The Issue The issue is whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Petition for Relief filed by Petitioner in May 1998.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this proceeding, Petitioner, Sharon L. Pennington, contends that in September 1994, Respondent, School Board of Lake County (School Board), failed to accommodate her handicap, and it then unlawfully terminated her from employment as a food service assistant on account of her hearing disability. The School Board denies the charges and contends instead that it offered Petitioner an alternative position in the school cafeteria, but when Petitioner never responded to that offer, and she failed to report to work, it terminated her from employment. After a preliminary investigation was conducted by the Commission on Human Relations (Commission), which regretably took more than three years to complete, the Commission issued a Notice of Determination: No Cause on April 27, 1998. Petitioner, who is now forty-six years of age, suffered from hearing loss due to an episode of the measles at age three. She has worn a hearing aid in her left ear since the fifth grade and hearing aids in both ears since 1976. In 1993, she was diagnosed as having profound hearing loss. As such, she is a handicapped person within the meaning of the law. However, she did not disclose this handicap to her employer until 1994. Petitioner began working part-time for the School Board in September 1984 as a food service assistant in the cafeteria at Fruitland Park Elementary School in Fruitland Park, Florida. She became a full-time employee in 1986 and continued working in that capacity until her termination on September 13, 1994. Although not specifically established at hearing, it can be reasonably inferred from the evidence that the School Board employed at least fifteen employees for each working day in each of twenty or more calendar weeks in the current or preceding year and thus is an employer within the meaning of the law. On January 5, 1994, Petitioner was given a leave of absence from work due to a back injury suffered while lifting a box of vegetables. She filed a worker's compensation claim and remained out of work due to that injury until March 21, 1994. While investigating that injury, the School Board learned for the first time that Petitioner had a hearing disability. Although her treating physician authorized her to return to work on March 21, 1994, Petitioner requested a second medical leave of absence for the remainder of "this school year" due to "loss of hearing in both ears." She supplied a note from a doctor to this effect. On May 10, 1994, the principal of the school, Ted Wolf, authorized Petitioner to take unpaid leave from March 7 through May 31, 1994, or the remainder of the 1993-94 school year. Petitioner contends that the School Board misunderstood the note from her doctor, and that he intended that she be allowed to take a leave of absence for not only the remainder of school year 1993-94, but also for the entire school year 1994-95. There is nothing of evidence to support this contention, and the doctor's note stipulated into evidence suggests otherwise. On April 25, 1994, Petitioner sent the following letter to Craig Longacre, risk manager for the School Board: I am writing to you to let you know I do plan to return to work this fall. However, I am still interested in the Jack Rabbit Job. Should a position ever does [sic] come open, I do hope that you will keep me in mind as I do know I can do that job. I'm an honest person, perhaps too honest. I'm trustworthy, I do my job. I've been interviewed with Vocational Rehab. last Thurs, 4-20-94. Mrs. Bateman explained to me that whomever hires me regardless of my hearing disability and they give me a job, they would get a tax credit for employing me. I will remain at Fruitland Pk. Elem. Cafeteria until I hear from you. I do hope you will not pass this over me. I know I can do Jack Rabbit. Please keep me on your list for this. During this same period of time, Petitioner orally advised the School Board that the noise levels in the dish room of the cafeteria were too high and aggravated her tinnitus. Accordingly, she asked that the School Board place her in another position. In response to Petitioner's letter, and to satisfy her concern regarding noise levels in the cafeteria, Longacre directed that a Sound Measurements Study for the cafeteria be prepared by an ESE Program Specialist, MeShelda Mosley. Using a Quest Sound Meter to measure sound in decibels in various locations throughout the cafeteria area, Mosley determined that the noise levels in the serving line were lower than in the dishroom, where Petitioner had been working. This advice was memorialized in a report dated May 11, 1994. After receiving this report, James R. Polk, Jr., Director of Human Resources, conferred with Mosley and Dr. Ziegler, an audiologist, and all agreed that the noise levels in areas other than the dishroom of the cafeteria were low enough so that Petitioner could continue working in another area of the cafeteria. On May 14, 1994, Polk responded to Petitioner's letter with advice that "at no time [has the Board] considered terminating [Petitioner]," and that it was "very much aware of [her] problem and want[ed] to find a solution that will be satisfactory to both [her] and to the [School Board]." The letter added that because Petitioner had been satisfactorily employed in a food service position for a long time, the School Board's first option "[was] to find a position in food services that will work at that school." It reaffirmed the Board's prior offer to place her in a position which required her to prepare salads rather than working in the dish room. Polk went on to say that if that position did not work out, the School Board would look at "other options." Finally, in response to a request by Petitioner that she be reassigned to the position of Jack Rabbit mail courier, Polk stated that there was no current vacancy in that position, and he could not displace a current employee to accommodate her. If, however, a vacancy occurred in the future, he promised he would consider Petitioner for the position. On May 17, 1994, Petitioner sent a letter to the school superintendent, Dr. Thomas Sanders, concerning the status of her health insurance and the use of the Sick Leave Bank while on a leave of absence. In addition, she pointed out that she had asked for another position, "should anything come open" when she returned, because the "cafeteria noise is bad for me." In response to that letter, on May 24, 1994, Polk and Longacre jointly sent a letter to Petitioner by certified mail in which they again "assured [her] that at no time has the [School Board] considered terminating [Petitioner]" and that "other options [were being] considered." Petitioner contends that she returned to work in a volunteer capacity for several hours in May 1994 to determine if she could satisfactorily handle the noise levels of another cafeteria position. Based on