Findings Of Fact At all times relevant to this inquiry Respondent has held Florida Teaching Certificate No. 145121, issued by the Department of Education for the State of Florida, covering the area of Art. That certificate is valid through 1993. Respondent had been employed by the Duval County School Board for a period of twenty-seven years at the time of hearing. He had been assigned as an art teacher at Jefferson Davis Junior High School in that school system for the last twenty-six years of his teaching duties. Sherry Hoefling-Tobia was a student of the Respondent in the second semester of the 1971-72 school year and for all of the 1972-73 school year. She was also a member of the yearbook staff which the Respondent sponsored in the 1972-73 school year. The student was born on October 10, 1957. She attended the classes described in the eighth and ninth grade. At times the student Sherry Hoefling-Tobia, and other students, would stay after class in the Respondent's classroom while attending junior high school. The student Sherry Hoefling-Tobia while a student in the Duval County School System confided in the Respondent concerning her relationship with her family. During the summer of 1973 the student Sherry Hoefling-Tobia was enrolled in an art summer school where Respondent taught. Respondent did not teach her per se but did take photographs of the student, and other students who were enrolled in the program. Respondent also gave her rides to and from the camp. After the student Sherry Hoefling-Tobia finished her studies at Jefferson Davis Junior High in the ninth grade, she attended high school in Duval County and graduated following her completion of the eleventh grade in the school year 1974-75. While in high school she would visit the Respondent at Jefferson Davis Junior High. After graduating from high school and while attending Florida Community College of Jacksonville, a junior college, Sherry Hoefling-Tobia entered into a sexual relationship with the Respondent. Having considered the testimony and exhibits presented, this is the first occasion wherein the evidence is clear and convincing that the Respondent and Sherry Hoefling-Tobia had a sexual relationship.
Recommendation Based upon a consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That a Final Order be entered which dismisses the administrative complaint against the Respondent. DONE and ENTERED this 29th day of May, 1991, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of May, 1991. APPENDIX CASE NO. 90-4929 The following discussion is given concerning the proposed facts of the parties. Petitioner's Facts Paragraphs 1 through 3 are subordinate to facts found. Paragraph 4 is subordinate to facts found with the exception that the date of birth is October 10, 1957. Paragraph 5 is not necessary to the resolution of the dispute. Paragraphs 6 and 7 are subordinate to facts found. Paragraph 8 in the first sentence is not necessary to the resolution of the dispute. The remainder of Paragraph 8 through Paragraph 11 are not accepted Paragraph 12 is not necessary to the resolution of the dispute. Paragraph 13 is subordinate to facts found. Paragraphs 14 through 19 are not accepted. Paragraphs 20 and 21 are subordinate to facts found. Paragraphs 22 through 25 are not accepted, with the exception of Paragraph 24 which is subordinate to facts found. Paragraph 26 is subordinate to facts found. Paragraph 27 is not accepted. Paragraph 28 is not necessary to the resolution of the dispute. Paragraph 29 is subordinate to facts found in the suggestion of sexual intercourse with the Respondent during summer 1975 and is not necessary to the resolution of the dispute as it suggests a relationship with another person beyond the time of her experience beyond graduation from high school. Paragraph 30 is not necessary to the resolution of the dispute, nor are the first two phrases in Paragraph 31. The last phrase in Paragraph 31 is not accepted. Paragraphs 32 and 33 are not necessary to the resolution of the dispute. Paragraph 34 is not accepted in its suggests Respondent abused Sherry Hoefling-Tobia while she was a student. Paragraphs 35 through 37 are not accepted. Paragraphs 38 and 39 are not necessary to the resolution of the dispute. Paragraphs 40 through 42 are not accepted. Paragraphs 43 and 44 are not relevant given the facts found. Respondents's Facts Paragraphs 1 and 2 are subordinate to facts found. Paragraph 3 and 4 are not necessary to the resolution of the dispute. Paragraphs 5 through 9 are subordinate to facts found. Paragraphs 10 through 16 are not necessary to the resolution of the dispute. Paragraphs 17 and 18 are not relevant. Paragraph 19 is subordinate to facts found. Paragraphs 20 through 21 are not relevant. Paragraph 22 is subordinate to facts found. Paragraphs 23 through 26 are not necessary to the resolution of the dispute. Paragraph 27 and 28 constitute argument. Paragraph 29 is not necessary to the resolution of the dispute. Paragraphs 30 and 31 constitute argument. Copies furnished: Lane Burnett, Esquire 331 East Union Street, Suite 2 Jacksonville, FL 32202 Stephen J. Donohoe, Esquire 437 East Monroe Street, Suite 1 Jacksonville, FL 32202 David A. Hertz, Esquire Duval Teachers Union 1601 Atlantic Boulevard Jacksonville, FL 32207 George A. Bowen, Acting Executive Director Education Practices Commission 301 Florida Education Center 325 West Gaines Street Tallahassee, FL 32399-0400 Jerry Moore, Program Director Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, FL 32399-0400
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
Findings Of Fact During the 1985-86 school year Respondent Gregory Hunter Stephens was a student in the tenth grade at Miami Sunset Senior High School. On April 18, 1986, during the lunch period Respondent drove into the faculty parking lot in his Corvette with the police following closely behind. It was determined that during his lunch break Respondent had been driving his Corvette in a nearby condominium development threatening residents and throwing beer cans on the lawns. The residents had summoned the police. An Assistant Principal held a conference with Respondent's father whose response was that the police should have better things to do than to bother his son for drinking beer and driving around during his lunch break. Respondent was given a three-day suspension. On May 22, 1986, Respondent got into a fight in class, a Group III violation of the Code of Student Conduct. A conference was held with Respondent's father, and Respondent was given a ten-day suspension. Although other informal discussions were held with Respondent's father during that school year, by the end of the third grading period Respondent's grades were one "C," one "D," and 4 "Fs." His absences from his classes during the third grading period alone ranged between 2 and 13. He received only a "3" for his effort in each and every class. During the 1985-86 school year, Respondent was absent 95 days out of the 180-day school year. On March 3, 1987, an Assistant Principal observed Respondent leaving the campus during Respondent's second-period class. He stopped Respondent and gave him a warning. A few minutes later he caught Respondent again attempting to leave. Respondent's mother was contacted, and Respondent was given a "work detail detention." On April 2, 1987, a fight broke out off campus between a group of Latin students and a group of Anglo students. On the following day Respondent admitted to an Assistant Principal that he was one of the participants. All of the students involved (including Respondent) were suspended for three days for that Group III Code violation. On October 19, 1987, Respondent was nearly involved in a collision in the parking lot. Respondent got out of his car and started pushing the other driver. A fight ensued. Respondent's parents were contacted, and he was given a ten-day suspension. By the time of the October 19th incident, Respondent had already been absent 6 days that school year. Further, although the Assistant Principal had two conferences with Respondent's father during the month of October, Respondent was receiving one "C," one "D," and five "Fs" in his classes. A Child Study Team was convened, and a meeting was held on November 3, 1987. Respondent and his parents refused to attend. The Team recommended that Respondent be transferred to Douglas MacArthur Senior High School-South, based upon the October 19, 1987, incident, his failing grades during the most-recent two years, and Respondent's chronic aggressive behavior which constituted a threat to the welfare of the other students. It was determined that Respondent required assistance a normal school could not provide and that a structured environment would be more appropriate since the educators at Miami Sunset Senior High School had unsuccessfully attempted to modify Respondent's behavior by conferences between Respondent and a counselor, meetings between Respondent's parents and assistant principals, indoor suspensions, outdoor suspensions, and work detail suspensions
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered assigning Respondent Gregory Hunter Stephens to the opportunity school program at Douglas MacArthur Senior High School-South until such time as his performance reveals that he can be returned to the regular school program. DONE and RECOMMENDED this 29th day of March, 1988, at Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675, Filed with the Clerk of the Division of Administrative Hearings this 29th day of March, 1988. COPIES FURNISHED: JOSEPH A. FERNANDEZ, SUPERINTENDENT SCHOOL BOARD OF DADE COUNTY 1410 NORTHEAST SECOND AVENUE MIAMI, FLORIDA 33132 FRANK R. HARDER, ESQUIRE 175 FONTAINEBLEAU BOULEVARD SUITE 2A-3 MIAMI, FLORIDA 33172 LANA STEPHENS 15490 S.W. 85TH LANE MIAMI, FLORIDA 33183 MADELYN P. SCHERE, ESQUIRE ASSISTANT BOARD ATTORNEY DADE COUNTY PUBLIC SCHOOLS 1410 NORTHEAST SECOND AVENUE MIAMI, FLORIDA 33132 PHYLLIS O. DOUGLAS, ESQUIRE ASSISTANT BOARD ATTORNEY DADE COUNTY PUBLIC SCHOOLS 1410 NORTHEAST SECOND AVENUE MIAMI, FLORIDA 33132
The Issue The issues in this case are whether the Respondent committed the violations alleged in the Notice of Specific Charges and, if so, a determination of the appropriate penalty for such violations.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: The School Board is responsible for the operation of the public schools within the school district of Miami-Dade County, Florida. At all times material to the facts of this case, the Respondent was a teacher employed by the School Board and was assigned to a public school within the district, Hialeah Senior High School (Hialeah High). The Respondent has been a teacher employed by the School Board for years. Respondent possesses a professional service contract pursuant to Section 1012.33, Florida Statutes. The Respondent is a business education teacher. Prior to the incident giving rise to this case, the Respondent had not been the subject of any disciplinary action by his employer. Prior to teaching at Hialeah High, the Respondent had been teaching adult students at another school. The adult students were highly motivated to learn and provided little in the way of classroom discipline problems. In December of 2003, the Respondent was assigned to teach English for Speakers of Other Languages (ESOL) classes to high school age students at Hialeah High. At Hialeah High the Respondent's classes were populated primarily by students who had very limited proficiency in the English language and who, for the most part, had very limited experience in an American classroom setting. Many of the students had only recently arrived from a variety of Spanish-speaking countries, including Mexico and many Central and South American countries. These students, both because of their limited English language skills and their limited exposure to an American classroom, presented more than the usual discipline challenges. At the time of the incident giving rise to this case, the Respondent had been teaching the ESOL classes at Hialeah High for only a few weeks. A frequently recurring problem in the Respondent's classroom was that some of the students would use the classroom computers to play music CDs and would interrupt the rest of the class by turning up the volume through the external speakers on the computers. This problem apparently came to a head on January 27, 2004, when an honor student asked the Respondent if it was necessary for the class to be interrupted by the students who were playing music CDs on the classroom computers. After school on January 27, 2004, the Respondent decided to solve the music problem by cutting the audio wires that ran from the monitor to the external speakers on each of the classroom computers. The Respondent chose to cut the audio wires because the wires were hardwired into the computer monitors and could not readily be unplugged. He cut the speaker wires on at least 25 of the computers in his classroom. The Respondent's conduct in this regard was not for the purpose of damaging school equipment, but was a misguided and poorly thought out effort to prevent further music playing by the misbehaving students. The cutting of the speaker wires was an inappropriate way in which to address student misconduct in the classroom. More appropriate ways to have prevented such misconduct or to have addressed such misconduct after it occurred would have been to take such measures as implementing and enforcing classroom rules when he first began teaching the ESOL classes, making disciplinary referrals, seeking assistance from the school administration, or assigning misbehaving students to indoor suspension. Although the computers are operable, they have no external speakers and, therefore, cannot make loud sounds. The inability to make loud sounds compromises the extent to which the computers can be used for certain applications. The Respondent's acts of cutting the speaker wires were intentional acts that damaged the computers. Damage to the computers caused by intentional acts is not covered by the warranties on the computers. A representative of the Dell computer company examined the damage to the computers and stated that Dell did not make repairs to that type of damage. The best solution the Dell representative could propose was to replace all of the monitors with cut speaker wires with new monitors that had new external speakers attached. The Dell representative stated that such replacement would cost $129.00 per computer. The damage caused by the Respondent's cutting of the computer wires can be readily and inexpensively repaired. The parts necessary to repair the computers cost about $2.00 for each computer. The time necessary to repair the damaged computers is approximately five minutes per computer. The Respondent has already purchased with his own funds the parts necessary to repair all of the computers in his classroom, and he has delivered those parts to the principal at Hialeah High. The Respondent volunteered on several occasions to perform the work necessary to repair the computers he damaged. The Respondent's offers to perform the repair work were declined. For reasons not adequately explained in the record in this case, the computer technicians at Hialeah High have not yet repaired the subject computers. It would take approximately two hours of technician time to repair all of the computers in the Respondent's classroom. The damage to the computers caused by the Respondent could have been repaired within a very few days of the date on which the damage occurred. When asked about the damage to the computer wires, the Respondent readily admitted what he had done and readily acknowledged that it was a foolish and inappropriate thing for him to have done. He did not hesitate to accept responsibility for the consequences of his conduct and, as mentioned above, bought the necessary parts and offered to do the necessary repair work. Respondent’s intentional destruction of School Board property failed to reflect credit upon himself and on the school system, and showed a lack of professional judgment. On September 21, 2004, the Respondent’s principal and the assistant superintendent who had authority over Hialeah High recommended a 30-work day suspension without pay. The School Board, at its regularly scheduled meeting of December 15, 2004, took action to suspend the Respondent without pay for 30 workdays.
Recommendation Based on the foregoing, it is RECOMMENDED that a final order be issued in this case suspending the Respondent without pay for one week and requiring the Respondent to pay for the cost of the repairs made necessary by his foolish conduct. DONE AND ENTERED this 12th day of April, 2005, in Tallahassee, Leon County, Florida. S MICHAEL M. PARRISH 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 12th day of April, 2005. COPIES FURNISHED: Mark Herdman, Esquire Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684 Madelyn P. Schere, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132 Dr. Rudolph F. Crew, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 912 Miami, Florida 33132 Honorable John Winn Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Daniel Woodring, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400
Findings Of Fact Based upon my observation of the witnesses, the documentary evidence received and the entire record compiled herein, I hereby make the following findings of fact: The Respondent, Richard A. Cohan, was employed by the Dade County School Board as a classroom teacher continuously from the time of his initial hiring in August 1970 until November 19, 1986, when he was suspended by Petitioner. During Respondent's employment with the Dade County School Board, he has taught at Shenendoah Junior High School, Booker T. Washington Junior High School, Kinloch Park Junior High School, Kensington Park Elementary School and Miami Edison Senior High School. Respondent was employed as a continuing contract teacher at Miami Edison Senior High School at all times relevant to the alleged misconduct herein. 1984-85 School Year Respondent's performance as a classroom teacher was satisfactory until the 1984-85 school year when he was absent 41 days from school. Frederick Sturgeon, Principal of Miami Edison Senior High School, made a notation concerning the absences on the Respondent's 1984/85 annual evaluation. 1985-86 School Year The Respondent's absenteeism continued into the 1985-86 school year. On November 5, 1985, Sturgeon held a conference for the record with Respondent because he had been absent 27.5 days since the beginning of the school year. Sturgeon was also concerned because Respondent failed to follow established school procedures when reporting his absences. During the 1985-86 school year, teachers who anticipated an absence were required to call a specific telephone number at the school and leave a taped message. The school secretary could check the messages during the night and arrange for any needed substitutes. The Respondent, however, usually called the school on the morning of the day he was absent. Thus, the school would have very little time in which to secure a substitute teacher who was specifically suited to teach the subject matter of the Respondent's classes. At the November 5, 1985 conference, Respondent was given specific instructions by Sturgeon to: Report any future absences to Assistant Principal Weiner personally and to discontinue calling the tape recording machine to report absences; Ensure that weekly lesson plans were available so that a substitute teacher would be able to continue with the lesson for that day; and Have on file with the school three days of "emergency lesson plans" dealing with general academic skills. On February 28, 1986, Sturgeon held another conference with the Respondent. The Respondent had been absent 5 times since the November 5, 1985 conference. On three of the days, Respondent did not call to report his intended absence. Sturgeon reiterated the same directives given Respondent during the November 5, 1985 conference. As of April 24, 1986, Respondent had been absent 58.5 days since the beginning of the school year. Because Respondent's absence pattern made it difficult to schedule a face to face conference, Sturgeon wrote a letter to Respondent expressing his concern over the high number of absences and the fact that from March 18, 1986 through April 24, 1986, there were 26 days during which the Respondent had not furnished lesson plans for his classes. Sturgeon again reiterated the directives of the November 5, 1985 conference. On May 12, 1986, a conference for the record was held with Respondent at the school board's Office of Professional Standards. Present at the conference were Assistant Principal Weiner, the Respondent, Dr. Gil (a coordinator in the office), and a union representative. The conference was held to discuss Respondent's performance assessment and future employment with the school board. The Respondent indicated his absences during the year were due to his grandmother's illness, the fact that he was not functioning well and the fact that he was taking medication for an upper respiratory illness. At the May 12, 1986 conference, the Respondent was directed to call Ms. Weinter directly to report any absences and to return his grade book to the school by May 13, 1986. Dr. Gil also determined that Respondent should be evaluated by a physician and an appointment was scheduled for the Respondent with Dr. Roger Rousseau, a psychiatrist. The Respondent first saw Dr. Rousseau on May 15, 1986. On May 20, 1986, the Respondent had still not furnished the grade book to the school. Ms. Weiner directed Respondent, by way of a memorandum, to produce the grade book as previously requested. On May 30, 1986, Sturgeon completed an annual evaluation in reference to Respondent's teaching performance. Respondent was rated "unacceptable" in the category of professional responsibility. On June 4, 1986, Sturgeon discussed with Respondent his most recent absences (May 29th to June 3rd) and the fact that he had not called Ms. Weiner to report them, had not provided lesson plans for two of the days and had still not provided the grade book to the school. The Respondent stated that he would comply with the directives in the future and provide his grade book to the school. Respondent was absent from June 6, 1986 until June 19, 1986. By letter dated June 11, 1986, Sturgeon requested that Respondent provide final examinations for his students and again directed that Respondent furnish the school with his grade book. On June 19, 1986, Sturgeon held a conference with the Respondent. The Respondent had not provided final examinations for his classes (one of the other teachers had to prepare the final exams), had not produced the grade book and had not provided lesson plans for use during his absences. The Respondent indicated to Sturgeon that on occasions, he attempted to contact Ms. Weiner but was unable to get through to her and at other times he forgot to contact her. The Respondent also informed Sturgeon that he was having a personal problem that he could not share with the school, and that the personal problem was having such an effect on him that he didn't feel that he could comply with the directives. On July 17, 1987, a conference was held at the school board's Office of Professional Standards, between Sturgeon, the Respondent, Dr. Gil and a union representative. The purpose of the meeting was to review Respondent's performance over the previous school year. In Sturgeon's opinion, the Respondent's students had not been graded properly during nearly the entire year, final exams had to be administered which did not adequately assess the students' progress and the students had not reached the course objectives. At this time, the Respondent was a little more specific about the problem that he had mentioned to Sturgeon earlier and stated that he was having a mental problem and that he had experienced a series of traumatic experiences which had affected his ability to attend school. At the conclusion of the July 17, 1987 conference Sturgeon decided to recommend a short term of suspension, a medical examination and a period of controlled monitoring during the next school year. The recommendation was approved by the school board and Respondent was suspended for ten work days beginning the 1986-87 school year and was placed on probation for a 45 day monitoring period. The Respondent did not contest the suspension. 