freshman class next year to prepare them for high school? Describe your experience with your first AP/Honors class. What do you think you could have done differently to help your grade? How do you think you could have been prepared in 8th grade, to be ready to go, when the class started? Describe what you think your life is to be like in 15 years. Where do you see yourself? Be as descriptive as possible. Do you believe that a person is born with individual determination, or is it acquired over time? What makes individual determination such a good thing but also a very bad thing? Give examples. Twenty-two students took the essay test. Twenty-one of the students received the same grade, 186 points out of a possible 200. The remaining student received a grade of 160.8/ Dr. Owen made no marks on any of the exams, most of which were replete with spelling errors, grammatical errors and sentence fragments. Three of the essays did not meet the three page minimum, and one of the essays was five and one-half pages long, in excess of the four-page maximum. In explaining her actions, Dr. Owen testified that some of the students were very concerned about their grades as they approached the written essay portion of the exam. Two parts of the final exam had been completed and were "non-negotiable as far as AVID was concerned," in Dr. Owen's words. One of these was the Tutorial Request Form, which Dr. Owen described as a "very stylized Socratic methodology form that they have to use Costa's higher-level order of thinking in order to put together.9/ And that is a killer sheet that they had to do twice a week all year." The second "non-negotiable" part of the final exam was a grade for the binders that the students were required to keep all year. Dr. Owen testified that some of the students had not done well on these two portions of the final exam, for which the AVID program allowed her no leeway to adjust the grades. She testified that these students "needed something to mitigate the damage that had been done in . . . the other two parts of the exam." Some of the students were further concerned that they could not write three pages on the essay test. Therefore, she orally amended the exam instructions, telling the class, "I will look at your essays to determine if you have addressed the prompt and if you have reflected on what you're doing. And if you've worked the whole period and you're working hard and I can tell, then I don't think anyone will be disappointed with their grades." Dr. Owen testified that she had taken this essay test, including the instructions, from an AVID website. She stated that she had never written an exam that called for a minimum or maximum number of pages, and that she did not believe that such a requirement should be strictly enforced. Dr. Owen noted that she had one student whose handwriting became larger and larger as she became more nervous, which caused her to fill more than four pages on the essay test. Another student's primary language was Spanish, but he managed to write a page and a half in English that addressed the prompt. In both of these instances, Dr. Owen declined to discount the students' grades for failure to meet the three-page minimum or four-page maximum. Dr. Owen testified that she has been trained as a professional test scorer and did not need to place marks on the papers. She stated that she took notes on a separate note pad to assist her in grading the papers, though she was unable to produce these notes at the hearing. She also knew that this was the last exam before summer break and that the students would not be coming back for the tests. She intended to place the exams in the students' permanent AVID folders to use as part of their first project for the next school year. The project was to involve peer editing, and she did not want the students to be influenced by marks she had placed on the papers. The essay exam was not intended to be "punitive." It was meant to be "reflective," something she could use at the beginning of the next year as a starting point for further study of the students' personal growth. Dr. Owen noted that the essay test was only one-fourth of the AVID Speech 1 final exam. This part of the exam did not change anyone's grade average because it amounted to so little of the total grade. Dr. Owen testified that it is appropriate to give all the students the same grade provided they "put into it what I ask them to put into it." In her deposition, when asked why 21 out of 22 students received the same score, Dr. Owen replied, "Probably because I liked what they wrote and they maintained the rubric."10/ She testified that she read every word of every essay. The fourth part of the final exam, also worth 200 points, was a "mandala autobiography" project. Each student was required to draw a mandala, or circle, containing five symbols that represent unique and varied aspects of the student and/or his life. According to the written rubric for the project, a "very effective" mandala would demonstrate its symbolic purpose, would be visually appealing, and would have a purposeful and unifying connecting design. Accompanying the mandala would be an essay that "thoroughly describes and explains the symbols contained in the mandala. The essay would use "strong sensory details to bring each symbol to life." The "very effective" essay should be well-organized, use "well-crafted transitions to propel the reader forward," contain varied sentence structure and have "few, if any, mechanical errors." All 22 students in the AVID Speech 1 class received a grade of 190 out of 200 on the mandala autobiography project. Dr. Owen made no marks of any kind on any of the project materials submitted by the students. Dr. Owen explained that this project was the culmination of "an entire year's worth of reflection through AVID." As well as writing explanatory essays, the students were required to present the mandalas to the class and explain each symbol and color used in the drawings. Dr. Owen testified that the mandala autobiography was something of a group project, with all of the students working on the rubric together. Again, she did not make marks on the papers because the mandalas were going to be used during the next school year. Dr. Owen testified: [A]t the beginning of this year, we were going to take those mandalas, and we were going to turn that into the second project, which was: over the summer, how have you changed? How have your collages changed? How did the symbols change? Are they still valid? And so I wasn't going to mark on anybody's artwork, and I didn't need to mark on any of them because the students' rubrics and things . . . I had them all together in one place. Dr. Owen conceded that some students produced more materials than others and that some projects appeared to have had more effort put into them, based on the detail of the written materials. Nonetheless, Dr. Owen testified that each one of the students in the class "absolutely" earned the grade he or she received. Dr. Cynthia Grooms, the assistant principal at West Nassau who conducted the initial investigation into the allegations against Dr. Owen, testified that she found it unusual that so many students received the same grades on the essay test and the mandala project, especially because there were no marks on the papers. These facts raised concerns as to whether Dr. Owen reviewed the exams, graded them properly, documented her grading process, and provided feedback to the students. Dr. Ruis also found it "highly irregular" for 22 students in a class to receive an identical grade on a written assignment. Dr. Ruis believed the probability of such an occurrence "would normally be very slim." As to the essay test in particular, Dr. Ruis stated: It would be difficult not to read these essays and make some distinctions between them with regard to quality of the product that the students produced. However, that was not reflected in the scores that they were assigned . . . It suggested that they were not reviewed objectively, that they were not graded in accordance with the guidelines that were issued, and done haphazardly. Even Mr. Booker, the former West Nassau principal who testified on behalf of Dr. Owen, stated that it would be unusual for all 22 students in a class to receive the same grade on a written project. If he were shown 22 written essays, all of which received the identical grade and none of which had a mark on them, Mr. Booker would conclude that the teacher had not graded them. The School Board's allegation is that Dr. Owen "falsified and/or negligently failed to maintain accurate grading records for her fourth period Speech I class." It is found that Dr. Owen did not "falsify" records for the class because there is no evidence that Dr. Owen intended to create inaccurate or misleading grading records. The undersigned finds Dr. Owen to be a dedicated teacher and a sympathetic witness, and has attempted to give her the benefit of every doubt in this proceeding. The AVID Speech 1 class was an elective class designed to encourage potential first-generation college students to pursue higher education. The class was designed more to encourage reflection and self- examination than to exert academic pressure on the students. It is found that, given the nature and goals of the class, Dr. Owen had some measure of discretion to apply a more relaxed grading standard. However, by her own admission, Dr. Owen negotiated with her students the terms of the AVID Speech 1 essay test after the students saw the written instructions to the test, essentially telling them to disregard the instructions and promising them a good grade if she believed they were working hard. She then proceeded to give 21 of 22 students a score of 186 out of 200, or a solid "A," without apparent regard to the manifest differences in quality among the essays. She made no marks on any of the papers, failing to correct for spelling and grammatical errors. Dr. Owen testified that she took notes in a separate note pad that she was unable to produce at the hearing. She stated that the students received the same score because they all wrote according to her undisclosed personal "rubric." The undersigned credits Dr. Owen's testimony that she read every word of every essay, but cannot credit her conclusion that all of these essays were of precisely the same quality meriting precisely the same grade. Based on these facts, it is found that Dr. Owen negligently failed to maintain accurate grading records for her fourth-period Speech I class as to the essay portion of the final exam. As to the mandala autobiography, there are factors apart from those discussed as to the essay test that incline the decision toward Dr. Owen. The mandala project had an objective rubric against which the finished product could be judged. Though each student produced an individual mandala, the overall project was visualized as a group effort, providing some justification for Dr. Owen's decision to award all 22 students with a grade of 190. A reasonable person could disagree with Dr. Owen's method of grading the mandala autobiography project, but her grading decision cannot be found to constitute a negligent failure to maintain accurate grading records. Evidence as to Dr. Owen's fitness and effectiveness Mr. Booker was the principal of West Nassau and Dr. Owen's direct supervisor throughout her tenure at the school. He described Dr. Owen as a "fabulous teacher," a "master" at keeping her students "highly engaged and involved in the educational process." Mr. Booker stated that he had no concerns about Dr. Owen's professionalism and had never known her to neglect any of her duties. His only concern was as follows: I've had concerns about her work ethic, because she works, you know, nonstop pretty much every day, every day, every night, weekends. She's a very dedicated teacher, puts in more hours as one teacher probably than three or four other teachers do. I used to have to try to kick her out of the building. Dr. Owen received the highest score possible on her annual evaluation for the 2011-2012 school year. She received an overall score of 97 out of 100 possible points on her 2010-2011 annual evaluation. She was subject to two evaluations during the 2009-2010 school year, for which she received scores of 94 and 100 out of a possible 100 points. Iris Coleman is a retired teacher and administrator for the School Board. In the 2008-2009 school year, Ms. Coleman was acting principal at the Student Educational Alternative School ("SEAS") at which Dr. Owen was a teacher. Ms. Coleman testified that her performance evaluations of Dr. Owen were very good, and that Dr. Owen was "one of the most competent teachers that I have ever observed." Ms. Coleman never knew Dr. Owen to neglect her duty, stating that, "I have never seen anything but the finest of performance academically, professionally, and socially." Melody Spruell, the former English department head and AP coordinator at West Nassau, testified that she had observed Dr. Owen's Debate 4 class 15 or 16 times and her AVID Speech 1 class about a dozen times. She noted that Dr. Owen's students posted "stellar" scores on the FCAT exam. Dr. Spruell stated that Dr. Owen "makes the rest of us kind of look like, you know, chopped liver." Dr. Spruell testified that if she had ninth- grade children, "my kids would be in her class." Maureen Lullo is an English teacher who shared the same suite of classrooms with Dr. Owen and worked closely with her in the AVID program. Ms. Lullo described Dr. Owen as "a brilliant mind and really one of the best teachers that I have been exposed to in my 24 years of teaching." Dr. Ruis testified as to the factors that led him to recommend Dr. Owen's dismissal: Well, I think to go back to the Code of Ethics of the teaching profession of the State of Florida, teachers have an obligation to present information honestly; they have an obligation to the profession and to the students and to the parents to not produce information that would misrepresent the facts or be submitted fraudulently. I think that's a very serious breach of the Code of Ethics. And my expectation for all of our teachers would be that they perform and that they act in a manner that's of the highest character, as exemplifying the Code of Ethics, because that is certainly something that we need to model for our students. And when that does not happen, I think it -- you know, it reduces the effectiveness of someone in the instructional position with students under their supervision. Dr. Ruis concluded that it would be "very, very difficult" for Dr. Owen to remedy her impaired effectiveness at West Nassau or in the Nassau County School District.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Nassau County School Board enter a final order finding D. Lynn Owen guilty of incompetency and misconduct in office and imposing the sanction of suspension without pay for the 2012-2013 school year. DONE AND ENTERED this 5th day of February, 2013, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of February, 2013.
The Issue The issues is this case are: (1) whether a letter written by an attorney for Respondent, Department of Education (Respondent or Department), is an unpromulgated rule; whether Petitioner, Harid Conservatory of Music, Inc. (Petitioner or Harid), is substantially affected by the letter it seeks to challenge as an unpromulgated rule; and (3) whether, if Petitioner prevails, it is entitled to attorney's fees and costs pursuant to section 120.595(4), Florida Statutes (2010).1/
Findings Of Fact Harid is a not-for-profit corporation that provides training for ballet dancers at its campus in Palm Beach County, Florida. Harid recruits ballet dancers not only from Florida, but, also, from other states and other countries. Ballet students are admitted to Harid based primarily on their artistic talent, and once admitted, attend tuition-free. Harid is highly selective, with an average enrollment of only 40 students. Harid students reside at Harid for all but approximately two and one-half months each year. Harid receives funding from benefactors and also engages in fundraising to carry out its training program. Harid generates more than enough from these funding sources to cover the costs of ballet training. Therefore, Harid is able to make additional financial assistance available to those of its students whose parents otherwise would be unable to afford the additional cost of room and board. Harid students are all high-school aged. As a result, while these students are enrolled at Harid, in addition to their intensive ballet training, arrangements must also be made for the dancers to receive a high school education. Harid students are required to attend high school, meet and maintain high academic standards, and remain on track for high school graduation. While Harid enrollees are in residence at Harid, they are under the supervision of a number of different Harid staff and faculty, including Harid's director, registrar, residence hall managers and supervisors, and other Harid staff and faculty. The residence hall supervisors reside in Harid's residence hall. Harid staff and faculty oversee all aspects of the dancers' lives, both on campus and off, during the time that Harid dancers are in training. The evidence did not establish that a specific staff person is assigned the responsibility for individual supervision of each individual Harid dancer; rather, the description given by Harid's director was that of multiple staff members in different roles, who cumulatively serve as the dancers' supervisors. The oversight role collectively played by numerous individual staff members at Harid was not shown, nor alleged to actually displace the parents of these students from their parental roles while their children are at Harid. In addition, presumably, during the two and one-half months that the Harid dancers are not in residence at Harid, they return to their homes and remain under the supervision of their parents. In other words, Harid staff and faculty oversee the students' lives while they are in residence at Harid to the extent necessitated by the remoteness of the students' parents. Since 1992, Harid students have attended Spanish River Community High School (Spanish River), a public school within the District, in order to earn credits in academic core subjects. The oversight role Harid staff members play with regard to Harid students includes acting as their "parents" for purposes of providing consents and executing other forms needed by Spanish River and the District, serving as contacts for notifications regarding the students, and communicating with Spanish River and the District on matters relating to Harid students. The record does not reflect whether one individual, or multiple individuals, at Harid perform these functions of signing consents, executing forms, serving as the contact for notifications, and communicating with the school and the District regarding Harid students. No evidence was presented regarding the history of how exactly Harid students came to be allowed to attend Spanish River; what, if any, documentation has been provided to Spanish River to support requests to enroll Harid students in the high school; or whether that process has changed over the years. However, the record shows that in July 2007, the District promulgated new policies on student residence enrollment requirements that are now in effect for the District's public schools. The District has had, for many years, a promulgated policy, Policy 5.01, which provides general criteria for student assignment to District schools. According to the history notes for this rule, Policy 5.01 was originally adopted in 1972 and was amended numerous times since then, as recently as December 12, 2008. The prior versions of the general criteria rule are not in the record. In its current form, which has been in effect since December 2008, Policy 5.01(1)(b) includes the following as general criteria for student assignment: Students shall be assigned to schools based on residence of the student/parent/guardian as stated below . . . The residence of a minor student shall be the domicile of his/her parent, as defined in Fla. Stat. § 1000.21(5) (which includes a legal guardian). . . The residence of a student who is married or above the age of majority shall be his/her domicile. The Superintendent/Designee may, in unique and hardship cases, determine residence based upon approval of the use of a notarized statement executed by the parent or legal guardian granting a general power of attorney and general custody of a student to a resident of Palm Beach County consistent with Policy 5.011.[3/] (Emphasis added). Policy 5.011, entitled, "Student Residence Enrollment Requirements," was more recently promulgated, first taking effect on July 11, 2007, according to the history note. This policy reiterates the general rule in Policy 5.01 that students must attend the school in the attendance zone where their parents or legal guardians are domiciled, or for students who are married or not minors, where the students are domiciled. The first five sections of Policy 5.011 specify in great detail the documentation that is required to prove domicile, the penalties for submission of false information, and the special provisions that apply to enrollment of homeless students and students in foster care. Policy 5.011-6 applies to "Persons Acting as Parent," and provides in pertinent part: For purposes of establishing student residency, a "parent" is defined as either or both natural or adoptive parent(s) of the student, the student's legal guardian, a person in a parental relationship to the student, or a person exercising supervisory authority over the student in place of the parent, pursuant to Fla. Stat. A. § 1000.21(5). The student must actually reside with the parent or Person Acting as Parent as the student's primary residence. . . . A Person Acting as Parent must complete form PBSD 1543, which is incorporated herein by reference and is available on the District's web site at www.palmbeach. k12.fl.us/Records/FormSearch.asp. Form PBSD 1543, incorporated by reference in the District's rule, is an Affidavit of Person Acting as Parent. The stated purpose of the affidavit "is to verify the status of a person acting as parent." The instructions on the form require that the form be completed and submitted to the school where the student is seeking to enroll. In pertinent part, the affidavit form provides: I, (name of guardian/person acting as parent) , am acting as parent for the following named child or children (print name of child or children): I, (person acting as parent/guardian) am currently residing with the above-named child(ren) at the residential address address below in Palm Beach County, and this is the child(ren)'s primary residence . . . * * * Pursuant to Florida Statutes § 1000.21, I qualify as a person acting as "Parent" under the following circumstances (check one only) Guardian of a student (legal guardianship papers are required) Person in a parental relationship (Proof Required - written notarized statement from the natural parent or guardian explaining why they are unable to perform in a parental role is required. Provide address and telephone number of natural parent below.) Person exercising supervisory authority over a student in place of a parent (Proof Required - written notarized statement from the natural parent or guardian explaining why they are unable to perform in a parental role is required. Provide address and telephone number of natural parent below.) (Emphasis added). As with the penalty warnings for falsification set forth in Policy 5.011, the form Affidavit of Person Acting as Parent warns of the statutory penalties for making false declarations. In addition, by signing the affidavit, a person acting as parent acknowledges the following: "I understand that falsification of this information may result in the withdrawal of my child(ren) from this school and that falsifying my residence when enrolling my child(ren), may be referred to law enforcement for prosecution." The controversy in this proceeding arose according to Robert Glassman, a senior counsel in the District's Office of Chief Counsel, "when the administration at [Boca Raton High School] requested authorization to register a number of students at Boca Raton H.S., who are enrolled at the Bucky Dent Baseball Academy" (Bucky Dent Baseball) in Boca Raton, Florida. Mr. Glassman elaborated on the Bucky Dent Baseball request: On February 24, 2011, our office received a request for information on the procedure to enroll students at [Boca Raton High School] who were participating in the Bucky Dent Baseball Academy in Boca Raton. In support of the School's position, reference was made to a similar program which was operated by the Harid conservatory in conjunction with Spanish River H.S. The program at Spanish River has been in existence for quite some time. This is the first time a request has been made for students associated with the Bucky Dent baseball academy. Both schools were relying on provisions of School Board Policy 5.011, which does permit schools to accept for enrollment those children from other persons acting as parents under limited circumstances. (see Sch. Bd. Policy 5.011-6) . . . [It was] agreed that we should contact the State DOE to determine their position on the issue. As a result I did contact the General Counsel's Office for FDOE, and spoke with [assistant general counsel] Mari M. Presley, on March 2, 2011. (Emphasis added). Ms. Presley confirmed that she received Mr. Glassman's telephone call on March 2, 2011. That same day, Ms. Presley repeated the question posed to her by Mr. Glassman in the following email to two colleagues at the Department: I have an FTE residency issue that I was hoping you could help me resolve. In Palm Beach county, there are two private "academies" (one for baseball and one for dance) that recruits [sic] from anywhere, including out of state. They have some students who live on campus, and some who live off campus. The students who do not live in Florida have their parents sign a form that purports to give someone (apparently a staff member at the academy) "guardianship for purposes of education." Once that is signed, the "guardian" enrolls the student in public school in Palm Beach County. (As an aside, the tuition is $20,000 to $30,000). Palm Beach County does not believe this is right, but they want to know from us whether they can deny enrollment under these circumstances. They note that their policies adopt the definition of parent that is found in [section] 1000.21(5) [Florida Statutes], "either or both parents of a student, any guardian of a student, any person in a parental relationship to a student, or any person exercising supervisory authority over a student in place of the parent." I'm inclined to say that a parent cannot create residency through what is essentially a sham "guardianship" form. What are your thoughts? Do we have any history with this topic? Do you know of any [Technical Assistance Papers] or guidance we have issued in the past on this? Do you know what the auditors would advise on this? (Emphasis added). Ms. Presley prepared a written response to Mr. Glassman's query in the Letter challenged by Harid in this proceeding. In that letter, Ms. Presley followed her inclination as described to her colleagues five days earlier and drew support from an "analogous" situation. The text of the Letter is set forth in full below: Re: Florida Residency for Public School Enrollment Dear Mr. Glassman: You have brought to our attention an issue relating to whether certain students are residents of the State of Florida for purposes of enrolling in Florida public schools. You indicated that one or more private academies recruit students from out of state to attend their academies at which they receive instruction in an extracurricular field of endeavor (e.g., baseball or dance). The parents of the out-of-state students do not live in Florida, but the students themselves live in Florida during the period of enrollment in the academy, either on or off of the academy's campus. In an apparent effort to establish Florida residency, the parents of these students sign a document purporting to give someone associated with the private academy "guardianship over the education" of the student. Utilizing this "guardianship," the academy then attempts to enroll the student in Florida public schools, claiming the student is a Florida resident. This letter is to advise you that the Florida Department of Education would not consider such a student a resident of the state for purposes of enrollment in Florida public schools. As I am sure you are aware, the residence of a minor ordinarily follows the residence of his or her parents. In the event that a child has been entrusted to a guardian who sits in loco parentis, the residence of the child may follow the residence of the guardian. However, in the circumstances described above, the parents remain the true guardians of the student. Allowing resident status based on the "guardianship" described above would elevate form over substance, and we therefore conclude it is not sufficient to establish residency in this state for purposes of enrolling in public schools. This situation is analogous to the circumstances that prompted an OPPAGA[4/] report dated October 2003, a copy of which is attached hereto. In that report, OPPAGA examined whether an out-of-state exceptional student education (ESE) student was a "resident" of Florida for purposes of public school FTE if the student came to Florida to attend a residential care facility. As in the situation described above, the students "lived" in Florida at the private facility but the parents lived out of state. OPPAGA concluded that since the residency of the student followed that of his/her parents, such a student would not be a resident of the State of Florida and would not be eligible to attend public school in this state. Such a student could not be reported for FTE funding. That position was codified in section 1003.57(2)(a), Florida Statutes. The same conclusion applies to the situation described above. (Emphasis added). The Department does not dispute the fact that it has not promulgated the Letter as a rule in accordance with section 120.54. The specific question posed by Mr. Glassman, as summarized in Ms. Presley's email to her colleagues and again in the Letter, is whether having a child's out-of-state parent(s) execute a form "guardianship over the education," granting such a "guardianship" to a staff person at one of the two extra- curricular training academies in Palm Beach County, Florida, qualifies that staff person as a "guardian." Mr. Glassman apparently was under the misimpression, when he asked his question, that both Bucky Dent Baseball and Harid used a form "guardianship over the education" in order to attempt to establish Palm Beach County residency for their enrollees. Mr. Glassman's description was based on a specific inquiry from Bucky Dent Baseball; apparently, it was the Bucky Dent Baseball program that described Harid's operations as similar in an effort to obtain approval for enrollment of its baseball students. Regardless of how Mr. Glassman got his impression that the programs were similar, the facts assumed in the Letter were not shown to fit the Harid program. There were no allegations in the petition, nor was any documentation offered to establish, that Harid uses a form "guardianship over the education" as described in the Letter. Harid's counsel acknowledged at the oral argument that Harid does not utilize a form "guardianship over the education." Harid does not ask parents of enrolling ballet dancers to execute a form "guardianship over the education" that gives a Harid staff person "guardianship over the education" of the Harid enrollee. Upon receiving Ms. Presley's letter, Mr. Glassman set forth his suggested approach for the District to follow in dealing with the request for authorization to register students from Bucky Dent Baseball. His analysis provided in pertinent part: Registration of Students from Bucky Dent BB Academy . . . I received Ms. Presley's written response to my inquiry on March 11, 2011. . . . Essentially, it is the opinion of the FDOE that under the circumstances of both the dance and baseball programs at issue here, the residency of the student follows that of the natural parent. Thus it would be improper to allow a student who does not live with his or her parent(s) with in [sic] the School's boundaries to enroll in such school. The DOE Counsel's opinion is based upon the OPPAGA report dated October, 2003. * * * While the [OPPAGA] report . . . [applies] to exceptional students' instruction, the logic of the placement issue would be the same for any student. The provision of [District Policy] 5.011(6), would apply in the unique circumstance such as where the natural parent(s) could not provide for the care of their child and had to designate someone to be the child's guardian for all purposes. In the two situations here the parents are simply electing to send their children to a private school for enrichment on certain extracurricular activities (dance or baseball) and then asking the School Board of Palm Beach County to provide the educational component of the program to those students whose parent(s) do not live within the boundaries of that particular school. Allowing such students to be enrolled would be contrary to the opinion of the FDOE and the intent of School Board Policy 5.011-6. However, since the program at Spanish River has students already enrolled, who are near the end of their high school career, it may be considered unjust to penalize those students. Consequently, the District may consider whether those students who are currently enrolled at Spanish River in grade 11 and 12, through the Harid Conservatory, will be allowed to complete their registration at that school if they desire to do so. All other existing students and any new students seeking registration for the next school year (2011/2012) from either program will not be accepted. It should be understood that there is no certainty that those students that are registered next year will be eligible for FTE funding. This is a risk the District would need to accept if it allows those students identified above to be registered. (Emphasis added). The District apparently accepted Mr. Glassman's suggested approach. On March 28, 2011, the District's assistant superintendent sent the following email to two District school principals: Dear Principals: Based on a legal opinion from the Florida Department of Education, dated March 7, 2011, the DOE would not consider an out of state student attending a private academy (i.e. Bucky Dent Baseball Academy or Harid Dance Conservatory [sic]) "a resident of the state for purposes of enrollment in Florida public schools." Therefore, these students cannot be enrolled in Spanish River High School nor Boca Raton High School, and those that are currently enrolled must be made aware of the need to find other options for graduation. The exception will be at Spanish River High School, where current Seniors and next year's Senior class will be allowed to graduate from Spanish River. No other students can be enrolled, and grade 9 and 10 Harid Dance Conservatory [sic] students will not be allowed to attend after this year. The District's decision regarding enrollment of Harid students was also conveyed to Harid, according to the affidavit of Harid's director. Neither the substance, nor the means of the District's communication of its decision to Harid are of record. Harid describes the injury it believes it will suffer because of the Department's Letter, as follows: The impact of the Letter on Harid is direct and not speculative. As a not-for-profit entity, Harid's ability to operate its programs and to offer talented young dancers professional training without sacrifice to their academic education will be impaired. Harid's efforts to attract and enroll new students -- as well as retain its current student body -- will be significantly impaired if Harid is unable to offer access to the public schools of Florida, is required to charge students tuition for private high school, or must incur the expense of private school tuition on top of the expenses already incurred for the professional ballet dance training provided to Harid students. (Emphasis added). Harid alleges that this described impact is the type that the Florida Education Code is designed to protect, because the definition of "parent" in section 1000.21(5), Florida Statutes, includes "a person exercising supervisory authority over a student in place of the parent." Harid claims to meet this description and, as such, claims that it has a legally recognized right to be a "parent" under the Florida Education Code. Harid's petition and motion for summary final order request the following relief: (1) a determination that the Letter is an invalid unadopted rule; (2) an order that the Department immediately discontinue reliance upon the Letter; and that the Department pay Harid's attorney's fees and costs incurred in this proceeding. In contrast, Harid's cross-motion for summary final order and Proposed Summary Final Order both revise the second category of requested relief to provide: "All reliance upon the [Letter] shall immediately be discontinued." No evidence was presented to support a Finding of Fact that at least 30 days before Harid filed its petition initiating this proceeding on May 2, 2011, the Department received notice that its Letter may constitute an unpromulgated rule. The petition itself does not allege that such 30-day advance notice was provided.
