The Issue Whether Ms. Rokos' teaching certificate should be revoked or otherwise disciplined for gross immorality or moral turpitude in violation of Section 231.28(1)(c), and (f), Florida Statutes (1987), of Rule 6B-1.006(3)(a), (e), and (h), Florida Administrative Code, the Principles of Professional Conduct for the Education Profession in Florida, and Section 231.28(1)(h), Florida Statutes (1987).
Findings Of Fact Nicole D. Rokos holds Florida Teaching Certificate 542378, in the areas of mental retardation and specific learning disabilities. She is 35 years old and has taught at exceptional student education programs for 11 1/2 years. At the time of the incident involved, Ms. Rokos was employed as a special education teacher at Ely High School by the School Board of Broward County. Ms. Rokos teaches students who are learning disabled, mentally handicapped, and emotionally disturbed. Learning-disabled students are typically of average or above average intelligence who do not learn in the same way as regular students, but require different teaching strategies and methods to succeed academically. Ms. Rokos often had contact with her students in addition to her regular class periods. She attempted to involve students in activities relating to areas in which they were insecure in order to improve their self-concept. As a teacher for 8 1/2 years at Ely High school, Ms. Rokos received very good evaluations of her performance which noted not only her teaching skills, but also her involvement in extra-curricular activities, see, e.g., the evaluations of December, 1982 and February, 1985. None of her evaluations contained any entries in the portion of the form used to describe areas needing improvement. Other teachers at Ely High School regard Ms. Rokos as an excellent teacher. Former students also regard her as an inspiring teacher. One of Ms. Rokos' students at Ely High School in 1988-89 school year was Earl Thomas Williams, Jr. He has learning disabilities in the areas of oral and written communication and mathematics and is of average intelligence. During December of 1988-89 school year he was 18 years of age, 6'3" tall and weighed 226 pounds. During evenings Earl Williams often would call Ms. Rokos for help with homework. Earl's father has high regard for Ms. Rokos, and believes that due to her work with Earl, Earl has stayed in school, and now attends community college. During the 1988-89 school year Marla Henderson, a cousin of Nicole Rokos by marriage, also attended Ely High School. She met Earl Williams through Ms. Rokos. Marla and Earl went out together from mid-September to mid-November, 1988. On December 3, 1988, at Earl's suggestion Ms. Rokos and another teacher accompanied Marla Henderson and Earl Williams to an Ely High School football game. That night Ms. Rokos dressed in socks and sneakers, white jogging shorts, white sweatpants which said "Tigers" down the side in orange letters, white tank top under a gray T-shirt with "Ely" written in orange letters across the front and a green "Ely" windbreaker. Earl Williams wore a yellow shirt, white jeans, and under them black cotton shorts that reach to the mid- thigh, which are similar to spandex bicycle shorts, but which fit somewhat more loosely. Those shorts had large white lettering horizontally at the elastic waist, as well as large white lettering vertically on the outside thigh area. After the game, at approximately 10:00 p.m., all four returned to the other teacher's home, where Ms. Rokos picked up her car, and left with Marla and Earl. Ms. Rokos' car has tinted windows. Marla was in the front seat and Earl in the back. Earl was sulking due to the recent break-up of his relationship with Marla. Ms. Rokos first dropped off Marla at approximately 11:00 p.m. Before returning to Earl's home, Earl ostensibly asked Ms. Rokos if they could go to a park and talk. Ms. Rokos drove to Kester Park in Pompano Beach, a park of approximately one square block. She pulled into the park between tall trees which line the perimeter of the park. The tree canopy obscured the light from near-by street lights in the car. A home invasion robbery had been reported to the Pompano Beach Police Department at a home near the park at about 11:00 p.m. At approximately 11:30 p.m. Officer William Weir of the Pompano Beach Police Department was in the area. He found Ms. Rokos' vehicle pulled between the trees at the park, which was then closed. Because the park was closed, and the car was partially concealed from view by the trees, he was alarmed, because the car could have been involved in the nearby robbery. Officer Weir was in a marked police car. Officer Weir drew near Ms. Rokos' car, and parked behind it so that the car could not back on to the street, nor go forward because of the trees and foliage in the park. He activated the spot lights on the top of his car, and could clearly identify a female figure inside the car. The driver side window was partially opened. As Officer Weir approached the car on foot, the driver attempted to back out, and although the car lurched back, its path was obstructed by the police car. As Office Weir reached the side of the car, a back-up officer arrived on the scene and also approached the vehicle. Officer Weir shined his police flashlight into the automobile where he could see Ms. Rokos and, for the first time, a man who was sitting in the passenger seat, who had not been visible before because the passenger seat was fully reclined. Officer Weir saw that Ms. Rokos was dressed only in a shirt, and was nude from the waist down. He could clearly see her thighs, pubic hair and genital area. Earl Williams was completely nude, and attempting to hide his genitals with the cloth of his yellow shirt. Officer Weir saw the student's penis protruding from beneath the material and his pubic hair. All facts taken together have led the Hearing Officer to infer that sexual contact between Ms. Rokos and the student had occurred or was imminent but interrupted by Officer Weir. In order to investigate further, Officer Weir directed both Ms. Rokos and Earl Williams to dress and exit the vehicle. After seeing Ms. Rokos' clothing with the Ely High School logo and noting the youth of her passenger, he asked whether she was a teacher. Initially, she denied it but later admitted to Officer Weir that Earl Williams was one of her students. Earl Williams readily admitted he was a student at Ely and Ms. Rokos was his teacher. She asked the officer not to report the incident, and was obviously distraught. Officer Weir then determined that Earl Williams was not a minor, and then warned Respondent about her conduct and allowed both of them to leave. Although no arrests were made, Officer Weir did file a uniform offense report about his contact with Ms. Rokos and Earl Williams at the end of his shift. Ms. Rokos testified that she was not nude, but had removed her socks, shoes, and sweatpants to be more comfortable, but was still wearing her shorts, and that Earl Williams had removed his shirt, which was in his lap, and had taken off his jeans, but he was not nude because he was wearing the black shorts. The testimony of Officer Weir is more credible. He saw the student completely nude and Ms. Rokos nude from the waist down. His testimony was emphatic and specific. Moreover, it was quite cool during the early morning hours of the night of December 3-4, 1988. There is no reasonable explanation for a teacher to have been parked in a car in a closed city park late at night with a student who had, according to her testimony, removed both his shirt and jeans, and for her to have removed her running shoes, socks, and sweatpants. Moreover, due to the bold white lettering horizontally across the waistband of the student's black shorts, and the bold white lettering vertically down the outside thigh of the shorts, the police officer would not have mistaken the shorts for flesh, even though the student is black. After receiving the incident report completed by Officer Weir, Lieutenant DeFuria of the Pompano Beach Police Department forwarded the report to the Director of Special Investigations at the School Board of Broward County, Howard J. Stearns. After reviewing the report on December 5, 1988, the first school day following the incident, Mr. Stearns had the administrators of Ely High School notify Ms. Rokos to meet with him at his office concerning the incident. At the interview, Ms. Rokos told Stearns that she was wearing underpants and the student was not nude. Having heard her denial, Mr. Stearns suggested that if she were being truthful, then Officer Weir must be lying, and the Pompano Beach Police Department should be requested to investigate the false report made by Officer Weir. Mr. Stearns began to dial the number of the Police Department, when Ms. Rokos relented and said that she did not think that any investigation of Officer Weir should be made. Ms. Rokos then broke into tears and asked to see her union representative. After meeting with that representative, Ms. Rokos resigned her position with the School Board of Broward County. One of the reasons she did so was to avoid the publicity incident to an investigation into the incident by the School Board. As the result of being discovered in such a compromising situation with one of her own students, Ms. Rokos has lost her effectiveness as a teacher in Broward County and would not be reemployed by the School Board of Broward County as an educator.
Recommendation It is recommended that the teaching certificate of Nicole D. Rokos be permanently revoked. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 12th day of January, 1990. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of January, 1990. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 89-3947 Rulings on findings proposed by the Commissioner of Education: 1. Adopted in finding of fact 1. 2. Covered in finding of fact 1. 3. Adopted in finding of fact 6. 4. Adopted in finding of fact 6. 5. Adopted in finding of fact 11. 6. Adopted in finding of fact 12. 7. Adopted in finding of fact 12. 8. Adopted in finding of fact 12. 9. Adopted in finding of fact 13. 10. Incorporated in finding of fact 13. Considered in finding of fact 15. Considered in finding of fact 16. Considered in findings of fact 6 and 12. The remaining portions of the proposal are rejected as argument. It is true, however, that it would have been impossible for Earl Williams to have disrobed without Ms. Rokos being aware of it. Discussed in finding of fact 15. Rejected as unnecessary. Discussed in finding of fact 16. Rejected as unnecessary. Rejected as unnecessary. Discussed in finding of fact 17. Rulings on findings proposed by Ms. Rokos: Adopted in finding of fact 1. Adopted in finding of fact 2. Generally adopted in finding of fact 3. To the extent appropriate, the evaluations are discussed in finding of fact 4. To the extent appropriate, discussed in finding of fact 5. Rejected as subordinate to the findings of fact made in findings 3-5. Rejected as unnecessary. To the extent appropriate, discussed in finding of fact 5. Discussed in finding of fact 6. Discussed in finding of fact 7. To the extent appropriate, discussed in finding of fact 8. Rejected as unnecessary. Adopted as modified in finding of fact 8. Discussed in finding of fact 9. Discussed in finding of fact 10. Rejected, see the findings made in finding of fact 10. Rejected; even if Ms. Rokos and Earl Williams discussed any matters relating to school, such discussions were not the focus of their activities in the car. See, the final sentence of finding of fact 12. Discussed in finding of fact 12. Discussed in finding of fact 12. How far the window was open is not significant; the officer had an adequate view of the scene. Adopted in finding of fact 12. Rejected for the reasons stated in finding of fact 15. Adopted in finding of fact 13. Rejected as subordinate to finding of fact 13. Rejected as unnecessary. 25 and 26. Discussed in finding of fact 16. To the extent appropriate, discussed in finding of fact 16. It is not clear whether Mr. Stearns said anything which would have led Ms. Rokos to believe than the school board would not report the matter to the Department of Education. The school board had no choice, and the matter was reported and investigated by the Department, which led to this proceeding. COPIES FURNISHED: Carolyn LeBoeuf, Esquire Brooks & LeBoeuf, P.A. 836 East Park Avenue Tallahassee, Florida 32301 Thomas W. Young, III, Esquire FEA/United 208 West Pensacola Street Tallahassee, Florida 32301 Karen Barr Wilde Executive Director Department of Education Education Practices Commission 301 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Martin B. Schapp, Administrator Professional Practices Services 319 West Madison Street, Room 3 Tallahassee, Florida 32399 Sydney H. McKenzie General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400
Findings Of Fact The Respondent was a noninstructional employee of the School Board of Date County, Florida at all times material hereto, and was assigned to Thomas Jefferson Junior High School as a teacher's aide. The Respondent has six years' experience as a teacher's aide with the Dade County School System. He has a high school education and thirteen months of college, as well as twelve months of technical training, including studies in psychology. The Respondent has never, in all the time he has been employed in the Dade County School System, had any complaints lodged against him for aggressive or violent conduct and has never been previously involved in an incident in which he struck a student, although on one occasion he had to defend himself when a student attacked him. On September 22, 1980, the Respondent escorted some students to a physical education class on the school athletic field. While he was attempting to get the complaining student, Jose Velez, to return to the classroom, that student threatened him with violence and ultimately physically attacked the Respondent. Mr. Turnquist had to restrain the student and escort him to the school office for imposition of disciplinary measures regarding his behavior. The Petitioner's first witness, Gloria Randolph, is the Assistant Principal for Curriculum and Teacher Morale. She supervises the Exceptional Student Department, as well as the teachers' aides, and is acquainted with the protagonists in the subject incident. She observed the Respondent enter the school office with the student, Jose Velez, conversing in loud voices, both the Respondent and Velez appearing quite agitated. The Respondent told her that he "brought this boy up here and want something done about it." The Respondent and the subject student, at that time, were standing about five feet apart. She stepped between them, but the student kept advancing and she had to shove him back repeatedly. The student, Velez, acting in an aggressive, mocking manner, urged the Respondent to hit him, and threatened him with bodily harm. The tension between the two kept increasing, with the ultimate result that the Respondent struck the student with a light blow to the cheek. According to both Petitioner's witnesses, the student seemed relieved at that point and immediately calmed down. Witness Randolph acknowledged that the Respondent exercised good judgment, up until the point of striking the student, because he followed appropriate procedures in bringing the student to the office for disciplinary measures to be taken, and did not indulge in an argument with the student, although she did feel it was poor judgment for him to strike the student. The student, Jose Velez, is at least six feet in height and is considerably taller than the Respondent. Petitioner's witness, Marilyn Mattran, a teacher at Jefferson Junior High School, who was in the office and observed the subject altercation, established that Velez repeatedly threatened the Respondent with physical harm and that the student engaged in most of the yelling and in the aggressive behavior she observed. She corroborated the fact that when the Respondent actually struck Velez, that he immediately calmed down. She also corroborated the testimony of witness Randolph, as well as the Respondent's witness, Leah Alopari, that Jose Velez is an emotionally disturbed student who has an extensive history of aggressive, violent behavior and has made a practice of threatening students and teachers with physical violence and harm, even to the extent of threatening the use of a deadly weapon. He has, on occasion, done physical violence to other children. These three witnesses all acknowledged that the Respondent has never in the past, in their experience, demonstrated poor judgment in his conduct toward and transactions with students or teachers. Leah Aloari is the Respondent's supervising teacher. Jose Velez was one of her students, and she corroborated the fact, demonstrated by the other witnesses, that this particular student was aggressive, difficult to control and prone to engage in violent behavior. The Respondent assisted her in helping discipline her students, with the academic program and in escorting children to and from lunch, classes and the athletic field. She has never observed the Respondent engage in violent behavior in his relations with teachers or students, nor commit an act which exhibited poor judgment or misconduct in the course of his duties. As indicated above, the Respondent has had an exemplary record in his six years with the Dade County School System. Jose Velez, on the other hand, has been a constant disciplinary problem as acknowledged by the Petitioner's and Respondent's witnesses. The Respondent has a chronic neck injury involving a pinched nerve in the neck, and genuinely believed himself to be in danger of physical assault and harm by Velez when the incident occurred in the office. He believed it unwise to retreat in the fact of Velez's threats and aggressive advance upon him because he felt Velez was about to physically attack him. The Respondent did not feel that the other teacher and the Assistant Principal, who were the only other persons in the office at the time, could have restrained or adequately controlled Velez alone if he had retreated. There is no question, especially in view of the fact that the Respondent had already been assaulted by the student on the athletic field, that he genuinely believed that the situation called for him taking steps to defend himself. His act of self-defense in striking the student was itself marked by some restraint in the sense that he withheld striking the student with as much force as he was capable of. There is no evidence that he caused any permanent harm to the student. Indeed, even the Petitioner's witnesses established that it had the beneficial effect of calming the student down and preventing any further violent conduct on his part or possible injury to the students, the Respondent, others present, or possible damage to the Petitioner's property in the immediate vicinity. The undersigned considers it significant also that the student, although initially complaining of the Respondent's action, did not appear and testify at the hearing in furtherance of his complaint against the Respondent and that there was no significant physical injury inflicted upon Velez.