that experience, she says she could not "handle it." However, there is no documentary evidence, such as sign-in sheets, to support this contention; the cafeteria supervisor and two co-workers denied that she returned to work as a volunteer during that time period; and it was established that it is contrary to school policy for a person on medical leave to return to work in any capacity. At hearing, Petitioner produced a copy of a letter dated "July 94" which she says was sent to Wolf's attention. In it, Petitioner advised him that she would "not be able to return to the lunchroom." She asked that he "look into" the possibility of her "doing the bookwork" in the lunchroom. If that was not possible, then until "anything else comes along," Petitioner asked that he "extend [her] leave of absent [sic] without pay, as it's listed in the School Board policy that if you work 3 yrs or more you can be granted up to 1 yr leave of absent [sic]." She added that if Wolf desired a doctor's note, he would have to go through her attorney in Ocala, who was then representing her on a worker's compensation claim. Wolf, however, never received the letter. On or about the same time, Petitioner says she sent a similar letter to the residence of Carla Lennon, the new cafeteria supervisor, in which she advised Lennon that she would not be able to accept the alternative position offered by the School Board due to a "fear for [her]self and others." She asked that consideration be given to allowing her to do the "manager's bookwork and all the inventories." She also advised that a doctor's note could be obtained "through [her] attorney" in Ocala. Like Wolf, Lennon never received the letter. On August 5, 1994, Wolf sent Petitioner the following letter: Greetings! It is that time of the year again. All Food Service Assistants are to report to work on August 12, 1994. Please plan on meeting with Carla Lennon, our new Food Service Manager at 7:00 a.m. I am looking forward to a great year. Hope your summer was restful. Petitioner received this letter on August 9, 1994. The following day, Petitioner sent a letter to Dr. James Hardy, an ear, nose, and throat physician, requesting that he prepare a note indicating her work restrictions. Dr. Hardy sent Petitioner a letter on August 12, 1994, stating that Petitioner "is capable of working at a job that does not require oral communication." There was no mention that Petitioner could not return to work during the following school year or that she could not tolerate the noise levels in the salad preparation area of the cafeteria. Petitioner did not provide a copy of this letter to the School Board. When Petitioner did not return to work on August 12 as directed by the school principal, on August 18, 1994, Wolf sent Petitioner the following letter: As of this date, August 18, 1994, you have not returned to work. I sent a letter on August 5, 1994 stating you were to return to work on August 12, 1994. When you failed to report, I called you to discuss your intent. You informed me you would have a doctor's statement on Monday, August 15, 1994. This has not been received as of this date. I attempted to provide an alternative work assignment in the lunchroom, such as making salads and working in the serving line. You once again informed me this would not be suitable. I have made every possible effort to accommodate you within the confines of your job responsibilities in the lunchroom. As a result, I am recommending to Dr. Sanders, your employment with the Lake County School System be terminated. This recommendation is based on School [B]oard [P]olicy: Absence Without Leave for Non- Instructional Personnel. A copy of this policy is attached. Petitioner acknowledges receiving this letter. On August 23, 1994, the superintendent sent Petitioner a letter by certified mail which advised her that he intended to accept the principal's recommendation and recommend Petitioner for dismissal at the next School Board meeting on September 13, 1994. Before such action was taken, however, Petitioner was offered the right to an informal hearing to refute the charges. Although Petitioner received both letters, she did not contact the School Board to see if her attorney had provided it with a copy of a doctor's note. She also did not exercise her right to have an informal hearing to refute the charges or seek a resolution of the controversy. Instead, she followed the advice of her worker's compensation attorney who surprisingly advised her to let the School Board terminate her. By action taken on September 13, 1994, the School Board terminated Petitioner's employment effective at the end of the workday on September 13, 1994, for violating School Board Policy GDBD - Absence Without Leave for Noninstructional Personnel. This action was taken on account of Petitioner's failure to comply with the foregoing policy and not because of any handicap. Although not pled in her Charge of Discrimination or Petition for Hearing, Petitioner has requested "payment for mental anguish of $200,000.00," "payment for loss of wages since her termination [of] $44,715.00," and "payment for loss of retirement of $100,000.00" and that the School Board "pay the taxes." Except for Social Security disability benefits, Petitioner has apparently been without income since her discharge in 1994.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission on Human Relations enter a final order dismissing, with prejudice, the Petition for Relief. DONE AND ENTERED this 1st day of December, 1998, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (850) 488-9675, SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 1st day of December, 1998. COPIES FURNISHED: Sharon L. Pennington 2512 Tecumseh Avenue Leesburg, Florida 34748 Stephen W. Johnson, Esquire M. Catherine Wellman, Esquire Post Office Box 491357 Leesburg, Florida 34749-1357 Sharon Moultry, Clerk Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana A. Baird, Esquire Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