1986-87 School Year The Respondent returned to work from his suspension on September 16, 1987. Classes for the new school year had already commenced. Prior to returning to work, Respondent had gone to school and was given a teacher handbook in biology by Ms. Weiner. Respondent prepared lesson plans and tests based on the teacher handbook he had been given. When Respondent returned to school, he was given a new teacher handbook for biology. Respondent had to re-do all of his lesson plans and tests. In addition, he discovered that none of his classes had been issued textbooks. Respondent also received a folder filled with five classes worth of work for the proceeding 15 days which was assigned by the substitute teacher. On September 29, 1986, Ms. Weiner conducted an observation of Respondent's class. Respondent was rated "acceptable" in five categories but "unacceptable" in the area of assessment techniques. This rating was based on the fact that there was no work done by the students contained in the student folders, his grade book contained only one entry grade per student for only one week and students were allowed to grade other students' essay-type examinations. Weiner gave Respondent a prescription for improving his deficiencies which included the directive that he conduct at least two formal assessments of student progress per week and maintain student folders to keep evaluative items. During October 1986, the Respondent was absent 15 days. Most of the absences were due to a severe intestinal flu which Respondent contracted. The Respondent failed to report his absences directly to Ms. Weiner as previously directed. On some occasions, the Respondent attempted to call Ms. Weiner, but could not get through to her on the telephone. When Respondent was unable to contact Ms. Weiner he would sometimes call the answer phone and leave a recorded message. On October 27, 1986, a conference for the record was held at the Office of Professional Standards between Sturgeon, the Respondent, Dr. Gil and a union representative. The purpose of the meeting was to discuss Ms. Weiner's observation of Respondent, his continued failure to contact Ms. Weiner directly regarding absences and his failure to file emergency plans. On November 3, 1986, Sturgeon conducted an observation of the Respondent's classroom. Sturgeon rated the Respondent "unacceptable" in the area of assessment techniques. This unacceptable rating was based on the fact that Respondent did not have any student folders and had not assigned any homework. School policy required that teachers assigns homework at least twice a week. Respondent was also rated unacceptable in the area of professional responsibility. On November 14, 1986, Ms. Weiner conducted an observation of Respondent's class and rated him "unacceptable" in the area of assessment techniques. The Respondent had no student folders, did not conduct at least two formative assessments of the students per week and there were no summative assessments of the student's progress. The Respondent admitted that he did not have formal folders and that his evaluation techniques were deficient. The Respondent stated that he was unable to employ the student assessment procedures recommended given by Ms. Weiner during the first few months of the 1986-87 school year because he was in the process of "catching up" after his return from suspension and was unable to do all of those things in such a short period of time. In addition, Respondent was hindered in his attempt to catch up because he was unable to have a lot of needed items copied because at times the machines were broken and at other times teachers with current items requiring reproduction were given priority. On November 19, 1986, Petitioner suspended Respondent from his position at Miami Edison Senior High School. Beginning in the 1984-85 school year and continuing through to the 1986-87 school year, Respondent suffered from a dysthymiac disorder referred to as neurotic depression. Respondent's condition was first diagnosed by Dr. Roger Rousseau, a psychiatrist, on May 15, 1986. At the insistence of Dr. Gil, Respondent went to Dr. Rousseau's office for an examination. Dr. Rousseau was chosen from a list provided to Respondent by Dr. Gil. Dr. Gil personally made the appointment for Respondent to see Dr. Rousseau. Respondent at first did not realize or believe that he was suffering from a mental illness and initially resisted the treatment provided by Dr. Rousseau. However, Dr. Rousseau was able to establish a psychotherapeutic relationship with the Respondent after a short period of time. After the doctor-patient relationship was established, Respondent decided to continue seeing Dr. Rousseau and kept weekly appointments from June, 1986 until November, 1986. Respondent was treated with individual psychotherapy and antidepressant medication. In November of 1986, Respondent stopped seeing D. Rousseau because Respondent moved to Atlanta, Georgia, shortly after being suspended. Neurotic depression is a serious mental illness of a cyclical nature which may be physically disabling while the afflicted person is in a pathological state of depression. The symptoms of a neurotic depression include extreme sadness, apathy, lack of motivation, inability to concentrate, psychomotor retardation, insomnia and loss of appetite. Respondent's periods of pathological depression were characterized by feelings of helplessness, hopelessness and an apathy toward outside activities, including his employment. During Respondent's depressive states he would isolate himself at home, withdraw from all social contact, neglect his nutrition and hygiene and suffer insomnia. At times, Respondent would be unaware of the passage of time and would have crying spells. In his depressive condition, sometimes Respondent knew what he was required to do, such as calling in to report an absence, but because of his despair and dejected mood, was unable to motivate himself to do anything. Respondent's apathy and inability to attend to his necessary duties was a direct result of his neurotic depression. Due to the depressive symptomatology, a neurotically depressed person might fail to perform required duties for a number of reasons. As a result of an inability to concentrate, the depressed person may be unable to receive and assimilate instructions. The depressed person having a desire to complete a required duty may lack the physical capacity to perform because mentally he or she feels unable to do so. Further, because of an unconscious, passive- aggressive need for punishment, a depressed person may neglect to perform a required duty. The Respondent was examined by Dr. Albert Jaslow, a psychiatrist, on September 15, 1986 at the request of Dr. Gil of the Office of Professional Standards. Dr. Jaslow confirmed that Respondent was suffering from a mental illness and found that Respondent had made progress with his treatments from Dr. Rousseau. Dr. Jaslow noted that Respondent had reached a state of "relative adjustment" and had begun to realize that it would be necessary for him to be involved in a psychotherapeutic relationship in order to control the negative behavioral aspects of his periods of depression. Dr. Rousseau believes that Respondent responded well to treatment after an initial period of resistance and lack of insight (which is a part of the depressive symptomatology). Dr. Rousseau feels that the Respondent was getting better during the course of therapy but will need to continue taking his medication and receiving psychotherapy in order to fully complete the recovery process and control any recurring symptoms of depression.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that: Respondent be dismissed from employment; however, said dismissal shall be held in abeyance for 2 years from the date of the Final Order contingent on the following: Respondent's present suspension shall remain in effect until the commencement of the 1987-88 school year when Respondent shall return to work; Respondent shall continued treatment with Dr. Rosseau or another qualified psychiatrist of his choice; Respondent shall maintain acceptable performance evaluation reports during the school year, overall acceptable annual evaluations and be recommended for employment by his school principal at the end of the 1987-88 and 1988-89 school years. The Office of Professional Standards, Dade County Board, shall monitor the Respondent's progress and fulfillment of the terms of the Final Order. If the Office of Professional Standards provides information by letter or motion to the school board that the Respondent has failed to meet any of the terms of this Order, the school board shall, if satisfied that the information is correct, immediately effectuate Respondent's dismissal by majority vote. If Respondent meets the requirements of the Final Order, the dismissal shall be remitted without further action. DONE and ORDERED this 28th day of July, 1987 in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of July, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4805 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Addressed in Procedural Background section. Addressed in Procedural Background section. (No finding of fact 3) Addressed in Procedural Background section. Adopted in Finding of Fact 2. Adopted in substance in Finding of Fact 3. Adopted in substance in Finding of Fact 4. Adopted in substance in Finding of Fact 5. Adopted in substance in Finding of Fact 6. Adopted in substance in Finding of Fact 7. Adopted in substance in Finding of Fact 8. Adopted in substance in Findings of Fact 9, 10 and 11. Adopted in substance in Finding of Fact 12. Adopted in substance in Finding of Fact 13. Adopted in substance in Finding of Fact 14. Adopted in substance in Finding of Fact 15. Rejected as unnecessary and/or subordinate. Adopted in substance in Finding of Fact 16. Adopted in substance in Finding of Fact 16. Adopted in substance in Finding of Fact 20. Adopted in substance in Finding of Fact 21. Adopted in substance in Finding of Fact 21. Adopted in substance in Finding of Fact 23. Adopted in substance in Finding of Fact 23. Addressed in Conclusions of Law section. Adopted in substance in Finding of Fact 24. Addressed in Conclusions of Law section. Addressed in Conclusions of Law section. Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in substance in Finding of Fact 1. Adopted in substance in Finding of Fact 1. Adopted in substance in Finding of Fact 3. Adopted in substance in Finding of Fact 4. Adopted in substance in Finding of Fact 6. Adopted in substance in Findings of Fact 8-21. Adopted in substance in Finding of Fact 9. Adopted in substance in Findings of Fact 9 and 10. Adopted in substance in Finding of Fact 10. Adopted in substance in Finding of Fact 29. Rejected as subordinate and/or unnecessary. Addressed in Procedural Background section. Adopted in substance in Finding of Fact 31. Addressed in Conclusions of Law section. COPIES FURNISHED: Frank R. Harder, Esquire 8360 West Flagler Street Suite 205 Miami, Florida 33144 William duFresne, Esquire 2950 Southwest 27th Avenue Suite 310 Coconut Grove, Florida 331133 Madelyn P. Schere, Esquire Dade County Public Schools Board Administration Building 1410 Northeast Second Avenue Miami, Florida 33136 Dr. Patrick Gray Division of Professional Standards Dade County Public Schools 1550 North Miami Avenue - Suite 100 Miami, Florida 33136 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399 Sydney McKenzie, Esquire General Counsel Department of Education Knott Building Tallahassee, Florida 32399 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1550 North Miami Avenue Miami, Florida 33136
Findings Of Fact Respondent and the Alternative Learning Center Respondent In 1974, at 22 years of age, Respondent earned his Bachelor of Science degree in social studies from Florida Memorial College, an historically black college in Miami. In his freshman year, he was named the Outstanding Freshman from Southwest Florida attending historically black colleges. At various times during his last three years of college, Respondent worked in inner-city ministries in St. Louis and New Orleans. For about five years following graduation, Florida Memorial College employed Respondent, first as Associate Director of Admissions and then as Director of Alumni-Church Relations, assistant basketball coach, head baseball coach, and head volleyball coach. After moving from Miami to Lee County, Respondent worked for a short time outside of education. At the start of the 1986- 87 school year, Respondent returned to education by accepting employment with the Lee County School District (District) as a social studies teacher at Cypress Lake High School, where he remained for two years. While at Cypress Lake High School, Respondent also served as head girls' basketball coach, head girls' track coach, assistant volleyball coach, and assistant baseball coach. While employed by the District, Respondent helped with the fathers' program at LAMP, which is an educational program operated by the District at the New Directions Center. The LAMP program provides high-school instruction for teenage mothers. Respondent also headed the District's first mentor program, which finds mentors, without regard to race, to encourage minority students to excel in an academic setting, such as in gifted and honors courses. In 1988, Respondent earned his Master of Science degree in educational leadership from Nova University. Then-Superintendent Engle named Respondent to serve as principal-on-assignment for the 1988-89 school year to recruit minority teachers for the District. Respondent was the second minority person assigned to an administrative position in the District. At the time, a federal court had entered a desegregation order against the District. In the ten years prior to Respondent's new assignment, the District had hired about a dozen minority teachers. In one summer, Respondent recruited 30 minority teachers. After completing his assignment in minority teacher recruitment, Respondent returned to Cape Coral High School as Dean of Students. He served in this position for the 1989-90 school year. Following the 1989-90 school year, Respondent was appointed the Coordinator of Educational Equity and Reassignments, in which capacity Respondent served for five years. When he assumed the job, he received a $5000 raise to about $40,000 annually. A coordinator is the lowest level of management in the District office. Coordinators are subordinate to assistant directors or, if none, directors. Directors are subordinate to assistant and associate superintendents, who are subordinate to the Superintendent. The Superintendent is appointed by the Lee County School Board. As Coordinator of Educational Equity and Reassignments, Respondent monitored the district's desegregation efforts. Due to the nature of his responsibilities, Respondent, even though only a coordinator, had direct access to the Superintendent and School Board attorney. Working closely with then-Superintendent Adams, who became Respondent's mentor, Respondent helped redraw school- attendance zones to desegregate schools. Respondent also handled racially based complaints from staff, including teachers, and generally tried to assure that poorer schools received the same resources as those enjoyed by wealthier schools. Respondent became the focus of considerable controversy while Coordinator of Educational Equity and Reassignments. One day, his young daughter answered the phone at home and heard an unidentified caller threaten, "Your nigger father is a dead man." Shortly after the murder of Superintendent Adams, Petitioner, then serving as Interim Superintendent, informed Respondent that she was removing him from his coordinator position. She created a new position for Respondent as Director of Adult Education and Dropout Prevention. Respondent received a raise from $48,000 to $55,000 annually and assumed his new duties in November 1994. Petitioner disclosed that she made the change based on concerns for Respondent's safety and complaints that she had received from the School Board and parents related to Respondent's rezoning decisions. Three months after Petitioner created Respondent's new position, she eliminated it and suggested that Respondent apply for other administrative positions with the District. Respondent and Petitioner discussed an opening at the New Directions Center. The New Directions Center occupies a three-year old facility owned and operated by the Lee County School Board. The New Directions Center comprises three separate programs: the LAMP program, the Academy, and the Alternative Learning Center (ALC). The Academy, which includes the Employment Skills Program, provides alternative education by offering its students different types of teaching strategies than are typically available at conventional schools. Academy students are not behaviorally much different from students attending regular schools in the District. Prior to the 1995-96 school year, each program at the New Directions Center had an assistant principal, and a supervisory principal was in charge of the entire New Directions Center. When she mentioned the opening at the ALC, Petitioner informed Respondent that she intended to appoint a separate principal for each of the three programs starting the 1995-96 school year. In May 1995, Petitioner appointed Respondent to serve as the new ALC Principal, starting July 1. As ALC Principal, Respondent was also the head District administrator at the juvenile detention center, Price Halfway House, and Lee County boot camp. At the time of assuming his new responsibilities, Respondent had served nine years in the Lee County School system: two years in the classroom, one year in administration at a school, over five years in administration involving minority matters at the District office, and less than one year in Adult Education and Dropout Prevention. Respondent received no training in preparation for his new assignment as a school principal. As of February 19, 1996, Respondent's District personnel file contained nothing negative, aside from some isolated suggestions recorded on classroom observation sheets. This was the file that Respondent and his attorney examined after giving the District three days' notice of their intent to examine and copy Respondent's personnel file. Discussed below is Petitioner's contention that two missing items should have been included in the file. Respondent's evaluation for his first year of teaching notes: "Excellent start as a beginning teacher in Lee County." This 1987 evaluation states: "Outstanding teacher. Should be considered for advancement to administration as soon as possible." The 1988 evaluation reports: "Excellent year-- Promoted to dean of students, Cape Coral H.S." The first administrative evaluation of Respondent is in 1989 and covers his work in minority-teacher recruitment. The 1989 evaluation states that Respondent is "an asset to our team." The 1990 evaluation, which addresses Respondent's year as Dean of Students, reports: "Charles has demonstrated his concern for young people and has spent many hours above and beyond the call of duty working with and for kids." For the first year in which Respondent was responsible for desegregation efforts, the 1991 evaluation notes that Respondent has only partially achieved a goal--namely, learning desegregation issues. However, the 1991 evaluation, which was prepared by Dr. Mary Nell Gunter, states: "Charles Daily [sic] demonstrates talent and skill in dealing with people. He is eager to do a good job and I appreciate his professional outlook." A memorandum from Dr. Gunter commends Respondent for his "positive attitude" and work in specific programs. The memorandum suggests, though, that Respondent needs to develop his skills in "facilitative leadership," which he demonstrates in "many instances," but perhaps insufficiently when dealing with "principals and school-based people." Respondent's evaluation for the 1991-92 school year is missing from Respondent Exhibit 13, which is his District personnel file. The missing evaluation apparently was completed with no remarkable comments. Respondent's evaluation for the 1992-93 school year is noteworthy because it was prepared by Petitioner, who was not yet Superintendent. This 1993 evaluation finds that Respondent has fully achieved all of his goals, one of which is: To establish effective communication to the public that would assist in dealing with the increasing cultural, demographic and social change effecting [sic] our students and community. Petitioner's narrative comments on the 1993 evaluation are: Charles Dailey is an extremely valued and important member of the Division of Administrative Operations. He has demonstrated outstanding leadership during the Desegregation process. He is a role model for every administrator in his work ethic, committment [sic], teamwork and educational values. Petitioner found that Respondent reached an effective level of performance (the only satisfactory rating offered on the evaluation form) in all categories. Categories include judgment issues, including making good decisions based on law and policy, and sensitivity issues, including tact, effective dealing with people over emotional issues, exhibiting a positive professional attitude, and perceiving the needs and concerns of other persons. Petitioner concluded the 1993 evaluation as follows: Charles must work under stress everyday in his office due to our desegregation process. He has handled this in an outstanding manner. The evaluation for the 1993-94 school year should have been performed by Dr. James Browder, who is now principal of Cypress Lake High School. Dr. Adams was murdered on February 7, 1994. Another administrator was responsible for Respondent's evaluation until April or May of 1994. Given the understandable disruption resulting from the sudden death of Dr. Adams and the administration reorganization that followed, Respondent's evaluation for the 1993-94 school year was never prepared. However, Dr. Browder testified that he had perceived no problems with Respondent of sufficient seriousness to document in an evaluation. The evaluation for the 1994-95 school year should have been performed by Assistant Superintendent Dr. Mary Santini. She assumed that position in January 1995 and may have felt unable to evaluate Respondent by the time the evaluations are due in May. Respondent has been recognized repeatedly in the educational community. The past three years, Respondent was a finalist for the Ida S. Baker award, which is given to the outstanding minority educator in Florida. Respondent was named in 1995 the administrator of the year for the southeastern United States by the Southeast Desegregation Assistance Center. During this period, Respondent has been serving as a consultant and expert witness in the Rockford (IL) School District desegregation case. The ALC In general, the ALC is the District's last-chance school for students whose disciplinary problems have resulted in their removal from their geographical schools. ALC students are the most difficult to manage in the District. Nearly all ALC students are enrolled in the ALC as an alternative to expulsion from the Lee County School System. A few students are assigned to the ALC through the juvenile justice system. Almost all of the ALC students have had serious problems with criminal activity, seriously disruptive behavior in school, and school attendance. At any given time, roughly 10-20 students attending the ALC have been convicted of felonies. On a cumulative basis for the 1995-96 school year, excluding exceptional student education (ESE) students, 80 students enrolled in the ALC sometime during the 1995-96 school year were guilty of felonies, 91 were guilty of the possession of drugs or drug paraphernalia, 29 were guilty of armed burglary or grand theft, 36 were guilty of assault or battery against a teacher or administrator, 68 were guilty of fighting with other students, 38 were guilty of possession of weapons, and numerous others were guilty of other offenses ranging from "sexual misconduct" (7) to "peeing in a bottle" (1). (Some of these students were guilty of more than one offense, and some students entered the ALC more than once during the school year, so their offenses would be counted more than once in each category.) Prior to the 1995-96 school year, the Supervisory Principal of the New Directions Center was Jeananne Folaros. The ALC Assistant Principal was Richard Hagy. The LAMP Assistant Principal was Carolyn McCollum. And the Academy Assistant Principal was John Wortham. For the 1995-96 school year, Ms. McCollum and Mr. Wortham retained their prior positions except they became principals, and Mr. Hagy and Ms. Folaros were reassigned. Respondent and the ALC When Respondent arrived at the ALC, student behavior and academics were both in need of improvement. Perhaps the most dramatic indicator of the situation was that in the prior school year Mr. Hagy had twice required hospital treatment for injuries he had received from being struck by ALC students. The school was the scene of frequent fights with students wandering in the halls and often in possession of drugs, making it hard for motivated students to work. In an effort to reduce the number of suspensions, the ALC had retained some extremely disruptive students, who sometimes threatened even the teachers. Frightened by these students, some teachers had resorted to a policy of appeasement, allowing difficult students to sleep or play cards in the classroom with academic activity going on around them, or sending these students to a separate timeout room, where they slept and played cards without the distraction of academic activity going on around them. When Respondent was first appointed as ALC Principal, he spoke with middle- and high-school principals and learned of their concerns that the ALC was a "revolving-door" program. They said that the ALC disrupted regular academic programs at their schools and inadequately served the needs of the students assigned to the ALC. District principals and ALC teachers and students reported that the ALC offered a poor educational program where students could easily avoid academic challenge. One of Respondent's first moves was to select Beth Smith as the assistant principal for the ALC. Respondent recognized that their strengths and weaknesses were complementary. She was a curriculum specialist, and he was an effective disciplinarian. After hiring Ms. Smith, Respondent formed a curriculum team consisting of her, a guidance counselor, a school psychologist, and a peer-counseling teacher to address curriculum changes. Respondent reimplemented the 45 good-day policy. This policy meant that the ALC would not return a student to his geographical school until he had 45 days of punctual attendance, good behavior, and successful academics. Respondent developed and enforced a dress code, prohibited sleeping and card games in class, and required teachers to stiffen their academic requirements. Respondent's disciplinary plan eliminated the separate timeout room, where misbehaving students had enjoyed freedom from academics. Respondent instead introduced a multi-step intervention system where the teacher first warned the misbehaving student in the classroom, then warned the student in the hallway, then placed the student in timeout in the classroom, and then sent him to Respondent, who would warn the student, assign cafeteria duty, or suspend him, depending on the seriousness of the offense. In all senses of the word, Respondent was a "hands-on" principal. Sondra Saldana, an ALC guidance counselor, best described Respondent's style when she testified that he meets students where they are. Undoubtedly, Respondent models good behavior in numerous ways. But he does not stop there. With passionate intensity, Respondent readily reveals his love and expectations for each student and satisfaction or dissatisfaction with each student's behavior. Respondent is direct and frank, not oblique or diplomatic. He demands the respect of all of his students, and he earns the respect of nearly all of them because they see that he cares about them in a vital and effective way. Many of the ALC students probably would not have responded to Respondent's disciplinary innovations without clear evidence of Respondent's belief in their academic potential. More than anything else, Respondent wanted "to keep turning on lights for students," according to his favorite expression. Refusing to allow ALC students to think of themselves or be treated like academic or cultural outcasts, Respondent made the ALC more like a regular school, not so that he could have the experience of running a regular school, but so that the ALC students could have the experience of attending and succeeding at a regular school. In giving ALC students more positive opportunities than they had had in the past, Respondent introduced to the ALC student assemblies, a literary magazine, school plays, and other activities typical of regular schools. Respondent ordered the physical education teacher to make the ALC students play sports besides basketball, just like the physical education students were doing at the regular schools. (After hearing the concerns of the physical education teacher about placing bats in the hands of certain students, Respondent agreed to drop softball.) Respondent personally conducted entrance interviews, so he could explain the rules and purpose of the ALC to each new student and any parents or guardians accompanying him. Respondent made the exit process--merely an exercise in paperwork in prior years--an experience that would bring some closure to the ALC experience and prepare the student for a more successful reentry into