Findings Of Fact Mary L. Baxter has been employed by the Polk County School Board for approximately 14 years, first as a classroom teacher, then as assistant principal, and in 1984 she was appointed as principal of John Cox Elementary School in Lakeland. While assigned to John Cox Elementary School, Petitioner was issued an annual contract for eleven months (Exhibit 5). Neriah E. Roberts is the Northwest Area Superintendent of Polk County Schools and was in that position at all times here relevant. As Northwest Area Superintendent, Dr. Roberts was Petitioner's immediate supervisor and supervised seventeen additional principals of the Polk County School System. Functions of the area superintendent include acting as liaison between the communities and the schools in his area responsibility, assisting the principals in obtaining funding for maintenance and other school activities and overseeing the performance of these principals. As Petitioner's immediate supervisor, Dr. Roberts prepared Petitioner's performance evaluation. In his first annual evaluation of Petitioner's performance (Exhibit 4), Dr. Roberts reported that Petitioner met performance standards. However, two of those blocks contained comments regarding performance by Petitioner that needed to be improved. Under "Student Services," Dr. Roberts commented that Petitioner should reassess her disciplinary procedures. Dr. Roberts had received complaints from parents of children at John Cox Elementary School indicating Petitioner was paddling an excessive number of pupils. When he checked the discipline records with Petitioner, he found some 97 pupils had been paddled during that school year. That discovery lead to Dr. Robert's comments. Under "Management" on the evaluation, Dr. Roberts commented that Petitioner should open lines of communication between her staff and her assistant principal. Dr. Roberts had received comments from teachers at John Cox that Petitioner was short tempered and was not popular with members of her instructional staff. On one occasion while Petitioner was principal at John Cox, Dr. Roberts met with the staff at John Cox at which meeting five or six teachers commented unfavorably on Petitioner's relations with her staff. Such reports formed the basis of these comments by Dr. Roberts above noted. In addition to placing the two comments on the March 25, 1985 evaluation, Dr. Roberts submitted a letter to Petitioner dated March 27, 1985 (Exhibit 6) in which he elaborated on the comments placed on the evaluation. Dr. Roberts held another conference with Petitioner on August 14, 1985, which he memorialized in a letter to Petitioner dated August 23, 1985, (Exhibit 7). In this letter, he referred to his March 27, 1985, letter and stated that letter was intended to substitute for a more formal professional development plan. In the evaluation of Petitioner dated March 3, 1986, Dr. Roberts reports that Petitioner successfully met minimum standards in all sections of the evaluation. However, in Section 1, comments are made that "Improvement has been made in leadership style, but this does not preclude the need for continued improvement." Under Item 11 on this evaluation, the comment appears that "Your flexibility and adjustment to this community and students has been good. Due to the inability to read the dates on some of the evaluations contained in Exhibit 4, it is impossible to tell which evaluation was for the second year and which is for the third year Petitioner was principal at John Knox. From Dr. Roberts' testimony, it appears that the evaluation for the second year is included in Exhibit 6, and the evaluation reports in Exhibit 4 in which the date is not legible was for her third year at John Cox. At the expiration of Petitioner's three years as principal at John Cox, she became eligible for a multi-year contract, and Dr. Roberts recommended her for such a contract. When this recommendation reached the superintendent's office, Donald R. Cox, Assistant Superintendent for Personnel, noted that the recommendation was inconsistent with school board policy and contacted Dr. Roberts to remind him of the policy that before administrative personnel can be given a multi-year contract, their performance evaluations must be totally satisfactory in each category on the evaluation report for the three years preceding the awarding of a multi-year contract. Dr. Roberts then contacted Petitioner by phone to tell her she would not receive a multi-year contract. Petitioner was quite upset during this conversation and indicated to Dr. Roberts that she would resign. She was requested to put her resignation in writing. This conversation occurred near the end of the week, and the following work day (either Friday or Monday) Dr. Roberts and Dr. Cox met with the superintendent. During this meeting, the status of Petitioner was brought up, and Dr. Roberts told the superintendent that Petitioner had indicated she would resign. Shortly thereafter on January 12, 1987, the superintendent of schools submitted a letter to Petitioner (Exhibit 5), accepting her verbal resignation as principal at John Cox Elementary School and advising her that she would be reassigned to the first available vacancy as assistant principal. By letter dated June 15, 1987 (Exhibit 10), Petitioner indicated she had not resigned and that the charges against her were based on information she had been given no opportunity to challenge or rebut. The superintendent then authorized Dr. Cox to set up a meeting with Petitioner and Dr. Roberts to try and resolve the differences. At this time, it was clear that no valid resignation had been submitted by Petitioner, and this was no longer an avenue to be pursued by the school board. Dr. Cox was authorized by the superintendent to offer Petitioner continued employment as principal of John Cox Elementary School, a transfer to another school as assistant principal at no reduction in salary or a return to professional status as instructional personnel. A meeting was scheduled and held shortly after June 15, 1987 between Roberts, Cox and Petitioner at which Cox offered the above noted alternatives to Petitioner. Petitioner then stated she did not want to remain at John Cox, but would like a lateral transfer to another school as principal. Cox was not authorized to approve the lateral transfer requested by Petitioner and told her he would relay that request to the superintendent and advise Petitioner. When Dr. Cox presented this proposal to the superintendent, the latter indicated he would refuse to recommend to the school board that Petitioner be employed at any other school to a position higher than assistant principal. Cox relayed this information back to Petitioner, and she was subsequently assigned as assistant principal at North Lakeland Elementary School at the same salary she had received as principal at John Cox. Petitioner subsequently requested the hearing to challenge this action, and these proceedings followed.
The Issue Whether Respondent, Robert P. Sulcer, as principal of Riverland Elementary School, is guilty of "incompetency, and/or misconduct in office and/or willful neglect of duty" as charged in a 28-count "Amended Petition for Dismissal from Broward County School System," filed September 6, 1984, and should be dismissed from employment with the Petitioner, Broward County School Board.
Findings Of Fact RESPONDENT: BACKGROUND AND PAST PERFORMANCE In 1955, Respondent received a Master's Degree in Education, Supervision, and Administration from Southern Illinois University. He moved to Broward County in 1957 and was first employed by the School Board as a teacher at McNab Elementary School. He has been employed as a principal for 25 years. In 1960, he became the principal of McNab Elementary and continued as a principal in various elementary schools until 1971 or 1972, when he became a principal at Pompano Beach Middle School for seven years. He was assigned the principalship at Lake Forest Elementary School for 5 years, then became principal of Riverland Elementary School in 1982. When he was suspended without pay on August 2, 1984, based on the charges which are the subject of this proceeding, he had a continuing contract (as principal) with the School Board. His supervisors evaluated (in writing) his performance as a principal during each of the 25 years he was a principal, including the 1982-83 and 1983- 84 school years. All evaluations were positive and described his performance as satisfactory. There were no negative comments. II COUNTS 1 AND 2: CONSISTENT DISCIPLINE PLAN Count 1 You are hereby charged with failing to estab- lish and/or maintain and/or formally present consistent rules and/or regulations regarding student discipline and/or student behavior for the staff and student body at Riverland Elementary School for the 1982-83 school year, which constitutes incompetency and/or misconduct in office and/or willful neglect of duty. Count 2 You are hereby charged with failing to estab- lish and/or maintain and/or formally present consistent rules and/or regulations regarding student discipline and/or student behavior for the staff and student body at Riverland Elementary School for the 1983-84 school year, which constitutes incompetency and/or misconduct in office and/or willful neglect of duty. Counts 1 and 2 center on the "development of a consistent disciplinary plan" at Riverland Elementary School, including rules and regulations for the 1982-83 and 1983-84 school years. To sustain these charges the School Board must demonstrate that there was no consistent disciplinary plan including rules and regulations in effect at Riverland Elementary School for the years 1982-1983 and 1983-84 and that such omission constituted incompetency, misconduct in office or willful neglect of duty. The evidence not only fails to substantiate these two charges but affirmatively establishes that a consistent formal disciplinary plan and procedure was in effect at Riverland Elementary School during the 1982-83 and 1983-84 school years. A. 1982-83 During the 1982-83 school year, the Student Conduct and Discipline Code ("Discipline Code") for Broward County was in effect and fully utilized. Riverland Elementary School received its accreditation at the conclusion of that year and there was no reference to an inconsistent or non-existent disciplinary plan. There were no reports of a non-existent or inappropriate disciplinary system at Riverland Elementary School during 1982-83 made to School Board administrators at any time prior to the lodging of initial charges in March 1984. (R-2; TR-IV, p.467; TR-V, p.712; TR-XI, pp.42,108) The Discipline Code delineated the teachers' responsibilities for student discipline as well as the consequences for student misconduct. During school year 1982-83, Respondent utilized the disciplinary referral system and handled student discipline problems in a manner consistent with the Discipline Code. (Conversely, there is no evidence demonstrating that Respondent failed to follow the Student Discipline Code in any instance, whatsoever during the year 1982-83.) He made sure (that parents, teachers, and students were aware of the Discipline Code. When he became principal of Riverland he discussed discipline with the students during an orientation assembly. He met with the grade level chairpersons on a daily basis and discussed discipline with them. They, in turn, were instructed to direct the teachers under their jurisdiction to review the contents of the Discipline Code with their students and ensure that students took the Code pamphlets home to be signed by their parents. In connection with the SACS review process, a student assembly was held to discuss discipline. Because of the type of children in the school and the age of the majority of the students, however, school-wide assemblies to discuss discipline proved to be less effective than small group discussions. Respondent's preferred use of small group settings and his utilization of the Discipline Code was deemed acceptable by his immediate supervisor. Other teachers followed a similar practice without objection. (TR-III, p.372; TR-IX, p.40, TR-X, p.83, TR-XIII, p.77, TR-XV, pp.38 169,2,192-193; TR-XVI, pp.8-9,16,48-49) B. 1983-84 During school year 1983-84, the Discipline Code remained in effect. Respondent continued to utilize it as the foundation for the disciplinary process in place at Riverland Elementary School. Indeed, use of the Discipline Code, as adopted by the School Board of Broward County, was mandated. Although several teachers testified that there should be a school-wide code which overlaps or supercedes the official county-wide Discipline Code, there is no showing that a school-wide code, other than the Discipline Code, was required or even customarily used in the school system (TR-I, pp.89,90, TR-II, p.201; TR- IV, p.467, TR-V, p.712; TR-IX, p.38; TR-XI, p.108; TR-XV, p.16) Several teachers critical of Respondent's performance testified that he should have adopted a code listing infractions which would automatically lead to specific consequences. To comply with this request, Respondent would have had to enact a code inconsistent with the Discipline Code mandated by the School Board. Page 6 of the Code sets forth the criteria to be used by a principal or his designee in meting out discipline. The Code attempts to match specific conse- quences with specific behavior. The numbers in brackets which follow each rule refer to consequences which may be used if misbehavior occurs. With the exception of Attendance, consequences are listed on page 24. Under certain circumstances, specification is mandatory and is so identified by an asterisk (*). When discipline problems occur in the pres- ence of a teachers it is the responsibility of the teacher to handle the situation until all strategies available to the teacher according to the School Board Policy have been exhausted. School personnel are encouraged to employ realistic and appropriate methods of disci- pline not necessarily outlined in this Code. For example, cleaning desk tops is an appro- priate consequence for writing on them. When determining the consequences, the fol- lowing circumstances should be taken into consideration: age and/or grade level of student; frequency of misconduct; seriousness of particular misconduct; attitude of student; student records; any other relevant factors including but not limited to, handicapped students who are governed by provi- sions outlined in School Board Policy 5006.1. (e.s.) Under this disciplinary scheme, a principal administers discipline not only to punish students but to encourage behavior modification. To accomplish the latter a principal is given alternatives and combinations of alternatives for use based on the unique circumstances of each situation. Factors to be taken into account include the number of prior referrals, the seriousness of the situation, the child's previous disciplinary record, the age of the child, the intellectual level of the child, the emotional level of the child, and any learning disabilities that might be associated with the child. Respondent followed the Discipline Code and administered discipline based upon the referrals he received from teachers. There was no showing that he failed to follow the student Discipline Code. If the charge is that the Discipline Code, itself, lacks "consistent rules and regulations," or fails to conform to "consistent rules and regulations" such charge is more appropriately directed at the School Boards which adopted the Coded than Respondent who merely implemented it. (TR-XV, pp.38-39, 54; TR-XVI, p.31) At the outset of the 1983-84 school year, Respondent again directed his grade level chairpersons to disseminate the Code to teachers and instruct them to teach the Code to their students. The teachers were instructed to use the Discipline Code in conjunction with I.T.V. programs during the first week or two of school. The teachers carried out these instructions. Students were taught the Code, and their understanding of the Code was reinforced throughout the year. (R,4, TR-II, pp.184, 189,201; TR-V, pp.638,640; TR-X, p.126; TR-XVI, pp.48-49,5-6) In addition to the grade level chairpersons' meetings, Respondent disseminated various bulletins dealing with discipline, specifically Bulletin 83-9, which set forth the steps the teachers were to utilize in the disciplinary process. He issued Bulletin 83-9 because some teachers were not following the Discipline Code and meting out the appropriate discipline in the classrooms (per the Code) before sending students to his office. This bulletin was intended to reinforce the Code's recognition that teachers are primarily responsible for discipline in the classroom. The Code recognizes that classroom management is an integral part, if not the most important component, in the disciplinary process: When discipline problems occur in the pres- ence of a teacher, it is the responsibility of the teacher to handle the situation until all strategies available to the teacher according to the School Board Policy have been exhausted. (R-4; TR-III, P.394; TR-V, p.708)(R-2, p.6, TR-XV, p.31) COUNTS 3 AND 4: INCONSISTENT METING OUT OF DISCIPLINE Count 3 You are hereby charged with failing to admin- ister discipline consistently and/or effec- tively for students referred to you by staff members during the 1982-83 school year, which constitutes incompetency and/or misconduct in office and/or willful neglect of duty. Count 4 You are hereby charged with failing to admin- ister discipline consistently and/or effec- tively for students referred to you by staff members during the 1983-84 school year, which constitutes incompetency and/or misconduct in office and/or willful neglect of duty. These charges allege inconsistency in the meting out of discipline by Respondent as opposed to the failure to establish or maintain consistent disciplinary rules alleged in Counts 1 and 2. Although inconsistent discipline was alleged, none has been shown. The only evidence offered to support these charges was innuendo and vague, elusive accusations or perceptions by several teachers, most of which were based on hearsay consisting of generalizations uttered by others. The record is devoid of specific, concrete examples of "inconsistent" disciplinary action by Respondent. The complete lack of specific evidence is not due to want of records. Detailed records of every disciplinary action taken by Respondent during 1983-84 were available for analysis. (743 discipline referral slips covering school year 1983-84 were retained by Respondent and available for review.) There is no evidence, however, that anyone critical of Respondent's meting out of discipline ever took the time to, or went to the trouble of, reviewing them. Indeed, no one on behalf of the School Board even asked to see them.) It was Respondent who offered all referral slips (identifying details of each infraction and Respondent's action) into evidence. Some teachers testified that there were too many steps in the referral process although how this complaint relates to inconsistency was not shown. Others testified that they had to go through every single disciplinary step in order to refer a child to Respondent for discipline. The opposite was proven to be true. If a situation was serious enough, the disciplinary steps prescribed by Respondent (which were essentially the same steps as those prescribed by the Discipline Code) could be short, circuited and an immediate referral made. When serious disciplinary problems occurred, teachers brought students directly to Respondent's office and he handled the situation. (TR-II, p.219; TR-III, p.425; TR-IV, p.475; TR-X, p.15; TR-XI, P.24) Respondent made an effort to insure that the disciplinary process at Riverland was rational, and known to and followed by all. In addition to Bulletin 83-9 (delineating the steps in the process), Respondent disseminated numerous other bulletins and materials dealing with assertive discipline as part of the Faculty Handbook. He met with the faculty and discussed the disciplinary process. He insisted they use the detailed referral process which he established. The referral slips themselves show that he used all of the allowable disciplinary consequences--individually or in combination--including, but not limited to, student conferences, verbal reprimands written punishments, parental contacts, internal suspensions, corporal punishments, and external suspensions based upon the unique circumstances of each case. (TR-III, P.427; TR-XVI, pp.15,31; R-1; R-2) A. 1982-83 Count 3 alleges that Respondent failed to administer discipline in a consistent manner for the school year 1982-83. There was no meaningful evidence of any inconsistent discipline administered in 1982-83. There was no testimony or documentation of one specific incident which Respondent could cross-examine or refute. 