The Issue Whether Respondent’s employment with the Sarasota County School Board should be terminated, pursuant to Section 231.36(1)(b) and (6)(b), Florida Statutes.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made: David DeWitt was born in Miami and attended Miami Sunset Senior High School, where he played varsity basketball, graduating in 1980. He met his wife, the former Karen Burmeister, in high school. They dated each other in high school and beyond, and were married in 1988. They have two children: a son, Ryan, born in 1990, and a daughter, Megan, born in 1994. Karen DeWitt has been a teacher since 1985, and currently serves as instructional technology facilitator at Ashton Elementary School in Sarasota. David DeWitt attended Miami-Dade Community College on a basketball scholarship, then graduated from Florida International University with a bachelor's degree in business administration in 1986. He received a master's degree in computer education from Barry University in 1993. He completed a program in educational leadership at Nova University, also in 1993. Mr. DeWitt applied for a teacher's position in the Miami-Dade public school system in 1988, and was assigned to a teaching position at Miami Sunset for the 1988-89 school year. He taught in the "diversified cooperative training" program, in which students received credit for off-campus employment. He also worked as an assistant basketball coach. After the sudden resignation of the head coach, Mr. DeWitt served as interim head basketball coach during the 1990-91 season. The principal of Miami Sunset, Barbara Silver, encouraged Mr. DeWitt to seek certification in administration, believing he had the potential to become a principal. As noted above, he completed an educational leadership program in 1993. He received his state certification, and midway through the 1993-94 school year transferred to Homestead Middle School as an assistant principal. The DeWitts were concerned about raising small children in the urban atmosphere of Miami, and David DeWitt began interviewing for jobs in other school systems. He ultimately took a position with the Sarasota County public school system, and began as an assistant principal at Riverview High School in the 1994-95 school year. He remained in that position until the time of his suspension. Prior to the events that are the subject of this proceeding, Mr. DeWitt was never subjected to discipline in his employment, nor had complaints been lodged as to any of his actions at Riverview. The principal of Riverview, Kevin Flynn, testified that Mr. DeWitt had continuously progressed to higher levels of responsibility during his employment at Riverview. In 1997, Mr. DeWitt was chosen to lead the team establishing the International Baccalaureate ("IB") program at Riverview. Mr. Flynn testified that, prior to this proceeding, David DeWitt's reputation was that of a very able administrator, and that his standing was high among both teachers and parents. Mr. Flynn stated that Mr. DeWitt would have been a good candidate for principal at any high school in Sarasota County. The findings of fact below are arranged in the following order, based upon four discrete sets of events. First are the facts relating to the events of Fall 1997 through Spring 1998. These largely concern the allegations of Jennifer Bonelli about a sexual relationship with David DeWitt. Second are the facts relating to events of Spring 1999, which largely concern the allegations of Kendra Simpkins about a sexual relationship with David DeWitt. The investigation of the Bonelli and Simpkins allegations uncovered allegations about a sexual relationship between David DeWitt and Joy Perez. The allegations of Ms. Perez are dealt with as the third section of the findings of fact, though the events actually occurred several years before the Bonelli/Simpkins allegations, because Ms. Perez’ allegations were discovered by investigators during their investigation of the Bonelli/Simpkins allegations. The fourth section deals with events that occurred after Mr. DeWitt was suspended from his position at Riverview High School, chiefly allegations that Kendra Simpkins continued to stalk and harass the DeWitt family until the time of the final hearing. I. Fall 1997-Spring 1998 The allegations during this period focus on alleged sexual episodes with Riverview students Jennifer Bonelli and Kendra Simpkins. Ms. Bonelli claims that Mr. DeWitt had several sexual encounters with her at Twin Lakes Park during this time period. Ms. Simpkins claims that a single episode occurred in Mr. DeWitt's office during this time period. Mr. DeWitt flatly denies all the allegations, claiming that both girls were infatuated with him, and invented their stories. Jennifer Bonelli Jennifer Bonelli attended Riverview from 1996 through 1999. She graduated in 1999 and at the time of the hearing was attending the University of South Florida in Tampa. Her parents and two of her brothers still live in the Sarasota area. During the 1997-98 year, when she was a junior, Ms. Bonelli worked as a teacher's assistant in the guidance office. She was assigned to Ms. Chris Landes, who was Mr. DeWitt's secretary. Ms. Bonelli worked in the guidance office for one period each day, performing routine clerical duties under the supervision of Ms. Landes. Mr. DeWitt was Ms. Bonelli's grade level administrator, meaning that he was assigned to follow her class from its freshman through its senior year, handling disciplinary problems or problems the students may have in their classes. Mr. DeWitt was not a guidance counselor. Ms. Bonelli testified that she first saw David DeWitt either in the beginning of her junior year or during the summer after her sophomore year. She had asked to be assigned to the guidance office, and to Ms. Landes and Mr. DeWitt in particular. Ms. Bonelli testified that her initial impression of Mr. DeWitt was that he was a pleasant, nice, helpful, friendly person. Ms. Bonelli stated that she liked and was attracted to Mr. DeWitt, and soon developed a crush on him. Ms. Bonelli's testimony that she developed a crush on Mr. DeWitt only after she met him cannot be credited. Blair Johnson, one of Ms. Bonelli's best friends, testified that Ms. Bonelli told him she found Mr. DeWitt attractive during her sophomore year, and expressed a romantic interest in Mr. DeWitt during the summer after her sophomore year. Christine Ross, another of Ms. Bonelli's friends at Riverview, also testified that Ms. Bonelli expressed a crush on Mr. DeWitt the year before she began working in the guidance office, and before she had met Mr. DeWitt. Ms. Ross testified that the crush was based simply on seeing Mr. DeWitt around the school. The testimony of Mr. Johnson and Ms. Ross is credited on this point. Blair Johnson testified that he and Ms. Bonelli had summer school classes at Riverview that year, and that one day Ms. Bonelli accompanied him to the guidance office, where he had to go to make changes to his fall schedule of classes. The secretary mentioned to them that Mr. DeWitt would be moving into the guidance office that fall. Mr. Johnson testified that as he filled out his fall class schedule, Ms. Bonelli asked the secretary detailed questions about when Mr. DeWitt would be moving in and what kind of furniture he would have. Mr. Johnson testified that he was a student assistant in the guidance office during Fall 1997, assigned to Mr. DeWitt's secretary during second, third, and fourth periods. Ms. Bonelli took lunch during fourth period, then worked in the guidance office during fifth period. Mr. Johnson stated that Ms. Bonelli regularly came into the guidance office and worked with him during her lunch period. Ms. Bonelli told Mr. Johnson that she did so to be near Mr. DeWitt. Ms. Bonelli testified that she often talked with Mr. DeWitt, in the hallway and in his office. The discussions were not limited to school events and activities. Ms. Bonelli testified that they talked about their personal lives. Despite these frequent personal discussions, Ms. Bonelli stated that Mr. DeWitt never mentioned he was married. She asked him about it, and he never gave her a direct reply or ever volunteered anything about his marriage. She perceived that Mr. DeWitt was trying to avoid the subject of his marriage. Ms. Bonelli stated that she could not recall whether she asked Ms. Landes if Mr. DeWitt was married. She admitted that there were many people in the guidance office she could have asked. She stated that she was curious, and asked around, but never asked an adult. Ms. Bonelli's testimony as to her lack of knowledge of Mr. DeWitt's marital status was untrue. In June 1997, Ms. Bonelli masqueraded as David DeWitt in a series of prank e-mails that she sent to her friend Blair Johnson. In one of these e- mails, she correctly named Mr. DeWitt's wife and children. She knew the ages of the children and where they went to school. Further, Mr. Johnson testified that he heard Ms. Bonelli commenting about Karen DeWitt as early as Summer 1997, referring to her as a "bitch" and a "slut." Mr. Johnson testified that Ms. Bonelli later began saying that "we need to get rid of Karen." Mr. Johnson testified that he was "pretty weirded out" by the fact that Ms. Bonelli knew the name of Mr. DeWitt's wife, and was later disturbed at the stories Ms. Bonelli was spreading about Mr. DeWitt, discussed below. Mr. Johnson's testimony on this point is credited. Karen DeWitt works with Mr. Johnson's mother, and Mr. Johnson met Karen DeWitt in October 1997. He considered telling Mrs. DeWitt about Ms. Bonelli's actions, but decided that it would seem "weird and possibly obnoxious" for a 17-year-old boy to bring up such subjects with a teacher. Mr. DeWitt testified that he had no clear recollection of when he met Ms. Bonelli. She was assigned to his secretary, Ms. Landes, and so could have been there for some time before he took notice of her. Mr. DeWitt did not dispute that Ms. Bonelli began as an aide in the guidance office in Fall 1997. He stated that as far as he knew, she did a fine job. He based this opinion on reports from Ms. Landes. Mr. DeWitt testified that his policy is to keep his home life and work life separate, and that he has no photographs of his wife and children in his office. He testified that he has never denied to anyone that he is married. As detailed below, several witnesses testified that Mr. DeWitt was unaccountably coy about discussing his marital status, to the point of even denying that he had a wife and children. Mr. DeWitt attempted to explain that he kept home and work separate, and believed that his personal life was not the business of students. This explanation does not answer why Mr. DeWitt would deny being married at all, when the true state of affairs could be easily ascertained by anyone with a genuine interest in the matter. Ms. Bonelli testified that she and Mr. DeWitt engaged in "casual flirting." They would compliment each other. She stated that the comments were such that they "could be taken either way," depending on one's demeanor or gestures. She believed he was flirting with her, and she liked it. Mr. DeWitt testified that he recalled no conversations with Ms. Bonelli during Fall 1997, other than of the "Hi, how are you?" variety. He had no real recollection of Ms. Bonelli ever being in his office during this period. Mr. DeWitt testified that he always looked for reasons to compliment students, whether on their appearance or their accomplishments, as a means of enhancing their self-esteem. Christine Ross testified that during this period, she would go to Riverview football games with Ms. Bonelli. She stated that Ms. Bonelli would always make an effort to speak with Mr. DeWitt, who was assigned to monitor the area between the players' bench and the fence separating the field from the grandstand. Mr. DeWitt had no specific recollection of talking to Ms. Bonelli at the football games, but stated that hundreds of students walked past the fence on their way to the concession stand, that he spoke to many of them, and that he very likely did have some brief conversations with Ms. Bonelli. Mr. DeWitt testified that in Fall 1997, he would go to Sarasota Middle School to run in the evenings. He saw Ms. Bonelli there once or twice. He did not speak with her and could not say what she was doing there. He did not like seeing her there, because he saw enough of students during the work day and did not want to be in the position of having to deal with them during his "down time." Mr. DeWitt also testified that there were three or four occasions when Ms. Bonelli drove up next to his car at stop lights on Proctor Road as he drove home from school or from Riverview football games. Ms. Bonelli would usually roll down her window and wave, though in one instance after a football game she asked him what he was doing. Mr. DeWitt said "hello" and told her he was on his way home. Mr. DeWitt testified that these apparently fortuitous meetings were infrequent enough that he did not yet feel uncomfortable or as if Ms. Bonelli was following him. Mr. DeWitt testified that in about January 1998, he started feeling uncomfortable about Ms. Bonelli. He was seeing her more and more. He saw her in his rear view mirror constantly. At least twice, he saw her coming down the road toward him in her Lexus, then make a U-turn to follow him. If he was leaving the school, driving home, he would see her somewhere on his way. If he then got back in his car to take his son to Twin Lakes Park for baseball practice, Ms. Bonelli would either be on the road or at the park. If Mr. DeWitt went to the mall, he would see Ms. Bonelli there. Ms. Bonelli denied following Mr. DeWitt. This denial cannot be credited. Blair Johnson testified that Ms. Bonelli told him that she followed Mr. DeWitt around town to places where he did personal things, such as picking his children up from day care. Mr. Johnson stated that he was in the car with Ms. Bonelli on one occasion when she made a U-turn to follow Mr. DeWitt's car. Riverview students Christine Ross and Kendra Simpkins also related stories of riding in Ms. Bonelli's car and following Mr. DeWitt. Ms. Bonelli testified that at some point in Fall 1997, the relationship began to go beyond flirting. She testified that one day Mr. DeWitt brought up the subject of Twin Lakes Park, describing to her the days and times he went there to jog. Ms. Bonelli stated that around the end of September 1997, she began going to Twin Lakes Park at the times suggested by Mr. DeWitt. She went two to four days a week. She did not always see Mr. DeWitt there, and would simply jog on the days he was absent. She continued to go to Twin Lakes Park until some time in January 1998. Ms. Bonelli testified that on occasion she would go to the park with her school friends, including Christine Ross and Blair Johnson. She also went to Twin Lakes Park with her father and brother. When she went with a group, they would either jog or play football on the field next to the circular running path. Christine Ross testified that on one occasion, Mr. DeWitt tossed the football with the group for a few minutes. Ms. Bonelli stated that Mr. DeWitt approached her in November 1997 and told her he had a "problem," and would like her help. She asked him what the problem was, and Mr. DeWitt told her she would have to figure that out for herself. Ms. Bonelli stated that she had no idea what kind of problem Mr. DeWitt was talking about, whether school related or personal. For a period of weeks, Mr. DeWitt would ask her every day if she had thought about his "problem," and whether she could help him with it. Finally, she asked him if the problem had to do with the two of them, and he said yes. She took that to mean something sexual. Ms. Bonelli testified that in November 1997, she and Mr. DeWitt were leaving the park around dusk after running. She stated that they did not run together, but that Mr. DeWitt had asked her to come talk to him after he finished his run. Mr. DeWitt got into his Ford Explorer, then asked Ms. Bonelli if she wanted to "watch." She didn't know what he meant, but soon enough figured it out. Ms. Bonelli testified that Mr. DeWitt was sitting in his car, hands in his lap. It looked as if his hands were moving. She was standing next to the car, outside the driver's side window. She could not actually see his hands, but his arm looked as if it were moving up and down. She could not see if he was exposing his genitalia. Ms. Bonelli stated that she "snickered" and walked away toward her car. Ms. Bonelli testified that during this period in late 1997, Mr. DeWitt would ask her to "talk dirty" to him, and that she did so on a few occasions. She stated that she didn't know how to "talk dirty," and asked friends what to say. Ms. Bonelli did not name these friends, and no witness at the hearing testified as to coaching Ms. Bonelli on "talking dirty." Ms. Bonelli testified that the "dirty talk" was graphic. She would describe sexual acts she wanted to perform on him, using terms such as "cock," "stroke," and "suck." Ms. Bonelli also stated that Mr. DeWitt would ask her to "help him out" or "give him a little," which she took to be an invitation to grab or fondle him as he masturbated. She testified that she did not accept the invitation. Two other students, Kendra Simpkins and Blair Johnson, testified that Ms. Bonelli told them that she did masturbate Mr. DeWitt. Ms. Bonelli testified that these "talking dirty" sessions took place as they each sat in their own cars, parked next to each other in a small asphalt indentation near the front of Twin Lakes Park. She was on his left, looking over the passenger side window of her car to his driver's side window. Though she earlier testified that Mr. DeWitt was driving a Ford Explorer at the time of the first "watching" incident, Ms. Bonelli stated that Mr. DeWitt was driving a Honda during these "talking dirty" episodes. She drove a Lexus SE400, and recalled that Mr. DeWitt was sitting at her eye level. Ms. Bonelli testified that it looked as though Mr. Dewitt was "touching himself" and as though his right arm was moving while she talked dirty. She could not see his hands. Ms. Bonelli testified that these "talking dirty" sessions occurred at Twin Lakes Park from ten to twelve times. Each time, Mr. DeWitt's arms appeared to move toward his genitals. Ms. Bonelli testified that Mr. DeWitt's facial expression never indicated that he reached orgasm. She stated that he smiled as she spoke. She admitted that she never actually saw him masturbate, but assumed he was doing so. She testified that she never had skin-to-skin contact with Mr. Dewitt during any of these episodes or at any other time. Ms. Bonelli testified that on one occasion she saw a glimpse of Mr. DeWitt's penis when he pulled it out of his shorts as she stood at his driver's side window. She said he then giggled nervously and put it back into his shorts. Ms. Bonelli testified that as time passed, Mr. DeWitt became more nervous about their activities at Twin Lakes Park. Mr. DeWitt would say that he saw people he knew at the park, and that he did not want to be seen together with Ms. Bonelli. Ms. Bonelli testified that she told her friend, Christine Ross, all the details of her meetings with Mr. DeWitt at Twin Lakes Park, and that she took Ms. Ross to the park more than once to prove that she was not making up the story. She testified that Ms. Ross saw her talking with Mr. DeWitt, but was not close enough to hear what was said. Ms. Ross testified that she did go to Twin Lakes Park with Ms. Bonelli in Fall 1997, for the dual purpose of exercising and observing Mr. DeWitt. Ms. Ross stated that it was Ms. Bonelli's idea to go there, so that she would believe Ms. Bonelli's stories about her relationship with Mr. DeWitt. Ms. Bonelli testified that she recalled one occasion when Ms. Ross ducked down in passenger seat of her car and eavesdropped on Ms. Bonelli's conversation with Mr. DeWitt at the park. She stated that Mr. DeWitt was sitting in his car, which was parked next to the passenger side of Ms. Bonelli's car. Ms. Bonelli stated that she was not sure whether this was one of the "talking dirty" episodes, but that Ms. Ross would have heard whatever was said by her and Mr. DeWitt. Ms. Ross testified she hid on the passenger side floor of Ms. Bonelli's car when it was parked next to Mr. DeWitt's, and that she overheard Ms. Bonelli and Mr. DeWitt having a conversation "of a sexual nature." She testified that Ms. Bonelli was "talking dirty" to Mr. DeWitt. She stated that Mr. DeWitt did not solicit these statements, but he did say that he liked them. Counsel for Mr. DeWitt confronted Ms. Ross with her deposition testimony, which averred that she had never heard any such talk between Mr. DeWitt and Ms. Bonelli. Ms. Ross stated that she had had time since her deposition to think about the facts, and now recalled incidents that she could not recollect at her deposition. Ms. Ross' testimony cannot be credited. This finding is not based solely on the contradictions between her deposition testimony and her testimony at the hearing, though those discrepancies were significant and the revised testimony conveniently gibed with Ms. Bonelli's story. There were also internal contradictions in her testimony at the hearing that make it plain she was untruthful. She claimed to be hiding on the floorboard of Ms. Bonelli's car, out of Mr. DeWitt's sight, yet she also claimed that she could see Mr. DeWitt's head and shoulders in the adjacent car. Ms. Ross claimed that Mr. DeWitt was driving a green 1998 Honda, when Mr. DeWitt in fact drove a Ford Explorer and his wife drove a midnight blue 1991 Honda at the time of these events. In this regard, it is again a significant coincidence that Ms. Bonelli also erroneously stated that Mr. DeWitt was driving a Honda. Ms. Ross claimed that she could hear Ms. Bonelli's conversation with Mr. DeWitt, that she "definitely" recalled that the conversation was of a sexual nature, and that it went on for fifteen or twenty minutes. However, she could not recall any specifics of the conversation. Ms. Ross claimed that Mr. DeWitt later privately questioned her about what she had observed between Ms. Bonelli and him. Ms. Ross did not explain how Mr. DeWitt could know to ask such questions if he didn't know she had been hiding in the car. Mr. DeWitt recalled a conversation with Ms. Ross in which he asked her "how much do you know," but he was asking about the egging incident discussed below. Ms. Ross told other stories of standing at a distance and observing Mr. DeWitt and Ms. Bonelli interact at Twin Lakes Park. Even if these stories were credited, they would establish nothing more than the fact that Mr. DeWitt and Ms. Bonelli were at the park at the same time, and acknowledged each other's presence. Ms. Ross testified that Ms. Bonelli told her stories about meeting Mr. DeWitt at the park, and speaking in a sexual manner while Mr. DeWitt masturbated. This testimony is credited insofar as it establishes that Ms. Bonelli was telling those stories at roughly the time she alleges the events occurred, but is not credited as establishing the truth of those stories. Ms. Bonelli testified that she also told Blair Johnson about events at Twin Lakes Park, though not in the detail she provided to Ms. Ross. Blair Johnson testified that Ms. Bonelli told him about going to Twin Lakes Park. Mr. Johnson stated that he heard Ms. Bonelli tell different people three different versions of what happened at the park between Mr. DeWitt and her. The first story was that Mr. DeWitt and Ms. Bonelli got into her car, and she masturbated him. In the second version, she told a group of friends that she performed oral sex on Mr. DeWitt in her car. The third version was that she and Mr. DeWitt had full sexual intercourse in her car. Mr. Johnson did not believe any of these stories, but he did not report them until after the trespassing incident, discussed below. Mr. Johnson testified that he tried to ignore the DeWitt discussions, because he believed Ms. Bonelli was telling these stories for the attention they brought her. He believed that she kept changing the stories for "greater attention availability." Mr. Johnson testified that Ms. Bonelli would tell these stories to anyone who would listen, not merely to her close confidants. This testimony was effectively corroborated by another Riverview student, Dominique McAnn, who testified that stories about Mr. DeWitt and Ms. Bonelli circulated widely among her group of friends, numbering about 40 students. Ms. Bonelli testified that these assignations occurred at twilight, and that people driving past could not necessarily see what was happening. She stated that Twin Lakes Park was not busy during the months these meetings were occurring. She never saw little league baseball or soccer games going on at the times she met Mr. DeWitt at Twin Lakes Park. Ms. Bonelli testified that the meetings at the park ended in mid-January 1998. She stated that there was no definitive break in the relationship, but that Mr. DeWitt began ignoring her to show attention to another student, Kendra Simpkins. Mr. DeWitt flatly denied that any of these events at Twin Lakes Park ever took place. As noted above, Mr. DeWitt testified that he saw Ms. Bonelli a few times when he went to run at Sarasota Middle School during Fall 1997. He testified that in early 1998, he switched to jogging at Twin Lakes Park to avoid seeing Ms. Bonelli or any other student. He stated that he considers running to be his personal "down time" for stress relief. He dealt with students all day and didn't want to see them when he ran. At that time, he harbored no particular animus for Ms. Bonelli, but simply wanted to go somewhere not frequented by students. Karen DeWitt testified that her husband conveyed these thoughts to her at the time he switched from jogging at Sarasota Middle School to Twin Lakes. She also testified that Mr. DeWitt never came home from running after dark. After school, he spent time playing with his son. He would go running only if he could get away by about four p.m. If it was getting dark, he would stay home and help out with the children. Karen DeWitt testified that her husband jogged three or four times per week, and that she and the children went with him about half the time. The children would play while their father ran. Mr. DeWitt testified that he chose Twin Lakes because it was close to his house, had a soft running trail, and also had open fields where his children could play while he ran. Ms. Bonelli denied ever seeing Karen DeWitt at Twin Lakes Park when David DeWitt was jogging there. Ms. Bonelli claimed not to know what Karen DeWitt looked like at the time of these events. It cannot be conclusively found that Ms. Bonelli's claim on this point is untrue. However, it is noted that Ms. Bonelli demonstrated to Blair Johnson knowledge of Mr. DeWitt's wife and children that she claimed in her testimony not to possess. Even before he began jogging there, Mr. DeWitt took his son to Twin Lakes for soccer and baseball practices and games in 1997. His son played soccer from October to January, and baseball from January to April. Mr. DeWitt coached both sports, and so was there with his son very often. Mr. DeWitt would go to run between four and five p.m. Contrary to Ms. Bonelli, Mr. DeWitt testified that there was a lot of traffic in and out of the park when he went running there. Twin Lakes is a public park. At the time, it was the spring training facility for the Baltimore Orioles. Mr. DeWitt testified that youth baseball is played there year-round, and that youth football practices took place in the fall in the area near the running trail. Twin Lakes Park is lighted. Mr. DeWitt testified as to a bank of lights around the baseball fields that comes on every evening. He also stated that the parking lot is lighted, and produced photographs showing the lights. He stated that there are no lights around the running trail, which was why he always tried to complete his run before dark. Teresa Flannelly, whose son played baseball and soccer with Mr. DeWitt's son starting in January 1998, testified that she drives past Twin Lakes Park eight to ten times a day. She testified that the park is busy at dusk, due to little league baseball, soccer, and football. She also testified that the lights in the parking lot are always on at night. Mr. DeWitt testified that at some point in early 1998, Ms. Bonelli began appearing at Twin Lakes Park when he was there. He stated that he did not run with her, and did not like seeing her there. On one occasion as he was jogging on the half-mile trail, Ms. Bonelli approached him unexpectedly. Mr. DeWitt testified that this startled him, and he made it clear to Ms. Bonelli that he was upset and unhappy at her uninvited and unwelcome approach. Mr. DeWitt testified that he told Ms. Bonelli, "I'm here to reduce stress. I don't need you here at this park. If you're going to be here, I'll find somewhere else to go running. I'm not sure how many more parks there are. You are not to be around me at this park. This is a public park. Are you going to be running here?" He stated this was the extent of their conversation. Mr. DeWitt denied ever playing catch with a football with Ms. Bonelli or her friends. He could not clearly recall ever seeing her at the park with anyone else. Mr. DeWitt stated that there were a couple of times that he talked to Ms. Bonelli from his car. He stated that Ms. Bonelli had a knack for showing up just when he finished running and was walking to his Ford Explorer. She would either pull in or would already be parked in the space next to his car. Mr. DeWitt stated that these conversations were similar to the one he described when Ms. Bonelli approached him on the running trail. Mr. DeWitt recalled another occasion when he returned to his car to find Ms. Bonelli's empty car parked next to his. This time, he managed to get into his car and drive away before Ms. Bonelli returned to her car. Mr. DeWitt flatly denied having sexual conversations with Ms. Bonelli at Twin Lakes Park or on any other occasion. Mr. DeWitt denied ever asking Ms. Bonelli to "talk dirty." He denied ever masturbating in his car or doing anything that might be mistaken for masturbating. James Clark, a teacher and athletic director at Riverview, credibly testified that he frequented Twin Lakes Park during this period because his daughters were cheerleaders in the junior football program. Mr. Clark testified that he often saw Mr. DeWitt running at Twin Lakes, and would say hello and chat with him there. Mr. Clark never saw Mr. DeWitt engaging in anything inappropriate at the park. Ms. Bonelli testified as to several other incidents involving her and Mr. DeWitt, aside from events at Twin Lakes Park. She stated that Mr. DeWitt had her talk dirty to him in his office as the two of them put together test packets. She stated that Mr. DeWitt would also motion for her to crawl under his desk, presumably for oral sex, even though his office door was open and students could see in through a large window. She testified that she declined. Mr. DeWitt denied that either the dirty talk or the desk incident ever occurred. He also pointed out that next to his office door was a window, eight feet high and three feet wide, without curtains or blinds, that allowed anyone walking past his office to look inside, and that the corridor outside his office was heavily used by students going to and from class. His description of the window was corroborated by several witnesses, including Ms. Bonelli herself. Mr. DeWitt also testified that the door to his office was always open, unless he was having a meeting with parents or a disciplinary meeting with a student, and that his secretary sat only a few feet from that open door. Mr. DeWitt's testimony as to his office practices and the physical layout of his office was supported by that of his secretary, Chris Landes, and by Dean Wait, the director of guidance, whose office was across the hall from Mr. DeWitt's. Ms. Bonelli testified that Mr. DeWitt asked her to go into the school's media center bathroom with him. The media center was above the guidance office. To the left of Mr. DeWitt's office was a stairwell leading to the media center. Ms. Bonelli stated that she saw Mr. DeWitt walk into the teacher's bathroom near the media center, and that he motioned for her to follow him in. She testified that she declined. Mr. DeWitt denied that this incident ever occurred. It is noted that Ms. Bonelli's description of this alleged incident is remarkably similar to an admittedly false story she later helped concoct and spread through Riverview about Mr. DeWitt and Kendra Simpkins, discussed below. Ms. Bonelli vaguely recalled grabbing Mr. DeWitt's crotch over his clothes on one occasion. Christine Ross testified that she witnessed this event, and that it occurred in a crowded hallway between classes at Riverview. Mr. DeWitt denied that this ever happened. Ms. Bonelli testified that Mr. DeWitt once asked her about "cybersex," which she defined as "a form of talking dirty over the internet." Mr. DeWitt asked her what it was, and she gave him some examples. He asked her what she would say to someone if she were having cybersex. Ms. Bonelli stated that she never engaged in cybersex with Mr. DeWitt. Mr. DeWitt testified that Ms. Bonelli approached him at school one day early in 1998 and asked if he had ever "cybered." Mr. DeWitt told her he had no idea what she was talking about. Ms. Bonelli told him it was something people do on America On- Line ("AOL"), doing "fantasy things" with other people. Mr. DeWitt told her that he didn't have AOL. Mr. DeWitt's testimony on this point is credited. Mr. DeWitt testified that other disturbing computer- related incidents occurred at about the same time, approximately March 1998. Linda Brooks, the parent of a student in the IB program, had questions about her daughter's science class. She met with Mr. DeWitt, and they exchanged e-mail addresses. She saw Mr. DeWitt write down her e-mail address in his daily planner, which generally sat open on his desk. Ms. Brooks testified that she attempted to send an e- mail message to the school system address he had given her, but it came back as undeliverable. Shortly thereafter, she received an e-mail purporting to be from Mr. DeWitt. The message was short, something about wanting to make contact, and was signed, "Dave." Ms. Brooks testified that this seemed strange because it was too casual. She had never called him "Dave," and had never heard him refer to himself as anything other than "David DeWitt" or "Mr. DeWitt." She nonetheless wrote a lengthy response and used the "reply" button to send it. She noted that the address displayed was "DavidDeWitt@aol.com." Ms. Brooks testified that she never received a response to her e-mail, so she phoned Mr. DeWitt about the information she was requesting. During the conversation, she mentioned that she had sent an e-mail, and Mr. DeWitt told her he had never received it. Ms. Brooks told him that her e-mail was a response to the one he had sent her over the weekend. Mr. DeWitt told her that he had never sent her an e-mail. Ms. Brooks told him that the e- mail had come from an AOL account. Mr. DeWitt told her he had never had an AOL account. Ms. Brooks printed the e-mail and brought it to Mr. DeWitt at Riverview. She testified that Mr. DeWitt was very concerned that someone was pretending to be him. As they were discussing the situation, Ms. Brooks recalled that Mr. DeWitt had written her e-mail address in his daily planner, and she asked him who had access to the planner. Mr. DeWitt told her that he has an open door, and his planner usually sits open on his desk, meaning that any number of people could have copied Ms. Brooks' address. Mr. DeWitt suspected Ms. Bonelli. About a week later, he asked Ms. Bonelli if she had sent an e-mail to Ms. Brooks. Ms. Bonelli's answer was equivocal. Mr. DeWitt told her that he believed she took Ms. Brooks' e-mail address from his planner. Ms. Bonelli answered, "You think I'd go into your office and get the address out of your planner?" Mr. DeWitt said, "Yes." Ms. Bonelli said, "Well, maybe I did." Mr. DeWitt testified that he investigated no further, because this satisfied him that Ms. Bonelli was the culprit. Ms. Bonelli testified that she never sent an e-mail to Linda Brooks. Ms. Bonelli's denial is not credible. Blair Johnson testified that on June 18, 1997, he received an e-mail from an account named after Mr. DeWitt. He found it odd that Mr. DeWitt would send him an e-mail, because he didn't know Mr. DeWitt very well. Mr. Johnson's internet account was not identifiable as his, meaning that the sender could not have discovered his e-mail address by search or happenstance. Mr. Johnson would have had to give his address to the sender. This added to Mr. Johnson's suspicions concerning the sender's identity. Mr. Johnson testified that he knew Ms. Bonelli was interested in Mr. DeWitt, and he asked for her opinion on the e- mail. Ms. Bonelli told Mr. Johnson that she had been chatting with Mr. DeWitt on-line and had given Mr. Johnson's e-mail address to Mr. DeWitt. Mr. Johnson found this strange, but did not ask Mr. DeWitt about the matter. The next day, Mr. Johnson received another e-mail from "David DeWitt." Mr. Johnson was now certain that Ms. Bonelli was the sender, and decided to play along with the game by responding to "DeWitt." He then telephoned Ms. Bonelli, who admitted to sending the bogus e-mails and to receiving Mr. Johnson's response. She told Mr. Johnson she did it as a joke, and told him he was not the only person receiving "DeWitt" e-mails. Concluding the joke, Ms. Bonelli sent a reply to Mr. Johnson's response, still in the "DeWitt" character. This e-mail was sent on June 24, 1997. As noted above, this e-mail indicates that Ms. Bonelli knew the names of Mr. DeWitt's wife and children, as well as the children's ages and where they went to school, months before she began working in the guidance office at Riverview. Ms. Bonelli testified that she never impersonated Mr. DeWitt on an e-mail. She claimed to have herself received an e- mail purporting to be from Mr. DeWitt. She testified that she tried to check the AOL profile of the sender, but there was no profile. Ms. Bonelli's testimony is not credible. Ms. Bonelli testified that Mr. DeWitt quizzed her about what she had done sexually with boyfriends. She stated that Mr. DeWitt wanted details of these experiences, but that she refused to provide them. Mr. DeWitt denied that such conversations ever occurred. Ms. Bonelli testified that Mr. DeWitt never asked her to have sexual intercourse with him. She stated that, at the Fall 1997 homecoming dance, she told him she would like to have sexual intercourse with him. Mr. DeWitt told her to wait until she graduated from high school. Mr. DeWitt testified that he did chaperone the Fall 1997 homecoming dance, but that no such conversation ever occurred with Ms. Bonelli. He stated that if Ms. Bonelli had made such an overture, he would have reported it to the principal and to Deputy Richard Foster, Riverview's Student Resource Officer ("SRO"). Ms. Bonelli testified that one night around New Years Day 1998, she was driving home from a Riverview basketball game. She pulled up at a stop light next to Mr. DeWitt, and he asked her to pull into Albritton's, a fruit stand off Proctor Road. She testified that they talked there for about an hour and a half. Mr. DeWitt asked her to try to find out who had been vandalizing his home mailbox, because he suspected Riverview students. He promised to take her to dinner if she found out the culprits. Mr. DeWitt denied that this meeting ever took place. Kendra Simpkins Ms. Bonelli testified that when Kendra Simpkins started working in the guidance office in mid-January 1998, Mr. DeWitt began speaking to Ms. Simpkins rather than to her during the period. Ms. Bonelli was upset and jealous over the attention Mr. DeWitt was showing Ms. Simpkins. Ms. Bonelli testified that Mr. DeWitt suddenly stopped reciprocating her advances, and that she assumed this was because Mr. DeWitt wanted to start an affair with Kendra Simpkins. As noted in more detail below, Ms. Bonelli habitually accused any female student she saw speaking to Mr. DeWitt of having an affair with him, or of wanting to have an affair with him. At the time of her testimony, Kendra Simpkins was a senior at Riverview, scheduled to graduate in June 2000. She began at Riverview in 1996, and attended the school throughout her high school career. She played on the softball and volleyball teams. Ms. Simpkins lives with her mother, stepfather, and two younger brothers, Clayton and Maxwell. In about January 1998, Ms. Simpkins began work in the guidance office. She testified that she did this to obtain community service credit hours, which enhance a student's resume. She worked there during sixth period, roughly noon to 12:45 p.m., performing clerical tasks assigned by Mr. DeWitt's secretary. At the time she began work in the guidance office, Ms. Simpkins was an ROTC cadet. She testified that her first personal contact with Mr. DeWitt was his passing compliment about her ROTC uniform. Ms. Simpkins stated that from that point, she and Mr. DeWitt began having conversations about school, her activities, and her personal life, including boyfriends. Mr. DeWitt testified that he did compliment Ms. Simpkins on her ROTC uniform, but did so at the suggestion of Colonel McClellan, the ROTC instructor at Riverview. Col. McClellan had seen Ms. Simpkins in the guidance office, and inquired of Mr. DeWitt whether she worked there. When Mr. DeWitt answered in the affirmative, Col. McClellan told him that Ms. Simpkins was having trouble in school, and trouble in general, but that she liked ROTC and might benefit from some positive reinforcement in that regard. Mr. DeWitt complimented her the first time he saw her in the uniform, but stated that he did so in the interest of Ms. Simpkins' self-esteem. Mr. DeWitt testified that this was no different than the positive comments he gives to students generally, whenever he can find a reason to do so. Mr. DeWitt testified that he had conversations with Ms. Simpkins. These conversations were similar to those he had with other students seeking direction and looking for advice. He recalled that Ms. Simpkins was on the junior varsity volleyball team, but had the opportunity to play on the varsity team. She was very anxious about the situation and went to Mr. DeWitt for advice, saying she was more comfortable playing with the junior varsity team. Mr. DeWitt advised her to play on the varsity, because playing with better people would make her a better player. Mr. DeWitt also recalled that Ms. Simpkins came to him with problems she was having at home, concerning the relationship between her mother and stepfather. Mr. DeWitt stated that their conversations never veered into areas that made him feel uncomfortable. He saw her speaking with female counselors, and assumed she would go to them with any "deep problems." Ms. Simpkins testified that the subject of "cybersex" came up during the course of her conversations with Mr. DeWitt. She stated that while browsing America On-Line ("AOL") one day, she found a screen name that appeared to be Mr. DeWitt's, and wrote an e-mail to him. An on-line chat ensued, during which cybersex arose as a topic. Ms. Simpkins later asked Mr. DeWitt in person about the chat, but he denied having an AOL account or knowing anything about the on-line chat. However, Mr. DeWitt was interested in the subject of cybersex and pressed Ms. Simpkins for an explanation. Ms. Simpkins testified that she responded that she wasn't "into that," and declined to talk about cybersex with Mr. DeWitt. Mr. DeWitt denied having "cybersex" conversations with Ms. Simpkins, and denied ever chatting with Ms. Simpkins on AOL. Mr. DeWitt's denial is credited. If Ms. Simpkins indeed innocently chatted on AOL with someone pretending to be Mr. DeWitt, that person was likely Jennifer Bonelli. It is also noted that, as will be discussed below, a time came when Ms. Simpkins and Ms. Bonelli got together and compared their stories about Mr. DeWitt. It is likely that Ms. Simpkins' "cybersex" story had its origins in these conversations with Ms. Bonelli. Ms. Simpkins testified that Mr. DeWitt touched her in Spring 1998. One day, she walked into his office to get a yearbook for someone who needed to see a photo of a graduate. Mr. DeWitt was sitting at his conference table. As Ms. Simpkins passed behind his chair, he leaned back in his chair and pretended to stretch his arms. While stretching, he grabbed Ms. Simpkins' genitals. Ms. Simpkins believed this was not accidental, though she admitted it might have been. She stated that Mr. DeWitt offered a sarcastic apology. She said she accepted the insincere apology because she really didn't mind what he did. Ms. Simpkins testified that Mr. DeWitt always avoided the subject of his personal life. If she asked about his wife and children, he would change the subject. Ms. Simpkins knew Mr. DeWitt was married because Ms. Bonelli had told her so. She knew Mr. DeWitt had children because her brother played baseball at Twin Lakes Park, where Mr. DeWitt's son played. Ms. Simpkins stated that during the spring of 1998, she developed a crush on Mr. DeWitt. She said this was because Mr. DeWitt seemed to take an interest in her. He came to one of her softball games. He was polite and "looked out for me." She believed that Mr. DeWitt reciprocated her feelings, but admitted that Mr. DeWitt's actions were equivocal and that she chose to interpret them in a manner to her liking. Ms. Bonelli testified that she and Ms. Simpkins developed a "very superficial" relationship in the spring of 1998. This relationship consisted primarily of the two young women quizzing each other as to their dealings with Mr. DeWitt. Ms. Bonelli was trying to figure out if "something was going on" between Ms. Simpkins and Mr. DeWitt. Ms. Bonelli stated that after about a month of this relationship, she opened up to Ms. Simpkins and told her what had gone on between Mr. DeWitt and her. Ms. Bonelli testified that Ms. Simpkins replied that Mr. DeWitt had also asked her to "talk dirty" to him, and that she did it, but she would not tell Ms. Bonelli exactly what she said to Mr. DeWitt. Ms. Bonelli testified that she told Ms. Simpkins everything she had done with Mr. DeWitt, including the masturbation incidents. Ms. Simpkins seemed upset at learning that Mr. DeWitt also had a relationship with Ms. Bonelli. Ms. Bonelli admitted to being fiercely jealous of Ms. Simpkins. Ms. Simpkins stated that her earliest experience of Ms. Bonelli was unpleasant. Ms. Bonelli was jealous and spreading rumors about Ms. Simpkins, because she had seen Ms. Simpkins talking to Mr. DeWitt and assumed that "things were going on." Christine Ross confirmed that Ms. Bonelli was telling stories about Ms. Simpkins and Mr. DeWitt. Ms. Simpkins testified that she told Ms. Bonelli that nothing was going on between her and Mr. DeWitt, and that Ms. Bonelli had no place spreading such rumors. Ms. Simpkins testified that she then "talked things out" with Ms. Bonelli and they became friends. Ms. Bonelli did not characterize Ms. Simpkins as her "friend." After they became friendly, in about March 1998, Ms. Bonelli told Ms. Simpkins that she had a crush on Mr. DeWitt. Ms. Simpkins testified that Ms. Bonelli told her that she would meet Mr. DeWitt at Twin Lakes Park, and that "he didn't want anything to do with her." Ms. Bonelli's story changed after Ms. Simpkins admitted that she, too, had a crush on Mr. DeWitt. Ms. Bonelli then told Ms. Simpkins that she and Mr. DeWitt "actually did stuff." Ms. Bonelli told Ms. Simpkins that she would kiss and masturbate Mr. DeWitt at Twin Lakes Park. "She would do him" or give him a "hand job" was Ms. Simpkins' recollection of Ms. Bonelli's claim. Ms. Bonelli did not tell her how many times this occurred. Ms. Bonelli also claimed she had brought someone with her to witness the fact that Mr. DeWitt would meet her at the park. Ms. Simpkins testified that she believed Ms. Bonelli's stories, though she admitted that the changes in the stories gave her reason to doubt Ms. Bonelli's truthfulness. Ms. Simpkins thought that the stories sounded like things Mr. DeWitt would do. Blair Johnson testified that Ms. Bonelli told him about her discussions with Ms. Simpkins. It appeared to Mr. Johnson that the two girls were engaged in a one-upmanship contest concerning their alleged encounters with Mr. DeWitt. One girl would say she talked to Mr. DeWitt. Then the other would say she went into Mr. DeWitt's office and talked to him. Then the first girl would relate a story about intimate discussions of family matters, and so the tales would escalate. Ms. Bonelli testified that once after school, she and Ms. Simpkins went through Mr. DeWitt's desk looking for photographs of female students. Ms. Simpkins did not believe Ms. Bonelli's assertion that Mr. DeWitt had photographs of Ms. Bonelli and Jennifer Rizi, another student assistant in the guidance office. Ms. Bonelli and Ms. Simpkins rifled Mr. DeWitt's desk in search of the photos. Ms. Simpkins stated that Ms. Bonelli was jealous of Jennifer Rizi, and believed something was going on between Mr. DeWitt and Ms. Rizi. Bonelli admitted confronting Jennifer Rizi and asking her if she was having a sexual relationship with Mr. DeWitt, and that Ms. Rizi denied it. Ms. Rizi testified that she knew Mr. DeWitt from church, and that he also knew her stepsister and mother. Ms. Rizi considered Mr. DeWitt a friend of the family and spoke to him often about school, family, and boyfriend problems. She never felt Mr. DeWitt was prying into her sex life or otherwise acting inappropriately. Ms. Rizi testified that she knew Ms. Bonelli as an acquaintance. Ms. Bonelli had introduced herself to Ms. Rizi and "pumped" her for information about Mr. DeWitt whenever she saw her. In April or May 1998, Ms. Bonelli asked her if she and Mr. DeWitt had "hooked up" in a romantic way. Ms. Bonelli told Ms. Rizi that she had an unrequited crush on Mr. DeWitt and was jealous of Ms. Rizi talking to him. Ms. Bonelli told Ms. Rizi that nothing inappropriate had occurred between Mr. DeWitt and her. Ms. Rizi testified that she was completely appalled at the suggestion that she and Mr. DeWitt had some sort of romantic relationship. She told Ms. Bonelli that nothing was going on between Mr. DeWitt and her, and inquired why she would even ask such a thing. Ms. Rizi testified that she did not speak to Ms. Bonelli again after this incident. Ms. Simpkins recalled that she was in Ms. Bonelli's car one day that spring when Ms. Bonelli saw Mr. DeWitt driving his car in the opposite direction. Ms. Bonelli made a U-turn and followed Mr. DeWitt down Proctor Road for a few blocks, close enough that Mr. DeWitt could see who was following him. Ms. Simpkins stated that Ms. Bonelli did not tell her why she turned to follow Mr. DeWitt. Ms. Simpkins testified that Ms. Bonelli told her that she jogged at Sarasota Middle School. Ms. Simpkins also testified that she once accompanied Ms. Bonelli to Sarasota Middle School in search of Mr. DeWitt. Ms. Bonelli denied ever going to Sarasota Middle School for the purpose of seeking out Mr. DeWitt. The Trespassing Incident Mr. DeWitt testified that in early 1998, he and his wife suspected that someone was coming onto their property at night. During this period, Mr. DeWitt also told Mr. Flynn, the principal of Riverview, that he believed Ms. Bonelli and Ms. Simpkins were "stalking" him. Ms. Bonelli testified that she knew where Mr. DeWitt lived because she had friends in his neighborhood, Saddle Creek. The DeWitts live in the first house on the left, just past the entrance to Saddle Creek. They own a five-acre lot, and their house is set back about 330 feet from the road. Ms. Bonelli admitted that she trespassed on Mr. DeWitt's property three or four times in Spring 1998. She and a group of friends would drive out to Saddle Creek at night and walk on Mr. DeWitt's property. Ms. Bonelli named Christine Ross, Kendra Simpkins, Blair Johnson, and several other boys as her companions on one or more of these trips. In fact, Mr. Johnson did not accompany Ms. Bonelli on these excursions. Ms. Bonelli stated that they did "stupid kid things," such as running around in Mr. DeWitt's back yard and looking into the windows of the house. She stated that they would stay on the property for as long as an hour. Ms. Bonelli testified that they would sometimes go up to the windows to look inside, and that she would see both Mr. DeWitt and his wife, thus confirming in her mind that Mr. DeWitt was indeed married. As found above, Ms. Bonelli well knew that Mr. DeWitt was married long before these trespassing incidents. Blair Johnson testified that Ms. Bonelli told him that she had been at Mr. DeWitt's house on two or three occasions. She told him she had dressed in dark or camouflage clothing and looked in Mr. DeWitt's windows, observing his family. She told Mr. Johnson that she hid in an enclosure next to the house and watched Mr. DeWitt take out his trash. Mr. Johnson testified that he knew where Mr. DeWitt lived because Ms. Bonelli had pointed it out to him. One evening, as Mr. Johnson was driving home from the house of a friend who lived in Mr. DeWitt's neighborhood, his way was blocked by two cars, a Jeep and a sedan, stopped in the middle of the road near Mr. DeWitt's property. The occupants of the cars appeared to be talking to each other. Several teenage boys were standing in the Jeep, talking loudly. Mr. Johnson pulled up close, waiting for them to move so that he could get by. At that moment, he saw Ms. Bonelli run out of the woods fronting Mr. DeWitt's property. She was dressed in dark clothing. She jumped into the sedan, which drove off. The Jeep sat there, and its occupants watched Mr. Johnson as he drove past. Mr. Johnson confronted Ms. Bonelli later about the incident. She seemed surprised, then relieved that the person in the car that night was a friend who would not report her. Mr. Johnson stated that Ms. Bonelli laughed and joked about the incident. Ms. Bonelli testified that she did not personally vandalize Mr. DeWitt's house or steal anything from his property, but that on one occasion her companions did. On Saturday, April 17, 1998, at around 11 p.m., Ms. Bonelli drove to the DeWitt residence, dropped off Kendra Simpkins and Christine Ross, then drove through the neighborhood. Ms. Simpkins and Ms. Ross threw eggs at Mr. DeWitt's front door, put eggs in his mailbox, and stole from the yard an animal skull belonging to Mr. DeWitt's young son. Ms. Bonelli returned to the house, picked up Ms. Simpkins and Ms. Ross, and drove away. Ms. Bonelli attempted to minimize her role in this incident, testifying that Ms. Simpkins and Ms. Ross asked her to drop them off and that she couldn't see what they were doing. She said they asked her to give them a couple of minutes, so she drove away, then turned around in a church down the road and came back. Ms. Bonelli's testimony that she merely dropped off the other girls and was unaware of what they did is not credible. Ms. Simpkins admitted that it was she and Ms. Ross who actually egged the house, and admitted that she and Ms. Ross stole the animal skull "as a souvenir." However, Ms. Simpkins testified that egging the house was Ms. Bonelli's idea. Ms. Bonelli picked up Ms. Simpkins, then stopped at Kash'n'Karry on the way to Ms. Ross' house and bought the eggs. Ms. Simpkins stated that Ms. Bonelli gave her the receipt for the eggs to place in Mr. DeWitt's desk as a joke. Ms. Simpkins stated that she later placed the receipt in Mr. DeWitt's desk. Ms. Simpkins' testimony is credited on this point. Ms. Ross testified that the eggs were already in the car when the other two girls arrived to pick her up. She stated that both Ms. Simpkins and Ms. Bonelli told her that egging the house was Ms. Simpkins' idea. Ms. Ross is believable in stating that Ms. Bonelli told her that it was Ms. Simpkins' idea to egg the house, but she is not credible when she claims that Ms. Simpkins herself took credit for the idea. Mr. DeWitt testified that he and his wife were in bed when he heard a loud banging against the front door. He got up, ran to the front door, took the alarm off, and opened the door. When he went out the door, he stepped on some eggs. He ran out and saw two females running away from the house. Mr. DeWitt could see two female figures as they ran from the house to the edge of the property, but he could not positively identify them in the dark. He had a "hunch" that it was Ms. Bonelli, Ms. Simpkins, and/or Ms. Ross. Mr. DeWitt testified that he and his wife found unbroken eggs on window ledges and other places around the house, which he took as a message that the perpetrators had been looking in the windows. Mr. DeWitt also noticed that his son's animal skull was missing. Because of the late hour, Mr. DeWitt took no action that evening, aside from cleaning up his front door and steps. He did not call the police that weekend, because he believed the incident was school related and that he could deal with it on Monday morning. Mr. DeWitt testified that when he arrived at school on Monday, April 20, 1998, the animal skull had been placed on his parking spot. He wondered if the perpetrators thought they were casting a hex on him. Ms. Simpkins testified that she placed the skull in Mr. DeWitt's parking space so that he would find it on Monday morning. Ms. Bonelli drove Ms. Simpkins to the school to place the skull on Mr. DeWitt's parking space. Mr. DeWitt told School Resource Officer (SRO) Rick Foster about Saturday evening's events. The two men agreed they would look into the matter. SRO Foster would seek leads through his sources in the school, and Mr. DeWitt would talk to people in the Saddle Creek area. Mr. DeWitt testified that he didn't immediately drop everything to investigate this incident. He maintained a regular schedule of parent conferences and other daily activities. During that week, Mr. DeWitt questioned Ms. Bonelli, Ms. Simpkins, and Ms. Ross separately. All three girls denied any involvement in the egging. Also during that week, Mr. DeWitt found in his desk the Kash'n'Karry receipt for the eggs. Ms. Simpkins later slipped into his office and took back the receipt. Mr. DeWitt testified that Ms. Bonelli, after initially claiming no knowledge, returned to his office and told him that she knew it was Ms. Simpkins who egged his house. As proof, Ms. Bonelli provided Mr. DeWitt with a print-out of an on-line discussion she had with Ms. Simpkins, in which Ms. Simpkins admitted to "doing some snooping" in Mr. DeWitt's desk and retrieving the receipt for the eggs. Mr. DeWitt then called Ms. Simpkins into his office. SRO Foster was also present at this meeting. Ms. Simpkins again denied any knowledge of the egging. Mr. DeWitt bluffed Ms. Simpkins by asking if she was aware he had considered placing a surveillance camera on his property. Ms. Simpkins asked if Mr. DeWitt had caught her on tape, thus admitting her involvement. Mr. DeWitt produced the print-out Ms. Bonelli had given him, and he asked Ms. Simpkins to quit playing games and tell the truth. At this point, Ms. Simpkins confessed to participating, but quickly added that Ms. Bonelli and Ms. Ross were also involved. She told Mr. DeWitt that it was Ms. Bonelli's idea, and that Ms. Bonelli bought the eggs. She falsely claimed that Ms. Bonelli and Ms. Ross threw the eggs. Ms. Simpkins claimed she didn't even know what Ms. Bonelli and Ms. Ross were doing. SRO Foster and Mr. DeWitt then brought in Ms. Bonelli and Ms. Ross, each of whom also admitted to the incident. Mr. DeWitt bluffed Ms. Bonelli about the presence of a surveillance camera, and Ms. Bonelli responded that he might have Ms. Ross and Ms. Simpkins on tape, but he couldn't have her because she never got out of the car. Ms. Bonelli also told Mr. DeWitt that she thought she had seen the nonexistent surveillance camera when she was walking around his house. Since she did not leave her car during the egging incident, this statement amounted to a confession that she had been on Mr. DeWitt's property on at least one other occasion. Mr. DeWitt testified that he and his wife had actually considered buying a surveillance camera, due to their suspicions that people were trespassing on their property and due to the fact that over a period of weeks their mailbox had been repeatedly vandalized. No evidence was presented to establish the culprits in the mailbox vandalism, which was a problem for the whole neighborhood, not only for the DeWitts. Mr. DeWitt stated that he did not actually tell the girls there was a camera on his property, but that he did not deny it when his hints led the girls to that conclusion. Ms. Bonelli's recollection was that Mr. DeWitt did affirmatively claim he had somebody on film, and it was this claim that caused her to admit her participation while contending she never got out of the car. Even if Ms. Bonelli's testimony on this point is credited, it still amounts to no more than Mr. DeWitt bluffing Ms. Bonelli to prod an admission from her. Petitioner contends that Mr. DeWitt's bluff is evidence of his dishonesty. This contention ignores the context of Mr. DeWitt's actions, which was an effort to get the truth from three girls who had already lied during their initial questioning. Petitioner's contention is rejected. SRO Foster recalled that his involvement in these incidents commenced with a conversation with Mr. DeWitt in the lunchroom, at some time prior to the egging. Mr. DeWitt told SRO Foster that he suspected someone was trespassing on his property, and asked SRO Foster for his advice. SRO Foster told Mr. DeWitt that because he lived fairly far out of town, he needed to be cautious. SRO Foster said that he might be able to call the Crime Suppression Unit if matters required surveillance, but for the time being Mr. DeWitt should take precautions until he could get information as to the identity of the trespassers. Mr. DeWitt testified that this conversation occurred in January 1998. He stated that for some time previous, he would walk into his yard and think he saw someone. At first he dismissed these suspicions, thinking that he was only seeing a deer, but eventually he became certain that he was seeing people in his yard. Mr. DeWitt testified that on about March 17, 1998, he had another conversation with SRO Foster. Ms. Bonelli had approached Mr. DeWitt at Twin Lakes Park on the previous day. Mr. DeWitt was becoming uncomfortable with the frequency of Ms. Bonelli's appearances and, to a lesser extent, of Ms. Simpkins' appearances in his daily travels. He wanted SRO Foster to know these concerns and look into the situation. SRO Foster testified that Mr. DeWitt later came to him and said he had information about students who may have been involved in the trespassing. SRO Foster stated that Mr. DeWitt gave him the names of Ms. Bonelli, Ms. Simpkins, and several others. SRO Foster did not recall asking Mr. DeWitt how he learned those names. SRO Foster testified that he called his supervisor and told him an administrator at Riverview was complaining about students trespassing on his property. SRO Foster requested an intervention officer to come in and investigate the matter. SRO Foster testified that it was standard procedure to call in another detective to work on cases involving teachers or staff members, so that there could be no allegations of favoritism or bias. Detective Carolyn Price was sent to lead the investigation. After Det. Price arrived, the detectives pulled the named students from their classes one at a time and talked to them about the incident. SRO Foster testified that at first they were strictly investigating a trespassing incident, because Mr. DeWitt had not told them about the theft of the skull or about any stalking or sexual allegations. SRO Foster recalled that they spoke to all the students named by Mr. DeWitt