The Issue Whether or not Respondent should be assigned to J.R.E. Lee Opportunity School. BACKGROUND AND PROCEDURE Petitioner presented the oral testimony of Anya Cooper and Aaron Brumm and had admitted Exhibits P-1 (two pages of subpoena), P-2 (case management form 676566), P-3 (composite of Student Observation 1/12/87), P-4 (Composite Student Case Management Referral Forms), P-5 (Second Report for School Year 1986-1987), P-6 (Composite of Student Academic and Behavioral Reports), and P-7 (Individualized Education Program, IEP). Respondent presented the oral testimony of Fred Sage and had admitted R-1 (Computer printout), R-2 (Computer printout), R-3 (Child Study Team Conference Notes), and R-4 (composite of report card with progress notes of Grace Baptist Academy). Joint Exhibit A (Multi- Disciplinary Team Report) was also admitted. Due to the failure of Bonnie Edison to respond to a validly served subpoena, the parties stipulated to the taking and filing of her deposition by Petitioner subsequent to July 21, 1987. Respondent's father's August 22, 1987, letter has been treated as a Motion to Strike or Amend the Edison deposition, and the Edison deposition with attached exhibits has been admitted as amended by the Order of September 10, 1987. Petitioner filed a "Memorandum of Law on Jurisdiction, Substantial Interest, and Case or Controversy," and Respondent filed a letter styled, "Request for Ruling." These documents are addressed the Appendix to this Recommended Order, pursuant to Section 120.59(2), Florida Statutes.
Findings Of Fact Respondent's parents were notified by a letter dated January 30, 1987, that Respondent had been administratively assigned to the Dade County School Board's alternative education program at J.R.E. Lee Opportunity School. Being previously aware that the recommendation for administrative assignment had been made, Respondent's parents had formally withdrawn Respondent from the public school effective January 29, 1987, and timely petitioned for formal administrative hearing pursuant to Section 120.57(1), Florida Statutes. Respondent's parents are currently complying with State law by continuing their son in a private educational facility, however Respondent's substantial interest entitling him to a formal hearing continues to exist in that the parents desire their son to be enrolled in the regular program of the Dade County public school system and in that they propose to re-enroll him in that system if they prevail in these proceedings. At all times prior to his withdrawal from public school, Respondent was enrolled at Cutler Ridge Junior High School, located in Dade County, Florida. He attended summer school in the summer of 1986, and was 13 years old and in the seventh grade for the regular 1986-1987 school year. During the regular 1986-1987 school year, Anya Cooper was Respondent's mathematics teacher. In her class, Respondent performed his basic skill work below grade level. She described his conduct in her class as very "fidgety, constantly moving around, bothering other students, and talking and kicking purses." However, she also described the foregoing behavior as all done "in fun" and described Respondent's usual responses to admonishment as being, "Okay, Okay." Apparently she interpreted these responses to her correction as being in the nature of back-talk but admitted that following a smart retort, Respondent usually would not say more beyond "Okay" and often complied with her requests. Beginning September 22, 1986, Ms. Cooper kept a daily record of negative behaviors of Respondent. That day, Respondent was extremely talkative and refused to participate in boardwork. He also lied, saying a paper without a name on it which had received a grade of "B" was his own paper when, in fact, it had been submitted by someone else. When confronted with his lie, Respondent admitted the lie immediately. On September 24, he was too talkative and changed his seat. On September 26, he talked during a test and refused twice to take the test before actually taking it. On September 30, he chewed gum and was required to remove it. On an occasion in early October, he talked back to Ms. Cooper and was instructed not to talk in class anymore. On October 22, he threw a piece of staple which hit another student. Ms. Cooper counselled with Respondent about the danger of throwing staples, but Respondent interrupted her and refused to work. On October 23, Respondent kicked a female student, and on October 28, he put his foot on her arm. Ms. Cooper put him out of her class. There is no evidence that any student was ever injured. On October 27, Respondent refused to work and talked during the entire class period. Later that month, he threw a pen into the trash can, creating a loud noise and distraction. Nonetheless, despite the number of these incidents, Ms. Cooper only referred Respondent for discipline by the school administration one time. During summer school the previous summer, the Respondent had been referred by the coach to Assistant Principal Brumm for running around the cafeteria. Respondent was reprimanded and warned without being assigned to indoor or outdoor suspension. On July 22, 1986, also during summer school, Respondent had been referred to the office for disruptive and non-attentive behavior in one class. Assistant Principal Brumm sent Respondent home for one-half day as a disciplinary measure. By October 6, 1986, Respondent was in the Student-At-Risk-Program (SARP). This program assembles a special group of teachers within the school who are able to deal particularly effectively with disciplinary problems. The student members of the program are assigned their own counsellor and attend classes of much smaller size than do those students in the academic mainstream. The target goal of SARP is to identify students at risk for dropping out of school and modify their behavior so as to retain them in the school system. The testimony of Bonnie Edison, Respondent's seventh grade SARP life science teacher for the regular 1986-1987 school year, was submitted by after- filed deposition. Ms. Edison did not routinely refer Respondent to the administration for his discipline problems, nor did she involve the SARP counsellor. She addressed Respondent's disruptive behavior solely with SARP behavior modification techniques. In Ms. Edison's class, Respondent was "off task" and disruptive seventy to eighty percent of the time unless Ms. Edison addressed him on a one-to-one basis, or unless she included him in a group of no more than three students. Despite measurably high ability, Respondent's work effort was below standard ninety percent of the time. He consistently failed to bring proper materials to class but admitted he should do so. Ms. Edison counselled with Respondent a few minutes daily and occasionally for longer periods, sometimes with temporary success, but never with lasting success. Her greatest concern was that Respondent's need for one-on-one attention deprived her of teaching time and limited her time for other students. She also was concerned because, in their conversations, Respondent could name no rewards or goals she could integrate into her program at school. Nonetheless, noting that Respondent related better to plants than to people, and recognizing his very superior ability with horticulture, Ms. Edison involved him in independent study with plants as a reward. She also devised a reward system based upon Respondent's interest in wrestling as a contact sport, and upon his affection and respect for the wrestling coach who had previously referred Respondent for discipline. This coach helped Respondent study for his second grading period exam in Ms. Edison's class, and Respondent earned an "A" on this final exam. Between September 1986 and the end of January 1987, Respondent had a total of seven referrals to the school administration, although some referrals covered several incidents. The constant theme of the referrals of Respondent to the administration was that Respondent had the ability to learn, but insufficient self-discipline to allow him to learn. Respondent had been assigned to six days of CSI (indoor suspension) and one day of outdoor suspension. In the first grading period of the regular 1986-1987 school year, Respondent earned two F's, one D, two C's and one B. By January 29, 1987, in the second grading period, Respondent had earned two F's, two D's and two C's. In the second grading period, he had only been absent 2 or 3 times in each class except for math, in which he had 8 absences. There is no evidence that any teacher or administrator viewed these absences as excessive. On January 20, 1987, a teacher referred Respondent for disrupting other students in CSI by making squeaking sounds. Thereafter, a Child Study Team was convened. Each of Respondent' a teachers participated in a conference with Respondent's mother on January 28, 1987. The consensus of the team and teachers was that Respondent needed extremely close supervision. Each teacher consulted with Respondent's mother on this occasion. Although there is evidence of some parental contact due to previous disciplinary problems, it appears that January 28, 1987, when the alternative education program was being actively explored, was the first time the parents were made aware of the serious penalties attendant upon Respondent's grades, behavior, and absences. The probable explanation for the lack of prior communication is that Respondent never gave contact slips/reports to his parents, but it is also clear that there was little or no administrative follow-up on the written material sent home and that the parents also resented and reacted hostilely to two oral contacts by the administration. Mr. Brumm opined that all disciplinary and counselling techniques at his disposal had been tried but had proven ineffectual. It was Respondent's parents' position that the school had failed to adequately communicate with them concerning their son's disinterested and disruptive behavior; had failed to involve them early enough in disciplinary and academic correction of their son; and had failed to use corporal punishment to discipline Respondent. To buttress their assertion that the school had failed to adequately communicate with them, the parents asserted that since certain disciplinary reports/referrals had not been committed to writing or consigned to the computer prior to the administrative school assignment (January 30, 1987) or prior to the formal withdrawal of their son from the Dade County School System (January 29, 1987), there was little or no credibility in any of the disciplinary reports/referrals admitted in evidence and particularly no credibility in those reports/referrals dated February 6, 1987, and later. The failure of teachers and administrators to timely commit to writing the reports does not diminish the credibility of the oral testimony on the same facts by the teachers and Mr. Brumm. It does, however, render less credible the administration's assertion that adequate communication was made with the parents simultaneously with the alleged disciplinary actions. The parents' assertion that the school failed to use corporal punishment as an accepted disciplinary technique is ill-founded. The administration's failure to employ corporal punishment was consistent with established policy, and not demonstrated to be unreasonable. Respondent's exhibits of report cards and progress reports from the private school which he entered subsequent to withdrawal from the Dade County Public School System are irrelevant to the statutory issues discussed in the conclusions of law. They are also virtually unintelligible without any "key" by which they may be interpreted.
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 Respondent's continued employment with the Dade County Public Schools, as set forth in minutes of the School Board for October 19, 1977.
