Findings Of Fact Luis Ortiz was a seventh grade student at Nautilus Junior High School during the 1984-85 school year until his assignment to the alternative school. Ortiz is 13 years old and was born on March 11, 1972. Prior to his enrollment in junior high school in 1984, Ortiz was an A and B student who exhibited good behavior. He did not adjust well to the new school at which he began junior high school. Ortiz was involved in eight incidents of misbehavior at Nautilus. On October 29, 1984, Ortiz was rude, discourteous; failed to complete an assignment and engaged in general disruptive behavior. He was placed on indoor suspension for general disruptive behavior and defiance of school authority on December 6, 1984. On January 11, 1985, Ortiz was referred for discipline for general disruptive behavior, use of provocative language and defiance of school authority. He was referred for counseling for general disruptive behavior, being rude and discourteous, and cutting class on January 25, 1985. Ortiz was placed on outdoor suspension for general disruptive behavior and defiance of school authority on January 28, 1985. Ortiz' behavior appeared to improve and he was not involved in further disciplinary incidents until April 2, 1985, when he was again placed on outdoor suspension for general disruptive behavior end defiance of school authority. He was recommended for assignment to opportunity school for general disruptive behavior and defiance of school authority on May 15, 1985. Before he was reassigned to opportunity school, Ortiz was reprimanded for general disruptive behavior, use of provocative reprimanded for general disruptive behavior, use of provocative language, defiance of school authority, and being rude and discourteous. Ortiz has been somewhat unsuccessful academically in his first year in junior high school. He was failing three classes before his last outdoor suspension and assignment to opportunity school. He then failed all of his subjects because he failed to complete his course work and failed to take his final exams. Ortiz must repeat seventh grade. The School Board failed to present any evidence of efforts made to provide assistance to Ortiz regarding this lack of success in academics. In fact, the school board's only witness had no knowledge of Ortiz' grades or behavior prior to beginning seventh grade at Nautilus. Additionally, the school board's witness provided no details about the actual misbehavior of Ortiz. Instead, Smith merely read from a computer printout, without specifying the nature of the acts which lead to the disciplinary referrals. It is therefore impossible to determine if Ortiz' acts were of a major or minor nature. Dennis Segall, a teacher who knew Ortiz from elementary school, has continued to work with Ortiz in the last year. According to Segall, Ortiz was successful and well-behaved prior to the 1984-85 school year. He recognizes that Ortiz' behavior changed at Nautilus and states that Ortiz knows he "messed up" at Nautilus and is ready to change his attitude. Mrs. Ortiz moved during the summer of 1985, and now resides in a different school district. If Ortiz is allowed to return to the regular school program, he would attend Citrus Grove Junior High School.
Recommendation Based upon the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the School Board of Dade County enter a Final Order assigning Luis Ortiz to the regular school program. DONE and ENTERED this 26th of September, 1985, in Tallahassee, Leon County, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, FL 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 26th day of September, 1985. COPIES FURNISHED: Jackie Gabe, Esq. Suite 800, 300 Executive Plaza 3050 Biscayne Boulevard Miami, FL 33137 Mrs. Maeva Hipps School Board Clerk 1450 N.E. 2nd Avenue Room 401 Miami, FL 33132 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1450 N.E. 2nd Avenue Miami, FL 33132 Ms. Esther Ortiz 1255 S.W. 1st Street Apartment 403 Miami, FL 33135
The Issue The issue presented for decision in these consolidated cases is whether Respondent’s employment with the Polk County School Board, first as an assistant principal, then as a teacher, should be terminated, as recommended by Glenn Reynolds, Superintendent of Schools, pursuant to Section 231.36(6), Florida Statutes.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made: Respondent is an African-American male who attended Florida A&M University and Jacksonville State, earning masters degrees in physical education and educational leadership. Respondent served ten years in the military prior to entering the field of education. Respondent has been employed by the School Board since 1988. From 1988 to 1993, he was a teacher. In 1993, Respondent was promoted to the position of Assistant Principal for Discipline at Boone Middle School ("Boone"). He served in that position until July 23, 1997. Eileen Killebrew was the principal at Boone and was Respondent’s direct supervisor throughout his tenure at Boone. Ms. Killebrew testified that Respondent did a "great job" during his first three years at Boone. Respondent testified that he believed he had a good working relationship with Ms. Killebrew until April 25, 1997, when the events that are the subject of this proceeding commenced. Respondent testified that Ms. Killebrew repeatedly told him he was the best assistant principal she had ever seen and expressed a desire to continue working with Respondent throughout her career. Ms. Killebrew testified that Respondent’s job performance began to suffer during the 1996-1997 school year. He seemed preoccupied and less focused than in prior years. He spent more time on personal telephone calls. Parents complained that they felt Respondent was not listening to their children in his role as Assistant Principal for Discipline. Ms. Killebrew stated that she attributed these problems to difficulties Respondent was having in building a new house and that she referred him to a lawyer who handled such matters. No documentation was produced to corroborate Ms. Killebrew’s testimony regarding Respondent’s performance in the 1996-1997 school year. She did not set forth her concerns in any evaluation or other contemporaneous notation. She testified that parents and teachers had come to her with concerns, but she did not name them and Petitioner did not produce any of them as witnesses. None of the other witnesses in this proceeding testified that they had noted any problems with Respondent’s performance during this period, or that Ms. Killebrew had mentioned her concerns to them prior to April 25, 1997. Respondent testified that throughout the 1996-1997 school year, Ms. Killebrew had been confiding in him regarding her ambition to move up to a higher administrative position in the school district. Ms. Killebrew told Respondent that she had applied for two area superintendent positions, and later that she was a finalist for one of those positions. Ms. Killebrew told Respondent on several occasions that she was convinced that if a woman were to get the job, it would be her. Knowing that Respondent was also ambitious of improving his position, Ms. Killebrew assured him that if she got the area superintendent job, she would recommend him for the position as principal of Boone. At some point in April 1997, Ms. Killebrew learned she would not get the area superintendent job. Shortly thereafter, she learned that she was being reassigned from Boone to Crystal Lake Middle School. Respondent testified that on the afternoon of her reassignment, Ms. Killebrew came into his office. She had tears in her eyes and clearly had been weeping. She told Respondent that she was going home, leaving him and Nancy Woods, the other assistant principal at Boone, in charge of the school for the remainder of the afternoon. The following morning, Ms. Killebrew again came to Respondent’s office. Respondent testified that she began telling him about the reassignment and broke down crying. Respondent testified that Ms. Killebrew was upset partially because she believed that Crystal Lake was the worst school in the district, with students from the worst families in the county, "white trash" and "rednecks." She asked Respondent to transfer with her to continue as her Assistant Principal of Discipline. After thinking about it for a day, Respondent declined Ms. Killebrew’s request to join her at Crystal Lake. He told her that he was in the pool for appointment to a principal’s position, and as one of only two African-American males in the pool, he believed his chances were good. Respondent also had been advised that his chances of getting a principal’s job would be enhanced if he obtained administrative experience outside his current area of discipline. Thus, he told Ms. Killebrew that if he were to spend another year as an assistant principal, he would attempt to become Assistant Principal for Curriculum at Boone. Frances Lee, a teacher at Boone for 32 years, testified that Respondent was a very fair, congenial person. She stated that he was also a very religious person and that she often talked about the Bible with him. Bill Podoski, the guidance counselor at Boone, testified that in his experience, Respondent had always behaved professionally. Raymond Dean Hunt, a teacher at Boone during the relevant time period, testified that he was always impressed with the professional conduct of Respondent. He stated that they had disagreements over the years, and "I’m not one to back down or be quiet . . . but I’ve been impressed with Mr. Mickens, the way he handled me, if you will, on these occasions." He testified that on these occasions, Respondent’s manner was assertive but professional. Rae Fields, a parent and daily volunteer at Boone during the relevant period, testified that Respondent was a very even-tempered person. She had never heard him raise his voice, and noted that he had to use a megaphone in the hallways to make himself heard. She testified that the students respected Respondent and that he could break up school yard fights by simply ordering the combatants to stop. She testified that children would come to him with their problems and that often in the morning there would be a line of students waiting outside his door to talk with him. She told her son that if he was ever in trouble, he should go straight to Respondent. Ms. Fields testified that the idea of Respondent yelling or even raising his voice at anyone would be "totally out of character." She added that she had seen parents "all over his desk, yelling in his face, carrying on," while Respondent sat quietly and listened. Irene Roberts, the PTA President at Boone and a daily volunteer at the school, testified that Respondent was always a gentleman, very polite, and very fair. She took her own child to Respondent, "which I would never have done if I had not felt that Mr. Mickens was fair in his dealings with all children, and that he would help my son and deal with him fairly." Ms. Roberts testified that Respondent treated all children alike and with respect. He never screamed or yelled at the students and was never threatening or rude. Ms. Roberts testified that Respondent was equally adept at dealing with parents: I was amazed, very often, to see this man never lose control. I saw parents come in who were so rude and cruel when they thought the punishment that was meted out to their child wasn’t fair, and I heard him called names and everything, and he never ever lost his temper. He always was polite to them and a gentleman. Ms. Fields and Ms. Roberts were less complimentary toward Ms. Killebrew. Ms. Fields testified that she got to know Ms. Killebrew fairly well as a volunteer at Boone, where she worked for several hours every school day. Ms. Fields characterized Ms. Killebrew as a "bully" who "liked to intimidate the parents. She liked to intimidate the students." More diplomatically, Ms. Roberts described Ms. Killebrew as "feisty." "It was her way or no way. She just didn’t . . . give very easily." When asked if Ms. Killebrew was open-minded, Ms. Roberts replied, "That all depended on what she wanted or what the occasion was." During Ms. Killebrew’s tenure at Boone, there was a certain amount of racial tension at the school. Much of the tension focused on the School Resource Officer ("SRO"), Ed Nixon. The SRO is a local police officer or sheriff’s deputy assigned to each middle school and high school in Polk County. Ms. Roberts, who is white, testified about Officer Nixon as follows: There’s no nice way to say this. I think he was a little bit biased, bigoted. He kind of was very heavy handed with Hispanic kids and sometimes the black children. He just . . . seemed to be a little heavier and hotter on them . . . He was kind of, he was rough with kids and he was especially rough with the Hispanics. Ms. Fields, who is African-American, agreed with Ms. Roberts’ assessment. She testified that Officer Nixon was different with different children, and not friendly with minority children. She testified that "If you were doing something, and you were black or Hispanic, you more than likely got drug [sic] into his office or into the main office for some type of action to be taken." She testified that Officer Nixon was more likely to let white children walk away with a scolding, unless the offense was too severe to overlook. Ms. Fields testified that she was also disturbed that Officer Nixon was actively involved in disciplining children for typical school yard infractions, when she understood the SRO’s job to be deterring illegal activity. Ms. Fields testified that she thought the school, not the SRO, was responsible for primary discipline of children, and she brought her concerns to the attention of Ms. Killebrew. Ms. Fields testified that Ms. Killebrew at first tried to mollify her with a recitation of Officer Nixon’s personal and professional virtues. When Ms. Fields persisted, Ms. Killebrew told Ms. Fields that she could take her child out of the school if she was unhappy with Officer Nixon. Ms. Fields testified that this was a typical reaction by Ms. Killebrew to parents’ expressions of concern. Ms. Killebrew testified that she could not recall whether Officer Nixon was contributing to problems on the Boone campus and that nothing to that effect had ever been reported to her. This testimony is not credible. Both Ms. Roberts and Ms. Fields testified that Officer Nixon tended to harass verbally certain students. Ms. Fields noted this to be especially the case with certain Hispanic children whom Officer Nixon characterized as "known gang members." Ms. Fields testified that the cause of much of the aforementioned parental "yelling and screaming" was Officer Nixon. Parents would come in to complain about Officer Nixon’s treatment of their children, and Mr. Mickens would have to deal with the problem. Respondent testified as to Officer Nixon’s treatment of one particular Hispanic student, J.G. Respondent stated that J.G. had a discipline record that included some time in an alternative school, and that Officer Nixon claimed to have information that J.G. was a "bona fide gang member." Respondent testified that Officer Nixon monitored J.G.’s activity constantly, and that he was always confrontational in his dealings with J.G. Respondent added: And I have to say, I got numerous complaints from Hispanic kids, from black kids . . . it was on a regular basis about how he handled them . . . . [J.G.] had complained to me himself about, you know, Officer Nixon, the way he said things, accusations and things, you know. If there may be some writing on the bathroom wall, or there may be a gang sign on a table, he was always . . . one of the individuals that Officer Nixon would automatically allege or assume had performed the misconduct, you know, without really any evidence. [J.G.] always complained that . . . Officer Nixon always came up and would be questioning him and breaking up their groups, you know, this type thing . . . "He’s not making these other people spread out. Why are we supposed to be gang members, and none of the other people are being accused . . ." And there was always comments about some of the kids’ parents being drug dealers or being, you know, gang members. The morning of Friday, April 25, 1997, was somber on the Boone campus. Ms. Rubio, an aide for special education students at Boone, had died suddenly. Ms. Rubio very well-liked by students and teachers and everyone on the campus was saddened at her death. April 25, 1997, was the date of her funeral. The funeral was scheduled for 11 a.m. at a local church. Respondent came to the campus early that morning. Ms. Killebrew was not on the campus that day. She testified that she was absent because she was at another middle school participating in preparations for a presentation to the School Board. However, she later testified that she remembered attending Ms. Rubio’s funeral. It is undisputed that Ms. Killebrew was not on the Boone campus that morning. Because of Ms. Killebrew’s absence, the two assistant principals met and decided that only one of them should attend the funeral. They decided that Respondent would go to the funeral and that Ms. Woods would stay in charge of the campus. In chatting with Officer Nixon, Respondent mentioned that he was going to the funeral. At that, Officer Nixon "just started crying. He told me that Ms. Killebrew told him that he could not go. He said that he had wanted to lead the procession, you know. He asked me to give his condolences, you know, to the family. And he . . . was just crying about it." Respondent went to the funeral, and returned to the Boone campus around noon. He headed for the patio outside the cafeteria to prepare for monitoring the eighth grade lunch hour. As usual, he carried his megaphone and a portable radio with which he communicated with Officer Nixon. Respondent testified that, as he entered the hallway adjacent to the cafeteria, he saw a student who, upon seeing Respondent, turned on his heels and headed in the other direction toward his class. At about the same time, Officer Nixon radioed Respondent. Respondent testified that he thought Officer Nixon’s message related to the student whom Respondent had just seen heading toward class. Respondent replied to Officer Nixon that all was well, the problem was taken care of. Respondent testified that he later found out that he had misunderstood Officer Nixon’s message. "I learned later on that he had called me to come over to the cafeteria, and I didn’t come. But I did not understand that that was the communication." Respondent testified that he was standing on the patio monitoring the eighth graders going into the cafeteria when Officer Nixon approached him from behind. Officer Nixon asked Respondent if he had disciplined J.G. for running in the bus zone a few days earlier. Respondent answered that he had forgotten. Respondent testified that Officer Nixon then said, "I’m going to handcuff him, slam dunk him, and haul him downtown." Respondent testified that this statement "got my attention," and that he told Officer Nixon to write up a referral on J.G. if he did something wrong. Respondent testified that Officer Nixon was upset, and continued to mutter, to no one in particular, "I’m going to haul him downtown. I’m going to haul his butt off campus." Respondent testified that, up to this point, he had an amicable working relationship with Officer Nixon. They had always been able to talk about Respondent’s concerns with Officer Nixon’s performance. "I treated him with the utmost courtesy, and vice versa. He listened to me. Several things he was doing that I had concerns about, he did