and to some others whose names came up during the course of the interviews. Det. Price recalled that her first meeting with Mr. DeWitt and SRO Foster was on April 29, 1998 at 10:30 a.m. They told her that Mr. DeWitt had a problem with people trespassing on his property in the late evening. The trespassing had occurred off and on for the last month. There had been some vandalism and there was at least one item missing from the yard. Mr. DeWitt had since discovered that students at Riverview were involved. Det. Price stated that SRO Foster had a list of students potentially involved, but she didn't know where he got the list. Det. Price could not recall whether Mr. DeWitt and SRO Foster told her on the first day that there was stalking or harassment involved in the case. She returned to Riverview several days in a row between April 29 and May 8, and said that it could have been on the second day that all the information came out. However, it was "very definitely" her understanding that she was investigating a crime involving stalking, though the primary complaint was trespassing, loitering, and prowling. Det. Price recalled Mr. DeWitt coming to her and telling her that one of the items missing from his property had turned up at school in front of his parking space. He also told her that a couple of the people involved in the trespassing had shown up at Twin Lakes Park and Sarasota Middle School when he had gone to jog, prior to the trespassing incident. SRO Foster also recalled Mr. DeWitt telling him of seeing the girls when he went to jog, but did not recall the precise timing of Mr. DeWitt's statements. As noted above, Mr. DeWitt testified that this conversation occurred in March 1998. Det. Price could not recall the order in which the students were interviewed, but recollected that they interviewed the girls on the first day and the boys the next day. She stated that all of the students were cooperative, and all admitted to trespassing on Mr. DeWitt's property. She stated that Mr. DeWitt and SRO Foster were present during the interviews. SRO Foster recalled that they interviewed Ms. Bonelli at least twice, first alone, then with her parents, and that Ms. Bonelli admitted to the trespassing when they called her parents. Det. Price testified that they called in her parents because the matter involved criminal charges and there was as yet no indication that Mr. DeWitt would forego prosecution. Det. Price recalled speaking only to Ms. Bonelli's mother, because her father was not available to come in on that day. SRO Foster recalled speaking to Ms. Bonelli's mother at one point, and to both parents later. Mr. DeWitt had a more specific recollection. He stated that Mrs. Bonelli arrived for the conference without her husband, and told Mr. DeWitt and the detectives that her husband was Italian, had a temper, and she would prefer that he not be involved. Mr. DeWitt spoke up and insisted that Mr. Bonelli be involved. Mrs. Bonelli telephoned her husband and he came to the school. While they waited for Mr. Bonelli to arrive, they went through the facts with Mrs. Bonelli. They later explained the situation to Mr. Bonelli. Det. Price did not recall discussing with Mrs. Bonelli the subject of Jennifer's crush on Mr. DeWitt. SRO Foster testified that Ms. Bonelli's parents were upset and apologetic to Mr. DeWitt. Linda Bonelli, the mother of Jennifer Bonelli, testified that she received a phone call from Mr. DeWitt's secretary, who said that something serious had happened and that she and her husband needed to come to the school and meet with Mr. DeWitt. Mrs. Bonelli testified that she told Ms. Landes that her husband was out walking and that she would have to come in alone. Mrs. Bonelli came in to the school. She testified that she met with her daughter, Mr. DeWitt, and SRO Foster. Mr. DeWitt started the meeting, stating that Jennifer had been on his property. Mr. DeWitt then said he thought it best to let Jennifer tell her mother the details. Mrs. Bonelli stated that Jennifer told her that she and some other girls had been on Mr. DeWitt's property, that one of the girls had taken an egg and smeared it or thrown it on the front door, and that one of the girls had stolen an animal skull from the yard. Mrs. Bonelli testified that nothing about a crush or any subject other than the trespassing incident came up at the meeting. Mr. DeWitt ended the discussion by stating that he was not sure how he was going to handle the whole matter. Mrs. Bonelli testified that Mr. DeWitt's statement raised a red flag in her mind, because she was uncomfortable leaving the matter unresolved. She told Mr. DeWitt and SRO Foster that she would like to have another meeting with them that afternoon, and that her husband would attend the second meeting. Mrs. Bonelli testified that she wanted a "male influence" in the room. The Bonellis came in for the second meeting, again with Jennifer, Mr. DeWitt, and SRO Foster. Mrs. Bonelli testified that this meeting covered the same subject matter as the earlier one, and that nothing about a crush or Twin Lakes Park was ever mentioned. Stanley Bonelli, Jennifer's father, confirmed that the trespassing incident was the only topic of discussion. The Bonellis assured Mr. DeWitt that Jennifer would never go onto his property again, and Mr. DeWitt stated that he would not press charges. Det. Price and SRO Foster recalled interviewing Ms. Simpkins, who admitted being on Mr. DeWitt's property. They also recalled meeting Ms. Simpkins' mother, Trudy Burkhardt, who was upset and crying, worried about the effect this would have on her daughter's ability to get a college scholarship. Det. Price specifically recalled making sure that Ms. Burkhardt knew about the crush, that it was the cause of her daughter's actions and that it was not reciprocated by Mr. DeWitt. SRO Foster testified that both Ms. Bonelli and Ms. Simpkins appeared remorseful, and expressed their remorse to Mr. DeWitt. During the interviews, the two girls also admitted their crushes on Mr. DeWitt. SRO Foster stated that the subject came up because they were trying to develop a motive for the girls' trespass on Mr. DeWitt's property. SRO Foster stated that Mr. DeWitt did not seem shocked or surprised when the girls told of their crushes. Det. Price's recollection was slightly different. She remembered Mr. DeWitt and SRO Foster telling her that they believed one or both of the girls was infatuated with Mr. DeWitt, and that was partly the reason they followed him to the park and trespassed on his property. Det. Price could not recall Mr. DeWitt giving her any corroboration about the park incidents. Mr. DeWitt told her that he felt the girls were infatuated with him. He also brought up something about conversations going back and forth on computers involving him, that someone had logged on pretending to be him and then carried on conversations with the girls. Det. Price concluded that the crush was the motive for the crime. She believed there was some jealously or rivalry between the girls. She asked both Ms. Bonelli and Ms. Simpkins if there was anything going on besides a strictly student/teacher relationship, and they both denied that there was. Both girls admitted they had told stories to other students implying that the crush was mutual, and said they had made up those stories. Det. Price stated that Mr. DeWitt repeatedly said there were never any reciprocal feelings on his part. Mr. DeWitt testified that Ms. Bonelli directly admitted to the detectives that her motive was anger because Mr. DeWitt had not reciprocated her crush on him. Mr. DeWitt ultimately waived prosecution of all the students involved in the trespassing incidents. He told SRO Foster that he believed it was a matter that should be dealt with internally at Riverview, not through the criminal process. Mr. DeWitt testified that the parents were emotional and extremely apologetic, promising that nothing like this would happen again, and that he believed the students had learned their lesson. Mr. DeWitt signed a waiver of prosecution on May 5, 1998. The detectives had each student sign trespass warnings, to the effect that they would be arrested if they were found on Mr. DeWitt's property again. Det. Price and SRO Foster warned Ms. Bonelli and Ms. Simpkins not to spread rumors about Mr. DeWitt or about the trespassing incident. Both girls acknowledged that they would not discuss these matters with fellow students. Ms. Bonelli recalled Det. Price giving her a lecture, saying that it was okay to like her teacher, but that she couldn't follow him to places where he goes to run. Ms. Bonelli stated that this lecture "came out of nowhere," because the subject of her crush on Mr. DeWitt had not come up in the interviews. As to the crush, Ms. Bonelli's testimony is not credible, because SRO Foster, Det. Price, and Mr. DeWitt all testified that she admitted to the crush. Ms. Bonelli testified that she tried to explain that she had not followed Mr. DeWitt. As noted above, the evidence established that she had been following Mr. DeWitt around town for a period of months. Ms. Bonelli testified that Mr. DeWitt, sitting outside Det. Price's field of vision, glared at her as if to say, "Don't you dare open your mouth." Ms. Bonelli testified that she said no more about her alleged liaisons with Mr. DeWitt. Both SRO Foster and Det. Price testified that Mr. DeWitt was present for most, if not all, of their student interviews. They saw nothing wrong with Mr. DeWitt's presence because, based on their knowledge of the facts, Mr. DeWitt was the victim of the crime. Further, Mr. Flynn testified that he had given Mr. DeWitt authority to deal with the situation. Neither Ms. Bonelli nor Ms. Simpkins gave the detectives any indication that Mr. DeWitt had done anything inappropriate, or that their crushes were somehow reciprocated by Mr. DeWitt. Both detectives stated that Mr. DeWitt did not participate actively in the interviews of the students and parents, and neither noticed any effort by Mr. DeWitt to intimidate any of the students. Det. Price testified that she could see Mr. DeWitt during the interviews, though she conceded her attention was mostly focused on the girls. On April 29, 1998, Ms. Simpkins wrote a note of apology to Mr. DeWitt. The note expresses her regret at the problems she caused to Mr. DeWitt and his family, especially to his young son by the theft of his animal skull. In her direct testimony, Ms. Simpkins stated that everything in the apology was true and sincere. In cross-examination, counsel for Mr. DeWitt asked her if she was being sincere when she wrote that Mr. DeWitt was a "really kind person." Ms. Simpkins replied that she was just "sucking up" to avoid prosecution. Ms. Bonelli also wrote a note of apology to Mr. DeWitt, expressing her regret for the harm she had caused to Mr. DeWitt and his family, especially his son. The note was attached to a model boat, a gift from Ms. Bonelli to Ryan DeWitt. Blair Johnson testified that at some point after the trespassing incident, he came forward to assistant principal Dan Cronin and told him about the vandalism on Mr. DeWitt's property, as well as the rumors Ms. Bonelli had been spreading about her alleged sexual encounters with Mr. DeWitt. Mr. Cronin told Mr. Johnson that the incident was already under investigation through the school administration, and he couldn't discuss the matter with Mr. Johnson. Mr. Cronin did not testify at the hearing; thus, it cannot be determined what actions, if any, Mr. Cronin took after his meeting with Johnson. Neither Kevin Flynn, the principal of Riverview, or Allen Wilson, the district human resources director, mentioned any involvement by Mr. Cronin in the investigation. The Spielman Note Karen Spielman was an art teacher at Riverview. Christine Ross was a student in her class. On March 25, 1998, Ms. Ross approached Ms. Spielman and told her she had a friend who was having a relationship with an assistant principal. The friend needed to talk to someone because she was upset. Ms. Spielman told Ms. Ross she was available to talk to her friend. Ms. Ross testified that she went to Ms. Spielman because she considered her a strong figure, and because she believed the issue of Ms. Bonelli's relationship with Mr. DeWitt should be investigated. Ms. Ross brought Ms. Bonelli to Ms. Spielman's classroom after school on the same day. Ms. Spielman had a long conversation with both girls. Ms. Bonelli told her the entire story of her alleged dealings with Mr. DeWitt, both at school and at Twin Lakes Park. Ms. Spielman testified that Ms. Bonelli told her that she was involved with the assistant principal and she was upset because he had "kind of dropped her" and she didn't know what to do. Ms. Bonelli told her of the sexual conversations she'd had with Mr. DeWitt. Ms. Bonelli told her there had been no sexual intercourse, but there had been "touching." Ms. Spielman assumed the touching was in an "inappropriate place." Ms. Bonelli told Ms. Spielman that she was afraid to tell her parents about Mr. DeWitt, because they would blame her and be very angry if they found out. Despite Ms. Bonelli's statements, Ms. Spielman believed that Ms. Bonelli's mother knew about her daughter's accusations against Mr. DeWitt. Ms. Spielman testified that she knew this story must be reported. She called central administration the next day and arranged a meeting with Allen Wilson, the director of human resources. The meeting took place on March 27, 1998. She told Mr. Wilson the story without revealing Ms. Bonelli's name. Mr. Wilson told her that nothing could be done unless the girl came forward and was willing to be identified. Ms. Spielman later spoke with Ms. Bonelli, who was unwilling to come forward. Ms. Spielman took no further action until April 28, 1998. This was the date on which Mr. DeWitt first confronted Kendra Simpkins and Jennifer Bonelli about the trespassing incident. Ms. Spielman testified that after school, a girl came into her classroom and asked if she had seen Ms. Bonelli. Ms. Spielman said she hadn't. The girl said she had seen Ms. Bonelli crying in Mr. DeWitt's office and was concerned. Ms. Bonelli had earlier told Ms. Spielman that a girl named Kendra Simpkins was also involved with Mr. DeWitt. Ms. Spielman asked this girl if her name was Kendra, and the girl said it was. Ms. Spielman didn't ask Ms. Simpkins why she sought her out for information about Ms. Bonelli, but the inference can be drawn that either Ms. Bonelli or Ms. Ross had told Ms. Simpkins about their meeting with Ms. Spielman. Ms. Spielman stated that Ms. Bonelli later came to her classroom and said "something had happened" and "things had changed." Ms. Bonelli did not tell her exactly what had happened, only that she and some other girls had done something to Mr. DeWitt. Ms. Spielman drafted a one-page memorandum to Mr. Wilson outlining the charges made by Ms. Bonelli during their first meeting on March 25. The memorandum is dated April 28, 1998, though she did not take it to Mr. Wilson's office until May 6, 1998. Ms. Spielman's only explanation for the gap between writing and delivering the memo was that "it took me a while to type this up." The memorandum references Mr. DeWitt, Ms. Bonelli, Ms. Simpkins, and Ms. Ross without naming them. It briefly restates Ms. Bonelli's story, but only vaguely, referencing "sexual conversation" and "touching." It states that Ms. Bonelli and Mr. DeWitt never had sexual intercourse. It does not mention specifics regarding the alleged masturbation, though Ms. Bonelli testified that she told Ms. Spielman about this during their first conversation. The memorandum calls for immediate action to be taken, and expresses Ms. Spielman's belief in the credibility of the girls' story. Ms. Spielman did not tell Mr. DeWitt about the memorandum, out of concern for Ms. Bonelli's confidentiality. Ms. Spielman also did not provide a copy of the memorandum to Mr. Flynn, the Riverview principal, even after Mr. Wilson asked her to do so. Ms. Spielman testified that it was "common knowledge" that Mr. Flynn was grooming Mr. DeWitt for the principal's job, that the two men were close, and thus sending the memorandum to Mr. Flynn might jeopardize Ms. Bonelli. Mr. DeWitt testified that as the conference with Ms. Bonelli, her parents, and the detectives was ending on April 29, Ms. Bonelli mentioned to him that she had told Ms. Spielman about her alleged relationship with him. Mr. DeWitt stated that he was unaware at the time that Ms. Spielman had written a memorandum. Ms. Bonelli claimed not to know how Mr. DeWitt found out about her conversations with Ms. Spielman. She speculated that perhaps Christine Ross told Mr. DeWitt. She claimed that Mr. DeWitt suddenly pulled her from class shortly after the meeting with the detectives and confronted her about Ms. Spielman. Ms. Ross denied telling Mr. DeWitt, stating that she learned from Ms. Bonelli that Mr. DeWitt knew about Ms. Spielman. Mr. DeWitt's version of how he learned about Ms. Spielman's involvement is credited. Mr. DeWitt testified that he told Ms. Bonelli they needed to go to Ms. Spielman's classroom immediately and tell her the truth. Ms. Bonelli apologetically agreed. Mr. DeWitt told SRO Foster that he was going to see Ms. Spielman, that Ms. Bonelli said she had told a teacher about the alleged affair and he was taking her down to get her to tell the truth. Mr. DeWitt and Ms. Bonelli then walked to Ms. Spielman's classroom. Mr. DeWitt told Ms. Spielman that Ms. Bonelli had something to tell her. He offered to leave, but Ms. Bonelli asked him to stay. Ms. Bonelli then told Ms. Spielman that she had made up the whole story, that it was a lie and she felt badly for doing this. Mr. DeWitt then said that Ms. Spielman had heard what she needed to hear, that he wanted to make sure she heard what Ms. Bonelli had to say. Mr. DeWitt then went back to his office and Ms. Bonelli went to her next class. According to Ms. Bonelli, when Mr. DeWitt confronted her about Ms. Spielman and asked how much she knew, Ms. Bonelli told him that Ms. Spielman knew "everything." Mr. DeWitt replied, "We need to change that. You need to fix it." Mr. DeWitt walked her to Ms. Spielman's classroom, telling her that "everything will be okay" if she would tell Ms. Spielman her story was false. Ms. Bonelli told Ms. Spielman that her story was false. Ms. Bonelli testified that after the meeting with Ms. Spielman, Mr. DeWitt told her, "Don't fuck up." Mr. DeWitt denied Ms. Bonelli's version of this episode. Ms. Spielman recalled meeting Mr. DeWitt alone first. Mr. DeWitt told her that Ms. Bonelli had disclosed to him her conversations with Ms. Spielman, and he wanted to clear up the matter. He told her about the girls coming to his house, the egging, and the theft of the cow skull. He mentioned videotaping the girls, though Ms. Spielman stated that she never saw any tape. He was concerned about what Ms. Spielman thought of him after hearing Ms. Bonelli's story. Mr. DeWitt did not recall meeting with Ms. Spielman prior to bringing Ms. Bonelli to her classroom. Ms. Spielman testified that less than an hour later, Mr. DeWitt returned to her classroom, this time with Ms. Bonelli. Mr. DeWitt said that Ms. Bonelli had something to say. Mr. DeWitt asked Ms. Bonelli if she wanted him to leave, but she declined the offer. Ms. Bonelli proceeded to tell Ms. Spielman that she had lied about everything. Ms. Spielman was upset. She asked Ms. Bonelli, "What about everybody else who knows about this?" Ms. Bonelli said there was no one else. Ms. Spielman knew this was not true, because she was aware that Ms. Ross knew and she suspected that Ms. Simpkins also knew. Nevertheless, Ms. Spielman said nothing to Mr. DeWitt. Ms. Spielman testified that she saw Mr. DeWitt a third time during her lunch period. Mr. DeWitt again told her that Ms. Bonelli's story was not true, and that Ms. Bonelli was stalking him around town. Mr. DeWitt did recall a follow-up meeting with Ms. Spielman. He testified that he went back to Ms. Spielman later that day, or possibly the next day, and talked to her about the situation. He testified that Ms. Spielman was a colleague and he wanted to make sure she understood that this matter had been looked into by SRO Foster and Det. Price, that the girls had admitted to walking around his house at night and egging it, and that they had been stalking him. He asked Ms. Spielman if Ms. Bonelli had told her these things. Ms. Spielman said that she had not. Det. Price testified that no one gave her any information about Ms. Spielman's involvement. She stated that Ms. Spielman's information would have been relevant to her investigation. She also stated that a teacher who had been told by Ms. Bonelli about an affair would have been obligated to file a report with the state. Ms. Spielman did not make such a report, aside from her memorandum to Mr. Wilson. Det. Price never saw the memorandum. Ms. Spielman testified that she did not meet with Mr. Wilson when she delivered her memorandum on May 6, 1998. She recalled speaking with Mr. Wilson by telephone afterwards, and telling him that Ms. Bonelli had come to her and said her story was a lie. Mr. Wilson testified that after he received the memorandum, he called Mr. Flynn and asked him to begin an investigation. Mr. Flynn told him that an investigation was already underway concerning Mr. DeWitt and two female students, and that Mr. Flynn would make sure that Mr. Wilson received a copy of the police report. Mr. Wilson testified that it is not School Board policy to allow the individual under suspicion to participate in the investigation, and he did not anticipate that Mr. DeWitt would be involved. Mr. Wilson followed up on the matter with Ms. Spielman, who reported that nothing new had occurred. Mr. Wilson later received a report stating that the girls indicated they had made up the story about sexual misconduct by Mr. DeWitt. Mr. Wilson took no further action on the allegations recited in Ms. Spielman's letter, believing the matter was over. Mr. DeWitt recalled having a meeting with Mr. Flynn and Mr. Wilson a few days after the detectives concluded their investigation. Mr. DeWitt stated that Mr. Wilson assured him that "we know who you are and what you are about," and told Mr. DeWitt that an educator has to expect this sort of thing. Mr. DeWitt stated that Mr. Wilson never told him about the Spielman memorandum. Mr. Wilson recalled meeting with Mr. DeWitt and Mr. Flynn, but did not recall the details. He did not deny telling Mr. DeWitt that this was the kind of thing an educator should expect. He testified that under the circumstances of the accusations and apparent exoneration, it was something he might have said to Mr. DeWitt. Ms. Spielman testified that a couple of weeks later, she saw Ms. Bonelli in the hallway at Riverview. At that time, Ms. Bonelli told her, "I lied about lying." In other words, Ms. Bonelli was now claiming that her original story was true. Ms. Spielman told Ms. Bonelli she had a feeling her story was true. Ms. Spielman testified that, "I just didn't feel like she could make up a story like that and I felt she was under pressure when she was telling me she lied when he was present." Reflecting on her meetings with Mr. DeWitt, Ms. Spielman testified that she began to believe that Mr. DeWitt may have pressured Ms. Bonelli into recanting her story. Despite her professed belief in Ms. Bonelli's recantation of her previous denial, Ms. Spielman took no further action on the matter. No further events relevant to this proceeding occurred at Riverview during the 1997-98 school year, or during the first half of the 1998-99 school year. Blair Johnson testified that during the summer of 1998, he bluntly confronted Ms. Bonelli about her actions. He told her he could not believe she had created these stories about Mr. DeWitt. He told her she was in over her head. Ms. Bonelli responded that he was right, and she did not know what she was going to do. Ms. Bonelli later sent Mr. Johnson an e-mail expressing regret at the "whole Dave mess" and saying that she had "gotten over my older guy phase." She also wrote: "I have never done anything more than kiss a guy and you know that. I wouldn't know the first thing to do." Spring 1999 Kendra Simpkins Ms. Simpkins testified that after Mr. DeWitt accepted her apology for the trespassing incident, everything seemed all right between them. She took summer classes in 1998, and had conversations with Mr. DeWitt, but stated that nothing out of the ordinary occurred. In Fall 1998, Ms. Simpkins was no longer an aide in the guidance office and so had little regular contact with Mr. DeWitt. Ms. Simpkins testified that during Fall 1998, Mr. DeWitt began showing interest in her again. She stated that her crush on him had dissipated after the trespassing incident, but that Mr. DeWitt’s renewed attention made her happy and reignited her crush. She stated that Mr. DeWitt would say, “I think something’s going to happen,” or “We should start something.” She assumed he meant they should start some sort of relationship, though he was never specific about the “something” he had in mind. Ms. Simpkins testified that at about 10 a.m. on December 22, 1998, during the school’s Christmas break, she went to Riverview to give Mr. DeWitt a Christmas card. Mr. DeWitt was wearing black shorts and a black striped shirt. They talked. Mr. DeWitt read the Christmas card, on which Ms. Simpkins had written, “I hope you get everything you want for Christmas.” Mr. DeWitt asked what her note was implying. She responded that it meant exactly what it said. Ms. Simpkins testified that this conversation led Mr. DeWitt to suggest they meet somewhere. She told him that she had to go buy Christmas presents, and he told her to come back to school when she was done. She did so, returning to the school at about 2:30 p.m. When she arrived, Mr. DeWitt said, “Let’s go somewhere.” Ms. Simpkins stated that Mr. DeWitt drove off in a Honda Accord and she followed him, heading east on Proctor Road away from Riverview. Ms. Simpkins stated that Mr. DeWitt pulled off the road a couple of times as they drove. He first stopped at the intersection of Swift Road and Constitution Boulevard, and asked her where they should go. She said she didn’t know. He told her to follow him. They drove a bit farther, then stopped at the corner of Swift and Clark Roads. Mr. DeWitt said that he wanted to stay in the vicinity so that Ms. Simpkins could make it to her waitress job at 4 p.m. She told him it didn’t matter. Mr. DeWitt said, “Okay, Twin Lakes.” Ms. Simpkins testified that she followed Mr. DeWitt to the parking lot at Twin Lakes Park. She stated there were no other cars anywhere near them in the lot. She saw no other people. Ms. Simpkins testified that she pulled her car up next to Mr. DeWitt’s, on the left, and rolled down her passenger side window. They talked about mundane matters for a few minutes. Mr. DeWitt then asked her to “talk dirty.” She refused. Ms. Simpkins stated that Mr. DeWitt then said, “What are you going to do while I’m doing this?” She testified that he was masturbating. She could not actually see into his car, but could tell what he was doing by his arm movements. There was no doubt in her mind about what he was doing. She said that he did this for approximately three minutes. Ms. Simpkins testified that she was "disgusted" and told Mr. DeWitt that she had to go to work. She stated that she was wearing jeans and a tank top, and that she changed into her work uniform there in the car. She testified that Mr. DeWitt could tell what she was doing but could not see anything. She put the work shirt on over her tank top, then removed the tank top. She stated that Mr. DeWitt continued to masturbate while she changed clothes. He asked her to “show me something.” She refused. Ms. Simpkins testified that Mr. DeWitt became more excited as she changed her clothes and started masturbating faster. He never told her whether he reached orgasm. She testified that the encounter ended when she had to go to work. She had to report for work at 4 p.m. Before she left, they talked about meeting again in the park. Mr. DeWitt told her to come by his office the next day. Ms. Simpkins testified that she went to his office the next day. Mr. DeWitt told her that he needed to go Christmas shopping after work. He told her to meet him at Twin Lakes Park at 6 p.m. Ms. Simpkins stated that she didn't go because her mother made her take her younger brothers to a movie. January 4, 1999, was the first day of school after the Christmas break. Ms. Simpkins testified that her next conversation with Mr. DeWitt occurred after classes on that day. She had not seen Mr. DeWitt during the school day, but saw him leaving school in his car. They pulled their cars to the side of the road. Mr. DeWitt told her to meet him at Twin Lakes Park at 5:30 p.m. She went to the park, arriving first. She parked in the lot, away from the other cars. She testified that “nothing was going on” in the park. Mr. DeWitt arrived and parked next to her. They sat in their respective cars and talked for about an hour. Ms. Simpkins stated that, without prompting, she got out of her car and into Mr. DeWitt’s Honda Accord at about 6:30 p.m. She testified, “I wanted something to happen.” She stated that she “had no clue” how to put her desire into action. As she sat in the passenger seat, Mr. DeWitt told her to “make the first move.” She took off her shirt, but left on her bra. Mr. DeWitt kissed her and touched her breasts. He then kissed her breasts and touched her vagina through her clothing. Ms. Simpkins testified that it was dark outside when this episode occurred. The windows of Mr. DeWitt’s car were rolled up. She said the windows were tinted, making it difficult to see into the car even in daylight. Ms. Simpkins stated that it was dark inside the car, and that she couldn’t actually see Mr. DeWitt masturbating. She could tell that he had pulled down the top of the sweatpants he was wearing, and she could make out his arm movements. She was not sure if he reached orgasm, but said she heard some grunts that indicated he might have. Ms. Simpkins stated that after they had been in his car together for about ten minutes, Mr. DeWitt began getting “really paranoid.” Cars were driving by, and he was worried about being caught. He told Ms. Simpkins to put on her shirt. Mr. DeWitt categorically denied all of Ms. Simpkins’ allegations concerning the events of December 22, 1998 and January 4, 1999. After learning of the allegations, Mr. DeWitt and his wife made efforts to put together a chronology of what they actually did on those dates. Mr. DeWitt testified that as an administrator, he was required to work during Christmas break. On December 22, 1998, he arrived at Riverview for work at 7:30 a.m. He testified that during the break, he would not have worn coat and tie, but did wear slacks and a comfortable shirt to work. He never wore shorts to work. He stated that he did own a black-striped golf shirt, but would not have worn it to work because it was “not a real dressy shirt.” Karen DeWitt testified that her husband always dressed "professionally," even during the Christmas break. She never saw him go to school in shorts. Mr. DeWitt's secretary, Chris Landes, testified that she never saw him dressed in shorts at work, even during non-office hours. Mr. DeWitt testified that he worked with Ms. Landes and caught up on phone calls and paperwork that morning. He was supposed to work until after 3 p.m., but left school at about 11 a.m. to do some Christmas shopping with his wife. Karen DeWitt testified that David called her from his office to set up where and when they were going to meet. One key to the DeWitts' recreation of the events of that day was their son's recent hospitalization for an asthma attack, from December 17 through December 19. The DeWitts were instructed to monitor their son closely, and to get him out into the fresh air and let him walk about. Both David and Karen DeWitt testified that their main motive in going shopping on December 22 was to get their son out of the house and let him move about outdoors. Mr. DeWitt testified that he did not see Kendra Simpkins that morning or at any other time during the Christmas recess. He did receive a Christmas card from her that year, but could not recall when it came. He found it on his conference table with several other cards and gifts from students. He did not keep the card, but recalled that Ms. Simpkins did write on it something to the effect of “hope you get everything you want for Christmas.” He did not recall having a conversation with Ms. Simpkins about the card. Mr. DeWitt met his wife and children at University Shopping Center, an outlet mall, at about 11:30 a.m. They shopped there until about 1 p.m. Mr. DeWitt produced a credit card receipt indicating that a purchase was made at a store in the mall at 11:50 a.m. The receipt was signed by Karen DeWitt, but both DeWitts testified that their entire family was present. The DeWitts left the mall and went to Chick-Fil-A for lunch. They frequented this Chick-Fil-A because it has a playground. Mr. DeWitt testified that the restaurant was crowded. It took them some time to get their food, then they allowed their children to play. They stayed there for a little more than an hour. The DeWitts next drove to Southgate Mall, at about 2:30 p.m. They shopped there until about 4 p.m., though they could not produce receipts for any purchases. Karen DeWitt testified that they bought only ice cream cones at Southgate Mall, and paid cash for them. David DeWitt was sure of their time of departure, because he recalled wanting to get home before rush hour traffic. They drove home, arriving at about 4:45 p.m., and then went through their normal evening routine of dinner, baths, and putting the children to bed. The DeWitts also reconstructed the events of January 4, 1999. This was the first day of school after the Christmas break. Mr. DeWitt