2/ Indeed the record supports an inference that discipline was meted out consistently during 1982-83. There was a detailed Discipline Code in effect, known to all, and he insisted that it be followed. The SACS Report, prepared by the teachers at Riverland, and the grant of accreditation do not reflect that discipline was being inconsistently administered. Ms. Swilley, the Department of Education's competence reviewer, doesn't find inconsistent discipline; she refers to materials appended to her report, and then states the referrals reflect the teacher "concerns." The appended material only contains referrals from 1983-84 gathered together by Ms. Elmore, one of Respondent's harshest critics. The official Broward County School Board Progress Reports for Riverland Elementary School during 1982-83 and 1983-84, reflect teachers', students', and parents', attitudes, all of which are extremely high. (Teachers- -86 percent, parent--92 percent, and students--88 percent) There is no evidence that this alleged deficiency was ever complained of or mentioned in any memoranda, read-react-and-return memo, grade level chairperson minutes, faculty minutes, correspondence to Respondent's supervisor or Board administrators, notes or minutes of the P.T.A., parents advisory group, Respondent's performance evaluation, or any other document. (R-4; Appendix 14; P-4; P-3; R-19) B 1983-84 Similarly, no factual basis has been shown for the charge that Respondent inconsistently administered discipline during the 1983-84 school year. This charge, too, is unsubstantiated. No systematic analysis of the 1983-84 disciplinary records of particular students was done to demonstrate that students were disciplined differently when the facts indicate they should have been disciplined the same. Although some witnesses generally testified that Respondent disciplined students inconsistently during 1983-84, their conclusions were not substantiated. Although one teacher, Ms. Ordway, claimed inconsistency in the meting out of discipline, she could not give one specific example. Similar negative conclusions by Ms. Ross, another teacher, were based on "what the [other] teachers would say." The testimony of Ms. Kasmarik, another teacher, supports the opposite conclusion: Q. (By Mr. Panza) Ms. Kasmarik, let me ask you do you know what--can you give me specific instances that Mr. Sulcer treated two children with disparate consequences for the same act? Can you give me an example? A. That I personally saw it or that I heard about it? Q. No. You are the witness. What you saw, personally were involved in. A. With the referrals that he wrote up, Mr. Sulcer--The only referrals I wrote up were for fighting. That's the only referrals I wrote up, and when I got the response from that, Mr. Sulcer had used corporal punishment on both children. Q. So they were consistent as it goes to your personal observations? A. As my personal observations, it was consistent, yes. (e.s.) (TR-VI, p.826, TR-X, p.147) Likewise, Ms. Bullock, another teacher critical of Respondent's performance, testified: A. I would say that the punishment was consistent. Now, the problem is I didn't feel it was severe enough because it didn't prevent them from repeating the same incidents. (TR-XI, p.23) Mr. Dandy, Respondent's supervisor throughout, and the person who initially pressed him to correct alleged deficiencies, was unable to recall any specific instance of inconsistent discipline being meted out; rather, his criticism of Respondent only reflected the "teachers' perceptions." The unsubstantiated "perceptions" of other teachers based on nothing more than generalized complaint or hearsay are patently insufficient to sustain the charge. (TR-XIII, pp.82- 83,92,97) Respondent followed a set procedure in disciplining students. Before referral the child would describe, in writing, the misbehavior so that the child would understand the significance and inappropriateness of the conduct. On referral to the principal the child would bring with him or her the written description of the incident. Respondent would discuss the situation with the child review any prior disciplinary problems, and then determine the appropriate consequence based on the Discipline Code. He often gave verbal reprimands arranged for parent conferences, or wrote letters to parents. (TR- XVI, pp.10,11,20,31) Witnesses who complained of Respondent's disciplinary actions at hearing never stated what they expected him to do other than to formulate an additional code specifying an automatic consequence for every conceivable infraction. Such a rigidly defined code is neither required nor customary in Broward County. Moreover, it would be difficult, if not impossible, to construct a code with such mathematical precision. The effective disciplining of students is an art, not a science, involving many human variables. It requires flexibility and the exercise of professional judgment. A rigid code which precludes a principal from taking into account the unique circumstances of each case would be inconsistent with the Discipline Code adopted by the Board. COUNTS 5 AND 6: DETERRENCE OF CHRONIC BEHAVIOR OFFENDERS Count 5 You are hereby charged with failing to estab- lish adequate deterrent as a result of your action of causing or allowing students to become chronic or serious behavior offenders as a result of your inadequately disciplining said, students referred to you by teachers during the 1982-83 school year, which consti- tutes incompetency and/or misconduct in office and/or willful neglect of duty. Count 6 You are hereby charged with failing to estab- lish adequate deterrent as a result of your action causing or allowing students to become chronic or serious behavior offenders as a result of your inadequately disciplining said students referred to you by teachers during the 1983-84 school year, which constitutes incompetency and/or misconduct in office and/or willful neglect of duty. Here, the Board charges that Respondent failed to establish adequate deterrents and, as a result, he allowed or caused students to become chronic or serious behavior offenders during school year 1982-83. A. 1982-83 The Board has not shown what a "chronic behavior offender" 3/ is or how many students, out of the total student population of approximately 600, fit this category. Neither was it shown that there were a significant number of chronic offenders that "were caused" by Respondent's disciplinary actions. There was student misbehavior at Riverland Elementary School while Respondent was principal, as there was prior to his arrival and after his departure. It has not been shown that the misbehavior was caused by Respondent's efforts to enforce the Student Discipline Code. Many of the children at Riverland came from poor families. These children had little respect for authority and had attitude problems stemming from background and upbringing. Many came from single-parent homes. Many of the children who had behavior problems at school came from homes where discipline was lax or nonexistent. The student population was transient--students were constantly checking in or out of the school. Some students had repeated at least two grade levels so there were several children 13 or 14 years old. Some children had learning disabilities and could be disciplined only in accordance with their prescribed plans. (TR-II, pp.193,222; TR-X, pp.39, 40, 131; TR-XI, p.27; TR-XV, pp.39, 44, 46) Given the diversity and nature of this student body, it has not been shown how the repetitive misbehavior of five to ten of the students can be fairly or logically imputed to Respondent's action or inaction. These students, which the Board (at least for the purpose of this proceeding) classifies as "chronic offenders," were not identified, neither was each incident of misbehavior together with Respondent's disciplinary action, analyzed, compared and critiqued by qualified witnesses. Finally, though some students were referred numerous times, it has not been shown that there was an inordinate number of such students, given the nature and diversity of the student population. Neither does it appear that such repetitive referrals became a problem of serious concern to teachers. The SACS Report, prepared by the teachers at Riverland, does not indicate that a "chronic offender" problem existed at the school. (R-13) B. 1983-84 The nature of students at Riverland Elementary School during 1983-84 was similar to that of the previous year and the Board's failure of proof is, likewise, the same. Respondent applied the district-wide Discipline Code in disciplining the students. The teachers were responsible for the teaching of the Code to students, and for the management of students in their classrooms. All acknowledged that the proper disciplining of students is a joint or cooperative effort by teachers, administrators, and principals. The evidence fails to show that there was an inordinate number of repetitive referrals, neither does it disclose the identity of these children (including their particular acts of misbehavior and the discipline administered) or how Respondent's action was deficient. To the extent some children were repeatedly referred for misbehavior, it has not been shown that Respondent's disciplinary action was the cause. It may well be that the teachers of these children failed to properly control and prevent their misbehavior, or the misbehavior may be due more to the unique personality and family context of each child. (R-2) Indeed, the parents of some of these children tried, without success, to modify their behavior. There were occasions when Respondent would have two or three parental conferences concerning a child's misbehavior, yet--a few weeks later--the child would revert to inappropriate conduct. Several teachers who testified were critical of the effectiveness of Respondent's disciplinary action, but failed to indicate action that would have been more effective. Some teachers favored more use of external suspensions, but under School Board policy external suspensions are to be used only as the last resort. Respondent did suspend some students and the referral slips for 1983-84 showed he used corporal punishment extensively. (R-66) As with school year 1982-83, the record does not establish the identity and number of the "chronic or serious behavior offenders". A reasonable estimate would be that there were between five and ten children (out of 600 students) who had repetitive disciplinary referrals. There is no basis to conclude that this is an inappropriate or unusually high number. In a student population of this nature and diversity, it is perhaps unavoidable that there will be some students who will be repetitively referred for disciplinary action. This condition existed before Respondent arrived at Riverland--and has persisted since he left. COUNTS 7 AND 8 VERBAL AGREEMENTS-1982-83 AND 1983-84 Count 7 You are hereby charged with repeatedly ac- cepting or entering into verbal agreements with students who are repeat offenders that they will not repeat said negative behav- ior/offense in lieu of providing appropriate discipline which has resulted in a negative impact on student behavior and/or student discipline at Riverland Elementary School during the 1982-83 school year, which consti- tutes incompetency and/or misconduct in office and/or willful neglect of duty. Count 8 You are hereby charged with repeatedly ac- cepting or entering into verbal agreements with students who are repeat offenders that they will not repeat said negative behav- ior/offense in lieu of providing appropriate discipline which has resulted in a negative impact on student behavior and/or student discipline at Riverland Elementary School during the 1983-84 school year, which consti- tutes incompetency and/or misconduct in office and/or willful neglect of duty. A. 1982-83 In order to substantiate this charge, it was incumbent on the Board to identify those "repeat offender" students with whom Respondent entered into verbal agreements not to engage in the same conduct to specify the circumstances surrounding the infraction and to show that such verbal agreements were inappropriate. The appropriateness of a disciplinary action (otherwise authorized) cannot be determined without considering the facts and circumstances of the case. The Board has failed to substantiate its charges with concrete and specific evidence. Indeed the record is devoid of evidence establishing that Respondent even entered into verbal agreements with students during 1982-83, under any circumstances. (The Board apparently assumed that he entered into verbal agreements with children who were repeat offenders, that such agreements were "in lieu of providing any appropriate discipline," and that such action had a negative impact on student behavior and student discipline at Riverland Elementary School.) It was not shown that Respondent inappropriately used the Student Discipline Code in any instance when he "counseled" with students concerning inappropriate conduct. 4/ To determine appropriate discipline for an individual student, all of the factors contained on page 6 of the Discipline Code would have to be considered in light of the specific infraction. Because of the flexibility and discretion given school principals, any analysis less definitive would be incomplete. (R-2) B. 1983-84 In 1983-84, Respondent--who continued to use the Student Discipline Code--entered into verbal agreements with students, whereby the students agreed not to engage in further inappropriate conduct. It has not been shown that he entered such verbal agreements in lieu of any other more appropriate discipline, or that, in any particular case, the verbal agreement was inappropriate. "Repeat offenders" were not identified nor Respondent's action in any particular incident shown to be improper. As already mentioned, the Board has not demonstrated that Respondent failed to follow the Student Discipline Code in the meting out of discipline. Under this Code, the use of verbal agreements, as part of the overall discipline process, is appropriate. Thus the critical factor is not the entering into of verbal agreements (because verbal agreements are permitted), but rather whether he did so in lieu of other more appropriate discipline. But disciplinary action--otherwise permissible--cannot be found inappropriate without knowing the specific facts of an incident. Such facts have not been shown. COUNTS 9 AND 10 RAMPANT DISRESPECT AND VERBAL ABUSE Count 9 You are hereby charged with unacceptable performance in administering the school discipline program during the 1982-83 school year and said performance has led to rampant disrespect by students toward teachers through verbal abuse and defiance of teacher instructions, which constitutes incompetency and/or misconduct in office and/or willful neglect of duty. Count 10 You are hereby charged with unacceptable performance in administering the school discipline program during the 1983-84 school year and said performance has led to rampant disrespect by students toward teachers through verbal abuse and defiance of teacher instructions, which constitutes incompetency and/or misconduct in office and/or willful neglect of duty. A. 1982-83 Here the Board charges Respondent with "unacceptable performance" in administering the school discipline program during school year 1982-83. Respondent's discipline program was based on the Student Discipline Code and it was not shown that he ever violated that Code. The Board further charges that Respondent's disciplinary performance led to "rampant disrespect" by students towards teachers through verbal abuse and defiance of teachers' instructions. The evidence is insufficient to sustain a finding of rampant disrespect for teachers by students. 5/ Neither was it shown that any specific incident of disrespect was attributable to Respondent's implementation of the Student Discipline Code. Once again, this charge rests on supposition and generalization and lacks a factual foundation. Assuming, arguendo, that a student verbally defies a teacher's instructions, the question becomes whether the defiance is attributable to a principal's conduct. There are several plausible reasons as for defiance of a teacher's instructions, many of them unrelated to a principal's actions or inactions. Teachers may fail in managing their classrooms and earning the respect of their students, parents may have neglected to teach their children to respect and obey teachers. Here, the Board has not established a causal relationship between Respondent's conduct and any defiance of teachers by students. Speculation or generalization cannot substitute for specific and concrete evidence. (TR-X, pp. 100,101) B. 1983-84 For similar reasons, the charge relating to school year 1983-84 is unsubstantiated. Rampant disrespect for teachers has not been shown. (TR-X, pp.9,10,16,17) It has not been shown that Respondent violated the Discipline Coded the foundation of his disciplinary process, during 1982-83 or 1983-84. Neither has rampant disrespect for teachers been shown. The SACS Report completed by the teachers at the conclusion of the 1983 school year, makes no mention of it. Neither do any memoranda, documents, or other school records support this claim. If student disrespect and defiance had been so widespread, it is likely that it would have been brought to the attention of School Board officials long before Mr. Dandy came to Riverland to listen to teachers' grievances on February 17, 1984. (R-13) COUNTS 11 AND 12 CONTRIBUTING TO SERIOUS DISCIPLINE AND/OR BEHAVIOR PROBLEMS WHEREIN STUDENTS EXHIBITED DEFIANCE Count 11 You are hereby charged with contributing to the serious discipline and/or student behav- ior problems which occurred at Riverland Elementary School during the 1982-83 school year, wherein students exhibited defiance and disrespect toward authority figures and toward fellow students which constitutes incompetency and/or misconduct in office and/or willful neglect of duty. Count 12 You are hereby charged with contributing to the serious discipline and/or student behav- ior problems which occurred at Riverland Elementary School during the 1982-83 school year, wherein students exhibited defiance and disrespect toward authority figures and toward, fellow students which constitutes incompetency and/or misconduct in office and/or willful neglect of duty. Counts 11 and 12, virtually identical to Counts 9 and 10, are, likewise, unsubstantiated by the evidence. The record is inadequate to support a conclusion that Respondent contributed to serious discipline or student behavior exhibiting defiance and disrespect toward teachers and fellow students. It is likely that student disrespect for or defiance of teachers occurs, at least occasionally, in every elementary school. Relevant questions are what was the frequency and magnitude of the defiance and disrespect; who were the offenders, and what factors or combination of factors caused or contributed to it? The evidence offered by the Board is non-specific and incapable of supplying answers to these questions. Count 13 THE LOCKING OF THE BATHROOMS BECAUSE OF VANDALISM Count 13 You are hereby charged with failing to di- rect, administer and maintain a program to foster proper student behavior in the halls to such an extent that during the 1983-84 school year one set of bathrooms had to be locked because of fights among students and vandalism of bathrooms during the school day, which constitutes incompetency and/or miscon- duct in office and/or willful neglect of duty. Here, alleged student misbehavior (establishing Respondent's incompetence and/or misconduct in office and/or willful neglect of duty) was so bad that one set of bathrooms had to be locked because of fights among students and vandalism. This charge is unsubstantiated by concrete factually meaningful evidence; it is based, in the main, on hearsay and the unsupported conclusions of several teachers. It was not shown that vandalism in the bathrooms at Riverland Elementary increased or was at an unacceptably high level during 1983-84, or that any property damage was attributable to Respondent's performance of his duties. An occasional act of vandalism or damage to school property cannot, by itself and without more, support a conclusion that a principal is guilty of incompetency, misconduct in officer or willful neglect of duty. Neither was it shown that there were students fights in the bathrooms, or that fights occurred with such frequency that Respondent was forced to close the bathrooms. Rather, students would gather in the bathrooms prior to school starting and get into mischief. Mary Jo Sluder a teacher who was also Safety Patrol Director and supervised the school hallways, complained to Respondent that