Findings Of Fact Respondent, Billie M. Bunch, is a noninstructional employee of the Petitioner, School Board of Palm Beach County, and is under an annual contract of employment for the 1987-88 school year. Respondent was initially employed by petitioner in 1970 as a custodian, and was assigned to Boca Raton Elementary School (the school). In 1972, he was promoted to foreperson, and has continued to serve in such capacity at the school through the ensuing years. The custodial staff at the school has, during respondent's tenure, consisted of two people: the custodial foreperson and a custodian. The school is, however, a small school, with a maximum capacity of 290 students, and can be appropriately maintained by a staff of two custodians provided they regularly perform their prescribed duties. As custodial foreperson, respondent was charged with the responsibility of ensuring that the school center was properly cleaned and maintained. To accomplish this charge, respondent was directed to devote 75 percent of his time to cleaning activities and 25 percent of his time to administrative matters. The administrative matters were, however, nominal and consisted primarily of preparing a work schedule, supervising the custodian, ordering necessary supplies, and recommending needed repairs. The proof demonstrates that respondent rarely devoted any time to actual cleaning at the school. 1/ Rather, he placed that burden on the sole custodian. As a consequence, the school center was not routinely cleaned and fell into a state of disrepair. During the 1984-85 school year, the school was surveyed by a team of educators representing the Southern Association of Colleges and Schools. The purpose of the survey was to ascertain the degree to which the school met the standards for accreditation as established by the Southern Association. The team found the school satisfied all standards for accreditation except the standard relating to school maintenance. That standard Provided: There shall be evidence of effective maintenance and housekeeping designed to Provide a safe, sanitary, and attractive environment for learning and to protect the investment in the school plant. The team recommended: that the administration immediately take what ever action is necessary to insure that routine maintenance and daily housekeeping be done on a constant basis. that the administration recommend immediately for the district main- tenance to do the necessary repairs, painting, replacing, etc., that would come under their jurisdiction. * * * 4. that the gymnasium be maintained so that it can be utilized in a multi- purpose manner. The proof supports the finding of the survey team that daily housekeeping was not done on a routine basis. Trash was not removed, rooms were not cleaned, equipment was not maintained, restrooms were not sanitary, graffiti was not removed from the walls, and the grounds were not kept free of litter. During the 1985-86 school year, conditions were not improving at the school. Respondent contended, however, that the condition of the school was not a consequence of his failure to perform his duties, which contention is not credited, but the failure of petitioner to improve the school. In the face of the report of the survey team and complaints from the school advisory board, petitioner undertook to remodel, repaint, recarpet, and otherwise completely renovate the school center. The renovations were completed on or about June 1986, and respondent concedes that every complaint or problem he perceived with the condition of the physical plant had been remedied. During the 1986-87 school year, despite respondent's promise to maintain the school center, the same conditions that had previously existed at the school slowly began to reappear. Trash was not removed, rooms were not cleaned routinely, restrooms were not sanitary, graffiti was not removed from the walls, and the grounds were not kept free of litter. Because of the poor condition of the school at the end of the 1986-87 school year, the supervisor of petitioner's building services department sent in an outside crew to clean the physical plant. Over the course of a number of days that summer, this crew cleaned a substantial portion of the facility, including the 2 gang toilets, the 4 small bathrooms, 7 classrooms, the gymnasium, and the outside corridors. Additionally, they changed the air conditioning filters, cleaned the carpet in 6 classrooms, pressure cleaned the outside corridors, and washed windows. In July 1987, a new principal, Mary Smith, was assigned to Boca Raton Elementary School. Prior to the end of the 1986-87 school year, Donald Robinson had acted as principal of the school. However, because of his failure, among other things, to assure that the school center was properly maintained, petitioner requested and received his resignation. 2/ On July 27, 1987, Ms. Smith met with the respondent upon his return from vacation. At that meeting, Ms. Smith directed that he prepare new work schedules and that, under her administration, his absenteeism would have to cease. The new work schedules prepared by respondent were not significantly different than those previously used. While they purported to assign cleaning duties to him, respondent did not fulfill those duties but, rather, continued to place that burden on the sole custodian. While directed by Ms. Smith on July 27, 1987, to maintain a good attendance record, respondent promptly ignored such direction. Respondent was absent one-half day on July 28 and all of July 29, 1987, ostensibly attending an aunt who had suffered a heart attack. On July 30, 1987, respondent was present for work, but on July 31, 1987, a Friday, he was absent from the school to attend an in-services training session for custodial forepersons. While scheduled for a full day, respondent only attended until 1:30 p.m. 3/ On August 3, 1987, Ms. Smith received a phone call from respondent's aunt. She advised Ms. Smith that respondent was en route to New York to visit his ill mother. Ms. Smith told the aunt to have respondent call her as soon as possible. Fifteen minutes later, respondent telephoned Ms. Smith, ostensibly from the West Palm Beach Airport. He told Ms. Smith that his mother was very sick and that he was en route to New York to visit her. However, at no time did respondent disclose the nature of his mother's illness to Ms. Smith, and no proof was offered at hearing to demonstrate its nature or severity. During this same telephone conversation, respondent also advised Ms. Smith that he had borrowed $35 from the school coke machine. Ms. Smith told respondent he had no authority to borrow the monies. She also told respondent that he was needed to ready the school for the returning teachers and that she was not approving his absence. Notwithstanding such advice, respondent was absent from the school the week of August 3, 1987. Upon his return to the school on August 10, 1987, respondent was suspended. On September 2, 1987, respondent was suspended without pay, and thereafter the petitioner commenced this proceeding for his dismissal. On August 21, 1987, respondent delivered to the school a $35 check as a reimbursement for the monies removed from the coke machine. Respondent's contention that he did not borrow the monies but merely took them to safeguard them is not creditable. Rather, the proof demonstrates that respondent misappropriated such funds to his own use.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the School Board of Palm Beach County enter a final order sustaining the suspension of respondent and dismissing him from employment. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 7th day of March, 1988. WILLIAM J. KENDRICK 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 7th day of March, 1988.
The Issue Whether Respondent may be terminated for just cause, in accordance with Article VI, Section 1.A. of the contract between the School Board and the American Federation of State, County and Municipal Employees, Council 79, Local 850 (AFSCME).