stated that he was at Riverview from 7 a.m. until 3:15 p.m. He did not talk to Kendra Simpkins that day. Karen DeWitt confirmed that David went to work at 7 a.m., because she was still at home when he left. She left with the children shortly thereafter. At 3:15 p.m., Mr. DeWitt drove to Ashton Elementary School, where his wife works and his son Ryan attends school. Karen DeWitt usually brings Ryan home with her, but on this day she was holding a computer training session for teachers after school. Thus, David DeWitt took Ryan home on January 4. This was the date of the national championship football game between Tennessee and Florida State. Mr. DeWitt and his son were going to buy a pizza and "make a big deal" out of watching the game together. Mr. DeWitt testified that it took about a half hour to drive from Riverview to Ashton Elementary, park, walk in and get Ryan, then touch base with Karen regarding their evening plans. They decided that Karen would pick up a pizza from Papa Johns on her way home. Mr. DeWitt produced a canceled check, to the order of Papa Johns and signed by his wife, dated January 4, 1999. After picking up Ryan, Mr. DeWitt drove to Concordia Lutheran School to pick up his daughter from her preschool. He signed her out at 4 p.m. He drove home with the children. Karen DeWitt testified that she did not know who would have had her children from 4 to 6 p.m. if they were not with David, because the DeWitts did not use babysitters. Karen came home with the pizza and they ate dinner at about 6 p.m. The children were prepared for bed prior to the 8 p.m. pregame show. Mr. DeWitt testified that he and Ryan watched the first half of the game, then he put Ryan to bed. Mr. DeWitt never left his house after coming home with the children. The Investigation Events began to reach a head in early February 1999. The witnesses were unclear as to the precise chronology of events leading to the investigation, because everything appeared to be happening at once. To allow for a rational narrative, these events will be treated in the order that Mr. DeWitt became aware of them. Mr. DeWitt's version of events began with hearing a rumor that someone in Ms. Wallace's English class had blurted out something to the effect of, "What's up with Jennifer Bonelli and Mr. DeWitt?" Mr. DeWitt recalled that he heard about this incident either from a student or from another assistant principal. Mr. DeWitt immediately alerted SRO Foster, who notified Det. Price to come in and assist with student interviews. SRO Foster testified that it was typical for SROs to get involved in squelching rumors, but that an intervention officer such as Det. Price also had to be called in when the rumor dealt with a faculty member. Det. Price's report indicates that SRO Foster contacted her on February 8, 1999, and that she came to the school the next day. SRO Foster testified that they interviewed a number of students, and determined that a student named Dominique McAnn made the statement in the English class. The detectives told the students that the incident at Mr. DeWitt's house had been investigated, the girls had been spoken to, and it was inappropriate to spread rumors. Dominique McAnn told them she had heard rumors about Mr. DeWitt and Ms. Bonelli, and the detectives told her it was something that had already been dealt with. Mr. DeWitt was present for these interviews. SRO Foster testified that he and Det. Price thought they were doing a "clean-up" from the earlier investigation. Ms. Bonelli testified that she confronted Dominique McAnn in the hallway after class and asked her why she spoke in the class. Ms. McAnn answered that she had heard rumors about Ms. Bonelli and Mr. DeWitt. Ms. Bonelli testified that she then proceeded to tell Ms. McAnn what "really happened" between Mr. DeWitt and her, the "dirty talk" and masturbation. Dominique McAnn testified that she did not know Jennifer Bonelli until the hallway confrontation. She knew Ms. Bonelli's face because Ms. Bonelli would come into the restaurant where she worked and call her by name, though she didn't know Ms. Bonelli's name and didn't know how Ms. Bonelli knew hers. Ms. McAnn did not put the name with the face until Ms. Bonelli confronted her about the statements in English class. Ms. McAnn testified that one of Ms. Bonelli's friends, Beverly Pitchford, was talking in the class about Ms. Bonelli and her accusations against Mr. DeWitt. This irritated Ms. McAnn, because the class was supposed to be reading quietly. Ms. McAnn could not recall the precise words of her response, but remembered it was "something mean" about Ms. Bonelli, to the effect that Ms. Bonelli was "weird" or "crazy" and should just leave Mr. DeWitt alone. Her statement was loud enough that other students could hear it. Ms. McAnn testified that she had previously heard rumors about a girl named Jennifer Bonelli who claimed that she and Mr. DeWitt had some sort of sexual relations. She stated that this rumor was widespread among her circle of 40 or so friends, but that they did not believe it. Ms. McAnn testified that Ms. Bonelli came up to her in the hallway during lunch, crying about what Ms. McAnn had said. Ms. McAnn at first didn't know who she was. Ms. Bonelli proceeded to tell her the story of her relationship with Mr. DeWitt. Ms. Bonelli told Ms. McAnn that it started when she was a student assistant in the guidance office. Ms. Bonelli said something about going jogging with Mr. DeWitt at Twin Lakes Park. Ms. Bonelli told Ms. McAnn that she and Mr. DeWitt communicated via "IM," or Instant Messenger, an AOL feature allowing real-time conversations between users who know each others' screen names. Ms. Bonelli was not positive that the person she spoke to was Mr. DeWitt, but she believed it was him. Ms. Bonelli told Ms. McAnn that she had "provocative" conversations with this person, including "cybersex." Ms. McAnn testified that Ms. Bonelli appeared to believe that she was having cybersex with Mr. DeWitt. Ms. McAnn's testimony contrasts with Ms. Bonelli's own testimony, in which she claimed that Mr. DeWitt brought up the subject of "cybersex" in a conversation, but did not claim that they actually engaged in "cybersex." It is found that no "cybersex" actually occurred between Mr. DeWitt and Ms. Bonelli, but that Ms. Bonelli told varying untrue stories on the subject. Ms. Bonelli suspected Ms. McAnn and her best friend of having sexual relations with Mr. DeWitt, because they often talked to him and appeared to be on good terms with him. Ms. McAnn testified that nothing sexual ever occurred between Mr. DeWitt and her or her friend. This is yet another instance of Ms. Bonelli's accusing or suspecting any girl who talked with Mr. DeWitt of having some sexual relationship with him. Ms. McAnn thought Ms. Bonelli was "weird" and "obsessive" about Mr. DeWitt, because "when I talked to her, what I got from her was she was very much in love with Mr. DeWitt.” Ms. Bonelli told Ms. McAnn about the trespassing incident, and told her that Mr. DeWitt stopped having anything to do with her because he was paying attention to Kendra Simpkins. Ms. Bonelli told Ms. McAnn that she had tried to get close to Ms. Simpkins so that Ms. Simpkins would tell her what she was doing with Mr. DeWitt, but that Ms. Simpkins would not tell her. Other than the cybersex, Ms. Bonelli mentioned to Ms. McAnn only one other incident of a sexual nature involving Mr. DeWitt. Ms. Bonelli said that Mr. DeWitt wanted her to watch him masturbate. Mr. DeWitt had said something to the effect that he wanted her to perform sexual acts on him, and she didn't know how, so he was going to show her. Ms. Bonelli didn't specify the sexual acts Mr. DeWitt had in mind, but made gestures that left Ms. McAnn with the impression she was talking about masturbation or oral sex. Ms. McAnn wasn't sure whether Ms. Bonelli was claiming to have seen Mr. DeWitt masturbate, or whether Mr. DeWitt had only talked about masturbating. SRO Foster testified that among the students interviewed were Ms. Bonelli and Ms. Simpkins, both of whom denied any involvement in spreading rumors. SRO Foster indicated that he never believed they were involved in this incident, but called them in to tell them about the matter so they would not be caught off-guard by hearing the rumor in the hallways. During these discussions, Ms. Bonelli denied to the detectives that anything of a sexual nature had ever occurred between Mr. DeWitt and her. Ms. Bonelli testified that Mr. DeWitt and SRO Foster were "really rude" to her during the questioning, not giving her an opportunity to explain. She stated that Mr. DeWitt told her he was mad at her for spreading these rumors, and asked her why she did it. Ms. Bonelli told him that Dominique McAnn had done it. Ms. Bonelli said she was as upset as Mr. DeWitt that the subject had come up again. Ms. Bonelli testified that she did not recall telling the detectives that the rumors were untrue. Mr. DeWitt, SRO Foster and Det. Price also went to Ms. Wallace's English class. Mr. DeWitt intended to address the class about Ms. McAnn's statement, but Ms. Wallace talked them out of it. Ms. Wallace told them that only a small part of the class heard what was said, and that she herself learned about it only because a student told her later. Mr. DeWitt took her advice, deciding that addressing the class might blow the matter out of proportion. Mr. DeWitt recalled that they also interviewed a student named Jody Schinzel, whose mother was a clinic aide at Riverview. Mr. DeWitt stated that Jody Schinzel was very defensive, and did not want to come in unless her mother was also present. The Schinzels came in and offered no information. They were argumentative with Det. Foster. Mr. DeWitt testified that Mrs. Schinzel had a tendency to allow students who weren't sick to "hang out" in the clinic. Mr. DeWitt stated that if there were 30 kids in the clinic, 28 of them were not sick and were there watching TV or videos, hanging out, period after period, day after day. During the 1997-98 school year, Mr. DeWitt was the clinic aide supervisor, and was sent by Mr. Flynn to talk with Mrs. Schinzel about why these students were hanging around all the time. Mr. DeWitt testified that it "wasn't pleasant," and that a single conversation was not sufficient to settle the matter. Mrs. Schinzel was not receptive to any discussion about the kids hanging out. Mr. DeWitt threatened to place something in writing in her employment file, and she said she would complain to the union. Mr. DeWitt stated that it was an awkward situation and that their relationship was strained thereafter. At about the same time as the Dominique McAnn incident, Jennifer Bonelli and her friend, Mike Caffelle, spread a false rumor around the school, to the effect that Mr. DeWitt and Kendra Simpkins had been seen going into the faculty restroom together and did not emerge for several minutes. Mr. DeWitt and Ms. Simpkins told the same story about the alleged bathroom incident. As Mr. DeWitt walked down the hall toward his office after lunch, Ms. Simpkins approached him to complain about the fact that Ms. Bonelli had thrown pennies at her car and called her "whore" when they passed in the hallways. As they approached his office, they saw Ms. Bonelli standing there. Mr. DeWitt did not want a confrontation, so he told Ms. Simpkins to ignore Ms. Bonelli and continue telling him what happened. They walked past the office and up the stairs toward the media center and faculty bathroom. By the time they reached the top of the stairs, Ms. Simpkins had finished her story. Mr. DeWitt told her to avoid Ms. Bonelli and let SRO Foster know if the harassment continued. Ms. Simpkins walked out of the media center and Mr. DeWitt went into the bathroom. Mr. DeWitt emerged a few minutes later and noticed Mike Caffelle sitting at the computer lab. Mr. Caffelle looked at Mr. DeWitt, who nodded in acknowledgement. Mr. Caffelle had been sent up the back stairs by Ms. Bonelli to observe Mr. DeWitt and Ms. Simpkins after they passed Mr. DeWitt's office. After Mr. DeWitt emerged from the bathroom, Mr. Caffelle reported back to Ms. Bonelli that Mr. DeWitt and Ms. Simpkins had gone into the bathroom together. They proceeded to spread this story around the school. Shortly thereafter, SRO Foster showed Mr. DeWitt some notes he'd gotten from a student concerning a rumor that Mr. DeWitt and Ms. Simpkins had gone into the bathroom together. They determined that Mr. Caffelle was the main source of the rumor and called him in to talk about it. Mr. Caffelle admitted starting the rumor with Ms. Bonelli, and admitted that he had not seen Mr. DeWitt and Ms. Simpkins enter the bathroom together. Ms. Bonelli testified that a few days before the detectives began their investigation of the bathroom rumor, she was having discussions with Dominique McAnn, Jody Schinzel, and Mrs. Schinzel about Mr. DeWitt. The evidence establishes that these conversations occurred on or before February 3, 1999. The investigation of the rumors commenced on February 9, 1999. The record is unclear as to how many days elapsed between the episode in the English class and Mr. DeWitt's becoming aware of it and alerting the detectives. The evidence leads to the inference that it must have been several days, because Ms. Bonelli was certain that her confrontation with Ms. McAnn just after the English class episode preceded these discussions about Mr. DeWitt. Mrs. Schinzel told Ms. Bonelli that she was not the only student with whom Mr. DeWitt had had sexual relationships, that Mr. DeWitt had done this "a lot." Mrs. Schinzel named Melissa McBride as a student who'd had a sexual relationship with Mr. DeWitt. Ms. Bonelli testified that she believed Mrs. Schinzel, who did not testify at the hearing. Melissa McBride testified at the hearing. She graduated from Riverview in 1997, and had worked in the attendance office near Mr. DeWitt's office during her senior year. She testified that Mr. DeWitt hugged her in a way that made her feel uncomfortable, but that she didn't feel that he was trying to provoke a sexual response. She testified that Mr. DeWitt denied having a wife and children, even when she told him that she knew better. She felt that his "body language" indicated he was interested in a relationship with her, but that Mr. DeWitt did nothing overt to pursue such a relationship. She did not have a sexual relationship with David DeWitt. The Schinzels urged Ms. Bonelli to make a written statement against Mr. DeWitt. They told her that other girls were writing statements, and it would "help out" if she also wrote one. They assured her that her name would "just be caught up in the jumble." They told her that someone else could write the statement for her. Jody Schinzel and Dominique McAnn urged Ms. Bonelli to go see teacher Mary Kenne. She went, along with Jody Schinzel. Ms. Kenne sat down with the girls and had Ms. Bonelli tell her story. Ms. Bonelli testified that Ms. Kenne then asked her to write a statement, to go along with the statements that other people were writing. Ms. Kenne would not tell her who the other people were, and assured her that her own statement would be held in confidence. Ms. Bonelli dictated a statement, and Jody Schinzel wrote it down. Ms. Kenne testified that Jody Schinzel had come to see her on February 3, and asked to speak privately. Ms. Schinzel showed Ms. Kenne handwritten notes passed between her and Ms. Bonelli. The notes briefly recapitulated Ms. Bonelli's accusations: Mr. DeWitt's telling her about his "problem," their jogging together, and the sexual conversations. The note stated: "Basically we never did anything physical. He always wanted me to watch him jerk off and I did once. But I wanted to get physical . . . never happened. Then along came Kendra. " [Emphasis in original] Ms. Schinzel told Ms. Kenne that Ms. Bonelli had been involved with Mr. DeWitt and that another girl at Riverview was involved with him. Ms. Kenne testified that she read half the notes and then told Ms. Schinzel that if these things were true, she needed to hear them directly from Ms. Bonelli, that Ms. Bonelli must be willing to come forward and state that these things happened. Ms. Kenne told Ms. Schinzel that she was required by law to take action on these accusations. Ms. Kenne testified that Ms. Schinzel came back on February 4 and told her that Ms. Bonelli would come to see her the next day. Ms. Schinzel brought Ms. Bonelli with her to Ms. Kenne's classroom on February 5. Ms. Bonelli told Ms. Kenne her allegations against Mr. DeWitt. Ms. Kenne testified that Ms. Bonelli told of events that had happened the previous year, such as trespassing at Mr. DeWitt's house, and of their relationship at Twin Lakes Park and around school. Ms. Bonelli told Ms. Kenne that in 1998 she had gone to Karen Spielman and told her the allegations, but that she had later recanted them. Ms. Kenne told Ms. Bonelli that if she wanted to take the matter further, she would have to write down her allegations in a signed statement. Ms. Kenne denied forcing or intimidating Ms. Bonelli into writing the statement, and made no mention of having told Ms. Bonelli that other girls were also writing statements. Ms. Bonelli testified that Ms. Kenne "encouraged" her to write the statement, but did not "pressure" her to do so. When he interviewed Ms. Bonelli a few days later, Principal Flynn made a notation that Ms. Bonelli told him that she "felt pressure from the clinic lady and Ms. Kenne to write it down." Ms. Kenne left Ms. Bonelli and Ms. Schinzel alone to produce the statement. Ms. Bonelli didn't have time to finish it before her next class, so she took it with her. She finally gave it to Ms. Kenne during sixth period. Ms. Kenne testified that she glanced at it quickly, made a copy, and cut Ms. Bonelli's name out of the copy. Ms. Kenne testified that just after school on February 5, Ms. Bonelli returned to her room with Christine Ross, who told Ms. Kenne that she witnessed one of the incidents at Twin Lakes Park. Ms. Kenne testified that Ms. Ross told her that she was in the back of Ms. Bonelli's car, covered in blankets, while Ms. Bonelli had a conversation with Mr. DeWitt. Ms. Ross said she was aware of other things that had happened between Ms. Bonelli and Mr. DeWitt. Ms. Kenne told Ms. Ross that if she wanted the matter taken further, she would have to make a written statement. Ms. Ross wrote a statement and gave it to Ms. Kenne. Ms. Ross' written statement consisted of allegations that she had witnessed Mr. DeWitt talking to Ms. Bonelli at football games and at Twin Lakes Park. She had also seen Mr. DeWitt having conversations with other students. She claimed to have confronted Mr. DeWitt about his alleged actions, and claimed that he would neither confirm nor deny those actions. Ms. Ross' written statement makes no mention of the sexual conversation she claimed in her testimony to have heard between Mr. DeWitt and Ms. Bonelli, though Ms. Kenne recalled that Ms. Ross told her about it. Ms. Kenne testified that she took the statements to Velton Hodges at the Sarasota Classified Teachers Association, the local teachers' union. Mr. Hodges made copies and took them to Mr. Witt at the Superintendent's office. Ms. Kenne stated that on Monday morning, February 8, Mr. DeWitt came to her room at about 10:45 a.m. and asked to speak with her. Mr. DeWitt said he had heard she was conducting an investigation and taking statements from girls. Ms. Kenne told Mr. DeWitt that she was not conducting an investigation, that some girls had come to her, she had them write down what they had to say, and she turned it in. Ms. Kenne testified that Mr. DeWitt asked her for the statements. She did not have the statements, having given her copies to a friend for safe keeping. Mr. DeWitt asked her why she hadn't come to him about the situation. Ms. Kenne responded that she was not comfortable doing that, because Mr. DeWitt was involved in the allegations, and because she had a bad experience in the past with a similar, unrelated situation. Ms. Kenne told Mr. DeWitt what the girls had said about him, but she refused to identify the girls because they had come to her in confidence. Mr. DeWitt told her that he already knew it was Ms. Bonelli and Ms. Simpkins. Mr. DeWitt's recollection of this meeting was similar to Ms. Kenne's, except that he could not recall whether he mentioned Ms. Bonelli and Ms. Simpkins by name. Ms. Kenne stated that at about 12:30 p.m. on the same day, SRO Foster called and asked her to meet with him and Mr. DeWitt in Mr. Flynn's office. She went to Mr. Flynn's office, and they discussed the allegations. Ms. Kenne stated that much of the discussion involved why she had not come to Mr. DeWitt or SRO Foster before turning the girls' statements in to the administration. Ms. Bonelli testified that, during the course of her interview with Mr. DeWitt, SRO Foster and Det. Price about the McAnn incident and bathroom rumors, Mr. DeWitt brought up the subject of her written statement to Ms. Kenne. Mr. DeWitt recalled that he learned of the statements from Dominique McAnn. Ms. Bonelli told Mr. DeWitt, SRO Foster and Det. Price that her written statement was not true. SRO Foster testified that Ms. Bonelli told them that Jody Schinzel had pressured her to make the statement, and that the events described therein never happened. Det. Price recalled that Ms. Bonelli did not tell them exactly what she had written, but led them to believe it was not very damaging to Mr. DeWitt. Ms. Bonelli told them that she thought Christine Ross had embellished or fabricated some of her statement, and implied that it was Ms. Ross' statement that was the source of Ms. Kenne's concerns. Ms. Bonelli told Det. Price that Ms. Ross and her mother hated Mr. DeWitt because he had refused to allow Ms. Ross out of class early to go to work. Mr. DeWitt recalled the incident with Ms. Ross and her mother, though he was obviously not privy to their reaction to his denial of early release for Ms. Ross. Ms. Bonelli stated that she was later alone with Mr. DeWitt, and he told her to get the statement back from Ms. Kenne. Ms. Bonelli testified that she tried to get the statement back, but that Ms. Kenne did not have it. Linda Bonelli testified that Mr. DeWitt called her at home on the evening of February 8, at about 5 p.m. Mr. DeWitt said there was a matter at school, and he wondered if she knew anything about it. Mrs. Bonelli stated that Mr. DeWitt did not specify the "matter," but that she understood his reference because Jennifer had told her about it. Mr. DeWitt asked her to tell him what she knew and when she learned about it. Mrs. Bonelli told Mr. DeWitt that Jennifer had come home from school one day last week and told her that a girl named Dominique had made a comment about Jennifer and Mr. DeWitt in Ms. Wallace's English class. Jennifer's friends had alerted her to the comment, and Jennifer took Dominique aside and told her to keep her nose out of her business. Mrs. Bonelli testified that she asked Jennifer if that took care of the matter, and Jennifer answered that she thought it did. Mrs. Bonelli testified that Jennifer did not tell her the subject matter of Dominique's comment, only that there was a comment and it displeased her. Mrs. Bonelli testified that she assumed the comment dealt with the trespassing incident, and that she had no clue about any romantic relationship between her daughter and Mr. DeWitt. Mrs. Bonelli's profession of ignorance is not credible. As will become clear in the findings below, the essence of her testimony was that she believed Jennifer was telling the truth, though she had no idea what Jennifer was telling the truth about and never made any inquiry as to the subject matter, even after the police became involved a second time and even though she believed that her daughter was afraid of and intimidated by Mr. DeWitt. Based upon the entirety of her testimony and that of her husband and daughter, it is far more reasonable to find that Mrs. Bonelli was aware of Jennifer's situation at least as early as the trespassing incident, and was attempting to keep Mr. Bonelli from learning the details. It would be speculative to determine whether Mrs. Bonelli failed to come forward because she did not think Jennifer would be believed, as she intimated in her testimony, or because she herself did not believe Jennifer, or merely because she feared her husband's reaction. Returning to her telephone conversation with Mr. DeWitt, Mrs. Bonelli testified that she went on to tell him that a couple of days after Jennifer told her about the English class incident, Jennifer came home and said Ms. Kenne had approached her. Ms. Kenne told Jennifer that she had heard things from Ms. Wallace about Jennifer and Mr. DeWitt, and wanted her to make a statement. Ms. Kenne told Jennifer that other girls had complaints about Mr. DeWitt, and that Jennifer should make a statement about what Mr. DeWitt was doing. Again, Mrs. Bonelli stated that Jennifer did not tell her the subject matter of the things she knew, and that she did not ask. Mrs. Bonelli testified that she told Jennifer not to make a statement unless she was absolutely sure of the facts, because someone's life could be ruined. Mrs. Bonelli testified that at this point in the telephone conversation, Mr. DeWitt wanted to speak to Jennifer and her together on the phone. Mrs. Bonelli replied that Jennifer was out running and, besides, the family had just moved, the phones weren't set up, and it would be tough to get everyone on one line. Mr. DeWitt told her that he would appreciate it if she would get the phones hooked up so that he could call back later and get the matter straightened out. Mrs. Bonelli testified that she told Mr. DeWitt she would like to get it straightened out, too, because she had not told her husband about any of this. Mr. Bonelli had suffered a heart attack in October 1997 and was supposed to avoid stress, and Mrs. Bonelli kept this matter from him "because I didn't think anything was going to go further with this." Mrs. Bonelli set up the phones, and Mr. DeWitt called back. Mrs. Bonelli and Jennifer got on the phone with Mr. DeWitt. Mr. Bonelli was in the room, and shouted to his wife that she was to tell Mr. DeWitt to have no further contact with Jennifer; if Mr. DeWitt wanted to speak to Jennifer, he was to call Mr. Bonelli and set up a meeting in his office. Mrs. Bonelli testified that she relayed this statement to Mr. DeWitt, who said, "Okay." Mrs. Bonelli testified that Mr. DeWitt then said, "So, Jen, you can get back that statement tomorrow and all this will go away." Jennifer agreed, and that was the end of the conversation. Mrs. Bonelli testified that she did not ask Jennifer what this matter was all about. She stated that she was curious, but felt that Jennifer had been intimidated by and was scared of Mr. DeWitt. Mr. Bonelli testified that he did not question Jennifer about the matter because he figured it was just some girls getting together and making allegations, and he didn’t put too much credence in it. He thought it was just girls being girls, and didn't know that Mr. DeWitt was involved in it. He thought Mr. DeWitt was on the phone in his role as an administrator, not as a participant in the matter. He testified that his statements about Jennifer not speaking to anyone without his knowledge was a general comment, not directed at Mr. DeWitt in particular. Mr. Bonelli's testimony is credible. Mr. DeWitt testified that he called the Bonelli residence and asked Mrs. Bonelli to get her husband and Jennifer on the phone. Mrs. Bonelli made the excuse about the telephones still being in boxes. Mr. DeWitt told her that he wanted the phones hooked up and Mr. Bonelli on the phone when he called back. Mr. DeWitt called the second time, and Jennifer and her mother were on the phone. Mr. DeWitt again asked Mrs. Bonelli to put her husband on the phone. Mr. DeWitt testified that Mr. Bonelli seemed to be "a player" in the earlier trespassing situation and a decision-maker in the house, so he wanted to be sure that Mr. Bonelli heard what took place at school that day with his daughter. However, Mrs. Bonelli would not put her husband on the phone. Mr. DeWitt's version of this exchange is credited. Mr. DeWitt went over the matter of the rumor, and told Mrs. Bonelli that Jennifer did not start the rumor and had nothing to do with it. He could hear Mr. Bonelli speaking in the background, but could not understand what he was saying. Mr. DeWitt was certain that he heard Mr. Bonelli say to his wife that she should ask Mr. DeWitt to "make sure no one contacts my daughter." Ms. Kenne testified that on the next morning, February 9, Ms. Bonelli came in and asked her to return her statement. Ms. Bonelli told her she had changed her mind about testifying and wanted nothing more to do with the matter. Ms. Bonelli did not deny the truth of her written statement, but told Ms. Kenne that she did not want to hurt Mr. DeWitt. Ms. Kenne told Ms. Bonelli that she had already turned in the statement and given her own copy of the statement to a friend for safe-keeping, so she could not return it. At about 8:30 a.m., Det. Price, SRO Foster and Mr. DeWitt came to Ms. Kenne's classroom and asked for the statements. Ms. Kenne told them that she had been unable to get them from her friend, and that she would bring them in the next morning. Ms. Kenne testified that Det. Price became belligerent, and told her that she could be arrested for interfering with a felony investigation and obstructing justice if she didn't produce the statements. Ms. Kenne testified that Mr. DeWitt was yelling at her, and that all three were threatening her. Det. Price testified that Ms. Kenne was very agitated. Ms. Kenne told them that she didn't have the statements, that she had sealed them in an envelope and given them to a friend to hold. Det. Price told her that she needed the statements as part of a criminal investigation and she was to turn them in to her the next day. Det. Price stated that Ms. Kenne started to argue and say she didn't know if she could do that. Ms. Kenne started crying and accusing them of yelling at her. Det. Price testified that she was prepared to arrest Ms. Kenne for obstruction if she did not turn in the statements. Ms. Kenne testified that she gave the statements to Det. Price on Wednesday morning, February 10, 1999. Det. Price brought a security officer with her to Ms. Kenne's classroom, telling Ms. Kenne that she did not want to be accused of intimidating her again. Ms. Kenne had no further conversations with Det. Price, SRO Foster, or Mr. DeWitt about the statements. SRO Foster testified that while he and Mr. DeWitt were interviewing Dominique McAnn on February 9, he received a phone call from Todd Hunger, an assistant state attorney. Mr. Hunger told SRO Foster that he had been approached at the YMCA by Jennifer Bonelli the previous weekend. Ms. Bonelli told Mr. Hunger that she was having a relationship with an unnamed Riverview administrator, and that SRO Foster was helping Mr. DeWitt to cover it up. Foster testified that this, on top of everything else he was investigating, was "unbelievable." While some of SRO Foster's actions during the investigation could be second guessed, particularly his allowing Mr. DeWitt to remain personally involved for as long as he did, there was no credible evidence that SRO Foster was engaged in a cover-up or that he performed his duties less than competently and conscientiously. Stanley Bonelli testified that his daughter approached the assistant state attorney for advice on how to get her statement back from Ms. Kenne. Jennifer was upset, and didn't understand why she couldn't get the statement back, so she approached this attorney and asked him about the matter. SRO Foster and Mr. DeWitt went to Principal Flynn's office and briefed him on the situation. Mr. Flynn told Mr. DeWitt to have no further contact with the students during this investigation. SRO Foster contacted his superiors, who decided to pull Det. Price and SRO Foster from the case and assign two more experienced detectives, Chris Iorio and Robert Bang, to the case. Det. Iorio and Det. Bang were generally assigned to investigate crimes against juveniles. Det. Iorio was the lead detective on the case. Det. Iorio's first recollection was getting a phone call from SRO Foster that there were rumors going around Riverview and an investigation was beginning. Shortly thereafter, SRO Foster and Det. Price met with Det. Iorio's supervisors, who determined that SRO Foster and Det. Price's relationship with the school was such that they should back away from the case. Det. Iorio was informed of Ms. Bonelli's accusations and assigned to investigate. Det. Price had already called the Bonelli home and spoken to Linda Bonelli. Det. Price arranged for the Bonellis to come down to the police station for an interview after school on February 10. Det. Bang and Det. Iorio interviewed Jennifer briefly, and concluded that nothing had happened between Mr. DeWitt and her because Jennifer recanted everything in the written statement she had given to Ms. Kenne. Det. Iorio talked to Jennifer and her parents. Det. Iorio testified that he told them that Jennifer should not be making up this kind of thing and that, as far as he was concerned, the matter was concluded. Mrs. Bonelli testified that she and her husband did not go into the room when Jennifer was interviewed, that Jennifer did not tell her husband and her what happened, and that she did not ask Jennifer about it. Mrs. Bonelli did concede that the detectives showed them Jennifer's statement. Mr. Bonelli testified that Jennifer went in alone with the detectives, and they came out saying that Jennifer had retracted her statement and they were filing no charges against Mr. DeWitt. Mr. Bonelli was upset, both from reading the statement and from his daughter's retraction of it. He testified that he could see that Jennifer was