she was having problems watching both sets of bathrooms before school started. Respondent asked if it would help if one set of bathrooms remained locked until the second bell at 8:15 a.m., signaling the start of school. Ms. Sluder replied that it would be helpful and the plan was implemented. So one set of bathrooms remained locked for approximately 15 minutes, between 8:00 a.m. and 8:15 a.m., while children were at school. At 8:15 a.m., it was opened. (TR- XVI, pp.41,42; TR-IV, p.452) This was an acceptable strategy used by other principals under similar circumstances, and violated no rule or policy of the School Board. Between the first (8:00 a.m.) and second (8:15 a.m.) bells, bathrooms were always accessible to students. Respondent's action was a rational measured response to a problem perceived by the Safety Patrol Director and it obtained positive results without imposing a hardship on anyone. The danger of relying on hearsay and generalized conclusions of others is illustrated by the testimony offered to support this charge. Mr. Dandy, Respondent's immediate Area Supervisor and an individual who identified Respondent's action as deficient, admitted that he had no specific facts to support this charge; he had only talked to teachers and had reviewed no vandalism records at the school. Of the teachers who testified, one did not know if vandalism had increased during Respondent's tenure over that which had occurred under his predecessor; one did not know how long the bathrooms were closed. Although one teacher testified that it was common knowledge that the bathroom was locked because of vandalism--and this was the extent of her knowledge--vandalism was not discussed at the faculty meetings. Teachers would sometimes stop in the girls' and boys' bathrooms, to tell them to quit playing around. One teacher who complained of vandalism never witnessed conditions inside the bathrooms, never wrote disciplinary referrals for students who congregated in them, and never sent them to Respondent's office. (TR-V, pp. 578,774, TR-II, pp.242, 243, 245, 324; TR-IV, pp. 433, 451; TR-VI, pp. 871,872; TR-X, p.150) COUNTS 14 AND 15: TOO MUCH TIME OFF-CAMPUS AND NOT ENOUGH ON-CAMPUS VISIBILITY Count 14 You are hereby charged with spending too much or inordinate amounts of time in your office and/or off campus and not making yourself visible enough among students which has contributed to poor student disci- pline/behavior problems at Riverland Elemen- tary School during the 1982-83 school year, which constitutes incompetency and/or miscon- duct in office and/or willful neglect of duty. Count 15 You are hereby charged with spending too much or inordinate amounts of time in your office and/or off campus and not making yourself visible enough among students which has contributed to poor student disci- pline/behavior problems at Riverland Elemen, tary School during the 1983-84 school year, which constitutes incompetency and/or miscon, duct in office and/or willful neglect of duty. These charges accuse Respondent of spending too much time off-campus or in his officer and not making himself "visible enough" among students, thus contributing to poor student disciplinary behavior. Once again, as with the other charges, there is no evidence that Respondent, during 1982-83, spent too much time or an inordinate amount of time in his office or off-campus. This was not identified as a problem by the SACS Report or documented by any exhibit in evidence. A principal is evaluated based on his or her performance. Respondent's evaluations for the years 1982-83 and 1983-84 were totally acceptable. Neither indicates Respondent spent inordinate amounts of time in his office or off-campus, or that he did not make himself "visible enough." Respondent, charged with the responsibility of administering an entire school, attended numerous off-campus functions such as county directed meetings, parent conferences, visitations, professional meetings, and community service projects relating to Riverland Elementary School. His attendance was legitimate and, in most instances, required. (TR-I, p.74; TR-VIII, pp.40,42; TR-XIII, pp.14,16,20; TR-XV, p.46, R-45) It was not shown (nor was it alleged) that Respondent was unlawfully or inappropriately engaging in personal activities off campus. The charges focus on the frequency of his absences, not his whereabouts. The school district official who prepared this charge had no independent knowledge of Respondent's absences, and did no analysis to determine the extent of his absences from campus. Rather, he simply relied on and reiterated vague conclusions offered by several teachers dissatisfied with Respondent's performance. (TR-II, p.246; TR-IV, p.888; TR-VIII, pp.23, 24, 143) Mr. Stephenson, the school district official who helped prepare the charge, never asked Respondent about his alleged excessive absenteeism from campus because (according to Stephenson) that would be a normal routine matter discussed between a principal and his Area Superintendent (Mr. Dandy). But Mr. Dandy never asked Respondent about alleged excessive absenteeism either. (TR- XIII, p.140) The evidence is insufficient to support a conclusion that Respondent was absent from campus for an inordinate amount of time. The only evidence in support of the accusation is sporadic hearsay, or conclusions by others lacking a factual basis. Rather, the evidence establishes that Respondent's presence on campus was sufficient and that, if he left campus, he handled any disciplinary problems (that arose in his absence) upon his return. His secretary always knew where he was. A teacher could find out where he was by simply asking his secretary. (TR-I, p.75; TR-X, p.32) As to Respondent's alleged poor visibility among students, there is no specific factual information pertaining to 1982-83, so this charge is unsubstantiated. As for 1983-84, the evidence was also insufficient to support a conclusion that Respondent was not "visible enough." No standard of visibility was established against which Respondent's conduct could be measured. There is no evidence in the record that anyone (teachers, parents, or administrators) complained to Respondent about his visibility or asked that he become more visible on campus. (TR-VIII, p.91) Testimony by several teachers on this subject was inconsistent and contradictory. Some offered critical opinions, but their conclusions lacked factual support, they simply had a feeling that he should have been more visible. In contrast, some teachers felt that Respondent was "sufficiently visible;" Ms. Kasmarik testified that he was always around the campus and always walking down the halls: CROSS-EXAMINATION Q. (By Mr. Panza) Ms. Kasmarik, isn't it a fact that it's your opinion that you're better off with discipline when Mr. Sulcer was there than you are right now with the new principal? Isn't that a fact? Isn't that what you just said within the last couple of weeks? A. We have the same kinds of problems that we had when Mr. Sulcer was there. Q. Same kinds of problems with the new principal, is that right? A. Yes. Q. Okay. Are those same kinds of problems based upon the type of children, in your opinion, that are in that school? A. Yes. Q. Now, you mentioned--Just kind of working backwards a little bit--that visibility was a problem or--not was a problem, is not a problem. You said Mr. Sulcer was walking the hall? A. Yes. Q. Mr. Sulcer went into classrooms, is that correct? A. Yes. He was in and out of the classroom all the time. Q. So teachers could see him around the school. He wasn't--he was there physically in the school? A. Yes. (TR-X, pp.121-122) Ms. Bullock, another teacher critical of Respondent's performance, admitted that he had been visible and had visited her classroom 15 to 20 times: DIRECT-EXAMINATION Q. (By Mr. Montante) Did you ever tell him it was necessary to come down [to observe her class? A. No. Q. Did you ever tell him it was necessary to become visible? A. No. Q. Did he ever offer to become visible to you? A. No. I felt he was visible. Q. Several times a year? A. Yes. Q. How long is the school year, ma'am? A. From August until June. Q. August until June? A. Yes. Q. That's a period of 11 months. A. Ten months. The school year is ten months. Q. He came down to the classroom several times: A. Several times. Q. Three times in 11 months. A. I didn't say three times. Several. How many is several? A. Ten, 15, 20. (e.s.) (TR-XI, pp.61,62) Although Ms. Ross, another teachers claimed that his visibility was almost non- existent, her location in the library (where she worked) was such that she would not have known when he was out of his office or in it. Ms. Bullock, another teacher, never asked him to come to her room because it wasn't necessary. (TR- VI, pp. 823,828; TR-XI, p.61) The vague and indefinite charge of not "enough visibility" must be based on more then the subjective, unsubstantiated judgment of a critical teacher. To be meaningful, the charge must be put in a factual context. In a letter to Dr. Stephenson, the district administrator involved in preferring the charges, Respondent's counsel asked for specific information on the charge so that Respondent could comply with Mr. Dandy's March 21, 1984 directive requiring improvement in this area: 4. Monitor hallways frequently through- out the school day (in an attempt to assist in undesirable behavior on the part of students (Effective immediately) Mr. Sulcer will, as he always has, monitor the hallways. As I am certain you are well aware, it is impossible to be in the hallway all day if one is expected to be a Principal of a school. Once again, I would request specific instances of when Mr. Sulcer was negligent in his monitoring of the hallways which allowed undesirable behavior to take place. I would also like to have the specif- ic set of circumstances that the administra- tion of the School Board can demonstrate that there was undesirable behavior on the part of students because of Mr. Sulcer's conduct. I would like to know the exact amount of time required by Mr. Dandy so Bob Sulcer can comply. If Mr. Dandy is going to evaluate Bob Sulcer in this area, he (Dandy) must know exactly how much time he expects Sulcer to spend. (R-50) This letter went unanswered. COUNTS 16 AND 17 SUPPLIES Count 16 You are hereby charged with failing to supply teachers with basic materials and supplies such as paper, crayons, scissors, etc., thus depriving student [sic] from essential mate- rials necessary for optimum instructions during the 1982-83 school year, which consti- tutes incompetency and/or misconduct in office and/or willful neglect of duty. Count 17 You are hereby charged with failing to supply teachers with basic materials and supplies such as paper, crayons, scissors, etc., thus depriving student [sic] from essential mate- rials necessary for optimum instructions during the 1983-84 school year, which consti- tutes incompetency and/or misconduct in office and/or willful neglect of duty. There were no records of any kind, type or description, offered in evidence to support the allegations that school supplies were inadequate during 1982-83. One team chairperson during 1982-83 and 1983-84 never heard a complaint about lack of supplies. Dr. Stephenson, the school district administrator who helped prepare this charge, became aware of the alleged budget problem through information he received in writing from Ms. Elmore, a teacher critical of Respondent's performance. Based on Ms. Elmore's submittal, he concluded that there was a lack of materials and supplies at Riverland, a situation which should not have existed because adequate funds were available. He never independently investigated to determine if Ms. Elmore's statements were correct. (TR-XI, p.19; TR-VIII, pp.11,151) Ms. Elmore, a Faculty Chairperson at Riverland, had been told by the school bookkeeper that there was a freeze on supplies in 1983-84. She never personally asked Respondent for supplies, and he never told her that funds were unavailable. She felt that it was unnecessary to bother Respondent "with things that minor." (TR-V, pp.771,776) Ms. Ross, a grade level chairperson responsible for coordinating the ordering of supplies for teachers under her control, had no difficulty ordering supplies or books except that, when the funds were frozen, she "couldn't spend the money in my budget for awhile." (TR-VI, p.819) (She never asked Respondent if the budget was frozen.) She had all materials needed to currently teach her students. (Funds were temporarily unavailable only while the F.T.E. count was underway, a situation which was not unusual in the school district). When told the budget was frozen during F.T.E. count, she simply delayed ordering until the count was completed, she "had enough (supplies) to carry (her) over past the F.T.E. count." (TR-VI, p.865) After the count, she was allowed to order whatever she needed. (TR-VI, pp.819, 862, 864, 865) Ms. Ordway, a fifth grade teacher, who had switched to kindergarten, testified that she was unable to get necessary books and supplies for her kindergarten class. However, Ms. Callender, her Faculty Grade Level Chairperson, testified that Ms. Ordway as well as the rest of her grade group, had supplies the entire year. Ms. Callender also testified that Ms. Ordway was given permission to go to the A.B.C. Store to purchase whatever supplies she needed. Ms. Callender's testimony, more precise and less emotional than Ms. Ordway's, is accepted as persuasive. (TR-X, pp.28,48) Respondent did not turn down any supply order for materials that were needed for classes during 1982-83 and 1983- 84. The charge that teachers lacked supplies in 1983-84 is unsubstantiated by the evidence. (TR-XVI, pp.57,58,61) Finally, Ms. Elmore, one of the teachers most critical of Respondent's performances testified that she did not have enough supplies for 1982-83 and 1983-84. Her testimony was conclusory and is rejected as lacking in credibility. Finally, the SACS Report does not mention any problem with supplies at Riverland Elementary School for 1982-83. It is likely that if there was a supply problem of the magnitude alleged, it would have been mentioned in the SACS Report. The evidence does not establish that any children at Riverland were denied instructional materials due to lack of supplies. These charges are unsubstantiated. (TR-V, p.580; R-13) COUNTS 18 AND 19: SECOND IN COMMAND Count 18 You are hereby charged with failing to desig- nate a teacher as second in command and/or failing to inform the faculty which teacher would be in charge during your absence during the 1982-83 school year, thereby leaving the school unsupervised during your absences from campus, which constitutes incompetency and/or misconduct in office/and or willful neglect or duty. Count 19 You are hereby charged with failing to desig- nate a teacher as second in command and/or failing to inform the faculty which teacher would be in charge during your absence until approximately January 1984 of the 1983-84 school year, thereby leaving the school unsupervised during your absences from cam- pus, which constitutes incompetency and/or misconduct in office and/or willful neglect of duty. Respondent appointed a second in command or designee at Riverland Elementary School for years 1982-83 and 1983-84. For 1982-83, Respondent appointed Polly Jones as his second in command or designee. There was no requirement to identify the second in command by posting a notice. However, Mr. Dandy, the Area Superintendent, required principals within his area to advise him of the name of the second in command at the commencement of the school year. Respondent notified him in accordance with this requirement. (TR-I, p.32; TR- VII, p.92; TR-XVI, p.7) During 1982-83, Ms. Jones handled discipline referrals during Respondent's absence and signed as designee. Teachers who were unaware of who the second in command needed only to ask. Respondent's secretary, the office personnel, and administrative staff were informed that Ms. Jones was the appointed second in command. (TR-XVI, pp.7,104) The contention that problems resulted from some teachers not knowing who was second in command during 1982-83, is unsupported by the evidence. No teacher asked Respondent who was second in command--either in person (at grade level chairperson meetings, faculty meetings, in the halls, at SACS Committee Meetings) or by memorandum. Ms. Elmore who was Faculty Chairperson during 1982- 83, never placed the question of who was second in command on the faculty agendas though she had the authority to do so. Although she testified that she did not know who was second in command in 1982-83, she did not ask Respondent or her grade/level chairperson who, ironically, was Ms. Jones, the second in command. In any case, most teachers at Riverland knew Polly Jones handled disciplinary problems in Respondent's absences and expected her to do so. (TR- V, pp.598, 763) For school year 1983-84, Respondent designated Elaine Callender as his second in command. Again, he informed Mr. Dandy of his action at the beginning of the school year. Although most teachers knew that she was the second in command, they did not hear it officially from Respondent. They knew that Ms. Callender could, and did, administer corporal punishment in Respondent's absence. Finally, teachers in 1983-84 knew, or should have known, that Ms. Callender was the second in command because she signed referral slips above the signature line marked "Designee": copies of the completed slip are normally returned to the referring teacher. (TR-I, pp.34,35; TR-X, p.5, TR-XVI, p. 175) These charges must fail since Respondent did, in fact, appoint a designee, and the teachers knew or could have known by simply asking him. Although it was suggested (through hearsay testimony) that students were disciplined by secretaries, there is no substantial evidence to support that implication. When the issue of who was second in command surfaced up at the faculty meeting on November 15, 1983 (as part of 12 identified concerns) would it not have seemed reasonable at the time for someone to ask Respondent who was second in command? The Faculty Council, after it was organized and operational in the early part of January, did ask Respondent, stating that some teachers claimed they did not know who was second in command and wanted this information posted. Respondent posted his second in command that very day. (Mr. Dandy's testimony that the second in command was not posted until mid-February is rejected as clearly erroneous.) (TR-XII, p.87; TR-XIII, p.123) COUNTS 20 AND 21: MORALE Count 20 You are hereby charged with failing to estab- lish and maintain positive lines of communi- cation with the faculty and students during the 1982-83 school year at Riverland Elemen- tary regarding student discipline which has contributed to the decline of faculty morale toward the principal relative to student discipline, which constitutes incompetency, and/or misconduct in office and/or willful neglect of duty. Count 21 You are hereby charged with failing to estab- lish and maintain positive lines of communi- cation with the faculty and students during the 1983-84 school year at Riverland Elemen- tary regarding student discipline which has contributed to the decline of faculty morale toward the principal relative to student discipline, which constitutes incompetency. These two Counts center on the issue of faculty morale as it related to student discipline caused allegedly by Respondent's failure to maintain positive lines of communication with faculty and students during schools years 1982-83 and 1983, 84. Morales a somewhat amorphous term, is defined in the American Heritage Dictionary as "the state of the spirits of an individual or group as shown in willingness to perform assigned tasks, confidence, cheerfulness, and discipline." Although affected by many variables, morale is not a subject incapable of measurement. Instead of utilizing an objective or standard method to determine the level of morale at Riverland the School Board presented the testimony of selected teachers, for the most part, the same teachers who were on the ad hoc disciplinary committee and among Respondent's most avid critics. Their testimony lacks credibility and fails to support a conclusion that morale was lowered due to Respondent's handling of discipline problems. They were the teachers who complained most about morale. They gave secret testimony to Dr. Stephenson, the ranking administrator, who developed the charges against Respondent and they were, generally, unwilling to cooperate with Respondent and other teachers (led by the Faculty Council), who were attempting (between November, 1983 and March 1984) to develop ways to improve discipline at Riverland. 