proper research and he changed from doing. And we were making progress." Respondent testified that his goal was always to avoid "getting physical" with the children. Two years earlier, Respondent had seen a child handcuffed, thrown to the ground and manhandled, and had vowed that he was going to do everything possible to prevent that from happening again. Thus, when he heard Officer Nixon talking about "slam dunking" J.G., Respondent said, "I don’t want you picking on the kid." With that, Officer Nixon stepped away from Respondent, pointed his finger, and said, "You’re not my boss. You can’t tell me what to do." Respondent testified that he did not respond because there were still children in the area filing into the cafeteria. Officer Nixon then walked away toward the main office. Respondent waited for the children to finish filing into the cafeteria, which he estimated took a couple of minutes. He then asked another teacher to take over his monitoring duties and went to the office. Upon reaching the office, Respondent told Officer Nixon that they needed to speak. Officer Nixon shrugged dismissively and walked away from Respondent. Respondent again stated that he needed to speak to Officer Nixon and that if Officer Nixon would not speak to him, then Officer Nixon should leave the campus. Respondent testified that they were standing at the door of the office and that there were no threats of violence or belligerence of any kind. Only three other people were in the office area at this time: Bill Podoski and Raymond Dean Hunt, teachers who were in Mr. Hunt’s adjacent guidance office when Respondent and Officer Nixon entered; and the guidance secretary. Mr. Podoski heard the altercation from Mr. Hunt’s office and testified that he did not hear Respondent raise his voice. Mr. Hunt came out of his office and saw the two men. He testified that Officer Nixon was speaking loudly and belligerently, saying something to the effect that Respondent was not his boss and could not tell him what to do. Mr. Hunt stated that Respondent was speaking assertively but not as loudly as Officer Nixon. He testified that Respondent’s tone of voice was no louder than he had heard it in previous disagreements Mr. Hunt had had with Respondent, "assertive but professional." Respondent and Officer Nixon proceeded out the office door to a walkway outside the building. Respondent again told Officer Nixon that he should leave the campus. Officer Nixon responded that he was not going to argue with Respondent in front of students, then walked away. Respondent testified that there were a few students sitting on a bench along the walkway. He testified that he did not believe the bulk of the students sitting on the patio could hear his conversation with Officer Nixon due to the distance and to the fact that the patio was noisy with typical lunchtime activity. Respondent testified that at this point he was content to let Officer Nixon walk away, as he had duties to resume. He did not see Officer Nixon again that day. Respondent testified that Ms. Woods, the other assistant principal, came into his office some time later that afternoon. Ms. Woods told Respondent that she had spoken with Officer Nixon, who told her he was scared that Respondent was calling his boss about the incident. Ms. Woods executed a sworn statement on Monday, April 28, 1997. Her statement reads, in relevant part: I was at eighth grade lunch and Officer Nixon came over to where I was. He was very upset. He said that Mr. Mickens had yelled at him in front of students and told him to get off campus. I tried to calm him down. He went on out the back door of the cafeteria. I walked over to the door with him, still trying to calm him down. He said it wasn’t right for Mr. Mickens to do that in front of students. I went back inside and Officer Nixon went on down the sidewalk. * * * After lunch duty was over, Mr. Brickel and I were walking back to the office and Officer Nixon was standing out there by the wall. He was crying (not boo-hooing, but tears in his eyes). He was saying that Mr. Mickens was calling his chief. He said that several times. We tried to calm him down, and Mr. Brickel told him to get in his car and go off and have a cigarette to help him calm down. James Brickel, the teacher referenced in Ms. Woods’ statement, also provided a written statement that confirmed the essentials of Ms. Woods’ account, as well as Respondent’s testimony regarding the miscommunication over the radio between Respondent and Officer Nixon. Respondent testified that after the incident, he called the office of Carolyn Baldwin, the assistant superintendent, to let her know what he said to Officer Nixon. Respondent also called Angus Williams, the Director of Discipline for the school district, who served as the school system’s liaison to the SROs. Respondent attempted to call Lt. Raggs, who was the charge officer for SROs, or anyone else in authority at the Haines City Police Department, but could not reach anyone there. He instructed his secretary to call them continuously, but was never able to speak to them. Respondent testified that Ms. Woods told him that she would call Ms. Killebrew. Ms. Killebrew testified that Ms. Woods called her. Ms. Killebrew stated that Ms. Woods was upset and told her there had been a loud argument between Mr. Mickens and the SRO. Ms. Killebrew stated that Ms. Woods was concerned because students had heard the argument and were already talking about it. Ms. Killebrew stated that Ms. Woods asked her to come back to Boone quickly. Ms. Killebrew testified that Ms. Woods also told her that Chief Wheeler of the Haines City Police Department wanted Ms. Killebrew to call him. This fact indicates that the Haines City Police Department was aware of the situation and acting upon it, despite Respondent’s futile attempts to contact the police directly. Ms. Killebrew testified that she called Chief Wheeler from her car, and he was "very angry and upset." It was agreed that Ms. Killebrew would meet him at the police station. Ms. Killebrew testified that Chief Wheeler was so angry and upset that she called Mr. Williams, the SRO liaison, to go with her to the police station to help guide her through the meeting. Ms. Killebrew and Mr. Williams first went to Boone, where they heard Respondent’s account of the incident. Ms. Killebrew testified that Respondent was "very calm" as he described what happened. She stated that the one point of contention was Respondent’s statement that he asked Officer Nixon to leave the campus. Mr. Williams informed Respondent that the SROs were not employed by the school district and that school administrators lacked the authority to order them off campus. Ms. Killebrew testified that Respondent believed he should have such authority but that he expressed his disagreement in a calm manner. Respondent generally agreed with Ms. Killebrew’s version of the meeting. His recollection was that it was Ms. Killebrew, not Mr. Williams, who told him he lacked the authority to order Officer Nixon off campus. Respondent also recalled that Mr. Williams cut off the conversation during this disagreement and stated that "we’re going to let administration take care of" investigating the matter. Mr. Williams instructed Respondent to report to the school board offices on the morning of Monday, April 28, 1997. Ms. Killebrew and Mr. Williams then drove to the police station. She testified that Officer Nixon was there when she arrived at the police station. Chief Wheeler and Lt. Raggs told her that Officer Nixon was in an office writing up his statement of what happened. Officer Nixon’s unsworn statement reads as follows, in full: On Friday, April 25, 1997 I, Officer Nixon, was on duty at Boone Middle School (225 South 22nd Street) when I advised the Assistant Principal Ron Mikens [sic] that I was having a problem with a student, [J.G.], in the cafeteria. Mr. Mikens then refused to come to the cafeteria. 8th grade lunch then started and I went outside to speak to Mr. Mikens about the problem. I told Mr. Mikens that [J.G.] was accused of picking on [B.D.] and I asked him if he had done anything about an incident that occured [sic] earlier in the week when [J.G.] refused to leave the bus zone and Mr. Mikens told me he had not done anything. I then told Mr. Mikens that [J.G.]’s behavior was getting worse and I felt that a student may get injured if some action was not taken. Mr. Mikens then got agitated and raised his voice at me and told me that I was picking on the kids. Mr. Mikens then pointed his finger at me and said, "let me tell you something Officer Nixon." I then told Mr. Mikens that I do not work for him and walked away. I then went into the main office and walked down the hall when Mr. Mikens began yelling at me again and pointing his finger in my face. I told him again that I did not work for him and at that point he told me to leave the campus. I told him I would not leave the campus and I walked out the door to Student Services and he followed me out the door. Mr. Mikens then began yelling at me in the hallway adjacent to the 8th grade patio and he put his finger in my face and told me that I did work for him and I will leave the school. Mr. Mikens created a disturbance in front of several 8th grade students and Mr. Mikens also stated that he wished I did put my hands on him. I walked away from him again and told Assistant Principal Becky Woods of the situation. I then left the school to prevent any further incident. Officer Nixon did not testify at the hearing. Ms. Killebrew testified that Chief Wheeler was threatening to arrest Respondent. Mr. Williams interjected that he would go to the school and that he would handle the situation. On Monday, Respondent reported as instructed and was interviewed by Dale McDonald, the school district’s Personnel Investigator Specialist, along with William Londeree, the Director of Employee Relations and Noninstructional Personnel. Respondent testified that he wrote a statement at their request. Respondent then was sent home for the rest of the day. Besides meeting with Respondent, Mr. McDonald talked to roughly ten students and had each of them make a written statement. He testified that Respondent gave him the names of three or four students who might have observed the incident. Mr. McDonald did not indicate the source of the other names. Ms. Roberts, the PTA President, testified that she was in the office on the day the interviews were conducted. Mr. McDonald was calling students down to the office, and Ms. Roberts noted four or five students who were discussing what they were going to say when Mr. McDonald called them in. She also noted that four of these students were members of the "Explorers," a Boy Scout type organization focusing on police work. Officer Nixon ran the Explorers chapter at Boone. Ms. Roberts testified that she interrupted the students’ conversation and told them to cease discussing the matter. She ordered them to sit quietly, wait to be called in, and tell the truth to the investigator. In a subsequent written statement, Mr. McDonald reported that he asked each student interviewed if he or she was a member of the Explorers, and that they all told him they were not. Ms. Roberts, who was at Boone every day during that school year and logged more than 1,000 volunteer hours, was in a position to know that the students in question were members of the Explorers, regardless of what these students told Mr. McDonald, an outsider to the Boone campus. Mr. McDonald also took statements from four staff persons, including the statements of Ms. Woods and Mr. Brickel referenced above. Mr. McDonald did not take the statement of Mr. Hunt because "Mr. Hunt was apparently a witness to only the tail end of the conversation." Mr. McDonald’s reasoning is curious in light of the fact that several of the statements he deemed worth taking were from students who saw only the episode on the walkway, and who could hear nothing of what the two men were saying. The walkway episode occurred later than the scene witnessed by Mr. Hunt. Leaving aside questions of bias on the part of the student witnesses, their hearsay statements are unreliable on their face as the basis for findings of fact. The students claim to have heard statements and seen actions that neither participant made or took. One student claimed to have seen Respondent raise his fist as if to hit Officer Nixon. Given the self-serving tenor of Officer Nixon’s written statement, it is difficult to believe he would have refrained from mentioning such an action if it occurred. The students also placed statements in the wrong person’s mouth. Even Officer Nixon agreed that it was he who substantially stated, "You’re not my boss." Yet one of the students claims Respondent made that statement. Mr. McDonald took the statement of one student who saw nothing of the incident, but whose friends told her that Respondent and Officer Nixon were "mad at each other." Another student heard someone say, "Don’t put your hand on me," but did not know who said it. Mr. McDonald also apparently found some value in the following student statement, which reads in full: Last Friday I had just come out of the lunchroom and I went to go sit with my friends and [S.W.] was sitting down by me and I was starting to talk to him and he told me to be quiet he wanted to hear what Mr. Mickens, Officer Nixon, and Mr. Brickel was saying, so I turned around to see what they were doing and that is all I saw. I could not understand what they were saying. Mr. Mickens was talking, but he usually talks loud. None of the students testified at the hearing, further eroding the probative value of their cursory written statements. The students’ statements are useful as an impressionistic indication that the conversation was somewhat more heated than Respondent recalled. All of the students agreed that both men appeared angry. The statements are also useful to indicate that Officer Nixon was not merely the passive recipient of abuse as he claimed in his self-serving written statement. Finally, the student statements are of some value in corroborating Respondent’s testimony that the conversation was not conducted in loud tones. Some of the students frankly admitted they could not hear what the two men were saying. Others claim to have heard statements that appear to be their surmises of what the men must have been saying, given that they "looked mad." In summary, Respondent’s version of events is the only one made under oath and subject to cross-examination, and was corroborated in part by Mr. Hunt. Petitioner offered no testimony from any eyewitness to the event. Officer Nixon’s unsworn hearsay statement is patently self-serving, portraying him as the victim of an unprovoked tirade by Respondent. The student statements are unreliable, except as indicated above. Respondent’s version is consistent with the descriptions of his character and demeanor and of Officer Nixon’s character and demeanor offered at the hearing. It is found that Respondent’s version of the incident with Officer Nixon is essentially accurate, though it likely understates somewhat the heat of the conversation between the two men. It is found that the confrontation was entirely verbal, and that neither man ever threatened to escalate the matter to physical violence. Both men were in a labile emotional state due to the funeral of Ms. Rubio, which contributed to turning a minor misunderstanding into a confrontation. Respondent calmed down quickly, but Officer Nixon remained upset and fearful that Respondent would report his actions to his superiors. This caused Officer Nixon to preemptively go to his superiors with his one-sided version of events, which outraged Chief Wheeler and led him to demand retribution against Respondent. Returning to the chronology of events, Respondent was sent home on Monday, April 28, 1997, after his meeting with Messrs. Londeree and McDonald. On Wednesday, April 30, Respondent received a phone call from Ms. Baldwin’s secretary, telling him to come to a meeting at which Ms. Baldwin "was going to work this thing out." He was told nothing further about the substance of this meeting or even who would be present. Ms. Baldwin testified that the meeting was attended by herself, Respondent, Officer Nixon, Ms. Killebrew, Chief Wheeler, Angus Williams, and Tillman Sanders, who worked in the Superintendent’s office. Ms. Killebrew recalled that two or three police lieutenants were present along with Chief Wheeler. Respondent also recalled that at least one other police officer besides Officer Nixon and Chief Wheeler was present. All agreed that Ms. Baldwin chaired the meeting. Ms. Baldwin testified that the meeting was called at the request of Chief Wheeler because he was "very upset about what he perceived to be unprofessional treatment of a police officer on our school campus." Ms. Baldwin testified that her agenda for the meeting was to assure Chief Wheeler that the incident would not be repeated and to allow Chief Wheeler to speak directly to Respondent. She did not testify as to any effort made by her or her staff to inform Respondent of the purpose of the meeting. Ms. Baldwin testified that Respondent spoke at length, giving his version of events. She opined that he seemed "pretty defensive," and became upset with Officer Nixon’s version of events. Ms. Killebrew testified that she was instructed by Ms. Baldwin during the meeting to write a letter of reprimand to be placed in Respondent’s file. She stated that Respondent was upset by this instruction and continued to argue that such a letter was not in order. Ms. Baldwin also testified that she "recommended" to Ms. Killebrew that a letter of reprimand be written for unprofessional behavior in front of staff and students. Ms. Killebrew testified that Ms. Baldwin gave her detailed instructions as to the form and content of the letter. Respondent testified that he was puzzled throughout the meeting. He testified that Ms. Baldwin lectured him that he was not under any circumstances to order a police officer off the campus. He testified that Chief Wheeler was extremely angry at the statement he had written, which contradicted that of Officer Nixon. At some point, it became clear to Respondent that the purpose of the meeting was to give him a letter of reprimand, not to air the facts of the situation. He testified that he had never heard of any school employee receiving such a public reprimand. Respondent testified that Ms. Baldwin stated that she had not read Mr. McDonald’s report and was not interested in reading it. This was essentially confirmed by Ms. Baldwin, who testified that her basic understanding of the facts came by way of conversations with Ms. Killebrew. Ms. Baldwin testified that it was not her role to investigate the facts. As found above, Ms. Killebrew was not a witness to any of the events on the Boone campus. Thus, Ms. Baldwin’s version of the facts was a third hand retelling of Officer Nixon’s story and need not be repeated here. Ms. Baldwin testified that Ms. Killebrew assured her that "numerous" staff members at Boone confirmed her version of the story, essentially an adoption of Officer Nixon’s statement. Neither Ms. Baldwin nor Ms. Killebrew provided the names of these "numerous" staff members. Ms. Baldwin admitted she performed no independent investigation of the facts or of the credibility and emotional state of Officer Nixon. She was not made aware of teachers from Boone who disagreed with Ms. Killebrew’s version of the facts. Based upon all the testimony, it is found that the principal purpose of this meeting was to publicly reprimand Respondent