emotionally upset and he figured this was not the time to question her about the matter. He intended to speak to her about it the next day when she came home from school. The Bonellis left the station, and Det. Iorio relayed his information to SRO Foster. Jennifer Bonelli testified that Mr. DeWitt knew she was going down to meet with Det. Iorio and Det. Bang, and that Mr. DeWitt told her that the entire matter would "go away" if she just denied the truth of her written statement. She said she reported to Mr. DeWitt after the meeting, told him that she had recanted her statement and that he was in the clear. Ms. Bonelli testified that Mr. DeWitt was happy, and told her, "good job." Ms. Bonelli testified that the next morning, February 11, a security guard pulled her out of class and sent her to Mr. Flynn's office. The guard would not tell her why she was there. She was then sent into a room where Mr. Flynn, Mr. Cronin, and her father were already having a discussion. Mr. Flynn was speaking to her father about recommending her for expulsion based on her false written statement. Ms. Bonelli testified that she spoke up and said the statement was not false, that she had recanted it to save Mr. DeWitt's job. Ms. Bonelli received a ten-day suspension pending the investigation, but was not expelled from Riverview. Stanley Bonelli testified that he called Mr. Flynn on February 11 to arrange a meeting. He was upset because his daughter had been "forced" by Ms. Kenne to give a statement, without informing her parents. Mr. Bonelli was also upset that Mr. DeWitt had called his home and spoken to his wife and Jennifer, and that he did not know what the conversation was about, other than someone named Dominique had made an allegation about his daughter and Mr. DeWitt. He was upset that Mr. DeWitt had talked to his daughter at school without his permission. In light of all these concerns, he wanted to speak to Mr. Flynn, and the meeting was arranged. Mr. Bonelli's version of the meeting generally agrees with his daughter's. Mr. Flynn told Mr. Bonelli that he was going to expel Jennifer for inappropriately degrading the reputation of an administrator. Mr. Flynn told him that Jennifer had lied in her written statement. Mr. Bonelli testified that when his daughter saw that she was going to be expelled, lose all her enrollment credits and scholarship, and perhaps not go to college for two years, she said, "I'm not going to protect anyone. I did not lie." Mr. Bonelli testified that Mr. Flynn then said that he was suspending Jennifer for ten days pending an investigation. Mr. Bonelli told Mr. Flynn that he was hiring an attorney. Mr. Flynn's version of the meeting also agrees in most essentials with that of Jennifer and Stanley Bonelli. The only telling difference is that Mr. Flynn did not recall Jennifer saying, "I'm not going to protect anyone." Mr. Flynn's recollection was that Jennifer said, "I'm not going to be expelled for this." Mr. Flynn testified that as soon as Jennifer said that her statement was true, he stopped the interview and called Det. Price into the room to confirm what Jennifer had just said. Det. Price talked to Ms. Bonelli and reminded her that this would lead to a police investigation because she was alleging crimes. Det. Price told her that if it was found she was lying, she could be prosecuted for filing a false police report. Ms. Bonelli wanted a police investigation. Det. Price testified that she read Ms. Bonelli her Miranda rights. Det. Price stated that though Ms. Bonelli was a victim at this point for investigative purposes, she had changed her story so many times that it was best to read Ms. Bonelli her rights for her own benefit and safety. Det. Price stated that this was the end of her involvement in the case. Mrs. Bonelli testified that on February 11, after coming home from the meeting with Mr. Flynn, Jennifer told her that the statement was true. Mrs. Bonelli testified that this was the first time she knew that Jennifer had some sort of relationship with Mr. DeWitt. She testified that she had no hint of such a thing before this. As noted above, Mrs. Bonelli is not credible on this point. Jennifer Bonelli returned to the police station on February 11, accompanied by an attorney hired by her father, and met with Det. Iorio and Det. Bang again. Det. Iorio testified that he advised her that he was investigating a possible crime, and that if she lied there could be penalties, even prosecution. He read Ms. Bonelli her rights, swore her in and she gave a taped statement as to what she said really occurred. Ms. Bonelli told Det. Iorio that she started working in Mr. DeWitt's office, that she openly had a crush on him, that it started out as them making small talk. Mr. DeWitt would ask about her relationships with boyfriends, what types of sexual encounters they had. It got to the point where there was some touching. At some point they met at Twin Lakes Park, where Mr. DeWitt jogged. They reached the point of Mr. DeWitt masturbating in his car while Ms. Bonelli talked dirty to him. Det. Iorio believed Ms. Bonelli was being truthful, and decided to pursue the investigation further. Det. Iorio testified that Ms. Bonelli mentioned the name of Kendra Simpkins and told him she was involved with Mr. DeWitt. Ms. Simpkins was called down to the police station. Det. Iorio stated that Ms. Simpkins was very embarrassed about the interview, but eventually told them us she was having a sexual relationship with Mr. DeWitt and would give a sworn taped statement of those events. Ms. Simpkins related her version of the events of December 22, 1998 and January 4, 1999, discussed above. Ms. Simpkins also related the story of Mr. DeWitt's alleged reaching back in his chair and touching her crotch. Det. Iorio testified that his investigation revealed the names of other girls who might have been victims of Mr. DeWitt: Melissa McBride; Jennifer Rizi; Bethany Donato; Katy Seib; Dominique McAnn; and Lori Gully. He and Det. Bang interviewed as many of these witnesses as they could contact. Det. Iorio stated that Ms. McBride told him that she was a student of Mr. DeWitt's, and that although she never had a physical relationship with him, Mr. DeWitt made it very clear that if she was available, so was he. She was not surprised that Mr. DeWitt was having relationships with girls at Riverview, because it was a common occurrence for him to be "hitting on" the girls at school and to be lenient on girls in disciplinary matters. As noted above, Melissa McBride testified that Mr. DeWitt would hug her in a way that made her uncomfortable, and that his "body language" made her believe he was interested in a relationship. Ms. McBride also testified that she had permission to leave the campus after third period to attend the Sarasota County Technical Institute, and that she discussed meeting Mr. DeWitt for lunch at Subway. They never actually had lunch together. Mr. DeWitt never overtly proposed a sexual relationship with Ms. McBride. Ms. McBride also testified that Mr. DeWitt denied to her that he had a wife and children. Ms. McBride stated that she knew Mr. DeWitt was married, and told him that she knew, but that he continued to deny those facts. Mr. DeWitt testified that he never gave Ms. McBride an embrace as she described it, though he may have hugged her shoulder-to-shoulder as he did other students. He denied asking Ms. McBride to lunch. He also denied ever discussing his marital status with Ms. McBride, stating that it would not have been any of her business. Mr. DeWitt again stated that he has never denied having a wife and children to anyone. Det. Iorio stated that Ms. Donato said she had heard rumors about Ms. Bonelli and Mr. DeWitt. She remembered Ms. Bonelli telling her she'd gone to Twin Lakes Park with Mr. DeWitt and given him a "hand job." Ms. Donato told Det. Iorio that Mr. DeWitt told her he wanted to take her for a spin in his car and look at the stars when she turned 18. Ms. Donato did not testify at the hearing. Mr. DeWitt denied ever telling Ms. Donato he would like to take her out in his car, or saying anything to her that could have been construed to mean he would like to take her out. The detectives' version of Ms. Donato's statement must be viewed in light of the fact that virtually every witness who testified at the hearing or via deposition disputed at least certain aspects of the detectives' report. Det. Iorio stated that Ms. Seib told him that she'd had no sexual relations with Mr. DeWitt, but that Mr. DeWitt made comments about her breasts and short skirts, and asked her what kinds of sexual relations she was having with her boyfriends. Katy Seib testified at the hearing. She testified that Mr. DeWitt never made comments about her breasts and that she did not remember telling Det. Bang or Det. Iorio that he had. She testified that Mr. DeWitt made comments about her skirts, but in the context of letting her know they were inappropriate school attire. Mr. DeWitt was her grade level administrator, and she talked to him about personal problems, including boyfriend problems. She testified that nothing inappropriate was ever discussed between Mr. DeWitt and her. She testified that she felt intimidated by the detectives, and felt they were trying to manipulate her into saying something they could use against Mr. DeWitt. Det. Iorio testified that Dominique McAnn had no knowledge of inappropriate behavior by Mr. DeWitt, but suggested they talk to Lori Gully, a teacher who had recently left Riverview. Ms. McAnn testified at the hearing, and confirmed that she may have given the detectives the name of Lori Gully. Ms. McAnn testified that the rumor went around the school that something may have occurred between Mr. DeWitt and Ms. Gully, a former teacher at Riverview. This rumor was based on the fact that Ms. Gully left the school shortly after working closely with Mr. DeWitt on the initiation of the IB program. Det. Iorio spoke with Ms. Gully by telephone. Det. Iorio reported that Ms. Gully said she never had any sexual contact with Mr. DeWitt, but that Mr. DeWitt would make innuendoes or make it known he was available for an affair. Det. Iorio also reported that Ms. Gully was not surprised that Mr. DeWitt would have sexual contact with students at Riverview. Lori Gully testified at the hearing. She worked at Riverview for one year, 1996-97. She worked closely with Mr. DeWitt on the IB program before taking a new job in Fort Myers. She characterized Mr. DeWitt as a hard worker, very active with students, and focused on student achievement. She testified that Mr. DeWitt never made any overt advances toward her, but that she perceived an undercurrent of something she didn't like. She was never uncomfortable being alone with him, or threatened by him. Ms. Gully testified that Mr. DeWitt would say things that could be taken two ways, insinuating some desire for a more than professional relationship. For example, prior to an out-of- town conference they would both attend, Mr. DeWitt said to her, "Maybe we'll get to spend some time together, do you know what I mean?" Ms. Gully had a vague impression that Mr. DeWitt was ready to have an affair if she was, but stated that he was always professional with her. She conceded that her impression was just a "weird feeling" that she couldn't explain but was undeniably there. She never saw Mr. DeWitt act inappropriately toward anyone at Riverview. Mr. DeWitt testified that his relationship with Ms. Gully was always professional, courteous, and cordial. They never had any conversations of a sexual nature, and he never said anything intended to give her the impression that he had romantic feelings toward her. Ms. Gully testified that she did not tell the detectives that Mr. DeWitt made it known he was ready for an affair; this was her intuitive feeling, not a statement made by Mr. DeWitt. Ms. Gully also denied telling the detectives that she was not surprised that Mr. DeWitt was involved with students. She actually told them she was not surprised they were calling her, because a friend had told her about the DeWitt investigation. She testified that her actual feeling was that it would be out of character for Mr. DeWitt to be involved with students. Det. Iorio testified that he and Det. Bang determined it would be very important to their investigation to capture Mr. DeWitt on tape discussing the allegations. Ms. Simpkins' mother agreed to allow Kendra to wear a listening device, commonly called a "body bug," and attempt to engage Mr. DeWitt in a conversation. They also had Kendra place two tape-recorded "control calls" from the police station. Audible tapes and transcripts of one "body bug" conversation and one control call conversation were entered into evidence, over Mr. DeWitt's strenuous objection. Det. Iorio listened to the tapes during the investigation, and testified that he heard nothing on the tapes that would cause him to end the investigation. In particular, Det. Iorio found that the "obscenities" used by Mr. DeWitt told him there was definitely "something there." On the tapes, Mr. DeWitt says nothing clearly exculpatory or incriminating. Ms. Simpkins, having been coached by the detectives not to directly raise questions about the alleged sexual episodes, tells Mr. DeWitt that she has to go talk to the police and asks Mr. DeWitt what she should say. Mr. DeWitt testified that he assumed Ms. Simpkins was going to be questioned about the bathroom rumor, because he believed that was the only thing the police were investigating that could possibly involve Kendra Simpkins. He tells Ms. Simpkins to tell the police that nothing happened. Ms. Simpkins continues to question Mr. DeWitt with variations on the same query. Mr. DeWitt keeps telling her that the police want to know about the bathroom rumor. Ms. Simpkins keeps saying that the police must "know something." Mr. DeWitt says there is "nothing to know." In frustration, Mr. DeWitt does at one point exclaim, "God damn," which is the "obscenity" referred to by Det. Iorio. Mr. DeWitt never plainly tells Simpkins to just go in and tell the truth, though he testified that at some point he did tell her to tell the truth and that statement must have been on one of the "inaudible" tapes referenced above. Mr. DeWitt repeatedly tells Ms. Simpkins that the police "don't know anything," and that she should tell them the same thing she told SRO Foster and Det. Price. However, Mr. DeWitt is saying these things in the context of trying to calm the apparently frantic Kendra Simpkins. He is also plainly exasperated with Ms. Simpkins' going over and over the same ground in repeated meetings and phone calls. Ms. Simpkins was directly asked about the instructions given by the detectives. She testified that they told her to ask questions that would draw out Mr. DeWitt, rather than "yes" or "no" questions. She testified that she didn't think to ask him about specific things such as Twin Lakes Park. She testified that even if she had asked him specific questions, his answers would have been the same. Several times on the tapes, Mr. DeWitt encourages Ms. Simpkins to get her mother involved in the matter, and wants to make sure that her mother knows everything that is happening. Mr. DeWitt in fact called Ms. Burkhardt that evening to make sure she knew about the bathroom rumor and that Kendra had talked to the detectives that day. Despite the controversy at the hearing over the admissibility of the recordings, they are not persuasive one way or the other as to Mr. DeWitt's culpability. On March 12, 1999, the detectives filed a probable cause affidavit recommending that Mr. DeWitt be charged with one count of committing a lewd and lascivious act upon a 15-year-old child. This charge related to Mr. DeWitt's alleged grabbing of Kendra Simpkins' crotch in his office in 1998, when Ms. Simpkins had not yet turned 16. The detectives determined that no other charges could be filed because Ms. Simpkins and Ms. Bonelli were both at least 16 years old when the alleged acts occurred. On April 5, 1999, the State Attorney's office filed a memorandum declining to prosecute, because Kendra Simpkins did not wish to pursue the case and because there were no independent witnesses. Joy Perez After he was removed from the case, Det. Foster was approached by a Riverview teacher, who claimed to have heard that Mr. DeWitt had had an affair with a student when he was teaching in Miami. Det. Foster gave this information to Det. Bang and Det. Iorio, who went to Miami to investigate. A great deal of testimony was elicited as to this Miami investigation, which ultimately proved fruitless. The Sarasota County School Board ultimately found Joy Perez through a private investigator. The testimony about Det. Iorio and Det. Bang's Miami investigation had to do with their accusations that the faculty and staff of Miami Sunset High School were engaged in a cover-up of Mr. DeWitt's alleged affair with Joy Perez. The detectives' allegations are without merit. The evidence established that Det. Iorio and Det. Bang arrived at the school unannounced, armed with misinformation as to the name of the person they were seeking, attempted to bully faculty and staff members, decided that everyone they spoke to at Miami Sunset was lying when they denied knowledge of an affair between Mr. DeWitt and a former student, and then twisted the witnesses' statements to suit their theory of a "cover-up." It is not necessary to detail the detectives' accusations and the contrary testimony of the Miami Sunset witnesses because this controversy is not relevant to the allegations against Mr. DeWitt. The undersigned has thoroughly reviewed all the testimony, and finds that any conflicts in the testimony must be resolved in favor of the Miami Sunset witnesses. The credibility of Det. Iorio and Det. Bang's report was already rendered questionable during the Sarasota phase of the investigation, where Lori Gully and Katherine Seib denied making damaging statements attributed to them by the report. Joy Perez attended Miami Sunset Senior High from 1988 until her graduation in 1991. During her junior and senior years, she served as an athletic trainer. In the 1990-91 season, when Mr. DeWitt was the head basketball coach, Ms. Perez was assigned as a trainer to the basketball team. She was 18 years old when the relationship with Mr. DeWitt is alleged to have occurred. Ms. Perez testified that there were two to four female trainers at every basketball game. The trainers usually sat on the same side of the court as the team, and less frequently sat across from the team, with the fans. After the games, the trainers would collect the equipment and store it. The trainers also attended team practices. Ms. Perez testified that she was at most games and practices, but could not say she was at all of them. Mr. DeWitt's assistant coach was Andy Chiles, another teacher at Miami Sunset and a friend of Mr. DeWitt's since high school. Ms. Perez testified that she was on good terms with Mr. Chiles. Ms. Perez testified that she met Mr. DeWitt at the start of basketball season. They would talk. She recalled that Mr. DeWitt was very flattering, complimenting her looks. She testified that these talks progressed into a relationship. They began going out together. Ms. Perez testified that she had no romantic interest in Mr. DeWitt before he commenced his flattery. They would talk at school, and at some point Ms. Perez realized that Mr. DeWitt was interested in more than just flirting. She stated that he was the aggressor in the relationship. Ms. Perez testified that now, nine years after the fact, she had no clear recollection of how they progressed from talking to going out together after school. She recalled that Mr. DeWitt would come over to her house after school. Ms. Perez testified that most of their meetings occurred after school, not at night. They would go out to eat. Ms. Perez testified that she introduced Mr. DeWitt to her mother. She stated that she wanted to make sure her mother approved of the fact that she was dating a teacher. Ms. Perez stated that Mr. DeWitt had discussions with her mother about the relationship, and that her mother never tried to stop it. She said her mother was "okay" with it, though she was unaware that it later progressed to a sexual relationship. Ms. Perez testified that the dating commenced in about January 1991. She stated that they held hands and kissed on these dates. Miami Sunset was an open campus, meaning that students were allowed to leave the grounds for lunch. Ms. Perez testified that she and Mr. DeWitt would go to lunch together at various restaurants. Ms. Perez recalled in particular going with Mr. DeWitt to a Pizza Hut three or four miles from the Miami Sunset campus. She was concerned that another student would see them, because the Pizza Hut was frequented by her friends and classmates. She stated that an acquaintance did see her getting into Mr. DeWitt's car and warned her to be careful. Ms. Perez could not recall how many times she went there with Mr. DeWitt. Ms. Perez stated that she and Mr. DeWitt also went to the Sizzler once, just after lunchtime. She stated that this restaurant was not near the school and was not frequented by students. She stated that they went to dinner at Tony Roma's, also not in the neighborhood of Miami Sunset. Ms. Perez testified that she and Mr. DeWitt were concerned about teachers seeing them, so they did not make their relationship public. They did not hold hands or kiss at school. Ms. Perez testified that the relationship finally progressed to sexual intercourse. She stated that she had sexual intercourse with Mr. DeWitt in his car, at hotels, and at his mother's house, all while she was still a student at Miami Sunset. She estimated they had sexual intercourse fewer than ten times. Ms. Perez testified that they did not engage in oral sex, and that Mr. DeWitt never asked her to "talk dirty" to him or masturbated in her presence. Ms. Perez stated that they went to hotels, usually between noon and 5 p.m. Mr. DeWitt would wait for her at the corner, then they would go to the hotel in his car. They went to more than one hotel, but she could not remember their names. Ms. Perez stated that Mr. DeWitt gave her gifts, "little things." She recalled receiving a charm, and a T-shirt that Mr. DeWitt brought back from the Final Four basketball tournament. She did not know where any of these items now were. Ms. Perez testified that Mr. DeWitt told her he was separated from his wife. Ms. Perez testified that she did not know Mr. DeWitt's wife, nor did she have any idea what his wife looked like. Ms. Perez testified that she never met Mr. DeWitt's wife at basketball games, or ever saw Mr. DeWitt talk to anyone he later said was his wife. Ms. Perez testified that Mr. DeWitt told her that he had a young son. Mr. DeWitt also told her that his wife and child lived in the Kenlands, an apartment/condominium complex not far from the school. Mr. DeWitt told her that he also lived in the Kenlands, with his wife and child. He told her that he lived with his wife for financial reasons, but that they had separate bedrooms. At the time, Ms. Perez accepted this explanation of the DeWitts' "separation," in part because her own parents had slept in separate bedrooms. Ms. Perez admitted that she didn't know if there was a written separation agreement, or whether the DeWitts were having sexual relations. Ms. Perez knew Mr. DeWitt's mother, Marilyn DeWitt, who was also a teacher in the Miami-Dade public school system. Ms. Perez took a night class in pottery from Marilyn DeWitt at Miami Sunset. Ms. Perez testified that she knew her teacher was DeWitt's mother. Ms. Perez stated that she never saw Marilyn DeWitt at a basketball game. Ms. Perez testified that the sexual relationship ended in about April 1991. She stated that she began feeling that Mr. DeWitt's story about being separated from his wife was not true. She testified that Andy Chiles told her that Mr. DeWitt "might" still be married. Under cross-examination, Ms. Perez admitted that Mr. Chiles actually showed her a high school yearbook photo of Karen DeWitt and that he tried to warn her that Mr. DeWitt was married. Ms. Perez testified that after Mr. Chiles showed her the yearbook picture, she again asked Mr. DeWitt if he was really married. She stated that Mr. DeWitt repeated the story that he was separated. Ms. Perez testified that she did not ask the other trainers if Mr. DeWitt was married. Ms. Perez testified that she considered her relationship with Mr. DeWitt to be private, and did not discuss it with anyone at school. Ms. Perez testified that she ended the relationship. There was not a clean break. Mr. DeWitt continued to call her at home, but she was not interested in continuing the relationship because she did not believe he was really separated. Ms. Perez stated that she allowed the relationship to "dwindle off." Ms. Perez stated that Mr. DeWitt would bother her in the hallways. When class was dismissed, he would wait around in the halls for her. If she was speaking to a male, Mr. DeWitt would come up and interrupt the conversation. Ms. Perez stated that Mr. DeWitt would also drive by her house. She did not know whether Mr. DeWitt had friends in her neighborhood or any other legitimate reason to go past her house. Ms. Perez testified that after she graduated and went to college, she continued to receive calls from Mr. DeWitt, seeking to renew the relationship. She was not hostile towards him, but had no interest in resuming the relationship. Ms. Perez estimated that she would speak to Mr. DeWitt about twice a year. Ms. Perez testified that Mr. DeWitt called to tell her he was moving to Sarasota to take an assistant principal position. He called her after he moved to Sarasota, to inquire as to how she was. Ms. Perez testified that she last saw Mr. DeWitt about four years before the hearing. He called and told her he was coming to Miami and wanted to see her. Mr. DeWitt told her that he was now divorced. Ms. Perez agreed to meet Mr. DeWitt, but told him to bring the divorce papers with him. Ms. Perez testified that they had dinner at St. Michel, a restaurant in Coral Gables. Mr. DeWitt brought photocopies of some forms that appeared to be divorce papers. Ms. Perez stated that the papers were unclear, and that the information contained therein did not coincide with things Mr. DeWitt had told her over the years. She knew that Mr. DeWitt had a child at the time their relationship commenced, but the papers indicated the child was born after she graduated. Ms. Perez stated that this caused her to conclude these were not real divorce papers. After the dinner at St. Michel, Ms. Perez had no desire to see Mr. DeWitt again. She told him as much at the dinner. Ms. Perez testified that Mr. DeWitt never called her again after the dinner, and she never saw him. Ms. Perez did not ask for or keep a copy of the divorce papers. She stated there was no reason to keep them. Once she concluded the papers were not legitimate, she had her proof. Ms. Perez was asked how she could be sure the child mentioned in the divorce papers was the same child she knew about from her days at Miami Sunset. She answered that someone had told her Mr. DeWitt had another child, but Mr. DeWitt denied it every time she asked him. Ms. Perez testified that she never reported her relationship with Mr. DeWitt to anyone in authority at the school. In retrospect, she believed that she should have done so. She stated that she knew it was wrong to have a sexual relationship with a married man, even when the relationship was active. Ms. Perez learned of this case when she was contacted by the Sarasota County school system's private investigator, who took her recorded statement. Ms. Perez testified that Marilyn DeWitt phoned her a few months prior to the hearing. Mrs. DeWitt wanted to know why Ms. Perez was testifying against her son. Ms. Perez told Mrs. DeWitt that the Sarasota authorities approached her and that she was just telling the truth, without any intent to hurt anyone. Mr. DeWitt recalled Joy Perez as an athletic trainer for the basketball team when he was head coach. He testified that she worked at all home and away games, as well as most practices. Mr. DeWitt estimated that he saw her two to four hours a day, six days a week, during the basketball season. Mr. DeWitt denied having any sort of sexual relationship with Joy Perez. He denied holding hands with or kissing her. Karen DeWitt came to every home basketball game, sitting in the fan seating across from the team bench. She brought their infant son, Ryan, who was born on October 27, 1990, just before the basketball season began. Marilyn DeWitt came to some of the home games, and sat with Karen and Ryan. Andy Chiles' fiancée, Julie, would also sit with Karen DeWitt. The DeWitts often socialized with Mr. Chiles and his fiancée after the games. Mr. DeWitt estimated that average attendance at the basketball games was about 100 people. Immediately after the game, Mr. DeWitt would go into the locker room, talk to the players, get the uniforms together, and clean up the locker room. This process took 15 to 30 minutes. Mr. DeWitt would then come out and find Karen and make plans for the rest of the evening. Sometimes they would go out to eat with Mr. Chiles and his fiancée; other times, Karen and Ryan would go home and wait for David. By the time Mr. DeWitt came out after the game to see Karen, there would be very few people left in the gym, mostly the custodian and the trainers. The fans were encouraged to clear out immediately after the game so that the bleachers could be rolled up and the gym cleaned. Mr. DeWitt did not recall seeing Joy Perez talking to his wife. He did recall that Ms. Perez once came into the locker room and told him that someone outside wanted to talk to him. When he went out of the locker room, Karen was waiting to see him. Karen DeWitt had a clear recollection of sending Joy Perez into the locker room to find her husband. She testified that the trainers were her "lifeline" into the locker room. If she needed to take Ryan home, she would ask a trainer to get Mr. DeWitt for her. She gave Joy Perez such a message. Karen DeWitt testified that any other conversations she ever had with Joy Perez were of the "hi, how are you?" variety. Mr. DeWitt testified that Joy Perez and the other trainers were made to feel part of the team. They were invited to all team functions, including banquets, dinners, and after- game socials. Mr. DeWitt testified that Joy Perez sought him out for counseling. Her father had died in a scuba diving accident in the Florida Keys, and Ms. Perez was very upset and emotional about it. Mr. DeWitt stated that Ms. Perez talked at length about how it happened and the void it caused in her life. Ms. Perez also talked to Mr. DeWitt about general high school issues, where she should go to college, and boyfriend issues along the lines of wondering who would ask her to the prom. Mr. DeWitt testified that after a time he concluded Ms. Perez was showing him too much attention. She was always around, and was showing a fondness for Mr. DeWitt that gave him a feeling she was romantically interested in him. He conceded that Ms. Perez' actions could have been simply an eager trainer trying to impress her coach. Mr. DeWitt raised the issue with Deborah Fries-Furton, a teacher who had been the head athletic trainer and was still deeply involved with the basketball team and the trainers. Mr. DeWitt testified that he knew Ms. Fries-Furton was close to Ms. Perez and her family, and asked her to let Ms. Perez know that he was happily married. Mr. DeWitt asked Ms. Fries-Furton to do so in a manner that was non-threatening. He believed that Ms. Fries-Furton had that conversation with Ms. Perez. Mr. DeWitt testified that he didn't report Ms. Perez because he didn't feel she had "crossed the line." Ms. Perez had done nothing inappropriate or threatening. She never came out and asked Mr. DeWitt to have sex with her. Mr. DeWitt stated that it was just a sense he had that she was becoming enamored of him. He never directly told her to cut back on the attention she was showing him. Mr. DeWitt testified that he visited the night pottery class taught by his mother, and that Joy Perez was sitting in the class doing a pottery assignment. His mother introduced him to the class. Karen DeWitt recalled David taking her to the pottery class for a visit. Karen was curious about the class, and David took her there the first time so that she would know where it was. Karen recalled that she was still pregnant with Ryan on her first visit. Marilyn DeWitt introduced them as her son and his wife. Karen recalled subsequent visits after Ryan was born, and Marilyn showing off Ryan to the class. Karen remembered seeing Joy Perez in the class, but did not remember talking to her there. Ms. Perez denied ever seeing Mr. DeWitt's wife or child come into the pottery class. Mr. DeWitt stated that he "absolutely never" told Ms. Perez that he was separated from his wife, and never said anything that would lead her to think that. He lived with Karen and Ryan in a condominium in the Kenlands, off Kendall Drive. His mother lived about two miles away, and they spent a lot of time at her house, but he never lived apart from his wife. Mr. DeWitt testified that he never told Ms. Perez that he was "separated from but living with" his wife, and that he never showed her where he lived. Karen DeWitt confirmed that Mr. DeWitt never lived anywhere else during this period, and testified that they had no marital problems that approached the level of a separation. Mr. DeWitt stated that every basketball player knew where he lived. All the players had his home phone number. He stated that his house was not far from the school, and that players would stop by before and after practice and on the weekends. Ms. Fries-Furton also knew where Mr. DeWitt lived. It would not have been difficult for Ms. Perez to learn where