6/ No systematic evaluation of faculty morale, using any acceptable and reliable method, was ever undertaken. A poll was conducted at Riverland Elementary in connection with the Official Progress Report of the School Board. The poll indicated that 86 percent of the teachers thought that Riverland was a good school. Ninety-two percent of the parents with children at Riverland responded, "this is a good school." (TR-IV 34 p.461) These results detract from the weight to be given the adverse opinions of the several teachers (testifying at hearing) most critical of Respondent's performance. (TR-IV, p.461; R-19) COUNT 22 FAILING TO DISCIPLINE A STUDENT Count 22 You are hereby charged with failing to disci- pline a student who said to a teacher's aided "Fuck You," during the 1983-84 school year, which constitutes incompetency and/or miscon- duct in office and/or willful neglect of duty. On one occasion during the 1983-84 school year, a child cursed at a teacher's aide, Ms. Williams, who promptly referred the student to Respondent's office. Respondent asked the student for an explanation and the child admitted that he had said the disrespectful words and was ready to be spanked. Respondent asked Ms. Williams (the aide that was cursed at) to enter the office and witness the corporal punishment. After she entered, the child refused to submit to the spanking and constantly moved around, putting his hands across his buttocks and fidgeting making it difficult for Respondent to administer corporal punishment without injuring him. Under these circumstances, Respondent decided not to administer the corporal punishment for fear of injuring the child's hands. Instead, he telephoned the child's parents and told them the child refused the spanking. The parents told him they would punish the child, by using a belt. (TR-XVI, pp.53-54; TR-X, pp.67-68,85) This particular child did not have any further behavior problems at Riverland Elementary. Respondent did not ignore, dismiss, or fail to discipline this child. His handling of this incident of disrespect toward an aide was appropriate and consistent with the Discipline Code. (Although the Board faults him for not reporting the incident to the Department of Internal Affairs, Board Policy 4018, reasonably construed, does not require the reporting of every instance of student disrespect toward a teacher.) Since Respondent properly disciplined the child, the charge must fail. COUNT 23 RAT-INFESTED ROOM Count 23 You are hereby charged with failing to take appropriate action to remove kindergarten students at the request of the teacher from a rat infested room after being informed by the teacher that rats were prevalent in the area, subjecting kindergarten students to rat poison which had been placed by custodial personnel in the students' classroom, and refusing from approximately February 28, 1984, to March 7, 1984, to relocate said kindergarten students from said classroom to an empty portable on the school site which action had been formerly requested by the complaining kindergarten teachers which constitutes incompetency and/or misconduct in office and/or willful neglect of duty. On March 1, 1984, Ms. Ordway, a kindergarten teacher at Riverland Elementary, complained to Respondent about a mouse she had seen in her classroom. He told her that he would get the custodian on it right away, which he did on that same day. The custodian set out traps that night, Respondent also went to Ms. Ordway's classroom that night to make sure that the traps were placed so that there would be no danger to the children. He continued to periodically check the room after school throughout the week, he looked for evidence of mice, but found none. Meanwhile, Ms. Ordway did not ask to have her class moved and her class remained at its regular location. (TR-XVI, pp.71- 73,87,155,254) On Thursday, March 8, 1984, approximately one week after Ms. Ordway had complained of a mouse, Mr. Dandy telephoned Respondent and told him of a complaint he had received (presumably from Ms. Ordway) concerning the mice situation. Respondent immediately called the Area Maintenance Office and requested assistance, then contacted Omni Pest Control and asked them to come out that day. (Respondent had not called the exterminator prior to this because neither he nor the custodian had found evidence of mice, and the custodian was actively addressing the complaint.) (TR-XVI, pp.72,154,157) Omni Pest Control came out on Monday, March 12, 1984, around noontime. Respondent immediately relocated Ms. Ordway's class since he assumed that the exterminator might use chemicals hazardous to children. The exterminator treated the classroom and returned two days later to do a follow- up. At 7:30 a.m. on March 19, 1984, the exterminator returned to check the classroom. Respondent, unavailable to talk to him at that time, called him later to check on the classroom's condition. The exterminator, having found no evidence of mice, told him that the mouse sighting "must have been a fluke." (TR-XVI, pp.72-73,86,88,155,157,159) The evidence does not support a conclusion that Ms. Ordway's classroom was infested with mice or rats. She is the only person who sighted one, and her testimony about what she saw, and the frequency of her sighting's, was inconsistent. No other mice were sighted and no evidence of mice was found by those who investigated and responded to her complaint: Respondent, a Health Department inspector, the school custodian, and the professional exterminator. Respondent reacted to Ms. Ordway's complaint in a reasonable and timely manner. The school custodian was the person who would normally investigate and handle such a complaint. When Respondent received a second complaint, he immediately contacted a professional exterminator despite the fact that he and others had found no evidence of mice in the classroom. This charge is based on the exaggerated complaint of Ms. Ordway, a teacher who, seemingly, Respondent could not mollify. COUNTS 24 AND 25 FAILING TO COOPERATE Count 24 You are hereby charged with failing to util- ize the suggestions of parents and teachers and/or work cooperatively with said groups to improve the declining [sic] student disci- pline/behavior problems at Riverland Elemen- tary during the 1982-83 school year, which constitutes incompetency and/or misconduct in office and/or willful neglect of duty. Count 25 You are hereby charged with failing to util- ize the suggestions of parents and teachers and/or work cooperatively with said groups to improve the increasing student disci- pline/behavior problems at Riverland Elemen- tary during the 1983-84 school year, which constitutes incompetency and/or misconduct in office and/or willful neglect of duty. The School Board failed to substantiate its charge that during 1982-83 or 1983-84, Respondent failed to utilize the suggestions of parents and work with them to improve student discipline at Riverland Elementary. Indeed, there is no evidence that any parents made specific suggestions to Respondent concerning ways to improve student discipline. Even if, arguendo, suggestions were submitted, there was no showing that Respondent was obliged to follow theme irrespective of their merit. Although the School Board also charges Respondent with failing to utilize the suggestions of, and work with, teachers, the opposite was shown. Respondent relied on the teachers of Riverland. He routinely asked them to address problems, and suggest specific changes, usually he implemented their suggestions. One of his management techniques to maximize participation was to set up committees of teachers to address problems and make recommendations. His conviction was that since teachers were a vital part of the school, they should have a say in how it was run--and what changes should be made. He respected their views and welcomed their comments. For example, in late 1983 and early 1984, he encouraged the Faculty Council to devise ways to improve student discipline. When the Council presented him with a School Wide Disciplinary Plan (suggesting numerous changes to improve student discipline) he promised to implement it. (In contrast, some teachers refused to cooperate with either the Faculty Council or Respondent, and were determined to leave student discipline problems to Respondent--alone--to solve.) Another example was his formation of a Cafeteria Committee (of teachers) to address student misbehavior in the cafeteria--a focal point of student "horseplay" in most elementary schools. The Committee met and formulated a plan, which Respondent approved and implemented. Both charges must be dismissed for failure of proof. (TR-III, p.387; TR-V, p.708; TR-VI, p.819; TR-XI, pp. 143,149,150,162; TR-XV, pp.59,110; TR-XVI, p.76) COUNT 26 THE CAFETERIA Count 26 You are hereby charged with failing to prop- erly maintain student control and discipline in the cafeteria and/or inadequately super- vising and/or providing inadequate supervi- sion of students which has resulted in chaos throughout the 1982-83 school year and has continued through the 1983-84 school year, which constitutes incompetency and/or miscon- duct in office and/or willful neglect of duty. The School Board has not established a standard against which the adequacy of the supervision and control of students in school cafeterias can be judged. Elementary school students abound with energy and will sometimes run in cafeterias. Such running occurred prior to Respondent's arrival at Riverland, and continues, even now. As one witness summed it up, "Every child runs." . . . [and] "Kids are kids." (TR-X, p.78) These cafeterias are noisy, relatively unstructured places where children, within limits, are free to be themselves. No evidence was presented showing that, on a comparative basis, student behavior in the Riverland cafeteria was any worse than that prevalent in the other elementary schools. Indeed, Dr. Gail Daly (an experienced elementary school principal and chosen by the School Board to investigate Respondent's performance at Riverland) visited the school's cafeteria and found student behavior acceptable. (TR-XV, p.59) Although some teachers were critical of Respondent's visibility in the student cafeteria, they rarely ate their own lunches there (to help maintain order)-- even though they could leave school a half-hour early for doing so. Since most teachers did not eat their lunches with the students, supervision of student behavior in the cafeteria was left, for the most part, to teachers' aides. This was an acceptable practice in the various elementary schools. Any student misbehavior which may have existed in the cafeteria was not serious enough to warrant being brought to Respondent's attention, either by the group of teachers who identified "12 concerns" at Riverland or to Mr. Dandy, the Area Supervisor who responded to them. The teachers "12 concerns" do not mention misbehavior in the cafeteria, neither do Mr. Dandy's letters of February 24, and March 1, 1984 (which identify deficiencies in Respondent's performance and require corrective action). This charge must fail for lack of proof. (P-5, P-6, R-2) COUNT 27 FAILURE TO PERFORM DUTIES AS ALLEGED IN COUNTS 1-26 Count 27 You are hereby charged with failing to ade- quately perform your duties as principal with respect to student discipline/behavior as enumerated in the above counts during the 1982-83 and 1983-84 school years to such an extent that your effectiveness as a principal in this area has been impaired serious enough to warrant your dismissal as principal for "good and sufficient reasons, which consti- tutes incompetency and/or misconduct in office and/or willful neglect of duty. The efficacy of this charge depends on a positive finding that Respondent failed to adequately perform his duties as principal with respect to student discipline during 1982-83 and 1983-84, as alleged in the foregoing counts, Nos. 1 through 26. Since these counts were not sustained by the evidence, the charge fails. COUNT 28 SWILLEY REPORT Count 28 You are hereby charged with failing to demon- strate competent performance as an adminis- trator in one or more of the following areas: the administrative and supervisory require- ments and/or communication skills and/or management techniques and/or exercise learn- ing and goal achievement and/or human and interpersonal relationships for the school year (or any part thereof) 1983-84, which constitutes incompetency and/or misconduct in office and/or willful neglect of duty. Dr. Stephenson, then Associate Superintendent of Personnel, requested a review of Respondent on April 3, 1984, for the purpose of determining his competence. The Department of Education selected Henrietta Swilley (from Bay County) to conduct the competency review. She visited Riverland Elementary from May 1, 1984, to May 3, 1984, (2 1/2 days) one-half day short of the three-day observation required by 6B-5.02(12) Florida Administrative Code. On or about July, 1984, she sent to the School Board her undated and unsigned report. This report was placed in evidence by the School Board as an attachment to a deposition taken of Respondent. Neither Ms. Swilley nor any School Board official testified about the contents of this report, or vouched for its accuracy. Consequently, Respondent's ability to challenge the accuracy of its opinions and conclusions, or examine those who developed or relied on it, was limited. The report, however, is hearsay which, though admissible, can be used only to explain or corroborate other evidence, it cannot, in itself, support a finding of fact. See, 120.58(1)(a), Florida Statutes. Apart from this limitation on its use, the report is replete with factual errors, misstatements, and inconsistencies. It appends materials which do not correspond to references in the report. These errors detract from the weight which might otherwise be given to the report, and place in doubt the credibility of its assertions and conclusions. Several examples should suffice. On pages 4 and 5 of the report, Ms. Swilley reviews teacher observations and evaluations. Of the eight teachers listed, the evaluations of only four were included in the appendix. She indicates that Respondent held conferences with all eight teachers on the same day, May 17, 1983. The four evaluations appended, however, show that the conferences were held on March 3, 16, and April 12 and 15, 1983. On page 5, she faults Respondent of using similar or "patterned" comments on seven of the eight teachers evaluated. But she does not show how this violated any rule or standard of practice. (Mr. Dandy, Area Supervisor, using a similar form, includes no comments, whatsoever, on his evaluations of principals, a practice which, in his views was perfectly acceptable. (TR-XII, p.43).) On page 6, she states: From studying the 1983 evaluations of Ms. Elayna Cross and Ms. Catherine Phoenix it was unclear to this reviewer as to how much time Mr. Sulcer spent observing these teachers. Yet, the time Respondent spent in observing Ms. Phoenix (9:15 to 10:15 on March 3, 1983) is shown on the top of her evaluation contained in the appendix. On page 6, Ms. Swilley further states: If the sampling of evaluations studied is an indication of administrative progress in the area of assessment, all other continuing contract employees on staff would have to be evaluated within 25 days from my visit in order to stay within the confines of the negotiated contract [which prohibited princi- pals from conducting evaluations during the last week of school]. But the evaluations in her sampling were completed, and applied only to the prior school year--1982-83, not 1983-84. Thus her conclusion lacks support. (In fact, Respondent had approximately ten teachers left to evaluate after Ms. Swilley's visit in May, 1984 [TR-XVI, p.77].) Finally, on pages 6,7, Ms. Swilley questions whether Respondent acted as an instructional leader at Riverland. She opines as to what Respondent would have observed if he had visited the classrooms, and includes the results of her interviews with an unknown number of teachers. Among those teachers were Ms. Ross, Ms. Sluder and Ms. Elmore. (These were Respondent's most vociferous critics and members of the original ad hoc faculty committee which identified "12 concerns" at Riverland.) The assertions of Ms. Ross and Ms. Sluder--hearsay, once removed--concerning Respondent's alleged failure to visit or observe their classes are rejected in favor of Respondent's more persuasive testimony to the contrary. (TR-X, p.121; TR-XVI, pp.46-47) The School Board has not shown, by independent evidence, that Respondent failed to demonstrate competence in any of she areas described in this charge. Thus the Swilley Report, even if internally consistent, cannot support a finding of incompetence. This charge must also fail. FAILURE OF SCHOOL SYSTEM TO FOLLOW PROCEDURAL RULES In recommending the suspension and dismissal of Respondent, the Superintendent of Schools failed to follow procedures governing dismissal. Rule 6B-4.08, entitled, "Criteria for Dismissal Procedures," provides: 6B-4.08 Criteria for Dismissal Procedures. When an action or other matter appears to exist which may possibly result in the future dismissal of any employee, the immedi- ate supervisor of the individual should take appropriate action to advise the employee of the matter and the potential consequence if not corrected. Every possible helpful effort should be made by the immediate supervisor to aid the employee to correct the matter which could cause his or her dismissal if not corrected. Except in extremely serious circum- stances, the employee should be given suffi- cient time, following notification, for improvement. Any charges of undesirable traits or practices should be bona fide, verifiable, and clearly stated to the employee in writ- ing. Any employee thus charged should have a fair opportunity to explain or otherwise defend himself or herself, as provided in Section 231.36, Florida Statutes. These criteria mandate that an employee be advised of deficiencies which may result in his dismissals and that he be given sufficient time, following notice, to improve or correct the deficiencies. Here, Mr. Dandy, as Area Supervisor, routinely evaluated Respondent on January 31, 1984, and found him satisfactory when judged against all performance criteria. On February 17, 1984, approximately two weeks later, Mr. Dandy--at the invitation of Ms. Elmore or Ms. Sluder--came to Riverland Elementary and met with some teachers who had gathered to complain to him about lack of student discipline. After hearing the complaints of several teachers, Mr. Dandy--precipitously--told them he was now in control, that they should hence forth come directly to him. Some teachers were intimated by his manner and aggressiveness. Instead of asking individual teachers about any perceived problems, he asked, "Do you feel the rest of the teachers feel . . . is a problem?" or words to that effect. On February 21, 1984, three days later, Mr. Dandy met with the teachers again and, this time, invited Respondent to attend. Respondent, though genuinely surprised by this turn of events, came to the meeting and responded to each of the complaints or concerns raised by the teachers. On February 24, 1984, three days later, Mr. Dandy wrote Respondent outlining the teachers' complaints or concerns and asked for a written response by March 1, 1984. Respondent complied, submitting a timely response addressing, as specifically as possible, each of the concerns. Mr. Dandy responded with a second letter on March 21, 1984, directing Respondent to take eight corrective actions (Mr. Dandy never subsequently evaluated Respondent to determine if those directives were satisfactorily carried out, though he admits improvements were being made.) On March 22, 1984, one day after receiving Mr. Dandy's eight directives, the Superintendent filed the charges against Respondent which later (with one added count) became the basis for Respondent's dismissal. (P-5; P-6; P-19; TR-XII, p.47; TR-XIII, pp. 14, 47, 72, 128, 129) The complaint about Respondent's performance voiced by some teachers to Mr. Dandy were never thoroughly, and conscientiously, investigated or verified by Mr. Dandy prior to his undermining Respondent's authority and, to some extent, taking control of the school away from him. When Respondent was finally informed of the complaints he responded to each in a professional and meaningful way. He was then given "directives," quickly followed by charges, without being given a fair opportunity to take corrective action and effectively respond to the complaints. In their hasty action, school board officials disregarded or were oblivious to the requirements of Rule 6B-4.08. This is all the more perplexing in light of the fact that Mr. Dandy, the Area Supervisor and Respondent's immediate supervisor, never recommended--then or now--that Respondent be dismissed.