Findings Of Fact Respondent has a twelfth grade education and is a licensed cosmetologist. She has been employed by Volusia County for over 20 years and for about eight years by Petitioner Volusia County School Board. During her years with the School Board, she has worked at Silver Sands Middle School and at Campbell Middle School. At the time the charges herein arose, Respondent was serving as a Campus Advisor at Campbell Middle School and was subject to, and protected by, the contract between the School Board and her union, AFSCME. Article VI of the AFSCME contract (Exhibit P-9) provides as follows: Section 1 – Disciplinary Action An employee may be disciplined only for just cause. . . . An employee who elects to proceed under Chapter [sic Section] 120.57, Florida Statutes, may further elect to proceed before a hearing officer [sic. Administrative Law Judge] whose decision will be regulated under Chapter 120.68, Florida Statutes. . . . Under normal circumstances the Board will follow the tenets of progressive discipline in the administration of its disciplinary standards. Discipline shall be defined as (1) the suspension of an employee; (2) the termination of an employee during the term of his or her annual contract, after he or she has completed the initial probationary period; or (3) the non-reappointment of an employee who has successfully completed three consecutive years of employment with the District, and been reappointed for a fourth year. * * * As a Campus Advisor, Respondent was responsible for aiding in maintaining a safe school environment for students. Her duties included monitoring security issues and assisting the school administrative staff with control of students. She monitored the cafeteria, helped to conduct traffic flow, and assisted students and administrators with whatever task was necessary. In her capacity as Campus Advisor, Respondent directly interacted with students on a daily basis. In August 2003, while she was employed at Silver Sands Middle School, Respondent had been referred for a fitness-for- duty evaluation because she was exhibiting irrational and disturbed behavior at school. This referral was in the nature of an intervention to protect the children in her care, to enable Respondent to get the mental health help she needed, and to permit her to continue her employment. Dr. Timothy Shaw, a psychologist, diagnosed Respondent as suffering from “Delusional Disorder, Persecutory Type,” and School Board officials asked Respondent to sign a contract agreeing to successfully maintain a prescribed program of care for her diagnosed mental condition. On January 14, 2004,3/ Respondent entered into an employment agreement (written contract) with the School Board by which she agreed to, among other things, “. . . participate in whatever treatment is prescribed if it is deemed necessary by the aforementioned professional” and to “successfully complete and maintain the prescribed program of care . . . “ Respondent acknowledged at hearing that part of the prescribed program of care at that time was for her to daily take Clonazepam (possibly Klonopin), a psychiatric medication, prescribed by a psychiatrist, Dr. Wylie. Respondent was compliant with her counseling, medication, and employment agreement for a long period of time. As of May 3, 2004, she had been recognized as “Staff Person of the Month” at Campbell Middle School. As of May 13, 2005, she had received a Service Pin as the School Board's recognition of her excellent job performance. Also, all of her attendance records were exemplary and her evaluations highly rated during this period of time. She also was active in her church and in her community during this period. At some point, Respondent felt unwell and left work with the permission of the Campbell Middle School principal. She consulted a private neurologist, who prescribed 25 milligrams of the psychiatric medication Seroquel. However, Respondent did not take this medication, because she had read or heard that it had unpleasant or dangerous side effects. Moreover, she began to take the Clonazepam, required under her contract with the School District, only when she, in her unilateral opinion, believed she needed it. On October 11, 2005, Vicky Presley, Campbell Middle School Principal, reported to Petitioner’s Office of Professional Standards that Respondent was again exhibiting irrational behavior on the job. In response to Ms. Presley's report, Professional Standards Investigator Thomas N. Harrison spoke to Respondent on October 12, 2005. At that time, Respondent told Harrison that she believed that surveillance cameras were in her home, and that she knew a red dot followed her around her house. Based on these comments and Ms. Presley's report, Mr. Harrison scheduled a meeting with Respondent to discuss a new fitness for duty evaluation. On October 14, 2005, Mr. Harrison met with Respondent to initiate the new fitness for duty evaluation. During the course of their meeting, Respondent admitted to Mr. Harrison that she had stopped taking her psychiatric medication. She went on to say that she would not take the medication required by her January 14, 2004, contract any longer, because it made her mouth dry and she did not like the way it made her feel. She also affirmatively disclosed to him that she was carrying an unloaded handgun in her purse. Mr. Harrison perceived her comments and behavior as sufficiently irrational, worrisome, or problematic for him to be concerned for her safety and that of her husband. He called in the Daytona Beach Police and Respondent’s husband. The Daytona Beach police officers who responded to Mr. Harrison’s call questioned Respondent but released her to her husband and declined to “Baker Act” her. Mr. Harrison informed Respondent that she was being referred to the Employees Assistance Program (EAP). Initially, Respondent indicated that she would not comply with the referral to EAP. However, she ultimately accepted the referral to The Allen Group, which oversees Petitioner’s EAP services. On October 28, 2005, Respondent signed another employment agreement (contract), in which she again agreed to successfully maintain a prescribed program of care for her mental illness. Pursuant to paragraphs eight and nine of that October 28, 2005, contract, Respondent acknowledged that she understood that the document constituted additional terms for her continued employment, as follows: By signing this agreement The EMPLOYEE is acknowledging that any manifestation of the condition named by the aforementioned professional does not give rise to an obligation of the EMPLOYER to accept such behavior by the EMPLOYEE. By signing this agreement the EMPLOYEE is acknowledging his/her understanding that any violation of Federal Law