his geographical school. There is no doubt that Respondent was markedly successful in improving the atmosphere at the ALC. Respondent's immediate supervisor, Herbert Wiseman, the District Director of Secondary Operations, twice during the fall of 1995 complimented Respondent on how well run the ALC was. The latter compliment took place on December 15, 1995, when Mr. Wiseman, with whom Respondent had a good relationship, told Respondent that he was running the ALC well. Mariner High School Principal Michael McNerney described in detail a visit he made to the ALC in November 1995. He was greeted quickly and professionally at the office, rather than allowed merely to walk into the school. Respondent took him to 8-10 classrooms where Respondent and students spoke freely. Respondent knew each of his students and which of them were from Mariner High School. He even knew when each student was due to return to his geographical high school. Jill Culligan, an ALC teacher who was disaffected with Respondent, noted the positive changes in writing on December 5, 1995: Under [Respondent's] system of discipline interventions and sensitivity to individual student needs, the students appear to be exhibiting the better behavior expected of them. Fights are no longer tolerated. More opportunities for assemblies are getting them ready for re-entry into the regular schools. But Respondent always balanced his academic innovations with disciplinary innovations, recognizing that behavior and academic achievement among ALC students are inextricably linked. Respondent personally led the effort to restore and maintain order at the ALC. It was a considerable, ongoing effort, made more difficult by the fact that the most troublesome students were no longer warehoused in the timeout room or banished from school by suspension. A key element of Respondent's relationship with the most difficult of these most difficult students is that he literally was not afraid to touch a student. Respondent was unafraid to place an arm around such students and hug them close to his body. The hug conveyed affection and physical constraint. While holding the child firmly, Respondent would then typically say that he had to calm down. In many instances, this approach was successful; in some instances--disproportionately represented in the next section--this approach was not. There were always clear limits to Respondent's disciplinary efforts. As noted below, he did not believe in striking students, and never did so except one time at the behest of a parent, who sought to avoid the more burdensome punishment of a suspension. Respondent scrupulously tried to get all significant information before taking any disciplinary action. Though a strong believer in discipline, Respondent was never inflexible. To the contrary, it appears he was always willing to fashion the most appropriate penalty under the circumstances--such as pushups or cafeteria duty--and was often willing to modify a penalty upon request of a parent or guardian or even the student himself. During Respondent's tenure, which ended with his suspension on January 11, 1996, there was a fight every three weeks among students. After his suspension, there was a fight everyday. During Respondent's tenure, the police were present at school every other week. After his suspension, the police were present every other day. Despite Respondent's success at the ALC, he encountered some resistance and engendered some resentment among staff. Clearly, disgruntled staff was the source of many of Respondent's problems, causing management problems at school and, more importantly, conveying misinformation to the District office. In general, at least two-thirds of the ALC staff supported Respondent even after he was suspended. Some staffmembers were neutral. Among staffmembers vocally opposed to Respondent, some were doubtlessly put off by Respondent's assertive personality. But there were other reasons for the vocal disaffection of some staffmembers, and some of these reasons have a material bearing on the credibility of these persons as witnesses and the weight accorded their testimony. In some cases, the source of staff disaffection may have been professional, such as when Respondent selected Ms. Smith over Jim Nassiff, an ALC teacher, for the position of assistant principal. Mr. Nassiff was unhappy with Respondent for choosing Ms. Smith over him. Most disaffected staffmembers had job-performance problems, which were exacerbated by the demands that Respondent placed upon them in terms of academics and discipline. Teachers in this category included Kenneth Vitale, Pamela Minton, Cheryl Gruenefeld, and Ms. Culligan. To varying degrees, teachers in this category manifested an unwillingness or inability to adapt to the changes implemented by Respondent. The sources of disaffection of Mr. Vitale and Ms. Culligan are described in connection with incidents involving them. However, two staffmembers were involved in a number of incidents. Lisa Krucher, a security guard, was notable for the extent of her dissatisfaction with Respondent and her inability to perform her job. She defied Respondent's efforts to ban smoking from the ALC building. She was unable to break up fights and lax in enforcing discipline. She eventually became the eyes and ears of Petitioner by daily reporting incidents to Mr. Wortham, who passed them on to Dr. Santini. Her job-related deficiencies were such that--despite her loyalty--Ms. Krucher was transferred to the Academy after Respondent's suspension. Ms. Smith offered a more balanced perspective on Respondent than did Ms. Krucher, and the source of Ms. Smith's disaffection with Respondent is more professional. Previously a guidance counselor in a middle school and dropout prevention program, Ms. Smith is an articulate exponent of the modern disciplinary theories of positive reinforcement and behavior modification. She deemphasizes more traditional, coercive methods of discipline, such as punishment for wrongs-- which of course awaits those ALC students who, having already failed to take their behavioral cues in the setting of the regular schools, continue misbehaving until they encounter the criminal justice system. Respondent does not advocate the more traditional, coercive disciplinary method of punishment for wrongs to the exclusion of more modern techniques of behavior modification. However, his more intense style of personal involvement with misbehaving students bore little resemblance to Ms. Smith's more restrained style. Ms. Smith was disturbed by her perception of how Respondent handled certain misbehaving ALC students. The record is less clear in revealing her methods of modifying the behavior of such students. In any event, her reactions to the misbehavior and Respondent's attempts to correct it were entirely sincere. She was frustrated to the point of tears at times, believing at times that students who continued to misbehave simply had not been exposed to sufficient positive reinforcement. The problem is that Ms. Smith lacked experience with the kinds of students who can be found at the ALC. She was still developing effective means of handling the most dangerous and disruptive of these students when Respondent was suspended. At that time, Ms. Smith still had nothing approaching Respondent's experience in dealing with young persons who, with little if any warning or provocation, explode into a violent frenzy, seriously injuring anyone in their immediate vicinity. Following Respondent's suspension, Petitioner appointed Ms. Smith as Acting ALC Principal. On February 20, 1996, Petitioner replaced Ms. Smith with Mr. Hagy as Acting ALC Principal. Respondent and Students Spring 1995 Visits to ALC: Paragraphs 33 and 35 At the urging of Petitioner, Respondent visited the ALC shortly after Petitioner named him the new principal. He visited the school three times in the spring of 1995 before assuming his duties there on July 1, 1995. On his first visit, Respondent met briefly with Mr. Hagy and discussed how the school operates. On this visit, Respondent saw students loitering in the halls and cursing loudly. Respondent saw the timeout room, where staff had hung plastic to cover the holes that students had punched in the walls. Respondent saw students were sleeping rather than studying. Respondent and Mr. Hagy came across a student who was walking out of the class during the school day very upset, using abusive language. Mr. Hagy asked him to stop, but he ignored Mr. Hagy and walked out. In another class, taught by James Nassiff, Respondent found the class watching an entertainment movie. Mr. Hagy escorted Respondent into several classrooms. These visits were brief. Respondent later made a second visit, without Mr. Hagy, to observe the classes in session. These visits were somewhat longer. In each classroom during the second visit, Respondent introduced himself as the new ALC principal. He warned the students that things would be changing. He promised that he would suspend any student who talked back to a teacher, swore, or fought. Respondent ordered the students not to call male teachers "man" and female teachers "woman"; teachers would be called "Mr." and "Mrs." Respondent told the students that he would not tolerate sleeping or card playing in class. In a lighter tone, Respondent added that the students should tell their friends and family that there was a new sheriff in town and the ALC was going to be about education. Respondent then flashed his badge. The badge is a small shiny badge that designates Respondent as an Honorary Deputy Sheriff for the term of Sheriff McDougal, who remains in office. Respondent understands that the badge confers on him no special power to arrest persons. He has never tried to arrest anyone using the badge, and he has never displayed the badge on the occasions that he has actually summoned law enforcement officers. In Ms. Gruenefeld's class, Respondent found students sleeping. He approached one student who had his head down on the desk and did not look up when Respondent entered the room. Respondent told him to look at Respondent when he was speaking, or Respondent would suspend the student. Ms. Gruenefeld tried to justify the student's behavior on the grounds that he was a good student and had been working very hard. She believed that the student, who was Hispanic, did not engage in eye contact for cultural reasons. Nothing in the record supports the assertion that Hispanics disfavor eye contact. Absent an undisclosed medical condition, the student should have been able to raise his head off the desk and make eye contact with the new principal, who had entered the classroom to introduce himself to the students. There is no indication that Respondent's first or second visits to the ALC destroyed any instructional momentum in the classrooms. Obviously, the students were off-task for the time that Respondent was in the classroom, in most cases due to Respondent's presence. However, the students did not remain off-task for long and soon returned to whatever they were doing before Respondent entered the classroom. At most, Respondent's comments about changes at the ALC might have caused some harmless confusion among those students who were about to be returned to their geographical schools. There is no evidence that students were intimidated by Respondent's announcement or his display of a badge. Some students laughed after Respondent's announcement. Some responded more seriously, wanting to know if he were really going to be the new principal. In general, the students listened thoughtfully to Respondent's statement. Respondent made a third visit to meet with the faculty at the request of an ALC guidance counselor, who had called Respondent and told him that the faculty wanted to meet him. In this meeting, Respondent repeated the ground rules that he had given the students a few days earlier. Respondent invited each teacher to prepare a wish list for the ALC and a list of any concerns that he or she may have. Ending a positive meeting, Respondent introduced the teachers to his favorite expression, "We need to turn lights on for kids." Following Respondent's visits, Ms. Folaros telephoned Respondent and asked him what had taken place. He explained that he wanted to meet the students at that time because summer school would start before he assumed the role of principal. Respondent added that he wanted the students whom he met to tell other students that he would not tolerate students sleeping and misbehaving, as they had been doing in the past. Other Incidents of Flashing the Badge: Paragraph 33 In September or October, 1995, M. P. enrolled at the ALC. M. P. is a 14 year-old ninth grader, who started the year at Lehigh High School. M. P. was sent to the ALC after he urinated in the middle of class into a glue bottle because his teacher had refused him permission to use the bathroom. M. P. was accompanied by his mother and sister on the day that he enrolled--a process that took about 20 minutes. During the entrance interview, Respondent informed M.P. of the rules of the school. They discussed the dress code, the prohibition of drugs on campus, and M. P.'s misbehavior at Lehigh High School. During the conversation, Respondent flashed his badge and warned M. P. not to do anything wrong. M. P. testified that he was scared at the sight of the badge. This testimony is discredited. It takes more than a badge to frighten M. P.. M. P.'s mother saw Respondent flash the badge, and she decided, based on this meeting, that Respondent would be a good role model for her son. Respondent flashed the badge on other occasions. One time, four middle-school girls assaulted another student in the cafeteria. They ignored Respondent when he tried to talk to them, so he flashed the badge and warned them that he could have them arrested. They took him more seriously and listened after that. Another time, Respondent displayed the badge to a boy who was misbehaving in Respondent's office. Again, Respondent warned that he could have the student arrested. Respondent displayed the badge several other times and warned misbehaving students that he could have them arrested. Some of the students took him seriously; others did not. The ability of Respondent to have students arrested did not depend on his possession of the badge, and ALC students understood that. Flashing the badge unlikely intimidated anyone. M. P.'s Other Incident: Paragraph 29 After the entrance interview, M. P.'s mother spoke privately with Respondent about M. P. She described him as emotionally troubled over her recent divorce. She warned that he was quick to anger and especially intolerant of females because he blamed the divorce on his mother. He also resented females because of a gender issue in the family and the teacher who had refused him permission to go to the bathroom at Lehigh High School was a female. While in April Pepin's class, M. P. walked out of the classroom without permission. Ms. Pepin sent him to Ms. Smith's office. Talking to Ms. Smith, M. P. denied that he had left the classroom without permission and gave Ms. Smith trouble. Ms. Smith determined that he had misbehaved in Ms. Pepin's class, decided to suspend M. P. for one day, and called M. P.'s mother. M. P.'s mother asked Ms. Smith to have Respondent reinforce the point with M. P. Ms. Smith preceded M. P. to Respondent's office and explained the situation to Respondent, stating that M. P.'s mother wanted Respondent to talk to her son and that Ms. Smith was having trouble dealing with him. Respondent summoned M.P. into the office, leaned over his desk toward M. P., and raised his voice in an authoritative manner. Respondent warned M. P. that he could not act up at Respondent's school and that, if Ms. Smith told him something, it was like Respondent telling him something. M. P. elected not to listen to Respondent either and tried to walk out of his office. When he turned to walk around the chair, Respondent stopped him by grabbing his arm. Respondent was worried that he might be going after Ms. Smith. Respondent was also intent on not allowing M. P. to disobey Ms. Smith and Respondent by coming and going as he pleased, especially after his mother had asked repeatedly for Respondent's help in dealing with her son. After grabbing M.P.'s arm, Respondent told him to go up against the wall for a search, and, when he did not do so, forced him up against the wall. When Respondent tried to pat down M. P. for weapons, M.P. lost his composure and began to fight with Respondent. M.P. brought his arms down hard on Respondent and struck him. Respondent wrestled M. P. down to the floor and shouted for someone to call the police. Arriving a few minutes later, the police officers had to bind M.P. by the ankles and drag him to the police car, where he tried to kick out the car window. M. P.'s mother then had M. P. admitted to Charter Glades Hospital, a psychiatric treatment facility. M. P. remained hospitalized for ten days and remained on homebound instruction for two months. Charter Glades treated M. P. for an anger disorder. M. P.'s mother blames Respondent for M. P.'s hospitalization. She is understandably worried about her son, but the evidence does not in any way suggest that Respondent initiated, and the greater weight of the evidence does not prove that Respondent exacerbated or unreasonably triggered, M. P.'s obvious behavior disorder, which had manifested itself before his assignment to the ALC. Ms. Smith felt that Respondent overreacted to the situation, but she was unaware of the details or extent of M.P.'s behavior disorder prior to the incident. Under the circumstances, Respondent was justified in reacting quickly to prevent M. P. from leaving the office and precluding the possibility that the student might strike Ms. Smith. Pushups: Paragraphs 20 and 21 Respondent sometimes gave the option of pushups to male students whose misbehavior otherwise warranted suspension. (For female and other male students, Respondent would sometimes offer cafeteria duty.) On at least two occasions, students chose to do the pushups. Respondent demanded 50 pushups and sometimes called out the count himself, starting fast and ending slow. If a student could not do 50 pushups, Respondent allowed him to do as many as he could; in no event would Respondent suspend him for failing to reach 50. On one occasion, three students were doing their pushups in Respondent's office when a faculty meeting was about to start. The teachers were supportive of the students, cheering them on. When finished, the students, taking the matter in good humor, thanked Respondent for not suspending them. There is absolutely no evidence that any of the students choosing to do pushups were humiliated, injured, or exposed to a risk of injury. Presumably, as alleged by Petitioner, their arms shook and, for the white boys, their faces reddened. These things happen with pushups. Spankings: Paragraphs 18 and 19 There were two student spankings during the fall of 1995. One of them took place in October 1995 and involved O. B., who is 13 years old. O. B. lied to Respondent about not being involved in a fight. Based on O. B.'s word, Respondent was about to suspend another boy. After discovering the truth, Respondent went down to O.B.'s classroom and found the class watching a movie. Respondent said, loud enough for the teacher, Mr. Vitale, and other students to hear, "Son, you've lied to me. You've lied to me." O. B. answered, "Man, I don't know what you're talking about." Respondent then grasped O. B. firmly by the back of the neck and walked him down to Respondent's office. In the office, Respondent suspended O. for five days, called O. B.'s father (his biological grandfather who had adopted O. B.), and told him that he needed to pick up his son. O. B.'s classmates already knew that O. B. had lied about the incident. O. B. was not embarrassed by the manner in which Respondent removed him from class, nor was he hurt by the grasp of Respondent. When O. B.'s father arrived, he said to Respondent that O. B. had just been suspended and had been out of school more than he had been in. The father asked Respondent if there were another alternative, like a spanking, and suggested that Respondent spank the child. Respondent said he did not like to spank students. The father asked if he could, in order to avoid another suspension. Respondent said that was acceptable to him, so the father took his belt and applied it to O. B.'s buttocks five or six times. O. B. cried a little, so Respondent suggested that the father take him home for the rest of the day, rather than return to the classroom after having cried. The father did that. Respondent, O. B., and O. B.'s father were the only persons present during the spanking. The blinds were drawn in Respondent's office during the spanking. The other spanking involved J. N., who is also 13 years old. One day, J. N. repeatedly misbehaved. His teacher, Mr. Nassiff, talked to him several times without effect. J. N. got angry at another student and was about to get into a fight. Another teacher told him to be quiet and he refused. School Resource Officer Fred Jackson and Ms. Krucher also intervened, but failed to calm J. N. J. N. demanded to talk to Respondent. After a brief discussion, Respondent said that he was going to have to suspend J. N. if he misbehaved again that day. Respondent allowed J. N. to return to his class. J. N. returned to class and immediately caused trouble by getting into an argument with another student. Mr. Nassiff sent him back to the office. Respondent called J. N.'s mother and said that he was being suspended. J. N.'s mother asked Respondent to spank her child instead. She explained that she could not afford to arrange for someone to care for J. N. while he was out of school. He had just finished a suspension two or three weeks earlier, and his mother lacked the funds to hire another babysitter. After expressing some reluctance, Respondent agreed to the spanking, but required J. N.'s mother to come to the office to serve as the witness. She did, and Respondent, behind closed blinds and a closed door, hit J. N. six times with a belt on the buttocks. The spanking did not hurt and J. N. did not cry out. Lee County School Board Policy 5.16 addresses corporal punishment as follows: Subject to the provisions of law, if a teacher or school administrator feels that corporal punishment is necessary, at least the following procedures shall be followed: Reasonable alternatives have been used and documented. Written permission has been obtained from the student's parent or guardian at the beginning of each school year, and a call to the parent or guardian for each specific incident involved prior to using corporal punishment. The use of corporal punishment shall be approved by the principal or designee before it is used. The use of corporal punishment shall be administered only in the presence of the principal, another administrator, or a teacher. The principal, other administrator, or teacher shall, in the presence of the student, be informed of the reason for the punishment before it is administered. A principal, or designee who has administered corporal punishment shall, upon request, provide the student's parent or guardian with written explanation of the reason for the punishment and the name of the administrator or teacher who was present. Policy 5.16 is inapplicable to the O. B. spanking because O. B.'s father, not an employee of the District, spanked the child. Policy 5.16 is inapplicable to the J. N. spanking because--consistent with his disciplinary philosophy--Respondent never determined that corporal punishment was necessary. Such a determination is the precondition stated in the flush language of Policy 5.16 for the remaining conditions to apply. Respondent had determined to suspend J. N. Policy 5.16 governs spankings initiated by District employees, not by parents. Respondent merely acceded to the mother's requests that he substitute for suspension the lesser punishment of a mild spanking and that Respondent perform the spanking for her, in her presence--in effect as her agent and not an agent of the School Board. Violation of Dress Code: Paragraph 31 In September 1995, Respondent noticed an unidentified female student exiting a school bus on her way to class at the ALC. She was wearing a top that exposed her midriff, in violation of the ALC dress code. In the presence of District Transportation Coordinator Janet Harris, Respondent told the girl, "Get your ass into my office and call your mother. We don't allow those kinds of tops." Petitioner did not call the improperly clad student as a witness. There was no sexual content to Respondent's ill- chosen word, voiced in the presence of a female employee of the School Board who was a stranger to Respondent. Ms. Harris was not so startled by the comment as to report it at the time to anyone. She first mentioned it the next month to Mr. Wortham. Absent additional proof of the circumstances surrounding Respondent's isolated remark, including the student's reaction, Petitioner has failed to prove that Respondent's momentary lapse disparaged and embarrassed the student. C. L. Incident: Paragraph 22 C. L. was a 200-pound female student at the ALC with a history of violent outbursts where she would leave school and not return home for a couple of days. C. L.'s mother asked Respondent, when he became principal, not to allow C. L. to continue to leave school whenever she wanted. Previously, if she were resolved to leave school, no one would try to stop her. One day at school in September or October 1995, C. L. was out of control, trying to leave the school. Gerald Gilmore, a security guard, was trying to stop her when Respondent approached. Respondent took one of C. L.'s arms, and she suddenly dropped on him. Respondent and Mr. Gilmore each took an arm and walked her to the office, talking to her the whole way in an attempt to calm her. Respondent summoned Officer Jackson to help calm C. L. In the office, Respondent and Mr. Gilmore placed C. L. in a chair. Each time she popped out of the chair, they returned her to the chair. Eventually, C. L. calmed down, and they let her return to class. D. C. Incident: Paragraph 26 One morning in October 1995, Respondent saw D.C. smoking marijuana off-campus before school. When D. C. entered the school, Respondent asked him to come down to the office. D. C. was belligerent. Respondent placed his right arm around the back of the D. C., who was about Respondent's height, and grabbed his right arm, while holding his left arm close to the boy's side. Respondent then walked D.C. down the hall, side-by-side, to the office. Respondent frequently used this hold on students who were noncompliant. It does not hurt the student, but gives Respondent control over the student's movements. In particular, Respondent can sense immediately if a student is going for a weapon. Respondent's use of this hold and his readiness to search students (which is also part of his effort to keep drugs off campus) are prompted by Respondent's justified concerns for the safety of students and staff. The ALC has no metal detector