Recommendation Based on the foregoing, it is RECOMMENDED: That all charges against Respondent be dismissed, that he be reinstated with full back-pay and emoluments of employment; and that he be awarded reasonable attorney's fees which he actually expended in his defense or which he has legal duty to pay. DONE and ORDERED this 14th day of November, 1985, in Tallahassee, Florida. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of November, 1985.
The Issue Whether the Superintendent of Hamilton County Schools recommended that the Respondent enter into a professional services contract with the Petitioner, Gene Starr?
Findings Of Fact Gene A. Starr has been continuously employed by the School Board of Hamilton County as an agriculture teacher since the 1985-1986 school year. On March 18, 1988, the principal of Hamilton County High School recommended to the Superintendent of the Respondent that the Respondent enter into a professional service contract with Mr. Starr. At a meeting of the Respondent held on April 12, 1988, the Superintendent made recommendations to the Respondent concerning reappointment of a number of employees. The Superintendent specifically recommended that Mr. Starr receive a professional service contract. A motion was made and seconded by members of the Respondent to accept the recommendations of the Superintendent. The following events took place, as reported in the minutes of the Respondent's April 12, 1988, meeting: At the Board's request, Mr. Lauer [the Superintendent] appeared to discuss the recommendation of Gene Starr. The consensus of the Board was that the agriculture program has not progressed as per expectations, and that Mr. Starr's coaching duties conflict with his duties as an agriculture teacher. It was the opinion of some members that there should be more emphasis on crop production and harvesting and on supervision of home projects. Following the discussion of the Superintendent's recommendation concerning Mr. Starr, the Superintendent "asked for and was granted permission to withdraw his recommendation on & Mr. Starr and to resubmit another recommendation on him at a subsequent meeting." The Superintendent then "amended his recommendation to omit Mr. Starr" and the motion to accept the Superintendent's recommendations was amended to reflect this change. The Respondent then approved the Superintendent's recommendations, as amended. The Respondent did not consider whether there was "good cause" to reject the Superintendent's recommendation concerning Mr. Starr. At a May 10, 1988, meeting of the Respondent the Superintendent recommended that Mr. Starr be reappointed to an instructional position for the 1988-1989 school year and that Mr. Starr serve in the instructional position for a fourth year on annual contract instead of being granted a professional services contract. The recommendation was withdrawn on advice of counsel for the Respondent. At a May 23, 1988, meeting of the Respondent Mr. Starr and the Respondent agreed that Mr. Starr would agree to a fourth year on annual contract, "subject to and without prejudice to a formal hearing on his right to a professional services contract." Mr. Starr was informed of this action in a letter dated May 31, 1988. Mr. Starr filed a Petition for a Formal Hearing challenging the Respondent's action with regard to the Superintendent's recommendation to the Respondent that Mr. Starr receive a professional services contract. In the Petition, Mr. Starr specifically requested the following relief: That the matter be assigned to the State of Florida Division of Administrative hearings [sic] for the assignment of a hearing officer. That a formal hearing be held on this particular petition pursuant to Sec. 120.57(1), Fla. Stat. as to Petitioner's entitlement to employment under a professional services contract.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the recommendation of the Superintendent of Hamilton County Schools be accepted by the School Board of Hamilton County unless the School Board of Hamilton County concludes that there is good cause for rejecting the recommendation. DONE and ENTERED this 18th day of April, 1989, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of April, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-4116 The Petitioner has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1. 2 3-9. 3 10. 4-8 Statement of events which occurred at the formal hearing and some of the arguments advanced by the parties at the formal hearing. COPIES FURNISHED: Edwin B. Browning, Jr., Esquire Post Office Drawer 652 Madison, Florida 32340 Donald K. Rudser, Esquire Post Office Drawer 151 Jasper, Florida 32052 Owen Hinton, Superintendent Hamilton County School Board Post Office Box 1059 Jasper, Florida 32052 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399-0400
Findings Of Fact Respondent was an employee of the School Board of Dade County, Florida, more particularly a Title One teacher at Miami Carol City Senior High School during the 1981-1982 school year. On May 6, 1982, John Cohn was a student in Respondent's fourth period class. Arnold Coats was a substitute teacher working with Respondent in Respondent's classroom on that day. After Respondent had given the students an assignment, Cohn requested and received permission to leave the classroom to go to the bathroom. While absent from the classroom, Cohn decided he wished to speak with Ronald Golemhieski, another teacher at Miami Carol City Senior High School. Cohn returned to Respondent's classroom to request permission. Coats came to the door and gave Cohn permission to go talk to Golembieski, but Cohn decided he should get permission from Respondent since Respondent was the teacher of the class. Cohn waited in the doorway of Respondent's classroom. When he finally got Respondent's attention, he beckoned with his finger, requesting Respondent to come to the doorway. Respondent went to the doorway, and Cohn requested Respondent's permission to go talk to Golembieski. Respondent grabbed Cohn, pulling him forcefully into the classroom. Commotion broke out in the classroom, and someone yelled for assistance. Golembieski heard the commotion, as did Victoria Bell, the hall monitor. When they arrived at Respondent's classroom, Respondent and Cohn were struggling with each other. They were face to face, and Respondent had his arm around Cohn's neck with his hand on Cohn's throat in a choking manner. Golembieski grabbed Cohn away from Respondent and, after separating them, took Cohn to his classroom to calm him down. Bell and Coats pushed the rest of the students back into their seats and restored order in Respondent's classroom. When the altercation ended, Cohn's shirt was torn and he had scratches on his chest. Just prior to Respondent's outburst, Cohn did nothing to provoke Respondent in any way and was not disrespectful to Respondent. When Cohn got Respondent's attention, Respondent both looked at Cohn and walked to the doorway in a normal manner, thereby giving no warning that he intended to touch Cohn in any way. Respondent interpreted Cohn's beckoning with his finger as an invitation to fight, although Respondent admits that Cohn said nothing to him indicating that he wished to fight.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of the allegations contained in the Notice of Charges, approving Respondent's suspension and dismissing him as an employee of the School Board of Dade County, and denying any claim for back pay. DONE and RECOMMENDED this 31st day of August, 1983, in Tallahassee, Leon County, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 1983. COPIES FURNISHED: Jesse J. McCrary, Jr., Esquire 3000 Executive Plaza, Suite 800 3050 Biscayne Boulevard Miami, Florida 33137 Ellen L. Leesfield, Esquire 2929 SW Third Avenue, Fifth Floor Miami, Florida 33129 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1410 NE Second Avenue Miami, Florida 33132
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: During the 1986-87 school year the Petitioner was employed by the Respondent as a Compensatory Education Teacher at Lake Butler Middle School. Additionally, he served as Assistant Football Coach and Junior Varsity Baseball Coach. The Petitioner is over the age of eighteen years. During the 1986-87 school year the Petitioner possessed a temporary teaching certificate issued by the Florida Department of Education (Certificate Number 562142) disclosing "Highest Acceptable Level of Training - Bachelor's Degree." The Petitioner also possesses a permanent teaching certificate with a validity period of July 1, 1987, through June 30, 1992. Superintendent of Schools, James H. Cason, III, met with M. H. Boyd, Principal, Lake Butler Middle School and Petitioner's principal, prior to formulating his decision to recommend Petitioner to Respondent for additional year of employment. Boyd advised Superintendent Cason that she was not entirely satisfied with Petitioner's performance but that she could "live with" Petitioner's reappointment for the 1987-88 school year. Superintendent Cason also conferred with the head coach, James F. Niblack, Petitioner's supervisor for the athletic duties performed by Petitioner, prior to formulating a recommendation to Respondent concerning Petitioner's reappointment for the 1987-88 school year. Coach Niblack recommended Petitioner's reappointment for the 1987-88 school year. Superintendent Cason made a timely written nomination that Petitioner be reappointed by the Respondent in an instructional position for the 1987-88 school year. On April 27, 1987, Respondent conducted a meeting for the purpose, inter alia, of acting upon the recommendation of Superintendent Cason for personnel appointments. The Respondent voted unanimously to reject the recommendation of Superintendent Cason that Petitioner be reappointed to an instructional position for the 1987-88 school year. No reason for the rejection of the nomination of the Petitioner by the Respondent was verbally stated at the April 27, 1987, meeting nor spread upon the minutes of such meeting. During the hearing, and after conferring with the members of the board, counsel for Respondent stipulated that Petitioner met the statutory requirement to be eligible for appointment to a position with Respondent in that he is of good moral character, is over the age of eighteen (18) years and holds a certificate issued under the rules of the State Board of Education. School Board member, W. S. Howard, Jr., a cousin of Boyd, requested that Boyd prepare an evaluation of Petitioner. The record is not clear as to whether the evaluation was made before or after the Superintendent conferred with Boyd on Petitioner's reappointment. Petitioner was evaluated "satisfactory" in ten (10) of the eighteen (18) areas measured on the evaluation instrument that was utilized, "unsatisfactory" on two (2), "not applicable" was marked on two (2) criteria and four (4) were left unmarked by the evaluator. The evaluation instrument utilized by the Respondent in evaluating the Petitioner's performance was not the instrument which should have been utilized during the 1986-87 school year although such instrument was utilized by the principal for other employees at the Petitioner's school. The Respondent officially sponsors, maintains and funds the athletic programs in which the Petitioner rendered services during the 1986-87 school year. Such programs constitute an integral part of the overall educational program offered by the Respondent to children of Union County. The Petitioner's service to the athletic program conducted by the Respondent was rated satisfactory or above.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED: That Respondent, School Board of Union County, enter a Final Order GRANTING the Petitioner an annual contract for the 1987-88 school year and reimbursing Petitioner for any loss of wages due to his non-pay status which resulted from Respondent's rejection of his nomination. RESPECTFULLY SUBMITTED AND ENTERED this 27th day of August, 1987, in Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of August, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2536 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner 1.-11. Adopted in Findings of Fact 1 through 11, respectively. 12.-15. Adopted in Findings of Fact 13 through 16, respectively. Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Finding of Fact 1. Adopted in Finding of Fact 7. Adopted in substance in Findings of Fact 5, 6 and 7. Adopted in substance in Finding of Fact 1. Adopted in Finding of Fact and 6. The fact that Boyd had some reservations concerning Petitioner's abilities to teach the compensatory education class is adopted in Finding of Fact 5, the balance of paragraph 6 is rejected as not supported by substantial competent evidence in the record. The fact that Niblack recommended Petitioner for reappointment is adopted in Finding of Fact 6, the balance of Paragraph 7 is rejected as not supported by substantial competent evidence in the record. The fact that the Union County School Board voted not to rehire Petitioner is adopted in Finding of Fact 9, the balance of paragraph 8 is rejected as not supported by substantial competent evidence in the record. The fact that the reason for Respondent's vote to reject Petitioner's reappointment was not verbally stated or spread in the minutes is adopted in Finding of Fact 10, the balance of paragraph 9 is rejected as not being supported by substantial competent evidence in the record in that the testimony of the individual School Board members lacked credibility. Rejected as being presented as an argument and not as a Finding of Fact. COPIES FURNISHED: Ronald G. Meyer, Esquire Meyer, Brooks and Cooper, P.A. 911 East Park Avenue Post Office Box 1547 Tallahassee, Florida 32302 Bobby Lex Kirby, Esquire Route 2, Box 219 Lake Butler, Florida 32054 James H. Cason, III, Superintendent The School Board of Union Co. 55 Southwest Sixth Street Lake Butler, Florida 32054 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399 Sydney McKenzie, General Counsel Department of Education Knott Building Tallahassee, Florida 32399