or Regulation of the State of Florida, the Rules and Regulations of the State Board of Education, or the policies of the EMPLOYER will subject the EMPLOYEE to a recommendation by the superintendent to the school board for the EMPLOYEE’S termination from employment by the EMPLOYER. Further, the EMPLOYEE understands that this agreement does not constitute a guarantee of employment but merely constitutes additional terms for the period of employment. (Emphasis supplied.) Based on the delusional behavior and paranoia Respondent exhibited during her EAP assessment, The Allen Group referred her for a psychiatric evaluation. That psychiatric evaluation was conducted by James T. Moore, M.D., a Florida- licensed psychiatrist, on or about November 3, 2005. Dr. Moore considered Respondent to be clearly psychotic on that occasion. She continued to talk about being under surveillance from the red dot in her home and stated that she was subjected to untrue rumors that she inappropriately watched school children and that she had stolen food. This was the same situation that she had complained-of at Silver Sands Middle School. Dr. Moore diagnosed her condition as “presumably delusional disorder, persecutory type,” and provided her with samples of 100 milligram tablets of Seroquel. His deposition and report in evidence do not reflect that he ever wrote a prescription for Seroquel for Respondent. In fact, his testimony was that he felt Respondent needed more than 100 milligram tablets of Seroquel daily but that he believed he should not provide/prescribe more than 100 milligrams unless he were treating Respondent as his patient in an on-going fashion. Respondent’s testimony acknowledged that with or without a prescription for Seroquel, she would not take that drug, because she had heard of its side-effects and that a “lawyer” was going to remove it from the market. She did, however, continue her psychological therapy with The Allen Group. On November 30, 2005, James Hollins, Director of the Office Of Professional Standards, was informed by Kevin Percy, M.Ed., CEAP, LMHC, and a member of The Allen Group who had met with Respondent on several occasions, that Respondent had been assessed and a treatment plan had been developed for her. However, Mr. Percy, who is a Florida-licensed mental health counselor, went on to report to Mr. Hollins that Respondent's illness was "uncontrolled and she refuses to follow medical orders." Additionally, he reported that Respondent was not pursuing any acceptable alternative course of treatment. In summation, he opined that Respondent was "non-compliant" with the prescribed treatment plan, because she would not take her medicine. No evidence was presented that any medical or psychological professional had ever considered offering, or had offered, Respondent a substitute for Seroquel. On December 2, 2002, Dr. Moore reported to Mr. Hollins that Respondent's condition was an impediment to the fulfillment of her duties as Campus Advisor. Dr. Moore recommended, after consultation with Mr. Percy and others in The Allen Group, that Respondent not be returned to work, because he felt she should not be around children in her condition. By this time, Respondent had told Messrs. Harrison, Percy, and Moore that she would not take Seroquel. Based on Respondent's failure to adhere to the terms of the two contracts, each entitled “Employment Agreement,” and due to the report by properly licensed and qualified medical and psychological personnel that Respondent was not mentally fit to successfully carry out her duties as a Campus Advisor for the School Board, Mr. Hollins recommended to the Superintendent of Schools, Dr. Margaret Smith, that Dr. Smith request that the School Board terminate Respondent's employment. Mr. Hollins’ recommendation and Ms. Smith's decision to follow that recommendation were reached after they had determined that the School Board had no position available for which Respondent was qualified and which did not require her to be around children. On April 11, 2006, Dr. Smith informed Respondent, by letter, of her intent to recommend to the School Board that Respondent be dismissed from employment at the April 25, 2006, School Board meeting, explaining that the reason for her recommendation was that: The Respondent has breached an agreement dated January 14, 2005, [sic] in which she had agreed to successfully maintain a prescribed program of care for a mental illness which had been previously diagnosed as a result of the Respondent having been referred for a fitness for duty examination. Properly licensed and qualified medical and psychological personnel have determined that the Respondent is no longer following the prescribed program of care, and the Respondent has admitted such to investigators employed by the School Board in its Professional Standards Department. The Respondent is unable to perform out [sic] the essential duties and functions of campus advisor for the School Board, as determined by properly licensed and qualified medical and psychological personnel. Based on the foregoing, the School Board voted to terminate Respondent's employment on April 25, 2006. Respondent was informed of her right to “appeal” that decision, and this case followed. At hearing, Respondent testified that her reasons for not taking her prescribed psychiatric medication were that she "didn't feel [it] was needed at the time it was prescribed." She admitted that no licensed medical professional had instructed her to stop taking her medication. Her decision to stop the medication was her own unilateral decision, and as of the hearing date, September 22, 2006, she had taken no psychiatric medications (neither Clonazepam nor Seroquel) for over a year. She refused to take the drug Seroquel under any conditions. Respondent’s testimony is not entirely clear, but either she believes that the medicine she was taking or her problems with the School Board in 2005 added to the stress in her marriage and thus led to a subsequent divorce, or the stress in the marriage caused her problems with the medication and School Board. Petitioner still believes that adults encouraged school children to pose suggestively for her and that a white dot she calls her "little furry dot" follows her around her house, but the dot no longer bothers her. She is currently attending a community college in a degree program and doing very well. She intends to "not be negative."
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the School Board of Volusia County enter a final order ratifying its previous termination of Respondent. DONE AND ENTERED this 18th day of December, 2006, in Tallahassee, Leon County, Florida. S 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 18th day of December, 2006.