and weapons are a constant worry. In the fall of 1995, Respondent found one student at school carrying a .25 caliber pistol with 18 rounds of ammunition in it. Once in the office, D. C. voluntarily leaned against the wall in Respondent's office so Respondent could search him with an electronic beeper. Respondent did not find any marijuana, but found a tobacco cigarette with half of the tobacco removed from the cigarette. Students smoking marijuana often removed part of the tobacco from a tobacco cigarette and replaced it with marijuana to avoid detection. Respondent suspended D. C. from school and contacted D.C.'s probation officer. D. C. subsequently violated the conditions of his probation and is now missing. ESE Student and Housing Project: Paragraph 32 In November 1995, Respondent spoke to an unidentified female student who was repeatedly being suspended for disciplinary reasons. The student lived in a public housing project. Respondent warned the student that, if she continued to get suspended, stay home, and cause trouble around the project during school hours, she and her mother could be evicted from the project. The student calmed down and behaved appropriately after that. Respondent was a commissioner of public housing for the City of Fort Myers at the time. He understood the rules of the housing projects, which permit the eviction of tenants whose unsupervised school-age children cause trouble in a project during school hours. Slightly Built Child: Paragraph 25 Petitioner presented no significant evidence on this allegation. It probably refers to another incident, such as the S. P. incident discussed below. M. B. Incident: Paragraph 28 In November 1995, M. B. was involved in a fight in the classroom. Respondent gave him the option of a suspension or working in the cafeteria, where he would clean up trays and take out the trash. He chose cafeteria duty. Shortly after arriving in the cafeteria, M. B. so infuriated the cafeteria manager that he called Respondent and told him that M. B. was the most arrogant boy he had ever seen, and he did not want the student back in the cafeteria again. Respondent left his office to retrieve M. B. and found him walking toward the office. Respondent said, "Son, come here." M. B. approached Respondent, who asked him what was his problem. M. B. said that he refused to empty any "God damned" trash. Respondent placed his arm around M. B.'s back and escorted him to the office. M. B. wanted to go straight home, and Respondent would not allow him. Respondent asked him to lean against the wall so Respondent could check him for weapons and drugs. M. B. did so. Respondent then called M. B.'s grandmother and warned her that, if M. B. continued to fight, he could be expelled for two years. She asked him not to suspend him. Respondent agreed not to suspend him, and M.B. completed the school day without further incident. L. S. P. Incident: Paragraph 23 S. P. is a 12 year-old male. He is about five feet one inch tall and is slightly built. He fights constantly. S.P. was sent to the ALC last year for fighting and insubordination. He was transferred from the ALC to his geographical school last Christmas, but, by the time of the final hearing in the present case four months later, he was back at the ALC. On the day of his testimony, S. P. had a black eye from fighting. On his first day at the ALC, S. P. got into a fight. He had not even reached his classroom when he started fighting with another student while still in the office. Respondent saw the fight and put his arm around the child's back, grasped the student's right arm, and hugged the boy close to Respondent. Respondent tried to calm him, warning that he did not want to have to suspend S. P. before he was even enrolled. S. P. tried to escape Respondent's grasp, but Respondent would not release him until S. P. said that Respondent was choking him. Respondent released him then, even though he was not choking the student. When S. P. remained noncompliant, Respondent grasped him again in the same manner as before. Respondent warned S. P., as he hugged him close to Respondent, "Son, you can't continue to fight. You're going to force me to suspend you." However, S. P. swore at Respondent, who replied that S. P. was suspended for the day. After telling S. P. that he was suspended, Respondent walked S. P. to the bench outside Respondent's office and sat him down. S. P. was upset and, after Respondent walked away, began crying. M. T. R. Incident: Paragraph 27 J. B. is an 18 year-old female who attended the ALC in the fall of 1995. From the third day of her attendance at the ALC through the remainder of the fall term, she was sexually harassed and physically threatened by T. R., who is another student at the ALC. On three occasions, J. B. complained of the harassment and threats, including actual touching, to Ms. Krucher, who did nothing about J. B.'s complaints. The first two complaints were early in the fall term and the last complaint was in January 1996. The day after her last complaint to Ms. Krucher had resulted in no action, J. B. complained directly to Respondent. After interviewing J. B., Respondent sent her back to class and summoned T. R. from his class. Terry Smith, a security guard, escorted T. R. to the office. Respondent told T. R. that he should not talk to or look at J. B. If he saw her walking down the hall, he should go in a different direction. Above all, T. R. was not to touch her anymore. T. R. denied any knowledge of who J. B. was. Respondent sent for J. B., who came to Respondent's office and stood in the doorway. When T. R. was told this is who was complaining about him, he jumped up, screaming to J. B., "What the hell are you doing telling people I did this?" He then lunged toward a visibly frightened J. B. Ms. Krucher pushed J. B. safely out of the doorway and escorted her back to the classroom. Respondent got to T. R. before he got to J. B. and pinned him against the wall. T. R. struggled, hitting Respondent while he tried to control T. R.'s arms. Mr. Smith assisted Respondent, who had T. R.'s upper body, by grabbing T. R.'s legs, and the two men wrestled T. R. to the floor. Ms. Krucher returned, and Respondent told her to call the school resource officer, so T. R. could be removed from the campus. In the meantime, Respondent and Mr. Smith tried to calm T. R. by talking quietly to him. Before the school resource officer arrived, T. R. calmed down and pleaded with Respondent not to send him to jail. T. R.'s girlfriend was pregnant, and he had criminal sex abuse charges pending. Respondent agreed to suspend T. R. for the rest of the day and not have him arrested. Respondent and Teachers Culligan Incident: Paragraph 41 At a faculty meeting early in the 1995-96 school year, Ms. Culligan addressed Respondent's decision to eliminate the timeout room. Ms. Culligan endorsed the previous policy where a teacher sent a student to the timeout room for a short period the first time, a longer period the second time, and the remainder of the day the third time on the same day. She said that she typically would not have to send a student back a second or third time. Respondent answered that that was not what the records showed. He implied that teachers had routinely sent students to the timeout room for long periods of time. He did not state that Ms. Culligan had resorted to the timeout room more than did the rest of the teachers, although she likely had. Respondent had considerable difficulty with Ms. Culligan. At the start of the 1995-96 school year, Ms. Culligan sent more students to the office for minor offenses than did other teachers. By memorandum dated September 21, 1995, Respondent directed Ms. Culligan to follow the interventions that "have been explained to you countless times." The memorandum reviews the intervention plan in detail and concludes: Failure to follow this directive violates the rights of the student in the academic setting when it has been clearly stated in writing, that this school will follow that particular policy. This is the third occasion that I've had the opportunity to address this particular policy with you and am therefore directing you to follow this policy to the letter. If I can be of assistance, please feel free to contact me. After receiving this memorandum and the assistance of Ms. Smith in improving her cultural sensitivity, Ms. Culligan reduced her office referrals to an acceptable level. But her claims of humiliation and embarrassment over Respondent's informative reply at the faculty meeting, as well as her testimony concerning other incidents, are largely the product of the early difficulties that Ms. Culligan experienced with Respondent's new, more demanding discipline plan. Nassiff Incident: Paragraph 41 During another faculty meeting, Respondent was discussing an assembly that was to take place in the next day or two. The assembly, which featured drug-detecting dogs from the Port Authority, would be attended by ALC students. This was to be the first assembly ever for ALC students. Respondent was discussing the logistical aspects of moving the students into and out of the assembly and explaining how the assembly was part of the academic rehabilitation of ALC students. Suddenly, Mr. Nassiff raised his hand and asked who would be responsible for watching his students. They were in physical education at the time of the assembly, and Mr. Nassiff thought that the physical-education teacher should continue to watch Mr. Nassiff's students during what was Mr. Nassiff's planning period. Respondent had told the teachers that they could leave school early that day to make up for their lost planning time. Upon hearing Mr. Nassiff's question, some teachers groaned audibly. Respondent replied by asking Mr. Nassiff, "You're an administrator-in-training. How would you respond to that question?" Mr. Nassiff answered Respondent's question by saying, "I'd give me my planning period." Respondent replied, "That's not an appropriate answer. If you want to be an administrator, you wouldn't ask a question like this. Let me see you after the meeting." After the meeting, Respondent explained to Mr. Nassiff the importance of teamwork. Mr. Nassiff conceded that he had said the wrong thing and knew it the moment he had said it. Respondent first gave Mr. Nassiff an opportunity to extricate himself gracefully from the awkward situation created by his question. When Mr. Nassiff persisted, Respondent answered him, directly but not in a hostile tone. Most teachers found nothing inappropriate in Respondent's handling of this situation. Mr. Nassiff and the few teachers who felt otherwise evidently preferred that Respondent handle privately an issue that Mr. Nassiff raised publicly. But Mr. Nassiff invited a public response, and Respondent's handling of the matter was entirely suitable. Announcement Incident: Paragraph 39 One day early in the 1995-96 school year, the students misbehaved badly. The next morning, during the morning announcements, Respondent stated that he expected students to act appropriately in an academic setting. He noted that too many students were coming down to his office and that they needed to do what teachers tell them to do. Respondent added words to the effect that teachers would continue to follow the intervention plan. The effect of such an announcement, nominally addressed to the teachers, was to notify the students that their teachers had no choice but to follow the intervention plan and, if the students objected to the plan, their problem was with Respondent, not with individual teachers. By this comment, Respondent was trying to take some of the pressure off the teachers for enforcing the new intervention plan, which, as noted above, imposed greater burdens on teachers than the previous policy with its excessive reliance on the timeout room and suspension. The meaning of Respondent's announcement does not lend itself to contrary interpretations. Two of the three witnesses who testified that the announcement demeaned the teachers testified about a number of incidents. The testimony of these witnesses--Ms. Culligan and Ms. Minton--must be doubted based in part on the fact that their claimed reaction to Respondent's announcement appears disingenuous. Holzborne Incidents: Paragraphs 36 and 37 Kathleen Holzborne is the lead communications teacher at the Academy. One school day, Ms. Holzborne saw Respondent opening classroom doors in the Academy looking for someone. This was innocuous. Respondent was likely looking for someone or checking on nearby classrooms after a disturbance. Another school day, Ms. Holzborne saw Respondent admitting drug dogs and their handlers into Academy classrooms while Mr. Wortham was elsewhere in the building. Respondent was doing this under the authority of Mr. Wiseman, who was also in the building. Another school day, Respondent and Ms. Holzborne were in the cafeteria while the Academy students were eating lunch. Respondent said she did not need to stay, adding, "Daughter, everything will be fine here." Respondent is from a family of ministers. He sometimes speaks of persons as sons and daughters, meaning they are sons and daughters of God. He used "daughter" in speaking to Ms. Holzborne in a personal, nonsexual manner not intended to intimidate or offend. Had she objected, he would have apologized and explained his innocent use of the word. However, Ms. Holzborne did not complain to Respondent or anyone else until, months later, she mentioned the comment during Petitioner's investigation. Testifying, Ms. Holzborne seemed much more upset over Respondent's alleged failure to return promptly a piece of a tripod, but Petitioner has not charged Respondent with this omission. Intimidation Incident(s): Paragraph 38 Respondent did not intimidate his teachers or staff. To the contrary, he was supportive of teachers and staff, although he demanded that they work hard and smart. At the time of Respondent's suspension, faculty morale was good. A small number of teachers were dissatisfied with Respondent, but not many. The greater part of the faculty got along with each other and Respondent. A reliable portrayal of Respondent's supportiveness comes from Lisa McKeever, an ALC teacher who displayed an unusual degree of independence for a witness in this controversial case. She testified to tell the truth, unaffected by any fear of retribution from Petitioner or Dr. Santini or from the community of supporters of Respondent. Answering a question about whether she supported the Charles Dailey Foundation, which was organized to help pay Respondent's legal fees, she testified that, if she had money to give away, she would first give it to her children and then to literary or musical organizations before she would give it to the Dailey Foundation or any political organization. On two occasions, students threatened Ms. McKeever while she was seven months pregnant. In one case, a boy pushed her up against a chalkboard. Respondent asked Ms. McKeever what she wanted him to do about it. Ms. McKeever did not want him suspended, so Respondent dealt with him, but did not suspend him. In another case, a girl approached her with a clenched fist, threatening Ms. McKeever by saying, "You stupid flat-assed white bitch. Get out of my fucking face." Ms. McKeever was frightened by this assault, and Respondent expelled the student, who that night was arrested after attacking family members with a knife. Respondent and Administrators, Law Enforcement Officers, Guardians, and School Board Policies A. Overenrollment: Paragraph 51 The overenrollment issue arose at the start of Respondent's tenure as ALC Principal. Dr. Santini arranged a meeting on June 20, 1995, among the three new principals at the New Directions Center. The purpose of the meeting was to divide responsibilities among the principals. Ominously, Dr. Santini testified that she had had lots of experience with Respondent not cooperating. It is not entirely clear what specific ALC enrollment policies were advocated by Dr. Santini and Respondent at the June 20 meeting, or even that either of them advocated a specific policy. Dr. Santini stated that the ALC was a short-term program. Respondent wanted the same flexibility that the ALC administrators had had in the past in deciding when to return students to their geographical schools. The ALC enrollment policy from the preceding school year had been the 45 good-day policy described above. In general, Dr. Santini wanted to limit enrollments due to safety considerations. Overcrowding at the ALC became a bigger problem once the new school year got underway due to the introduction of more students from regular schools, as a result of a new zero-tolerance policy in the regular schools, and increased referrals from the juvenile detention center. Respondent's argument for greater enrollment flexibility was based on behavioral and academic factors. Behaviorally, an ALC student might need more than 45 days before he is ready to return to his geographical school. Academically, an ALC student might have difficulty returning to his geographical school due to the differences in the calendars at the ALC and regular schools. The high schools are on a seven-period daily schedule, and the ALC is on an 18- day modular schedule where one class is taught for 18 days. A behaving, attending ALC student could only take two and one-half classes in 45 school days, so that, when returned to his geographical school, he would be behind his classmates in most of his classes. After the meeting, Dr. Santini spoke with Respondent privately and told him that his behavior during the meeting had bordered on the insubordinate. Respondent countered that Dr. Santini was discriminating against him on the basis of race. Respondent's continued implementation of the 45 good- day policy at the start of the 1995-96 school year did not violate any directive that Dr. Santini had given him. Their disagreement during the June 20 meeting was probably limited to a disagreement over general philosophy. Most likely, Dr. Santini had decided to see the effect on ALC enrollment levels of Respondent's implementation of the 45 good-day policy. On October 20, 1995, Dr. Santini conducted another meeting concerning ALC enrollments. This time she met with Respondent and Mr. Wiseman. She called the meeting after receiving a telephone call that a student had remained at the ALC since April 1995. She was also concerned with current ALC enrollment levels under Respondent's approach. During this meeting, Dr. Santini told Respondent that the ALC building was designed for a maximum of 270 students. She told him to cap enrollment at 250 students. Dr. Santini testified that she told Respondent that she approved of the 45 good-day policy. She also testified that Respondent was angry at the meeting. If Dr. Santini approved the 45 good-day policy at the October 20 meeting, the only reason why Respondent would have angered at the meeting would have been a disagreement over the application of the policy; after all, Respondent wanted the 45 good-day policy. Perhaps, Dr. Santini believed that she was approving the 45 good-day policy, but in fact she was not, as evidenced by their closing comments and her October 25 memorandum, described below. At the end of the October 20 meeting, Dr. Santini promised written guidelines and asked Respondent if he wanted any input. Dr. Santini testified that Respondent said that the only thing that he disagreed with was, if a student must be returned to his geographical school at the end of 45 days, ready or not, that those schools would be prepared to help him in the transition. Mr. Wiseman promised to adopt or modify the PASS program to help with this transition. The significance of Respondent's comment, as recounted by Dr. Santini, is as additional proof that Dr. Santini had not approved the continuation of the 45 good-day policy and Respondent was resigned to following her new enrollment policy. The comment tends to prove the elimination of the 45 good-day policy because, if the ALC were permitted to retain students until they were ready to return to their geographical school, there would be little need for the geographical school to help with the transition. The comment proves the obedience of Respondent because he had disagreed was more than the issue of the preparedness of the geographical school to help the former ALC student. Respondent had tried and failed to win Dr. Santini's approval for the 45 good-day policy, so that the ALC students returning to their geographical schools would not need any special assistance from the geographical schools in the transition. But this comment proves that he was giving up on the 45 good-day policy. Dr. Santini sent a memorandum dated October 25, 1996, to Respondent with copies to Petitioner, Mr. Wiseman, and all principals in the District. The memorandum largely memorialized what Dr. Santini had said at the meeting five days earlier. Dr. Santini testified that the only change between the October 25 memorandum and what she had said at the October 20 meeting was that she had eliminated the 45 good-day policy. She explained that she did not want Respondent to be the sole person to decide what good days were. However, the omission of the 45 good-day provision from the memorandum is strong proof that Dr. Santini never approved the 45 good-day policy at the October 20 meeting. There were less drastic means of eliminating Respondent's discretion in applying the 45 good-day policy, without eliminating the policy itself. Dr. Santini could have reserved such authority for these decisions to Mr. Wiseman, herself, the principal of the geographical school, or some combination of the above. The October 25 memorandum states in its entirety: The following plan is to be implemented immedi- ately as a result of our meeting on Friday, October 20, 1995. High school, middle school and ESE students will be returned to their home schools at the end of a quarter after approximately 45 days at the Alternative Learning Center (ALC). In most cases, those students entering the ALC during the first three weeks of a quarter would be eligible for return at the end of that quarter. Those students entering after the first three weeks of a quarter would remain at the ALC until the end of the following quarter. In rare cases a student may be returned to a different high school when recommended by the home school principal and agreed to by the receiving principal. All high school principals have agreed to alter their PASS program to accommodate an orderly reentry of students into the high schools. The ALC will not exceed 250 students. When full capacity is reached the student who has made the most progress will be returned to his/her home school when a new student arrives at the ALC. The above procedures would not prohibit a principal from requesting an earlier return or an extended stay at the ALC. The ALC will continue to function in its capacity as a special center serving the high schools, middle schools and special schools with an ongoing influx and reflux of students. It is understood that the school principals and the ALC principal will main- tain open and direct communication in a spirit of cooperation to best help students. Ultimately, the length of a student's stay at the ALC is dependent upon the nature of the original offense and the sound judgment of the principals involved. There are two possible interpretations of the October 25 memorandum. Either it is a consistent expression of an inflexible enrollment cap with the final sentence as a general surplusage to other, more detailed provisions to the contrary. Or, if the last sentence is to be given real effect, the memorandum is contradictory and meaningless. Paragraph 1 of the October 25 memorandum states clearly that the duration of a student's enrollment at the ALC is 45 days. As mentioned above, there is no requirement that these be good days. The word "approximately" does not restore any discretion to the ALC principal or anyone else; rather, like Paragraph 2, the word "approximately" allows for some minor flexibility in shortening or lengthening the 45-day enrollment based on the end of the academic quarter. More importantly, Paragraph 5 of the October 25 memorandum unconditionally limits the enrollment of the ALC to 250 students and supplies a simple procedure for the release of students when the enrollment exceeds 250 students. The student making the most progress when enrollment exceeds 250 students is returned to his geographical school. The returned student is not necessarily prepared for the transfer; he is only the most prepared among the ALC students. Paragraph 6 grants some discretion to the principal of the geographical school, not the ALC, to shorten or extend the stay of a student at the ALC. But the provision gives no guidance as to when stays should be lengthened. Nothing in this provision conflicts with the preceding provisions of the October 25 memorandum. The last sentence of the flush language at the end of the October 25 memorandum seems to ignore the preceding, more- detailed provisions of the memorandum. The last sentence abruptly introduces some discretion to the ALC and geographical school principals as to the length of a student's stay at the ALC. Respondent could not afford to read his supervisor's memorandum as contradictory and meaningless. His reading of the memorandum was guided by what Dr. Santini had told him at the October 20 meeting, which was that the 45 good- day policy was no longer in effect. When enrollment reached 250 students, Respondent had to return the students who had made the most progress. As promised, Mr. Wiseman sent a memorandum dated November 1, 1995, to the eight high school principals stating: Please send to me immediately, above your signature, a statement that you will provide the opportunity for returning students from the ALC to make up their work, and not be denied the chance to pass their classes. Return your memo to me by Wednesday, November 8, 1995. The principals did so. Shortly after receiving the October 25 memorandum, in compliance with her directive, Respondent returned 75-80 students to their geographical schools. Included in this number was A.B., whom Respondent returned to Mariner High School. Respondent had serious reservations as to A. B.'s readiness to return to a less-structured school setting. Even the student shared these misgivings. When he learned he was to be returned to Mariner High School, A. B. told Respondent that he was worried that he was not ready to return to a regular school. He had been apprehended with drugs or drug paraphernalia twice previously and was undergoing counseling. Three weeks after he was returned to Mariner High School, A. B. was apprehended with marijuana. On December 13, 1995, a Board-appointed hearing officer conducted A. B.'s formal expulsion hearing. Witnesses at the hearing, including Respondent, were sworn to tell the truth and subject to cross examination. Petitioner was represented by counsel, and A.B. was represented by his father, who has been a law enforcement officer for 21 years and is currently employed with the Cape Coral Police