in an effort to mollify Chief Wheeler of the Haines City Police Department. The testimony indicates that every school board employee at the meeting, except Respondent and Angus Williams, was aware beforehand that he or she was present for a public chastisement of Respondent, not for a fair hearing. Both Ms. Baldwin and Ms. Killebrew insisted that the reprimand had nothing to do with whether Respondent was right or wrong in the argument, but was based on his behavior in front of students and staff. Their testimony was that they were not required to choose between the stories of Respondent and Officer Nixon in order to reprimand Respondent. This testimony is belied by the actual text of the letter of reprimand, dated April 30, 1997, which states in relevant part: I regret that I must reprimand you for unprofessional behavior in the performance of your duties as Assistant Principal at Boone Middle School. This comes as a result of the incident that took place with School Resource Officer Ed Nixon on Friday, April 25, 1997. I am also requiring that you get counseling through the Employee Assistance Program in the hope that it may help you understand the situation better. Despite its use of the first person singular, the letter was signed by both Ms. Baldwin and Ms. Killebrew. The first paragraph of the letter is consistent with the testimony that Respondent was reprimanded for having an argument with Officer Nixon in front of students and staff, regardless of the motivation or whose version of the story Ms. Baldwin and Ms. Killebrew believed. However, in the second paragraph of their letter, Ms. Baldwin and Ms. Killebrew order Respondent to enter counseling. This order indicates that Respondent’s version of events was disregarded and that Officer Nixon’s was entirely accepted. If Respondent was confronting Officer Nixon to protect a student from harassment and possibly from physical abuse, counseling would hardly be necessary to help him "understand the situation." Counseling might be called for if Respondent had gone into an unprovoked rage in response to an innocuous question by Officer Nixon. The finding that Respondent’s story was disregarded is supported by the fact that no disciplinary action was taken against Officer Nixon, the other participant in the incident. Respondent was required to stay home for at least three school days while his supervisors contemplated a course of action. Officer Nixon returned to Boone on the Monday following the incident. It is understood that the school district apparently lacked authority to take direct disciplinary action against Officer Nixon. However, nothing in the record of this case indicates that anyone from the school district even suggested disciplinary action to Officer Nixon’s superiors, despite his participation in the incident and despite repeated complaints from parents about Officer Nixon’s methods and actions on the Boone campus generally. This supports the finding that Respondent’s superiors accepted wholesale the facts as stated by Officer Nixon. Ms. Baldwin testified that the words "I am requiring that you get counseling" did not mean that she was requiring Respondent to get counseling. She stated that the words actually meant that she was "requesting" Respondent to obtain an "evaluation" because of "some behaviors . . . which appeared to be unusual to the supervisory people." She admitted that the "supervisory people" she referenced included no one other than Ms. Killebrew, who testified that the counseling requirement was placed in the letter on Ms. Baldwin’s instructions. Ms. Baldwin’s testimony cannot be credited as anything other than an effort to finesse the fact that she ordered Respondent to enter counseling when she lacked the authority to do so. Petitioner offered no evidence that Ms. Baldwin, as East Area Superintendent, was authorized to require Respondent to obtain counseling through the Employee Assistance Program. Ms. Baldwin testified that it was her understanding that her "recommendations" in this regard must be affirmed by the Superintendent and that she could take no disciplinary action against Respondent for refusing to enter counseling. When asked point blank if she believed she had the authority to require Respondent to submit to the Employee Assistance Program, she answered, "I had the authority to say that I thought that was an appropriate recommendation." Dennis Dunn, the Assistant Superintendent for Human Resources Services, testified that area superintendents such as Ms. Baldwin only have authority to recommend participation in the Employee Assistance Program. He stated that it would be gross misconduct for an area superintendent to require an employee to do something she lacks authority to require. When confronted with the actual letter of reprimand, Mr. Dunn decided that he might be wrong about the area superintendent’s authority in these matters. Ms. Killebrew testified that when she gave Respondent the letter of reprimand, she advised him to drop the matter and "let it go," that with good performance the reprimand letter would "go away." She testified that she told Respondent not to discuss the incident at school because she did not want staff and students gossiping and taking sides in the matter. Respondent testified that Ms. Killebrew never instructed him not to discuss the matter with his co-workers or students. Under cross-examination, Ms. Killebrew conceded that she never "ordered" Respondent not to discuss the matter, and that there was no written directive from her on the subject. She stated that, "I asked him not to, in a professional manner." In early May 1997, Respondent returned to his duties at Boone. On May 8, 1997, two incidents occurred involving Respondent. The first involved a conflict over whether Respondent or Officer Nixon should respond to altercations in classrooms. Ms. Killebrew’s version of events, as she stated was relayed to her by her secretary, is that the secretary placed a call sending Officer Nixon to remove disruptive students from a class pursuant to Ms. Killebrew’s general instruction to always send Officer Nixon on such calls. Shortly thereafter, Respondent approached the secretary and told her that from this point forward she was to send Respondent, not Officer Nixon, to address classroom disturbances. Ms. Killebrew’s secretary did not testify at the final hearing. It is also noted that Ms. Killebrew’s written statement describing these events appears not to have been typed by her secretary. The other letters in the record signed by Ms. Killebrew were typed by her secretary. Ms. Roberts, the PTA President, told a different version of this event. She was in the office when the call came in. She testified that Officer Nixon had just come in the front door when Respondent exited to go to the classroom. She stated that Officer Nixon ran out and said, "I’ll take it, I’ll take it," but that Respondent was already gone. She testified that Officer Nixon returned to the office angry, and said, "That’s it, I’m calling Carolyn Baldwin. He’s fighting me every inch of the way." Ms. Roberts testified that she was puzzled as to what Officer Nixon was talking about, because in her view Respondent was just doing his job. The second incident was caused by the first. Ms. Killebrew testified that she went into Respondent’s office to discuss the ongoing friction between Respondent and Officer Nixon, and particularly the incident between Respondent and her secretary. Ms. Killebrew testified that she also wished to discuss an incident relayed to her by "a teacher," in which Respondent allegedly pulled a child out of class to ask him about the incident with Officer Nixon. Again, Ms. Killebrew did not identify this teacher, and Petitioner offered no corroboration for her hearsay testimony. Thus, this portion of Ms. Killebrew’s testimony cannot be credited. Ms. Killebrew’s written statement of the incident, which she verified as accurate at the final hearing, states in relevant part: I told him that the conflict with Officer Nixon has to stop and that we all have to work together until school is out. I also told him that the staff was becoming divided because he was continuing to discuss it. He responded that he was going to the school board because everybody had lied about him. I told him that was fine, but it needed to be kept away from the school. I reminded him that I had asked him not to discuss the incident when I gave him the letter. He said, "That’s a lie. You never told me that." I asked, "You’re calling me a liar?" He responded, "Yes, I am. After all I’ve did for you, you sat up in that meeting and told those lies . . ." At this point, I stopped him and told him that he needed to take the afternoon off. He continued to go on. Several more times I had to try to stop him and repeat myself. Finally, he acknowledged that he had heard me. Respondent’s version of the incident basically coincides with Ms. Killebrew’s, with some differences in the particulars. When she asked if he was calling her a liar, Respondent testified that his answer was, "Ms. Killebrew, if you said you told me that, yes, you are lying." Respondent testified that he did not say that Ms. Killebrew lied at the earlier meeting with the police officers, but he did reproach her for not supporting him at the meeting. Respondent’s testimony is consistent with Ms. Killebrew’s own testimony that she sat silently at that meeting. Respondent testified that, although he was surprised at Ms. Killebrew’s statements, he responded calmly. On the advice of Dr. Neriah Roberts, Executive Director of the Association of School Based Administrators, Respondent requested that Ms. Killebrew put in writing her order that he go home for the remainder of the day. After obtaining direction from William Londeree, the district’s Director of Employee Relations and Non-Instructional Personnel, Ms. Killebrew put her order in writing and Respondent went home. On the afternoon of May 8, 1997, Ms. Killebrew wrote the statement quoted above, in the form of a letter to Superintendent Glenn Reynolds. The letter concludes as follows: Due to Mr. Mickens’ insubordinate, disrespectful behavior to me, I am asking that you suspend him, without pay, from his duties as assistant principal at Boone Middle School. I am also asking that you consider reassigning him to another location. Not only has he compromised his working relationship with me, he has also put his effectiveness here at the school in jeopardy by failing to behave in a professional manner. Ms. Killebrew testified that she wrote this letter according to instructions given her by Ms. Baldwin, as she had the earlier reprimand letter. She testified that Ms. Baldwin instructed her as to the form and content of the letter, including the suspension recommendation. Ms. Killebrew testified that Ms. Baldwin told her that the School Board has progressive discipline. Ms. Baldwin told Ms. Killebrew that "He had been given a letter of reprimand. This would be step two, therefore I should ask for a suspension." As will be discussed more fully in the conclusions of law below, Ms. Baldwin was correct in stating that the Polk County School Board has progressive discipline. However, "step two" in the progression set forth in Section 3.005(II)(A) of the School Board policies is a "written reprimand," not a suspension. "Suspension or demotion" is step three in the progression. In their eagerness to pacify Chief Wheeler, the district administrators passed over step one in the School Board’s progressive discipline scheme, "verbal reprimand." It is found that Respondent was truthful in testifying that he did not understand Ms. Killebrew to have directed him to refrain from discussing these matters at school. Ms. Killebrew herself softened her recollection to testify that she had "asked" Respondent not to discuss the incident. However, it is also found that such an instruction should not have been necessary. Whether or not Ms. Killebrew said anything at all to Respondent, he should have understood that no good to the school could come from hallway discussions of the incident with Officer Nixon. Respondent did not deny talking about the incident upon his return to Boone. Ms. Killebrew’s testimony that she was hearing from staff that Respondent was discussing the matter is credited. Thus, Ms. Killebrew was justified in confronting Respondent about the matter. Whatever his feelings, Respondent was impolitic at best in accusing Ms. Killebrew of lying. Her immediate reaction in sending Respondent home for the rest of the afternoon was also justified. Tempers could cool and the matter could be addressed rationally at a later time. Nonetheless, it cannot be overlooked that Ms. Killebrew appears to have been pursuing a personal agenda against Respondent. Ms. Roberts, the PTA President, testified that she spoke with Respondent on the day he returned to the Boone campus in early May and offered to be a character witness for him. Shortly thereafter, she was approached by Ms. Killebrew: Eileen Killebrew came up to me and advised me not to talk to him and not to ask him questions about it or to be friendly, and she made the statement, I want him off my campus, or something to that effect . . . I said, Mr. Mickens, he’s so nice, he’s a nice man. And she said, oh, you don’t know, you don’t know. I want him out of here. The vehemence of Ms. Killebrew’s statements to Ms. Roberts cannot be explained by Respondent’s set-to with Officer Nixon, or by her vague comments that she had noted some slippage in Respondent’s performance during the 1996-1997 school year, even if those comments could be credited as more than after-the-fact rationalizations for her actions. Respondent noted that Ms. Killebrew’s change in attitude toward him coincided with his rejection of her request that he join her in transferring to Crystal Lake Middle School. The facts also demonstrate that Ms. Killebrew was well aware that parents and Respondent were concerned about the bullying methods of Officer Nixon and that Ms. Killebrew stood squarely behind Officer Nixon. It is found that these factors best explain why Ms. Killebrew would seize upon a brief argument that occurred behind closed doors as a pretext for attempting to have Respondent suspended from his job without pay and reassigned. She did not wait for tempers to cool, did not attempt to have a rational conversation with Respondent, or otherwise seek a less drastic remedy. Ms. Killebrew wanted an excuse to get Respondent "off her campus," and this incident could do the job. The following day, May 9, 1997, Superintendent Glenn Reynolds sent a letter to Respondent advising that he was placing Respondent on paid leave, effective May 12, 1997. The letter also stated that Mr. Reynolds was "requiring you to submit to a complete medical and psychological evaluation," and provided a list of physicians and psychologists from which Respondent could choose. The letter required Respondent to choose one physician and one psychologist and to inform the Employee Relations Office of his choices no later than May 14, 1997. Unlike Ms. Baldwin, Mr. Reynolds freely admitted that the word "requiring" in his letter meant "requiring." However, as with Ms. Baldwin, Petitioner offered no evidence to demonstrate that Mr. Reynolds had the authority to require Respondent to submit to a complete medical and psychological examination. Mr. Reynolds essentially contended that he had the inherent authority as Superintendent to require Respondent to submit to these examinations. The school district’s Contract of Employment for Administrators for the school year 1997-1998 contained a provision stating as follows: The Employee, at his expense, agrees to submit to the Board, if required, prior to the effective date of this contract written evidence of good health as required by Board policy. The Employee, at the expense of the Board, further agrees, upon request of the Board at any time during the school term, to submit to a physical or psychiatric examination by a qualified physician or physicians to be selected by the Employee from a list consisting of not less than three (3) names approved by the Board. The Employee further agrees to allow the report of the physicians to be submitted to the board with a copy being forwarded to the Employee. The quoted provision was not contained in the contracts for prior years, including the 1996-1997 school year that is the relevant time period for this hearing. Mr. Reynolds testified that he could not recall the particulars regarding this change to the employment contract. It is noted that even if the quoted provision had been in effect, the authority to require an employee to submit to a psychiatric examination is vested in the School Board, not the Superintendent. Respondent replied by letter dated May 12, 1997, informing Mr. Reynolds of his selection of a physician and a psychologist. Respondent’s letter also requested a conference with Ms. Killebrew and a reason in writing from Mr. Reynolds for the medical and psychological evaluation. By letter dated May 14, 1997, Mr. Reynolds responded as follows, in relevant part: I have required the evaluations to provide me with an independent, professional opinion as to whether there are stress-related or medical reasons for reported behaviors which had not been evidenced in your previous work experience. The information will help me in making decisions relating to behaviors which have been recently reported and/or investigated. Mr. Reynolds’ letter was silent as to Respondent’s request for a meeting with Ms. Killebrew. Mr. Reynolds use of "recently reported and/or investigated" in the statement quoted above is technically accurate but misleading in its implication that an "investigation" may have occurred. Mr. Reynolds in fact relied on Ms. Killebrew’s version of events as conveyed to him by Ms. Baldwin, along with the uninformative statements collected by Mr. McDonald and the self-serving written statement of Officer Nixon, which Mr. Reynolds inaptly termed a "deposition." Mr. Reynolds neither conducted nor ordered an independent investigation of the events at Boone. Respondent was dissatisfied with the reasons given for subjecting him to a psychological evaluation and met with Mr. Reynolds. Respondent testified that at the meeting, Mr. Reynolds would only say that he wanted an independent opinion regarding Respondent’s mental health and told Respondent that he would likely be terminated if he didn’t do it. Respondent testified that he was a former military officer, and if his superior ordered him to see a psychologist, he would see a psychologist. At the hearing, Mr. Reynolds was unable to recall lucidly the chronology of events. He justified ordering the psychological exam by reference to "threats" Respondent had made. Further inquiry revealed that the referenced "threats" related to events that allegedly occurred three months after Mr. Reynolds ordered the examination. Mr. Reynolds also suggested that he was acting to help Respondent and perhaps prevent a situation such as later occurred at Littleton, Colorado, and Conyers, Georgia. This suggestion was irrational, given that Respondent had been accused only of having a shouting match with a School Resource Officer and an argument with Ms. Killebrew. Mr. Reynolds frankly admitted he was relying on the word of Ms. Killebrew regarding the events at Boone and Respondent’s mental state. It is not surprising that someone relying entirely on Ms. Killbrew’s version of events would come away believing that Respondent was emotionally unstable, and come away knowing none of the details regarding Officer Nixon’s