Findings Of Fact Petitioner, Fred D. Greene, began service with the Hamilton County School Board as a teacher in August, 1965. He was employed on annual contract for three school years until he was granted a continuing contract by the school board on July 23, 1968, as a teacher pursuant to Section 231.36, Florida Statutes. After the execution of the continuing contract, Petitioner was assigned as coordinator of vocational education during the 1969-1970 school term but in addition to those duties, continued to teach five classes. As Petitioner was assigned additional duties by the Superintendent, his teaching duties were reduced. Starting in 1970 and continuing through 1973, though the continuing contract as a teacher had not been rescinded, Petitioner and the school board entered into annual contracts of employment in which Petitioner was assigned as Director of Vocational Education. On June 5, 1973, the parties entered into a second continuing contract which described Petitioner's duties as "Director of Vocational, Technical and Adult Education." At no time did Petitioner ever hold a contract as "principal" nor was he ever paid as such. His current Florida Teacher's Certificate shows him certified in, among other things, secondary administration and supervision. Both this contract and the 1968 continuing contract contained a provision that the school board was authorized, upon recommendation of the superintendent of schools, to transfer and assign the Petitioner to a "similar position in any other school" in the district, provided that "the duties shall be similar to the duties originally assigned and the salary shall be as heretofore set forth." From the time he was appointed director of VTAE until January, 1981, Petitioner served in that capacity. As director of VTAE, he considered his position as similar to that of a principal in that he reported directly to the Superintendent of Schools, he supervised the teachers who taught within his program (although he did not rate them) he was paid on the non- instructional salary schedule as is a principal he was responsible for the procurement of and administration of students including their promotion and graduation. Nonetheless, he was not classified as a principal, he served schools throughout the county, the teachers in the program were recruited from regular day teachers and additional personnel who taught only in the night program, and these teachers were rated by their day principal when appropriate. Consequently, his position as Director, VTAE, was not similar to that of a principal. At the time he left the job as Director, VTAE, to assume the office of Superintendent of Schools, he was paid a salary of $21,000.00 per year for a 12 month term and was on step 6 of the non-instructional salary schedule. He has never released the school board from the terms of the continuing contract. In January, 1981, Petitioner took office as Superintendent of Schools. At that time the function of Director, VTAE, was assigned to Ms. Scaff who subsequently also occupied several other positions within the school board system including instructional coordinator, secondary curriculum coordinator, community education director, law education director, and management information systems director. Ms. Scaff did not assume all those functions at one time. The job was built up over a period of years and while the duties changed, the title of Director, VTAE, did not. Ms. Scaff was paid as an instructional director on the non-instructional salary schedule. As Director, VTAE, Ms. Scaff, and Mr. Greene before her, occupied one of the director positions reflected in the directory of the School Board. The School Board uses the same contract form for directors and principals and the director is evaluated by the Superintendent of Schools as is a principal, but there are few other similarities between the function of principal and Director. Petitioner served as Superintendent of Schools from 1981 until November, 1984, when he was replaced as superintendent by Mr. Hinton. Several months before his term expired, in June, 1984, Petitioner recommended to the School Board that it appoint Ms. Scaff, who was at that time serving as, inter alia, Director, VTAE, to a two year contract in that position. This contract was approved by the School Board. Shortly after his defeat in the election, Petitioner allegedly told Mr. Hinton that he did not wish to displace anyone employed by the school system in order to enforce his return rights under the continuing contract he held. It was his position that he would accept a teaching position but at a salary level equivalent to that of an administrator until such time as an administrator's position within the system became open. At a special meeting of the School Board called by Petitioner on the last day of his term as superintendent, Mr. Greene nominated himself for the position as principal at NHE. This nomination, however, was tabled by the School Board upon advice of counsel so that an advisory opinion on it could be requested from the Florida Commission on Ethics. At this point it should be noted that though the position as Principal at NHE became vacant prior to Petitioner leaving his position as superintendent, he did not apply during the period that the·advertisement was open. The only person to do so was Harry Pennington who was subsequently placed in that position. When Mr. Hinton assumed the position of Superintendent of Schools, replacing Mr. Greene, he immediately assigned Petitioner to the position as teacher of business education. Mr. Greene accepted the assignment but requested that he be paid a salary equivalent to the 20th step on the salary schedule for the position of instructional director at a figure of $32,550.00 per year. The figure demanded by Petitioner was not paid, however. After conferring with the State Department of Education regarding the proposed salary for Petitioner, the School Board determined that since he held a continuing contract as a teacher, he would be employed at a salary based on the teacher position. He was given credit for four years of teaching service while serving as Superintendent of Schools which placed him at the 20 year service point. In addition, he was given credit for a master's degree and for teaching in his field of certification. His total salary, therefore, was set at $23,460.00 over a ten month term. Petitioner was not satisfied, especially since Mr. Pennington, who was serving as principal of NHE was receiving $28,100.00 per year based on a 12 month employment contract. On May 27, 1985 the school board rejected Mr. Greene's nomination of himself as principal at NHE. The board's rejection of Mr. Greene was based on the recommendation of Mr. Hinton who felt that Petitioner was not qualified for the position in that he did not hold certification in administration and supervision at the elementary level his contract was not for the position of principal he had no experience as principal or assistant principal he did not apply for the position when it was advertised and because counsel advised that filling the position based on self nomination might violate Florida law. Mr. Pennington on the other hand, was fully certified in administration and supervision for all grade levels involved at NHE. Other positions for which Respondent felt himself qualified came open during the 1984-1985 school year but he was not selected to fill any of them. Included in these were that of principal of Hamilton County High School and administrative assistant positions at both North Hamilton Elementary and South Hamilton Elementary. When Mr. Hinton took over as Superintendent of Schools, as a part of his management program and in an effort to correct what appeared to be a problem regarding the late payment of School Board obligations which existed when he took over, he recommended certain personnel changes including the creation of an office manager position. Mattie Fouraker, formerly the business education instructor at Hamilton High School, was appointed office manager to the School Board at a salary approximately equivalent to that she received as a teacher. It is to her vacant job as teacher of business education that Mr. Greene was assigned. Petitioner contends Ms. Fouraker was appointed to the position before it was ever officially created and approved by the School Board. Be that as it may, however, it becomes clear that the Superintendent of Schools intended that a problem be solved and to do so, created a position designed to correct it. He appointed Ms. Fouraker to the job on a temporary basis and as soon as the School Board met at the next scheduled meeting in December, 1984, it approved the position and confirmed Ms. Fouraker's assignment to it. This formal board action, however, served to increase her pay from that of a teacher at $23,460.00 per year to that of an administrative position at $29,700.00 per year and her position was changed from that of a 10 month to a 12 month employment, along with the benefits accruing thereto. Petitioner's salary as business education instructor was developed through a tailored formula developed with an intent to,-in the opinion of Mr. Hinton, put Mr. Greene in approximately the same position for the four years he was Superintendent of Schools. As was stated previously, Mr. Greene was given credit for his 16 years in the classroom plus his years of superintendent for a total of 20 years experience credit. Added to that was credit for a Master's degree and credit for teaching in his field of certification. When the $23,460.00 salary that was arrived at for this was compared to what it was anticipated he would have earned had he stayed as Director of VTAE, it was seen that had he remained in his position on the same salary schedule, he would have presumably earned $2,362.50 per month ($23,625.00 per 10 month school year) as an instructional director, Step 6. This is approximately $155.00 more over the school year. Had Petitioner been paid at the salary of an instructional support position, Step 6, the monthly salary would be slightly lower. It should be noted, however, that due to schedule changes during the period, this might not be a valid comparison. Positions within the school system are assigned by the Superintendent of schools on the nature of the position. Non- instructional personnel are assigned categories on the salary schedule based on an assessment of their qualifications and value to the system. Teachers, on the other hand, who are generally serving under contracts, are placed on the salary schedule consistent with the number of years experience they have plus certain other additions. It was Mr. Hinton's position that Mr. Greene should be paid as a teacher since he was serving as a teacher and once that decision was made, Mr. Greene was paid the highest amount that a person with his certificate and his experience and qualification could earn in that position. When the Florida Commission on Ethics issued its opinion on the question certified to it regarding Petitioner's recommending himself for the position of Principal of NHE, the opinion indicated the Commission could not conceive of how the Petitioner's actions in recommending himself for a position could not have constituted a misuse of public position. In other words, while not saying that it was, the Commission concluded that it probably was a violation. Thereafter, the School Board requested an Attorney General's opinion on whether a school superintendent may nominate himself for appointment of a principal. The opinion was not received as of the date of the hearing. Turning again to the issue of the function of Director of VTAE, the School Board contends that the function of Director has steadily expanded in scope. For example, Mr. Hinton urges that the work that Mr. Greene was doing as Director, VTAE prior to being elected superintendent now constitutes only 10 to 20% of the currently described duties of the position. The additional functions that Ms. Scaff performs, as described above, he contends, constitute more by far than that which Petitioner did when he held the job. In support of that position, Mr. Hinton refers to the organization and management study conducted in 1983 at the request of Petitioner when he was Superintendent of Schools. Among the pertinent recommendations of that study was the restructuring of the organization within the school district level. The position of Director, VTAE was not one of the three Director and five coordinator positions recommended by the study. Ms. Scaff indicates that when Petitioner was defeated in his bid for re-election as superintendent of schools, she indicated her willingness to step down from the position of Director, VTAE and return to classroom teaching. She does not consider the return to a position of teaching as a demotion nor does Ms. Fouraker. It should be noted, however, that both individuals received substantial increases in salary by virtue of their position changes under the Hinton administration. For example, Ms. Fouraker's promotion to the position of office manager carried a pay increase from $23,460.00 to $29,700.00 per year. Ms. Scaff now earns the same. Mr. Greene was at Step 6 on the non-instructional scale when he left the job of Director, VTAE. These scales were modified in the intervening years, and Ms. Fouraker traced Mr. Greene's position as Director, VTAE, to the new scale as if he had stayed in place. She placed him at Step 6 on the new scale at a salary of $28,350.00. Petitioner contends that he should be treated the same as Mr. Coe, Director of Personnel, who realized a large salary and step increase when the pay scales were changed. If this were done, and he was given an instructional director's position at step 20 on the non- instructional salary schedule, his salary would be $32,500.00. Subtracting that $28,350.00 from the $32,550.00 he says he should be earning, Mr. Greene indicates that he lost approximately $4,958.87 for the period starting November 20, 1984, when he began teaching, to the end of the school year. He further contends that his salary loss is continuing at the rate of $757.50 per month and in addition, he is also being deprived of other benefits of employment such as paid annual leave, sick leave, enhanced retirement benefits, and other like perquisites attached to a 12 month contract. Mr. Greene further contends that since he was involved in litigation with the school board concerning Mr. Coe's contract prior to his leaving the position of Superintendent of Schools, the School Board should have known of his entitlements under the continuing contract since it was shown that it had been established for assignments and transfers.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Petitioner, Fred D. Greene, be assigned a non-principal supervisor/director position within the Hamilton County Schools as available that he be paid accordingly when performing in such a position but that he be denied adjustment for back pay and attorney's fees and costs. RECOMMENDED this 29th day of October, 1985, in Tallahassee, Florida. ARNOLD H POLLOCK 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 October, 1985. COPIES FURNISHED: John D. Carlson, Esquire Gatlin, Woods, Carlson & Girtman 1030 East Lafayette, Suite 112 Tallahassee, FL 32301 Paul Hendrick, Esquire 111 South Central Avenue Suite 1 Jasper, FL 32052 Owen Hinton, Jr. Superintendent Hamilton County School Board P. O. Box 1059 Jasper, FL 32052 Honorable Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, FL 32301 APPENDIX Ruling by the Hearing Officer as to the Petitioner's Proposed Findings Of Fact: Paragraphs Accepted Accepted Accepted Accepted Accepted Accepted Accepted* Accepted* Accepted* Accepted Accepted except as to the veracity of the reported comment of the School Board member Accepted Accepted Accepted Accepted except as to comments of Ms. Scaff as to her being a principal and signing forms as such Accepted except for Petitioner's comment that he would receive temporary certificate for Elementary Ed principal and would obtain certification in grades K-6 without much problem Accepted Accepted Rejected as irrelevant Irrelevant as a finding of fact should be conclusion of law Accepted Accepted except as to last sentence which is irrelevant unnumbered between and 23 Rejected Rejected Rulings by the Hearing Officer as to Respondent's Proposed Findings of Fact (Respondent failed to number paragraphs.) The unnumbered paragraphs are therefore treated in sequence and numbered herein for purposes of identification only. Paragraphs Accepted Accepted Accepted Accepted Accepted Accepted Accepted Accepted Accepted Accepted Accepted Accepted as to substance Accepted Accepted Accepted except that acceptance of the position was not meant to be acquiesed in permanent assignment Accepted Accepted Accepted Accepted Accepted Accepted as it relates to teacher salaries only Accepted Accepted Accepted Accepted Accepted as to the request made. As of the hearing, the opinion had not been received. It was not offered into evidence and though attached to Respondent's Proposed Recommended Order, was not considered Accepted Accepted Accepted except for the conclusion drawn in the last sentence which was not supported by evidence admitted. Accepted Accepted Accepted Rejected. Position was held by Ms. Scaff who performed the same duties performed by Petitioner when he was the encumbent, in addition to additional duties which he did not *Petitioner's terms describing the personnel changes are not necessarily dispositive of the issue.
The Issue The issue in this case is whether Respondent, Kevin R. Sanders, committed the offenses alleged in an Administrative Complaint filed by the Commissioner of Education with the Education Practices Commission on June 10, 1997.