Department. Petitioner charged that A. B. had been in possession of marijuana and drug paraphernalia on November 28, 1995, and was a repeat offender. Petitioner sought to expel A. B. for the remainder of the 1995-96 school year and the following year-- evidently, the maximum penalty allowed by law. A. B. had attended the ALC on at least two occasions. His more recent ALC enrollment was from April 17, 1995, through November 6, 1995. In his opening statement at the expulsion hearing, A.B.'s father admitted that A. B. had been caught possessing marijuana and stated: But the point of the issue too is that he was sent back to Mariner. He was in the ALC. He was flourishing in ALC for the first time. Whatever Mr. Dailey sparked in him was the first time since he's ever been in school. He was bringing books home and everything else, which is not heard of from ALC. When he was alerted to come back to Mariner, he went to Mr. Dailey and told him he wasn't mentally or physically ready to go back. Because the other problem that if he's offered a joint, he can't say no. And Mr. Dailey agreed and that's when that fell apart less than four weeks later. The hearing officer asked A. B.'s father if he wanted A. B. to return to the ALC. The father responded by saying, "Yes, sir. I never wanted him to leave. . . . And the result of this too which I wish people would take into consideration, the night that this happened, because of this, my wife tried to commit suicide." A. B.'s father continued in his opening statement: In ALC Dailey sparked four point something and he was studying. He was getting high grades. His grade point average went up. He didn't want to leave. He did not have the problem. Four weeks--it wasn't even four weeks after he was back that this happened. .... I'm not totally blaming [Mariner High School]. A[.] is at fault with that too. And that's what we are addressing through the counseling. But to put him out in the street or expel him I don't think is the answer either. Especially since for the first time in his life he showed an interest in school. Petitioner's second witness in the expulsion hearing was an assistant principal at Mariner High School. He testified in response to a question directed toward the propriety of the handling of A. B. at Mariner High School: Our position there is that Mr. Dailey is a competent expert, that he handles the people and when he recommends for us to come--for someone to come back, we take that individual. . . . Answering the question whether he would have handled A.B. differently if he had known that he had not successfully completed the ALC program, the assistant principal testified: . . . You know, we have to accord him his rights like all the kids who complete the program at the Alternative Learning Center. Once he's paid his debt and satisfied them that he's capable, then they send him to us. I don't know of any students they send to us that they don't feel like has made the improvement that the school was set up to start with. Do you understand what I'm saying? So when they come to us, their staffing to exit over there is telling us that they feel like they had--now the kid has shown improvement and he's now corrected what it is and he's ready to return. Petitioner's last witness at the expulsion hearing, John Hennebery, who is the District Director of Student Services, testified that the ALC Principal determines when the student is to be returned to his geographical school. A. B.'s father called Respondent as his sole witness. In response to a question as to A. B.'s progress at the ALC, Respondent testified: . . . I noticed, number one, he tends to be completely honest and tells the truth. That's the experience I have had with him. He is begin- ning to come around in terms of when he feels someone is making up evidence or getting to that point, he would seek out--attempt to seek out in terms of trying to find some assistance rather than jumping in first. But that again is a kind of structured environment that we have at the Alternative Learning School. Q: In your professional opinion, do you believe that [A.] at this point in time still needs that structure of school? A: I most certainly do. Q: At the time when he was requested from the School Board to go back to Mariner, did [A.] approach you in reference to this? A: Yes, he did. Q: And in what aspect did he? A: The usual policy of the district was that on a first offense there was a 45 good day policy. That means that the student has the responsi- bility of spending 45 good days there, good days, which are defined as attendance, punctu- ality, academic and discipline. And on the second offense it's a ninety day offense. Q: Uh-huh. A: Then this year the rules are changed. In the middle of the semester. I was given a directive from the Assistant Superintendent, along with other Principals were informed of it; that the students were called by numbers. At the Alternative Learning School were addi- tional programs of juvenile justice, programs dealing with the number of felons that we were having come into school; that our numbers were getting too large and we had to--I had to send students back. [A.] was one of the students that had been there a period of time and that based on the period of--on the time that he had spent there, that we have to send him back to Mariner. [A.] had some concern about that and spoke with me in great detail about going back and being under those pressures. Now my conversation with [A.] was that because if he had done well at the Alternative Learning School, that my expectations with [A.] would be that he would go over there and do well and make good decisions at Mariner High School. So that in terms of that's the type of conversa- tion that we had and that's where it led. Now did [A.] complete his stay? No, he did not. And he is not one that I would have automatically sent back to Mariner because I was not yet convinced of his ability to deal with the pressures that he was going to have to face at Mariner High School. * * * Q: But your general concerns that the peer pressure is basically--or the pressures in the school itself that he couldn't handle was also [A.]'s concerns too when he came to speak to you about going back? A: Yes, those were [A.]'s concerns but those would be anyone's concerns as relates to going back to the regular school once you have been at the Alternative for a long period of time. You get the anxiety of going back and wanting to do well. So it's not out of the ordinary for students, I might say, to be excited. I have students right now that actually do something wrong so they won't have to go back. So [A.]'s concern or his emotions that he expressed were not unordinary. I felt at that time that because I was given a directive, that it was my responsibility as a Principal to assist him in moving in that direction and I had all the confi- dence in the world in the Mariner staff that they would assist him in moving in that direction. There is an issue that I must be very honest is that the decisions that [A.] makes is [sic] [A.]'s decisions and once in fact--and this is what we teach them at the Alternative School; that once in fact you see that kind of situation present, then you must not go to the situation. You must remove yourself from the situation. And, you know, I'm one that's trying to be very fair and equitable in this hearing and in telling you that this is a situation that, yes, he should have known not to go near that, should have backed off from it. Q: Did he? A: No, sir, he didn't. Was I ready to release him? No, I wasn't. I'd like to concur with Mr. McNerney. I'd like to see [A.] back at the Alternative Learning School for ninety days with the approval of the-- with some kind of documentation showing that he has completed his drug testing and after that, then backing up Mr. McNerney's decision in attendance at the school. And I'm being very honest. The preceding excerpts from the transcript represent all of Respondent's material testimony. Petitioner conducted limited cross examination, devoted to an exposition of the District's drug policy. A. B.'s father introduced into evidence a letter dated December 12, 1995, from Licensed Mental Health Counselor Beverly Barbato, Ph.D., stating that it is in A. B.'s best interest to return to the structure of the ALC. On December 18, 1995--working without a transcript in the interest of time--the hearing officer summarized the testimony of the witnesses, commending each of them for some aspect of their participation in the hearing. As to Respondent, the hearing officer stated: "Mr. Dailey should certainly be commended for his honesty and his ability to assess the situation in a very diplomatic manner." Acknowledging that Petitioner sought expulsion for the maximum time permitted by law, the hearing officer stated that he "sense[d] that both Mr. Hennebery and Mr. McNerney felt that reinstatement should occur in the 1996-1997 school year or upon [A.] completing a successful drug rehabilitation program pursuant to Florida Statutes." Never mentioning old or new enrollment policies at the ALC in his discussion, the hearing officer accepted the recommendations of Respondent, A. B.'s father, the treating health care professional, and A. B. that A. B. be placed on probation for the remainder of the 1995-96 school year at the ALC, subject to additional conditions. In no way did the hearing officer's recommendation rely on Respondent's brief testimony about the transfer of A. B. under the new ALC enrollment policy. The court reporter finished the transcript on December 26, 1995. In Exceptions filed January 8, 1996, Petitioner requested that A. B. be expelled at least for the remainder of the 1995-96 school year. The record does not indicate what action the School Board took on the hearing officer's recommendation. The expulsion transcript reveals that the Assistant Principal at Mariner High School construed the ALC enrollment policy to ensure that students would not be returned to their geographical schools until they were ready to return. The Director of Student Services shared this misinterpretation, at least to the extent of thinking that the transfer decision was made by the ALC principal. The expulsion transcript reveals that Respondent told the truth that B. had come to Respondent and said he was afraid he was not ready to return. Respondent told the truth that he too shared these concerns. And Respondent told the truth that the current policy was that he had no choice but to return unprepared students when ALC enrollments reached the cap. In one respect, Respondent's testimony may have reflected a misunderstanding of a portion of Dr. Santini's policy. He testified that the new policy meant that "the students were called by numbers." Numbers triggered the necessity to return some students. But the new policy did not require that students be returned on a first in, first out basis. Rather, the students to be returned were to be those most prepared to be returned. Respondent's testimony seems to indicate that he interpreted the new policy as providing that he return students on a first in, first out basis. He implied that he selected for transfer the students who had been enrolled the longest at the ALC. In his next sentence, Respondent mentioned "numbers" in connection with the enrollment at the ALC getting too high as trigger for the need to transfer some ALC students. This suggests that his reference to "numbers" was not to the determination of who to return to their geographical schools. But in his next sentence, Respondent implied that the decision to return A. B. was based strictly on how long he had been at the ALC. However, two sentences later, Respondent recounted how A. B. had done well at the ALC, implying that he had at least made some progress, although without any mention of his progress relative to the progress of the other ALC students. Close analysis of Respondent's testimony does not reveal the basis on which he selected the students to be transferred. However, even if Respondent returned A. B. on a first in, first out basis, this action, although not consistent with the better reading of the October 25 memorandum, would have been consistent with Paragraphs 1 and 2, which imply that the sole criterion of enrollment duration is the length of the student's enrollment. Although close scrutiny of the October 25 memorandum permits a reconciliation of Paragraphs 1, 2, and 5--though not also the last sentence of the flush language-- Respondent cannot be expected to perform such textual analysis to discern meaning from such careless wording. In any event, Respondent's testimony at the expulsion hearing did not dwell on the inflexible enrollment cap ordered by Dr. Santini. He mentioned it briefly, then proceeded to describe, almost as briefly, his application of the policy in A.B.'s case. He cast his testimony in a light favorable to Petitioner by explaining that many ALC students are worried about their ability to survive in a regular school, A. B. had made some progress at the ALC, Respondent had encouraged A. B. to behave at Mariner High School, and A. B. must bear final responsibility for his poor choices. After receiving Dr. Santini's memorandum, Respondent was doing the best he could to implement the new enrollment policy. Probably unknown to Dr. Santini at the time, Respondent called Mr. Wiseman around Christmas vacation and asked if he should transfer 112 students then or wait until the end of the semester in January. Mr. Wiseman told Respondent to retain the students until the semester break. Dr. Santini never tried to clarify her confusing memorandum to Respondent or assist him in its implementation. In response to questioning during a School Board meeting from a School Board member concerning the conflict between Paragraphs 5 and 6 of the October 25 memorandum, Dr. Santini issued a memorandum of clarification dated January 5, 199[6.] The January 5 memorandum was issued to all middle- and high-school principals. The first four paragraphs are identical to the October 25 memorandum, except for the addition of a sentence to the fourth paragraph mentioning some new software to facilitate the transition of students back to their geographical schools. The new fifth paragraph states: The ALC will not exceed 250 students unless there are special circumstances with individual students that may warrant extended time. The principal of the geo-school will discuss these circumstances with the ALC principal. When extended time is recommended, the ALC principal will then compile a short report to the Secondary Operations Director that includes the following: the time already spent at ALC by that student, the original offense committed by that student, and any other justification that may warrant extended time (i.e., parent request). The Secondary Operations Director will consider all above factors and then give approval or disapproval on any requested extended time. Dr. Santini also revised the last sentence of the October 25 memorandum to reflect that the length of a student's assignment to the ALC is dependent on the nature of the original offense and the sound judgment of the principals and-- now--Director of Secondary Operations. The overenrollment issue did not end here. Dr. Santini conducted a meeting with Respondent and Mr. Wiseman on January 9, 1996, but this is addressed below in connection with another issue. However, one more fact has a bearing on the issue of overenrollment itself. Respondent never violated the ALC enrollment policy as Dr. Santini applied it to Respondent's immediate successors, Ms. Smith and Mr. Hagy. During the 77 days of Respondent's tenure, the average student enrollment was 265 students. During the 73 days of his successors' tenure, the average student enrollment was 253 students. After adjusting for actual attendance, there were 184 students present on average under Respondent's tenure and 189 students present on average under his successors' tenure. Improper Voluntary Enrollment and ESE Procedures: Paragraph 52 At the end of July 1995, Respondent called Mr. Hennebery and asked if he could voluntarily enroll two students. Mr. Hennebery explained that ALC administrators had made voluntary enrollments before deciding to discontinue the practice one or two school years ago. Since that time, Dr. Santini or Mr. Wiseman had approved all voluntary enrollments. Mr. Hennebery was not Respondent's direct or indirect supervisor. Mr. Hennebery lacked the authority to accept voluntary enrollments, or to make policy on this issue. At no time did Respondent's direct supervisors, Dr. Santini or Mr. Wiseman, instruct Respondent as to voluntary enrollments. The issue of voluntary enrollments is not, in any event, of major importance. Of the hundreds of students enrolled at the ALC during Respondent's tenure, not more than 18 of them were voluntarily enrolled. Most if not all of the students whom Respondent voluntarily enrolled were exceptional cases who were ineligible to return to their geographical schools or enter the Academy. During Respondent's tenure, six ESE students were transferred from the ALC without individual educational plans. Respondent relied on Mr. Vitale, who was the ESE department head, and Ms. Smith to handle ESE paperwork, as Respondent candidly admitted at the hearing that he was unknowledgeable about ESE procedures. Five of the six students left the ALC and entered Adult Education. These were obviously older students for whom an individual educational plan is of less importance than it would be for students with many more years in the educational system. Ultimate responsibility for ensuring compliance with ESE procedures at the ALC rests with Respondent. However, the circumstances suggest only an innocent mistake on Respondent's part, not incompetency, misconduct in office, or gross insubordination. Student Visits to Hi Tech Center Central: Paragraph 55 One day in late November 1995, Ms. Saldana had arranged for two students to visit the District's High Tech Center Central, which is a vocational school. When they returned, they told her that, at the end of the day, the counselor at High Tech Center Central had refused to talk to them because they were ALC students. Ms. Saldana called High Tech Center Central Director Ron Pentiuk, who confirmed that he would not allow ALC students to enroll directly from the ALC or even to visit his campus while still enrolled at the ALC. He said that this had been his agreement with Ms. Folaros. Ms. Saldana explained that, in the case of three to five students, they could not first return to their geographical schools because they were graduating early. If they could not enroll in High Tech Center Central directly from the ALC, they could not attend the vocational school. Mr. Pentiuk refused to consider the request, insisting the students still had to spend six to nine weeks at their geographical schools before they could enroll at the vocational school. He said someone in the District office told him not to accept any more ALC students. By letter to Respondent dated December 19, 1995, with copies to Dr. Santini, Mr. Wiseman, Mr. Wortham, and others, Mr. Pentiuk restated his position: "no ALC students will have direct access to High Tech Central programs. . . . [A]ll visitations shall come from the student[']s geo school and not ALC directly." The letter cites as authority for this policy a meeting that took place at the start of the 1994-95 school year between representatives of High Tech Center Central and the New Directions Center. The implicit reason for this policy is that Mr. Pentiuk wanted someplace to send a student if he failed to perform at High Tech Center Central. By memorandum dated January 10, 1996, to Mr. Pentiuk, Respondent memorialized a discussion at a principals' meeting earlier that day. The agreement appears to allow ALC students who are ready to be returned to their geographical schools, but have not yet been returned, to visit the High Tech Center Central. The record reveals only that Respondent tried to send ALC students to the High Tech Center Central for visits. When they were treated rudely by Center personnel, Respondent and Ms. Saldana discovered an unreasonable policy that emanated not from the District office, but from an understanding reached by Mr. Pentiuk and Respondent's predecessor. This agreement had little logic to commend it. It delayed and, in some cases, denied ALC students access to important vocational training. Mr. Pentiuk explained that he could not deal directly with ALC students because he needed to have a place to which to return them if they misbehaved. However, his concern does not address the aspect of the policy prohibiting even campus visits by ALC students. And his concern fails even to address the remainder of the policy, as the record does not explain why Mr. Pentiuk could not expel students back to the ALC as easily as to their geographical schools. In any event, Respondent and Ms. Saldana rectified the situation, achieving a much-improved policy than the one that preceded Respondent's involvement. Refusal to Reenroll J. M.: Paragraph 50 In September 1995, Respondent refused to reenroll J.M. when his grandmother brought him back to school after an unexcused absence. J. M.'s father had called Respondent and complained that his mother was interfering with J. M., her grandson. The boy was skipping school with the father's brother, who was also of school age. J.M. asked Respondent not to let the grandmother return the boy to school or supply a legal excuse for his absence. When J. M.'s grandmother brought the boy back to school one day, Respondent did as the father had directed him. Respondent told the grandmother, "Ma'am, you can't bring your child back. I got a call from your son, and he is the legal guardian. Call your son and get it straight with him. I shouldn't even be talking to you about J. M." E. Arrest of W. S.: Paragraph 49 On November 1, 1995, W. S. tried to leave the cafeteria without permission. She has a history of violent outbursts. Riley Ware, a teacher, tried to stop her. W. S. asked him who he thought he was with that crooked gold tooth. Mr. Ware responded by telling her to sit her "big-lipped" self down. (Respondent later reprimanded Mr. Ware for this comment.) W. S. swore at Mr. Ware, calling him, among other things, a "black bitch." Teacher Christine Peete then intervened. She said, "Young lady, you've been very inappropriate." Gently placing her arm on W. S.'s shoulder, Ms. Peete added, "Come with me until you cool off." W. S. angrily responded by slinging Ms. Peete's arm off of her shoulder. She shouted, "Get your hands off me, bitch. I'll dip on [beat up] all of you. Ms. Peete had to return to her class, so she asked Ms. Krucher to escort W. S. to the office. Ms. Peete found Respondent in the middle-school area and told him that he needed to deal with W. S. Respondent returned to his office to find W. S. leaving. He greeted her by saying, "Well, daughter, Ms. Peete tells me that you called her a bitch." S. said she called Mr. Ware a bitch, but she did not call "that bitch" (Ms. Peete) a bitch. Respondent told her she was suspended for five days, and W. S. replied, "I don't give a fuck about five days." Respondent raised the suspension to seven days, and W. S. lunged toward Respondent and Ms. Peete, who was standing next to him. W. S.'s initial lunge threw Respondent, herself, and a computer to the floor. Respondent wrestled his way to the top, and W. S. demanded that he get his "big belly" off her. She scratched him or snapped his suspenders, causing his chin to bleed. She grabbed his tie and choked him. She tried to bite and kick him. Respondent ordered a nearby staffperson to call the police. Officer Garrett Kusienski of the Fort Myers Police Department responded to the call and arrived at the school in a three or four minutes. When he arrived at the ALC office, Respondent and W. S. had just gotten off the floor, and Respondent and several male staffmembers were escorting her into the office. Respondent approached Officer Kusienski and asked him to arrest W. S. Officer Kusienski asked why, and Respondent directed him to handcuff and remove her. Officer Kusienski refused to do so until Respondent explained why. Officer Kusienski's police report, which is credited, states Respondent answered that, if Officer Kusienski were not going to do his job, "I needed to get off his campus." Officer Kusienski asked again what happened, and Respondent "stated that he would give all the details to Chief Hart when he was contacted, to get the hell off his campus if I wasn't going to arrest anyone." Officer Kusienski left the building, but returned a few minutes later, spoke with W. S. and possibly others, and took her into custody. The police report notes that another officer, who had arrived on the scene as backup, took statements from witnesses. At the hearing, Officer Kusienski testified that Respondent said, "If I'm not going to do my fucking job to get the fuck off this campus." Officer Kusienski did not explain at the hearing why he deleted one "fuck" entirely and replaced another with "hell" in his police report. It is unlikely that Officer Kusienski was graciously sparing Respondent any embarrassment in the report because he also noted that Respondent became "very disorderly toward me." The only other evidence that Respondent said "fuck" is Ms. Krucher, who testified that Respondent said it to Officer Kusienski once, not twice as Officer Kusienski testified. However, her testimony is contradicted by numerous other witnesses, who testified that she was not there and they did not hear Respondent say "fuck" to the officer or otherwise during the incident. Ms. Krucher's testimony has not generally been credited on grounds, among others, that she harbored considerable ill-will toward Respondent. The testimony of Officer Kusienski is countered by the testimony of Officer Jackson, also of the Fort Myers Police Department. Officer Jackson testified that Respondent did not use foul language toward Officer Kusienski. There is no preponderance of the evidence as to what Respondent said to Officer Kusienski. Respondent Late to Work: Paragraph 54 On November 16, 1995, the parent of a student at Cape Coral High School called Respondent and asked him to attend a meeting for the purpose of determining whether to transfer the parent's child to the ALC. The parent did not want the child transferred to the ALC and asked for Respondent's help at the meeting. Seeing a chance to help control the ALC enrollment, Respondent agreed to attend the meeting, which was scheduled for 7:00 a.m., and try to help the student remain at his geographical school. Respondent's intent was to speak first and then drive back to the ALC, which was about 20-30 minutes away at that time of day. Respondent reasonably expected that he would arrive at the ALC between 7:30 a.m. and 7:45 a.m. Respondent typically arrived at school at 7:30 a.m. and took cafeteria duty until school starts at 8:00 a.m. The evening of November 16, Respondent called Mr. Ware and told him to cover the cafeteria the following morning in case