Mr. DeWitt lived from the players or from Ms. Fries-Furton. Mr. DeWitt testified that he never showed his mother's house to Joy Perez, and that she was never in that house with his or his mother's permission. He stated that there was a spring basketball league that took place at the junior college directly behind Marilyn DeWitt's house. A path through the woods led directly from his mother's house to the college. Mr. DeWitt coached in the spring league. He would walk from there to his mother's house with a player or two from Miami Sunset, before and after the games. They would get something to eat and play basketball in Mrs. DeWitt's back yard, where she had a lighted court. They would swim in her pool. Again, it would have been easy for Ms. Perez to learn from these players where Mr. DeWitt's mother lived. Mr. DeWitt denied ever being alone with Ms. Perez in any restaurant. He was familiar with the Pizza Hut discussed by Ms. Perez, and stated that she might have been there on some occasion when he took the entire team for pizza, but never alone with him. Mr. DeWitt was also familiar with the Sizzler restaurant, which was only 100 feet away from his condominium in the Kenlands. He stated that he and Karen would put Ryan in his stroller and walk there for meals, but that he was never there with Joy Perez. Mr. DeWitt knew of a Tony Roma's in Miami, and stated that he and his wife may have eaten there during the 1990-91 school year, but he denied ever taking Joy Perez there. Karen DeWitt remembered going to Tony Roma's with her husband on her birthday, because the restaurant gave free meals to people on their birthday. Mr. DeWitt denied taking Joy Perez to the St. Michel restaurant in Coral Gables. He stated that he has never been to that restaurant, which he said was "quite expensive." After the birth of Ryan in October 1990, Karen DeWitt took maternity leave until April 1991. Mr. DeWitt testified that during this period, he would come home for lunch with Karen and Ryan every day. They either ate at home or walked to the Sizzler. Both David and Karen DeWitt testified that they could not recall a day during her maternity leave that they did not have lunch together. Karen testified that David's coaching duties often kept him away from home in the evenings, so he took the opportunity at lunch to spend time with Ryan and her. He would spend at least an hour at home during lunch. Mr. DeWitt recalled giving Joy Perez a Final Four T- shirt, as he did to all the players and trainers. He testified that the school sent the basketball coaches to the Final Four. The year he was head coach, Mr. DeWitt went to Indianapolis with two assistant coaches. He testified that they walked around the various vendor exhibits, and companies such as Puma, Nike, Converse and Adidas gave away free merchandise, including T- shirts. They brought back shirts for everyone on the team and for the trainers. Mr. DeWitt testified that Joy Perez' mother told him that Joy was fond of and attracted to him. He made sure Joy's mother knew that it was not reciprocated. He never discussed with her mother a desire to date Joy. Mr. DeWitt testified that he never went to see Joy Perez at home. He stated that he would take students home after practice or games, especially after away games when they returned to the school at 11 p.m. It was not uncommon for players or trainers to need a ride home, and Mr. DeWitt would take them if no one else was coming for them. Mr. DeWitt believed he gave Joy Perez a ride home under such circumstances on at least one occasion. Mr. DeWitt recalled phoning Joy Perez' home after she graduated, but stated he was returning a call from Ms. Perez' mother regarding the schedule of Joy's younger sister Gigi, who was still a student at Miami Sunset. He did not recall if he had any assigned responsibilities for Gigi. Mr. DeWitt stated that because he had known her mother and sister for some time, Gigi felt comfortable approaching him for assistance and that their relationship was very cordial. He denied calling the Perez residence after Gigi graduated. Mr. DeWitt testified that he had no contacts with Joy Perez after he moved to Sarasota. He denied ever showing divorce papers to Joy Perez. He denied ever telling anyone that he and Karen were divorced or separated, or separated but still living together. He stated that he might have run into Joy Perez at a mall when he went back to visit Miami, but denied ever arranging a meeting with her. Mr. DeWitt speculated that Joy Perez' motive for lying about him may have been his declining to attend her graduation party. He recalled that she came by his office with a "fancy" invitation to a gathering with her family, something that "sounded like a big to-do." She wanted to introduce Mr. DeWitt to her friends and family. Mr. DeWitt testified that he never went to graduation parties with students, so he told her that he was not interested in going. He stated that she gave him a cold look and said, "It doesn't mean that much to you, does it?" Mr. DeWitt testified that he had meant to convey a general disinterest in attending such functions, but that Ms. Perez appeared to take his refusal personally. Mr. DeWitt testified that Ms. Perez then said something like, "Some day you will know," or "You will realize." Mr. DeWitt stated that it was a "chilling" comment. She then turned and walked out of his office. Prior to obtaining her statement, the Sarasota investigators told Joy Perez that Mr. DeWitt was under investigation for sexual misconduct with students. Prior to her testimony at the hearing, Ms. Perez was provided with a copy of the police report of the Sarasota investigation. As noted above, Joy Perez claimed that one of her sexual liaisons with Mr. DeWitt occurred in his mother's house. Mr. DeWitt claimed that Ms. Perez had never been inside the house with his or his mother's permission. Petitioner offered in evidence a diagram that Joy Perez drew of the floor plan of Marilyn DeWitt's house in Miami. Marilyn DeWitt has since sold the house and moved to Sarasota, living in a house on her son's property. Marilyn DeWitt also drew a diagram of her Miami house, and offered extensive testimony as to its layout. Ms. Perez' diagram indicates that she came in the front door and went down the hallway directly to the first bedroom on the left. She testified that Mr. DeWitt told her this was his bedroom. Her diagram details only what she saw of the living area from the front door, and the bedroom she went into. The diagram does not correspond entirely to the actual layout set forth by Marilyn DeWitt. Keeping in mind that Ms. Perez saw the living area only once, eight years ago before drawing her diagram, it cannot be found that the disparities conclusively demonstrate that she was never in the house. However, it must also be noted that Ms. Perez' diagram could as easily be derived from peeking through the front window of the house, or from a description provided to her by someone who had been there. Ms. Perez' diagram indicates that there was a photo on the mantel of the living room of Mr. DeWitt wearing a tuxedo. Mr. DeWitt was alone in the photo. Marilyn DeWitt testified that the only photograph of David DeWitt wearing a tuxedo that she owned was his wedding photo, which also included Karen DeWitt. Further, Marilyn DeWitt testified that there was no mantel in her living room. Ms. Perez' description of the bedroom is problematic. Her diagram indicates a full or queen size bed and dark wood furniture in the room. Marilyn DeWitt testified that she had converted this room into a nursery a couple of months before Ryan's birth in October 1990, well before Ms. Perez alleges she was in the house with David DeWitt. Mrs. DeWitt testified that the room contained a full-size crib, a playpen, a chest painted off-white, toys, and a rocking chair. The next room down the hallway was a guest room with twin beds. The only room with a full-size bed was the master bedroom, which Ms. Perez' diagram labels a "possible bedroom," indicating she never went into the room. The testimony of Marilyn and Karen DeWitt further established that Marilyn DeWitt's house would not have been a convenient place for an assignation. Marilyn worked during the day, but Karen had a key to the house and went there with Ryan almost every day during her maternity leave. Marilyn's nephew lived there during that period. He was looking for work and spent a great deal of time around the house. Marilyn DeWitt also had a maid who came at least once a week and spent the entire day at the house. No witnesses were produced to corroborate Joy Perez' claim that she had an affair with Mr. DeWitt, or even to establish that she and Mr. DeWitt had anything more than a student-teacher relationship. Especially significant is the lack of testimony from Joy Perez' mother, who Joy claimed knew about her dating Mr. DeWitt and approved heartily of it. In contrast, several witnesses who knew Mr. DeWitt and Ms. Perez in Miami during the relevant period testified on behalf of Mr. DeWitt. These included Barbara Silver, who at the time was the principal of Miami Sunset; Dennis Davis, who at the time was an assistant principal at the school; and George Phaelen, who was the athletic director. These three witnesses consistently denied any knowledge of an affair or even rumors of an affair between Mr. DeWitt and any student. They also consistently stated that the report filed by Det. Iorio and Det. Bang distorted what they told the detectives. Also testifying on behalf of Mr. DeWitt were Andrew Chiles and Deborah Fries-Furton, both of whom were deeply involved with the basketball team during the 1990-91 school year. Their testimony merits detailed findings. Andrew Chiles was the head coach of the junior varsity team and the sole assistant coach of the varsity team during the season that Mr. DeWitt served as head coach. Mr. Chiles had known Mr. DeWitt since 1978, when they played basketball together for Miami Sunset. They were best friends then, and have remained close throughout the subsequent years. Mr. Chiles has also known Karen DeWitt (then Karen Burmeister) since 1978, becoming friends with her even before he learned that she was David DeWitt's girlfriend. Mr. Chiles began teaching at Miami Sunset in 1987, one year prior to Mr. DeWitt's joining the staff. They were both assistant coaches in the basketball program. When the head coach quit abruptly prior to the 1990-91 season, Mr. Phaelen, the athletic director, named Mr. DeWitt the interim head coach. Mr. Chiles testified that this decision was based on the fact that Mr. DeWitt had been working mostly with the varsity team, while Mr. Chiles was the head coach of the junior varsity. Mr. Phaelen believed that it would be best for the players if Mr. Chiles remained the junior varsity coach and assisted Mr. DeWitt with the varsity team. Mr. Chiles attended all varsity practices, and all varsity games, home and away. He knew Joy Perez as a trainer for the basketball team. Mr. Chiles stated that Ms. Perez was supervised at all times, by the main trainer, Mike McGowan; by Deborah Fries-Furton, who had given up her official position as head trainer but still performed many of those duties; and by the coaches. Mr. Chiles stated that he and Mr. DeWitt would take players home after late games, but that it was more common for them to have the player call a parent and to wait with the player until his ride arrived. Mr. Chiles did not remember either he or Mr. DeWitt giving a female trainer a ride home during the 1990-91 season. Mr. Chiles testified that he never saw Mr. DeWitt do anything improper with any student, including Joy Perez. He was aware of no student complaints against Mr. DeWitt. No member of the faculty or administration ever said anything to Mr. Chiles about Mr. DeWitt engaging in any improper conduct. Mr. Chiles heard no rumors, though he conceded that he would be the "last person" to hear such things because it was commonly known at the school that he was Mr. DeWitt's best friend. Mr. Chiles testified that Karen DeWitt was at all the home games, and sat with his fiancée, Julie. Marilyn DeWitt came to some of the games, and sat with Karen and Julie. They sat across from the bench. Mr. Chiles recalled Joy Perez asking him if Mr. DeWitt was married. He told her that Mr. DeWitt was married. This was toward the beginning of the basketball season, in October or early November, when she came aboard as a trainer and everyone got to know each other. Mr. Chiles stated that he had no idea why Joy Perez would now claim not to know Mr. DeWitt was married. Mr. Chiles met Joy Perez' mother, who attended "quite a few" basketball games. He saw her talking with Mr. DeWitt in the gym after basketball games. Mr. Chiles testified that Joy Perez never indicated to him that she had had sexual relations with Mr. DeWitt. Joy's mother never indicated such a thing to Mr. Chiles. Mr. Chiles testified that he saw no signs of Joy Perez having a crush on Mr. DeWitt. After games, the coaches were in charge of closing the concession stand, cleaning the court, and putting away the score clock, scorer's table, the team's chairs and the bleachers. After cleaning up, they would go into the locker room and talk to the team. Mr. DeWitt and Mr. Chiles would then adjourn to the office and talk about the game. Mr. Chiles stated that the trainers were responsible for all the athletic gear. The trainers ran a training room separate from the locker room. He stated that it was not unusual for the trainers to stay after the game and help with the clean- up. Mr. Chiles stated that he and Mr. DeWitt would emerge from the locker room after their post-game meeting to speak with Julie and Karen, perhaps making dinner plans. He testified that Joy Perez would be there on the court when Mr. DeWitt came out to speak with his wife. The only way Ms. Perez could have missed this regular occurrence would have been if she happened to go upstairs to the training room after the game, because the gym floor was not visible from the training room. Deborah Fries-Furton was the athletic trainer until June 1990. The head trainer's job was to take care of all injuries, the injury-reporting system, and serve as a liaison between the coach and athletes regarding injuries. Though she was not officially the head trainer when Mr. DeWitt became head coach, she performed most of the same functions. Mr. DeWitt testified that he was unaware that Ms. Fries-Furton was not the head trainer, because he went to her with any problems or questions he had in that area. Ms. Fries-Furton testified that she usually rotated between four to six student trainers within any given sport. There were male and female trainers. They worked year-round, in different sports. Ms. Fries-Furton stated that she spent "countless" hours with Joy Perez, so much that Joy's mother jokingly called her Joy's "second mother." Ms. Fries-Furton observed Mr. DeWitt interact with the trainers, and never saw anything inappropriate. None of the female trainers ever complained about Mr. DeWitt. When Mr. DeWitt was head coach, Ms. Fries-Furton went to all home and some away games. She sometimes traveled on the team bus. The trainers would go to away games if there was an injured player on the team. Ms. Fries-Furton testified that the trainers and the cheerleaders would ride on the team bus. Joy Perez was one of her student trainers. Ms. Fries- Furton characterized Joy Perez as a good student and a hard worker. Ms. Fries-Furton testified that she maintained Joy's acquaintance, and that of her family, until four years after Joy's younger sister Gigi graduated from Miami Sunset. She became friends with Joy's mother. Ms. Fries-Furton testified that Joy Perez' mother was extremely happy with the role Mr. DeWitt had played in her daughter's life as a teacher and confidant for her problems, someone who gave her good solid advice. She recalled Joy's mother talking about Mr. DeWitt being "wonderful" in helping Joy to resolve the issues surrounding her father's death. Joy Perez herself told Ms. Fries-Furton that she confided in Mr. DeWitt and that it was very helpful to discuss her father's death with a man. Ms. Fries-Furton saw Mr. DeWitt and Ms. Perez together, but never witnessed any inappropriate behavior by either of them toward the other. Joy Perez never expressed to Ms. Fries-Furton any feelings for Mr. DeWitt beyond a normal teacher-student relationship. Ms. Perez was dating a boy she was "very involved with," and expressed no romantic interest in Mr. DeWitt. Ms. Fries-Furton testified that Joy had concerns about the type of relationship her boyfriend wanted. She counseled Joy to maintain her attitude, which was abstaining from any sexual relationship while in school. Ms. Fries-Furton stated that Joy Perez was always "very clear" about the fact that she had abstained from having sex with her boyfriend or anyone else. Ms. Fries-Furton said that, during the basketball season, she heard a rumor about Mr. DeWitt and Joy Perez, but that it was stated jokingly by other students, who said that Mr. DeWitt and Ms. Perez had "a thing" for each other. There was no mention of any sexual impropriety. She recalled discussing with the trainers the rumor about Mr. DeWitt and Ms. Perez. She stated that they all laughed about it because they thought it was very funny. Ms. Fries-Furton stated that there are always rumors about coaches and any females around them. Ms. Fries-Furton heard rumors that she herself was involved with Mr. DeWitt and with Mr. Chiles. Her student trainers told her the rumor about herself and Mr. DeWitt, because they thought it was funny. She took all these rumors as part of working with teenagers in the school system. Ms. Fries-Furton testified that had she taken these rumors seriously, she would have reported them immediately to Mr. Phaelen, and stated that she had done so in the past. She did not positively recall talking to Mr. DeWitt about the rumor, but she did remember Joy Perez telling her that there was no relationship between Mr. DeWitt and her. Ms. Perez told her that she simply valued Mr. DeWitt's willingness to listen to her. Ms. Fries-Furton did not talk to Ms. Perez' mother about the rumor, because Joy had told her there was nothing to it and she had no reason not to believe her. Ms. Fries-Furton testified that she never saw Mr. DeWitt and Ms. Perez together outside of school functions. She stated that she always stayed after basketball games until the trainers were picked up, and that she would take Joy home if her mother asked. Ms. Fries-Furton never saw Mr. DeWitt or Mr. Chiles taking Joy Perez home. Ms. Fries-Furton was the scorekeeper at all home games during the 1990-91 season, sitting at a table next to the team bench. She saw Karen DeWitt at the games, and would talk to her before the games and at halftime. She saw Marilyn DeWitt at some of the games. Ms. Fries-Furton stated that Joy Perez would have been in a position to see Karen and Marilyn DeWitt together at the games, and that most of the trainers knew them and would speak to them. She could not specifically recall Joy Perez having a conversation with Karen DeWitt, but knew that Karen spoke to most of the trainers at the games. Ms. Fries-Furton never had an understanding that Karen and David DeWitt were separated, nor did she hear any rumors of marital problems between them. Joy Perez never asked Ms. Fries- Furton if Mr. DeWitt was separated or having problems, or if he was married. Ms. Fries-Furton testified that she simply understood that Joy knew David DeWitt was married to Karen DeWitt. Joy Perez never gave her any indication that she doubted Mr. DeWitt's marital status. Ms. Fries-Furton testified that she continued to see Joy Perez even after her younger sister Gigi graduated, because they had been very close and Joy was a young woman she admired and respected. Ms. Fries-Furton would attend craft shows with Joy's mother, and stated that she had been to the mother's home more times than she could count. She never heard any member of the Perez family complain about the conduct of David DeWitt, or ever so much as insinuate that Joy Perez had an affair with David DeWitt. Joy Perez testified that she "knew of" Ms. Fries- Furton, but that she never confided in her or talked to her about personal problems. She became friendly with Ms. Fries-Furton only after she graduated. Ms. Perez stated that she could not recall whether she discussed her father's death with Ms. Fries- Furton. She flatly denied seeking counsel with Mr. DeWitt about her father's death. She conceded that Ms. Fries-Furton became friends with her mother, but claimed not to know when this friendship began or to know much else about it. Ms. Perez' denial of her friendship with Ms. Fries- Furton cannot be credited. Ms. Perez' denial that she sought the counsel of Mr. DeWitt regarding her father's death cannot be credited. Post-Suspension Stalking Mr. DeWitt was suspended with pay on February 17, 1999, after the Sarasota police completed their investigation of events at Riverview. Their report indicated that they had been unable to locate the former student in Miami with whom Mr. DeWitt was alleged to have had a sexual relationship. The Sarasota County School Board hired a private investigator to look into the Miami allegations. The investigator found Joy Perez and obtained a statement from her confirming that she had had a sexual relationship with Mr. DeWitt while she was a student at Miami Sunset. The investigator filed a report on April 15, 1999. On April 16, 1999, Mr. DeWitt's employment was terminated. Mr. DeWitt offered extensive testimony on events that transpired after his suspension and termination. While these events have no bearing on the charges that were lodged against Mr. DeWitt, they are relevant in that they call into question the veracity and credibility of Kendra Simpkins, one of Mr. DeWitt's primary accusers. Mr. DeWitt testified that after the trespassing incident, Jennifer Bonelli ceased her practice of following him around town. However, Kendra Simpkins began engaging in what Mr. DeWitt termed "stalking" behavior at about the time she began to drive a car. Her stalking intensified at the time Mr. DeWitt was suspended on February 17, 1999. On February 18, 1999, the day after Mr. DeWitt's suspension, an incident occurred at Ashton Elementary School, where Karen DeWitt worked as the instructional technology facilitator. Mari Usher was a technology support person at the school and worked closely with Karen DeWitt. Ms. Usher testified that late that morning, a girl came into the hallway between her office and that of Karen DeWitt. The girl stated that she was looking for Mrs. DeWitt. Ms. Usher told the girl that Mrs. DeWitt was off campus, and asked what reason she had to see her and whether she could be of assistance. The girl became nervous and said there was nothing Ms. Usher could do for her. The girl then asked Ms. Usher to give a message to Mrs. DeWitt. She asked Ms. Usher to tell Mrs. DeWitt that she would be picking up her brother at the end of the day. Ms. Usher testified that this made her suspicious, because as technology facilitator Karen DeWitt did not have a regular class of students and would not ordinarily be in charge of dismissing students at the end of the day. Ms. Usher asked the girl the name of her brother. The girl responded that his name was Clayton and he was in the second grade. Ms. Usher told her she would give the message to Mrs. DeWitt. The girl then turned and walked out of the school. Ms. Usher followed her, because she was suspicious. After the girl was gone, Ms. Usher spoke to the receptionist. The girl had not signed in or been given a hall pass. Ms. Usher then went to the school registrar and asked whether there was a student named Clayton in the second grade. There was no such student. Ms. Usher testified that the school's principal had told her that morning to be careful of high school students or reporters asking for Karen DeWitt, because of the press coverage of David DeWitt's suspension. Ms. Usher went to an assistant principal and reported the incident. The assistant principal sent her to the school's SRO, who wrote up a report. Ms. Usher also reported the incident to Karen DeWitt, who appeared concerned. Ms. Usher testified that her children attend Riverview, and that when she went home she looked for the girl's picture in the Riverview yearbook. She testified that she found the girl's picture, and that the girl was Kendra Simpkins. Kendra Simpkins has a brother named Clayton, though he did not attend Ashton Elementary School. On February 27, 1999, David DeWitt and his son Ryan were driving to Sports Authority to buy Ryan a new baseball glove. As they turned from Clark Road onto Proctor, Mr. DeWitt saw Kendra Simpkins driving on Clark Road. She saw him, made a U-turn in the middle of Clark Road, then followed Mr. DeWitt's car to Sports Authority. Mr. DeWitt and Ryan went into the store, soon followed by Ms. Simpkins and another girl. Mr. DeWitt and Ryan looked at the baseball gloves. Ms. Simpkins also looked at baseball gloves while talking with her friend. They stood near Mr. DeWitt and his son. Mr. DeWitt made no eye contact and did his best to ignore Ms. Simpkins. Mr. DeWitt and Ryan chose a glove, paid for it, and walked out of the store. Ms. Simpkins and her friend were standing outside next to Simpkins' car. They looked at Mr. DeWitt and his son, and laughed. Mr. DeWitt drove out of the lot, followed by Ms. Simpkins. Soon thereafter, Ms. Simpkins ceased following them. Later the same day, Karen DeWitt saw Ms. Simpkins at Twin Lakes Park during Ryan's little league game. Ms. Simpkins walked past Ryan's field several times. This was not an uncommon occurrence. David DeWitt testified that Ms. Simpkins often came to Ryan's games, which DeWitt coached. She would stand at the fence and stare at Mr. DeWitt. She would park her car near that of the DeWitts, and would sit in her car and stare at them as they left the park. The DeWitts' story was confirmed by Teresa Flannelly, whose son played little league baseball and soccer with Ryan DeWitt. She testified that on the first day of the 1999 season, her son's team was playing against Ryan's. Ms. Flannelly was sitting in the bleachers, and Mr. DeWitt was coaching first base. Mr. DeWitt motioned her over to the fence. When she came to the fence, Mr. DeWitt pointed out a girl standing at the fence opposite them, and told Ms. Flannelly that this was Kendra, the girl who had been following him and accusing him. Ms. Flannelly watched Ms. Simpkins for the rest of the game. Ms. Simpkins was alone, and stood by the fence and stared at Mr. DeWitt for the greater part of the game. Ms. Flannelly testified that she later looked at the Riverview yearbook and confirmed that the girl she saw at the field was Kendra Simpkins. She also reviewed the roster of her son's team and confirmed that Ms. Simpkins' brother, Clayton, was not on the team. The DeWitts testified that at about the time of David's suspension, Kendra Simpkins also began to appear at their church, Sarasota Baptist. David DeWitt testified that Ms. Simpkins' appearances at the church were sporadic. He stated that there were times when she appeared in the parking lot but did not go into the church. When she did go into the church, she always sat in a place that allowed her to observe the DeWitts. Karen DeWitt testified that she spoke to Ms. Simpkins at church in early March 1999, after they became aware that Ms. Simpkins seemed to be following them in and out of the church. Karen DeWitt testified that she stopped Ms. Simpkins by placing her hand lightly on Ms. Simpkins' arm, to let her know she wasn't there as a threat. Karen told Ms. Simpkins that she was David DeWitt's wife. Karen DeWitt testified that Ms. Simpkins' reaction was "kind of strange." Ms. Simpkins said, "Oh, my God, oh, my God, oh, my God. I'm so sorry, I'm so sorry, I'm so sorry." That was the extent of their conversation. Ms. Simpkins actions would vary from week to week, but followed the same general pattern. She would find a parking space next to the DeWitts' car. She would seat herself in the church so that she could watch the DeWitts. Both David DeWitt and his mother testified that the family changed its regular pew to try to avoid Ms. Simpkins, but she would move to their vicinity. Sometimes Ms. Simpkins would circle the parking lot in her car, waiting for the DeWitts to leave, then follow them home. Vicki McClenathen was a neighbor of the DeWitts. Her son played baseball with Ryan DeWitt, which led to a friendship between the boys. Ms. McClenathen's son attended a youth group at Sarasota Baptist Church with Ryan DeWitt. Ms. McClenathen visited the church one Sunday, and witnessed Kendra Simpkins following Mr. DeWitt and staring at him during the social period after the church service. She also witnessed Ms. Simpkins driving her car up and down the rows of the parking lot, apparently so that she could drive past the DeWitts as they walked to their car. She saw Ms. Simpkins drive out of the lot, then make a U-turn over a curb and come back just in time to follow the DeWitts' car as it pulled out of the lot. Mr. DeWitt and his son were fans of the University of Miami's football team, and Mr. DeWitt had a Miami Hurricanes license plate border on his car. On Sunday, November 7, 1999, Ryan noticed that the border was gone. Mr. DeWitt told Ryan that someone must have needed it and taken it. Ryan was not satisfied with this answer. He wanted to know why someone would come up to their car and take the license plate border, and wondered who would do such a thing. Mr. DeWitt testified that he tried to "make a positive" out of the situation, telling Ryan that at least there was now one more person driving around with a Miami Hurricanes border. He told Ryan they would go buy a new one. When they arrived at church that morning, Ms. Simpkins pulled in right behind them. When they got out of their car, Ryan looked over at Ms. Simpkins' car and said, "Dad, there's your Miami Hurricanes plate. How can your plate be on that car? Do you think that's the person who stole your plate?" Mr. DeWitt testified that he knew the border on Ms. Simpkins' car was his, because it was faded at the bottom. Mr. DeWitt tried to minimize the matter for Ryan's benefit, but discussed with his wife the fact that matters had now reached the point where Ms. Simpkins was stealing the license plate border from his car. There were various other instances of Ms. Simpkins following the DeWitts around town during 1999. Mr. DeWitt recalled a second incident at Sports Authority. He was there buying a baseball bat for Ryan, and Ms. Simpkins appeared. She asked him if he minded her going to his church. Mr. DeWitt answered that it wasn't "his" church, but that she needed to speak to his attorney before she had any conversation with him. Ms. Simpkins said that she hoped Mr. DeWitt could return to Riverview, because she needed a letter of recommendation for college. Mr. DeWitt thought her statement odd under the circumstances, but gave her his attorney's card and told her she would have to speak to the lawyer before having any conversations with him. Ms. Simpkins asked if she would have to tell the lawyer that she lied about Mr. DeWitt. Mr. DeWitt told her "that would be a start," but that he wasn't comfortable having this conversation with her at the moment. Mr. DeWitt testified that Ms. Simpkins read the attorney's card, which included the word "counselor." Ms. Simpkins said, "Counselor? Why do you think I need a counselor? People think I need counseling. Everybody's telling me." Mr. DeWitt testified that he could not follow exactly what Ms. Simpkins was saying, and he walked out of the store. On one occasion, Ms. Simpkins followed Mr. DeWitt and his mother as they drove to pick up his daughter Megan from preschool at Concordia Lutheran Church. The DeWitts were driving down Clark Road to Proctor when Ms. Simpkins spotted them and made a U-turn. Mr. DeWitt testified that he was concerned because he didn't want Ms. Simpkins to know where his daughter went to school. He drove up and down various roads, leading Ms. Simpkins on a wild goose chase while trying to lose her. He pulled into a parking lot and waited for her to pass. She quickly picked him up again when he pulled out of the lot. Eventually, Mr. DeWitt managed to lose her long enough to pick up Megan, though Ms. Simpkins again found them as they headed home. She followed them all the way home. On August 3, 1999, Ms. Simpkins followed David and Karen DeWitt home as they left a school board meeting. On August 28, 1999, Karen DeWitt drove to Publix in her husband's car. David DeWitt was out of town that day, and encouraged Karen to use his car because it is newer and he feels it is safer. Karen was in the deli section of Publix, and saw Kendra Simpkins come rushing around the corner. As Ms. Simpkins rounded the corner, she stopped and looked at Karen DeWitt, who called it a "bone chilling" kind of stare. Ms. Simpkins then turned on her heel and ran out of the store. As noted above, Vicki McClenathen's son played baseball with Ryan DeWitt. In Spring 1999, Ms. McClenathen would sit with Karen DeWitt at the baseball games. The boys were becoming best friends, spending time at each other's houses, and Karen DeWitt felt she needed to make Ms. McClenathen aware of the situation involving Kendra Simpkins. Karen gave Ms. McClenathen a physical description of Ms. Simpkins, gave her the license plate number of Ms. Simpkins' white Honda, and told her the car had a "Mercedes" plate on the front. The DeWitts asked Ms. McClenathen to feed Marilyn DeWitt's dogs twice a day for a week while the family went to their house in North Carolina. Marilyn DeWitt had retired from her teaching job in Miami and now lived in a house on David DeWitt's property in Sarasota. The DeWitts gave Ms. McClenathen a list of phone numbers where they could be reached, including