Findings Of Fact During the 1975-1976 and 1976-1977 academic school years, Respondent was an employee of the Petitioner as a teacher at the Richmond Heights Junior High School. (Stipulation) By order of the State Board of Education, dated September 20, 1977, the teaching certificate of Respondent, Department of Education Number 3436, was suspended for a period of two years. The matter is currently being appealed to the First District Court of Appeal. (Petitioner's Exhibit 1, Stipulation) On October 19, 1977, Respondent was suspended without pay from his position by Petitioner due to the suspension of his teaching certificate by the State Board of Education. On October 31, 1977, Respondent requested a hearing in the matter. Petitioner provided Respondent with formal notice of charges on December 13, 1977, seeking his dismissal from employment with the school system. Respondent became a teacher in 1937 and has been employed in that capacity by Petitioner since 1961. He testified at the hearing to the effect that, in his opinion, the present proceedings are improper in that the action by the State Board of Education was premature and should not have been taken until the charges upon which such action was based had been considered by Petitioner in administrative proceedings. Respondent sought to introduce character testimony in his behalf by a number of witnesses, but upon objection by Petitioner, such testimony was not permitted by the Hearing Officer as it would be irrelevant to the proceedings. The proffered testimony would have shown that the witnesses had all known the Respondent for a lengthy period of time and that he is a dedicated employee of the school system who has served his community and church as an example for students. (Testimony of Anders, Respondent)
Recommendation That Respondent, Raphu S. Williams, be dismissed from employment as a teacher by the School Board of Dade County, Florida, under the authority of Section 231.36(4), Florida Statutes. DONE and ENTERED this 18th day of April, 1978, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Jesse McCrary, Esquire Dade County Public Schools Lindsey Hopkins Building 1410 Northeast 2nd Avenue Miami, Florida 33132 Elizabeth DuFresne, Esquire One Biscayne Tower Suite 1782 Miami, Florida 33131 Phyllis O. Douglas, Esquire Dade County Public Schools Administrative Office Lindsey Hopkins Building 1410 Northeast 2nd Avenue Miami, Florida 33132
Findings Of Fact Respondent was issued Florida Teacher's Certificate No. 482561 on April 23, 1981, which certified her as authorized to teach elementary education and act as an elementary and secondary school counsellor until June 30, 1985. This certificate is valid now and was valid at all times pertinent to this hearing. On December 16, 1981, at the time of the incidents alleged, Respondent was working for a telephone answering service in Fort Lauderdale, Florida. She was in the process of moving to Jacksonville and had hired an individual named James Dallas to move her possessions for her. Since the day prior to the day in question, she had seen Dallas and his friend going through her luggage, she became convinced he was planning to rob her. As a result, she removed certain items from her luggage to her purse, which items included the handgun and the "knife" in question. Respondent admits to having the gun in her possession concealed in her purse. She contends, however, she had purchased it legally and was of the opinion it was properly registered. Whether it was or not is immaterial, as the ultimate fact is it was concealed in her purse and she did not have a license to carry a concealed gun. As to the "knife," she contends it was not a knife, but part of a manicuring set. The probable cause affidavit executed by the police officer who arrested her, however, indicated that he found a 4 1/2 inch black- handled steak knife in her purse along with the handgun. At no time did Respondent draw or threaten with either weapon, although at the time of her arrest she was involved in a disturbance with Dallas. I find, therefore, that the "knife" in question was in fact a knife. On March 5, 1982, Respondent pleaded guilty in the Circuit Court for Broward County, Florida, to carrying a concealed firearm and carrying a concealed weapon (misdemeanor) She was placed on probation for three years for carrying the gun and for one year, to run concurrently with the three, for carrying the knife, and adjudication of guilt was withheld with a provision for expungement of the record upon successful completion of probation. She immediately moved to Jacksonville. She initially intended to apply for employment in the Duval County school system, but found that she needed to attach a copy of her teaching certificate, which had, in fact, been stolen from her luggage. Therefore, on April 2, 1982, she submitted an application for a duplicate certificate on which she listed her arrest for and the disposition of her offense. It was on the basis of her application for a duplicate license that this action to discipline her was initiated. In January, 1983, almost a year later, there was no showing of any report by the courts to Petitioner or any complaint or report by any other agency. Respondent is currently working at Edward Waters College in Jacksonville as Recruitment and Admissions Counsellor and has been so employed since December, 1982. Her supervisor, the Dean of Student Affairs, finds her to possess high skills and creative abilities and to have much to offer the field of education, even though he is aware of her plea of guilty and the offenses to which it relates. Her probation officer, who has observed her since she arrived in Jacksonville, relates a glowing picture of her probation and indicates she has been very satisfactory and absolutely no problem. She follows and lives up to all standards of her probation. In fact, she has been so good, he intends to recommend early termination of her probation as soon as she has completed half the term, which is the earliest he can do so. The Director of Personnel Systems and Records for the Duval County school system does not know Respondent, knows nothing of her professional record or competence, and has not reviewed any application from her to teach in the Duval County schools. However, he is of the opinion that by virtue of her involvement with the law alone, and regardless that upon completion of her probation her record would be expunged, her effectiveness in an educational situation would be lessened because of the knowledge by others within the system of her offenses. Under the teachers' Code of Ethics, a teacher should set an example for the students. A teacher is responsible to not only the students, but also to the faculty and parents, and a teacher's off-campus conduct can and does have an effect on the teacher's performance. Respondent does not feel her effectiveness as a teacher has been reduced. In fact, she feels that because of what she has learned from this situation she has become more aware of her responsibilities to society and to the educational system. This, she feels, enhances her effectiveness.
Recommendation Based on the foregoing, therefore, it is RECOMMENDED: That the Education Practices Commission dismiss the Administrative Complaint. RECOMMENDED this 8th day of August, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings Department of Administration 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of August, 1983. COPIES FURNISHED: J. David Holder, Esquire Berg & Holder Post Office Box 1694 Tallahassee, Florida 32302 Marvin I. Edwards, Esquire Edwards, Willis & Marinucci 3300 Independent Square Jacksonville, Florida 32202 Mr. Donald L. Griesheimer Executive Director Education Practices Commission 125 Knott Building Tallahassee, Florida 32301 The Honorable Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE EDUCATION PRACTICES COMMISSION OF THE STATE OF FLORIDA RALPH D. TURLINGTON, as Commissioner of Education, Petitioner, vs. CASE NO. 83-501 BEVERLY J. MCNAIR, Respondent. /
Findings Of Fact Respondent was reassigned to Douglas MacArthur Senior High School- North, an alternative school, on December 16, 1982, because of his unacceptable conduct in Grade 9 at North Miami Junior High School. Petitioner presented evidence of 16 incidents of conduct by Respondent which required disciplinary action in the year preceding his reassignment to the alternative education program. Additionally, his grades in all courses were unsatisfactory at the time of reassignment. Respondent did not accept the alternative school assignment and instead obtained employment at a restaurant. He is now living with his grandmother, Mrs. Helen Wood, who seeks his return to a regular junior high school program. She has discussed this proposal with the principal of Thomas Jefferson Junior High School and he apparently agrees with her. Respondent's evidence established that his family life was difficult and disruptive during the period of his misconduct. His situation has now stabilized and he is responsive to his grandmother's supervision. He should, therefore, be given an opportunity to return to the regular academic program (Grade 9) at Thomas Jefferson Junior High School.
Recommendation In consideration of the foregoing, it is RECOMMENDED that Petitioner enter a Final Order classifying Respondent as a disruptive student, but permitting him to attend the Thomas Jefferson Junior High School in a probationary status. ENTERED this 6th day of May, 1983, at Tallahassee Florida. R. T. CARPENTER, 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 6th day of May, 1983. COPIES FURNISHED: Mark Valentine, Esquire 3000 Executive Plaza 3050 Biscayne Boulevard Miami, Florida 33137 Mrs. Helen Ward 1000 Northwest 153rd Street Miami, Florida 33169 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132 Phyllis O. Douglas, Esquire Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132
The Issue The issues for determination at the final hearing were: 1) whether the Respondent should be dismissed from employment due to incompetency; and 2) whether the conflict in the statute cited in the Notice of Charges dated November 18, 1982, and the Notice of Hearing dated June 18, 1983, constitute inadequate notice to the Respondent Muina of the charges against him. At the final hearing, Marsha Gams, a learning disability teacher at Carol City Junior High School, Rosetta Vickers, Director of Exceptional Student Education, Dade County School Board, Carol Cortes, principal at Carol City Junior High School, Karen Layland, department chairperson of the Exceptional Education Department at Carol City Junior High School and Desmond Patrick Gray, Jr., Executive Director of Personnel, Dade County School Board, testified for the Petitioner School Board. Petitioner's Exhibits 1-13 were offered and admitted into evidence. Yvonne Perez, Bargaining Agent Representative, United Teachers of Dade, Alexander Muina and Desmond Patrick Gray, Jr., testified for the Respondent. Respondent's Exhibits 1-5 were offered and admitted into evidence. Subsequent to the hearing, the Respondent requested via telephone conference call, that Respondent's Exhibit 6, the published contract between the Dade County Public Schools and the United Teachers of Dade, be admitted into evidence as a late-filed exhibit. The contract was admitted over Petitioner's objection. Proposed Recommended Orders containing findings of fact have been submitted by the parties and considered in the preparation of this Recommended Order. When the parties' findings of fact were consistent with the weight of the credible evidence introduced at final hearing, they were adopted and are reflected in this Recommended Order. To the extent that the findings were not consistent with the weight of the credible evidence, they have been either rejected, or when possible, modified to conform to the evidence. Additionally, proposed findings which were subordinate, cumulative, immaterial or unnecessary have not been adopted. On July 11, 1983, the Petitioner filed objections to the Respondent's Proposed Findings of Fact, Conclusions of Law and Recommended Penalty. Certain of the Petitioner's objections were subsequently stipulated to by the Respondent and are not in issue in this proceeding.