Respondent was late. Ms. Smith was on personal leave on November 17. However, Respondent and LAMP principal McCollum had an agreement that, if one of them was absent from the campus, the other would serve as acting administrator to be called upon by teachers or staff as needed. Their agreement--which was a necessity for Ms. McCollum because she lacked an assistant principal--did not require that either give the other advance notice of his absence. Unfortunately, Respondent did not get to speak first at the meeting, which ran longer than Respondent had expected because the student had been charged with drug possession, not merely disrespect to a teacher, as Respondent had been told. From the meeting at Cape Coral High School, Respondent called someone--probably Mr. Ware--and told him that he would be later than he had anticipated the prior night. Respondent returned to the ALC between 8:30 a.m. and 8:45 a.m. When Respondent did not appear at school by 8:00 a.m., Ms. Krucher told Mr. Wortham that Respondent had left the ALC without an administrator. Mr. Wortham called Dr. Santini and told her. The same afternoon, Dr. Santini or her designee called Respondent and asked him where he had been that morning. Dr. Santini and Mr. Wiseman met with Respondent on November 20 to discuss Respondent's tardiness on November 17. This meeting is described in the following section. By memorandum to Respondent dated November 28, 1995, with copies to Petitioner and Mr. Wiseman, but not to Respondent's personnel file, Dr. Santini concluded as to the incident: As per our conversation of November 20, 1995, I am reminding you that I consider the fact that you were not in school on November 17, 1995 until 8:45 A.M. with no assistant present, a serious offense. The students at ALC need constant monitoring and supervision and to have the school unstaffed by any administrator, even for forty minutes, could lead to a catastrophe. I do not expect this to happen again. By letter dated December 8, 1995, to Dr. Santini, with copies to Petitioner and Mr. Wiseman, Respondent acknowledged receipt of her November 28 "letter relating to your concerns of me not being present in my building without an assistant." The letter explains that, once at the Cape Coral High School meeting, Respondent learned that the student had not only threatened a teacher, but had also used drugs. The letter states that Respondent had previously covered for Mr. Wortham and Ms. McCollum. Respondent's letter concludes: This is not to say that I don't concur with you. I most certainly agree with you whole heartedly that not only in ALC but all schools, we must have an administrator on duty. An administrator was on duty, as I had informed you verbally. Mrs. McCollum and I had total agreement relating to coverage without any problems. Your letter gives the perception that I was purposely avoiding my responsibility and was irresponsible in fulfilling my duty as a principal. I would like the record to show that I was fulfilling my duty as an educator, as a principal and as a community leader. Through my efforts, I was able to at least save the life of a young man that we could have possibly lost to drugs. This is one I don't have to look over and he not look back. Thank you for your concern and I accept your letter of concern and would vow that I will continue to work with you and to make the ALC the best learning environment that I can. Dr. Santini's November 28 letter is not a letter of reprimand, nor did she intend for a copy of the letter to be included in Respondent's personnel file. Her intent is inferred from the absence of the letter from Respondent's personnel file in mid-February, the omission from the letter of any express notation of copies to Respondent's personnel file (as contrasted to the January 2 letter described below), and the failure of Dr. Santini to respond to Respondent's subsequent characterization of the letter in his letter of December 8. Petitioner failed to prove that Respondent violated any policy of the District in effect on November 17. The record reveals no prohibition against having another administrator, such as Ms. McCollum, cover for Respondent for a short time, even in the absence of advance notice. November 20, 1995, Meeting: Paragraph 42 Three days after Respondent was late to work due to the meeting at Cape Coral High School, Dr. Santini and Mr. Wiseman visited Respondent to discuss the incident, as well as charges of heavy-handed dealing with students, yelling at teachers, and leaving campus early. Dr. Santini and Mr. Wiseman dismissed as unfounded all charges except for Respondent's tardiness on November 17. Around this time, Ms. Krucher, who had been talking to Mr. Wortham daily, began contacting Dr. Santini and possibly Petitioner, whom Dr. Santini testified that she had suggested Ms. Krucher call. The purpose of these calls was to supply, on a confidential basis, unfavorable information about Respondent. If the information resembled her testimony, nearly all of it was unreliable. One incident illustrates the lengths to which unidentified persons would go to fabricate evidence unfavorable to Respondent. By two-page, handwritten letter dated February 17, 1996, from Ms. Pepin to Ms. Minton, Ms. Pepin objected to a statement attributed to Ms. Minton in the newspaper to the effect that she spoke for all of the ALC staff when she criticized Respondent. In her letter, which is entirely supportive of Respondent, Ms. Pepin admitted that, last June, she had not much liked Respondent entering her classroom and giving his "new sheriff in town" speech. But the letter continues to state that she now understands the effectiveness of Respondent's style. Someone--not in the office of Petitioner's counsel-- fraudulently altered Ms. Pepin's letter and sent it to Petitioner's counsel. By careful folding, whiting out, and photocopying, this person reduced the two-page letter to five and one-half lines and moved Ms. Pepin's signature beneath these lines, so as to make the letter look like a short note objecting to the "new sheriff" speech. This person then passed the counterfeit note as a gross distortion of Ms. Pepin's views-- literally out of context. It is highly unlikely that such fraud would be perpetrated by someone in the District office. The record does not reveal who had access to the letter after it was received by Ms. Minton. But the incident reveals indisputably the unreliability of at least some of the information that Dr. Santini and Petitioner received about Respondent. In any event, toward the end of the November 20 meeting, Respondent demanded that Dr. Santini tell him who had made the allegations against him. The request was not unreasonable given the inaccuracy of most of the charges. Dr. Santini refused to divulge the name or names of these persons. She explained reasonably that, if she were going to do something about the charges, she would tell him, but she was not going to do anything about them. Petitioner failed to prove that Respondent was rude in the November 20 meeting. Dr. Santini's November 28 memorandum makes no mention of any rudeness. Petitioner's counsel did not inquire of Mr. Wiseman as to Respondent's behavior at the November 20 meeting. Dr. Santini's testimony was not detailed in its description of Respondent's behavior at the November 20 meeting. On direct, she testified only that Respondent exhibited an "insubordinate attitude," and "we couldn't talk to him for his continuing to talk to us." Dr. Santini did not use the word "shout" or "yell" to describe Respondent's manner of speaking. On cross, Dr. Santini added only that Respondent was "insubordinate, rude, and unreceptive." Gate Incident: Paragraph 43 Immediately after school on December 12, 1995, a boy hit a girl near the front gate of the New Directions campus. Respondent, Mr. Ware, Mr. Gilmore, Mr. Smith, Ms. Krucher, Mr. Nassiff, Mr. Wortham, and other adults immediately went to the scene. At first, the two students refused to tell Respondent what had happened. A group of boys outside of the gate had seen the altercation. Respondent motioned them to enter the school grounds, but, before he could talk to them, Mr. Nassiff told Respondent that he had seen the altercation. Not needing to speak to the group of boys, Respondent motioned them to go back. However, two or three of them were already inside the gate. A security guard was in the process of locking the two front gates, so Respondent told Mr. Ware and Mr. Smith to escort the two or three boys off campus through the back gate, which was closer to their homes. Unknown to Respondent, the remaining boys from the group had just told Mr. Wortham that they were going to beat up the next student whom they saw. Respondent, the two students involved in the altercation, and other staff, except for Mr. Ware and Mr. Smith, walked toward the ALC where Respondent could deal with the two students. Respondent saw Mr. Wortham signalling to Ms. Krucher, and Respondent asked her what he wanted. She replied that he wanted her to close the back gate. Respondent told her not to close the back gate because he had just sent Mr. Ware and Mr. Smith with some students to let them out the back gate. He reminded her that he, not Mr. Wortham, was her boss. At the time, Respondent was unaware that some Academy students were preparing Christmas decorations inside the back gate, which typically remained open before and after school for deliveries. Respondent was also unaware that Mr. Ware and Mr. Smith had not gone to the back gate because they had been able to get the students through one of the front gates before it had been locked. After Respondent returned to the ALC building, the group of students walked around the side the school to the back gate, where one or more of them beat up an Academy student so badly that he required hospitalization. As soon as Respondent learned of the incident in the back, Respondent called Mr. Wortham, who said he was angry and had some concerns. Respondent invited him to discuss them, but he declined, saying he would instead call Dr. Santini. Respondent suggested that he take his concerns directly to Petitioner in that event. Respondent then found out from Mr. Nassiff and Ms. Krucher what had happened. Respondent asked Mr. Nassiff to explain to Mr. Wortham that Respondent had not known that there were students in the back inside the gate and that Respondent had sent two teachers back there to escort students out of the campus. Shortly after that, Respondent went to the Academy building to speak to Mr. Wortham. Respondent explained what had happened from his perspective, and Mr. Wortham acknowledged that he had later found that out, but, by that time, he had already called Dr. Santini. Petitioner did not call Mr. Wortham to testify about the gate incident, even though Petitioner claims it was his order that Respondent countermanded. Under the circumstances reasonably known to him at the time, Respondent behaved responsibly throughout the gate incident. He did not know he lacked crucial information when he told Ms. Krucher not to go to the back gate. But he reasonably assumed that he had more information than did Mr. Wortham. He knew that he had already sent two men to the back. Even had he known that the boys wanted to beat someone up and that an Academy student was in the back, Respondent would reasonably have relied on Mr. Ware and Mr. Smith to prevent the attack. When Respondent told Ms. Krucher that he, not Mr. Wortham, was her boss, he was merely emphasizing his direction that she not close the back gate. He was not stating the cause for the direction. The cause was that he had sent two men to the back gate. Respondent's comment about who was Ms. Krucher's boss was thus not an act of insubordination or lack of cooperation. I. Respondent's Police Interview About Gate Incident: Paragraph 48 Mr. Nassiff witnessed the police interview of Respondent concerning the gate incident. In the interview, Respondent did not state that he countermanded Mr. Wortham's order to Ms. Krucher to go lock the back gate. Respondent did not withhold material information from the police, who were investigating the beating of the Academy student, not Respondent. The direction that Respondent gave Ms. Krucher was entirely appropriate under the circumstances as reasonably understood by Respondent at the time that he told her not to close the back gate. There was no reason for Respondent to mention this minor point to the police. J. January 9, 1996, Meeting: Paragraph 44 Three days after the gate incident, Dr. Santini asked Respondent to come to her office that day. He said that he was helping students deliver Christmas food baskets to the needy and could not, so they set up a 7:00 a.m. appointment for the following Monday, December 18. When Respondent arrived at the meeting, expecting it to be between him and Dr. Santini, he found Mr. Wiseman and Mr. Wortham, who had prepared a written statement. Dr. Santini said she wanted to hear both sides of the gate incident. Respondent objected that the meeting was unfair because he had not had the chance to prepare a statement. Dr. Santini replied that she had not asked Mr. Wortham to prepare a statement, and Respondent said that at least he had known what the meeting was about. Mr. Wortham and Respondent each stated what happened. Mr. Wiseman asked Mr. Wortham if he had disclosed to Respondent the threat by the group of boys in the front, and Mr. Wortham admitted that he had not. Dr. Santini said that she would speak to Ms. Krucher to obtain a statement, but refused Respondent's request that she also speak to Mr. Ware and Mr. Smith. Respondent was worried that he was being set up and informed Dr. Santini that he would be requesting a meeting with Petitioner to complain about the discriminatory treatment that he was receiving. Respondent contacted Petitioner's office to set up a meeting. Petitioner contacted Respondent during Christmas break, and, at her request, the two of them met for two hours on December 28 at a local restaurant. They discussed the ALC enrollment policy, Respondent's testimony at the expulsion hearing, Respondent's claims of harassment by Dr. Santini, Dr. Santini's practice of invariably bringing Mr. Wiseman with her on visits with Respondent, Respondent's good relationship with Mr. Wiseman whenever he was separated from Dr. Santini, and the gate incident. Petitioner told Respondent that he needed to return to school after Christmas break and work more closely with his supervisors, as well as Ms. McCollum and Mr. Wortham. Petitioner promised to set up a meeting among her, Respondent, and Dr. Santini. This meeting was later scheduled for January 9, 1996, at 3:00 p.m. By letter to Respondent dated January 2, 1996, with copies to Petitioner, Mr. Wiseman, and Respondent's personnel file, Dr. Santini stated that she had completed her investigation into the gate incident and had spoken with Respondent, Mr. Wortham, and Ms. Krucher following the meeting of December Dr. Santini concluded: the key issue is the fact that after Mr. Wortham asked your security guard, Lisa Krucher, to run to the back of the school and lock the gate because he felt the boys who were threatening to harm someone would come in through the back gate, you instructed Lisa Krucher not to lock the gate because she worked for you and not Mr. Wortham. I consider this action on your part a poor judgment call and a lack of cooperation with other adminis- trators on campus. * * * I am directing you from this point on, to work together with Mr. Wortham for the benefit of the children in the school. The attitude that employees work for one principal and not another is an attitude that can cause disruption and, as we have seen with regard to this incident, harm to a student. Dr. Santini's letter misstates an important fact. Respondent did not redirect Ms. Krucher "because she worked for you and not Mr. Wortham." He redirected her because he had sent two able staffpersons to the back gate, and there was no need to send a third person. Dr. Santini evidently discredited an important element of Respondent's version of the gate incident. She could not have determined that Respondent countermanded Ms. Wortham's order for the sole reason of showing Ms. Krucher who was her boss, unless Dr. Santini had eliminated the possibility that Respondent countermanded the order because he had already sent two men back there. Whether Respondent sent the two men to the back or not is a difficult fact question. Although Dr. Santini might reasonably have concluded that Respondent, Mr. Ware, and Mr. Smith were lying, her factual determination is deficient as long as she refused to talk to Mr. Ware and Mr. Smith. Respondent was reasonably concerned with Dr. Santini's fairness when she talked to Mr. Wortham's corroborating witness, but refused even to talk to Respondent's corroborating witnesses. On January 5, 1996, which was the date that Dr. Santini issued her letter clarifying the October 25 memorandum on the ALC enrollment policy, Dr. Santini contacted Respondent's office to set up a meeting for January 8, which was the day prior to their meeting with Petitioner. She had by now seen the transcript of the expulsion hearing and wanted to discuss this matter with Respondent. Taking the advice of Dr. Cecil Carter, an administrator in the District, Respondent called Dr. Santini's office back and asked the purpose of the meeting. Dr. Santini relayed the information through someone in her office that they were going to discuss Respondent's "deposition." The only deposition with which Respondent was familiar was in connection with his testimony in the Rockford, Illinois desegregation case. Dr. Santini inadvertently used "deposition" to mean Respondent's testimony at the A. B. expulsion hearing. However, Respondent assumed that she was going to discuss some aspect of desegregation with him. Around 2:00 p.m. on January 8, Respondent told his secretary to call Dr. Santini's office and cancel the meeting. He told his secretary that he was ill and going home directly after school, but told her to tell Dr. Santini that she could call Respondent at home and they could at least talk on the phone. Dr. Santini did not call Respondent at home. Instead, she and Mr. Wiseman appeared, without prior notice, in Respondent's office between 8:00 and 8:30 a.m. on January 9, 1996, which was the day of the meeting with Petitioner. Respondent said he was busy with school duties, and they waited until he could see them. In a few minutes, Respondent, Dr. Santini, and Mr. Wiseman met. Dr. Santini started the meeting by saying, "Charles, I'm going to talk to you about this deposition." She showed him the transcript of the A. B. expulsion hearing. She stated, "The way this looks, I'm going to have to write you up." Understandably worried that Dr. Santini had already made her decision to discipline him, Respondent asked for permission for his secretary to attend the meeting as a witness. Dr. Santini said no. Respondent then asked to tape the meeting. Dr. Santini agreed. As Respondent left to find a tape recorder, Mr. Wiseman said, "Mary, you're going to have to give him a chance to tell his side of the story." Unable to find a tape recorder, Respondent returned to the meeting. Dr. Santini pointed to a page of the transcript and, without discussing the testimony directly, declared that Respondent had testified that numbers were more important than students. Respondent tried to interrupt, but Dr. Santini would not allow him. Respondent stated, "You can't accuse me of things and expect me not to respond." Dr. Santini replied, "You are going to listen to me." Dr. Santini accused Respondent of talking to A. B.'s father. In fact, Respondent had told him to work with Mr. Hennebery's office. Suddenly, Respondent told her that the meeting was over until we meet Petitioner. Dr. Santini slammed a book and told Respondent that he had "disrespected me and Mr. Wiseman." Respondent answered, "My dear friend, how have I disrespected you?" Dr. Santini stated, "That's it." She turned and walked out the door. Mr. Wiseman was still seated when she left. He then jumped up, shook Respondent's hand, and said, "See you later, baby boy." Alone among the key participants in this case, Mr. Wiseman appears to have maintained his sense of humor. During this brief meeting, for example, Mr. Wiseman was the only person not to have raised his voice. Later on the day of January 9, the meeting with Petitioner took place with Respondent, Dr. Santini, Mr. Wiseman, Dr. Carter, Dr. Counsel, and an administrative assistant in attendance. Respondent began the meeting by reading a letter from him to Petitioner dated January 8, 1996. The letter reviews the condition of the ALC when he was appointed principal, the changes that he has made, and the problems posed by the ALC enrollment policy stated in the October 25 memorandum. The participants discussed the ALC enrollment policy. Respondent objected that it appeared that they had met with other principals and not him. Mr. Wiseman admitted that they had met and had excluded Respondent because he had threatened another principal. There is no evidence of such a threat. After the discussion about ALC enrollments ended, Petitioner said that she was out of time and everyone would have to return to finish their discussion. Petitioner told Respondent that she had sent Dr. Santini and Mr. Wiseman to see him, and she did not want him calling off meetings with her staffmembers, such as he had done that morning. Respondent understood that he should not do that. Respondent complained that he had thought that he was doing an outstanding job and could not understand what the problem was with his job performance. Dr. Santini disagreed with him about the job he was doing. Respondent stated that no one had ever sufficiently spelled out a problem so that he could address it. He asked who was complaining about what. He asked Dr. Santini directly if she had any complaints. Dr. Santini said she had one complaint, but would not disclose it to Respondent, even after being urged to do so by all of the other participants, except the administrative assistant. Dr. Santini said that the attorneys had told her that she did not have to disclose it. She then said to Petitioner, "Bobbie, the problem is he will listen to you, not me." Respondent and Dr. Santini began to argue about the meeting earlier in the day. In anger, Respondent said he would not follow Dr. Santini's directions, but go directly to Petitioner. He also admitted that he was afraid of Dr. Santini. Petitioner closed the meeting by promising to check with the attorneys and see if she could supply Respondent with a copy of the complaint to which Dr. Santini had referred. Two days later, on January 11, Petitioner sent a letter to Respondent suspending him with pay due to "your conduct in a meeting with Mr. Herb Wiseman . . . and Dr. Mary Santini on January 9, 1996." The letter adds: "you should know that other allegations have been made against you that are currently being investigated by the District." V. Conclusion Petitioner failed to prove by a preponderance of the evidence that Respondent is guilty of misconduct in office, incompetency, gross insubordination, or immorality. Petitioner never trained Respondent to serve as a school principal. Respondent's previous administrative roles provided valuable experience, but they had also permitted Respondent to become accustomed to serving in a close relationship with a Superintendent who was also a mentor, working outside the normal hierarchical channels of the District office, and alienating numbers of parents, teachers, and administrators in making tough rezoning and equity decisions. But Respondent's qualifications were obvious. As Petitioner wrote in one evaluation, Respondent was a "role model" for other administrators in, among other things, teamwork. Despite the gaps in his experience, Respondent employed vast stores of energy, enthusiasm, and commitment to make the ALC work for its students. He intelligently assessed the situation at the ALC and devised strategies for exploiting the available resources. Fully aware of his own limitations, for instance, he hired Ms. Smith for her knowledge of curriculum. In a short time, he had produced dramatic results at the ALC. Respondent complied with Dr. Santini's directives, although before adoption he argued with those of them with which he disagreed. The October 25 memorandum, as well as the October 20 meeting, set an enrollment cap. Respondent acceded to Dr. Santini's decision. He closed the October 20 meeting with a plea that geographical schools be prepared to finish the job that the ALC would not have time to finish. He transferred 75-80 students out by early November. He asked Mr. Wiseman around Christmas break if he should transfer another 112 students back to their geographical schools. And his average enrollment exceeded the enrollment of his successors by 13 students--while his average actual attendance was five students less than the average actual attendance of his successors. By mid-December, Dr. Santini, misinformed by unreliable information from Ms. Krucher and possibly other informants at the ALC, was concerned about whether Respondent would work out as the ALC Principal. This concern may have influenced her gate investigation and reaction to Respondent's testimony at the expulsion hearing. The situation rapidly deteriorated when Dr. Santini visited Respondent, unannounced, on the morning of the day that they had a meeting with Petitioner and began the meeting by saying that she would probably have to write up Respondent for his testimony. A supervisor should always be able to conduct a meeting with a subordinate. Respondent should not have abruptly terminated the meeting with Dr. Santini. Supervisors terminate meetings, not subordinates. However, this was an isolated action by Respondent, who had never before terminated a meeting with a supervisor. Respondent had understandably felt that Dr. Santini had treated him unfairly in the gate incident, heard her announce at the start of this meeting what looked like a decision, and decided to deal with all of this at the meeting with Petitioner later that day. Under the circumstances, Respondent's imprudent decision to end the meeting did not rise to gross insubordination. In the final analysis, as Petitioner testified, it is good practice to document problems with employees before terminating them. And, as Petitioner testified, her staff did not do so here. Clearly, Respondent and Dr. Santini have a serious communications problem, for which each bears some responsibility, even though, by the nature of things, a communications problem is typically a bigger problem for the subordinate employee than it is for his boss. But as Dr. Council and Dr. Gunter testified, there was no reason for this case to proceed this far. And the case would not have come this far if District staff had tried to help Respondent or even treated this case as a performance case--where, under the law, District staff would have had to identify Respondent's deficiencies and help him eliminate them.