pattern of behavior at the school or Ms. Killebrew’s resentment of Respondent. Mr. Reynolds justified his reliance on Ms. Killebrew’s word by saying, "We have to assume that our administrators are going to be honest, be straightforward." He failed to explain why Respondent, also an administrator, did not enjoy the benefit of the same assumption. It is found that Mr. Reynolds lacked a sufficient factual basis for taking the serious, potentially stigmatizing step of ordering Respondent to submit to a psychological examination, even if it is assumed that Mr. Reynolds had the authority to do so. The only facts before Mr. Reynolds were that Respondent had arguments with Ms. Killebrew and Officer Nixon, plus Ms. Killebrew’s vague impressions that Respondent appeared to be under stress. Mr. Reynolds made no independent investigation of the situation. He expressed no curiosity as to whether there were personal grudges or emotional issues on the part of Officer Nixon and Ms. Killebrew, even after a group of parents and teachers including Ms. Fields, Ms. Roberts, and Mr. Hunt met with him to state their support of Respondent and their concerns about Officer Nixon’s behavior on the Boone campus. Respondent submitted to the psychological exam on June 11, 1997. Respondent testified that the psychologist presented him with release forms and asked Respondent to sign them. Respondent refused his consent to allow any examination report to be turned over to the school district. Discussions ensued between Respondent and Messrs. Dunn and Londeree of the school district over the release of the examination report. Respondent testified that the psychologist refused to go over the results of the examination with him unless he would sign the release forms. Respondent testified that Mr. Dunn later phoned him to say that he had spoken with the psychologist and arranged for Respondent to go back in and sit down with the psychologist to go over the report. Respondent returned to the psychologist, who told him that he had not written a "report" and did not intend to do so. Respondent testified that the psychologist said to him, "Your problem is not with me, it’s with the Superintendent of Schools." Respondent testified that he next received a call from Mr. Londeree, who wanted to make a deal. Mr. Londeree asked Respondent to permit the psychologist to send a copy of the report to the school district at the same time a copy was sent to Respondent. Respondent testified that his answer was, "I don’t make deals." Respondent testified that Mr. Londeree told him that if the school district did not receive a copy of the psychologist’s report, then it would go to "Plan B." Respondent stated that he and Dr. Roberts puzzled over what "Plan B" might be. Respondent testified that, in retrospect, he assumed "Plan B" was to transfer him to McLaughlin Middle School, because the transfer occurred immediately after he confirmed his refusal to release his records. By letter dated July 23, 1997, Mr. Reynolds informed Respondent that he was reassigned to the assistant principal position at McLaughlin Middle School, effective immediately. Mr. Reynolds testified that Respondent’s refusal to release the exam results played no part in his decision to transfer Respondent, though he offered no alternative explanation for the timing of his decision. The same alleged facts were before Mr. Reynolds on May 9, 1997, when he suspended Respondent with pay, yet more than two months lapsed before this reassignment, just after Respondent’s refusal to release the records of a psychological examination he should not have been required to take. Ronald Rizer, the principal of McLaughlin Middle School, testified that he could not remember the date he was told that Respondent would begin work at his school. He remembered that Ms. Baldwin called him and asked if he would be willing to swap his current assistant principal for Respondent. Mr. Rizer testified that he told Ms. Baldwin he would work with her and the Superintendent in any way he could. Mr. Rizer did not testify as to whether Ms. Baldwin or Mr. Reynolds briefed him on the previous spring’s events at Boone or gave him their opinion of Respondent’s mental and emotional state. Respondent took a few days’ personal leave, then reported at McLaughlin on Tuesday, August 5, 1997. Classes had not begun, but the faculty had returned to prepare for the approaching school year. Mr. Rizer testified that he greeted Respondent and told him he would introduce him to the faculty via the intercom. He told Respondent that he had no basic assignments for him that day and that Respondent should spend the day getting acquainted with the faculty. Alan Jostes was the Dean of Students at McLaughlin. He testified that he learned that morning there was a new assistant principal, and went to Respondent’s office to introduce himself. He testified that Mr. Rizer had assigned him to prepare the duty assignment list, and that he began going over the list with Respondent. Mr. Jostes testified that Respondent saw his name on the list for morning bus duty and immediately became "very upset, yelling at me, ‘Why is my name on this? I don’t do any duties.’" Mr. Jostes told Respondent that he had simply plugged Respondent’s name into the spots on the list that had been filled by the previous assistant principal the year before. Mr. Jostes testified that Respondent became very angry with him: "I felt very threatened at that point. Accusing me of, you know, being insubordinate and not doing my job, when I was asked by the building Principal." Respondent testified that he never yelled at anybody. He stated that when he saw Mr. Jostes had assigned him to bus duty five days a week, he told Mr. Jostes, "I’m a rover. I have to do student, teachers, parent conferences in the morning. I have to check the teachers’ duty stations." Respondent told Mr. Jostes to take the morning bus duty until Respondent could evaluate the personnel and assign someone to the duty on a permanent basis. Mr. Jostes testified that things calmed down as he took Respondent for a tour of the various duty stations, but that Respondent again became agitated when he saw his name on the assignment list for eighth grade cafeteria duty. Mr. Jostes testified that Respondent became "very confrontational" and yelled at him. Mr. Jostes stated that at this point the conversation was going nowhere and he asked Respondent if he needed anything else. Respondent asked Mr. Jostes to show him the classrooms. They walked down the sixth and eighth grade hallways, after which Respondent said, "That’s all I need. You may go back to your office." Respondent agreed that Mr. Jostes took him around the campus. He testified that when he saw Mr. Jostes had put him down for one hour’s duty in the cafeteria, he informed Mr. Jostes that "I pull lunch duty all three hours. I said this is my time to be proactive with the students. I explained all this to him. And I said, Mr. Jostes, [you’re] really talking to me in a condescending manner. [You’re] talking to me like you’re the assistant principal. Mr. Jostes just kind of turned his head." Respondent testified that he then asked Mr. Jostes to show him the sixth and eighth grade wings, after which he told Mr. Jostes that was all he needed. Respondent’s version of these events is credited as a more objectively accurate statement, though it is found that Mr. Jostes’ honestly perceived that Respondent was "yelling" at him. In his demeanor while testifying, Mr. Jostes appeared to be a soft-spoken, sensitive, somewhat timorous gentleman. Respondent does not speak in a loud voice, but his voice does carry conviction and assertiveness. Respondent is also sensitive to what he perceives as condescension, and likely took on a stern tone when he felt Mr. Jostes was talking down to him. This in turn intimidated Mr. Jostes, who considered it "yelling." Supporting the finding that Mr. Jostes’ reactions do not provide an accurate measure of Respondent’s "anger" and propensity for "yelling" is the testimony of Gene Carroll, the in-school suspension instructor at McLaughlin. Over the course of two days, Respondent and Mr. Carroll engaged in serious discussions over the direction of the discipline program at McLaughlin. There were times when the two men were at loggerheads over changes that Respondent wished to make in the program. Despite these serious disagreements, Mr. Carroll testified that Respondent "always had a good attitude, I thought. Very pleasant to speak to, and I like him real well as far as [that]. I just didn’t like his program." Mr. Jostes testified that the next afternoon, he went to Respondent’s office at Respondent’s request. Mr. Jostes then stated: When I arrived back about 12:30, I went directly to his office. And I said, "Is now a good time?" And he’s sitting at his desk, and he said, "You need to shut both doors," after I walked into the office. The conversation in his office turned to, "You have an attitude. You’re very insubordinate to me," and it went from nothing to yelling and screaming at me. I mean, it was not a directive voice, it was yelling and screaming. "You’re insubordinate. You’re very . . . you have an attitude. And if you don’t like the way I do things around here, I’m going to find someone else for the job, and I will get you out of here." And he said, "Do you have any questions?" And before I could even answer that, he says, "And if you don’t like what I’m saying, we’ll get Mr. Rizer in here." And at that point, I said, "I think that would be a good idea." Respondent’s recollection of this incident was markedly different: I guess a little bit before 1:00, I called Mr. Jostes into my office, and I want to go over and want to make sure that he was prepared to, you know, take part, you know, in the afternoon [teachers’] meeting. Mr. Jostes [sat] down . . . and my door was here. I asked him, I said would you please close the door. He just [sat] there. And he said, I think we need to see Mr. Rizer. Q. Had you had a conversation? A. No. He said, I think we need to go see Mr. Rizer. So I said, all right, let’s go see Mr. Rizer. Respondent’s version of this encounter is credited. It appears that Mr. Jostes confused statements that Respondent made during the subsequent meeting with Mr. Rizer with statements made in Respondent’s office. It is also more plausible that Mr. Jostes would be the person to suggest taking their dispute to Mr. Rizer, because Mr. Jostes had a long-standing working relationship with Mr. Rizer. Respondent had met Mr. Rizer only the previous day. The two men went to Mr. Rizer’s office. Mr. Rizer testified that they came in because of Respondent’s concerns that Mr. Jostes was being insubordinate and trying to tell him what to do. Mr. Rizer testified that Mr. Jostes had already reported to him the difficulties he was having with Respondent. This supports Respondent’s testimony that it was Mr. Jostes who suggested a meeting with Mr. Rizer. Mr. Rizer testified that he attempted to explain to Respondent that he had assigned Mr. Jostes the duty assignment list, but had difficulty getting a word in edgewise. He testified that Respondent repeatedly interrupted him. Mr. Rizer testified that he became irritated and slammed his hand down on his desk and said, "Wait a minute. I’m the Principal here and I’m the boss. You’re not, and you’re going to do things my way." Mr. Rizer testified that Respondent settled down at that point and listened. Mr. Rizer testified that the latter portion of the meeting was productive. He explained to Respondent that he had carved out a special role for Mr. Jostes to further his career goals, and that role was somewhat different than that of the typical dean of students. Mr. Rizer testified that he felt there was a meeting of minds as to the way he had established things as principal of McLaughlin Middle School. Mr. Jostes and Respondent generally agreed with Mr. Rizer’s testimony regarding their meeting. Mr. Jostes agreed that the meeting ended calmly and positively. He also stated that he and Respondent returned to Respondent’s office after the meeting, and "we actually had a very productive communication." Respondent testified that in the early part of the meeting, he complained about the lack of cooperation from Mr. Jostes and told Mr. Rizer that "I can carry it by myself until we can bring in somebody who wants to cooperate and be my Dean of Students." Respondent did not recall Mr. Rizer's slamming his hand on the desk, but agreed there came a point at which Mr. Rizer asserted control of the meeting and Respondent listened to what he said. Respondent testified that by meeting’s end, all three participants seemed happy. Mr. Jostes agreed that Respondent seemed better to understand the situation on the campus at the end of the meeting. Respondent said to Mr. Jostes, "Let’s get out of here and go to work." They returned to Respondent’s office and prepared for the afternoon meetings, then sat together in those meetings for the rest of the afternoon. Gene Carroll was in charge of the In-School Suspension ("ISS") program at McLaughlin. On the afternoon of August 5, he introduced himself to Respondent and showed him a copy of the written protocols for the ISS program. Mr. Carroll testified that Respondent handed the paper back to him and said that he did not want a concrete program because he preferred flexibility in making disciplinary decisions. This commenced a substantive dispute, the narrow details of which are unnecessary to recite in this Order. In essence, Respondent had been in charge of discipline at Boone and had run it with a measure of personal discretion in meting out punishment. The program at McLaughlin was a more lockstep system of progressive punishment. Mr. Carroll conceded that Respondent’s program worked well at Boone, but testified that he and Mr. Rizer believed the stricter program was needed at McLaughlin because of its larger and more diverse student population. Respondent believed that his methods were in keeping with school district policy, and that McLaughlin was out of step with the district’s disciplinary philosophy. Mr. Carroll believed that Respondent was "coming on a little strong" in light of the facts that he had just been assigned to the school, that he was unfamiliar with the McLaughlin community and problems, and especially that the McLaughlin ISS program had been developed by Mr. Rizer when he was Assistant Principal for Discipline. However, Mr. Carroll stated that his differences with Respondent were philosophical, not personal. The only point of contention was Mr. Carroll’s testimony that at one point in the discussions, Respondent told him that he would do it Mr. Rizer’s way for a while, but then would run the program as he saw fit. Mr. Carroll testified that he told Respondent that he needed to talk to Mr. Rizer and straighten things out. Respondent testified that Mr. Carroll misunderstood his comments. He was trying to convey to Mr. Carroll that as disciplinarian, he believed he had to personalize the program. He testified that he was willing to do things in any way Mr. Rizer saw fit. Respondent stated that he told Mr. Carroll to do exactly what Mr. Rizer told him to do. Mr. Carroll agreed that Respondent accepted the ISS program once he understood it. Mr. Carroll’s written statement of events concluded, "I left with a very good feeling that everything would be fine and we would continue our successful program." On Friday, August 8, 1997, Respondent attended a semi- annual district-wide meeting of assistant principals, school resource officers, and deans of students. The purpose of these meetings is to discuss code of conduct and other disciplinary issues. The meeting was chaired by Robert Bondurant, Director of Discipline and Security for the Polk County School Board. During the meeting, Respondent raised his hand during a question session. Mr. Bondurant recognized him. Respondent asked if the district could provide a written definition of the duties and scope of authority of assistant principals and school resource officers. Mr. Bondurant testified that this was a prudent request and agreed to provide the requested definition. While he had the floor, Respondent also spoke for several minutes about his own dispute with Officer Nixon regarding the scope of the SRO’s authority on the Boone campus, and the response of district administrators to the dispute. Mr. Bondurant characterized this portion of Respondent’s remarks as an unprofessional "lambasting" of district administration for its handling of Respondent’s situation. Mr. Bondurant did not believe that what took place between Respondent and his principal or district administration was a proper subject for this meeting, even though it provided the factual context of Respondent’s request for written definitions of duties. Mr. Bondurant conceded that his was a subjective judgment, and that another witness might have no objection to Respondent’s statements. Mr. Jostes was present at the meeting and agreed with Mr. Bondurant that Respondent’s comments were inappropriate. He opined that Respondent was "airing out a lot of anger and frustrations that should have been done in a one-on-one situation with . . . the powers that be in the county." Mr. Jostes, too, conceded that this was his subjective assessment of Respondent’s statements. Patricia Barnes is an assistant principal at Mulberry High School, and was present at the meeting. She testified that Respondent spoke for a long time, but that he spoke in a professional manner and that his statements were relevant to the audience of assistant principals, deans of students, and school resource officers. Keith Mitchell is a 17-year veteran of the City of Bartow Police Department. He was present at the meeting and testified that Respondent spoke in a professional manner and that his statements were relevant to the subject matter of the meeting. On the afternoon of August 8, 1997, a coordinated letter writing effort began. It is unclear precisely who instigated this effort, but the testimony of Dennis Dunn, the Assistant Superintendent for Human Resource Services, makes it clear that Mr. Rizer was instructed by someone in the Superintendent’s office to write a statement. Mr. Dunn testified that he could not recall the precise date when the instruction was given or whether the instruction came directly from Mr. Reynolds or from an associate superintendent. He conceded that the instruction had to have been given some time between Tuesday, August 5, when Respondent commenced work at McLaughlin, and Friday, August 8, when the letters were written. In any event, on August 8, 1997, Mr. Rizer wrote a three-page memorandum to Glenn Reynolds in which he repeated, as fact, the accusations of Mr. Jostes and Mr. Carroll concerning events which Mr. Rizer did not witness. He also repeated comments made by "a teacher," who allegedly told him that "a lot of other teachers" had "concerns" about Respondent. One of these "other teachers" "wondered how many personalities Mr. Mickens has." Mr. Rizer stated that "he was told" that Respondent "seemed not to have his act together" while speaking at a faculty meeting. Mr. Rizer skipped the faculty meeting to write the memorandum. Most damaging to Respondent was the following statement in Mr. Rizer’s memorandum: I personally have some concerns about Mr. Mickens; one minute he is calm and the next minute he is very angry. This man has a lot of anger and I feel something serious could happen when he is in his angry state. I do not feel comfortable him being here. Mr. Rizer spent a total of two to three hours in the same room as Respondent. He