Findings Of Fact The Respondent Alexander Muina has been employed by the Dade County School System for approximately nine years. He initially worked with regular students, then worked as an assistant teacher with profoundly mentally handicapped students. During the 1979-80 school year, the Respondent became a permanent substitute in a class for the trainable mentally handicapped. He held this position for approximately two months and during that period received a satisfactory annual evaluation. During the 1980-81 school year the Respondent was assigned to the "ESOL" Program which is an acronym for English for Speakers of Other Languages. During this period, the Respondent taught as an itinerant teacher at three different schools each week. One of the schools the Respondent was assigned was Carol City Junior High School, where he taught on Thursdays and Fridays, as part of the Entrant Program. This was a program which was established for the approximately 13,000 children who had entered the Dade County School System during the Mariel boat lift. Mrs. Carol Cortes, principal at Carol City Junior High School, compiled the Respondent's annual evaluation for 1980-81 after consulting with the two other principals to whose schools Respondent was also assigned. At that time, Respondent received an acceptable annual evaluation from Cortes; however, Cortes had not continually observed the Respondent or had continuous direct contact with him since he was only at the school two days a week. At the close of the 1980-81 school year, the Respondent asked Cortes if there was an opening in exceptional education in which he could be placed. Toward the end of the summer a position became available in varying exceptionalities, an area in which the Respondent is certified by the State of Florida, and he accepted this position. A varying exceptionality class includes students who have three types of learning disabilities or exceptional problems, including the educable mentally handicapped, the learning disabled, and the emotionally handicapped. Although the Respondent is certified by the State of Florida to teach varying exceptionalities, during his first year instructing the class the Respondent experienced significant problems which are reflected in his evaluations of November, January and March of the 1981-82 school year. The first observation of Respondent as a varying exceptionalities teacher was done on November 5, 1981, by Carol Cortes, principal. The Respondent's overall summary rating was unacceptable in the areas of preparation and planning and classroom management. Individual Education Plans (IEPs) for each of the students were not being followed. The Respondent was not using the IEPs to develop activities for the students which would meet the goals of providing "diagnostic prescriptive teaching." Using the IEPs and the diagnostic prescriptive teaching techniques is crucial to the success of exceptional educational students. The students were not being taught according to their individual abilities, but rather were doing similar classroom work. Additionally, classroom management was lacking in that the Respondent did not formulate adequate behavior modification plans for the students who were observed talking and milling about the classroom. Following her first observation, Cortes offered assistance to Respondent, including changing his physical classroom layout and placing him with the department chairperson. This was done so that the chairperson could assist in developing the activities and plans necessary for the students and could also provide support in developing behavior modification plans. Cortes also asked the school psychologist to work with the Respondent in establishing such plans. Dr. Gorman, the assistant principal, had frequent informal observations of the Respondent in an attempt to help him with his classroom difficulties. The next formal observation of Respondent was performed by Cortes on January 20, 1983, and the overall summary rating was again unacceptable in the areas of preparation and planning, classroom management and techniques of instruction. Preparation and planning was unacceptable because the Respondent was still not following the student's IEPs. He continued to assign the same general activities to all students regardless of individual differences. His class was confused regarding their goals. Because the Respondent was not teaching toward the objectives set forth in the IEPs, the children were not achieving a minimum education experience. The Respondent was marked unacceptable in classroom management because he did not have adequate control over the students. Students were walking around the class and the class was generally noisy The work that the Respondent did with individual students was in the nature of giving directions rather than actually teaching. In order to teach it is necessary to provide students with new concepts and provide teacher input rather than simply monitor students. The Respondent was marked unacceptable in techniques of instruction because his lesson planning was deficient. He spent the majority of time in the classroom attempting to discipline students. His grade book was kept in an inappropriate manner and the students were frustrated. As a result of these problems, Cortes requested that the Respondent visit a program at Madison Junior High School which had an acceptable behavior modification program in place. The Respondent visited the program on January 26, 1982; however, no substantial improvement after the Respondent's visit was noted. The Respondent also took a reading course in late January, 1982. No significant improvement was noted following completion of that course. In January of 1982, a social studies position at Carol City Junior High School became available. Cortes offered that position to the Respondent and he could have transferred into the social studies department if he had so desired. The Respondent, however, elected to remain in the field of exceptional student instruction. At that time, Cortes felt that the Respondent was attempting to deal with his deficiencies and he should be given the opportunity to correct the problems with his class. Mrs. Vickers, Director of Exceptional Student Education for Dade County Schools, made a routine visit to Carol City Junior High School on January 27, 1982. She had heard from one of her education specialists that there were difficulties in classroom management in the Respondent's classroom. She observed that many of the students were not on task in that they walked around the classroom, talked out loud, and called the Respondent "pops". A few of the students tried to work, but the noise level in the class was so high it was disruptive. Vickers chose not to do a formal observation at that time, because she felt that there were many areas that she could not have marked acceptable. Instead, Vickers chose to do a planning session with Respondent on that same date. At the planning session, Vickers discussed with Respondent such topics as getting the students on task, bringing supplies and materials, completing assignments and doing homework. She discussed IEPs with the Respondent and the minimal skills tests that the children are administered in grades 5, 8 and 11. She explained to the Respondent how to use a grade book and examined the student's work folders. Although the folders contained significant amounts of work, the work did not correlate with the objectives on the children's IEPs. Vickers was also concerned that the Respondent was monitoring the class rather than directly instructing the students on specific skills. He did not pull individual students or groups aside for direct instruction. Vickers returned to the Respondent's classroom on February 25, 1982, in order to conduct a formal observation. At that time, Vickers gave the Respondent an unacceptable overall summary rating. She found him deficient in the categories of classroom management, techniques of instruction, assessment techniques, student-teacher relationships, and acceptable in the category of preparation and planning. She rated the Respondent unacceptable in classroom management because a serious problem existed with the management of his students who were not on task. The students were not working in an orderly fashion and the class was so loud that it distracted the class on the other side of the room. When Vickers tried to speak with the teacher in the adjoining room, the noise level in the Respondent's class prevented a successful conversation between them. Due to these problems, the Respondent's students were not receiving a minimum education experience. Children with learning disabilities are easily distracted by visual or auditory interference; this problem was occurring in Respondent's class. Vickers rated the Respondent unacceptable in techniques of instruction since he was not using the diagnostic prescriptive teaching method that is required in the Dade County School System. Respondent was not utilizing small groups to give specific help with skills, but was instead, monitoring. Vickers also rated the Respondent unacceptable in assessment techniques. Exceptional education teachers are required to do a profile on each student showing the skills that the student has met and the skills that the student needs to improve. The Respondent did not meet this requirement. Finally, Vickers found the Respondent unacceptable in student-teacher relationships since she observed that the students showed an unacceptable level of respect for the Respondent. Vickers suggested that the Respondent visit three other exceptional education teachers along with regular teachers in school. She also scheduled an assertive discipline workshop for exceptional education teachers and asked that Respondent attend. The Respondent however, did not attend the workshop. On March 25, 1982, Cortes completed Respondent's annual evaluation for 1981-82 and recommended nonreappointment. This annual evaluation took into consideration all of the observations done by administrators in the building. She found the Respondent unacceptable in the categories of preparation and planning, classroom management, and techniques of instruction. Cortes next observed the Respondent on May 17, 1982, and again gave him an overall summary rating of unacceptable. She found him unacceptable in the categories of preparation and planning and classroom management. Preparation and planning was unacceptable because the Respondent was not following the IEPs for the students. Cortes observed that the Respondent misspelled a word on the black board and the students copied his misspelling. Classroom management remained unacceptable because most of the class was not working. The Respondent continued to have difficulties controlling his students who continued to address him inappropriately by calling him "pops". As the Respondent moved from student to student, the remainder of the class was either talking or milling about the room. Respondent did not have understandable classroom rules and resultant consequences for breaking such rules. Rather than institute positive rewards for students who met the classroom criteria, his emphasis was on negative reinforcement. Following Cortes' discussion with the Respondent as to these deficiencies, she continued to see minimal improvement. It was also