their North Carolina number. Ms. McClenathen placed the list of numbers on a table in Marilyn DeWitt's garage, and put a can of insect repellant on top of it to keep it in place. One day, Ms. McClenathen came to feed the dogs and noticed that the can of insect repellant was on the ground and the list of phone numbers was gone. She told the DeWitts about it when they returned. The DeWitts told her that on the day she found the phone numbers missing, they began receiving hang-up phone calls in North Carolina. On September 16, 1999, Ms. McClenathen saw a car fitting the description given to her by Karen DeWitt as she drove out of the Saddle Creek subdivision. The white Honda was parked off the side of the road just past the DeWitts' house. Ms. McClenathen checked the license plate on the car. The number matched that given to her by Karen DeWitt. She drove past the car, and could see in her rear-view mirror that there was a Mercedes tag on the front of the car. Ms. McClenathen called the DeWitt house on her cell phone and spoke to David DeWitt, who told her that Ryan was playing outside and he needed to go check on him. David asked her to come back, so she drove back to the DeWitts' house and pulled into the driveway. The DeWitts walked out to meet her. The white Honda was parked just past the southeast corner of the DeWitts' property. No one was in the car. Ms. McClenathen stayed at the DeWitts' house for about 30 minutes. At length, she saw a young girl, teenaged, with medium length brown hair, in the bushes in the corner of the property near the Honda. The girl's head came up from the bushes, and she looked around. Ms. McClenathen pointed her out to the others. David DeWitt testified that they watched her for about ten minutes, but she waited them out. They all went into the house, and the girl drove away. Ms. McClenathen later consulted the Riverview yearbook and confirmed that the girl she saw was Kendra Simpkins. David DeWitt testified that on September 20, 1999, he was playing catch with Ryan in the front yard and saw Kendra Simpkins' car parked at the front gate of his property. She looked at them, then sped away. David DeWitt testified that on September 22, 1999, he was leaving his house at about noon. He stated that he and Karen were now in the habit of looking around the yard for Kendra Simpkins when they went outside. He did not see her in any of her "usual places." Then as he drove out of his driveway, he saw Ms. Simpkins' car backed into a culvert across the street from his house, apparently stuck in the mud. He circled back around to make sure it was her. He confirmed that it was Ms. Simpkins' car, but did not see her near the car. He turned around and drove back into his driveway, and saw Ms. Simpkins hiding in the bushes on the front of his property. Mr. DeWitt called Ms. McClenathen and asked her to drive by and take a photo of the car stuck in the ditch. She did so. When she drove by, she saw Kendra Simpkins sitting in the driver's seat of the car. On October 23, 1999, Ryan DeWitt was playing in the yard with a friend. Ryan and the friend came running into the house, upset, and told David DeWitt that somebody was watching them in the yard. Karen and David DeWitt both ran outside, in different directions. Karen could see Kendra Simpkins hiding behind the trees just off their property. Later, Karen tried to calm Ryan by telling him that it was probably just someone riding down the horse trail. Ryan said, no, she was hiding behind the tree watching them. The above findings are illustrative, not an exhaustive listing of the stalking activities of Kendra Simpkins during 1999. There were numerous instances of hang-up phone calls, of her following David and Ryan DeWitt to Twin Lakes Park and back home again, of her following the DeWitts to church and Bible studies, of her following Marilyn DeWitt when she drove David's car, of a general pattern of what can only be termed an obsessive stalking of David DeWitt and his family. The DeWitts warned their circle of friends, their co- workers, their church, and their children's caretakers about Kendra Simpkins. They made inquiries of the authorities, but did not seek a protective order, injunction, or other legal protection to end Kendra Simpkins' stalking. However, it must be noted that Ms. Simpkins had already signed a trespass warning on April 29, 1998, at the conclusion of the investigation into the egging incident. Ms. Simpkins admitted that she had "stalked" Mr. DeWitt along with Ms. Bonelli during the period leading up to the trespassing incident in 1998, but denied the allegations that she continued to trail Mr. DeWitt and his family around Sarasota up to and including the time of this hearing. Ms. Simpkins denied ever going to Ashton Elementary School. Ms. Simpkins testified that she has attended Sarasota Baptist Church since March or April 1999, but said she began going there because her grandparents attend the church. She testified that she didn't know Mr. DeWitt attended the church when she began going there. She stated that she was surprised to see him there, and tried to avoid him. She denied choosing her seat based on the DeWitts' location, denied waiting for them in the parking lot, and denied following them in her car after church. Ms. Simpkins denied going to Mr. DeWitt's house or trespassing on his property after she signed the trespass warning. She testified that she has a friend in the Saddle Creek subdivision whose house she goes to "all the time." This friend lives a "couple of houses down" from Mr. DeWitt, on the other side of the street. Ms. Simpkins admitted driving a white Honda. She stated that she got the car in Summer 1998, on her 16th birthday. Ms. Simpkins denied ever parking her car on Mr. DeWitt's property or in front of his property. She admitted having her car in a ditch near Mr. DeWitt's property, but stated that this was the result of attempting to teach a friend to drive with a stick shift. The friend ran the car into the ditch. Ms. Simpkins testified that her younger brother plays baseball at Twin Lakes Park, and she goes there often to watch him play. She stated that Mr. DeWitt saw her at the games, but never asked her to leave or even talked to her. Ms. Simpkins admitted seeing Mr. DeWitt twice at the Sports Authority. She stated that the first time, she was there with her friend and their younger brothers. They were buying a hat for her friend's brother. Ms. Simpkins stated that she saw Mr. DeWitt there with a "little kid" she assumed was his son. She stated that she did not try to talk to Mr. DeWitt or otherwise bother him. She denied having followed Mr. DeWitt to the store. Ms. Simpkins stated that the second meeting at Sports Authority occurred in June 1999. She was alone, buying workout clothes. She did not approach him, but when he walked by and said hello, she started talking to him. They talked about church, and she asked him if he minded that she was going there. Mr. DeWitt said that he didn't. Ms. Simpkins asked him about his situation with the School Board, and Mr. DeWitt told her that he was not upset with her. They talked about his termination. Mr. DeWitt never became angry, never asked her to leave him alone, never accused her of stalking him. Mr. DeWitt asked her why she "told them everything," and told her that she could have lied. Ms. Simpkins answered that she could not have lied. The DeWitts' version of the stalking incidents, supported by independent witnesses, is credited. Ultimate Facts Based upon the above findings, and all the testimony and documentary evidence, it is found that Petitioner did not prove by a preponderance of the evidence that David DeWitt engaged in inappropriate behavior with Jennifer Bonelli. Counsel for both parties correctly observed that the essence of this case is "he said/she said." The primary consideration is the credibility of Mr. DeWitt and of his accusers. An important secondary consideration is the corroborating evidence, which includes the credibility of the testimony offered by other witnesses. Mr. DeWitt took some actions that were questionable. He confronted Ms. Spielman without involving SRO Foster or Det. Price. He remained involved in the investigation well after he should have recused himself. However, these actions are as consistent with outraged innocence as with a scheme to conceal the facts. Aside from his freelance effort with Ms. Spielman, Mr. DeWitt consistently involved SRO Foster and/or Det. Price in his investigative activities. Each time a new rumor circulated or other event occurred, Mr. DeWitt's first act was to call SRO Foster and involve him. At the appropriate times, SRO Foster would call in Det. Price. These actions are inconsistent with an effort by either Mr. DeWitt or SRO Foster to cover up Mr. DeWitt's activities. Mr. DeWitt's actions were in the main consistent with his professions of innocence. If he had engaged in sexual improprieties with Jennifer Bonelli and wished to keep them concealed, it seems the last thing he would do is involve the police in the relatively minor matters of his being followed around town or the egging of his house, and thus provide Ms. Bonelli with an official platform to air her accusations. Petitioner suggests that Mr. DeWitt called in the police to provide himself with leverage against Ms. Bonelli by way of the threat of prosecution, thus ensuring that she would remain quiet. No evidence supported this suggestion. At the time the investigation of the egging commenced, Ms. Bonelli had given no indication to Mr. DeWitt that she had any intention of coming forward. Even if he were guilty, Mr. DeWitt had no motive to precipitate a crisis that might cause Ms. Bonelli to break her silence. Even prior to the egging, Mr. DeWitt had discussed the suspected trespassing and stalking with both SRO Foster and Mr. Flynn. He named names to both men. It makes no sense that Mr. DeWitt would go out of his way to link himself with these students in the minds of his boss and a police deputy if he were engaged in illicit activities with them. Not only the three main accusers, but Melissa McBride testified that Mr. DeWitt was at least coy about his marriage, if he did not outright deny being married. On the other hand, Katy Seib testified that Mr. DeWitt told her he was married. Jennifer Rizi knew he was married. Mr. DeWitt testified that he maintained a strict separation between his business and private life, and would not discuss family matters with students. Even if he said such things to these girls, Mr. DeWitt plainly could not have intended actually to convince anyone that he was unmarried. The actual facts could be ascertained by asking any adult and many students at the school. Mr. DeWitt was seen all over town with his family. They shopped together. He coached his son's baseball and soccer teams with his wife in attendance. The family attended church together. No one who was genuinely curious could possibly remain ignorant of Mr. DeWitt's marital status, even if he denied it. Mr. DeWitt's testimony that he never told anyone that he was not married must be credited. Based on the evidence presented at the hearing, it cannot be found that Mr. DeWitt engaged in the sexual activities alleged by Ms. Bonelli, including the "dirty talk." This failure of proof rests largely on the fact that Ms. Bonelli was not a credible witness. Ms. Bonelli freely admitted lying to the detectives, teachers, and school officials on the several occasions when she denied a relationship with Mr. DeWitt. Petitioner contended that these lies were motivated by fear of reprisal from Mr. DeWitt. Even crediting this rationale for Ms. Bonelli's lies to the authorities, the fact remains that Ms. Bonelli was also less than truthful in her testimony at the hearing. She testified that she developed a crush on Mr. DeWitt while she worked with him in the guidance office. Two other witnesses testified that she actually became romantically interested in Mr. DeWitt the previous year, before she had ever met him. Blair Johnson testified that during the summer before she began work in the guidance office, Ms. Bonelli was already jealously referring to Mr. DeWitt's wife as a "bitch" and a "slut." Ms. Bonelli testified that when she was working in the guidance office, she was unsure of Mr. DeWitt's marital status. In fact, she not only knew he was married, she knew the names of his wife and children, the ages of the children and where they went to school. As early as the summer before she started working in the guidance office, she was sending e-mails to Blair Johnson stating that "we need to get rid of Karen." Ms. Bonelli denied going to Sarasota Middle School to "stalk" Mr. DeWitt. Kendra Simpkins testified that she accompanied Ms. Bonelli there for that purpose on at least one occasion. Ms. Bonelli denied following Mr. DeWitt in her car. Kendra Simpkins, Christine Ross, and Blair Johnson all testified that they were with her when she did so. Ms. Bonelli denied sending e-mails to Blair Johnson or Linda Brooks purporting to be from Mr. DeWitt, though the evidence overwhelmingly demonstrated that she was the culprit. It is also noted that sending an e-mail to Ms. Brooks required Ms. Bonelli to sneak into Mr. DeWitt's office and copy the e-mail address from his daily planner. Ms. Bonelli's description of Twin Lakes Park as dark and semi-deserted was contradicted by the testimony of several witnesses, who described a well-lighted and very busy park. Though she testified that she did nothing more than "talk dirty" to Mr. DeWitt while he masturbated, Ms. Bonelli at various times told people that she had given him a "hand job," that she had performed oral sex on him, and that she had engaged in full sexual intercourse with him. She told Jennifer Rizi that she had done nothing at all with Mr. DeWitt. Ms. Bonelli denied spreading rumors of her sexual activities with Mr. DeWitt. Blair Johnson testified that she would brag about her alleged exploits to virtually anyone who would listen. Dominique McAnn testified that the 40 or so people in her circle of friends at Riverview were well aware of Ms. Bonelli's alleged exploits. Ms. Bonelli testified that Mr. DeWitt raised the issue of "cybersex" with her in an office discussion. Dominique McAnn credibly testified that Ms. Bonelli told her that she believed she had actually engaged in "cybersex" with Mr. DeWitt, using AOL. Ms. Bonelli testified that she was merely the driver for the egging incident, and that she did not even know what Ms. Simpkins and Ms. Ross were doing after she dropped them off at Mr. DeWitt's house. This was patently untrue. While there was conflict as to which girl had the idea to egg Mr. DeWitt's house, there was no question that Ms. Bonelli was present when the eggs were purchased and well knew why they were going to Mr. DeWitt's house that evening. Ms. Bonelli testified that she had no idea how Mr. DeWitt learned of her conversations with Ms. Spielman. The evidence demonstrated that Ms. Bonelli herself told Mr. DeWitt. Some of Ms. Bonelli's untruths regarded inconsequential matters; others went to the heart of her alleged relationship with Mr. DeWitt; all demonstrated that Ms. Bonelli's accusations against Mr. DeWitt cannot be accepted, without corroboration, in light of Mr. DeWitt's steadfast denial of each and every particular. Several witnesses testified that they heard rumors about Ms. Bonelli and Mr. DeWitt, or that Ms. Bonelli herself told them some version of the story she related at the hearing. However, the only witness who attempted to corroborate Ms. Bonelli's story with eyewitness testimony was her friend Christine Ross. As noted above, Ms. Ross was not a credible witness. Her testimony changed significantly between her deposition and the hearing, and changed in ways that conveniently eliminated discrepancies between her story and that of Ms. Bonelli. Details that were wrong in Ms. Bonelli's testimony, such as the type of car driven by Mr. DeWitt, were wrong in the same way in Ms. Ross' testimony. Another factor undercutting Ms. Bonelli's credibility is that she was unwilling to stand behind her story until she was cornered by Principal Flynn and threatened with expulsion. Petitioner argues that up to that point, Ms. Bonelli's chief concern was to avoid being responsible for Mr. DeWitt's termination, and that she was willing to lie to protect him. Under the facts of the case, it is more plausible to state that Ms. Bonelli found herself in a situation in which she had no choice but to assert the truth of her story, regardless of whether or not it actually happened. Finally, the key witness against Ms. Bonelli was Blair Johnson, one of her best friends at Riverview. Mr. Johnson was entirely credible, and testified that Ms. Bonelli admitted to him more than once that her story about a relationship with Mr. DeWitt was an invention. In summary, Mr. DeWitt was a much more credible witness than was Ms. Bonelli, and the corroborating evidence also tended to support Mr. DeWitt's denial of the sexual relationship with Ms. Bonelli, including the alleged "dirty talk." Petitioner failed to demonstrate that Mr. DeWitt engaged in inappropriate behavior with Ms. Bonelli, except insofar as his manner may have served to encourage Ms. Bonelli in her pursuit of him. Based upon the above findings, and all the testimony and documentary evidence, it is found that Petitioner did not prove by a preponderance of the evidence that David DeWitt engaged in inappropriate behavior with Kendra Simpkins. When Ms. Simpkins began working in the guidance area, she drew the attention of Ms. Bonelli, who initially spread offensive rumors about Ms. Simpkins, then drew Ms. Simpkins into her own obsessive orbit. Once Ms. Simpkins admitted that she, too, had a crush on Mr. DeWitt, Ms. Bonelli regaled her with stories of her adventures with Mr. DeWitt, including kissing and masturbating him. Ms. Simpkins apparently felt the need to match Ms. Bonelli's stories, because she told Ms. Bonelli that she, too, had "talked dirty" to Mr. DeWitt. At the hearing, Ms. Simpkins denied "talking dirty" to Mr. DeWitt. Blair Johnson's testimony provided the most accurate assessment of the Bonelli/Simpkins relationship: they were engaged in a contest, attempting to one-up each other with their stories of intimate encounters with Mr. DeWitt. Ms. Simpkins credibly testified that she believed Ms. Bonelli's stories. The first allegation by Ms. Simpkins was that Mr. DeWitt grabbed her crotch in his office. Even Ms. Simpkins admitted this may have been an accident. The tenor of her testimony left the impression that she hoped it was not an accident. Mr. DeWitt denied that the incident occurred at all. Mr. DeWitt's testimony is credited. It must be noted that Ms. Simpkins' story of the events of December 22, 1998 and January 4, 1999, is similar in its particulars to Ms. Bonelli's story, involving "dirty talk" and Mr. DeWitt's masturbating in a car at Twin Lakes Park. Ms. Simpkins story includes the additional elements of some kissing and fondling during the second episode. It is noted that Ms. Simpkins testified that Ms. Bonelli told her that she had kissed and masturbated Mr. DeWitt, indicating that the similarities were virtually complete in Ms. Simpkins' mind. Petitioner argues that this similarity demonstrates a pattern in Mr. DeWitt's predatory behavior. It would be at least as plausible to find that the similarity demonstrates Ms. Simpkins' susceptibility to Ms. Bonelli's stories and her desire to match or exceed Ms. Bonelli's alleged experiences with Mr. DeWitt. Based on the evidence presented, and the demeanor and credibility of the witnesses, it is no less plausible that Ms. Simpkins invented her story than that it actually happened. Ms. Simpkins' story regarding her sexual encounters with Mr. DeWitt at Twin Lakes Park ultimately founders on the dates she chose. The DeWitts convincingly recreated the events of December 22, 1998 and January 4, 1999, and showed that Mr. DeWitt's whereabouts during the critical times were accounted for and did not include Twin Lakes Park. Petitioner argues that Karen DeWitt's alibi testimony should be discarded on the basis of bias and a lack of independent corroboration. Potential bias is an element to consider for nearly every fact witness in this proceeding, and Karen DeWitt's relationship with David DeWitt must obviously be taken into account. Nonetheless, Karen DeWitt was a credible witness. Petitioner offered no particular instances of untruthful or even inconsistent testimony by Karen DeWitt. The undersigned declines Petitioner's invitation to presume she is lying because she is married to Mr. DeWitt. As to the lack of "independent corroboration," it is assumed that Petitioner refers to the fact that the DeWitts were able to produce only a single receipt from their December 22, 1998 shopping trip, and the sign-in sheet from Concordia Lutheran and the canceled check from Papa Johns to support their version of events on January 4, 1999. To the contrary, it is found that these items were sufficient to support the generally consistent and credible testimony of the DeWitts. Innocent people going about their daily business do not take great care to document their every move. Innocent people are generally unable to recall every minute of a randomly selected day nearly a year ago. The DeWitts remembered what they could and produced what they could find, several months after the fact, and what they found was consistent with their recollection of those dates. Kendra Simpkins, on the other hand, was plainly untruthful when she denied stalking the DeWitt family in 1999. David DeWitt, Karen DeWitt, Marilyn DeWitt, and Vicki McClenathen all offered credible and consistent testimony regarding Ms. Simpkins' activities. Petitioner argues that even if Ms. Simpkins is disbelieved on this point, her stalking activities have no bearing on her allegations against Mr. DeWitt. As noted above, the undersigned agrees that her stalking activities are not relevant to the allegations. However, her lying about her stalking activities is relevant to her overall credibility and veracity. Ms. Simpkins also lied to Mr. DeWitt twice about her participation in the egging of his house. After she admitted her involvement, she lied about the extent of that involvement. The evidence, including Ms. Simpkins' own testimony and demeanor, established that she was extremely susceptible to the manipulations of Ms. Bonelli. She joined Ms. Bonelli in the rifling of Mr. DeWitt's desk for photos of other students. She participated in the egging of Mr. DeWitt's house at a time when she had no grievance against Mr. DeWitt, simply because Ms. Bonelli suggested it. Her stories about events between her and Mr. DeWitt closely track those of Ms. Bonelli. She, too, claimed that she had a "cybersex" conversation with Mr. DeWitt. Her story that Mr. DeWitt hinted that "something’s going to happen" was similar to Ms. Bonelli’s story about Mr. DeWitt’s hinting about a "problem." Ms. Simpkins, too, claimed she went to Twin Lakes Park, and in that busy, bustling public place committed sex acts with Mr. DeWitt in a car. Petitioner’s theory that these stories confirm Mr. DeWitt’s guilt because they indicate a pattern in his predatory behavior would be more persuasive if Petitioner’s chief witnesses were at all credible. The only witnesses to the alleged sexual episodes were Ms. Bonelli and Ms. Simpkins. It is too much to ask that Mr. DeWitt be found guilty based on the word of two witnesses who were untruthful about so many other facts, important facts as well as trivial, in their testimony and in their dealings outside the courtroom. There is no choice but to find it equally as likely that these stories are fantasies invented by two girls with competing obsessions for the same man, as that they actually happened. The burden of persuasion rests on Petitioner, and it could not carry that burden with these highly dubious witnesses. Based upon the above findings, and all the testimony and documentary evidence, it is found that Petitioner did not prove by a preponderance of the evidence that David DeWitt engaged in inappropriate behavior with Joy Perez. Ms. Perez’ allegations present the most plausible case against Mr. DeWitt, because they are straightforward. Ms. Perez’ story does not include the obsessive elements that rendered Ms. Bonelli’s and Ms. Simpkins’ stories questionable even aside from their many outright falsehoods. Ms. Perez’ story is simple: she met Mr. DeWitt; they liked each other; they began to date; dating progressed to sex; and she ended the relationship because he lied to her about his marriage. Further, unlike Ms. Bonelli and Ms. Simpkins, Ms. Perez had no obvious motive to lie about her relationship with Mr. DeWitt. She was not wildly jealous of another girl, or threatened with expulsion from school. Ms. Perez kept her silence for more than eight years, and had to be sought out to tell her story. Even on the witness stand, Ms. Perez appeared somewhat reluctant to go into the details of her alleged relationship with Mr. DeWitt. Ms. Perez was vague on the origin of her relationship with Mr. DeWitt. He flattered her, she liked it, and they began going out after school. She recalled going to a Pizza Hut more than once, and a lunch at the Sizzler, and a dinner at Tony Roma's. Mr. DeWitt denied taking Ms. Perez out for meals. His testimony and that of his wife cast doubt on whether Mr. DeWitt would have taken Ms. Perez to eat at Pizza Hut or the Sizzler, because the former was frequented by students from Miami Sunset, and the latter was virtually next door to the DeWitts' home. The DeWitts also agreed that David had lunch with Karen virtually every day during the period in question. However, the DeWitts did not definitively rule out the possibility that he could have sneaked away for late lunches with Ms. Perez. Ms. Perez recalled that she had sex with Mr. DeWitt during the school day at various hotels, but she could not recall their names. This could be a genuine failure of memory, but the vagueness of her recollection also had the convenient benefit of depriving Mr. DeWitt of any opportunity to prove he was never at a particular hotel during the relevant period. Ms. Perez testified that she had sex with Mr. DeWitt at his mother's house, but was unable to draw a convincing diagram of the interior of the house. Her view of the general layout of the rooms was credible as the recollection of someone who was in a house once several years ago. However, the particular details she recalled, such as the photo of Mr. DeWitt, the mantel, and the furniture in the bedroom, were all wrong. There were disturbing discrepancies in Ms. Perez' testimony. She attempted to leave the impression that she hardly knew Deborah Fries-Furton, who credibly testified that they were so close that Ms. Perez' mother called her Joy's "second mother." Ms. Perez denied having discussions with Mr. DeWitt about her father's death. Mr. DeWitt testified that he did counsel her in dealing with the tragedy. Ms. Fries-Furton testified that Ms. Perez' mother expressed her gratitude for Mr. DeWitt's counseling and helping her daughter through her problems. Ms. Fries-Furton testified that Joy Perez herself stated that she found it helpful to discuss matters with a man. Ms. Perez testified that Mr. Chiles told her that Mr. DeWitt "might" be married. Then, under cross-examination, she admitted that Mr. Chiles told her that Mr. DeWitt definitely was married. Mr. Chiles recalled telling Ms. Perez that Mr. DeWitt was married, and was puzzled that she would say anything else. Ms. Perez testified that she never saw Karen or Marilyn DeWitt at a basketball game, or even knew that Karen DeWitt was David DeWitt's wife. The weight of the evidence established that Ms. Perez would almost certainly have seen these women at the games, and would have known that Karen DeWitt was David DeWitt's wife. Ms. Perez denied ever seeing Karen or Ryan DeWitt at the pottery class taught by Marilyn DeWitt. It is possible, but very unlikely, that Ms. Perez happened to miss Karen DeWitt's every visit to the class. The key discrepancy involves Ms. Perez' mother. Ms. Perez testified that her mother knew she was dating Mr. DeWitt and approved of it. She testified that Mr. DeWitt had discussions with her mother about the relationship. In contrast, Mr. DeWitt testified that Ms. Perez' mother told him that Joy was fond of and attracted to him, and that he made sure her mother knew those feelings were not reciprocated. Ms. Fries-Furton was a close friend of Ms. Perez' mother, and testified that she praised Mr. DeWitt's helping her daughter and never gave any hint that there was a romantic relationship. Ms. Perez' mother could have resolved these discrepancies by testifying. She did not testify. No reason was provided for Petitioner's failure to elicit direct testimony from this important corroborating witness. The weight of the evidence, including Ms. Perez' testimony and the odd reticence in her demeanor, failed to establish that the alleged affair occurred. Mr. DeWitt was unable to prove the physical impossibility of Ms. Perez' allegations in the manner he was able to do with Ms. Simpkins' Twin Lakes Park allegations, because Ms. Perez' allegations were too vaporous to admit of precise refutation. No testifying witness had a clue that an affair was going on. Ms. Fries-Furton testified that she heard some joking rumors among students that Mr. DeWitt and Ms. Perez had a "thing" for each other. Ms. Fries-Furton took this joking no more seriously than she did the rumors about herself and Mr. DeWitt, or herself and Mr. Chiles. This was part and parcel of the atmosphere in a high school locker room. The allegations of Ms. Bonelli and Ms. Simpkins had some support from other witnesses. Ms. Perez stood alone, and thus Petitioner's case rested entirely on the credibility of the accuser, as against the accused and a panoply of supportive witnesses. Ms. Perez' testimony, in essence, was that a sexual relationship occurred, some time, some place. At every point that she offered specifics, those specifics were credibly if not conclusively rebutted. Petitioner failed to carry its burden of proof as to the allegations of Joy Perez. Based upon the above findings, and all the testimony and documentary evidence, it is found that Petitioner did not prove by a preponderance of the evidence that David DeWitt engaged in inappropriate behavior and comments with other students or a teacher at Riverview High School. Petitioner presented the testimony of Katy Seib, Melissa McBride, and Lori Gully in an effort to demonstrate a pattern in Mr. DeWitt's behavior toward females at Riverview. Petitioner did so apparently because of the lurid statements attributed to these women in the investigative report of Det. Iorio and Det. Bang. As found above, this report was wholly unreliable. Ms. Seib testified that Mr. DeWitt never behaved unprofessionally toward her. Ms. Gully testified as to vague feelings she had about Mr. DeWitt, but conceded that his behavior with her was always professional. Ms. McBride testified that Mr. DeWitt hugged her in a way that made her uncomfortable, but that there was nothing sexual about it. She, too, had a "feeling" about Mr. DeWitt's intentions, but no concrete allegations. All of Mr. DeWitt's statements and actions could have been nothing more than friendliness and concern. Aside from the three accusers, and a statement attributed to Bethany Donato by the less than credible Det. Iorio, no witness testified that Mr. DeWitt actually propositioned her. Katy Seib and Jennifer Rizi described Mr. DeWitt as a person they could confide in and to whom they went with a variety of personal problems. The weight of the evidence showed that Mr. DeWitt was a good counselor to Ms. Perez during a time of distress. A consistent thread in the testimony, from witnesses testifying for and against Mr. DeWitt, was that he was an atypical administrator, approachable and concerned, willing to sit down with students and counsel them on their problems whether or not he was formally assigned to do so. Even Ms. Gully noted his extraordinary activity with students and his focus on their achievements. Petitioner failed to demonstrate that his actions masked any ulterior motive.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the School Board enter a final order dismissing the charges against Respondent and reinstating Respondent as an assistant principal with the Sarasota County School Board. DONE AND ENTERED this 27th day of October, 2000, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of October, 2000. COPIES FURNISHED: Robert K. Robinson, Esquire Bowman, George, Scheb, Toale & Robinson 22 South Tuttle Avenue, Suite 3 Sarasota, Florida 34237 James E. Aker, Esquire Icard, Merrill, Cullis, Timm, Furen & Ginsburg, P.A. 2033 Main Street, Suite 600 Post Office Box 4195 Sarasota, Florida 34237 David Bennett, Superintendent School Board of Sarasota County 1960 Landings Boulevard Sarasota, Florida 34231 Tom Gallagher, Commissioner Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Michael H. Olenick, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400
Recommendation Based on the foregoing, the Hearing Officer recommends that: Edgar Wilson Rodriguez stay at McArthur High School -- North until the end of the school year. The school system provide to Mrs. Rodriguez a hearing or other proceeding to correct the record or expunge the record. DONE and ORDERED this 22nd day of March, 1983, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, 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 22nd day of March, 1983. COPIES FURNISHED: Mark A. Valentine, Esquire 3000 Executive Plaza, Suite 300 3050 Biscayne Boulevard Miami, Florida 33137 Mr. and Mrs. Eduardo Rodriguez 159 West 44th Street Hialeah, Florida 33012 Phyllis O. Douglas, Esquire Administrative Office Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132