estimated that he spent about a half-hour with Respondent in a one-on-one basis. He claimed to have seen Respondent become angry one time and testified that Respondent calmed down after Mr. Rizer asserted himself and that they went on to have a productive meeting. Mr. Rizer had no factual basis for the opinion quoted above, plainly implying that he believes Respondent is a danger to the school. He witnessed nothing that would lead a rational person to fear that Respondent might do "something serious." His sources of information were the exaggerations of Mr. Jostes and some hallway gossip by unnamed teachers. Even Mr. Carroll testified that there was no problem with Respondent’s behavior. At the hearing, Mr. Rizer denied that his memorandum was an attempt to portray Respondent as an emotionally unstable person. In fact, this appears to have been his precise purpose. In addition to writing his own memorandum, Mr. Rizer secured written statements from Mr. Jostes, Mr. Carroll, and Russell Aaron, a teacher at McLaughlin. Also on August 8, Mr. Bondurant wrote a letter to Mr. Reynolds concerning Respondent’s comments at the assistant principals’ meeting, a further indication that the Superintendent’s office was coordinating this effort. The letters from Mr. Jostes and Mr. Carroll recapitulate their testimony outlined above. Mr. Carroll states that he is writing his letter "at the request of Mr. Rizer." The letter from Mr. Aaron to Mr. Rizer, dated August 8, 1997, states, in full: After your phone call this evening about the situation with Mr. Mickens, I felt I should write this letter about an incident that took place last week. On Friday, August 1, 1997, I was riding by the school and saw Mr. Hardee [the former Assistant Principal at McLaughlin] standing in front of the school. I had already been informed that he was leaving our school so I stopped to tell him goodbye. He was talking to another man and when I walked up he introduced Mr. Mickens to me. I asked Mr. Hardee [why] he was leaving McLaughlin Middle and he said Mrs. Baldwin asked him to. At that Mr. Mickens said "Carolyn Baldwin, that Fat Bitch, I’m suing her, Glenn Reynolds and all those Bitches over there. I got my Due Process, they didn’t give me my Due Process. I’m gonna get all of them." At that point you walked out of the door and he (Mr. Mickens) stopped talking and walked back in the building with you. Mr. Aaron testified at the hearing. Mr. Hardee did not. Despite the statement that he was writing this letter "After your phone call this evening about the situation with Mr. Mickens," Mr. Aaron testified that it was he who called Mr. Rizer, on a Friday evening a week after the alleged incident occurred. When asked why he waited a week before calling Mr. Rizer about this incident, Mr. Aaron stated, "I think maybe we had talked about it at school, and then we talked about me putting it in writing, and I had called him that night or something, about how I was supposed to go about doing that. He knew about it before that week was out." This testimony cannot be credited. The letter itself indicates that Mr. Aaron was solicited by Mr. Rizer on Friday evening, not vice versa. Given the opprobrious hearsay that Mr. Rizer saw fit to include in his own memorandum to Mr. Reynolds, it is implausible to believe he would not have included this incident had he known of it on Friday afternoon. Mr. Aaron testified that he had never met Respondent before this incident. He testified that Respondent made his statements at the mention of Ms. Baldwin’s name. He testified that neither he nor Mr. Hardee used any profanity during this conversation. Mr. Aaron’s testimony is credited to the extent that Respondent made some sort of derogatory comments about Ms. Baldwin and Mr. Reynolds. Given the prior testimony regarding Respondent’s character and manner, it seems unlikely that he would have erupted with such vehement language, particularly in front of a complete stranger and without so much as a nudge from those in his company. Under the circumstances of the conversation, it also seems unlikely that Respondent was the only person present who made derogatory remarks about district administrators. Mr. Aaron’s credibility is compromised by his equivocations about the phone call from Mr. Rizer, and by the fact that he did nothing for a week and apparently required some coaxing to write his letter reporting the incident. These findings are also influenced by the fact that Mr. Hardee did not testify to corroborate Mr. Aaron’s story. It is found that Mr. Rizer’s actions on August 8, 1997, were out of all proportion to the minor incidents that occurred on the McLaughlin campus, which a rational person might attribute to a new assistant principal’s over-eagerness to take control and make a good impression and to the natural resistance he would meet from entrenched employees less than eager to change their established methods of doing business. The testimony of Respondent, Mr. Carroll, Mr. Jostes, and even Mr. Rizer himself, indicated that Respondent was beginning to settle in to a smooth working relationship with his peers at McLaughlin after an admittedly rocky start. Mr. Rizer’s actions are made even more irrational by the fact that, though he was contemplating action that he hoped would remove Respondent from the campus, he never mentioned to Respondent that there was even a problem. Respondent testified that he believed things were going well at McLaughlin. He presided over an open house on the morning of Thursday, August 7, 1997, and over teacher meetings all that afternoon with Mr. Jostes. He testified that these were "great" meetings. Respondent testified that after he returned from the assistant principals’ meeting on Friday, Mr. Carroll approached him and told him "point blank" that he would work with Respondent in every way. Respondent testified that he liked Mr. Carroll very much, and that Mr. Carroll seemed to like him. Mr. Rizer had given him a project to complete by Friday. He intervened in a situation in which a parent had a "heated, profane argument" with a school secretary, and resolved it such that the parent left the school "super happy." He made a short presentation to the teachers on Friday afternoon, then completed a video for a presentation he planned to make on Monday. Counsel for Respondent pressed the theory that the transfer to McLaughlin was a set-up from the outset, that the Superintendent’s office planned from the beginning to move Respondent there for a short period before cooking up some reason to terminate him. Based on the evidence presented, it would be fair to reach this conclusion. However, a more plausible explanation of events is that, at the time Ms. Baldwin asked Mr. Rizer about the trade of assistant principals between Boone and McLaughlin, she or someone else in the Superintendent’s office fully briefed Mr. Rizer about the events at Boone and their aftermath. It makes sense that anyone in Mr. Rizer’s position would ask why Ms. Baldwin wanted to make this switch and that she would respond with a recitation of the Boone events according to Ms. Killebrew. If Mr. Rizer "knew" on August 23 that he was getting an emotionally unstable, insubordinate, over-stressed employee who had been ordered to visit a psychologist and refused to release the results, then his disproportionate response to Respondent’s actions and the fearful tone of his letter become understandable. Nothing in the record directly indicates that Mr. Rizer had been briefed about Respondent before he arrived, but that is a rational explanation for his actions. Respondent had no idea of the machinations going on between Mr. Rizer and the Superintendent’s office until the morning of Saturday, August 9, 1997. Dennis Dunn phoned Respondent and told him not to report to the school on the following Monday. Rather, Respondent was told to report to the district office. Respondent reported to the district office on Monday, August 11, 1997. He was told to turn in his keys and handed a letter from Mr. Reynolds that read, in relevant part: Based upon reports of your misconduct in office and gross insubordination, which are grounds for suspension or termination of your employment as provided in Section 231.36(6)(b), Florida Statutes, please be advised that I am suspending you with pay effective August 11, 1997 pending the completion of an investigation. You will be given an opportunity to give your explanations regarding the accusations and will be notified of the results of the investigation. As with the incidents at Boone, there was no "investigation" of the events at McLaughlin as that term is commonly used, i.e., an independent effort to ascertain the relevant facts. Mr. Reynolds and his subordinates simply took at face value the materials provided by Mr. Rizer and others, then met to decide on a course of discipline for Respondent. This is borne out by Mr. Reynolds’ letter to Respondent of August 14, 1997, stating, "Enclosed are letters and reports of incidents upon which I could impose disciplinary action." In other words, the "investigation" lasted less than three days, and the investigative report consisted of the letters from Messrs. Rizer, Jostes, Carroll, Aaron, and Bondurant. Mr. Reynolds testified that he met with Ms. Baldwin, Mr. Londeree, Mr. Dunn, and his legal counsel, Donald Wilson, Jr., to deliberate action against Respondent. This meeting was not noticed or open to the public. Respondent was given no notice or opportunity to attend. Mr. Reynolds solicited and received the advice and recommendations of those present at the meeting. He received legal advice from Mr. Wilson. Mr. Dunn testified that the group "collectively" participated in the decision-making process. On August 29, 1997, Mr. Wilson wrote a letter to Respondent’s lawyer, which stated in relevant part: I am writing this letter at the direction of the Superintendent. It is the Superintendent’s opinion that Mr. Mickens’ actions constitute misconduct in office as an assistant principal and that generally his ongoing conduct and repeated actions are wholly incompatible with the standard of conduct the Superintendent reasonably requires from school based administrators. Further, Mr. Mickens’ actions at both Boone Middle School and McLaughlin Middle School and his conduct toward and statements to members of the staff at those schools have made it impossible for him to continue to effectively perform the duties of an assistant principal. In summary, the Superintendent has concluded that Mr. Mickens has specifically engaged in misconduct in office as an assistant principal and that his conduct generally is so serious as to constitute just cause for termination of his position as an assistant principal. The Superintendent will be recommending to the School Board at its regular meeting on September 9, 1997 that Mr. Mickens be removed as an assistant principal. He will continue to be suspended with pay until that time. Mr. Mickens holds a professional services contract pursuant to Section 231.36(3), Florida Statutes, and the Superintendent’s recommendation regarding his contract as an assistant principal is not intended to affect his professional services contract. Accordingly, if the School Board should act favorably on the recommendation on September 9th, Mr. Mickens will be asked to report on September 10, 1997 to Assistant Superintendent Denny Dunn to available teaching positions to determine an appropriate position to which Mr. Mickens will be assigned. It is noted that Mr. Reynolds’ suspension letter of August 11 also accused Respondent of "gross insubordination." Mr. Wilson’s letter mentions only "misconduct in office." The reference to "Mr. Mickens’ actions at both Boone Middle School and McLaughlin Middle School and his conduct toward and statements to members of the staff at those schools" is as close to a formal statement of factual allegations as Respondent ever received in this process. No formal charging document enumerating the facts upon which the Superintendent based his recommendation was ever provided to Respondent or this tribunal, even after Judge Cave directed the School Board to provide a statement of factual allegations at the motion hearing of February 25, 1999. No charging document was ever filed setting forth the particular provisions of the Code of Ethics of the Education Profession, Rule 6B-1.001, Florida Administrative Code, or the Principles of Professional Conduct for the Education Profession in Florida, Rule 6B-1.006, Florida Administrative Code, that Respondent was alleged to have violated. In fact, Petitioner’s first mention of those rules in this case occurred in its Proposed Recommended Order. At its meeting of September 9, 1997, the School Board took up the Superintendent’s recommendation. Mr. Reynolds addressed the School Board, reciting that Respondent "has engaged in a series of actions which constitute misconduct in office as an Assistant principal, and that his ongoing conduct and repeated actions are generally and wholly incompatible with the standard of conduct we reasonably require from school based administrators." Mr. Reynolds did not state any factual allegation against Respondent. During the lengthy deliberations that ensued, at least two members of the School Board voiced concerns over being asked to vote on a matter without knowing any of the underlying facts. The School Board’s lawyer was Steven L. Selph. Mr. Selph advised the School Board that it would be "inappropriate" and possibly "prejudicial" for the board to hear the alleged facts of the case because the board would later be required to enter a final order. Mr. Selph advised the board that its only choices were to vote on the Superintendent’s recommendation in a factual vacuum, or to hold a full evidentiary hearing before the board itself. Mr. Selph stated that "the main thing the board has to consider is whether the recommendation is based on just cause for the purpose of approving it subject to the outcome of a hearing." Mr. Selph did not explain to the inquiring board members how they could determine "just cause" when they did not know what Respondent was alleged to have done. Mr. Selph assured the School Board that its adoption of the Superintendent’s recommendation was a mere formality necessary to trigger Respondent’s right to a formal administrative hearing. Comments by School Board members prior to their vote indicate that they accepted Mr. Selph’s opinion that the vote was essentially procedural, a necessary step to secure Respondent’s right to an administrative hearing, and thus the board did not need to know the factual allegations. Mr. Selph did not explain that the School Board’s vote to accept the Superintendent’s recommendation would become final agency action if Respondent did not timely request an administrative hearing. On the basis of the Superintendent’s recommendation that Respondent committed misconduct in office, the School Board voted to terminate Respondent from his assistant principal position and to place Respondent into a teacher’s position during the pendency of any administrative hearing. It is found that the School Board’s action was a perfunctory ratification of a decision made earlier by Mr. Reynolds in consultation with his subordinates and lawyer. While there was a lengthy discussion of procedural matters at the School Board meeting, no discussion of the ultimate facts alleged to constitute misconduct in office, or of any facts at all, was allowed. Thus, the School Board did not and could not assess the merits of Mr. Reynolds’ probable cause determination. The School Board’s vote was simply a vote of confidence in Mr. Reynolds. The undersigned viewed a videotape of the School Board meeting. Respondent addressed the board concerning the denial of due process he believed was about to occur. It is noted that Respondent’s presentation was forceful and articulate, but not disrespectful, loud, angry or abusive. It is also noted that Mr. Reynolds testified that Respondent was "agitated." By letter dated September 10, 1997, Mr. Reynolds formally notified Respondent that his employment as an assistant principal had been terminated and that he would be returned to an appropriate teaching position for the remainder of the 1997-1998 school year. Mr. Reynolds’ letter also made reference to a statement made by Respondent to Mr. Dunn that he could not return to a teaching position at that time and desired to use his accumulated sick leave. The letter informed Respondent that he could use the leave if he provided medical certification from a physician that he was unable to work and the anticipated amount of time he would be away from work. Mr. Dunn, the Assistant Superintendent for Human Resource Services, testified that Respondent was placed in a teaching position because "my hands were tied" by the fact that Respondent had a continuing contract that had to be honored. By letter dated September 14, 1997, Respondent requested an administrative hearing regarding his termination as an assistant principal. The letter also stated that Respondent would provide the requested medical certification. On November 5, 1997, Mr. Wilson wrote on behalf of Superintendent Reynolds to Respondent. Mr. Wilson reminded Respondent of his September 14, 1997, letter promising medical certification to justify his sick leave and of a conversation he had with Respondent on November 3, 1997, during which Respondent indicated he had a doctor’s appointment to obtain the certification on November 17. Mr. Wilson informed Respondent that the physician’s certification must be received by Mr. Londeree on or before November 20, 1997, and that failure timely to file the certification would be deemed an abandonment of Respondent’s employment with the Polk County School Board. Respondent never provided the physician’s certification. Mr. Dunn and Mr. Londeree testified as to a conference call with Respondent, during which Respondent conceded that he was not sick but that he could not come back to work under the circumstances. Respondent confirmed that he did not accept the teaching position because his reputation had been destroyed. He believed that he could not be effective in the classroom because people were afraid of him. By letter dated December 12, 1997, Mr. Reynolds notified Respondent that he had been determined to have abandoned his teacher’s position and that Mr. Reynolds would recommend to the School Board that Respondent’s employment be terminated. At its meeting of January 13, 1998, the School Board voted to terminate Respondent’s employment.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the School Board enter a final order reinstating Respondent for the remainder of his assistant principal contract for the 1997-1998 school year, and enter into assistant principal contracts with Respondent for the 1998-1999 and 1999-2000 school years. DONE AND ENTERED this 2nd day of March, 2000, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of March, 2000. COPIES FURNISHED: Donald H. Wilson, Jr., Esquire Boswell & Dunlap, LLP 245 South Central Avenue Post Office Drawer 30 Bartow, Florida 33831 Timothy G. Schoenwalder, Esquire Hopping Green Sams & Smith, P.A. 123 South Calhoun Street Tallahassee, Florida 32314 Glenn Reynolds, Superintendent School Board of Polk County 1915 South Floral Avenue Bartow, Florida 33831-0391
The Issue The issue in this case is whether just cause exists to terminate Respondent, Donna James’ (“Mrs. James”) employment contract with Petitioner, Duval County School Board (the "School Board"), based on the fact that Mrs. James failed to adequately supervise her students.