Recommendation It is RECOMMENDED that the School Board of Lee County enter a final order dismissing the Petition, reinstating Respondent, and awarding him back pay as provided by law. ENTERED on June 28, 1996, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings on June 28, 1996. APPENDIX Rulings on Petitioner's Proposed Findings 1: adopted or adopted in substance except as to date of initial employment. 2-3: adopted or adopted in substance. 4: rejected as unsupported by the appropriate weight of the evidence, to the extent of the implication that these behaviors were more than isolated or represented significant problems. 5: rejected as unsupported by the appropriate weight of the evidence. 6-7: adopted or adopted in substance. 8-9: rejected as unsupported by the appropriate weight of the evidence. 10 (first two sentences): adopted or adopted in substance, as to the back of the neck. 10 (remainder)-12: rejected as unsupported by the appropriate weight of the evidence. 13 (through "end"): adopted or adopted in substance. (remainder): rejected as unsupported by the appropriate weight of the evidence. (first two sentences): adopted or adopted in substance. (remainder): rejected as unsupported by the appropriate weight of the evidence. (through "classroom"): adopted or adopted in substance, except as to throwing C. L. into the chair. (remainder): rejected as unsupported by the appropriate weight of the evidence. (through "credited"): adopted or adopted in substance. 16 (remainder): rejected as unsupported by the appropriate weight of the evidence. 17: rejected as unsupported by the appropriate weight of the evidence. 18 (first sentence): rejected as subordinate. 18 (remainder): rejected as unsupported by the appropriate weight of the evidence. 19: rejected as unsupported by the appropriate weight of the evidence. 20: rejected as unsupported by the appropriate weight of the evidence, except that O. B. complied with Respondent, who did not apply force to move him. 21: rejected as unsupported by the appropriate weight of the evidence. The testimony of Ms. Culligan is not credible. 22 (first sentence): adopted or adopted in substance. 22 (remainder): rejected as unsupported by the appropriate weight of the evidence. 23: rejected as subordinate. 24: rejected as unsupported by the appropriate weight of the evidence. 25: adopted or adopted in substance, except that Ms. Krucher did not witness the entire incident. 26: adopted or adopted in substance, except that Ms. Krucher did not step between J. B. and T. R., nor did she witness the rest of the incident. She prevaricated the portion of the incident that she missed while returning J. B. to her classroom, J. B. testified that Ms. Krucher returned her to her classroom. J. B. also testified that Ms. Krucher even tried to convince her than T. R. had not lunged at J. B. Ms. Krucher's credibility as a witness is very poor. 27: rejected as unsupported by the appropriate weight of the evidence, except that T. R.'s testimony was stricken after several vacillations demonstrated that, as to this incident, he could not distinguish between the truth and fiction. 28: rejected as unsupported by the appropriate weight of the evidence. 29 (first two sentences): adopted or adopted in substance. (remainder): rejected as unsupported by the appropriate weight of the evidence. (first two sentences): adopted or adopted in substance. 30 (remainder): rejected as unsupported by the appropriate weight of the evidence. 31: Respondent's testimony that he feared M. P. was on drugs is not credited, at least to the extent of attempting to create a well-founded fear in Respondent's mind that the mental state of M. P. was so altered as to render him dangerous. However, Respondent intervened with M. P. to stop him from leaving and preclude the possibility that this student, who obviously is afflicted with a serious behavior disorder, might strike Ms. Smith. The remainder of this proposed finding is rejected as unsupported by the appropriate weight of the evidence. 32 (first two sentences): adopted or adopted in substance. (remainder): rejected as unsupported by the appropriate weight of the evidence. (except last sentence): adopted or adopted in substance. There is no need to resort to Ms. Keel's testimony about the "rat's ass" remark. 33 (last sentence): rejected as unsupported by the appropriate weight of the evidence. 34: adopted or adopted in substance, except as to crediting Ms. Krucher's testimony and as to any harm to the student's mental health. 35 (except last sentence): adopted or adopted in substance, except that the displaying of the badge never frightened or intimidated anyone and no student believed that Respondent had extraordinary arrest powers by virtue of the badge. When Respondent spoke to the class, they presumably were off-task, but he did not destroy any instructional momentum. 35 (last sentence): rejected as unsupported by the appropriate weight of the evidence. 36: adopted or adopted in substance, except that Respondent did not badger the student or mistreat him in any way. 37: rejected as unsupported by the appropriate weight of the evidence. 38: adopted or adopted in substance, although Respondent appropriately dealt with the student, who should have raised his head to meet the new principal. 39: rejected as unsupported by the appropriate weight of the evidence, except that Respondent threatened the student with suspension if he did not make eye contact and listen to him. 40 (first two sentences): adopted or adopted in substance. 40 (third sentence): rejected as unsupported by the appropriate weight of the evidence. 40 (fourth sentence): rejected as irrelevant and unsupported by the appropriate weight of the evidence. 41: rejected as recitation of evidence and unsupported by the appropriate weight of the evidence. 42: rejected as unsupported by the appropriate weight of the evidence, except that on rare occasions Respondent opened doors to Academy classrooms. 43-45: rejected as unsupported by the appropriate weight of the evidence. 46: rejected as unsupported by the appropriate weight of the evidence, except to the extent of findings in the recommended order. 47-48 (except last sentence): adopted or adopted in substance, except Respondent did not say, "her record." (last sentence): rejected as unsupported by the appropriate weight of the evidence. (first sentence): adopted or adopted in substance. 49 (remainder): rejected as unsupported by the appropriate weight of the evidence. 50-51 (first sentence): adopted or adopted in substance. 51 (remainder)-52: rejected as unsupported by the appropriate weight of the evidence. 53: rejected as unsupported by the appropriate weight of the evidence. 54 (first sentence): adopted or adopted in substance. 54 (remainder): rejected as unsupported by the appropriate weight of the evidence. Respondent had not made a prior arrangement with Ms. McCollum, but Petitioner failed to prove that he was required to. 55: rejected as unsupported by the appropriate weight of the evidence. 56 (first two sentences): adopted or adopted in substance. 56 (remainder): rejected as unsupported by the appropriate weight of the evidence. 57: rejected as unsupported by the appropriate weight of the evidence. 58: rejected as unsupported by the appropriate weight of the evidence, except that Respondent terminated the meeting. The behavior was inappropriate, but did not constitute either insubordination or, more to the point, gross insubordination. 59 (first two sentences): adopted or adopted in substance. 59 (remainder): rejected as unsupported by the appropriate weight of the evidence. 60: adopted or adopted in substance. 61: rejected as unsupported by the appropriate weight of the evidence, as to no reason to arrest W. S. at the time. However, the altercation had ceased, and Respondent should have answered the reasonably inquiry of the officer. But his behavior did not constitute misconduct in office, gross insubordination, incompetency, or immorality. 62: rejected as unsupported by the appropriate weight of the evidence. Petitioner never accounted adequately for Officer Kusienski's omission of the word "fuck" from his police report or, less importantly, the discrepancy between Ms. Krucher and Officer Kusienski as to the number of times that Respondent uttered the expletive. Another problem for Petitioner was the contrary testimony of another officer of the Fort Myers Police Department. 63: rejected as unsupported by the appropriate weight of the evidence. 64 (first two sentences): adopted or adopted in substance, at least as to the effect that the grandmother could not serve as the legal guardian of J. M. because she was not. 64 (remainder): rejected as unsupported by the appropriate weight of the evidence and hearsay. 65-66: rejected as unsupported by the appropriate weight of the evidence. 67 (first sentence): adopted or adopted in substance. 67 (remainder): rejected as unsupported by the appropriate weight of the evidence, except that Respondent voluntarily admitted up to 18 students. 68: rejected as unsupported by the appropriate weight of the evidence. 69 (first sentence): adopted or adopted in substance. 69 (second sentence): rejected as unsupported by the appropriate weight of the evidence. 69 (remainder): rejected as unsupported by the appropriate weight of the evidence, as to Respondent's role in the failure to obtain individual educational plans constituting misconduct in office, incompetency, or gross insubordination. 70-71: rejected as unsupported by the appropriate weight of the evidence. Rulings on Respondent's Proposed Findings 1-13: adopted or adopted in substance, although there is some uncertainty as to the dates of Respondent's early employment with the District. The findings in the recommended order are guided by the dates and job descriptions contained in the evaluations. 13A: rejected as irrelevant. 14-15: adopted or adopted in substance, except that M. P. was not fearful. 16-29: adopted or adopted in substance. 30: rejected as unsupported by the appropriate weight of the evidence. The incident did occur. 30A-43: adopted or adopted in substance. 44: adopted or adopted in substance, but Respondent's brief conversation with Ms. Krucher more closely resembled the version in the recommended order, rather than the more elaborate version in the proposed finding. 45-46: adopted or adopted in substance. 47 (first sentence): rejected as unsupported by the appropriate weight of the evidence. Dr. Santini never reviewed several lines of the testimony. She focused only on one phrase. (remainder)-48 (through "Wiseman"): adopted or adopted in substance. (remainder): adopted or adopted in substance, although it is unclear the extent to which they discussed the January 5 memorandum itself, as opposed to the ALC overenrollment issue generally. 49-55: adopted or adopted in substance. 56-57: rejected as subordinate, except to the extent described in the recommended order. 58-62: adopted or adopted in substance, although the fact that Respondent's enrollments were no higher than the enrollments of his successors suggests that Respondent's enrollments did not exceed the cap or the cap as applied. 63: rejected as subordinate. 64-68: adopted or adopted in substance. COPIES FURNISHED: Superintendent Bobbi D'Allessandro The School District of Lee County 2055 Central Avenue Fort Myers, Florida 33901-3988 John M. Hament Kunkel, Miller and Hament 1800 Second Street, Suite 882 Sarasota, Florida 34236 Harry A. Blair Blair & Blair, P.A. 2138-40 Hoople Avenue Fort Myers, Florida 33901 The Honorable Frank T. Brogan Commissioner of Education The Capitol Tallahassee, Florida 32399-0400
Findings Of Fact During the 1976-1977 academic school year, Taylor was employed by the School Board as a teacher at Shenandoah Junior High School. Taylor has been a teacher for twenty-two years and no evidence has been introduced to establish that Taylor has been the subject of prior disciplinary action as a teacher. Taylor's family has been deeply involved in education in Dade County and it was stipulated that education has been the dedication of Taylor's life. The notice of charges contains fourteen numbered paragraphs. The actual charges against Taylor are contained in paragraphs 3 through 13. As to paragraph 3, the School Board has failed to establish with substantial competent evidence that on December 1 and 3, 1976, Taylor arrived late for her assigned duties and failed to report to her homeroom as required. As to paragraph 8, the School Board has failed to establish with substantial competent evidence that on September 20 and 23, 1976, Taylor failed to report to her homeroom assignment. As to paragraphs 4, 10 and 13, the School Board has failed to establish with substantial competent evidence that the charges contained therein are true. As to charge 9, the School Board has withdrawn the dates of September 28, 29 and 30, 1976. That which remains consists of five charges of refusing to report to homeroom assignment, six charges of being late for assigned duties and failing to report to homeroom assignment, ten charges of being late for homeroom assignment, one charge of absent without leave, and a final charge of failing to obey an order. Of these remaining charges the evidence fails to sustain the allegation that Taylor refused to report to her homeroom assignment on September 16 and 17, 1976. Furthermore, the evidence fails to sustain charge number 12 that on February 25, 1977, Taylor was absent without leave. It is found as a matter of fact that on September 21, 22 and 27, 1976, Taylor refused to report to her homeroom assignment. It is found as a matter of fact that on November 22, 23, 24, 29, 30 and December 2, 1976, Taylor arrived late for her assigned duties and failed to report to her homeroom as required. It is found as a matter of fact that on February 14, 15, 16, 17, 18, 22, 23, 24, 25 and 28, 1977, Taylor was late for her homeroom assignment. As to the remaining charge, it was alleged that Taylor had received an order from her department chairperson to provide emergency lesson plans, weekly lesson plans, and instructional objectives. There was no competent evidence introduced by the School Board to establish that the department chairperson had given such an order. Accordingly, charge number 5 is not proven by competent substantial evidence.
The Issue The issue presented is whether a rule establishing high school attendance zones is an invalid exercise of delegated legislative authority within the meaning of Subsection 120.52(8), Florida Statutes (2004).
Findings Of Fact Respondent is the School Board of Orange County, Florida (School Board). The School Board is an educational unit and an agency defined in Subsections 120.52(1)(b)7. and (6), Florida Statutes (2004). Respondent is the governing body of the Orange County School District (School District or District). In relevant part, Respondent has exclusive constitutional authority to "operate, control and supervise all free public schools" within the District pursuant to Article IX, Section 4(b) of the Florida Constitution (2004) (Florida Constitution). On January 11, 2005, Respondent adopted a rule establishing attendance zones for four high schools in western Orange County, Florida (Orange County). The rule modifies previously existing attendance zones for Apopka High School (Apopka), Olympia High School (Olympia), and West Orange High School (West Orange); and establishes a new attendance zone for Ocoee High School (the relief school). It is undisputed that the establishment and modification of school attendance zones involves rulemaking. The parties agree that the adoption of the relevant school attendance zones satisfies the definition of a rule in Subsection 120.52(15), Florida Statutes (2004). Petitioners challenge the rule as an invalid exercise of delegated legislative authority defined in Subsection 120.52(8), Florida Statutes (2004). In relevant part, Petitioners allege that Respondent violated Subsections 120.52(8)(a) and (e), Florida Statutes (2004), by materially failing to follow applicable rulemaking requirements and by adopting a rule in an arbitrary and capricious manner. Before proceeding to the merits of the rule challenge, it is important from a jurisdictional and contextual perspective to note that this Final Order does not reach any matter that falls within the scope of Respondent's exercise of constitutional authority. For reasons discussed in the Conclusions of Law, Respondent has exclusive constitutional authority to operate, control, and supervise public schools within the District (local control). The Legislature has constitutional authority over matters of statewide concern.2 The Legislature cannot statutorily delegate authority that is constitutionally vested in Respondent.3 For purposes of the rule challenge, the exercise of constitutional authority by Respondent is not the exercise of delegated legislative authority within the meaning of Subsections 120.56(1) and (3), Florida Statutes (2004). As a factual matter, the challenged rule involves local control of only those public schools within the District that are affected by the rule. The school attendance zones do not have application beyond the boundaries of the School District. The school attendance zones do not benefit or otherwise affect citizens of the state outside the District.4 The trier of fact has avoided findings concerning matters of local control, including the merits of the school attendance zones, the wisdom of the collective decision of the School Board, and the motives and intent of the individual members of the School Board. Jurisdiction to determine the invalidity of a rule involving matters of local control is the exclusive province of the courts.5 Legislative authority over matters of statewide concern includes the authority to ensure that local school attendance zones are drawn in a manner that complies with uniform requirements for fairness and procedural correctness. The Legislature delegated that authority to Respondent when it enacted Subsections 1001.41(6) and 1001.42(4)(a), Florida Statutes (2004). The trier of fact has made only those findings needed to determine whether the exercise of delegated legislative authority is invalid within the meaning of Subsections 120.52(8) and 120.56(1), Florida Statutes (2004). The challenged rule affects the substantial interests of Petitioners within the meaning of Subsections 120.56(1) and (3), Florida Statutes (2004). Petitioner, Citrus Oaks Homeowners Association, Inc. (Citrus Oaks), is a Florida nonprofit corporation, organized as a homeowners' association pursuant to Chapters 617 and 720, Florida Statutes (2004). The members of Citrus Oaks own residences in the Citrus Oaks subdivision. A substantial number of the members of Citrus Oaks are substantially affected by the challenged rule. A substantial number of members have children who are students in a public school affected by the challenged rule. The challenged rule reassigns many of those students from the Olympia school zone to the West Orange school zone. The subject matter of the rule is within the general scope of interest and activity of Citrus Oaks. The relief requested is of a type that is appropriate for Citrus Oaks to receive on behalf of its members. Citrus Oaks has represented its members in previous litigation, although this is the first administrative proceeding for Citrus Oaks. More than a substantial majority of the members of Citrus Oaks expressly authorized Citrus Oaks to undertake this proceeding for their benefit. Petitioner, Joy Hutchison, is the mother of Jamie Petkov and Kirsta Petkov. Mrs. Hutchinson and her children reside in Citrus Oaks in a neighborhood identified in the record as Gotha, Florida. At the time of the administrative hearing, Jamie Petkov and Kirsta Petkov attended Gotha Middle School (Gotha). Jamie Petkov and Kirsta Petkov would have attended Olympia in the absence of the challenged rule. The challenged rule changes the attendance zone of each student to West Orange. The challenged rule splits feeder patterns intended to ensure that students in adjacent neighborhoods stay together through progressive grades. The challenged rule assigns some students from Gotha to the Olympia school zone and assigns other Gotha students to the West Orange school zone. Differences in West Orange and Olympia do not affect the substantial interests of Petitioners. The two schools offer comparable, but not identical, educational programs. Each school is accredited by the Southern Association of Accreditation. Each is a comprehensive high school with a full range of academic opportunities for students and Advanced Placement (AP) classes for college credit. Each school offers comparable student-teacher ratios, teachers with advanced degrees, and extracurricular activities. West Orange and Olympia are not identical. Homebuyers generally prefer Olympia to West Orange. Area realtors emphasize location within the Olympia school zone as a marketing feature for homes. Prospective homebuyers generally request homes within the Olympia school zone. Approximately 100 students residing outside the Olympia attendance zone have falsified their domicile information in order to enroll in Olympia. Disparities between West Orange and Olympia do not deny Petitioners a uniform system of education. A uniform system of education does not require uniformity among individual schools in physical plant, curricula, and educational programs.6 The rule development process that culminated in the challenged rule began sometime in March 2004. Three staff members in the District office of the Director of Pupil Assignment (the Director) were responsible for recommending school attendance zones to the Superintendent and his cabinet. The Director and her staff pursued negotiated rulemaking within the meaning of Subsection 120.54(2)(d), Florida Statutes (2004). In March 2004, the staff began to establish relevant time lines. In April and May of the same year, staff met with principals of schools potentially subject to rezoning. Staff requested each school principal to submit the names of three individuals to serve on a school rezoning committee to work with the staff. Each school rezoning committee was comprised of the "PTSA president, SAC chairperson, and another member." Each school rezoning committee was a negotiating committee within the meaning of Subsection 120.54(2)(d), Florida Statutes (2004). Each school rezoning committee was a balanced committee of interested persons who drafted complex rules in anticipation of public opposition. Each committee worked in good faith to develop group consensus for a mutually acceptable proposed rule. The Director and her staff provided packages to each school rezoning committee. The packages included information concerning time lines; rezoning criteria; maps; demographic information about neighborhoods; transfer policies; transportation; and school data such as demographics, enrollment, and original design capacity. Each committee developed proposed attendance zones based on eight rezoning criteria prescribed in the packages. The eight rezoning criteria are identified in the record as: operate under the current desegregation order; consider future planning and growth of attendance zones; equally distribute population to balance facility use of affected schools; consider reducing student transportation distances, when necessary; maximize the number of students walking to school; maximize the school feeder pattern structure; minimize the disruption of residential areas; and ensure demographic balance, when possible. Each committee was required to give overriding importance to the first three of the eight criteria. The school rezoning committees produced approximately 11 initial proposals. The Director and her staff scrutinize various proposals and received citizen input during three public meetings on August 25 and October 5 and 25, 2004. Each public meeting was a rule development workshop within the meaning of Subsection 120.54(2)(c), Florida Statutes (2004). Approximately 600 members of the public attended the first workshop conducted on August 25, 2004. Many members of the public spoke at the meeting or provided written input concerning the various proposals. Staff and committee members considered the public input and scrutinized the proposals. Staff reduced the number of proposals to seven, identified in the record as options A through G, and conducted a second workshop on October 5, 2004. Between 400 and 500 members of the public attended the second workshop. As the meeting "wore on," the Director concluded that no consensus on a single proposal was attainable at that time and adjourned the meeting. After the second workshop on October 5, 2004, the staff developed one recommendation for rezoning and two best options identified in the record as the recommendation, option A, and option F. Staff presented the recommendation to the Superintendent at a cabinet meeting, but also included, for informational purposes, the two options. Attendees at the cabinet meeting included "area superintendents," the chief financial officer, the chief facilities officer, the chief operations officer, and the deputy superintendent for curriculum instruction. The Superintendent and his staff vetted the recommendation before the recommendation was presented to the public as the "Staff Proposal" during a third workshop conducted on October 26, 2004. Approximately 500 members of the public attended the third workshop. The Director presented the Staff Proposal and received public input. The Staff Proposal reassigns 435 students from Apopka to the relief school; 136 students from Olympia to West Orange; and 2,315 students from West Orange to the relief school. The Staff Proposal does not rezone students in Citrus Oaks from Olympia to West Orange. There was no discussion at the third workshop of rezoning options other than the Staff Proposal. It is undisputed that Respondent complied with applicable rulemaking procedures from the initiation of the rulemaking process, through the third workshop conducted on October 25, 2004, when staff presented the Staff Proposal. The alleged violations of applicable rulemaking procedures occurred from October 26, 2004, through January 11, 2005. During that interval, Respondent amended the Staff Proposal and adopted the challenged rule. From October 26 through November 29, 2004, Mrs. Karen Ardaman, a member of the School Board, conducted several non- public conferences with the Director and her staff. The non- public conferences were workshops conducted for the purpose of rule development within the meaning of Subsection 120.54(2)(c), Florida Statutes (2004) (private workshops). The private workshops did not involve negotiated rulemaking within the meaning of Subsection 120.54(2)(d), Florida Statutes (2004). The private workshops were conducted between a member of the School Board and District staff for the official business of rule development. Mrs. Ardaman stated to the Director and her staff that the purpose of the private workshops was to "tweak" the Staff Proposal. Mrs. Ardaman expressed a specific goal of rezoning at least 300 students from Olympia and an optimal goal of reducing Olympia enrollment to design capacity, if possible. The workshops were extensive and produced four "work-up" proposals identified in the record as Petitioner's Exhibits 20 through 23. One of the work-up proposals was adopted by Respondent as the challenged rule on January 11, 2005.7 Each private workshop included "what-if" questions from Mrs. Ardaman to staff members intended to scrutinize alternative school rezoning scenarios. Each scenario involved specific neighborhoods, the demographic breakdown for the neighborhood, the actual number of students, and the number of students to be reassigned. One work-up extended the West Orange zone to an area north of State Road 50. Another work-up reduced the Apopka enrollment from 4,265 to 3,830, or approximately 650 students over design capacity of 3,187. The private workshops included conversations regarding the use of permanent modular classrooms to relieve overcrowding at Olympia. Mrs. Ardaman requested staff to explore the possibility of adding permanent modular classrooms. On November 30, 2004, the Superintendent published in an area newspaper of general circulation a Notice of School Board Meeting scheduled for December 6, 2004. In relevant part, the notice stated that the purpose of the meeting is to discuss "West Orange Apopka Relief School Rezoning." The public meeting conducted on December 6, 2004, was a rule development workshop within the meaning of Subsection 120.54(2), Florida Statutes (2004). The School Board considered the Staff Proposal and the Ardaman alternative (the alternative proposal). The alternative proposal was circulated to the other members of the School Board. Two members left the workshop early. The remaining five members, including Mrs. Ardaman, reached consensus to reject the Staff Proposal and to advertise the alternative proposal as the proposed rule. On December 11, 2004, the Superintendent published a Notice of Proposed Action on High School Attendance Zones in The Orlando Sentinel. The public notice advertised a public hearing scheduled for January 11, 2005, to adopt the proposed rule. That portion of the public notice entitled, "Summary of Proposal" states, in relevant part, that the proposed rule reassigns students residing in Citrus Oaks from Olympia to West Orange. The meeting conducted on January 11, 2005, was a public hearing within the meaning of Subsection 120.54(3)(c)1., Florida Statutes (2004). Members of the School Board adopted the proposed rule by a vote of four to three. Mrs. Ardaman voted with the majority. The private rule development workshops between a school board member and District staff failed to follow applicable rulemaking procedures prescribed in Subsections 120.54(2)(a) and (c), Florida Statutes (2004). Respondent provided no public notice of the private workshops. Respondent failed to follow applicable rulemaking procedures prescribed in Subsections 120.54(2)(a) and (c), Florida Statutes (2004), for the rule development workshop that Respondent conducted in public on December 6, 2004. The notice published on November 30, 2004, was less than 14 days before December 6, 2004. The published notice did not include an explanation of the purpose and effect of either the Staff Proposal or the alternative proposal. The published notice did not cite the specific legal authority for either proposal and did not include the preliminary text of each proposal. Respondent failed to comply with other rulemaking procedures prescribed in Subsection 120.54(2)(c), Florida Statutes (2004). Respondent precluded public participation during the rule development workshop on December 6, 2004. Therefore, the persons responsible for preparing the respective proposals did not explain either proposal to the public and were not available to answer questions from the public or to respond to public comments. The failure to comply with applicable rulemaking procedures is presumed to be material within the meaning of Subsection 120.52(8)(a), Florida Statutes (2004). § 120.56(1)(c), Fla. Stat. (2004). The burden of proof shifts to Respondent to rebut the presumption. Id. Respondent did not rebut the presumption with evidence that the fairness of the proceeding was not impaired or that the proceeding was procedurally correct. Respondent did not show that it cured the materiality of the failure to comply with applicable rulemaking procedures (procedural errors) by satisfying other rulemaking requirements such as those in Subsection 120.54(3)(e), Florida Statutes (2004). After December 11, 2004, when Respondent published the notice of proposed agency action to adopt the proposed rule, Respondent did not show that it filed a certified copy of the proposed rule with the agency head, together with other relevant materials, for public inspection. For reasons stated hereinafter, the public hearing conducted on January 11, 2005, did not cure the materiality of prior procedural errors. A preponderance of evidence shows the failure to comply with applicable rulemaking procedures was material within the meaning of Subsection 120.52(8)(a), Florida Statutes (2004). The procedural errors impaired the fairness and procedural correctness of the development and adoption of the challenged rule. In relevant part, the failure to provide public notice of the private workshops deprived members of the School Board and the public from equal participation, an opportunity to scrutinize various scenarios, and an opportunity for input and comment. The private workshops circumvented six months of prior negotiated rulemaking and public workshops between District staff, rezoning committees, the public, and the Superintendent and his cabinet; and reduced the public process to a shell into which non-public decisions were later poured. The public notice advertised on November 30, 2004, was inadequate. The notice deprived interested members of the School Board and the public of prior notice that the scope of the workshop on December 6, 2004, would include rezoning proposals not addressed in previous public workshops. The procedural errors materially changed the Staff Proposal and materially affected some students not assigned to Olympia in the Staff Proposal. For example, the Staff Proposal decreases Olympia enrollment, through reassignment of students to West Orange, by 136 students; or approximately four percent of the 3,337 students enrolled in Olympia on October 15, 2004; and approximately three percent of the 3,410 students projected to be enrolled in Olympia in the next school year (the 2005-2006 school year). The challenged rule decreases Olympia enrollment by 285 students. That is more than twice the decrease in enrollment in the Staff Proposal. The challenged rule decreases enrollment at Olympia by approximately eight percent of the 3,332 students enrolled in Olympia on November 15, 2004; and approximately eight percent of the projected enrollment of 3,410 for the following school year. The procedural errors materially impact the original design capacities at Olympia and West Orange. The original design capacities at the respective schools are 2,781 and 3,195 students. The enrollment at Olympia on October 15, 2004, in the amount of 3,337 students, exceeded original design capacity by 556 students (overcrowding), or approximately 19.9 percent. The enrollment at West Orange on the same date, in the amount of 4,320 students, exceeded original design capacity by 1,035 students, or approximately 32.4 percent. The Staff Proposal reduced overcrowding at Olympia to 420 students, or approximately 15.1 percent of original design capacity; and added 136 students to West Orange enrollment, or approximately 4.2 percent of original design capacity at West Orange. Based on enrollment on October 15, 2004, the challenged rule decreases overcrowding at Olympia to 271 students, or approximately 9.7 percent of original design capacity; and adds 285 students to the West Orange enrollment, or approximately 8.9 percent of original design capacity.8 The materiality of the procedural errors is exacerbated by the scheduled loss of the Ninth Grade Center at West Orange in the 2005-2006 school year. That event will reduce actual capacity at West Orange from the original design of 3,195 students to 1,993 students. This is a capacity loss of 1,202 students. The challenged rule adds 285 students to West Orange enrollment next year, which is an increase of approximately 14.3 percent over actual capacity. The Staff Proposal adds 136 students to West Orange enrollment, which is an increase of approximately 6.8 percent over actual capacity. The Staff Proposal and challenged rule leave West Orange with 2,236 and 2,385 students, respectively, or approximately 243 and 392 students over next year's actual capacity of 1,993 students. Overcrowding at West Orange from the Staff Proposal is approximately 12.19 percent of actual capacity next year, and overcrowding from the challenged rule is approximately 19.66 percent of actual capacity. The Staff Proposal reduces overcrowding at Olympia next year from 19.99 percent to 15.1 percent over capacity and leaves overcrowding at West Orange over 12.19 percent. The challenged rule reduces overcrowding next year at Olympia from 19.99 percent to approximately 9.7 percent and leaves overcrowding at West Orange at 19.66 percent over actual capacity. The procedural errors facilitated a challenged rule that departs materially from recommendations by the Olympia rezoning committee. The rezoning committee recommended no change at the school. In relevant part, the committee wrote: While we recognize that Olympia remains overcrowded, aggressive, proactive measures should be taken to address overcrowding of Olympia in other ways. Specifically those measures include: Exploring the possibility of adding "permanent" modular structures; and Increasing efforts to remove students who attend Olympia illegally claiming an address in our zone but who actually live out of zone. West Orange is left with room for the growth they expect. Petitioner's Exhibit 14 (P-14). The Orange County Commission, in a decision entered on July 14, 1998, prohibited "portable" classrooms on the Olympia campus in the original design of the school. The decision, however, does not expressly prohibit "permanent" modular classroom structures. Sufficient property exists on the Olympia campus to accommodate permanent modular classroom structures. The procedural errors that occurred in adopting the challenged rule materially affected students in Citrus Oaks who are reassigned to West Orange. The challenged rule will interrupt feeder patterns at Gotha by reassigning some Gotha students to West Orange and allowing others to attend Olympia. The preceding findings concerning variations between the Staff Proposal and the challenged rule are made solely for examining the materiality of procedural errors. The findings do not examine the merits of the challenged rule or the wisdom of the decision of the School Board. Respondent maintains a stated agency policy that prohibits an individual member of the School Board from participating in any matter pending before the Board in which the member has a conflict of interest. In relevant part, the written policy provides: Board members are expected to avoid conflicts of interest involving any matter pending before the board. A conflict of interest is deemed to exist when the member is confronted with an issue in which the member has a personal . . . interest or . . . circumstance that could render the member unable to devote complete loyalty and singleness of purpose to the public interest. . . . The accountability to the whole district supersedes: * * * c. Conflicts based upon the personal interest of a board member who is a parent of a student in the district. P-6, at 001945. Mrs. Ardaman is a member of the School Board who is a parent of three students in the Olympia school zone. When District staff presented the Staff Proposal, one student was a senior at Olympia, another was a sophomore at Olympia, and the youngest was in the sixth grade at Gotha. Mrs. Ardaman did not have a conflict of interest concerning the Staff Proposal, option A, or option F. None of those proposals reassigned any of the Ardaman children from Olympia to West Orange. A deemed conflict of interest existed for Mrs. Ardaman during: the private workshops she conducted with District staff for the purpose of rule development; the public deliberations at the meeting conducted on December 6, 2004; and the vote of the School Board members that took place at the public hearing conducted on January 11, 2005. Courts have recognized that each concerned parent has an interest in his or her children, the educational program in which each is enrolled, the prevention of disruption in the educational progress of each child, and any unwarranted disruption in the child's educational experience.9 Mrs. Ardaman had a judicially recognized interest in developing and adopting a rule that minimized the foregoing impacts on her children. Citrus Oaks sits on the northern boundary of Old Winter Garden Road (Winter Garden). The Ardaman children reside in a neighborhood to the south of Winter Garden. Mrs. Ardaman chose to reassign Olympia students to West Orange from three neighborhoods north of Winter Garden, including students in Citrus Oaks, and to reassign Olympia students to West Orange from only one neighborhood south of Winter Garden. The challenged rule does not achieve the optimal goal sought by Mrs. Ardaman of reducing Olympia enrollment to the original design capacity. The challenged rule could have achieved that goal by increasing the number of reassignments to West Orange from the geographic area south of Winter Garden. Mrs. Ardaman declined that option. During the non-public workshops, Mrs. Ardaman asked District staff to analyze numerous school rezoning scenarios based on reassignments from specific neighborhoods. Although the various scenarios included neighborhoods south of Winter Garden, Mrs. Ardaman did not ask staff to analyze a scenario that would have reassigned students in her neighborhood from Olympia to West Orange. Reassignment of Olympia students in the neighborhood in which Mrs. Ardaman resides would have interrupted feeder patterns for Gotha students. At the time, Mrs. Ardaman had a child in the sixth grade at Gotha. The challenged rule interrupts feeder patterns at Gotha for students residing in neighborhoods north of Winter Garden. Respondent exercised agency discretion in adopting the challenged rule in a manner that was inconsistent with officially stated agency policy. Respondent permitted a member of the School Board with a personal interest deemed to be a conflict of interest to participate in a pending matter before the School Board. The deviation from agency policy was material. The members of the School Board voted on January 11, 2005, to adopt the proposed rule by a vote of four to three. Mrs. Ardaman cast the deciding vote. Without the vote of Mrs. Ardaman, the remaining tie vote would have been insufficient to adopt the proposed rule.10 The deviation from agency policy was material for other reasons previously stated in the discussion of procedural errors and not repeated here. Respondent did not explain the deviation from officially stated agency policy. The adoption of the challenged rule was neither arbitrary nor capricious within the meaning of Subsection 120.52(8)(e), Florida Statutes (2004). The agency action is supported by logic and essential facts. Respondent did not adopt the proposed rule without thought or reason, and the proposed rule is not irrational. Between December 6, 2004, and January 11, 2005, the members of the School Board received data sheets and impact assessments for the proposed rule. The members had already received the data supporting the Staff Proposal. The members had adequate time between December 6, 2004, and January 11, 2005, to evaluate the logic, essential facts, and rationality of the proposed rule. The members of the School Board were faced with a controversial issue and a difficult decision. Reasonable individuals arguably may have decided to draw the school attendance zones differently. However, it is not appropriate for the trier of fact to substitute his judgment for that of the members of the School Board or to examine the wisdom of the decision of the School Board. Even though Respondent did not adopt the challenged rule in an arbitrary or capricious manner, the procedural errors and deviations from officially stated agency policy were material. Each impaired the fairness of the proceedings and prevented the agency action from being procedurally correct.
Findings Of Fact On June 19, 1976, respondent's sixteen-year-old daughter was employed as a cashier by Montgomery Ward and Company, (Montgomery Ward) at a department store on Normandy Avenue in Jacksonville. While shopping in the store, respondent cooperated in a scheme by which her daughter proposed to defraud Montgomery Ward. Items with a retail value in excess of one hundred forty dollars ($140.00) were brought to respondent's daughter, who rang up a sale on the cash register of less than three dollars ($3.00). Respondent was charged with grand larceny in an information filed on June 28, 1976, alleging the theft of goods from Montgomery Ward. She pleaded guilty to the information, and on August 17, 1976, an order was entered withholding adjudication of guilt and placing respondent on probation for two years. Carl E. Yedlicka, Jr., a parole and probation officer, supervises respondent as a part of his official duties. He has spoken to her on the telephone, visited her home, and seen her in his office. In his estimation, respondent's is an "excellent case." She has abided by all conditions of probation, has admitted her guilt, and has displayed contrition. A presentence investigation uncovered no prior offenses. In Mr. Yedlicka's opinion, respondent is a good candidate for early termination of probation. L. Fred Lennertz is principal of Jefferson Davis Junior High School where respondent is employed as a teacher of the educable mentally retarded. He has observed respondent teaching, and has never spoken to her about any deficiency in teaching. He has had no complaints from pupils or parents with reference to the incident in the department store or otherwise. Gerald DeStefano heads the department at Jefferson Davis Junior High School in which respondent works. He has worked with respondent for five or six years and believes that she "is an excellent teacher." Respondent teaches language arts and does a very good job. She gets along well with fellow teachers. During school time, she sets a good example for the students.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED that respondent's teacher's certificate be suspended for a period of thirty days. It is further RECOMMENDED that the suspension be stayed for the pendency of respondent's probation on the grand larceny charge, at the expiration of which, unless respondent's probation is revoked, the suspension be set aside and respondent be restored to good standing by the Professional Practices Council. DONE and ENTERED this 7th day of April, 1977, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530 Carlton Building 2009 Apalachee Parkway Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: L. Haldane Taylor, Esq. 605 Florida Theatre Building 128 East Forsythe Street Jacksonville, Florida 32202 Ronald C. LaFace, Esquire Post Office Box 1572 Tallahassee, Florida 32304 Tom Benton Professional Practices Council 319 West Madison Street Room 1 Tallahassee, Florida 32304 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE STATE BOARD OF EDUCATION OF FLORIDA IN RE: THELMA GEORGE CLAY DOAH CASE NO. 76-2113 /
The Issue The issue is whether Nicholas Penn should be administratively assigned to the J. R. E. Lee Opportunity School Program in lieu of expulsion for misconduct at the W. R. Thomas Jr. High School.
Findings Of Fact During the 1987-88 school year Nicholas Penn was an eighth grade student at W. R. Thomas Jr. High School in Dade County, Florida. At the beginning of each year students receive a locally prepared handbook which informs the students of the code of student conduct for the Dade County Public Schools. During social studies classes early in the year the code of student conduct is reviewed. Nicholas Penn cut class on September 8, 1987. He was picked up by the police. When he was picked up he had a knife with him. Charges resulting from possession of that knife were dropped. As a result of truancy, he was seen by the Assistant Principal, Donal Helip, who referred Nicholas to the guidance counselor, Betty Thomas. When Betty Thomas saw Nicholas, he told Thomas that he did not enjoy school, did not have many friends, and felt frustrated at home. After a discussion with his mother, Ms. Alcantara, it was agreed that Nicholas would be put on work assignment around the school. Nicholas was also processed for a psychological referral on or about September 20, 1987, because he did not seem to be performing at his academic potential. On October 22, 1987, Nicholas was involved in a fight at school as a result of which he received a bloody nose and a head injury. As a result of the fight, Nicholas was put on a 2-day suspension. He did not attend school on Friday, October 23, or Monday, October 26. Mr. Helip spoke with him on Tuesday, October 27, when he returned to school. Nicholas told Mr. Helip the incident was closed and there would be no more problems about the fight. The other boy involved told Mr. Helip the same thing. On October 28, a student commented to Mr. Helip that Nicholas had a knife. Mr. Helip had the school security monitor bring Nicholas to his office, where Mr. Helip asked Nicholas to unload his backpack. At the bottom of the backpack was a wooden handled knife with a seven inch blade encased in a homemade, black sheath. Ms. Alcantara was called to the school where she identified the knife as one of the type which she had at home, which were part of a knife set purchased at J. C. Penny's. Nicholas was suspended for 10 days with a recommendation of expulsion. A request for waiver of expulsion and reduction of the penalty to suspension was made because the knife had not been used to threaten anyone else. At the time that Nicholas was withdrawn from W. R. Thomas Jr. High School he had a D in math, an F in shop and in physical education and incomplete grades for his other classes. The explanation offered by Nicholas for having the knife in his bag was that he had not brought it to school. During computer class his backpack was on a table and the students involved in the October 22, fight came up to him and said, "Nick, you got a weapon on you?," and when the class ended he picked up his bag and was going to the next class when the school security monitor asked him to go with him to Mr. Helip's office, who wanted to search his things. They went through his locker and in the backpack found the knife. Nicholas originally said that it was not his, but his mother told Mr. Helip that it was a knife like others she had at home. Of course, her knives did not have a black, homemade sheath like the one found on the knife in the backpack. When she returned home she determined that her knife set was complete. Mrs. Alcantara then informed school officials that she had been mistaken when she identified the knife as one of hers. There was nothing about Nicholas' expression at the time his backpack was searched which gave any indication that he was surprised about the knife found in his bag; in Mr. Helip's view, if the knife had been planted, it should have been closer to the top of the bag. Nicholas maintains that when he arrived home he found a rip in the corner of the backpack which would have allowed someone to plant the knife in the bag. The backpack was never produced at the hearing. The Hearing Officer finds it more probable than not, given all the circumstances, that the knife was not planted and Nicholas brought the knife to school.
Recommendation It is recommended that the assignment of Nicholas Penn at the J. R. E. Lee Opportunity School be maintained. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 28th day of June, 1988. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of June, 1988. COPIES FURNISHED: Ms. Rosa Alcantara Frank R. Harder, Esquire 13173 Southwest 11th Lane Circle Suite 2A-3 Miami, Florida 33184 175 Fontaineblau Boulevard Miami, Florida 33172 Madelyn P. Schere, Esquire Dr. Joseph A. Fernandez Assistant Board Attorney Superintendent of Schools 1450 Northeast 2nd Avenue Dade County Public Schools Suite 301 School Board Administration Miami, Florida 33132 Building 1450 Northeast Second Avenue Miami, Florida 33132 The Honorable Betty Castor Sydney H. McKenzie, Esquire Commission of Education General Counsel The Capitol Department of Education Tallahassee, Florida 32399 Knott Building Tallahassee, Florida 32399