recommended that the Respondent visit Mrs. Layland, the department chairperson, to observe her classroom management techniques. Layland had a behavior modification plan in place and was able to work individually with each student while other students remained on task. The Respondent did visit Mrs. Layland's class but there was no significant improvement following that visit. On May 24, 1982, Cortes performed a second annual evaluation on the Respondent in which she found him unacceptable in one category, preparation and planning and acceptable in the remaining categories, but did not recommend him for reemployment. The second annual evaluation had only one unacceptable category, preparation and planning, and overall Respondent was rated unacceptable. However, the area in which the Respondent was rated unacceptable is especially important in the context of exceptional education. Preparation and planning is an important aspect of this field since planning for exceptional education students must be done on an individual basis. Additionally, the teacher has to plan what each student will be learning over a given period of time, and such planning is necessary in order to successfully instruct these students. Notwithstanding the Respondent's improvement, Cortes moved for his nonreappointment at the conclusion of the 1981-82 school year. The Respondent, however, was reappointed for the 1982-83 school year, when it was determined that the documentation upon which the nonreappointment was to be based was insufficient due to noncompliance with the existing union contract. Prior to the completion of the 1981-82 school year, the Respondent, through his area representative, Yvonne Perez, requested a transfer back into a regular classroom where the Respondent could teach Spanish or Social Studies. This was based on the Respondent's recognition that he was encountering extreme difficulties in teaching varying exceptionalities. Patrick Gray, Personnel Director for the Dade County School System, was aware of the request for a transfer on behalf of the Respondent and agreed to consider it. Gray subsequently determined not to transfer the Respondent, and reassigned him to his existing position. Following his assignment back to Carol City Junior High School, Cortes began to formally observe the Respondent. The first such observation of the 1982-83 school year occurred on September 13, 1982, less than one month after teachers had returned to school. Cortes observed the Respondent and documented an observation sheet with five attached papers. Observations performed the previous year had included only one statement. Approximately one month later, Cortes conducted another observation with four detailed attachments. The documentation provided to the Respondent in September and October of 1982 was accumulated to verify or affirm the decision which was made by Cortes in May of the prior year, to terminate the Respondent. Based on Cortes' observations of the Respondent while he was employed at Carol City Junior High School, she would not recommend him for a teaching position in any other field. According to Cortes, the Respondent is lacking the basic skills necessary to be a successful teacher. Marsha Gams, chairperson of the Exceptional Education Department at Carol City Junior High School during the 1981-82 school year and Respondent's supervisor, met with the Respondent on numerous occasions during the course of his assignment to Carol City Junior High School. Although Gams saw improvement on Respondent's part during the period that she observed him, the improvement was not significant. Based on Gams' observation of the Respondent's class, she felt that the Respondent's students were not receiving a minimum education experience since the Respondent did not have an adequate grasp of the curriculum and materials required for the learning disabled and educable mentally handicapped students. The Respondent's class eventually affected Gams' students due to the noise level which came from his adjoining class. Karen Layland, chairperson of the Exceptional Education Department at Carol City Junior High School during the 1982-83 school year, also worked with the Respondent. They had joint planning periods and spent a number of afternoons reviewing lesson plans, methods, curriculum, and matching materials to IEP objectives. According to Layland, the Respondent's basic problem was that he did not clearly understand the requirements of teaching varying exceptionalities Layland did not observe significant academic progress in the Respondent's class. The Respondent's grade book was disorganized and the materials contained in the student's folders were not appropriate for the particular students. Moreover, there was a lack of organization in his classroom in that students left class without permission. Although Layland felt that the Respondent was well intentioned, he did not have an adequate grasp of the curriculum, teaching management and behavior management that are necessary in an exceptional education setting. Even if Layland had been allowed to continue to work with the Respondent for the remainder of the school year, she did not feel that he could have been brought up to a competent level to teach varying exceptionalities during that period of time. Based on her observations, Layland believed that the Respondent's students were not receiving a minimum education experience due to the Respondent's lack of definite knowledge of methods in instructional techniques for varying exceptional students. By November, 1982, the School Board had made a determination that the school system had exhausted its remedies to raise the Respondent's performance to an acceptable level. Although the Respondent had obtained an acceptable rating from Cortes at the end of the 1982 school year, even this evaluation demonstrated a serious deficiency on Respondent's part. Additionally, during the 1981-82 school year the Respondent encountered numerous significant problems which had not been adequately remediated in order to permit him to continue teaching varying exceptionality students. The school board administration declined Perez' request that the Respondent be transferred into a regular class on the belief that the Respondent was incompetent in basic classroom instruction. However, based on the Respondent's teaching record prior to his employment at Carol City Junior High School, the Respondent encountered difficulties only when he was teaching varying exceptionalities, and in other fields, his basic skills were documented as acceptable. At all material times, the Respondent was employed as an annual contract teacher and did not hold a professional service contract.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a Final Order be entered by the Petitioner Dade County School Board affirming the dismissal of the Respondent. DONE and ENTERED this 26th day of September, 1983, in Tallahassee, Florida. SHARYN L. SMITH, 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 26th day of September, 1983.
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 was employed by Petitioner under a continuing contract. The Respondent, Muriel Johnson Krueger, holds Florida teaching certificate number #0367469 issued by the Florida Department of Education covering grades K through 6. The Respondent is also certified in Florida for administration and supervision, grades K through 12. She also holds a Wisconsin teaching certificate. The Respondent taught in Wisconsin for a number of years; she taught in a one-room school house, grades 1 through 5. She began teaching in Florida in 1974 at Brooksville Primary School in Hernando County, where she taught first grade for two years. She next taught first grade at Moton School Center (Moton) also in Hernando County, for four years. She received her continuing contract in 1977. In 1979, the Respondent was appointed primary specialist at Moton; she held that position until August, 1985. As primary specialist, the Respondent was not assigned to a classroom; she worked primarily with teachers and teachers' aides. She was not responsible for drawing up lesson plans, recording grades, or developing pacing schedules, as those procedures are used in the ordinary classroom. The Respondent received favorable evaluations throughout her career in the Hernando County school system, until January, 1986. However, Respondent has never received an evaluation of her performance which would support her dismissal. In March, 1985, the Respondent was diagnosed as having certain physical and psychological problems, including diabetes and atypical psychosis. The Respondent's medical conditions, including the details regarding her psychological illness, were reported to the school system by the Respondent's doctors, Dr. Renee Haney, a psychiatrist and Dr. Joanne Pegg- McNab., a psychologist. In August, 1985, two days prior to the commencement of the school year, the Respondent was notified by the Petitioner that she would be teaching third grade at Spring Hill Elementary School (Spring Hill) during the 1985-86 school year. Previously, the Respondent had been given to understand, based on representations made to her by school administrators, that she would be teaching second grade in 1985-1986. The Respondent had prepared materials for the teaching of second grade, which she was unable to use in teaching third grade. Louise Ross, principal of Spring Hill, was aware that Respondent had not been a classroom teacher for at least four years prior to Respondent coming to Spring Hill in August, 1985. Ross was aware of Respondent's treatment for psychological illness. Prior to the students' return, the Respondent worked one week at Spring Hill. During that period, Respondent attended general meetings, and although Respondent received a packet of material during this period, it did not contain any specific instruction in regard to preparing lesson plans, grading or pacing. Respondent received specific written instruction regarding the recording of grades and pacing at a later date. Respondent did not receive any specific verbal or written instructions from Ross or any other person respecting the procedures in effect at Spring Hill in regard to grading and pacing until the memorandums of September 24, 1985 and November 19, 1985 from Ross concerning grades and pacing, and the December 16, 1985 letter to Respondent from Ross setting forth Ross' concerns about Respondent's procedures in grading, pacing, and lesson plan preparation that were covered in the meeting between Ross and Respondent on December 16, 1985. On September 24, 1985, approximately one month after school opened on August 22, 1985, Ross issued a memorandum regarding the number of grades to be recorded for each subject, and the procedure for recording the grades. On November 19, 1985 Ross issued a memorandum regarding the Ginn Reading Program (pacing student in reading). Both the memorandum and the chart attached pointed out it was a "guide" and that the primary concern was for the student to master the material. There is insufficient evidence to show that Respondent received this memorandum prior to returning to work on December 16, 1985. No documents concerning the pacing in other subjects were issued to Respondent. Pacing involves setting a pace for the teacher and the student to cover the