Findings Of Fact The School Board is responsible for hiring, firing and overseeing all employees at the School, which is an elementary school within the Duval County Public School system. At all times relevant hereto, Mrs. James was a teacher at the School. At the time of her termination of employment by the School Board, Mrs. James was teaching kindergarten at the School. She had been teaching at the School for approximately 17 years, primarily teaching in first and second grades. Mrs. James was certified in grades one through five. Each year she taught at the School, Mrs. James received satisfactory annual evaluations concerning her performance as a teacher. There were some comments on her evaluation forms in the category of classroom management that indicate some minor problems in that area, but none of the comments suggest Mrs. James was less than satisfactory. For example, “classroom management skills are improving” (2011); “needs to be more consistent with consequences” (2001). Other than those comments, all the evaluations had either no comments or had more positive comments. There was, surprisingly, no evaluation form in Mrs. James’ employee file for the 2011-2012 school year, the year just prior to the year Mrs. James’ employment contract was terminated. Dr. Sutton became principal of the School in 2009. Her initial assessment of Mrs. James was that she was a competent teacher. Dr. Sutton later came to believe that Mrs. James had some “issues” with classroom management. Dr. Sutton’s opinion of Mrs. James appears to be the impetus for the School Board’s action seeking termination of Mrs. James’ employment contract. (When asked upon being sworn in at final hearing what her “occupation” was, Dr. Sutton replied “Principal of [the School].” However, during cross-examination Dr. Sutton said she was not retained as principal at the School for the upcoming school year. The rationale given to her for non-retention was “data trends and other issues.” Dr. Sutton’s credibility was negatively affected by her initial failure to be forthright about her employment status.) According to Dr. Sutton’s sworn testimony, she visited Mrs. James’ classroom regularly, including formal visits at least every two months and informal visits “frequently.” Mrs. James remembers only two formal visits and almost no informal walk-through visits. Mrs. Gillrup, a retired teacher who came to assist Mrs. James two days a week for the entire school year, never remembers seeing Dr. Sutton visit the room. Dr. Sutton, by her own admission, did not have an assistant principal and was thus spread thin concerning her administrative duties. In light of contradictory testimony, and the fact Dr. Sutton did not have an assistant principal to give her more time, Dr. Sutton’s testimony lacks credibility in that regard. There are four separate incidents which form the basis of Dr. Sutton’s decision to pursue termination of Mrs. James’ employment contract. Each will be addressed below. The Stabbing Incident1 On or about December 13, 2010, Mrs. James was teaching a first grade class. On that day, one student stabbed another student with a pencil, resulting in injuries to the second student. The School Board provided no direct evidence as to what transpired in the classroom other than the final result, i.e., one student stabbed another. According to Mrs. James, the event occurred as follows: Two boys were engaged in a fight in her classroom. The aggressor was an Exceptional Student Education (ESE) student with “special needs.” Mrs. James separated the boys, then took one of the students directly to the office in order to keep the boys from fighting. While she was gone –- for approximately five minutes –- the ESE student attacked another student with his pencil, stabbing him in the neck and head. A Department of Children and Families’ investigation was conducted in that case. The case was closed with a “verified for inadequate supervision” designation. No evidence from the original investigation was provided in the instant matter. There is no evidence that Mrs. James was disciplined because of that incident. The Playground Incident On March 3, 2012, Mrs. James received a verbal reprimand for failing to supervise two students on the playground. No evidence concerning the specific facts of the situation was presented by the School Board. There is no evidence as to how Dr. Sutton even found out about the alleged incident. Rather, the School Board simply alleges that Mrs. James failed to supervise two students properly, resulting in the reprimand. Mrs. James explained the event as follows: On the day in question, her class was on the playground along with students and teachers from several other classes. When it was time for her class to go, Mrs. James blew her whistle twice, summoning the students to line up. When the students gathered, Mrs. James went outside the playground area to line up and conduct her student check. At that time, she found that one student (not two, as alleged) was missing. She was still in visual contact with the playground where other teachers and their classes were still located, so she sent two of her more responsible students back to find the missing student. She then proceeded further along the sidewalk in the direction of her classroom, never losing visual sight of the playground. When the two scouts returned with their wayward fellow student, Mrs. James took them and the rest of the class back to the classroom. At no time was the “lost” student ever without adult supervision. Other teachers were in the playground area with their classes. Mrs. James could see the playground at all times. There was no failure to supervise her students. Mrs. James’ explanation of the incident was considered by Dr. Sutton to be placing blame on the students rather than accepting her own culpability. Mrs. James said there was no “blame”; rather, a child simply did not hear the whistle and had to be retrieved from the playground. The Extended Day Student Incident On November 14, 2012, one of Mrs. James’ kindergarten students ended up on board a school bus after school even though the student was not a bus rider. Again, the School Board provided no evidence as to how this mistake happened, only the final result, i.e., the child was improperly on the bus. When the bus driver realized the fact, he returned the child to school. Dr. Sutton then went to speak with the child’s parent, who was naturally concerned about the incident. Mrs. James explained the situation as follows: The boy was the only child in her classroom who was on “extended day,” meaning that once all the other students left school, he would remain with a group of students for further instruction and supervision. Mrs. James’ routine at the end of the day was to line her students up at her classroom door. The extended day student would be released from the classroom first. He would go into a general purpose area right outside the classroom. The child was directed to a carpeted area where he would sit with other kindergarten or first grade extended day students. These students were under the supervision of one or two other teachers. Once that child was safely seated on a carpet, Mrs. James would tend to her other students. Her bus rider students were sent down to Ms. Solomon’s room, which was separated from Mrs. James’ room by an unused classroom. Ms. Solomon would, in turn, send her car rider students down to Mrs. James’ room. It was Mrs. James’ duty to then get the car rider students to the appropriate area for pick-up. Mrs. James’ extended day student and bus rider students thus went under the supervision of someone else. On the day in question, Mrs. James sent her extended day student out to the common area as per usual. Once he was seated on the carpet, she sent her bus riders down to Ms. Solomon’s class and gathered Ms. Solomon’s car riders. Mrs. James took the car rider students to the student pick-up area. Upon arrival in that area, her students were turned over to other teachers assigned to assist them. Likewise, there were teachers assisting the bus riders, making sure the right students got on the right bus. Teachers assigned to each area were generally familiar with the students and would likely know if a student was not in the appropriate area. Despite the various safeguards in place, on November 12, 2012, the extended day student from Mrs. James’ classroom ended up getting on a bus. How he was able to slip away from the extended day area, avoid detection by the various teachers stationed at the bus area, and get on a bus is not clear. Ms. Solomon said the dismissal time was quite confusing and somewhat chaotic, so if a child did get to the wrong place, it was somewhat understandable. That is why there are other safeguards in place. Dr. Sutton assumed that since the extended day student was from Mrs. James’ classroom, she must be responsible for him getting on the bus. Dr. Sutton issued a written reprimand to Mrs. James for her failure to properly supervise the extended day student. Mrs. James does not agree that she breached her duty in any fashion. Rather, the child somehow managed to evade each and every safeguard in place, ending up on a bus he was not supposed to be riding. The School Board alleged in its letter of termination that another of Mrs. James’ students had improperly gotten on a bus earlier in the school year. Dr. Sutton testified that she spoke to Mrs. James about the incident, giving her a verbal reprimand. Mrs. James has no recollection of ever being advised of such a situation. Based upon Mrs. James’ demeanor and the fact there is no written memorialization of such an event ever occurring, Mrs. James’ version of the story is more credible. It is possible Dr. Sutton was mistaken or confused the event with another teacher’s student. It is also possible that, as Mrs. James believes, Dr. Sutton fabricated the first incident. There is no evidence to either support or disprove that contention. Mrs. James was never interviewed or asked about the extended day student bus incident before the reprimand was issued. She was not asked to explain or provide her perspective of what had happened. Nonetheless, the School issued a written reprimand to Mrs. James as a result of the incident. At that time, Mrs. James did not realize she had the right to submit a written response to the allegation, so she did not do so.2 When Mrs. James was summoned to the School to receive her written reprimand, her husband accompanied her for moral support. Mr. James is also an educator, working at another school within the Duval County school system.3 As they sat in an outer office waiting to be called in to receive the reprimand, Mrs. Walker, a school district employee, called Mr. James (only) into the office. At that time, he was given what he described as a “No Trespass Affidavit” which said that he could not be present on the School campus. He had no idea why he would be prohibited from being on the campus where his wife taught school. He knew of no offense he had committed to warrant such a prohibition. This procedure reeks of impropriety, especially when considering the School’s failure to even ask Mrs. James her perspective of what had transpired in the incident for which the reprimand was being issued. The Sexual Contact Incident On March 1, 2013, the last and arguably most serious alleged situation involving Mrs. James occurred. On that date, it was reported that two students in Mrs. James’ class were engaged in a sexual act or in sexual touching of some kind. At about 10:20 a.m., on that day, Mrs. James was approached by one or more of her students reporting that two of the boys in the class, T.S. and M.M., were doing naughty things under the table where they were sitting. According to the report, M.M. approached T.S. and asked him if M.M. could put his mouth on T.S.’s penis like he had seen someone do on television. T.S. initially rejected the offer, but M.M. persisted. Then T.S. zipped down his pants as M.M. climbed under the table. M.M. then either touched T.S.’s penis or put his mouth on it. When Mrs. James was advised of this, she called M.M. and T.S. to her desk and admonished them for their behavior. Neither boy admitted to any sexual act, only saying that T.S. showed M.M. his penis upon request and M.M. touched it. She then had the boys taken to the front office by Ms. Cox, a paraprofessional who generally worked with another teacher. (There was no evidence provided as to why Ms. Cox was in Mrs. James’ room at that time, how long she had been there, or what she saw vis-à-vis the incident.) Mrs. James asked Ms. Cox to bring back two Referral Forms so she could write up the incident. Later, Ms. Harb, an instructional coach at the School who sometimes acted as de facto assistant principal, brought the forms to Mrs. James. Ms. Harb seemed fairly agitated when she arrived with the forms and tried to ascertain what had actually happened. She watched Mrs. James complete the forms, even suggesting Mrs. James add the statement, “according to another student” at the end of her statement. As it turns out, Ms. Harb had talked to the two boys involved in the incident while they were in the office. She also spoke to some other students and obtained general statements from them about what had occurred. Due to the nature of the incident, DCF was again called in to investigate the matter. They purportedly concluded that there was evidence to support a “verified for inadequate supervision” designation for the investigation. (This was the same conclusion reached by DCF in the stabbing incident from 2010 which had not resulted in any disciplinary action against Mrs. James.) The School alleges that another sexual touching incident, probably involving the same students, happened the prior week, on February 26, 2013. However, Mrs. James was not at the School on that day, having attended a math workshop she had been going to every Tuesday for some time. There was no evidence at final hearing as to what action was taken against the substitute teacher relating to that alleged incident. There was also evidence that another sexual incident (again involving one or more of the same children) may have occurred a week or so later, i.e., after Mrs. James had been removed from the classroom. No evidence was presented to indicate whether the teacher in charge at the time of that incident was similarly disciplined. The School Board Decision The day after the sexual touching incident, Mrs. James was notified that she was being removed from the classroom pending further action on the investigation. Three weeks later she received notice that her employment contract was being terminated. The stated basis of the School Board’s decision was that Mrs. James failed to properly supervise her students. The position stated by the School Board (through its human resources representative) was that the sexual conduct incident was the primary reason for recommending termination of Mrs. James employment contract. The egregious nature of that incident, coupled with a “pattern of failure to supervise students properly," constituted a “severe act of misconduct.” The School Board, therefore, felt it expedient to skip the progressive discipline step of suspension without pay and go directly to the most serious penalty: Termination of Employment. The Four-Step Discipline Process The notice of termination Mrs. James was issued is the Step IV discipline found in a four step process. Step I generally involves a verbal reprimand. A Step II discipline is a written reprimand; Step III is suspension without pay. Under the School Board policies and the collective bargaining agreement, the steps are progressive and each must be preceded by the former step. In this case, Mrs. James’ Step I discipline was a verbal reprimand for failing to adequately supervise “two first grade students on the playground.” This was the March 13, 2012, incident. The Step II discipline (written reprimand) was issued concerning the child who improperly boarded a bus on November 14, 2012. There was no Step III discipline imposed on Mrs. James prior to issuance of the Step IV termination letter. The only caveat to the progressive discipline process is that “some more severe acts of misconduct may warrant circumventing the established procedure.” Art. V, Collective Bargaining Agreement. According to the School’s human resources director, this caveat was invoked in Mrs. James’ case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Duval County School Board, dismissing all charges and rescinding the termination of the employment contract of Donna James for the reasons set forth above. DONE AND ENTERED this 23rd day of July, 2013, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of July, 2013.