Findings Of Fact Thomas L. Berkner, Petitioner, holds a continuing contract status as principal of elementary school in Orange County. During the 1977-1978 school year Petitioner was assigned as principal of the Winter Garden Elementary School which had a student enrollment of approximately 250 and consisted of kindergarten, first and second grades only. The Orange County School Board consolidated Winter Garden and Dillard Street Elementary Schools for the school year 1978-1979 leaving one principal for the school which retained the separate facilities, but was called Dillard Street Elementary School. The job of principal of the consolidated schools was given to the Dillard Street School principal and Petitioner was transferred to the position of Program Coordinator, ESEA Title I at the same salary he was paid as principal. The ESEA Title I Program is a federally funded project to serve economically disadvantaged and educationally deprived or disadvantaged children in grades 1, 2, and 3 but math is extended to grades 4, 5, and 6. The pay grade for Program Coordinator Title I was pay grade 46 and when first assigned Petitioner's personnel records reflected this pay grade (Exhibit 3). However, the records were corrected to reflect his continuing contract status and his pay grade was increased to 48 (Exhibit 4) the same pay grade for elementary school principals for schools with enrollment below 800. Although program coordinators are on annual contract status, Petitioner does not, while serving in this capacity, lose the continuing contract status as an elementary school Principal which he acquired in 1970. Scholastic and experience requirements for various positions in the Orange County school system are revised when these positions are advertised for applicants and generally reflect the highest qualities available in the local job market. At the present time elementary school principals and program coordinators are required to hold a masters degree. In addition program coordinators must be certified in elementary education and supervision, and have a minimum of five years teaching experience at the elementary level. Elementary principals must be certified in elementary school administration and supervision, and have a minimum of five years teaching experience (Exhibits 5, 7, and 9). Both principals and program coordinators perform primarily administrative functions as opposed to teaching functions. The principal is given overall responsibility for the school to which he is assigned and has certain statutory duties and authority that are not visited upon other positions. These include administrative responsibility for evaluating the educational program at his school, recommending the transfer and assignment of personnel at his school, administrative responsibility for school records, authority to administer corporal punishment and suspension of students, and perform such other duties as may be assigned by the Superintendent. Those duties assigned by the Superintendent are contained in the Job Description, Elementary School Principal (Exhibit 7) and phrased in the lexicon of education administrators, call upon the principal to promote, develop, coordinate, formulate, involve, manage and initiate programs and relationships to optimize the effectiveness of the school. The job description of the Program Coordinator ESEA, Title I (Exhibits 5 and 9) assigns to him responsibility for supervision of the Title I Program. The program coordinator's typical duties include interpreting the philosophy and goals of the program, assisting teachers, planning activities, participating in program planning, assisting principals and staffs, preparing and submitting reports and records, and performing other duties that may be assigned. Both jobs involve dealing with teachers and students, supervision, and administrative functions in carrying out the program for which each is responsible. The principal carries out his duties in the school to which he is assigned and works from his office while the program coordinator is responsible for the Title I program in several schools and spends a large part of his time away from the "office" he shares with other program coordinators. The principal has a secretary while the program coordinator must share a secretary with other program coordinators. However, one witness described the secretary at one elementary school as a school secretary and that the secretary did not work solely for the principal. Of those 15 typical duties of an elementary school principal listed on Exhibit 7, the program coordinator performs all but 5 and they involve duties that may be described as school-oriented rather than program-oriented. Of those 7 typical duties listed on Exhibit 9, Job Description for ESEA Title I Program Coordinator, the elementary school principal performs all except serve on Title I advisory council. Several witnesses testified that the position of principal was more prestigious than that of program coordinator, however, when all the evidence is considered it appears that prestige, like beauty, is in the eye of the beholder. While testifying in his own behalf Petitioner averred that as a program administrator he had no administrative duties and no personnel duties. Other program coordinators testified that they did have administrative and personnel duties. Petitioner acknowledged that most of the typical duties listed on Exhibit 7 were also performed by program coordinators.
The Issue Whether Miami-Dade County School Board ("MDCSB") had just cause to suspend and recommend the termination of Respondent, Carla McCray's ("McCray" or "Respondent"), employment for the reasons set forth in the agency action letter dated December 20, 2018.
Findings Of Fact MDCSB is a duly-constituted school board charged with the duty to operate, control, and supervise the public schools within Miami-Dade County, Florida. At all times material to this case, McCray was employed by MDCSB as a school security monitor at MSHS, a public school in Miami-Dade County, Florida, and served in that capacity since 1998. Respondent's employment with MDCSB is governed by Florida law, MDCSB's policies, and the collective bargaining agreement ("CBA") between MDCSB and the United Teachers of Dade Union. As a school security monitor, McCray's duties included assisting students, assisting with student/staff altercations, protecting the school from intruders, and to generally protect the safety of everyone in the school. The proposed discipline is based upon McCray's repeated refusal to submit for a fitness-for-duty evaluation after repeated instructions to do so. Facts Giving Rise to the Fitness-for-Duty Evaluation Request In March 2018, the Office of Professional Standards ("OPS") for Miami-Dade County Public School ("MDCPS") received a call from Marian Lambeth, the Chief of the Professional Practices Commission of the Florida Department of Education. She advised OPS that McCray sent the Commission correspondence entitled "Criminal Misconduct Complaints and Willful Violations," which was 322 pages. The lengthy, repetitious, and disjointed correspondence describes a variety of alleged "cyber internet crimes," including inter cyber-bullying, cyber- harassment, and cyber-stalking. The voluminous "complaint" lists alleged infractions dating back for at least ten years. This bizarre document caused OPS and District Director Carmen Molina to be concerned for McCray's well-being and essentially put McCray on