required material in a set time and yet allow the student to master the subject matter. The failure to properly pace a class usually results in the student requiring remediation in the subject matter. Although Ross collected and reviewed Respondent's lesson plan books during the beginning of the school year and prior to Respondent going on sick leave in November, 1985, Ross did not make any suggestions or criticisms concerning pacing because when she checked the lesson plan books Ross found them sufficient. Respondent was aware of the requirement of preparing lesson plans in advance, but at Moton, where she had previously taught, the requirement was to prepare three days of lesson plans in advance, not five days as was required at Spring Hill. Spring Hill required lesson plans to be ready on the Friday immediately prior to week of the lesson plans, but Ross had allowed teachers to prepare lesson plans over the week-end for the following week. Respondent was absent from school beginning November 20, 1985 through December 16, 1985 on approved sick leave. Respondent failed to prepare lesson plans and leave them for her substitute. Respondent's illness prevented her from preparing lesson plans for the period beginning November 25, 1985 and up until Respondent returned on December 16, 1985. However, the lesson plans for November 20, 21 and 22, 1985 should have been prepared prior to Respondent's illness. On December 16, 1985, the day Respondent returned from sick leave, Ross held a meeting with Respondent to advise her of certain changes in performance expected by Ross. The expected changes were the result of Ross reviewing Respondent's grade book and determining that the grades were not recorded in accordance with the September 24, 1985 memorandum, and reviewing Respondent's lesson plan books and determining that Respondent's class (an average class) was ahead of the top class in the third grade in reading and math. Respondent was advised of how to effect the changes and that compliance was expected by the beginning of the second semester. Although Respondent's third grade class was ahead of other third grade classes during the period of school prior to December 16, 1985, the student's mastery of the subject matter covered during this period was within an acceptable range, and remediation was normal. Subsequent to returning to work on December 16, 1987, and up until the Respondent took leave on March 12, 1987, the Respondent's pacing of her students was in accordance with school policy. Respondent's grade books may have shed some light on whether Respondent had properly recorded the student's grades but the grade books were not introduced into evidence. Prior to taking sick leave on November 20, 1985, the Respondent had, in addition to those grades recorded in her grade, recorded grades on sheets of paper in the back of her grade book contrary to the instructions given in the September 24, 1985 memorandum from Ross. However, Ross permitted the Respondent to record these grades in her grade book at a later time. Without knowing that it was against school policy, Respondent allowed her aides to record grades in her grade book. Subsequent to returning to work on December 16, 1987, and up until she took leave on March 12, 1986, the Respondent's recording of grades in her grade books was in substantial compliance with school policy. Although Respondent did not totally comply with the December 16, 1985 memorandum from Ross, her compliance with the memorandum satisfied Sonia Terrelonge, the third grade chairperson, who Ross had assigned the duty of working with Respondent to bring about compliance with the memorandum. Ross did not check Respondent's plan book or grade book on a regular basis as she had indicated in her memorandum of December 16, 1985 but delegated that responsibility to Terrelonge. On March 7, 1986, Respondent escorted her students to Terrelonge's portable classroom to see a movie and, since Respondent had detention duty, she picked up the students from other third grade classes on detention and returned to her portable classroom. At lunch time Respondent returned the students on detention to Terrelonge's portable classroom and escorted her students to lunch. After lunch Respondent escorted her students back to Terrelonge's portable classroom for the balance of the movie; again picked up the students on detention, and returned to her classroom. At the time scheduled for the conclusion of the movie, Respondent returned to Terrelonge's portable classroom to escort her students back to her classroom. Upon arrival at Terrelonge's classroom, Respondent discovered that her students had left earlier with either Maria Wolf or Catherine Winemiller or Jacqueline Mitchie, the other teachers having students at the movie. Although one of these three (3) teachers would have been responsible for supervising the return of Respondent's students to her classroom since Respondent was on detention duty, there is insufficient evidence to show which one had that responsibility. Upon return to her classroom Respondent observed some of her students outside the classroom unsupervised. Some of the students were running around and some were standing on a railing attempting to rescue a shoe from the roof. Respondent summoned her students into the classroom. None of the students were injured in any way. After the movie and the shoe incident the Respondent's children were "hyper". To calm them down, Respondent decided to go to the playground rather than to the scheduled special class. Respondent notified the special class teacher of this change but, without knowledge that she was required to notify Ross, failed to notify Ross of this change. This was the only special class the Respondent's student's missed while under her care during the 1985-86 school year. Other teachers took their students out on unscheduled recess when the children would not settle down. The evidence does not reveal any written policy concerning unscheduled recesses. Respondent kept blank discipline slips and omni passes in an unlocked desk drawer, and that students had on occasions filled out these slips without Respondent's knowledge. There was insufficient evidence to show that the children were under Respondent's supervision at the time the slips were taken out of the drawer and filled out. There were a number of disruptive and behavioral problem students in Respondent's class, but the number of disruptive or behavioral problem children in Respondent's class was not shown to be greater than in any other average third grade class. During the 1985-86 school year, Ross made frequent, unscheduled visits to Respondent's classroom and found Respondent's performance, including her classroom management, satisfactory, except on one (1) occasion, March 12, 1986. As a result of the shoe incident and skipping the special class, Ross called Respondent to a meeting on March 7, 1986 with Edward Poore, Assistant Superintendent, and Cathy Hogeland, Union Representative being present along with Ross and Respondent. As a result of this meeting, Ross advised Respondent to take the rest of that day off, which was Friday, and March 10, 1986 which was Monday. Respondent complied and returned to work on Tuesday, March 11, 1986. On March 11, 1986, the day Ross returned to school her students went on a field trip but Respondent was not allowed to accompany them. During the day Respondent worked on grading, grade books and planning. Also, on March 11, 1986, Ross gave Respondent a handwritten memorandum instructing her in class management, specifically addressing the supervision of students, class discipline, the following of lesson plans and attendance of students at special classes. Additionally, the memorandum instructed Respondent that teachers were not to eat lunch in the classroom and listed those areas where Respondent could eat lunch. On March 12, 1986, around noon, Respondent met with Ross, with Joanne Knight, being present as Union Representative. This meeting occurred as a result of Ross visiting Respondent's classroom and finding the students particularly disruptive and disorderly. When Respondent indicated that she could resume teaching her class that afternoon, Ross informed Respondent that she must take a leave of absence and have a complete physical examination and psychological evaluation or Ross would recommend her termination to the school board. Respondent was also informed by letter from Ross dated April 8, 1986 that her return to work would be based on the psychologist's report which should be submitted no later than May 31, 1986. Due to Ross' demands, Respondent requested leave and signed the necessary papers which had been filled out by the school board office. Respondent was put on leave without pay for the balance of the school year. Respondent resumed seeing Dr. Haney in April, 1986 but due to Dr. Haney's, or Respondent's oversight, an evaluation was not submitted until July 30, 1986. However, on July 1, 1986, Ross had recommended Respondent's dismissal to the superintendent based solely on Respondent's failure to provide the evaluation by May 31, 1986 without any further notice to Respondent other than the letter of April 8, 1986. Respondent learned of Ross's recommendation of dismissal sometime around July 16, 1986 when Ross notified her by letter. The letter also informed Respondent that this recommendation would go to the school board on August 5 1986. During Dr. Haney's treatment of Respondent in 1986, she prescribed medication for her mental condition which had no detrimental side effects on the Respondent. Dr. Haney's report of July 30, 1986 made no recommendation as to Respondent's ability to return to the classroom but left to the school system the interpretation of her findings. Dr. Arturo G. Gonzalez, Respondent's treating psychiatrist, began treating Respondent in October, 1986. Dr. Gonzalez's opinion was that while Respondent does have a mental condition, it is treatable with medication and does not affect Respondent's ability to teach. Dr. Gonzalez prescribes the same medication for Respondent as did Dr. Haney. From his observations, the Respondent takes the medication as prescribed. It was also Dr. Gonzalez's opinion that Respondent understands the need for medication. It was the opinion of Dr. Haney that Respondent better understood the need for medication after her second hospitalization in April 1986 then she had after the first hospitalization in 1985. It was the opinion of both Dr. Haney and Dr. Gonzalez that Respondent's mental condition would not prevent her from being effective in the classroom and that her presence as a teacher would not endanger the welfare of the students. Respondent was a concerned teacher, interested in her student's welfare. There is insufficient competent evidence in the record to show that Respondent had emotional outbursts in the presence of her students. There is insufficient competent evidence in the record to show that, due to Respondent's action, the students in her third grade class were deprived of minimum education experiences. Respondent substantially performed her duties as prescribed by law. There is insufficient competent evidence in the record to show that there was a constant or continuing intentional refusal on the part of Respondent to obey a direct order given by proper authority.