The Issue Whether Petitioner, Lake County School Board (“the School Board”), has just cause to terminate Respondent, Cara Sanderlin, for the reasons specified in the agency action letter, dated November 13, 2018.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, matters subject to official recognition, and the entire record in this proceeding, the following Findings of Fact are made: The School Board is the constitutional entity authorized to operate, control, and supervise the public schools within Lake County. See Art. IX, § 4(b), Fla. Const.; § 1001.32, Fla. Stat.1/ The School Board is also authorized to discipline instructional staff and other school employees. See § 1012.22(1)(f), Fla. Stat. The School Board utilizes a progressive disciplinary system. It is a five-step process that begins with an undocumented counseling session and can progress to termination. However, if an offense is sufficiently severe, then the School Board can bypass lesser disciplinary measures and proceed directly to termination. Pine Ridge Elementary is within the Lake County School District. Cara Sanderlin has a bachelor’s degree in special education and approximately 16 years of teaching experience during which she has taught students with conditions such as intellectual disabilities, emotional/mental handicaps, and autism. Ms. Sanderlin has taught autistic students at Pine Ridge Elementary since 2015. She did so in a “self-contained classroom” in which the students stayed with her the entire school day. Ms. Sanderlin kept a small, plastic spray bottle2/ in her classroom. The bottle is slightly less than eight inches tall and capable of holding approximately six ounces of water. The spray bottle has a trigger mechanism that enables one to project a stream of water approximately 10 feet. At the outer limit of the spray bottle’s range, the stream loses continuity. The spray bottle’s nozzle can be adjusted so that one can project mist rather than a stream. Ms. Sanderlin used the spray bottle to mist her students when they were on the playground during warm months. That was necessary because there were no water fountains on the playground or her classroom. During the fall of 2018, Ms. Sanderlin had two to four students in her class. D.H. was one of those students. During the time period relevant to the instant case, D.H. was an 11-year-old fifth-grader and had attended Pine Ridge Elementary since second grade. D.H. is nonverbal but is able to understand what is said to him. He indicates that he wants something by pulling someone to the object’s vicinity so that it can be retrieved for him. While D.H. is able to use sign language to communicate the words “more” and “please,” it can be difficult to discern what he wants. For example, D.H. cannot communicate if someone is doing something to him that he does not like. D.H. is unable to use a bathroom on his own. When accompanied by a teacher, he insists on activating the water faucet and flushing the toilet immediately upon entering the bathroom. He also likes to splash water in the bathroom. However, D.H. does not like to wash his hands, and the teacher accompanying him to the bathroom must utilize a hand-over-hand technique in order to get his hands clean. Thus, D.H. and the person accompanying him tend to get wet. In order to prevent a therapy session from being interrupted, D.H. would be taken to the bathroom just before another teacher would visit the classroom to administer speech therapy. Therefore, it is possible that a visiting teacher could arrive in the classroom and find D.H. wet. Erin Shropshire, a teaching assistant, usually worked with D.H. on a one-on-one basis until the new teaching assistant, McKenzie Shaw,3/ started on September 28, 2018. In the fall of 2018, Abdias Rodriguez was a full-time teaching assistant in Ms. Sanderlin’s classroom. She observed Ms. Sanderlin spray water in D.H.’s general direction without intending to get him wet. This action was used when Ms. Sanderlin needed to get D.H.’s attention and other measures, such as calling his name or tapping her desk, were unsuccessful. While this was not an uncommon occurrence, it did not happen every day.4/ Ms. Shaw sometimes used the spray bottle in a similar manner in order to stop D.H. from doing something in the classroom that he was not supposed to be doing. Danelle Crinion began working at Pine Ridge Elementary as the school’s speech and language teacher in the fall of 2018. She and her teaching assistant, Carol Phelps, go from class to class in order to provide instruction. While in Ms. Sanderlin’s class in the fall of 2018, Ms. Crinion and Ms. Phelps saw Ms. Sanderlin and/or Ms. Shaw, on three or four occasions, use the spray bottle to redirect D.H. after a verbal cue was ineffective in prompting D.H. to move from one part of the classroom to another.5/ On one occasion, they saw that D.H.’s shirt was wet. Ms. Crinion did not question Ms. Sanderlin about those instances but did report them to Laine Obando, the principal of Pine Ridge Elementary, on October 19, 2018. Ms. Crinion’s report indicated that Ms. Sanderlin and Ms. Shaw would direct a stream of water directly at D.H.’s person rather than alongside him. After talking to Ms. Sanderlin, Ms. Rodriguez, and Ms. Phelps, Ms. Obando contacted David Meyer, the School Board’s Supervisor of Employee Relations, and Mr. Meyer initiated an investigation, which ultimately led to the Superintendent’s recommendation that Ms. Sanderlin be terminated from her teaching position. Ms. Obando is familiar with the methods used to redirect autistic students and testified that spraying a child with water is an inappropriate means of redirection. Ms. Sanderlin concurred with Ms. Obando’s testimony.6/ Ms. Sanderlin has no prior violations of the rules governing teacher conduct in Florida. As for why the School Board is seeking to terminate Ms. Sanderlin rather than utilizing its progressive disciplinary system, Mr. Meyer testified that Ms. Sanderlin’s alleged conduct is sufficiently egregious to justify termination because D.H. is nonverbal and unable to express his feelings. Ultimate Findings Ms. Rodriguez was the most persuasive witness at the final hearing, and her testimony has been credited as the most accurate description of how Ms. Sanderlin used a spray bottle in her classroom.7/ The preponderance of the evidence does not demonstrate that Ms. Sanderlin intended for the streams of water to make direct contact with D.H.’s person. The preponderance of the evidence demonstrates that Ms. Sanderlin directed streams of water to the side of D.H. in order to get him to comply with verbal directions. While this practice should not be condoned as an acceptable means of redirecting a student, it is insufficient to support a finding that Ms. Sanderlin committed “misconduct in office” in violation of rule 6A-5.056(2) or “incompetency” in violation of rule 6A-5.056(3). Nor does such behavior amount to a violation of rule 6A-10.081(1)(b), (1)(c), and (2)(a). Therefore, while Ms. Sanderlin should receive some manner of discipline, the School Board lacks justification for bypassing lesser disciplinary measures within its progressive disciplinary system and proceeding directly to termination. There is no just cause for terminating Ms. Sanderlin.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Lake County School Board issue a Final Order rescinding Ms. Sanderlin’s termination and imposing a lesser disciplinary measure within its progressive disciplinary system. DONE AND ENTERED this 22nd day of March, 2019, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of March, 2019.
Findings Of Fact In 1975 and 1976 John Morris, d/b/a Morris Pool Service, maintained the swimming pool at the Sunland Center in Miami, Florida under a contract with HRS. The contract for the year commencing July 1, 1976 and expiring June 30, 1977 (Exhibit 1) provided generally for Morris to maintain the Sunland Center pool for which he would be paid $520 per month. This contract further provided that a representative of Morris Pool Service check each day except Saturday and Sunday with Ms. O'Donohue, the Director of Training, or her successor. Recreation personnel at Sunland Center hoped to open the pool on Memorial Day; however, an impeller for the pump needed replacement and the pool was inoperative for some six weeks in May and June awaiting this part. During this time petitioner did little or no maintenance and the pool's condition was bad enough for the Superintendent to become involved and request a report from the Programs and Services Director (Exhibit 4). When the impeller did arrive in mid-June, 1977, the pool was in such bad shape it was necessary to drain the pool, scrub, and acid-wash the walls and floor of the pool to remove the accumulated algae and scum. Even a colony of frogs had taken up residence in the pool during this period. As a result of additional delays the next hoped-for opening date of July 4 was also missed. The pool was finally ready for operation and was opened the week following July 4, 1977. Although opened the water in the pool was not properly maintained by cleaning and chlorinating. In the latter part of July the gas chlorinator became inoperative and the pool's condition deteriorated as no chlorine was being added to the water. Under the contract Petitioner was to provide materials necessary to keep the pool water in a balanced condition. This contract expired on June 30, 1977. Nevertheless, Petitioner purported to continue working under the expired contract, pending the issuance of a new contract for 1977-1978. While the gas chlorinator was inoperative Petitioner did not hand-feed chlorine to the pool to maintain the proper chlorine level and to keep algae from growing. By early August, 1977, the pool had become so bad the supervisory personnel at Sunland Center called the Dade County Health Department to inspect the pool. A report of that inspection showing the pool unfit for use was admitted into evidence as Exhibit 3. Following the Superintendent's inquiry to Ms. Titus about the condition of the pool in June, 1977, she contacted Petitioner, who told her the pool would he hack in operation as soon as the impeller was received. Ms. Titus was the successor to Ms. O'Donohue and she told Petitioner to keep her advised regarding the status of the pool. Although the contract (Exhibit 1) required Petitioner to report to Ms. Titus daily (except Saturday and Sunday) she did not see him again, nor did she receive any report that he came to her office. Petitioner contends that he attempted to report to Ms. Titus but was unable to find her in her office and after a few attempts stopped trying. Ms. Titus and her assistant were both equipped with beepers and could be contacted any time of day by their office if they were out of the office. Following the Health Department's inspection on August 9, 1977, the pool was closed for several days, then reopened around mid-August after the chlorinator was repaired. When the pool was reopened in August its condition was barely satisfactory. Shortly after Labor Day the pool was again closed and remained closed throughout the balance of 1977. By October, the Sunland Center officials decided they should notify Petitioner that his contract would not be renewed for the 1977-1978 year and a letter dated October 27, 1977 (Exhibit 2) was forwarded to him by registered mail. This letter was mailed to an old address for Petitioner, was returned to the sender and remailed to the proper address. As a result, the letter was not received by Petitioner until December 14 or 15, 1977. Petitioner submitted bills to Respondent for services for the period July 1, 1977 through December 15, 1977, the approximate date he received Exhibit 2. Following August 10, 1977 some of Respondent's employees in the maintenance department saw Petitioner in the cafeteria at Sunland Center and on the premises, but none of them reported seeing Petitioner do any work on the pool. Petitioner contends he worked on the pool on a daily basis, however, the condition of the pool casts serious doubts on this testimony.
The Issue The issue is whether Petitioner should discipline Respondent for immorality, misconduct in office, or incompetency in connection with his supervision, as a high school baseball coach, of a team trip, during which hazing occurred, and his subsequent investigation of the incident.