the District's "radar." McCray previously made similarly odd computer-related complaints in December 2016 to Assistant Principal Dwight Arscott. She told him people were taking control of computers she was using and logging her out of District computers. Mr. Arscott contacted the MSHS Information Technology Services ("ITS") department and also school police. McCray's complaint was investigated and found to be without any merit. McCray again made similar complaints to Mr. Arscott in January 2017, and this time he referred her to school police because, in McCray's opinion, ITS had not done a sufficient job of investigating the matter. Again, no problem was discovered regarding McCray's district-issued computers or accounts. At the start of the 2018-2019 school year, McCray expressed to Mr. Arscott that she did not feel safe using school email systems and requested that he contact her through her personal Yahoo email address. She expressed that she did not want to use the District email because she was being cyber-bullied and harassed and did not feel safe using it. As a result she was experiencing "distress." McCray memorialized her concerns in emails she sent to Mr. Arscott and other MSHS administrators beginning in August 2018. In one such email, Respondent stated that she was experiencing "overwhelming of emotional, psychological and spiritual distressed." She also stated, "I wasn't feeling in the best of wellness, for the same aforementioned reasons." She also requested a meeting with Mr. Arscott after her "wellness recovery." Mr. Arscott accommodated Respondent and gave her some time off. At the meeting she requested a personnel investigation, and Mr. Arscott explained to her that that process did not apply to her computer-related complaints. The emails from McCray caused Mr. Arscott to worry about Respondent's well-being. Additionally Mr. Arscott was concerned that a security monitor was making these complaints, because security monitors are responsible for protecting the school and alerting administration to potential security issues. MSHS is charged with educating and supervising over 3,000 students. Security monitors are relied upon to be the administration's "eyes and ears" at the school. MSHS Principal Benny Valdes shared the same concerns regarding McCray's communications because her self-described "emotional distress" could affect the safety of everyone at the school, including the students, staff, and McCray. On September 20, 2018, at 6:59 p.m., McCray sent yet another email to Mr. Arscott complaining of harassment, bullying, stalking, discrimination, safety violations, and security violations. She also claimed to be experiencing medical difficulties, including abrupt panic attacks, breathing problems, chest pain, and having to depart work early to immediately seek medical attention. The verbiage of the email is jumbled, disjointed, and nonsensical. Mr. Arscott was concerned, particularly by the alleged "safety concerns," because they were not detailed in the email. When he attempted to speak with McCray about her allegations, she provided no details. Mr. Arscott knew McCray left school a couple times to see doctors and his concerns were growing. In her September 20, 2018, email, McCray copied numerous other public officials and entities having nothing to do with MDCPS, including the Miami-Dade State Attorney, the FBI, Governor Rick Scott, and Senators Marco Rubio and Bill Nelson. On September 21, 2018, at 9:49 p.m., a similar email was sent to Mr. Arscott once again and a similar list of public officials was copied by McCray. In this email McCray requested copies of the documentation pertaining to her computer complaints. Apparently the ones she had been previously provided by Mr. Arscott were not "visually sufficient" for her. On September 24, 2018, at 5:39 a.m., McCray sent another similar email to Mr. Arscott and, once again, copied a seemingly random list of public officials. Then again on September 26, 2018, at 5:40 a.m., McCray sent another similar email to Mr. Arscott, as well as various public officials. Mr. Arscott estimated that there were 30 or more of these repetitious and bizarre emails sent by McCray between September 20 and 26, 2018. At or about the same time one morning, McCray also texted Mr. Arscott with her concerns 46 times between approximately 5:00 a.m. and 6:00 a.m. Trying to address all of McCray's repetitive requests, sent virtually at all hours of the day and night, took Mr. Arscott away from his other duties at the school. As a result of these communications and their concerns for both Respondent and the school, both Mr. Arscott and Mr. Valdes supported the decision to send Respondent for a fitness-for-duty evaluation. Mr. Valdes also stated that he would not be comfortable with Respondent returning to MSHS. The Fitness-for-Duty Process School Board Policy 4161--Fitness for Duty, applies to noninstructional personnel, which includes security monitors. The fitness policy refers to the applicable CBA. Article XXI(F) of the CBA dictates that at the request of administration, an employee can be sent for a psychological or psychiatric examination or test upon a written statement of the need for such an examination. District Director Carmen Molina testified that the District was first alerted of concerns for McCray's well-being when Marian Lambeth called and provided OPS with a copy of McCray's 322-page complaint in March 2018. These concerns were amplified when McCray began sending emails to MSHS administration describing various forms of distress she was experiencing. Much like Mr. Arscott and Mr. Valdes, Ms. Molina was concerned that a security monitor was making these complaints and allegations. Understanding the role of security monitors at a school, she too supported sending McCray for a fitness-for-duty evaluation. As a result of the administration's well-founded concerns, on September 27, 2018, a Conference for the Record ("CFR") was held with McCray and two union representatives concerning sending McCray for a fitness-for-duty evaluation. When McCray arrived for the CFR, Ms. Molina handed her an envelope that contained a written description of why she was being sent for a fitness evaluation. Ms. Molina explained to her both in writing and verbally that she was being sent for the evaluation because of her repeated complaints about cyber- bullying and her claims of emotional, psychological, and spiritual distress. The reasons for the evaluation were also memorialized in the CFR summary Ms. Molina drafted and presented to McCray. At the CFR, McCray wanted the meeting postponed for lack of union representation, yet this claim had no basis because two union representatives were present. McCray asked Ms. Molina what the basis for the fitness determination was and Ms. Molina advised her that it was because of the frequency and the content of the emails she was repeatedly sending. Ms. Molina even presented her with an email dated September 26, 2018, and asked McCray if she sent it. McCray replied that "it looked familiar." During the CFR, Ms. Molina directed McCray to go to the fitness-for-duty evaluation and provided her with a list of clinical evaluators from which to choose three. McCray refused to sign this referral document, as well as the written basis for the fitness determination. It was explained to her that going to the fitness-for-duty evaluation was a condition of her continued employment and that if she refused, it would be