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 the Petitioner, School Board of Hernando County, enter a Final Order dismissing all charges filed against the Respondent, Muriel Krueger. It is further RECOMMENDED Respondent be restored to her position as a continuing contract employee of the Hernando County School Board, and that she receive back pay for the entire period she has been in a non-pay status because of these charges. Respectfully submitted and entered this 14th day of October, 1987, in Tallahassee, Leon County, 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 14th day of October, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2001 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 Adopted in Findings of Fact 1 and 2. Adopted in Findings of Fact 3, 4, and 7. Adopted in Finding of Fact 10 as clarified. Adopted in Finding of Fact 16 as clarified. Rejected as not supported by substantial competent evidence in the record. Adopted in Finding of Fact 17 as clarified. Adopted in Finding of Fact 17 as clarified. Adopted in Findings of Fact 11 and 12 as clarified. Adopted in Finding of Fact 20 as clarified. Adopted in Finding of Fact 20. 11-13. Rejected as not supported by substantial competent evidence in the record. There was conflicting testimony in this regard but the more credible evidence was contrary to the facts set forth in paragraphs 11, 12 and 13. Adopted in Finding of Fact 14. Rejected as not supported by substantial competent evidence in the record. There was conflicting testimony in this regard but the more credible evidence was contrary to the facts set forth in paragraph 15. Adopted in Finding of Fact 23 except for the last clause which is rejected as not supported by substantial competent evidence in the record. 17-19. Rejected as not supported by substantial competent evidence in the record. There was conflicting testimony in this regard but the more credible evidence was contrary to the facts set forth in paragraphs 17, 18 and 19. Rejected as not supported by substantial competent evidence in the record, except for the one occasion on March 12, 1986 which would not be described as a chaotic condition. That classroom management was discussed with Respondent is adopted in Findings of Fact 27 and 29. Rejected as not supported by substantial competent evidence in the record. That students took discipline slips and filled them out is adopted in Finding of Fact 24, the balance of paragraph 23 is rejected as not supported by substantial competent evidence in the record. 24-27. Rejected as not supported by substantial competent evidence in the record. There was conflicting testimony in this regard but the more credible evidence was contrary to the facts set forth in paragraphs 24, 25, 26, and 27. Adopted in Findings of Fact 6, 31, 32, 33 and 34. Rejected as not being relevant or material. Rejected as not being relevant or material because that was Dr. Haney's provisional diagnosis which was changed when she made her final diagnosis. The first sentence of paragraph 31 is adopted in Findings of Fact 3 and 4. The balance of paragraph 31 is rejected as not being relevant or material in that although Respondent admitted being acquainted with those school board policies there was credible evidence that Respondent was not aware at the beginning of the school year of Ross' or the Superintendent's specific instruction in regard to maintaining attendance records, grade books, etc. Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Finding of Fact 2. Adopted in Finding of Fact 3. Adopted in Finding of Fact 4. Adopted in Finding of Fact 5. Adopted in Finding of Fact 6. Adopted in Finding of Fact 7. Adopted in Findings of Fact 8, 10 and 11. Adopted in Finding of Fact 9 but clarified. Adopted in Finding of Fact 12. Adopted in Finding of Fact 15. Adopted in Finding of Fact 26. Adopted in Finding of Fact 17 but clarified. Rejected as not being relevant or material. Adopted in Finding of Fact 19 but clarified. Adopted in Finding of Fact 20. Adopted in Finding of Fact 18. Adopted in Finding of Fact 21. Adopted in Finding of Fact 13. Adopted in Findings of Fact 20 and 21. 20.-21. Adopted in Finding of Fact 22 as clarified. Rejected as not being a finding of fact but only a restatement of testimony. Adopted in Finding of Fact 24. Adopted in Finding of Fact 22. 25.-26. Adopted in Finding of Fact 23. Adopted in Finding of Fact 25 but clarified. Adopted in Finding of Fact 27 but clarified. Adopted in Findings of Fact 28 and 29. Adopted in Finding of Fact 30. Adopted in Finding of Fact 30 but clarified. Adopted in Findings of Fact 31 and 32. Adopted in Finding of Fact 31. Adopted in Findings of Fact 31 and 33. Adopted in Findings of Fact 34 and 35 but clarified. Rejected as not being relevant or material. Adopted in Finding of Fact 36. Adopted in Finding of Fact 37 but clarified. Adopted in Finding of Fact 35 but clarified. Adopted in Finding of Fact 5. COPIES FURNISHED: Joseph E. Johnston, Jr., Esquire 29 South Brooksville Avenue Brooksville, Florida 34601 Susan E. Hicks, Esquire Post Office Drawer 520337 Miami, Florida 33152 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32300 James K. Austin, Ed.D. Superintendent of Schools Hernando County 919 U.S. Highway 41 North Brooksville, Florida 33512-2997
The Issue This case concerns the propriety of Respondent's abolishment of Petitioner's position of Occupational Specialist within the Gilchrist County School System. In particular, it is to be determined whether Respondent has failed to meet requirements of law in that its action of abolishing the position was arbitrary and capricious and contrary to Petitioner's constitutionally protected rights to free speech and assembly.
Findings Of Fact Petitioner is the holder of a Rank 111 Teaching Certificate, issued by the State of Florida. The certification recognizes her as an Occupational Specialist. On July 8, 1974, she was granted a continuing contract of employment with the Gilchrist County School Board as an Occupational Specialist in the Trenton and Bell schools within the Gilchrist County School District. A copy of that contract may be found as Respondent's Exhibit No. 7, admitted into evidence. The contract by its terms states at Paragraph 9, "This contract shall not operate to prevent discontinuance of a position as provided by law." It is the discontinuance or abolishment of the position of Occupational Specialist held by the petitioner that occasioned the formal hearing in this cause. Since being granted the position of Occupational Specialist in permanent status, Petitioner has performed those duties described in the job description, a copy of which is Petitioner's Exhibit No. 2, admitted into evidence. Those functions include career planning for students, considering their personal problems, preparing them for assessment tests and the execution of job application forms. In the school year 1981-82, Petitioner worked three- fifths of her time in Trenton High School and two-fifths in Bell High School. In her capacity, Respondent considered her to be acting as the equivalent of a guidance counselor. She has never been certified by the State of Florida as a guidance counselor. Around the beginning of April 1982, the superintendent of Schools in Gilchrist County, Ray Thomas, decided that the position of Occupational Specialist held by the petitioner should be abolished. At that time, and at all relevant times, this position of Occupational Specialist was the only position of its type in the Gilchrist County School System. The basis for the abolition or discontinuation of the position concerned anticipated revenue shortfalls or budget inadequacy for the upcoming school year 1982-83, pursuant to information from persons within the State of Florida responsible for educational funding. In arriving at his decision, Thomas sought comment from Robert Ervin, the principal at Hell High School and James Surrency, the principal at Trenton High School. Ervin was asked if the guidance responsibility at Bell High School could best be achieved by the provision of a full-time guidance counselor. Thomas gave the impression to Surrency that the basis for requesting the discontinuation of the position of Occupational Specialist pertained to funding. No particulars were revealed to the two principals on the question of the financial position of the school system facing the advent of the 1982-83 school year. Respondent's Exhibits Nos. 1 and 2, admitted into evidence, are the comments of the Trenton and Bell principals on the subject of the abolition of the position of Occupational Specialist. Ervin accepted the idea of abolishing the Occupational Specialist position based upon his belief that a full-time guidance counselor would be provided to his school, as contrasted to the half- time guidance counselor and two-fifths time work of the Petitioner during the school year 1981-82. In his remarks, Surrency indicates reconciliation to the idea of losing the three-fifths time that the Petitioner was spending at Trenton High; however, he indicates his preference to have the Occupational Specialist position remain if it could be afforded. In the school year 1981-82, Trenton had a full-time guidance counselor in addition to the work being done by the Petitioner. After receiving the comments of the principals and in keeping with his choice, the Superintendent of schools wrote to the petitioner on April 21, 1982, advising her that he would recommend to the School Board, effective the beginning of the school year 1982-83 that the position of Occupational Specialist not be filled and offering Bowdoin a leave of absence without pay for one year. A copy of this correspondence may be found as Respondent's Exhibit No. 3. On April 22, 1982, the recommendation of the Superintendent was presented to the School Board and in the course of that meeting, the Petitioner was represented by counsel. Action on this recommendation by the Superintendent was tabled. On May 3, 1982, the Superintendent wrote the School Board and modified his position on the question of Occupational Specialist from one recommending that the position of Occupational Specialist not be filled in 1982- 83 school year to one of recommending the discontinuance of the position for economic and curriculum reasons, stating that the duties of that position could be assumed or transferred to the guidance counselor at each school in Gilchrist County. A copy of this correspondence may be found as Respondent's Exhibit No. On May 4, 1982, consideration was given to the suggestion of total abolishment of the position of Occupational Specialist and the School Board in a 3 to 2 vote determined to abolish the position of Occupational Specialist. This action was in keeping with Chapter 230, Florida Statutes. Prior to the vote, no specific information was imparted by the Superintendent or other school officials as to the financial benefits to be derived from the action or effect of the abolishment in terms of curriculum changes. The school board simply accepted the Superintendent's word that it was necessary to abolish the position for financial reasons. (The Superintendent, since taking office in 1981, has abolished other positions within the Gilchrist County School System, such as assistant principal at Trenton High School, general supervisor of instruction, food services supervisor, brick and block masonry teacher, librarian at Trenton High School and has left vacant teacher's aide positions.) At the May 4, 1982, meeting, Petitioner asked for and the Board agreed to afford a formal hearing to the Petitioner to challenge the abolishment of the Occupational Specialist position. Again, on June 1, 1982, a request was made in the Petitioner's behalf to have a grievance hearing before the board concerning the board's decision to abolish the job and it was determined that grievance hearing should be held on July 6, 1982. On July 6, 1982, the Board requested the Superintendent to prepare a list of vacancies which Mrs. Bowdoin might be certified for, the salary schedules related to those positions, a list of programs offered other than K-12 and the state certification requirements for those positions and the name of those persons filling the positions at the time. On July 20, 1982, the Board considered the level III grievance of the Petitioner in the presence of the Petitioner's attorney on the topic of an alternative placement of the Petitioner and the salary associated with that placement. On August 3, 1982, the Board entered a written resolution of decision pertaining to the level III grievance pertaining to the Petitioner, a copy of that resolution being found as Respondent's Exhibit No. 5. In this resolution, the School Board properly identified that the Petitioner could not be placed as a guidance counselor in that she did not hold a master's degree required for such position. In lieu of the position of Occupational Specialist which had been abolished by the School Board on May 4, 1982, by its August resolution, the Board offered the position of Teacher's Aide at Trenton Elementary School, with a substantial reduction in salary from approximately $15,000 a year to approximately $6,300 a year. This position of Teacher's Aide was reserved until August 16, 1982. Petitioner did not elect to accept the position of Teacher's Aide and has been unemployed since August 1982. In the course of an August 11, 1982 meeting, the Superintendent reported to the Board that the petitioner had "responded" at a level IV grievance procedure. On August 31, 1982, the Board was asked to consider litigation which had been presented to it by the Superintendent. On September 2, 1982, in an Executive Board session of the School Board of Gilchrist County, discussion was made of certain civil litigation brought by Petitioner against the Board. On October 5, 1982, an update was given to the Board concerning that case of the Petitioner versus the Board. Another update was made on October 5, 1982. On December 7, 1982, the Board was made aware of the fact that the case was to be considered in arbitration. (Various minutes of School Board meetings as described in this paragraph are more completely set forth in Respondent's Exhibit No. 8, admitted into evidence.) The matter was presented before the American Arbitration Association and the Arbitrator in his report absolved the Board of any violation related to the job abolition. The copy of that report may be found as Respondent's Exhibit No. 6, admitted into evidence. The date of the report is July 21, 1983. As stated before, the Bell High School in 1982-83, employed a full-time guidance counselor in substitution for an approximately half-time guidance and two-fifths time from Bowdoin the prior year. The Trenton school went from a 1981-82 school year in which a full-time counselor and three-fifths of Bowdoin's time was devoted to counseling activities to a full-time counselor, an aide working two-thirds time mostly in a clerical capacity and some assistance by a vocational teacher in school year 1982-83. Bad Bowdoin returned as an aide to the Trenton school in 1982-83, she would have been used in the guidance department in the same role as she had been given as Occupational Specialist. There was a revenue surplus left at the end of the 1982-83 school year and it was sufficient to have allowed the funding of the position of Occupational Specialist for the 1982-83 school year; however, that surplus was less than the 1981-82 school year by approximately 65,000. This funding difference in the face of providing essentially the same services in the school system, pointed out the more difficult economic circumstance that Thomas had made mention of in his initial decision to abolish the position of Occupational Specialist. In the 1982-83 School year, employees in the school system received salary increases. At the conclusion of the 1981-82 school year, there were approximately 900 students at the Trenton school which included grades K-12. According to Petitioner's Exhibit No. 11, excerpts from the standards of the Commission on Secondary Schools of the Southern Association of Colleges and Schools, schools of a population of 750-999 need two guidance professionals. Therefore, the reduction of one and three-fifths counselors in 1981-82 to one counselor and something less than three-fifths in 1982-83 was contrary to the statement of standards. This excerpt is at 4.10.0, Figure 1, minimum personnel requirements. Respondent replies to that assertion through its Exhibit No. 9, which are excerpts of the standards for unit schools by the Commission on Secondary Schools and Commission on Elementary Schools of the Southern Association of Colleges and Schools. At Page 9, 9.16.0-9.16.2, Respondent argues that one guidance counselor suffices for any school with a membership of 500 or more students up to 999 students. Without determining which of these guidelines related to accreditation by the Southern Association of Colleges and Schools is correct, it suffices to say that the changes that were made by the School Board in abolishing the position of Occupational Specialist as it might affect accreditation were made in good faith in that it can arguably be said that Trenton school, having 900 students, only needed one guidance counselor to meet conditions of accreditation. There were no curriculum changes made in the 1982-83 school year as a result of abolishing the Occupational Specialist position. There were curriculum changes but they were not the result of any influence provided by the abolishment of the Occupational Specialist job.
The Issue The issue in this case is whether the application of Petitioner, Kenneth Crowder, for a Florida Educator's Certificate should be denied for the reasons set forth in the Notice of Reasons issued on July 22, 2005, by Respondent, John Winn, acting in his capacity as the Commissioner of Education.
Findings Of Fact On or about February 28, 2002, the Ohio State Board of Education notified Petitioner, Kenneth Crowder, that it intended to suspend, revoke, or limit his teaching certificate. The proposed action was based on allegations that Petitioner engaged in inappropriate conduct with three female students, engaged in inappropriate conduct with a female teacher in December 2000, and was convicted of disorderly conduct, which was amended from a charge of domestic violence. An administrative hearing was conducted with respect to Petitioner's Ohio teaching certificate on March 11 and 14, 2002. The hearing was conducted in accordance with Chapter 119 of the Ohio Revised Code. Petitioner appeared at the hearing, was represented by counsel, and testified on his own behalf. There were three alleged incidents involving allegations of Petitioner's inappropriate conduct with female students that were litigated during the Ohio administrative proceedings. The first alleged incident occurred during the 1999-2000 school year when Petitioner was employed at Northland High School. The other two incidents allegedly occurred during the 2000-2001 school year when Petitioner was employed as a teacher at Brookhaven High School. The Ohio State Board of Education alleged that during the 1999-2000 school year, while a teacher at Northland High School, Petitioner inappropriately touched Ms. Tranette Nicole Jackson, a student in his science class. At the time of the incident, Ms. Jackson was about fifteen and a high school freshman.3 During the Ohio administrative proceeding, Ms. Jackson testified that on March 21, 2000, Petitioner called Ms. Jackson up to his desk and told her he wanted to see her after class.4 At the end of class, with no one else present in the classroom, Ms. Jackson reported to Petitioner's desk. Petitioner then touched Ms. Jackson's leg and rubbed her skirt, raising the skirt. Petitioner then told Ms. Jackson that he needed to see her in the supply room, which was across the hall from the classroom. Ms. Jackson accompanied Petitioner into the supply room, where Petitioner put both hands on Ms. Jackson's buttocks and stated, "This is what I wanted to talk to you about. Keep it to yourself." Ms. Jackson testified that Petitioner then gave her a pass to her next class. Ms. Jackson testified that she was "confused," "scared," and "uncomfortable" about the incident and that she reported it to one of her teachers that same day. The incident was then reported to the school principal and the Franklin County Children Services. After the incident, Ms. Jackson was reassigned from Petitioner's science class to another class. During the Ohio proceedings, Petitioner testified that he never touched Ms. Jackson, but that he reprimanded her for her inappropriate attire. Petitioner testified that in instances where students had on inappropriate attire, the school policy required teachers to send such students to the front office. Notwithstanding the school policy, Petitioner testified that he spoke with Ms. Jackson alone and after class concerning her attire. This failure to abide by school policy lends credence to Ms. Jackson's version of events. Moreover, Petitioner's complete inability on cross-examination during the instant hearing to provide his version of the incident leads the undersigned to accept Ms. Jackson's testimony.5 In the 2000-2001 school year, Petitioner was transferred from Northland High School to Brookhaven High School (Brookhaven), where he taught ninth grade science. The Ohio State Board of Education alleged that during the 2000-2001 school year, while he was employed as a teacher at Brookhaven, Petitioner engaged in two incidents involving inappropriate conduct with female students and one incident involving inappropriate conduct with a female teacher. In one instance, it was alleged that on December 19, 2000, about a day before the Christmas break, Petitioner asked a female student, identified as Student 2, to come to his room after school and give him a hug. It was alleged that the student refused to comply with Petitioner's request and reported the alleged incident to school officials. Student 2 did not testify at the Ohio administrative proceeding. However, Judith Gore, the assistant principal for student services at Brookhaven, one school official to whom Student 2 reported the incident, testified at the Ohio administrative proceeding. Ms. Gore testified that in January 2001, Student 2 told her that on or about December 19, 2000, Petitioner approached Student 2 and told her to give him a hug after school and that when she came to the room she should not wear her jacket. Ms. Gore also testified that Student 2 reported that although Petitioner approached her and requested a hug in December 2000, Student 2 told her that she reported it in January 2001, soon after and because Petitioner approached her in January 2001, after the Christmas break, and asked why she had not come to his room and hugged him in December 2000, before the winter holiday. Ms. Gore also testified that as a result of Petitioner's comments, the student was extremely uncomfortable. Ms. Gore testified that she later attended a conference with the student's father and Petitioner regarding the incident. Student 2 did not testify at the Ohio administrative proceeding. However, Petitioner testified at the Ohio administrative hearing that he asked Student 2 for a hug on or about December 19, 2000, the day before winter recess. Petitioner testified that Student 2 was in the hallway, and he said to her, "Hey, yeah, give me a hug. It's Christmas time. I wish you a Happy New Year and a Merry Christmas." Petitioner testified that at the time he requested that Student 2 give him a hug, she was not in any of his classes, but was one of his student assistants. In fact, Petitioner testified that when he requested that Student 2 give him a hug after school, she was not in his classroom, but was in the hall at her locker. Petitioner testified that because December 19, 2000, was the day before the Christmas recess, it was not unusual for students to hug him. However, Petitioner testified that Student 2 did not make any overtures indicating she wanted to hug him. Rather, Petitioner testified that he approached Student 2 and asked her to hug him. Based on Petitioner's testimony in the Ohio hearing and the instant proceeding, regarding Student 2, it is found that in December 2000, Petitioner approached Student 2 while she was in the hall at her locker and asked her to give him a hug. Ms. Gore testified that during December 2000, a different female student, Student 3, complained to her that Petitioner had touched her buttocks while passing behind her. Student 3 did not testify at the Ohio administrative proceeding, and no evidence was presented at the Ohio administrative proceeding or the instant administrative hearing to establish this charge. At the Ohio administrative proceeding, the Ohio State Board of Education litigated the allegation that Petitioner had engaged in inappropriate behavior with a teacher at Brookhaven. Mary Williams, who was a co-worker of Petitioner at Brookhaven High School, testified in the Ohio administrative proceeding. Ms. Williams testified that, in December 2000, while she was standing at the counter in the main office of the school, Petitioner passed by and intentionally brushed against her buttocks. Ms. Williams also testified that the office was large enough so that Mr. Crowder needed not to touch her at all. Ms. Williams was upset by Petitioner's actions and informed him, in graphic language, what would happen if he ever did it again. Petitioner then apologized to Ms. Williams. Petitioner's testimony concerning the incident involving Ms. Williams is conflicting. For instance, Petitioner testified during the Ohio proceedings that if he brushed his hand against Mr. Williams' buttocks, it was purely accidental. During the instant proceedings, however, Petitioner acknowledged that he touched Ms. Williams' buttocks, but explained that it occurred accidentally as a result of his carrying a meter stick through the office area. At no time during Petitioner's prior testimony did he mention that the touching occurred with a meter stick, or even that he was carrying a meter stick. Accordingly, the undersigned finds Ms. Williams' testimony to be more credible. John Tornes, the personnel director for Columbus City Schools, testified at the Ohio administrative proceeding that as a result of the accumulation of allegations and incidents, Petitioner was assigned to work at home, effective January 29, 2001. The following day, January 30, 2001, Petitioner was assigned to a location where he had no contact with students. On March 26, 2001, Petitioner resigned from the Columbus City Schools, effective June 8, 2001. Mr. Tornes testified that Petitioner was not eligible for rehire. Mr. Tornes explained: During every year of Mr. Crowder's employment, there was an allegation of sexual harassment or abuse; three straight years of it while at Crestview Middle School [sic],[6] while at Northland High School, and then the incident just kept ballooning at Brookhaven High School. . . . His behavior became so questionable that it was no longer feasible for the district to continue his employment. The Ohio State Board of Education litigated the issue of Petitioner's conviction of disorderly conduct, which was amended from a charge of domestic violence. During the Ohio proceedings, Jill S. Harris testified on behalf of the Ohio State Board of Education. Ms. Harris testified that for about a year, beginning in 1999, she was involved in a rocky relationship with Petitioner. During that period, Petitioner and Ms. Harris were living together. According to Ms. Harris, on October 7, 2000, Petitioner, after a night of drinking, arrived home at approximately 5:30 a.m., at which point a violent argument ensued. During their confrontation, Petitioner struck Ms. Harris twice in the face, bruising her chin and cheek and cutting her lip. At some point during the argument, Ms. Harris summoned the police. However, when they arrived, Ms. Harris informed the responding officers that nothing was wrong due to her fear of retaliation from Petitioner. Ms. Harris testified that after the police left, the Petitioner picked up a glass table and threw it at her, breaking the table. Petitioner also grabbed Ms. Harris, at which point she cut her foot on the broken glass. Ms. Harris then left the house and called the police from the vehicle she was driving. Soon after Ms. Harris called, police officers met Ms. Harris and returned with her to the house where she and Petitioner lived. When they arrived there, Petitioner was not there. Officer Sheri Laverack was one of the police officers who met with Ms. Harris on October 7, 2000, shortly after the incident, and investigated the matter. At the Ohio administrative proceedings, Officer Laverack testified that soon after the altercation between Ms. Harris and Petitioner, she observed that Ms. Harris' "lip had been busted and her face was swelling and the bottom of her foot was cut." Officer Laverack also observed that there was bruising around one of Ms. Harris' eyes. At both the Ohio administrative proceeding and in the instant proceeding, Petitioner denied that he struck Ms. Harris in the face and caused the injuries to her face that were observed by Officer Laverack. However, it is found that his testimony was not found to be credible by the hearing examiner presiding over the Ohio administrative hearing. Petitioner has offered conflicting testimony with respect to the incident involving Ms. Harris and the cause of her facial injuries. During the Ohio administrative proceeding, Petitioner testified that he slammed his hand down on the glass table, causing it to come up and hit her. At no time during the Ohio proceeding did Petitioner testify that Ms. Harris lifted up the table or in any way contributed to the facial injuries she suffered. However, during the instant proceeding, Petitioner testified that when he hit the glass table, Ms. Harris "pulled the top of it up, and I think it [the glass portion of the table] hit her in the chin or something to that effect." Petitioner then testified that "I don't really recall . . . that's what I vaguely recall." Petitioner's testimony concerning the October 7, 2000, incident and how Ms. Harris sustained the injuries to her face is inconsistent and not credible. In light of the multiple injuries to Ms. Harris' face (a cut to her lip, swelling on the right side of her face, and bruising around her eye), it is unlikely that Ms. Harris' injuries could have been sustained in the manner described by Petitioner. Petitioner's testimony in the instant proceeding that he did not hit Ms. Harris is not credible. On the other hand, given the nature of the injuries, it is more probable that Ms. Harris' injuries resulted from Petitioner's hitting her, as she testified. It is found that Ms. Harris' testimony that Petitioner struck her in the face was credible. Moreover, Ms. Harris' credible testimony was substantiated by the testimony of Officer Laverack, who observed the injuries to Ms. Harris on October 7, 2000, shortly after the incident. As a result of the October 7, 2000, incident, Ms. Harris filed domestic violence and assault charges against Petitioner. Ultimately, as a result of the incident, Petitioner was charged with disorderly conduct. On June 25, 2001, Petitioner entered a guilty plea to the amended charge of disorderly conduct. Pursuant to an agreement with the State of Ohio, Petitioner was sentenced to 30 days in jail, with the sentence being suspended if and when Petitioner made restitution of $1,000 to Ms. Harris for the damage to her table. Petitioner paid the restitution. At the time of the Ohio administrative proceeding, Petitioner had a four-year middle school teaching certificate with an expiration date of June 30, 2002, and had applied for a temporary teaching certificate. On April 2, 2002, the Ohio hearing examiner submitted a recommended order to the Ohio State Board of Education. In the recommended order, the hearing officer found that Petitioner sexually abused Ms. Jackson, inappropriately touched Ms. Williams, and committed an act of violence against Ms. Harris. In addition, the hearing examiner recommended that the Ohio State Board of Education revoke Petitioner's teaching certificate and deny his application for a temporary teaching certificate. In a Resolution dated May 16, 2002, the Ohio State Board of Education revoked Petitioner's teaching certificate. The Resolution was adopted by the Ohio State Board of Education at its meeting on May 14, 2002. The Ohio State Board of Education's Resolution stated that it was revoking Petitioner's middle school teaching certificate "based upon his 2001 conviction for disorderly conduct stemming from domestic violence and inappropriate sexual contact with three female students and one female teacher during 2000 and 2001." Petitioner appealed the decision of the Ohio State Board of Education. The Ohio State Board of Education's decision was subsequently affirmed on appeal by the Ohio Court of Common Pleas on August 11, 2003, in Case No. 02CVF06-6230.7 The testimony of Ms. Harris, Ms. Williams, Ms. Jackson, Officer Laverack, Mr. Tornes, and Ms. Gore in the Ohio proceeding constitutes an exception to the hearsay rule under Subsection 90.803(22), Florida Statutes.8 Therefore, the testimony of the foregoing named individuals in the Ohio administrative proceeding is sufficient in itself to support a finding of fact and does not run afoul of Subsection 120.57(1)(c), Florida Statutes.9 Petitioner's conduct fell short of the reasonable standard of right behavior that defines good moral character. By any reasonable standard, it is wrong for a teacher to brush his hands on the buttocks of a student and of a fellow colleague. The wrong is compounded when the teacher instructs the student to conceal the fact that he engaged in such conduct. During his testimony, Petitioner admitted that he asked a high school student to give him a hug. By any reasonable standard, this conduct fell short of right behavior that defines good moral character. Petitioner's testimony regarding the circumstances and appropriateness of such a request is not credible or persuasive. Neither does Petitioner's explanation provide a reasonable basis for a teacher to solicit a hug from any student. Petitioner's conduct of committing acts of violence against the woman with whom he lived likewise fell short of the reasonable standard of right behavior that defined good moral behavior. The three incidents in which Petitioner engaged in inappropriate conduct with Ms. Jackson, Student 2, and Ms. Williams, occurred at school. The incident involving Ms. Jackson, one of his students, occurred on school grounds in March 2000. The conduct in which Petitioner engaged with Student 2 and with Ms. Williams, his colleague, occurred at school in December 2000. Petitioner's pattern of conduct with two female students and a female teacher demonstrates that he is an unsuitable candidate for a teaching certificate. Moreover, Petitioner's conduct as established by the facts of this case, particularly as it directly involved students at the school, bears directly on his fitness to teach in the public schools of Florida. The evidence failed to establish that Petitioner possesses the good moral character required of a teacher in this state. For this reason, Petitioner is not eligible for certification. The evidence establishes that Petitioner committed an act or acts for which the Education Practices Commission would be authorized to revoke a teaching certificate. The evidence establishes that Petitioner has been guilty of gross immorality of an act involving moral turpitude. The evidence establishes that Petitioner has had a teaching certificate revoked in another state. The evidence establishes that Petitioner pled guilty and was convicted of the misdemeanor charge of disorderly conduct. The evidence establishes that Petitioner has violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules. The evidence establishes that Petitioner failed to make a reasonable effort to protect students from conditions harmful to learning and/or to the student's mental health and/or physical health and/or public safety. The evidence establishes that Petitioner intentionally exposed a student to unnecessary embarrassment or disparagement. The evidence establishes that Petitioner exploited a relationship with a student for personal gain or advantage. The evidence establishes that Petitioner has engaged in harassment or discriminatory conduct, which unreasonably interfered in an individual's performance of professional or work responsibilities or with the orderly processes of education or which created a hostile, intimidating, abusive, offensive, or oppressive environment and, further, failed to make reasonable effort to assure that each individual was protected from such harassment or discrimination.
Recommendation Based on the foregoing Findings of Fact and Conclusion of Law, it is RECOMMENDED that the Education Practices Commission enter a final order denying Petitioner's application for a teaching certificate and providing that he be permanently barred from re- application pursuant to Subsection 1012.796(7)(a), Florida Statutes. DONE AND ENTERED this 24th day of May, 2006, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of May, 2006.