Findings Of Fact Respondent has been a teacher and a coach for 27 years. He taught and coached in Illinois for 11 years before moving to Florida, where he has taught and coached for the past 16 years. He currently is teaching health, and he sometimes teaches physical education. Respondent holds Florida Educator's Certificate 551145, which is valid through June 30, 2005, and he is certified in health education, physical education, and social science. Respondent has coached basketball, football, and baseball. Most recently, Respondent was the head baseball coach at Coconut Creek High School where he was the Fort Lauderdale Sun-Sentinel Coach of the Year for Broward County three years ago. He coached baseball four years at Coconut Creek High School and the preceding eight or nine years at Fort Lauderdale High School. The events in this case arose during the 2000 season; Respondent did not coach during the 2001 season. During spring break of 2000, Respondent took his baseball team to Orlando and Sebring. The purpose of the trip was to allow the team to play two high-school baseball games against teams from different regions of the state and to visit an Orlando theme park. The trip took place toward the end of the season, prior to the commencement of the district tournament. The Orlando trip extended from Sunday, April 16, through Wednesday, April 19. Twenty-four student athletes went on the trip. In addition to Respondent, the other adults supervising the students were assistant coaches Reynaldo Nieves, Joseph Leone, and Rex Nottage. Respondent's wife was also with him, as were several parents, but they did not share with Respondent and the assistant coaches supervisory responsibility for the students. On arriving in the Orlando area early in the morning, the group first visited Islands of Adventure, a theme park. They finally reached their hotel at about 8:00 p.m. Respondent gathered the students together and gave them directions as to where they could go. He told them they could not leave the motel property without the permission of a coach. Some students wanted to eat; most wanted to shower. Respondent told them they had to be in their rooms by 11:00 p.m. and their lights must be out by midnight. Respondent warned them that he and the other coaches would perform bed checks at these times. Respondent and his wife had arranged the rooms so that the group was together at the motel. Their rooms were on the second or third floor of the motel. Each room accommodated four students. Respondent and his wife were in a room, Mr. Leone was in a room, and Mr. Nieves and Mr. Nottage shared a room. The students' rooms were between the rooms of the adults to enable the adults to exercise closer control over the students. At some point prior to the first bed check, the older students began entering the rooms of the younger students, by trick or by force. A large group of the older students would then overpower the younger student and, typically, apply Icy Hot liniment to a towel and then to the testes of the student. The students were aware that this hazing was likely to occur during this trip. Seven of the students were hazed by nearly all of the remainder of the team. Prior to being hazed himself, D. B. was aware that other students had been hazed and was aware of the form of the hazing because some of the other students had come to D. B.'s room and asked to use the shower. D. B. was a junior, but this was his first year on the varsity, and he knew that the older students would try to haze him too. However, he did not try to contact one of the coaches or parents to intervene in the half hour that D. B. estimates elapsed between the hazing of the last of the other students and his hazing. As had happened to most of the other hazed students, most, if not all, of the older students on the team entered D. B.'s room, pulled down his pants, and applied Icy Hot and shaving cream to his genital area. D. B. yelled and struggled against four or five students on various parts of his prone body. He sustained some minor scratches while he was held down for about one minute. As soon as he was released, D. B. took a shower. He chased the remaining students out of his room, swinging a belt and yelling. While in the shower, D. B. was so angry that he threw soap and shampoo containers in the shower stall. About ten minutes after D. B. was hazed, Mr. Nieves was roaming the rooms and entered D. B.'s room. Petitioner contends that Respondent had allowed Mr. Nieves and Mr. Nottage to leave the motel for dinner from 8:00 p.m. to 10:45 p.m. If so, Respondent, his wife, and Mr. Leone could adequately supervise the students occupying the six rooms between them. However, D. B. testified that the hazing took place around 9:00 to 9:30 p.m., so, if Mr. Nieves arrived ten minutes later, he was gone only until 9:10 to 9:40 p.m. Either way, the record does not reveal any irresponsibility on Respondent's part in allowing his two assistant coaches to leave him, his wife, and Mr. Leone to supervise 24 students for even three hours. When Mr. Nieves looked into D. B.'s room, he found D. B. in a bad mood, angrily throwing things around the bathroom. The door to D. B.'s room was open, so Mr. Nieves walked inside and asked if he was okay. D. B., who was wearing only a towel wrapped around his waist, did not answer, but left the bathroom and stood in front of the wall air conditioning, unit, which was blowing cold air. Mr. Nieves saw about five marks on D. B.'s back and saw that D. B. was beet red. The marks appeared as though someone had been grabbing him. Mr. Nieves offered to get Respondent, and D. B. said to do so. Mr. Nieves thought that D. B. had been wrestling or something. His visit to D. B.'s room had occurred not long before the first room check. Mr. Nieves walked down the hall to Respondent's room and found Respondent inside. Mr. Nieves informed Respondent that D. B. wanted to talk to him. He told Respondent that it looked like something was wrong. Respondent and Mr. Nieves returned to D. B.'s room. They arrived there about three minutes from the time that Mr. Nieves had left the student's room. Respondent entered D. B.'s room ahead of Mr. Nieves and found D. B. standing in front of the air conditioning fan, holding the towel open like he was cooling down. In a conversation that lasted about 30 seconds, Mr. Nieves said to D. B., "Coach is here. Tell him what's wrong." Respondent added, "What's wrong?" To these inquiries, D. B. replied, "Nothing. Don't worry about it." Mr. Nieves and Respondent asked about the red marks, but D. B. said they were nothing and everything was fine. D. B. testified that he did not disclose the hazing because he knew that Respondent would punish the team. He assumed that the team would be upset with D. B. for telling the coach that they had done something of which Respondent disapproved. Somewhat irritated that D. B. had asked to see Respondent and three minutes later declined to tell him anything, Mr. Nieves left the room with Respondent. They then completed the bed check, and Mr. Nieves did not see Respondent again that night. However, Mr. Nieves returned to D. B.'s room about a half hour later. He found D. B. still standing by the air conditioning fan. Mr. Nieves told D. B. that it was not fair to Mr. Nieves to say to Respondent that nothing was wrong. Mr. Nieves then asked if something was wrong. D. B. replied, "They got me, coach." Mr. Nieves did not know what he meant, but thought that D. B. meant some sort of rough-housing. Mr. Nieves asked D. B. why did you not say something to Respondent. Mr. Nieves spent about 15 minutes in D. B.'s room, but did not learn anything more specific. However, D. B. expressed considerable anger to Mr. Nieves. The Icy Hot that came into contact with D. B.'s penis was most painful. The next morning, the pain was somewhat reduced. Early that morning, the team went to a baseball field to prepare for a game that day. They did a lot of situational baserunning so the fielders could practice. Because D. B. was not a starter, he and the other nonstarters had to do much of the baserunning. He displayed no problems running in the morning. However, hours later, during the pregame practice, a ball was hit toward D. B. in the outfield. He charged it, but it got by him. Instead of turning and running after the ball, as Respondent required of all players, D. B. turned and walked toward the ball. Seeing D. B. and another student not hustling, Respondent pulled them off the field. When Respondent demanded to know why D. B. had not run after the ball, D. B. said that "my balls are on fire." D. B. had a poor attitude at times and was stubborn. Without responding meaningfully to D. B.'s explanation, Respondent benched both players for the entire game. D. B.'s explanation is discredited due to his ability to run without impediment in the morning. D. B. had called his parents Monday at around noon and had told them what had happened the prior evening. D. B. called them again after the afternoon game. During the first call, D. B.'s parents told him to defend himself if necessary and not to worry about talking to Respondent about the hazing. Respondent had not been feeling well Sunday night. By the time of practice Monday morning, his throat was so sore that he had to have his assistant coaches direct the students on the field and yell instructions. After the game, in which Respondent's team had played poorly and lost, Respondent spoke only briefly to the team and allowed Coach Nottage to yell at the students to fire them up and make them work harder. After the team had returned to the motel, Mr. Nieves talked to D. B.'s roommates. He was somewhat concerned about D. B. because, after the game, when he had asked the student what was wrong, D. B. had only laughed as if he were mad. The roommates talked vaguely about Icy Hot, but they were unwilling to be more specific. Around 8:00 or 9:00 p.m. Monday at the motel, D. B. came to Respondent's room and asked if he could talk to the coach for a minute. Respondent said he could. D. B. then told Respondent that he had had Icy Hot put on his testes. Whispering, Respondent asked if he was alright and what did D. B. want Respondent to do about it. The record is unclear whether he asked this in a challenging or inquisitive tone. D. B. did not add more details. On Tuesday morning, the team departed Orlando in vans headed for Sebring, where they were to play another game Tuesday night. Respondent had been quite sick Monday night, unable to swallow or talk. By Tuesday, he was even more sick. No one spoke to him about D. B. or hazing. With considerable effort, Respondent was able to escort the team to the Sebring motel, and then he went directly to a nearby hospital emergency room. Diagnosed as having pharyngitis, Respondent obtained an injection of antibiotics, which provided him relief the next day. Scheduling problems resulted in postponing the Sebring game, so that the team did not return to the motel until after 11:00 p.m. Respondent directed the students to go directly to their rooms and told them that there would be a midnight bed check. Late the next morning, Wednesday, the team left Sebring to return to Fort Lauderdale, where they arrived at 3:00 p.m. One of the parents traveling with the team told Respondent at a gas stop that D. B. had called his parents. Respondent summoned D. B. and complained about D. B. calling his parents without first informing Respondent of the problem. The conversation was brief because the group was waiting in their vans. D. B. replied, "Well, coach, you know what happens." Respondent answered, "I don't know what happens. Go get in your van." On the way back to Fort Lauderdale, Mr. Nieves told Respondent what he knew about hazing in the form of older students applying Icy Hot to the genitalia of younger students and, in some cases, paddling younger students. Respondent expressed his frustration that D. B. had not complained to him about the hazing. When they returned to Fort Lauderdale, Respondent told D. B. that he wanted to speak to him and his father, who was there to pick him up. However, D. B. and his father left the school without speaking to Respondent. Respondent decided to call a team meeting to find out what had happened. Respondent called D. B.'s mother to assure that D. B. would come to the meeting, but she said that he was at work and that she had already called the school board. D. B. was not at work. In the team meeting, Respondent warned the students that hazing was very serious. He asked for those persons directly and indirectly involved to identify themselves. Various students began raising their hands, admitting to various levels of involvement, and Mr. Nottage recorded their names, at Respondent's direction. Respondent then warned the students that the school board was involved and there could be criminal punishments for certain persons. He told the students that there was nothing that he could do about these consequences, but he would take his own actions. At this point, many of the students began retracting admissions. Feeling that the notes had become useless, Respondent obtained the notes from Mr. Nottage and discarded them later that weekend. Prominent among the many differences in testimony concerning the events of this trip and its immediate aftermath is a difference in recollection between Respondent and Mr. Nieves concerning a conversation between the two of them following the meeting. Mr. Nieves testified that Respondent instructed him to deny that the notes existed, and Respondent denied that this is true. Such dishonesty, if true, would merit punishment. It is possible that Respondent did ask Mr. Nieves to conceal the truth in order to protect Respondent's students, who had made confessions prior to understanding the potential administrative and criminal consequences. Perhaps Respondent regretted his role in securing this inculpatory information. On the other hand, Mr. Nottage, as well as over 22 students were at this meeting (another student had failed to attend), so Respondent had to know that such a concealment was unlikely to go undetected. Most importantly, though, Mr. Nieves was a most unconvincing witness. His recollection of details was poor, contradictory, and entirely inconsistent with his apparent intelligence. His demeanor was poor. The Administrative Law Judge was left with the opinion that Mr. Nieves was lying at the time that he first provided statements concerning the events--for some reason, trying unfairly to inculpate Respondent or to exculpate himself--or he was lying at the hearing--belatedly, trying to protect Respondent. On balance, it is impossible to credit Mr. Nieves' testimony on this crucial point. After talking the matter over with Mr. Nieves and Mr. Nottage (Mr. Leone had already left before the meeting), Respondent decided to punish the students as best he could by making them run. Those who had actually touched the younger students had to run 10 miles. Older students who had stood by and encouraged or supported the hazing had to run an intermediate distance. Even the victims, such as D. B., had to run because they had not reported the hazing, but their distance was the shortest. The team had a game the next morning. Late in the afternoon or early in the evening on Thursday, Respondent called his supervisor for athletics, the Coconut Creek High School athletic director, and reported the hazing in general terms. The athletic director told Respondent that he had done the right thing by calling him and said to come see him Monday, when school was back in session. On Saturday morning, Respondent required the students to run the distances that he had determined appropriate. He also informed the team that he would be recommending to the principal that the baseball team not take field trips. The athletic director later suggested that Respondent not make that recommendation. D. B. and his parents have filed a civil action against the school board for damages arising out of the incident. School officials have known that hazing has been a problem in the past at Coconut Creek High School, although more with the soccer team. In 1997, the athletic director asked Respondent, as the baseball head coach, to draft a letter stating a policy prohibiting hazing. Addressed to the parents of baseball players, the letter states in part: "The athletic department has a policy of zero tolerance when it comes to "initiating" or "hazing" a fellow student. Anyone guilty of participating in a hazing or a form of initiation will be immediately dismissed from the team." Respondent and the athletic director signed the letter. At the start of the 2000 season, Respondent warned the students on the team that he would not tolerate any sort of misbehavior, including hazing. Respondent had not been aware of any hazing incidents on the baseball team since 1997. As already noted, other students knew of the continuation of the practice. Some of the parents of the older students also knew of the practice, at least as it had been inflicted on their sons. However, it does not necessarily follow that what a student shares with a parent, he also shares with his coach. Petitioner has failed to prove incompetency, lack of fitness, inefficiency, or incapacity on the part of Respondent. Nor has Petitioner proved immorality. The evidence does not establish that Respondent knew or had reason to know that hazing was about to occur or that hazing had occurred. At all times, Respondent was in charge of 24 students, and, most of the time, he was sick--after Sunday, very sick. The scrutiny that Respondent could reasonably be expected to give the D. B. situation, especially given the student's reluctance to make a straightforward declaration of what happened, must be assessed n light of these circumstances. As the last person to be hazed, D. B. had ample opportunity to alert the coaches. After the hazing, D. B. repeatedly declined to disclose the problem to Respondent. D. B. knew that Respondent did not condone hazing. D. B. knew that, rather than ignore a hazing complaint, Respondent would punish the responsible players, and this would draw unwanted attention to D. B. Seeking advice from his parents, D. B. was reinforced in his earlier determination not to seek the effective remedies that he knew were available within the structure of the team. Petitioner has also failed to prove misconduct in office. Again, Respondent's supervision of the students was adequate. His investigation was sufficient for imposing intra- team discipline. His apparent departure from school policy of dismissal from the team may be explained by Respondent's awareness that the school board and possibly law enforcement would also investigate the matter and impose their own sanctions; presumably, the athletic department policy was intended to operate in isolation. Although Respondent could have informed the athletic director of the problem Wednesday night or Thursday morning, Respondent did so later Thursday. This brief delay caused no prejudice, as Respondent's supervisor assured Respondent that he had done the right thing and he would visit him the next Monday.
Recommendation It is RECOMMENDED that the School Board of Broward County, Florida, enter a final order dismissing the Administrative Complaint. DONE AND ENTERED this 20th day of September, 2001, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 20th day of September, 2001. COPIES FURNISHED: Dr. Frank Till Superintendent School Board of Broward County, Florida K.C. Wright Administration Building 600 Southeast Third Avenue Fort Lauderdale, Florida 33301 Honorable Charlie Crist, Commissioner of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Carmen Rodriguez Carmen Rodriguez, P.A. 9245 Southwest 157th Street, Suite 209 Miami, Florida 33157 Robert F. McKee Kelly & McKee, P.A. Post Office Box 75638 Tampa, Florida 33675-0638 Jerry W.Whitmore, Bureau Chief Bureau of Educator Standards Department of Education 325 West Gaines Street Suite 224-E Tallahassee, Florida 32399-0400
Findings Of Fact Respondent, Henry, was employed as a sixth grade mathematics teacher at Inverness Middle School, Citrus County, Florida, on May 3, 1977. Henry has had some 23 years service as a teacher in Citrus County. On that day Henry was on lunch duty, which required him to maintain control of the students on the play ground after the midday meal. At approximately Noon, Barry Allen Remley and Robert Lee Thomas, both twelve years old and students in grade six at the Inverness Middle School, were fighting on the play ground. A large group of children surrounded the boys, cheering on their particular favorite in the affray. Henry proceeded to the altercation and instructed the boys to stop the fight. Henry's instructions were heard by at least one of the participants in the fight but they were disregarded. Henry pulled off the belt he was wearing, doubled it up and held the buckle in his hand. Henry attempted to pull the boys apart, without success, and at that time began striking the boys with the belt for the purpose of stopping the fight and separating them. The fighting stopped almost immediately at which time Henry ceased using the belt. However, one of the participants, Robert Lee Thomas, turned around and struck Henry. The children were taken by Henry to the principal's office but because none of the school administrative personnel were in the office, discipline was deferred to another time. It is proposed by Petitioner's counsel that it be found as a matter of fact that Robert Lee Thomas received injuries and suffered an acute anxiety reaction because Henry struck him with the belt. However, such a conclusion is unsupported by the evidence and, indeed, is contradicted by the witnesses who testified that the blows were "easy hits", "a tap" or "like your parents will give you a paddling." Another witness, Chris Atkins, testified that, in his judgment, the taps received by the boys with the belt were less than what he got at home. Robert's physician was unable to testify that the anxiety reaction was related to the incident and the very minor injuries sustained by Robert may just as easily have been caused by the fight as the belt. Accordingly, no finding is made that an unreasonable amount of force was used by Henry.