considered insubordination. McCray was given until September 28, 2018, to call Ms. Molina with her selected evaluators, but she never made the call. After this meeting, McCray was placed on "alternate assignment" and remained at home with full pay. When McCray did not call Ms. Molina as directed to schedule the fitness evaluation, another CFR was scheduled for October 4, 2018. Ms. Molina testified that McCray was given more than two day's notice for this second CFR and emailed the notice to her preferred Yahoo email account. McCray did not attend this CFR. However, the written summary of this CFR, which once again contained written directives to schedule the fitness-for-duty appointment, was sent to McCray. McCray failed to select her choices of evaluators for the second time and, as a result, a third CFR was held on October 15, 2018. Despite her refusal to participate in the fitness process, McCray continued to send a barrage of bizarre emails. McCray attended this CFR and was once again directed by Ms. Molina to go for a fitness evaluation. This was the third time McCray received these directives in writing and the second time Ms. Molina gave them verbally. During this CFR, McCray was once again presented with a list of doctors to choose from and she again refused to sign it. McCray was also advised that her continued refusal to go for the fitness evaluation was gross insubordination. McCray repeatedly said, "I heard you" when Ms. Molina spoke to her. In early November 2018, there was a fourth CFR held with McCray that she attended and was once again given a chance to participate in the fitness process. Again, she refused. On November 29, 2018, McCray was given a fifth and final opportunity to participate in the fitness-for-duty process at her meeting prior to board action. It was explained to her by Ms. Molina, Ms. Molina's supervisor, Dr. Jimmie Brown, and then Associate Superintendent Joyce Castro that she would have to go for the fitness evaluation or be terminated. McCray still refused to go. McCray was also presented with an entire copy of her disciplinary file by Ms. Molina. On December 18, 2018, McCray was emailed and sent via certified mail a letter that informed her that her termination was going to be recommended at the December 19, 2018, MDCSB meeting. On December 20, 2018, McCray was emailed and sent via certified mail a letter that informed her that MDCSB had taken action to terminate her employment. McCray's Arguments McCray argues that termination is inappropriate because she did not receive sufficient advanced notice of the first CFR, as required by the CBA, and she was not given a valid reason for the need for the fitness-for-duty evaluation. McCray also argues that MDCSB's failure to provide a Notice of Specific Charges prior to her termination deprived her of due process. Notice of the First CFR Article XXI, Section 1, A(3) of the CBA governing the terms of McCray's employment provides that, "Employees shall be given two days' notice and a statement of the reason for the conference, except in cases deemed to be an emergency." MDCSB alleges that the September 27, 2018, CFR was an emergency justifying the lack of advance notice. McCray contends that there was no emergency because MDCSB became concerned about McCray's mental health after receiving her 322-page complaint letter in March 2018. Although the March 2018 complaint raised concerns regarding McCray's well-being and mental stability, it was her ongoing and ever-increasing barrage of bizarre, and often incomprehensible, emails to numerous individuals in which she expressed concerns about her own safety and stability that escalated the situation to an emergency. Despite the lack of advanced notice, McCray had two union representatives present at this first meeting to assist her with the process. Accordingly, MDCSB was justified in calling the initial emergency CFR without two days' advance notice. Reason for the Evaluation Request Contrary to McCray's assertion that she was asked to submit to a psychological evaluation based solely upon "too many emails," MDCSB repeatedly explained verbally and in writing to McCray that it needed the evaluation based on the volume and content of those emails. In the emails, McCray complained of unspecified harassment, bullying, stalking, discrimination, unspecified safety violations, and security violations that she claimed were causing her abrupt panic attacks, breathing problems, chest pain, and causing her to seek medical assistance. At each CFR and in the CFR summaries, McCray was advised that MDCSB wanted her to participate in a fitness-for- duty examination because of her own complaints of school-related "emotional, psychological, and spiritual" distress. Notice of Specific Charges McCray points out that she was not provided with a Notice of Specific Charges until February 18, 2019, only 11 days prior to the final hearing and approximately two months after MDCSB's termination recommendation. Due process required that McCray be provided notice and an opportunity to be heard prior to suspension or termination and the right to a post-termination evidentiary hearing. Prior to termination, McCray was given five notices of CFRs and at least three CFR summaries explaining the need for her to participate in a fitness-for-duty evaluation, and that failure to do so was a violation of MDCSB policy and insubordination. McCray was also notified on December 18, 2018, by email and in writing, that MDCSB intended to recommend her suspension without pay and dismissal for just cause, "including but not limited to: gross insubordination; and violation of School Board Policies 4161, Fitness for Duty, 4210, Standards of Ethical conduct, and 4210, Code of Ethics." Despite being provided multiple opportunities prior to termination to explain her basis for fearing for her safety and refusal to attend a fitness-for–duty evaluation, McCray refused to do so. After the MDCSB meeting on December 19, 2018, at which McCray was recommended for suspension without pay and dismissal, she was provided notification of the action by letter dated December 20, 2018, which mirrored the basis for discipline contained in the December 18, 2018, letter. This notification also provided her with notice of how to contest the proposed action. MDCSB policies do not specify a time frame within which a Notice of Specific Charges must be issued for non- instructional employees. At no time prior to the issuance of the Notice of Specific Charges did McCray request any further explanation. There is no record of any pre-hearing discovery request by McCray regarding the specific factual or legal basis for the termination. It should be noted that the Notice of Specific Charges identifies violations of MDCSB Policy 4161— "Fitness for Duty" and "Gross Insubordination"--the same reasons for proposed discipline identified prior to the MDCSB action of December 19, 2018. McCray was provided a full evidentiary hearing at the final hearing of this matter. McCray received all pre and post-termination due process to which she was entitled.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a final order finding Carla McCray guilty of misconduct in office and gross insubordination and upholding her termination from employment. DONE AND ENTERED this 3rd day of June, 2019, in Tallahassee, Leon County, Florida. S MARY LI CREASY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of June, 2019. COPIES FURNISHED: Christopher J. La Piano, