Findings Of Fact Respondent was an employee of the School Board of Dade County, Florida, more particularly a Title One teacher at Miami Carol City Senior High School during the 1981-1982 school year. On May 6, 1982, John Cohn was a student in Respondent's fourth period class. Arnold Coats was a substitute teacher working with Respondent in Respondent's classroom on that day. After Respondent had given the students an assignment, Cohn requested and received permission to leave the classroom to go to the bathroom. While absent from the classroom, Cohn decided he wished to speak with Ronald Golemhieski, another teacher at Miami Carol City Senior High School. Cohn returned to Respondent's classroom to request permission. Coats came to the door and gave Cohn permission to go talk to Golembieski, but Cohn decided he should get permission from Respondent since Respondent was the teacher of the class. Cohn waited in the doorway of Respondent's classroom. When he finally got Respondent's attention, he beckoned with his finger, requesting Respondent to come to the doorway. Respondent went to the doorway, and Cohn requested Respondent's permission to go talk to Golembieski. Respondent grabbed Cohn, pulling him forcefully into the classroom. Commotion broke out in the classroom, and someone yelled for assistance. Golembieski heard the commotion, as did Victoria Bell, the hall monitor. When they arrived at Respondent's classroom, Respondent and Cohn were struggling with each other. They were face to face, and Respondent had his arm around Cohn's neck with his hand on Cohn's throat in a choking manner. Golembieski grabbed Cohn away from Respondent and, after separating them, took Cohn to his classroom to calm him down. Bell and Coats pushed the rest of the students back into their seats and restored order in Respondent's classroom. When the altercation ended, Cohn's shirt was torn and he had scratches on his chest. Just prior to Respondent's outburst, Cohn did nothing to provoke Respondent in any way and was not disrespectful to Respondent. When Cohn got Respondent's attention, Respondent both looked at Cohn and walked to the doorway in a normal manner, thereby giving no warning that he intended to touch Cohn in any way. Respondent interpreted Cohn's beckoning with his finger as an invitation to fight, although Respondent admits that Cohn said nothing to him indicating that he wished to fight.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of the allegations contained in the Notice of Charges, approving Respondent's suspension and dismissing him as an employee of the School Board of Dade County, and denying any claim for back pay. DONE and RECOMMENDED this 31st day of August, 1983, in Tallahassee, Leon County, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 1983. COPIES FURNISHED: Jesse J. McCrary, Jr., Esquire 3000 Executive Plaza, Suite 800 3050 Biscayne Boulevard Miami, Florida 33137 Ellen L. Leesfield, Esquire 2929 SW Third Avenue, Fifth Floor Miami, Florida 33129 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1410 NE Second Avenue Miami, Florida 33132
Findings Of Fact At all times pertinent to the issues herein, Respondent, Glover E. Jones, was licensed as a teacher in the State of Florida holding certificate number 556798, covering the area of mathematics, and was employed by the Madison County School Board as an adjunct instructor at Madison County High School, Madison, Florida. The uncontroverted facts in this case show that Pamela Ann Hale, the alleged recipient of the remarks in question here, was born on August 28, 1969. As of the date of the hearing, she was living with her mother in Live Oak, Florida, attending the 10th grade at Suwannee High School there. At the time of the alleged incident here, she was living with her father in Madison and attended Madison County High School. Her mother and father are divorced. While attending Madison County High School, Hale had the Respondent as her math teacher during the third period of the school day during the month of September 1984, at the beginning of the 1984-1985 school year. She did not have him for any other subjects nor did she know him prior to the beginning of the school year. This class was made up of students who required extra assistance and consisted of approximately 15 to 16 students in remedial math. On the day in question, Hale was selling candy during the class period to raise money for a school organization. She sold candy not only to her fellow students but also to the Respondent. At this point the stories told by Ms. Hale and by the Respondent begin to diverge. Ms. Hale contends that when she approached Jones on the date in question to buy candy he advised her to come back after class and she could sell him some. She contends, also, that she came back after the other students left even though she had another class (health) to attend, sat down at a student desk, and Respondent sat down facing her approximately three or four feet away. It is at this point that, she says, he asked her simple questions about herself and her family. When she answered, he then allegedly asked her if she had ever "fucked" a black man before. He allegedly told her she looked sexy that day. She says he asked her if she noticed that he "had a hard on" and touched himself in the genital area, asking her if she thought she could handle that. At no time, however, did Respondent ever touch the witness. She says he asked her if she had ever "fucked" anyone while someone else was in the room. She replied that she had not. He allegedly asked her if she had a boyfriend and when she said she did, he is alleged to have responded, "I'll bet you fuck him because he's not black." This conversation went on until about 10 or 15 minutes before the fourth period was over. As was stated previously, the witness had health the fourth period and cut the class because, as she tells it, Respondent asked her to stay. While she was in the room with Jones alone, a Mr. Alexander, also a math teacher, entered, along with two other students. While in the room, Alexander asked Respondent if the witness was having any trouble with her work to which Respondent replied that she was, but indicated he would take care of it. Alexander verifies this with the exception that according to his testimony, when he came into the room, Respondent was seated at his desk writing a note and Hale was standing in front of him. This is not a significant difference. After Alexander left, Respondent asked the witness several questions about her siblings including her sister who formerly went to Madison High, but who quit when she had difficulty with some black students the previous year. He asked her if she was going to go to the ball game the following Thursday and, when she replied that she was, she says he suggested that perhaps they could get together that night. Ms. Hale contends she was amazed that Respondent talked to her in this fashion but she also contends she did not leave because she was afraid of him, though he made no threats, either verbal or physical, toward her and made no effort to prevent her from leaving. She also made no comment to Alexander when he and the other students came into the room even though these suggestive statements had already been made. She finally terminated the conversation toward the end of the fourth period by stating she had to go to her next class. Before she left, she asked Respondent for a note, which he gave her and asked her not to repeat the conversation they had had. During fifth period, Hale had lunch scheduled and during lunch with Loretta Sealy, she related in general terms, to Sealy, what had happened. After lunch, she went to the remainder of her classes and went home but even that night, she failed to tell her father of the incident because she was afraid he might do something as a result of his hot temper. Sealy indicates that when she first saw Hale after the incident, when Hale came into the ladies' room, she appeared nervous, upset, and near tears. She said that Respondent had said things which upset her--in essence propositioning her. At first, Hale did not want to report the incident because she felt nobody would believe her. However, Sealy finally convinced her to do so and the two girls went to see the assistant principal, Ms. Miller, two days after the incident took place. Hale told Ms. Miller what had happened and signed the first of several written statements which was prepared for her signature by Miller based on the report given. Later on, she agreed to take a polygraph examination regarding her story. No evidence was presented as to whether the exam was given or not. Ms. Hale attended class with the Respondent during the several days between the time of the alleged incident and the report to Ms. Miller, but once the story came into the open, she was removed from his class. She talked with Miller rather than the principal because she had known Ms. Miller from her prior school. The fact that she did not talk with the principal had nothing to do with the fact that he is black. Respondent's version of the story differs from that of Hale in that he contends that at the end of the class period on the day in question, Hale asked him if she could stay after class. He contends that her remaining had nothing to do with buying candy because he bought candy from her when she came to class. He also claims that she did her homework during this fourth period when she and he were the only people in the room. While she was working, he was behind his desk and she was sitting at a student desk off to his left. Respondent contends that it was Hale who made the first non-business statement by asking him if she could go smoke. He told her that she could not since smoking was not allowed on campus. She responded that another teacher, Mr. Hendrix, had allowed her to smoke in the school building and then went on to indicate that she had "messed" with guys in their twenties when she was twelve. This statement, which came immediately after the comments about Mr. Hendrix and smoking, shocked him. The only reason he did not ask her to leave was because she appeared to have a problem and he thought he might be able to help her. During the course of the conversation she indicated that some blacks had attacked her sister the previous year on campus which had caused her sister to leave school and that, in general, all black students at Madison High were wild. Though Ms. Hale, in her testimony, indicated that when asked by Respondent if she had ever fucked a black man, she responded by asking him if he'd ever fucked a white woman, Respondent denies that Hale ever asked him this question nor did she mention drugs to him in any fashion. He denies making any of the comments attributed to him by Hale or any of the suggestive movements she claimed he made, though in the letter he submitted to the principal the morning after being confronted by the accusations against him, denials were not so strong or so widespread. In fact, in that written statement, he commented, "I'm not saying that the statement made is totally wrong, but there are two things that trouble me most about it." He then goes on to list these two troublesome areas as the statement makes it appear as though he is the culprit and that some things in it are either false or turned around. He then goes on to list the several things Hale is supposed to have said to him that were not included in her statement, such as her sexual activity and her obvious antipathy toward black men. When Hale finally went to see Miller, she appeared to be quite upset though she was not crying. She was somewhat reluctant to talk to Ms. Miller until finally Miller released Sealy to go back to class and after Sealy left, Hale told Miller her entire story. Once Hale had completed her version of the story, Miller asked her to wait and went to talk with the principal who returned to the office with her to talk with Hale. After discussing with the resource officer how to take a statement, Miller returned to the office and took a detailed statement from Hale a second time in the form suggested to her and had it signed by Hale and notarized. Later that morning, Ms. Miller, the principal, Mr. Yanessy, the resource officer, and Mr. Buchanan called Respondent into the principal's office and showed him a copy of Hale's signed statement. Respondent read it, handed it back, and said that the statement was not "exactly" true--that Hale had twisted a lot of things around. He contended that in reality it was Hale who asked a lot of the questions, not him, and that he would do anything to clear his name. Respondent contended he had no interest in either Hale or any other young girl. At this point the investigating group advised him that they would talk with him later and take a statement from him. About two hours later they did meet again and at this time, Respondent repeated his comments made earlier in the day to the extent that while a conversation took place, it did not happen as Hale said it did. At this point, though the school officials wanted to take Respondent's statement, Respondent did not want to speak on the record then. The following morning he gave the principal the letter which was referred to above. Based on an evaluation of the testimony of Ms. Hale, Ms. Sealy, the Respondent, and Ms. Miller, all of which bears on the credibility of the Respondent vis-a-vis his accuser, it becomes clear, and it is so found, that a conversation did take place in the classroom during the fourth period on September 10, 1984, between Respondent and Ms. Hale when the two of them were the only persons in the room. It most likely will never be determined exactly as to who said what to whom. There is no doubt, however, that the Respondent permitted a student who he knew had a class to attend, to remain in his classroom with him at the expense of her absence from that succeeding class. Though Respondent advised Mr. Alexander that he was helping Hale with her school work, there is no other evidence that he did so. Ms. Hale contends he did not and he admits he did not stating only that she did her homework while in the room with him. Whatever the conversation was, it is clear that it was sexually oriented and Respondent used extremely poor judgment in allowing the situation to develop as far as it did. The evidence establishes that Ms. Hale's background is not without cloud. At the age of sixteen she is admittedly sexually experienced and has experimented with various controlled substances such as marijuana and cocaine. Ms. Miller indicated that her academic background was marginal--that while she can do her work and can be an average student, she has, nonetheless, failed. The nature of her testimony on the stand was not so clear as to give a certain picture as to what happened. It is most likely that Ms. Hale herself does not recall the incident with certainty. What is clear is that aside from her discussion with Ms. Sealy over lunch, she failed to make any complaint to anyone with authority to do something about it until several days after the incident took place and then only upon the urging of her friend. In substance then, it is obvious that the truth no doubt lies somewhere between the two stories. When Respondent found out that Ms. Hale had no legitimate reason to be in his classroom, he allowed her to remain and engaged in a conversation with her that should not have taken place. While the exact words are in question, the subject matter is not. It was sexually oriented and the parties were a twenty-five-year-old male teacher and a fifteen- year-old female student. His judgment in allowing that to happen is abysmal and his professionalism in that instance was nonexistent especially in light of the fact that he was warned twice at the beginning of his employment with the school system by his principal, to be very careful of his conduct in dealing with female students. Mr. Ray, the principal, indicates that if the allegations against the Respondent are true, it would seriously reduce his effectiveness as a classroom teacher because of the need for a teacher to observe the strictest propriety in his relationships with students. Such conduct as alleged here would undoubtedly be harmful to the learning process and would create an embarrassment to the student. If the allegations are true he would not want Respondent back working for him. In his opinion, for a situation such as this, if established, there are no less drastic remedies than termination. He believes that there is no place in Madison County for a teacher guilty of these allegations and in addition to termination, revocation of the teaching certificate would be appropriate. On the other hand, if it were to be established that the allegation was not true, then Respondent's effectiveness would not be diminished and the credibility of the student would be damaged. However, in his experience it is very unusual for female students to make sexual advances toward teachers. While it could occur, in his opinion it is not likely and over the 19 years he has been in education, it has never happened to him. Mr. Buchanan, who has been in place as Superintendent of Schools in Madison County for over 8 years, is familiar with the allegations in this case and Respondent's denial. His analysis of the case resulted in his recommendation that the School Board suspend the Respondent from his teaching position and in addition, he reported Respondent to the Education Practices Commission. He took this step because he felt an obligation to report substandard conduct of an educator. Assuming that the allegations are true, in his view, the effectiveness of the Respondent is reduced because in a case like this the teacher loses credibility with his students. He feels that if true, Respondent's conduct would be harmful to the learning process and embarrassing to the student and would have an adverse impact on the relationship between the parents and the school system. Viewing the evidence in its totality and weighing the credibility of all witnesses, as alluded to before, it becomes clear that a one on one conversation took place between the Respondent and Ms. Hale. It is most likely that Respondent did not prompt the conversation and did not request that Ms. Hale remain after class. To the contrary, it would appear that she requested to remain after class. No doubt improper comments were made by both Ms. Hale and the Respondent and it makes no difference whether Ms. Hale or the Respondent initiated the colloquy. It is quite clear that subject matter improper for a conversation between a student and a teacher of opposite sexes, involving sexually suggestive comments took place and that both Respondent and Ms. Hale used language of this nature.
Findings Of Fact Based on my observation of the witnesses and their demeanor while testifying, the documentary evidence submitted and the entire record compiled herein, I hereby make the following bindings of fact: The Respondent, Consuelo DeArmendi, holds a Rank I Florida teaching certificate #399385, expiring June 30, 1987, authorizing her to teach foreign languages in secondary education. The Respondent has been employed as a foreign language teacher by the Dade County school system for approximately eight (8) years beginning in 1978. Respondent was initially employed at Miami Palmetto Senior High School for the 1978-79 school and taught at Highland Oaks Junior High School for the 1979-80 school year. Beginning with the 1980-81 school year, Respondent taught Spanish and French at Miami Carol City Senior High School where she remained until her suspension on June 4, 1986. 1980-81 SCHOOL YEAR During the 1980-81 school year, the Respondent was late or absent from Miami Carol City Senior High School on many instances and failed to call the school office as prescribed in the Faculty Handbook. According to the handbook, which is provided to all teachers, a teacher is required to notify the school prior to leaving if the teacher is aware that he or she will be absent the following day. A teacher may also call a designated member of the clerical staff between 6:00 p.m. and 9:30 p.m. if they intend to be absent the following day but were unaware of the intended absence prior to leaving school. Finally, the teacher is allowed to report an unexpected absence to the school on the morning of the absence between 6:30 and 6:45 a.m. Advance notice of an absence allows the school to secure substitute teacher coverage for the class. For the 1980-81 school year, Respondent was observed and evaluated by her principal and rated "unacceptable" in preparation and planning, professional responsibility and supportive characteristics because of repeated absences and tardiness. On February 10, 1981, the principal placed the Respondent on extended annual contract for failure to improve her attendance at work and failure to comply with school policy regarding teacher absences. 1981-82 SCHOOL YEAR The classroom observation of Respondent conducted on November 11, 1981 by the assistant principal resulted in an overall "unacceptable" rating. Respondent was found unacceptable in Category I - Preparation and Planning; Category III - Classroom Management; Category IV - Techniques of Instruction; Category VI - Teacher Student Relationships; and Category VII - Professional Responsibility. The classroom observation of Respondent conducted on March 1, 1982 by the assistant principal resulted in an overall "unacceptable" rating. Respondent was rated unacceptable in Category I - Preparation and Planning; Category III - Classroom Management; Category IV - Techniques of Instruction; Category V - Assessment Techniques; Category VI - Teacher-Student Relationships; and Category VII - Professional Responsibility. The classroom observation of Respondent conducted on March 18, 1982 by the assistant principal resulted in an overall "unacceptable" rating. Respondent was rated unacceptable in Category III - Classroom Management; Category IV - Techniques of Instruction; Category VI - Teacher-Student Relationships and Category VII - Professional Responsibility. The classroom observation of Respondent by Ms. Wally Lyshkov, the school district foreign language supervisor, conducted on April 15, 1982, resulted in an overall "unacceptable" rating. In particular, Respondent was found unacceptable in Category I - Preparation and Planning; Category III - Classroom Management; Category IV - Techniques of Instruction; Category V - Assessment Techniques and Category VI - Teacher-Student Relationships. Ms. Lyshkov's observation of Respondent's teaching techniques and materials revealed that Respondent had a multi- level class (Spanish II and III combined), but only used one set of lesson plans. The lesson plans did not include the variety of activities that are usually and normally found in a multi-level class. The students tended to ignore any directions that Respondent gave and there was little, if any, exchange with the students. There was almost no activity or active participation on the part of the students, and Respondent was generally unaware of what the students were doing. During the 1981-82 school year, the Respondent received assistance and recommendations from Ms. Lyshkov on handling multi-level classes and assistance in establishing various student-directed and teacher-directed activities. In Ms. Lyshkov's opinion, the Respondent did not demonstrate an ability to deliver quality education or instruction because of her ineffectiveness in transmitting her knowledge to the students. During the 1981-82 school year, the principal became concerned with Respondent's excessive number of absences and her failure to comply with the school's procedures for calling in and reporting absences. In addition, the principal had received several complaints from students and parents concerning Respondent's excessive absences. On March 8, 1982, the principal gave her a notice of not complying with procedures and requested a formal conference to discuss Respondent's excessive absenteeism and student complaints. On June 3, 1982, Respondent was officially observed in the classroom by the principal and received an overall rating of acceptable. However, Respondent was rated unacceptable in Category VIII - Professional Responsibility, because of her consistent failure to follow guidelines in reporting her absences and her excessive number of absences which negatively impacted on the continuity of instruction provided to her students. In the Respondent's Annual Evaluation Report for the 1981-82 school year, the principal recommended that Respondent not be re-employed. The Respondent was rated "unacceptable" in preparation and planning, classroom management, techniques of instruction, teacher-student relationships, professional responsibility and supportive characteristics (teacher contribution to total school program). Despite the principal's recommendation, Respondent was re-hired because she had already achieved continuing contract status. 1982-83 SCHOOL YEAR On January 26, 1983, the principal conducted a conference-for-the- record with Respondent. The conference was held because of Respondent's attendance record, lack of planning and failure to comply with instructions governing the reporting of absences. On several occasions, the Respondent failed to timely notify the school about her intention to be absent which resulted in difficulties obtaining a substitute teacher and often required another teacher to cover the Respondent's classes as well as his/her own class. In addition, teachers are required to have emergency lesson plans on file for use by substitute teachers when the primary teacher is absent. The Respondent did not have any emergency lesson plans on file. Respondent had been absent from her teaching assignment twenty-seven (27) days since the beginning of the 1982-83 school year. During the January 26, 1983 conference, Respondent informed the principal that she was taking medication (lithium) because of a manic-depressive disorder and that her most recent string of absences were due to a failure to take a proper dosage of the medication. The principal reminded Respondent of her responsibility to properly notify the school when she was going to be absent or tardy and referred her to the Employee Assistance Program. 1983-84 SCHOOL YEAR During October 1983, the Respondent was warned by the assistant principal on several occasions about her failure to properly inform the school regarding her absences. She was referred to the Faculty Handbook to review teacher's absences. Further, she was asked to prepare at least one week of emergency lesson plans to be used in her absence. Respondent did not prepare the emergency lesson plans as required. A classroom observation of Respondent conducted on November 22, 1983 by the assistant principal resulted in an overall "unacceptable" rating. In particular, Respondent was rated "unacceptable" in Category I - Preparation and Planning because she did not have adequate lesson plans for the subjects being taught. The lesson plans were not suitable for Respondent's mixed-level class because there was no distinction between student activities. Respondent was rated "unacceptable" in Category IV - Techniques of Instruction because there was no distinction in instruction provided to the different levels and groups of students. Respondent was rated "unacceptable" in Category V - Assessment Techniques because she did not follow school policy concerning grades which required at least one grade per week. There were only two or three grades on the roll book per student (this was the ninth week of school) and there was no rationale for the grades. Respondent did not maintain any records of student achievement other than what was on the roll book. Respondent was found "unacceptable" in Category VII - Professional Responsibility and Category VIII - Supportive Characteristics because of her excessive absences and her failure to follow proper procedure in reporting absences. The Respondent's excessive absences led to problems with continuity in student instruction as well as parental and student complaints. As a result of the observation on November 22, 1983, Respondent was given a prescription of planned activity which was designed to help her improve in these areas that had been rated unacceptable. On December 2, 1983, the Respondent was again warned by the assistant principal about reporting absences in a timely fashion. As was the case in most instances, the Respondent was absent and had failed to notify the school in a timely manner. A classroom observation of Respondent conducted on January 19, 1984 by the assistant principal resulted in an overall rating of "unacceptable". In particular, Respondent was rated "unacceptable" in Category I - Preparation and Planning; Category V - Assessment Techniques; Category VII - Professional Responsibility; and Category VII - Supportive Characteristics. For the 1983-84 school year, the principal rated Respondent as acceptable and recommended her for employment primarily because he had noted a sharp turnaround in Respondent's performance in the second half of the school year, starting in February, 1984. The principal knew that Respondent had been hospitalized in December 1983, and believed that as long as she was receiving medical attention and taking medication, she would be capable of performing in the classroom. 1984-85 SCHOOL YEAR At the conclusion of the 1984-85 school year, the principal rated the Respondent acceptable in all categories and recommended her for employment. 1985-86 SCHOOL YEAR On October 4, 1985, the principal held a conference for the record with Respondent to discuss her continued excessive absenteeism, failure to timely notify the school regarding her absences and numerous parent and student complaints regarding the instruction in Respondent's classroom. On October 4, 1985, the school year had been in session for students for twenty-two (22) days. The Respondent had been absent 10 days and had only completed one full week of school without an absence. At a conference on October 4, 1985 with the principal, Respondent indicated that she was under medication and that the problems she was experiencing would be corrected. On October 17, 1985, the assistant principal conducted an observation of Respondent's classroom. Respondent was rated overall as "acceptable", but was rated "unacceptable" in classroom management. Respondent was rated "unacceptable" in classroom management because of an apparent lack of control over the students in her classroom. When the assistant principal entered the classroom, the teacher was sitting at the desk and seemed to have little or no control over the students. Only four (4) or five (5) students were participating in the class discussion and the balance of the 25-30 students in the classroom were combing their hair, talking, eating or doing whatever they chose to do. When Respondent noted the presence of the assistant principal, she began to shout loudly at the class in an unsuccessful attempt to gain control. After the October 17 observation, the assistant principal gave Respondent a prescription for classroom management which required her to plan instructional activity to cover the entire hour of the class, establish a seating chart, separate talking students, plan activities with other Spanish teachers for instruction, work with the guidance counselor and make parental contacts with students who were disruptive in class. Respondent did not comply with or perform the planned activities set forth in the prescription. On November 6, 1985, the principal directed Respondent to provide a doctor's statement whenever she was absent because of illness. Respondent was absent after the directive and did not comply with it or provide an explanation for her absence. Between November, 1985 and early February, 1986, the Respondent took leave. She returned to work on February 14, 1986 and shortly thereafter continued her pattern of absences. In early March, 1986 the principal scheduled a conference for the record with Respondent for March 5, 1986 to discuss several student and parent complaints which the school had received. The Respondent was absent and did not attend the conference scheduled for March 5. Although the Respondent called the school to report an intended one day absence, the school did not hear anything from Respondent nor anything of her again until March 14, 1986. On March 14 a corrections officer contacted the school and stated that the Respondent was in the Women's Detention Center on a charge of battery and was being held pending a psychiatric examination at Jackson Memorial Hospital. Respondent was absent from her school assignment from March 5 until May 7, 1986. This absence negatively affected instructional continuity and the quality of education provided to the students in Respondent's classes. During the 1985-86 school year, Respondent was absent from her work assignment for at least eighty (80) days. At the conclusion of the 1985-86 school year, Respondent was evaluated by her principal as "unacceptable" and was not recommended for employment. Respondent was rated "unacceptable" in classroom management and professional responsibility. Throughout her period of employment, Respondent has undergone psychiatric medical treatment from at least five different physicians: Dr. Martinez, Dr. Garcia-Granda, Dr. Diaz, Dr. Metcalf and Dr. Vilasusa. Respondent has been diagnosed as a manic-depressive, characterized by periods of deep depression and/or extreme elation. It was uncontroverted that Respondent has an excellent command of her academic specialities--Spanish and French.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be issued sustaining Respondent's suspension and dismissing Respondent from employment with the School Board of Dade County, Florida. DONE and ORDERED this 22nd day of June, 1987 in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON 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 22nd day of June, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2274 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. 1. Adopted in Finding of Fact 2. 2. Adopted in Finding of Fact 3. 3. Adopted in Finding of Fact 5. 4. Adopted in Finding of Fact 4. 5. Adopted in Finding of Fact 6. 6. Adopted in Finding of Fact 9. 7. Adopted in Finding of Fact 11 8. Adopted in Finding of Fact 11. 9. Adopted in Finding of Fact 12. 10. Adopted in Finding of Fact 12. 11. Adopted in Finding of Fact 12. 12. Adopted in Finding of Fact 13. 13. Adopted in Finding of Fact 13. 14. Adopted in Finding of Fact 14. 15. Adopted in Finding of Fact 15. 16. Adopted in Finding of Fact 15. 17. Adopted in Finding of Fact 16. 18. Adopted in Finding of Fact 17. 19. Adopted in Finding of Fact 18. 20. Adopted in Finding of Fact 19. 21. Adopted in Finding of Fact 20. Adopted in substance in Finding of Fact 21. Adopted in Finding of Fact 22. Adopted in Finding of Fact 24. Adopted in Finding of Fact 25. Adopted in Finding of Fact 25. Rejected as a recitation of testimony. Adopted in Finding of Fact 26. Adopted in Finding of Fact 27. Adopted in Finding of Fact 28. Adopted in Finding of Fact 29. Adopted in Finding of Fact 30. Adopted in Finding of Fact 31. Adopted in Finding of Fact 32. Adopted in Finding of Fact 33. Rejected as a recitation of testimony. Rejected as a recitation of testimony and/orsubordinate. Rejected as a recitation of testimony and/orsubordinate. COPIES FURNISHED: Johnny Brown, Esquire Suite 301 1450 N.E. Second Avenue Miami, Florida 33132 William DuFresne, Esquire 2929 S.W. Third Avenue Suite One Miami, Florida 33129 Hon. Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399 Sydney McKenzie, Esquire General Counsel Department of Education The Capitol Tallahassee, Florida 32399 Dr. Leonard Britton Superintendent of Dade County Public Schools 1450 N.E. Second Avenue Miami, Florida 33132
The Issue Whether Respondent should be transferred to Jan Mann Opportunity School.
Findings Of Fact Respondent, Antwan Clark (Antwan), attended the sixth and seventh grades at Carol City Middle School during the academic years 1991-1992, and 1992-1993, respectively. On October 10, 1991, Antwan was suspended outdoors for three days for fighting. On October 22, 1991, Antwan was caught running in the school hallways by the assistant principal Don DeLucas. When Antwan was told to stop, he ignored the verbal request. Antwan was given a detention for his behavior. On November 5, 1991, Antwan was referred by his sixth period teacher to Assistant Principal DeLucas for being tardy to class, refusing to sign for detention, and walking out of class without a pass. Antwan was issued a reprimand/warning for his behavior and a conference was held with school administrators and his parents. After school was dismissed on March 10, 1992, the school principal Mary Henry walked toward the Carol City Elementary School while watching the students leave the middle school grounds. Antwan, across the street in a gas station parking lot, threw rocks across the street in the direction of Ms. Henry. Police Officer Christopher Burgain observed Antwan tossing the rocks. When Antwan saw the police officer, he moved to another group of students in the parking lot. Officer Burgain got Antwan and took him to Ms. Henry who told him to take Antwan back to the school. Ms. Henry called Antwan's parents. Antwan was suspended outdoors for two days for this incident. On March 16, 1992, Antwan's teacher, Ms. Viamonte, referred him to Assistant Principal DeLucas for getting out of his seat, coming to class unprepared, responding to the teacher when she asked for his daily progress report that she "was wasting his time" and threatening to tear up the daily progress report. Antwan was given a reprimand/warning and a conference was held with his parents. On April 16, 1992, Antwan cut his sixth period and was given a three- day indoor suspension. Another conference was held with his parents. On May 11, 1992, Antwan was caught gambling at a nearby senior high school. The assistant principal for the senior high school returned Antwan to Ms. Henry at the middle school. Antwan was suspended outdoors for three days. On July 22, 1992, Antwan was referred to Assistant Principal John Strachan for disciplinary action for telling a teacher that he didn't have to do what the teacher told him to do. Antwan was suspended outdoors for one day. During the 1992-1993 school year, Antwan was placed in the Student At Risk Program (SARP), which is a program designed for students who are at risk of dropping out of school. Students participating in SARP are given more attention than the students in the mainstream population. A counselor is assigned to the SARP program. On September 21, 1992, Ms. McGraw, Antwan's fifth period teacher referred Antwan to Assistant Principal Strachan for refusing to do his work, yelling at her about a pass to the office after she told him he could not have a pass, and refusing to give her a working telephone number for his parents so that she could call them. Antwan was given an indoor suspension until school administrators could meet with his parents. Antwan failed to stay in his class area during physical education class. His teacher, Janet Evans, would have to stop her class and call Antwan back into the class area. On September 24, 1992, Antwan left class without permission, and Ms. Evans found him and some other students outside the girls' locker room gambling by flipping coins. For these actions he was given a one- day indoor suspension. On October 29, 1992, Antwan was referred to Assistant Principal Strachan for excessive tardiness to school. Antwan refused direction by Mr. Strachan and was verbal and disruptive about being given a suspension. Antwan's mother was called to come and pick up him. Antwan was given a three-day outdoor suspension. On November 20, 1992, Teacher Golditch referred Antwan to the principal for shouting across the room to the extent that the teacher had to stop the class lesson and change what the class was doing. When Antwan got to the principal's office he got out of his seat, made noises, and went to the staff's counter when he was not supposed to do so. Antwan was given a one-day outdoor suspension for these actions. On January 6, 1993, Antwan and four other students were horseplaying in the cafeteria, resulting in the breaking of a window. He received a three- day indoor suspension for this behavior. On February 11, 1993, Antwan was walking around in Ms. Schrager's class and would not take his seat even though Ms. Schrager repeatedly asked him to do so. Antwan was distracting other students in the class, and Ms. Schrager had to stop the class to correct Antwan. Ms. Schrager referred the matter to Assistant Principal Strachan. A security officer was required to remove Antwan from the classroom. When asked by Mr. Strachan why he would not take his seat when asked by Ms. Schrager, Antwan responded that he wanted to sit where he wanted to sit. For this incident, Antwan received a five-day indoor suspension. Cheryl Johnson, Antwan's math teacher, had witnessed incidents in Ms. Schrager's class when Antwan would get out of his seat, walk around the classroom, and talk to other students, thereby disrupting Ms. Schrager's class. Ms. Johnson also had problems with Antwan in her classroom. Antwan would bring his drumsticks to class and tap on his desk. He was tardy to class, failed to do his homework assignments and participated very little in class. On March 8, 1993, Antwan and other students were throwing books at each other in Ms. Schrager's classroom during class. Ms. Schrager referred the incident to Mr. Strachan, who talked with Antwan. Antwan told Mr. Strachan that a student had hit him so he threw several books in retaliation. Other students were also written up for this incident by Ms. Schrager. Antwan received a five- day outdoor suspension for this episode. On March 23, 1993, Ms. Kramer, Antwan's language arts teacher, referred him to Mr. Strachan for disciplinary action for the following behavior: walking around the classroom, talking to other students, refusing to take his seat when asked to do so by his teacher, telling his teacher he didn't have to do what she was telling him to do, and rolling his eyes while continuing to move around. He received a detention. On April 21, 1993, Ms. Schrager observed Antwan showing his friend an object which resembled the outline of a gun. She asked Antwan to come talk to her. He began to walk toward her and then walked to the other side of the room. She called a security guard to come into the classroom but they were unable to find the object. Antwan was given a ten-day outdoor suspension which was reduced to a six-day suspension after school administrators talked with Antwan's parents. On May 7, 1993, Antwan was in the hallway and was fifteen minutes late for class. Mr. Strachan saw him and told Antwan to come to him. Antwan ran away from Mr. Strachan. When Mr. Strachan caught up with him, Antwan wanted to know what he had done wrong. Antwan received two detentions for the incident. On May 13, 1993, Antwan chased a female student into Ms. Arlene Shapiro's classroom. He grabbed the front of the girl's blouse trying to get a beeper which she had underneath her blouse. The girl called for help. Antwan was not Ms. Shapiro's student and was not supposed to be in her classroom. Ms. Shapiro told Antwan to let the girl go and he replied, "No. Make me." She put her hand on his back to guide him out of the classroom, and he told her not to touch him or he would hit her. She took her hand away. He punched her on her arm and then ran down the hall. Ms. Shapiro referred the matter to Assistant Principal DeLucas. Mr. DeLucas questioned Antwan about the incident and Antwan admitted hitting the teacher. Antwan received a ten-day outdoor suspension. Antwan was not doing well academically at Carol City Middle School. His report card for the school year ending June, 1993, showed final grades of four "F's" and three "D's." While at Carol City Middle School, Antwan received numerous group and individual counseling sessions with guidance counselors. Additionally, Ms. Henry, the principal, took Antwan "under her wing" and tried to counsel him. School administrators met with Antwan and his parents to discuss the problems that Antwan was having at school. However, these efforts to correct Antwan's disruptive behavior were unsuccessful. Additionally, as Antwan's disruptive behavior continued to escalate, resulting in more frequent conferences with his parents, Mr. and Mrs. Clark's attitude seemed to change from conciliatory to hostile and defensive. Antwan was reassigned to Jan Mann Opportunity School during the summer of 1993. The classes are smaller than the traditional school class. There are counselors and a full-time psychologist on staff. The focus at Jan Mann is to try build self-esteem, teach conflict resolution, develop social skills, and correct past behavior problems.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered affirming the assignment of Antwan J. Clark to the Jan Mann Opportunity School. DONE AND ENTERED this 18th day of March, 1994, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of March, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-5483 To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Paragraph 1: Accepted in substance. Paragraph 2: Rejected as unnecessary and subordinate to the facts actually found. Paragraph 3: The first two sentences are accepted in substance. The first part of the third sentence stating that Mr. Strachan personally removed Antwan from the classroom from five to ten times is rejected as not supported by the greater weight of the evidence. The remainder of the sentence is accepted in substance. Paragraph 4: Accepted in substance. Paragraph 5: Accepted in substance. Paragraph 6: The first three sentences and the first half of the fourth sentence are rejected as subordinate to the facts actually found. The second half of the fourth sentence and the last two sentences are accepted in substance. Paragraph 7: Accepted in substance. Paragraph 8: Accepted in substance. Paragraph 9: The first sentence is rejected as not supported by the greater weight of the evidence. Ms. Schrager saw an object which resembled a cap gun. The second sentence is rejected as not supported by the greater weight of the evidence. The first part of the third sentence is accepted in substance. The second part of the third sentence is rejected as constituting argument. The last sentence is accepted. Paragraph 10: Accepted in substance. Paragraph 11: Rejected as unnecessary and subordinate to the facts actually found. Paragraph 12: The first sentence is rejected as constituting argument. The remainder of the paragraph is accepted in substance. Paragraph 13: The first sentence is rejected as constituting argument except the fact that Antwan threw rocks at Ms. Henry is accepted. The remainder of the paragraph is accepted in substance. Paragraphs 14-15: Accepted in substance. Paragraph 16: The first three sentences are accepted in substance. The last sentence is rejected as unnecessary. Paragraphs 17-19: Accepted in substance. Paragraph 18: Accepted in substance. Paragraph 20: Rejected as subordinate to the facts actually found. Paragraph 21: The two sentences are accepted in substance. The remainder of the paragraph is rejected as constituting argument. Respondent's Proposed Findings of Fact. Paragraphs 1-3: Accepted in substance. Paragraph 4: Rejected as constituting argument. Paragraph 5: Accepted in substance except to the extent that gambling occurred on only one occasion. Paragraph 6: The first two sentences are accepted in substance. The last sentence is rejected as not supported by the greater weight of the evidence. Paragraph 7: The first two sentences are accepted in substance. The second sentence is rejected as not supported by the greater weight of the evidence. The last sentence is accepted in substance. Paragraph 8: Rejected as constituting argument. Paragraph 9: Rejected as not supported by the greater weight of the evidence. Respondent's Exhibit 1 shows numerous counseling sessions between Antwan and his counselor and at least one conference between Antwan's parents and a counselor. Paragraph 10: Rejected as not supported by the greater weight of the evidence. Paragraph 11: Rejected as not supported by competent substantial evidence. Paragraphs 12-14: Rejected as subordinate to the facts actually found. Paragraph 15: The first sentence is rejected as not supported by the greater weight of the evidence. The second and third sentences are accepted in substance. The last sentence is rejected as not supported by the greater weight of the evidence. I find that the parents' testimony is not credible. Paragraph 16: Rejected as not supported by the greater weight of the evidence. Paragraphs 17-19: Rejected as constituting argument. Paragraph 20: Rejected as irrelevant to this proceeding. Paragraph 21: Rejected as not supported by the greater weight of the evidence. Paragraph 22: Rejected as constituting argument. Paragraph 23: The first sentence is accepted in substance as it relates to early conferences with the parents and school officials. The remainder of the paragraph is rejected as constituting argument. COPIES FURNISHED: Anne G. Telasco, Esquire First Nationwide Building 633 NE 167th Street, Suite 304 North Miami Beach, Florida 33162 Madelyn P. Schere, Esquire Dade County School Board 1450 Northeast 2nd Avenue Miami, Florida 33132 Jaime C. Bovell, Esquire 3211 Ponce De Leon Blvd., Suite 210 Miami, Florida 33134 Mr. Octavio J. Visiedo 1450 Northeast 2nd Avenue, #403 Miami, Florida 33312-1308 Douglas L. "Tim" Jamerson Commissioner of Education The Capitol Tallahassee, Florida 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
The Issue Is Respondent school teacher guilty of violating Rule 6B-1.006(3), Florida Administrative Code, by failure to make reasonable effort to protect students from conditions harmful to their physical safety? Is Respondent guilty of violating Section 231.36(1)(a), Florida Statutes, by misconduct in office and/or willful neglect of duty?
Findings Of Fact Respondent, Kelly L. Bradley, Florida Teaching Certificate 768569 (expiration date June 30, 2000), is a certificated teacher in the State of Florida and held a teaching certificate in 1998-1999. She taught at Lola M. Culver Elementary School during the 1998-1999 school year and was an employee of Petitioner Duval County School Board. Respondent had been employed by Petitioner from January 1996 through October 1996, as a substitute teacher at several elementary schools and was employed full time at Lola Culver commencing October 1996, teaching emotionally handicapped students. This was her first full-time job as a teacher. She received satisfactory evaluations with favorable comments for each of her three years at Lola Culver. She has no record of prior discipline. During most of the 1998-1999 school year, Respondent and Kristy L. James, another certificated teacher, were co-sponsors of the School Safety Patrol at Lola Culver. Respondent volunteered to replace another co-sponsor who left in mid-year. This was her first experience as a Safety Patrol co-sponsor. A "reward" trip near the end of each school year was traditional for Lola Culver's Safety Patrol members. Ms. James had been a co-sponsor of the Safety Patrol for the 1996-1997, 1997-1998, and 1998-1999 school years, but neither she nor Respondent had received any significant instruction in the duties and responsibilities of sponsors. Near the end of the 1998-1999 school year, Ms. James and Respondent planned an overnight trip to Orlando for Safety Patrol members for June 4-5, 1999, a Friday and a Saturday. Ms. James exclusively handled the paperwork for approval of the June 4-5, 1999, field trip by Lola Culver's current principal, Carolyn Davis. She also exclusively handled the permission slips and medical authorizations signed by parents and all arrangements for "chaperones." Swimming had been on the agenda sent home by Ms. James and approved by the prior principal in each of the previous school years. Swimming was also on the 1999 agenda, which instructed students to pack a swimsuit. For the 1999 trip, Ms. James also sent another document, outlining the cost of the field trip for students and soliciting chaperones, and permission slips/medical releases to all the children's parents. Only the agenda mentioned swimming. The permission slip did not expressly mention swimming or solicit information about a child's ability to swim. It solicited only health information and authority to treat in an emergency. Eight fifth grade students (boys and girls) went on the trip, including Litoria Gibson, a non-swimmer, who ultimately drowned while on the field trip. Nowhere on the signed permission slip returned to Ms. James did Litoria's parents state that she could not swim or should not swim. Unbeknownst to anyone concerned, Litoria's mother had instructed Litoria "not to get in the water" during the field trip.1 Respondent and Ms. James went on the trip as co- sponsors and as chaperones. Respondent invited a personal friend and substitute teacher, Eric Lee, to go on the trip as a chaperone. Ms. James' husband, Joey, came along in the same capacity, and two parents, Gail Brown and Hazel Morningstar, also went on the trip. Hazel Morningstar testified that she had considered herself present on the trip only to watch her own son and, based on an oral promise to Rita Whorten's parents, to watch Rita Whorten. In a conversation during the planning stages, Ms. James stated that Rita Whorten would be "with" Ms. Morningstar and her son. At no time material did Ms. Morningstar affirmatively notify anyone she would not act as a group chaperone. In fact, she considered herself to be a chaperone. Gail Brown is the mother of Marcus Brown, one of the Safety Patrol students. Ms. Brown testified that she only went on the trip because she does not allow her son to go on trips involving water by himself, even though Marcus knows how to swim. She further testified that she did not feel any chaperoning responsibility toward any child but her own. However, she knew the teachers would assume that she was going to chaperone all the children, and she never affirmatively notified anyone that she would not act as a group chaperone. The group traveled via a school bus, driven by Petitioner's approved bus driver, Patricia Benton. Ms. Benton was paid for driving the bus, but personally paid for her teenage son, whom she brought along on the trip. Ms. James had asked Ms. Benton to drive the bus, and Ms. Benton's son's inclusion in the trip was in the nature of a "perk" for Ms. Benton. Ms. Benton's son was never considered either a responsible adult or a chaperone. Ms. Benton had accompanied Ms. James and the Safety Patrol on a similar field trip at the end of the 1997-1998 school year and had participated in watching over the children at that time. However, herein, Ms. Benton testified that on the 1999 trip she considered herself only along to drive the bus and watch over her own son. Indeed, neither Ms. James nor Respondent counted Ms. Benton as a "chaperone" in calculating the "one chaperone per every ten children" that they understood to be Petitioner's requirement for field trips. Nonetheless, both teachers considered Ms. Benton to be another responsible adult. Ms. Benton admitted that at times on this trip she was prepared, if necessary, to discipline any disrespectful children. Neither teacher inquired of Ms. Benton if she could or would swim. Respondent and Ms. James considered themselves, Joey James, Mr. Lee, Ms. Brown, and Ms. Morningstar to be chaperones. Neither teacher ever inquired of Mr. Lee, Ms. Brown, or Ms. Morningstar whether they could or would swim. This was Respondent's first overnight field trip. As teachers and Safety Patrol co-sponsors, Respondent and Ms. James regarded themselves as jointly responsible and in charge. Everyone else appears to have looked to Ms. James for leadership. The bus departed from Lola Culver Elementary School at 7:00 a.m., Friday, June 4, 1999. After arriving in Orlando, the group spent most of the day at Sea World. While the group was at Sea World, Respondent and Ms. James assigned responsibility for specific children to specific adults, except for the bus driver, Ms. Benton. No adult protested the assignments. At Sea World, Respondent and Eric Lee were responsible for Litoria Gibson and Makia Hicks. These assignments were essentially designed to keep everyone together and to keep the children under supervision in the amusement park, but they were not intended to last beyond the Sea World portion of the trip. However, no reassignment of responsibility for any child occurred after the group departed Sea World. In the late afternoon, the group was bused to Howard Johnson's South International, a motel. After they checked in, the students were allowed to go swimming in the motel pool. Upon arrival at the motel at approximately 5:45 p.m., room keys were distributed, and it was agreed that adults and children would meet by Ms. James' room, which fronted on the pool area. The children were instructed not to go to the pool until the adults were ready. The pool at the motel was a very large one located in an interior courtyard. The water was 3.5 feet deep at the shallow end and 5.5 feet deep at the deep end. No lifeguard was provided. Nonetheless, the pool had been used safely for the 1998 Safety Patrol field trip, and Ms. James and Ms. Benton were familiar with the motel layout and the pool. Ms. James considered herself a good swimmer, having been a swimmer since childhood. She was comfortable around water. Respondent was an experienced swimmer and athlete. She had learned to swim in early childhood, had had formal lessons during high school, and had done a lot of pool training in connection with playing college volleyball. She had continued to swim regularly in her adult life. She was trained in CPR. Some of the adults, including Respondent, and all of the children met as agreed and proceeded to the pool area. Prior to going to the pool, Respondent briefed all the children on not running or wrestling in the pool and pool area. Initially, Ms. James remained in her room to make a telephone report to Lola Culver's principal, Carolyn Davis. Joey James and Ms. Morningstar arrived at the pool dressed to swim. Litoria Gibson went to poolside wearing a red jumpsuit which would not be considered an unusual item for a child to wear to go swimming. The children entered the pool for the first time at approximately 6:00 p.m., under the direct supervision of Joey James and Ms. Morningstar, who got into the pool's shallow end with some of them. Ms. Morningstar asked who could not swim. Litoria Gibson and another girl raised their hands. Litoria said, "I can't swim." She never volunteered that she was not allowed in the water. Ms. Morningstar told the two girls that they should stay in the shallow end of the pool. Litoria Gibson was tall for her age, approximately the same height as Ms. Morningstar. Ms. Morningstar invited Litoria into the pool and spent 15-30 minutes with her in the pool's shallow end. They squatted to get wet and acclimated to the water. Ms. Morningstar showed Litoria how to stand so that the water only reached her chest and how to doggie paddle and told Litoria that if she got in trouble she could lie flat on her back and float. Litoria then felt comfortable in the water and, giggling happily, entered into dunking games with the other children. When Ms. Morningstar left the pool for the sauna, she warned Litoria to stay in the shallow end of the pool, only chest-high in the water, or get out of the pool altogether. Ms. Morningstar assumed that all the parents' respective permission slips would have alerted the teachers as to which children could or could not swim, so she did not tell anyone which students could not swim. At various times before 7:30 p.m., Joey James and Ms. Morningstar disciplined students by taking away water toys and calming rowdy behavior. Eric Lee arrived at the pool dressed to swim and able to swim shortly after the children entered the pool, but he stayed on the sidelines at the deep end and would not enter the pool. Respondent arrived at the pool dressed to swim and swam a little while Ms. Morningstar was in the shallow end and Joey James was in the deep end. Makia Hicks got into the pool with Respondent and said "Can you stand in here with me?" Respondent questioned Makia, and determining that Makia indeed could not swim, Respondent told her, "Well, you can come in here and I'll show you how to kick your feet." Respondent did not overhear the similar conversation between Litoria and Ms. Morningstar. (See Finding of Facts 33- 34). Later, Respondent got out of the pool and took Makia and Jessica Hayes to the hot tub. She made sure Makia got out of the pool at that time. Respondent, Makia, and Jessica then returned to the pool and were playing around. Ms. James, dressed to swim, arrived at the pool about the time Ms. Morningstar first went to the sauna. Mesdames Brown and Benton arrived poolside sometime after everyone else and remained there for most of the time until 7:30 p.m., in adjoining chairs and approximately midway between the deep and shallow ends of the pool. During this period, Ms. Benton made several trips to and from the jacuzzi and Ms. Brown made at least one trip to and from her room. Neither woman was dressed to swim. By their own accounts, both women were adequate but not trained swimmers, and neither of them intended to swim. When Ms. James arrived poolside, Respondent got out of the pool and she and Ms. James chatted in adjoining poolside chairs on the side opposite from Mesdames Brown and Benton. Makia sat on the edge of the pool with her feet in the water. Fifteen to 20 minutes after arriving poolside, Ms. Brown overheard that Litoria and one other child (she was not sure which child) could not swim. When Ms. Brown heard this, Litoria was already "walking the wall" (moving via her hands on the lip of the pool wall) into the deep end of the pool. Ms. Brown asked Litoria if she could swim and when Litoria said she could not swim, Ms. Brown ordered Litoria back to the shallow end of the pool. At least twice more before 7:30 p.m., Ms. Brown ordered Litoria back to the shallow end from the deep end, but Ms. Brown did not alert anyone else that Litoria was venturing into the deep end. She also assumed that Litoria's parents had informed the teachers that Litoria could not swim, so she did not tell anyone that information either. At approximately 6:30 p.m., Ms. Benton overheard or otherwise figured out that Litoria could not swim. She also assumed that Ms. James and Respondent knew Litoria could not swim and therefore, she did not mention it to them. After being poolside for awhile, Ms. James and Respondent went to Ms. James's room to telephone for pizza for everyone's dinner. Where, precisely, each of the other adults were during this brief period of time is in some dispute, and it may be that Ms. James and/or Respondent came and went from Ms. James's room more than once. Ms. James and Respondent did not specifically designate any adult to be in charge at the pool in their absence(s). Nonetheless, by all accounts, Mesdames Brown and Benton were fully dressed in poolside chairs most of this time and Joey James, Mr. Lee, and Ms. Morningstar were in and around the pool most of this period of time. Later, when it was anticipated that the pizza delivery man would be arriving, Ms. James and Respondent again left the poolside together. As they walked past Ms. Brown and Ms. Benton, Ms. James said, "We're going for the pizza." Neither Ms. James nor Respondent gave any specific instructions concerning the students. Ms. Brown and Ms. Benton acknowledged that they had heard Ms. James say that both teachers were leaving the pool area. Ms. James and Respondent left the pool area and entered a motel corridor off a door leading to the pool area. The children and pool area could not be adequately observed and monitored from this motel corridor. Joey James and Mr. Lee arrived in the corridor simultaneously with the two teachers. Ms. James gave the men instructions to go to the bus and retrieve a cooler of soft drinks and take the cooler to the picnic area at the far end of the pool. Ms. Morningstar arrived in the corridor in time to hear the foregoing instructions concerning the cooler. This meant there were now five adults not watching the children. Respondent then gave Ms. Morningstar enough specially-printed T-shirts for all members of the party, told her the T-shirts would be distributed during dinner, and asked her to take the T-shirts to the picnic area and set up for dinner. Respondent also asked Ms. Morningstar to "check on the kids."2 Ms. James and Respondent assumed the foregoing instruction meant that a third adult (Morningstar) would then be joining the two adults (Brown and Benton) already poolside to watch over and protect the eight students. Ms. Morningstar immediately went to the pool area, carrying the T-shirts. Ms. James, who had the money to pay the delivery man, and Respondent immediately went up an interior hallway toward the hotel lobby to await the pizza delivery man. The six pizzas Ms. James had ordered would require two people to carry them all, but additionally, Respondent wanted to talk to Ms. James alone because she had a concern and planned to defer to Ms. James's field trip experience as a long-time Safety Patrol sponsor.3 On her way to the picnic area, Ms. Morningstar found all the children, including Litoria, in the deep end of the pool. Most were playing dunking games. Apparently, Litoria sometimes participated in dunking, but when Ms. Morningstar spotted her, Litoria was holding onto the pool wall. She was blowing bubbles in the water between her outstretched arms and occasionally pushing off a few inches, floating on her face, and then grabbing the wall again. Ms. Morningstar said, "Litoria, are you sure you feel comfortable? Because you don't know how to swim." Litoria replied, "No, ma'am, I feel comfortable. I'm here with everybody and everybody's beside me." Ms. Morningstar did not consider Litoria in danger as close to the wall as she was, with children near her in the pool, and with Ms. Brown, Ms. Benton, and other adult strangers nearby. She proceeded to the picnic area, passing Brown and Benton in their chairs, and telling them she was going to set up for pizza. At about this time, a few minutes before 7:30 p.m., Ms. Brown was approached by a little girl who wanted to get her pool shoes from her room. Ms. Brown told the child to get her key and she would go with her so that the child would not be alone in a motel room. As they rounded a corner of the deep end of the pool, Ms. Brown spotted another little girl clinging to the side and sobbing, "She tried to drown me!" Then there was a clamor from the other children and Ms. Brown noticed that Litoria, in her red outfit, was floating face down, only inches from the edge of the pool. Just then, Ms. Benton approached and also saw Litoria. Both women screamed. Ms. Morningstar and Mr. Lee, who were in the picnic area, heard the screams and ran to the deep end of the pool to help. With the help of two of the boys and Eric Lee, Ms. Brown hauled Litoria out of the pool. The adults peeled away from Litoria's face a plastic mask designed to cover the wearer's eyes and nose, but not the mouth. The face mask's breathing tube had been lost. Blood came profusely from Litoria's mouth.4 The teachers were notified where they were waiting for pizza in the motel lobby. They returned immediately to render aid. A qualified bystander rendered CPR. Medical attention was summoned via "911." Although Litoria's pulse and breath sounds were revived at poolside, she ultimately died of drowning Christine Arab, General Director of Human Resources for the School Board, holds Bachelor's and Master's Degrees in Elementary Education, and is a doctoral student in curriculum and education. She has been a certified elementary and exceptional student education classroom teacher. In her opinion, Respondent did not take reasonable efforts to protect her students in that she failed to determine which children could and could not swim and left the pool area without making sure that at least one of the adults was prepared to be in the pool with the children, was able to rescue the children, and had agreed to accept the responsibility to oversee and rescue the children from the water if necessary. It was the absence of these precautions by Respondent that mattered to Ms. Arab, not the length of time that Respondent was absent from poolside. Ms. Arab stated, concerning the other adults' behavior on the field trip that, "[G]iven what they each understood their role to be or commitment to be - I think there's a lot of blame to go around . . .." She also described various acts and omissions of the other adults as either reasonable or unreasonable. However, I do not assign the weight to her personal opinions on these subjects that I do to her professional opinion as an educator concerning Respondent's duty of supervision and effectiveness as a teacher. There is no School Board policy defining the duties of "chaperones." The School Board did not prove that it had any specific written policy against swimming on field trips. Ms. Arab conceded that if Ms. James's prior principal had approved swimming for the previous year's field trip and the current principal, Ms. Davis, had not disapproved swimming in 1999, there was no way the teachers could have divined there was any "no swimming on field trips" policy. Principal Davis was disciplined by a 21-day suspension without pay for her flawed oversight of the field trip. This is a very severe penalty for an administrator. Ms. Arab had input into the School Board's decision to prosecute this case. In her opinion, the severity of a termination recommendation against Respondent was warranted because Respondent's flawed oversight of the field trip itself was such that the public and the School Board could have no future confidence in Respondent. Ms. Arab felt the only way the School Board could trust Respondent henceforth would be under the closest supervision and that would be ineffective teaching in the School system. However, Ms. Arab also conceded that had Litoria not drowned, Respondent's failures would not have risen to the level of a terminable offense.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of a violation of Rule 6B-1.006(3), Florida Administrative Code, through her failure to make reasonable effort to protect students from conditions harmful to their physical safety, and of a violation of Section 231.36(1)(a), Florida Statutes, by misconduct in office, suspending her without pay for six months, and requiring her to repeat her supervised one year of beginning teacher training upon her return to the classroom. DONE AND ENTERED this 27th day of June, 2000, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of June, 2000.
Findings Of Fact Petitioner, Fred D. Greene, began service with the Hamilton County School Board as a teacher in August, 1965. He was employed on annual contract for three school years until he was granted a continuing contract by the school board on July 23, 1968, as a teacher pursuant to Section 231.36, Florida Statutes. After the execution of the continuing contract, Petitioner was assigned as coordinator of vocational education during the 1969-1970 school term but in addition to those duties, continued to teach five classes. As Petitioner was assigned additional duties by the Superintendent, his teaching duties were reduced. Starting in 1970 and continuing through 1973, though the continuing contract as a teacher had not been rescinded, Petitioner and the school board entered into annual contracts of employment in which Petitioner was assigned as Director of Vocational Education. On June 5, 1973, the parties entered into a second continuing contract which described Petitioner's duties as "Director of Vocational, Technical and Adult Education." At no time did Petitioner ever hold a contract as "principal" nor was he ever paid as such. His current Florida Teacher's Certificate shows him certified in, among other things, secondary administration and supervision. Both this contract and the 1968 continuing contract contained a provision that the school board was authorized, upon recommendation of the superintendent of schools, to transfer and assign the Petitioner to a "similar position in any other school" in the district, provided that "the duties shall be similar to the duties originally assigned and the salary shall be as heretofore set forth." From the time he was appointed director of VTAE until January, 1981, Petitioner served in that capacity. As director of VTAE, he considered his position as similar to that of a principal in that he reported directly to the Superintendent of Schools, he supervised the teachers who taught within his program (although he did not rate them) he was paid on the non- instructional salary schedule as is a principal he was responsible for the procurement of and administration of students including their promotion and graduation. Nonetheless, he was not classified as a principal, he served schools throughout the county, the teachers in the program were recruited from regular day teachers and additional personnel who taught only in the night program, and these teachers were rated by their day principal when appropriate. Consequently, his position as Director, VTAE, was not similar to that of a principal. At the time he left the job as Director, VTAE, to assume the office of Superintendent of Schools, he was paid a salary of $21,000.00 per year for a 12 month term and was on step 6 of the non-instructional salary schedule. He has never released the school board from the terms of the continuing contract. In January, 1981, Petitioner took office as Superintendent of Schools. At that time the function of Director, VTAE, was assigned to Ms. Scaff who subsequently also occupied several other positions within the school board system including instructional coordinator, secondary curriculum coordinator, community education director, law education director, and management information systems director. Ms. Scaff did not assume all those functions at one time. The job was built up over a period of years and while the duties changed, the title of Director, VTAE, did not. Ms. Scaff was paid as an instructional director on the non-instructional salary schedule. As Director, VTAE, Ms. Scaff, and Mr. Greene before her, occupied one of the director positions reflected in the directory of the School Board. The School Board uses the same contract form for directors and principals and the director is evaluated by the Superintendent of Schools as is a principal, but there are few other similarities between the function of principal and Director. Petitioner served as Superintendent of Schools from 1981 until November, 1984, when he was replaced as superintendent by Mr. Hinton. Several months before his term expired, in June, 1984, Petitioner recommended to the School Board that it appoint Ms. Scaff, who was at that time serving as, inter alia, Director, VTAE, to a two year contract in that position. This contract was approved by the School Board. Shortly after his defeat in the election, Petitioner allegedly told Mr. Hinton that he did not wish to displace anyone employed by the school system in order to enforce his return rights under the continuing contract he held. It was his position that he would accept a teaching position but at a salary level equivalent to that of an administrator until such time as an administrator's position within the system became open. At a special meeting of the School Board called by Petitioner on the last day of his term as superintendent, Mr. Greene nominated himself for the position as principal at NHE. This nomination, however, was tabled by the School Board upon advice of counsel so that an advisory opinion on it could be requested from the Florida Commission on Ethics. At this point it should be noted that though the position as Principal at NHE became vacant prior to Petitioner leaving his position as superintendent, he did not apply during the period that the·advertisement was open. The only person to do so was Harry Pennington who was subsequently placed in that position. When Mr. Hinton assumed the position of Superintendent of Schools, replacing Mr. Greene, he immediately assigned Petitioner to the position as teacher of business education. Mr. Greene accepted the assignment but requested that he be paid a salary equivalent to the 20th step on the salary schedule for the position of instructional director at a figure of $32,550.00 per year. The figure demanded by Petitioner was not paid, however. After conferring with the State Department of Education regarding the proposed salary for Petitioner, the School Board determined that since he held a continuing contract as a teacher, he would be employed at a salary based on the teacher position. He was given credit for four years of teaching service while serving as Superintendent of Schools which placed him at the 20 year service point. In addition, he was given credit for a master's degree and for teaching in his field of certification. His total salary, therefore, was set at $23,460.00 over a ten month term. Petitioner was not satisfied, especially since Mr. Pennington, who was serving as principal of NHE was receiving $28,100.00 per year based on a 12 month employment contract. On May 27, 1985 the school board rejected Mr. Greene's nomination of himself as principal at NHE. The board's rejection of Mr. Greene was based on the recommendation of Mr. Hinton who felt that Petitioner was not qualified for the position in that he did not hold certification in administration and supervision at the elementary level his contract was not for the position of principal he had no experience as principal or assistant principal he did not apply for the position when it was advertised and because counsel advised that filling the position based on self nomination might violate Florida law. Mr. Pennington on the other hand, was fully certified in administration and supervision for all grade levels involved at NHE. Other positions for which Respondent felt himself qualified came open during the 1984-1985 school year but he was not selected to fill any of them. Included in these were that of principal of Hamilton County High School and administrative assistant positions at both North Hamilton Elementary and South Hamilton Elementary. When Mr. Hinton took over as Superintendent of Schools, as a part of his management program and in an effort to correct what appeared to be a problem regarding the late payment of School Board obligations which existed when he took over, he recommended certain personnel changes including the creation of an office manager position. Mattie Fouraker, formerly the business education instructor at Hamilton High School, was appointed office manager to the School Board at a salary approximately equivalent to that she received as a teacher. It is to her vacant job as teacher of business education that Mr. Greene was assigned. Petitioner contends Ms. Fouraker was appointed to the position before it was ever officially created and approved by the School Board. Be that as it may, however, it becomes clear that the Superintendent of Schools intended that a problem be solved and to do so, created a position designed to correct it. He appointed Ms. Fouraker to the job on a temporary basis and as soon as the School Board met at the next scheduled meeting in December, 1984, it approved the position and confirmed Ms. Fouraker's assignment to it. This formal board action, however, served to increase her pay from that of a teacher at $23,460.00 per year to that of an administrative position at $29,700.00 per year and her position was changed from that of a 10 month to a 12 month employment, along with the benefits accruing thereto. Petitioner's salary as business education instructor was developed through a tailored formula developed with an intent to,-in the opinion of Mr. Hinton, put Mr. Greene in approximately the same position for the four years he was Superintendent of Schools. As was stated previously, Mr. Greene was given credit for his 16 years in the classroom plus his years of superintendent for a total of 20 years experience credit. Added to that was credit for a Master's degree and credit for teaching in his field of certification. When the $23,460.00 salary that was arrived at for this was compared to what it was anticipated he would have earned had he stayed as Director of VTAE, it was seen that had he remained in his position on the same salary schedule, he would have presumably earned $2,362.50 per month ($23,625.00 per 10 month school year) as an instructional director, Step 6. This is approximately $155.00 more over the school year. Had Petitioner been paid at the salary of an instructional support position, Step 6, the monthly salary would be slightly lower. It should be noted, however, that due to schedule changes during the period, this might not be a valid comparison. Positions within the school system are assigned by the Superintendent of schools on the nature of the position. Non- instructional personnel are assigned categories on the salary schedule based on an assessment of their qualifications and value to the system. Teachers, on the other hand, who are generally serving under contracts, are placed on the salary schedule consistent with the number of years experience they have plus certain other additions. It was Mr. Hinton's position that Mr. Greene should be paid as a teacher since he was serving as a teacher and once that decision was made, Mr. Greene was paid the highest amount that a person with his certificate and his experience and qualification could earn in that position. When the Florida Commission on Ethics issued its opinion on the question certified to it regarding Petitioner's recommending himself for the position of Principal of NHE, the opinion indicated the Commission could not conceive of how the Petitioner's actions in recommending himself for a position could not have constituted a misuse of public position. In other words, while not saying that it was, the Commission concluded that it probably was a violation. Thereafter, the School Board requested an Attorney General's opinion on whether a school superintendent may nominate himself for appointment of a principal. The opinion was not received as of the date of the hearing. Turning again to the issue of the function of Director of VTAE, the School Board contends that the function of Director has steadily expanded in scope. For example, Mr. Hinton urges that the work that Mr. Greene was doing as Director, VTAE prior to being elected superintendent now constitutes only 10 to 20% of the currently described duties of the position. The additional functions that Ms. Scaff performs, as described above, he contends, constitute more by far than that which Petitioner did when he held the job. In support of that position, Mr. Hinton refers to the organization and management study conducted in 1983 at the request of Petitioner when he was Superintendent of Schools. Among the pertinent recommendations of that study was the restructuring of the organization within the school district level. The position of Director, VTAE was not one of the three Director and five coordinator positions recommended by the study. Ms. Scaff indicates that when Petitioner was defeated in his bid for re-election as superintendent of schools, she indicated her willingness to step down from the position of Director, VTAE and return to classroom teaching. She does not consider the return to a position of teaching as a demotion nor does Ms. Fouraker. It should be noted, however, that both individuals received substantial increases in salary by virtue of their position changes under the Hinton administration. For example, Ms. Fouraker's promotion to the position of office manager carried a pay increase from $23,460.00 to $29,700.00 per year. Ms. Scaff now earns the same. Mr. Greene was at Step 6 on the non-instructional scale when he left the job of Director, VTAE. These scales were modified in the intervening years, and Ms. Fouraker traced Mr. Greene's position as Director, VTAE, to the new scale as if he had stayed in place. She placed him at Step 6 on the new scale at a salary of $28,350.00. Petitioner contends that he should be treated the same as Mr. Coe, Director of Personnel, who realized a large salary and step increase when the pay scales were changed. If this were done, and he was given an instructional director's position at step 20 on the non- instructional salary schedule, his salary would be $32,500.00. Subtracting that $28,350.00 from the $32,550.00 he says he should be earning, Mr. Greene indicates that he lost approximately $4,958.87 for the period starting November 20, 1984, when he began teaching, to the end of the school year. He further contends that his salary loss is continuing at the rate of $757.50 per month and in addition, he is also being deprived of other benefits of employment such as paid annual leave, sick leave, enhanced retirement benefits, and other like perquisites attached to a 12 month contract. Mr. Greene further contends that since he was involved in litigation with the school board concerning Mr. Coe's contract prior to his leaving the position of Superintendent of Schools, the School Board should have known of his entitlements under the continuing contract since it was shown that it had been established for assignments and transfers.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Petitioner, Fred D. Greene, be assigned a non-principal supervisor/director position within the Hamilton County Schools as available that he be paid accordingly when performing in such a position but that he be denied adjustment for back pay and attorney's fees and costs. RECOMMENDED this 29th day of October, 1985, in Tallahassee, Florida. ARNOLD H POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of October, 1985. COPIES FURNISHED: John D. Carlson, Esquire Gatlin, Woods, Carlson & Girtman 1030 East Lafayette, Suite 112 Tallahassee, FL 32301 Paul Hendrick, Esquire 111 South Central Avenue Suite 1 Jasper, FL 32052 Owen Hinton, Jr. Superintendent Hamilton County School Board P. O. Box 1059 Jasper, FL 32052 Honorable Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, FL 32301 APPENDIX Ruling by the Hearing Officer as to the Petitioner's Proposed Findings Of Fact: Paragraphs Accepted Accepted Accepted Accepted Accepted Accepted Accepted* Accepted* Accepted* Accepted Accepted except as to the veracity of the reported comment of the School Board member Accepted Accepted Accepted Accepted except as to comments of Ms. Scaff as to her being a principal and signing forms as such Accepted except for Petitioner's comment that he would receive temporary certificate for Elementary Ed principal and would obtain certification in grades K-6 without much problem Accepted Accepted Rejected as irrelevant Irrelevant as a finding of fact should be conclusion of law Accepted Accepted except as to last sentence which is irrelevant unnumbered between and 23 Rejected Rejected Rulings by the Hearing Officer as to Respondent's Proposed Findings of Fact (Respondent failed to number paragraphs.) The unnumbered paragraphs are therefore treated in sequence and numbered herein for purposes of identification only. Paragraphs Accepted Accepted Accepted Accepted Accepted Accepted Accepted Accepted Accepted Accepted Accepted Accepted as to substance Accepted Accepted Accepted except that acceptance of the position was not meant to be acquiesed in permanent assignment Accepted Accepted Accepted Accepted Accepted Accepted as it relates to teacher salaries only Accepted Accepted Accepted Accepted Accepted as to the request made. As of the hearing, the opinion had not been received. It was not offered into evidence and though attached to Respondent's Proposed Recommended Order, was not considered Accepted Accepted Accepted except for the conclusion drawn in the last sentence which was not supported by evidence admitted. Accepted Accepted Accepted Rejected. Position was held by Ms. Scaff who performed the same duties performed by Petitioner when he was the encumbent, in addition to additional duties which he did not *Petitioner's terms describing the personnel changes are not necessarily dispositive of the issue.