Findings Of Fact Petitioner, Frank T. Brogan, as the Commissioner of Education of the State of Florida, is authorized to enter complaints against persons holding teaching certificates in the State of Florida. Respondent, Kevin R. Sanders, has held at all times relevant to this proceeding Florida Teaching Certificate No. 660581. The certificate was issued by the Department of Education and is valid through June 30, 2002. Mr. Sanders is authorized to teach in the areas of physical education and general science. (Stipulated Facts). At all times relevant to this proceeding, Mr. Sanders was employed by the Escambia County School District (Stipulated Fact). During the 1995-1996 school year1, Mr. Sanders served as a teacher and coach at Pensacola High School (hereinafter referred to as the “Pensacola High”) (Stipulated Fact). Mr. Sanders was assigned responsibility for the supervision of an in-school suspension class (hereinafter referred to as the “ISS Class”) (Stipulated Fact). Mr. Sanders was assigned to serve as the ISS Class teacher for each class period except for one period, which was his planning period. ISS Class students went to a physical education class taught by Jack Jackson during Mr. Sanders’ planning period. Pensacola High’s ISS Class was a disciplinary program established for students who have exhibited behavior warranting suspension from school. Rather that suspending the student from school, the student is assigned to the ISS Class so that he or she will continue to attend school and receive academic instruction. Deans at Pensacola High responsible for disciplinary actions determine whether a student’s conduct warranted referral to the ISS Class and the length of the referral. Students assigned to the ISS Class would continue to receive academic assignments from their teachers. They were required to work on those assignments while in the ISS Class. While students were in the ISS Class, they were not allowed to talk or to sleep. Mr. Sanders wrote the in-school suspension program for Pensacola High, so he was familiar with the purpose of the program. Class periods at Pensacola High were one and one-half hours in duration. There were seven class periods, numbered 1 through 7. On even days, i.e., October 4, class periods 2, 4, 6, and 8 were held. On odd days, i.e., October 5, class periods 1, 3, 5, and 7 were held. Class period 7 was the last class period held on odd days and class period 8 was the last class period held on even days. A “varsity sports” class was scheduled for the last school period, period 7 or 8, of the school day. The varsity sports class consisted of two combined physical education classes. The teachers responsible for these classes were Mr. Jackson and Toby Peer. During the fall of 1995, students in the varsity sports class engaged in weightlifting. Mr. Sanders wanted to act as the instructor. Mr. Sanders was not, however, scheduled to participate in the varsity sports class. His responsibility was to supervise the ISS Class. Early during the fall of 1995, Mr. Sanders, Horace Jones, the Principal of Pensacola High, and David Wilson, the head football coach at Pensacola High, met to discuss allowing Mr. Sanders to supervise the weight training program for the varsity sports class. Mr. Sanders and Mr. Wilson explained to Mr. Jones that weightlifting would only be taught every other day, on odd days. They asked Mr. Jones for permission for Mr. Sanders to go the football stadium where the varsity sports class was held to supervise the weightlifting. Mr. Jones agreed to allow Mr. Sanders to go to the football stadium during class period 7 to supervise weightlifting. Mr. Jones did, however, indicate that Mr. Sanders’ ISS Class should be supervised. The testimony in this proceeding concerning the conditions, if any, that Mr. Jones imposed on Mr. Sanders and/or Mr. Wilson, was contradictory. Mr. Jones indicated that he did not give Mr. Sanders permission to take his ISS Class to the stadium or otherwise remove them from their normally assigned classroom. Mr. Sanders testified that Mr. Jones was aware that Mr. Sanders was taking the students to the stadium on the days that he supervised weightlifting. Based upon the weight of the evidence, Mr. Jones either gave express permission for the ISS Class to be taken to the stadium when Mr. Sanders was supervising weightlifting or was aware that the ISS Class was being taken to the stadium. Mr. Sanders’ ISS Class was assigned to room 30-A, which was located on the second floor of the main classroom building of Pensacola High. Room 30-A is located on the west end of the main classroom building. Subsequent to obtaining permission to supervise weightlifting for the varsity sports class, Mr. Sanders took his ISS Class to the football stadium during class period 7. Mr. Sanders left the students in the bleachers of the stadium above the weightlifting room. The weightlifting room was located in a room just below the bleachers where he left the students. While the students were in the bleachers, they were not directly supervised by any teacher or adult. There were assistant football coaches on the football field in the stadium supervising athletes engaged in football drills some of the time that the ISS Class was left in the bleachers, but they were not assigned the responsibility to supervise the ISS Class. Mr. Sanders would usually, but not always, inform Mr. Wilson that he had arrived to supervise the weightlifting training. Mr. Sanders did not, however, insure that the students in his ISS class were actually being directly supervised by another teacher or adult. Nor did Mr. Wilson tell Mr. Sanders that any arrangement had been made to provide supervision for the ISS Class on October 17, 1995, or on any other occasion. On October 17, 1995, Mr. Sanders had eight students assigned to the ISS. For class period 7, Mr. Sanders escorted his class from classroom 30A to the stadium (Stipulated Fact). When the ISS class arrived at the stadium, Mr. Sanders directed the eight students to sit in the bleachers and told them to remain seated there. Mr. Sanders then left the eight students, went around the side of the stadium and went into the weight room located just below where he had left his students. Mr. Sanders could not see or hear the eight students that he left in the bleachers from the weight room. When Mr. Sanders left the eight students, there were no other teachers or adults left to supervise the eight students. Mr. Sanders left them unsupervised despite the fact that the eight students had evidenced disciplinary problems and, therefore, had evidenced a need for close supervision. Some of the students were in the ISS Class due to truancy, but were left unsupervised by Mr. Sanders. Although there were other assistant coaches present to supervise students in the stadium area, the evidence failed to prove that any of those coaches, including Mr. Core, who was on the stadium football field part of the time that the ISS Class was sitting in the bleachers, were in charge of supervising the ISS Class. The evidence failed to prove that Mr. Core or any other teacher present that day had been given such an assignment. Because Mr. Core was engaged in supervising passing drills with the football team, even if it had been proved that he was in charge of the ISS Class, he could not be expected to provide reasonable supervision of the ISS Class and supervise passing drills. Despite Mr. Sanders' testimony that supervision of the ISS Class was the responsibility of Mr. Wilson, he also testified that he left the weightlifting room on several occasions to check on the students. The evidence failed to support either explanation. At some time after Mr. Sanders left the ISS Class students in the stadium, a 15 year-old female student (hereinafter referred to as “Student X”) that had been assigned to the class that day left the other students to go to the ladies’ restroom under the stadium (Stipulated Fact). She was gone approximately 45 minutes. Student X had been determined to have a Specific Learning Disability and was in the exceptional student education program. While Student X was under the stadium stands, she performed oral sex on several male students in the ladies’ bathroom (Stipulated Fact). Eight male students were subsequently arrested, charged and prosecuted for committing an unnatural and lascivious act with Student X. Seven students pled no contest to the charge, and one was tried and acquitted (Stipulated Fact). Five of the male students were supposed to be in the varsity sports class. At or close to the end of class period 7, an assistant coach came into the weightlifting room and told Mr. Sanders that he had heard that there was a girl underneath the stadium and suggested that Mr. Sanders “might want to go check.” Mr. Sanders left the weight room and began searching under the stadium from the north end where the weight room was located, to the south end. Mr. Sanders eventually found Student X and a male student in a small room in the back of the boys’ junior varsity locker room under the south end of the stadium. Mr. Sanders found Student X and the other student talking. He instructed the male student to return to his drivers' education class. Mr. Sanders took Student X back to the bleachers and the ISS Class. Mr. Sanders did not report the incident nor take any action against Student X or the male student he found her with. The next day, Student X reported that students in ISS Class were teasing her about having done something bad. Although not known by teachers at the time, Student X was being teased about what had happened to her on October 17, 1995. She reported the teasing to the Dean's office. Richard Souza, the head of the exceptional student education program, talked to Student X and concluded that Student X should not be sent back to the ISS Class. 38. Student X was teased further on the bus and in other parts of the school about the incident. What had happened to Student X on October 17, 1995, was not discovered until several days after the event took place. Student X was ultimately transferred to another school. Mr. Sanders' was issued a written reprimand for his involvement in the October 17, 1995, incident by the Superintendent of Schools, School District of Escambia County. Mr. Sanders was subsequently transferred to Workman Middle School as a physical education teacher. Mr. Sanders contested the suggestion in the reprimand that he was required to "provide direct supervision" of the ISS Class. Based upon the weight of the evidence, it is concluded that Mr. Sanders breached his responsibility to the ISS Class when he failed to make reasonable effort to protect the students of the ISS Class from conditions harmful to learning and/or to their mental and/or physical health and/or safety. He breached his responsibility when he left the students unattended and unsupervised. Until he knew that another teacher or adult had taken over the supervision of the ISS Class, it was unreasonable for him to abandon them. The evidence failed to prove that Mr. Sanders "intentionally" exposed any student to unnecessary embarrassment or disparagement. The evidence in this case proved the following facts concerning the aggravating and mitigating circumstances required to be considered in disciplinary cases by Rule 6B-11.007(3), Florida Administrative Code: The offense is this case was severe. Mr. Sanders breached one of the most important duties of a teacher: to insure that the students under his charge were properly supervised. The offense did not constitute a danger to the "public." The evidence only proved one repetition of Mr. Sanders' offense. It has been almost four years since the incident. Mr. Sanders has not been disciplined by the Education Practices Commission. Mr. Sanders has been an educator for approximately ten years and was, and still is, well thought of by some in the Escambia County School Board. He has been an educator in Florida since the 1989-1990 school year and was an educator in Alabama for one year prior to that. The actual damage as a result of the lack of supervision of the ISS students was severe. One student was severely harmed and the other students, who had evidenced a great need for supervision, were left unattended. The penalty will not be as effective a deterrent as the publicity concerning the incident. If Mr. Sanders is suspended, as recommended by Petitioner, it would have a serious impact on his livelihood. The evidence failed to prove any effort at rehabilitation by Mr. Sanders, nor is there any rehabilitation reasonably necessary in this matter. Mr. Sanders was not forthright concerning his responsibility in this matter. Mr. Sanders did not admit his responsibility to stay with the students at a minimum until he knew they were supervised. Instead, he attempted to lay the blame elsewhere. Mr. Sanders is currently employed as a teacher for the Escambia County School District. He is employed at Tate School. There was only one violation. Therefore, there was no need for any "[a]ttempts by the educator to correct or stop the violation or refusal by the licensee to correct or stop the violation." There have been no related violations against Mr. Sanders in another state, including findings of guilt or innocence, penalties imposed and penalties served. Mr. Sanders was negligent in his actions, but he did not commit any violation independent of his neglect. There were no penalties imposed for related offenses. No pecuniary benefit or self-gain enured to Mr. Sanders. The degree of physical and mental harm to Student X was great. No physical and/or mental condition contributed to Mr. Sanders' violation, including recovery from addiction.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Kevin R. Sanders has violated the provisions of Section 231.29(1)(i), Florida Statutes, in that he violated Rule 6B- 1.006(3)(a), Florida Administrative Code, as alleged in Count One and Count Two of the Administrative Complaint. It is further RECOMMENDED that Count Three of the Administrative Complaint alleging that Mr. Sanders violated Rule 6b-1.006(3)(e), Florida Administrative Code, be dismissed. It is further RECOMMENDED that Mr. Sanders' teaching certificate be suspended for a period of six months, that he be issued a letter of reprimand, and that he be placed on probation for a period of two years following his suspension. DONE AND ENTERED this 26th day of August, 1998, in Tallahassee, Leon County, Florida. LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 26th day of August, 1998.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times material to this proceeding, Respondent held a Florida Teaching Certificate number 541001, covering the areas of Physical Education and Driver's Education. Respondent was employed by the Dixie County School District at Dixie County High School in Cross City, Florida, from the spring of 1983 through late November, 1985. During the period of time Respondent was employed by the Dixie County School Board (Board), he was married to Tina Bailey, with whom he had two children. He was divorced from Tina Bailey in July, 1986. Respondent was employed in the positions of athletic director, head football coach, and also had some duties teaching physical education. During the fall semester of 1985, respondent spent his mornings at Anderson Elementary School and was on the high school campus at Dixie County High School from 11:15 a.m. through the remainder of the day. During the Respondent's fifth hour he taught physical education, and during his sixth period he was involved in being the varsity coach for boys' football. Dixie County High School, which is located in Cross City, is the only public high school in the County. The population of Cross City is 3,000. The position of head football coach at Dixie County High School is a "spotlight figure," a visible position with a great deal of influence or contact with young people. A valid teaching certificate is necessary to hold the position of football coach at a public high school. During the late summer of 1985, Respondent attempted to use his influence as head football coach to intercede and possibly prevent an impasse in the contract negotiation between the teachers and the Board. Respondent's action resulted in members of the football team, and possibly some of their parents, putting pressure on the Superintendent of Schools to call a Board meeting. The student aides assigned to the Physical Education Department for fifth period of the 1985-1986 school year were Mary Cravey and Trina Fletcher. Trina was a senior during the 1985-1986 school year and head cheerleader. She had been a cheerleader since the seventh grade. Due to Trina's head cheerleading responsibilities and being a teacher's aide in the same period Respondent taught physical education, she had more contact than usual with the head football coach in her senior year. During the fall semester of 1985, toward the end of October, School Principal Kenneth Baumer was advised by Cynthia Wells, an English teacher, that Trina was romantically involved with Respondent. Upon Baumer questioning the Respondent and Trina, both denied any improper conduct and there was insufficient evidence to show any improper conduct prior to this date. However, in effort to quiet any rumors, Baumer transferred Trina across campus under the supervisor of her aunt, Cherie Norton. Sometime after Trina was placed under the supervision of her aunt, Trina became attracted to Respondent, and Respondent later became attracted to Trina, and they began to discuss their personal problems with each other. Later on, subsequent to the discussion with Baumer but before Respondent resigned his position, their relationship became more personal and progressed to the point of physical contact such as hugging and kissing on possibly one or two occasions off campus and out of Dixie County. After Respondent resigned in late November, 1985, his relationship with Trina continued, but it was not until after her eighteenth birthday that the relationship progressed to the point of being physical and sexual. Also, they dated more openly after Trina's eighteenth birthday. It was not until Respondent resigned that Trina's parents became fully aware of the relationship. Trina's parents were bitterly opposed to Trina dating or seeing Respondent and, as a result, on her 18th birthday, January 23, 1986, Trina moved in with her Aunt, Cherie Norton. After moving out of her parents' home, Trina received very little financial support from her parents. The relationship between Trina and her parents was very poor during the spring of 1986. Trina did not go to the senior prom, although she did go for pictures, nor did she go on the senior trip. Trina decided against going to these events because she was dating Respondent. There was no evidence that Respondent encouraged Trina not to attend these events. Trina was a straight "A" student which did not change as a result of her relationship with Respondent. Trina had a standing academic scholarship to attend Lake City Junior College. Trina did not attend college, although she was encouraged by Respondent to attend college, and, in fact, offered financial assistance through his uncle. In a small community such as Cross City, rumors, whether true or untrue, affect an individual's reputation and could damage the effectiveness of teachers in a classroom. However, there was insufficient evidence to show that Respondent's effectiveness as a classroom teacher was adversely affected by any rumors before or after he had resigned. Respondent was aware after the discussion with Baumer that getting involved with a female student, particularly while employed by the Board, was inappropriate. There was insufficient evidence that Trina suffered any damaging consequences as a result of her relationship with Respondent, particularly prior to his resignation. Trina was a "loner"; her friends were limited and she did not mix well with her peers. This was true before and after she became involved with Respondent, and there is insufficient evidence to show that Trina was treated any differently by her peers or the public at large in Dixie County after she became involved with Respondent, particularly before his resignation. Although, as a rule, high school students may be sensitive to what is said about them by their classmates, there was insufficient evidence to show that any derogatory remarks were made to or about Trina, directly or "behind her back," concerning her relationship with Respondent that resulted in Trina being embarrassed or hurt, being isolated from, or treated differently by her peers or suffering any damaging consequences. There was insufficient evidence to show that Respondent's relationship adversely affected or seriously reduced his effectiveness as a teacher and an employee of the Board, notwithstanding the testimony of Principal Baumer and Superintendent Hardin in this regard, particularly their concern about the political implication of any Board member's thinking or theories in recommending Respondent for re-employment as a teacher in Dixie County, Florida. It is clear that there was a strong mutual affection between Respondent and Trina, in spite of the age difference, that lasted for a period approximately 1 1/2 years, long after Respondent had resigned and Trina had graduated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, evidence of record and the candor and demeanor of the witnesses, it is RECOMMENDED that the Education Practice Commission enter a Final Order finding Respondent in violation of Section 231.28(1)(c), Florida Statutes, for conduct constituting "gross immorality" and suspending Respondent's teaching certificate for a period of (1) year, subject to reinstatement in accordance with Section 231.28(4)(6), Florida Statutes. It is further Recommended that Petitioner's Final Order dismiss all other charges relating to a violation of Section 231.28(1)(f) and (h), Florida Statutes, and Rule 6D-1.006(3)(e) and (h) and Rule 6B-1.006(4)(c), Florida Administrative Code. RESPECTFULLY SUBMITTED AND ENTERED this 14th day of March, 1989 in Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of March, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-4782 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner 1.-13. Adopted in Findings of Fact 1-12, respectfully. The first sentence is immaterial. The second sentence is adopted in Finding of Fact 14. The first sentence is immaterial. The second sentence is adopted in Finding of Fact 15. 16.-17. Adopted Findings of Fact 15 and 16, respectively. 18.-23. Adopted in Findings of Fact 16, 16, 17, 18, 19 and 17, respectively. 24.-26. Adopted in Findings of Fact 20, 20 and 22, respectively. Adopted in Findings of Fact 14, 15 and 16. Adopted in Findings of Fact 15 and 16. Adopted in Findings of Fact 14 and 16. Rejected as being argument rather than a finding of fact. Rejected as being argument rather than a finding of fact. Rejected as not supported by substantial competent evidence in the record. Rejected as not supported by substantial competent evidence in the record. Adopted in Finding of Fact 26. Rejected as not supported by substantial competent evidence in the record. Adopted in Finding of Fact 16. Adopted in Finding of Fact 22. Rejected as not supported by substantial competent evidence in the record. COPIES FURNISHED: Betty J. Steffens, Esquire Nabors, Giblin, Steffens & Nickerson, P.A. 106 South Monroe Street Post Office Box 11008 Tallahassee, Florida 32302 Thomas Bailey, Pro Se Post Office Box 1482 Cross City, Florida 32628 Martin B. Schapp, Administrator Professional Practices Services 319 West Madison Street, Room 3 Tallahassee, Florida 32399 Karen B. Wilde, Executive Director Education Practices Commission 418 Knott Building Tallahassee, Florida 32399 =================================================================