The Issue Whether Respondent committed the offenses alleged in the Amended Notice of Specific Charges and, if so, the penalties that should be imposed.
Findings Of Fact At all times pertinent to this proceeding, Petitioner was a duly constituted school board, charged with the duty to operate, control, and supervise all free public schools within the school district of Dade County, Florida. The Petitioner has rule making authority and the authority to enter into collective bargaining agreements. At all times pertinent to this proceeding, the parties were bound by the provisions of the collective bargaining agreement between the United Teachers of Dade and the School Board. Pursuant to Section 1 of Article V, Petitioner has the exclusive right to suspend, dismiss, or terminate an employee for "just cause." The term "just cause" as defined by Section 3(D) of Article XXI of the contract: . . . includes, but is not limited to, misconduct in office, incompetency, gross insubordination, willful neglect of duty, immorality, and/or conviction of a crime involving moral turpitude. Such charges are defined, as applicable, in State Board Rule 6B-4.009 (Florida Administrative Code). Pursuant to its rule making authority, Petitioner has adopted Rule 6Gx13-4A-1.21, which sets forth the expected conduct of employees as follows: All persons employed by The School Board of Dade County, Florida are representatives of the Dade County Public Schools. As such, they are expected to conduct themselves in a manner that will reflect credit upon themselves and the school system. Unseemly conduct or the use of abusive and/or profane language in the presence of students is expressly prohibited. Pursuant to its rule making authority, Petitioner has adopted Rule 6Gx13-4C-1.02, which sets forth the expected conduct of non-instructional personnel as follows: The Board recognizes and appreciates the important supporting role played by non- instructional personnel in the school system's educational program. For that reason the Board endeavors to select persons of the highest quality to fill vacancies as they occur. One of the important functions served by the non-teaching staff is that of demonstrating good citizenship in the community. The Board reaffirms the wish that all employees of the schools enjoy the full rights and privileges of residency and citizenship in this community and in the state. Because of its high regard for the school system's non-teaching staff, the Board confidently expects that its employees will place special emphasis upon representing the school system ably both formally and informally in the community. Pursuant to its rule making authority, Petitioner has adopted Rule 6Gx13-4-1.08, which prohibits violence in the workplace as follows: Nothing is more important to Dade County Public Schools (DCPS) than protecting the safety and security of its students and employees and promoting a violence-free work environment. Threats, threatening behavior, or acts of violence against students, employees, visitors, guests, or other individuals by anyone on DCPS property will not be tolerated. Violations of this policy may lead to disciplinary action which includes dismissal, arrest, and/or prosecution. Any person who makes substantial threats, exhibits threatening behavior, or engages in violent acts on DCPS property shall be removed from the premises as quickly as safety permits, and shall remain off DCPS premises pending the outcome of an investigation. DCPS will initiate an appropriate response. This response may include, but is not limited to, suspension and/or termination of any business relationship, reassignment of job duties, suspension or termination of employment, and/or criminal prosecution of the person or persons involved. Dade County Public School employees have a right to work in a safe environment. Violence or threats of violence by or against students and employees will not be tolerated. Article VIII of the collective bargaining agreement addresses the subject of a “Safe Learning Environment.” Section 1(A) of Article VIII provides, in pertinent part, as follows: “A safe and orderly learning environment is a major priority of the parties. ” At all times pertinent to this proceeding, Respondent was employed by Petitioner as a school security monitor. The job description of a school security monitor provides the following basic objectives and responsibilities: BASIC OBJECTIVES Under general direction from the school principal, he/she performs duties to monitor student activity in promoting and maintaining a safe learning environment and insures the appropriate standards of conduct are followed. JOB TASKS/RESPONSIBILITIES Visually observes student behavior during school hours, on school property. Reports serious disturbances to the school administration and resolves minor altercations. Physically patrols all school buildings, grounds, and determines reason for the presence of outsiders. Stops and questions all students not in class during class time. Monitors parking lots and student gatherings (before, during, and after school hours). Reports any safety or security problems to the administration. Performs any other duties set by the school principal or his/her designee. Respondent was initially employed by Petitioner as a temporary custodian in February 1988, and assigned to Madison Middle School (Madison). In June 1988, Respondent was employed as a school security monitor at Madison, where he remained until December 1993. At all times pertinent to this proceeding, Thelma Davis was the principal of Madison. In December 1993, Respondent's assigned post was near a gate in close proximity to the chorus room. J. B. and K. A. were female students at Madison during the school year 1993-94. J. B. was born March 8, 1981. In December 1993, J. B. was a twelve year-old seventh grader and a member of the chorus class taught by Edward G. Robinson. In early December 1993, Respondent made a series of inappropriate comments and gestures of a sexual nature to J. B. when she passed his assigned post. Respondent winked at J. B. as she passed his post and blew her kisses. On one occasion, he asked if she was a virgin. On another occasion he asked her the color of her underwear. On another occasion, he made a statement as to how warm they would be under covers together. K. A. overheard Respondent say to J. B. that he and she would be warm under the covers together. J. B. became visibly upset the day Respondent asked her the color of her underwear. Mr. Robinson observed J. B. crying. J. B. thereafter told Mr. Robinson about Respondent's comments and behavior. Mr. Robinson reported the information to the principal. A day or two later, J. B., accompanied by K. A., again complained to Mr. Robinson about Respondent's comments and behavior. Mr. Robinson again reported the information to the principal, and an investigation was instigated. The investigation was conducted under the supervision of Captain Arnie Weatherington, an experienced law enforcement officer employed by the Dade County School Police. In December 1993, Respondent was removed from the school campus and reassigned to the Region III office. The investigation was closed in May 1994 as being substantiated. In light of the substantiated findings, Ms. Davis recommended that Respondent's employment with the Petitioner be terminated. Louise Harms of the Petitioner' Office of Professional Standards conducted a Conference for the Record (CFR) with Respondent on May 3, 1994. During the CFR, Ms. Harms advised Respondent as to the findings of the investigation. Respondent remained assigned to the Region III office until February 1995, when he was involuntarily transferred to Westview Middle School. The investigation into this incident was closed by Respondent’s reassignment to Westview. There was no formal recommendation at that time by the Superintendent or by the Office of Professional Standards that Respondent’s employment be terminated for his misconduct at Madison. At Westview, Respondent had the responsibility to patrol the outdoor areas of the campus. He was given a walkie- talkie and a golf cart to assist him in performing his duties. Respondent’s instructions as to the cautious and safe use of the golf carts included the explicit instructions that children were not permitted to ride in a golf cart or to sit in a parked golf cart. During the school year 1996-97, Respondent's assigned responsibilities included patrolling the physical education area. During the 1996-97 school year, John McHale was a physical education teacher at Westview. His responsibilities included taking attendance, maintaining control of the class, and following the district curriculum. In November 1996, Mr. McHale's physical education class and three other classes that were taught by a Ms. Roque, Patricia NewKirk, and Nathaniel Stephens were held on an outdoor basketball court. On November 13, 1996, Mr. McHale was in charge of his own class and, in her absence, Ms. Roque's class. Mr. McHale's class and Ms. Roque's class were assembled on the basketball court so Mr. McHale could take roll. In addition, Mr. Stephens' class was assembled on the basketball court so Mr. Stephens could take roll. While Mr. McHale was in the process of taking roll, Respondent began joy riding in his golf cart. He rode onto the basketball court around and between the two classes under Mr. McHale's supervision. Students jumped on the golf cart. Respondent talked to students. Mr. McHale approached Respondent, told Respondent that he needed to get the classes under control, and asked Respondent to get the golf cart off the basketball court so he could do his job. In response, Respondent stated: "Take your ass back to your class. No bald-headed white man telling me what to do."2 Tempers flared, Respondent got off the golf cart, and the two men approached one another. Mr. Stephens, who is larger than either Respondent or Mr. McHale, stepped between the two men with his back facing Respondent. Respondent struck out at Mr. McHale with a closed fist, making contact with Mr. McHale’s shoulder. Mr. Stephens separated the two men and took Mr. McHale to the locker room. Respondent did not have any justification for driving the golf cart onto the basketball courts while the physical education classes were using the courts. That conduct disrupted the classes that were using the courts. Mr. McHale reported the incident to Darrel Berteaux, the school principal. Mr. Berteaux requested that the DCSP conduct an investigation. The investigation into this incident was conducted by Lieutenant Oryntha Crumity, an experienced law enforcement officer employed by the Dade County School Police. During the course of the investigation, Respondent contacted several of the student witnesses and asked each student whether the student was on his side. By making such contact, Respondent attempted to intimidate these student witnesses. Approximately a month after the incident, Mr. Berteaux received reports that Respondent had approached several student witnesses. He immediately requested that Respondent be transferred from Westview. Respondent was thereafter transferred from Westview. Proceedings to terminate his employment were initiated following a review of these matters by the Petitioner's legal staff.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order that adopts the findings of fact and conclusions of law contained herein. It is further recommended that the final order terminate Respondent's employment. DONE AND ENTERED this 8th day of September, 1998, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 8th day of September, 1998
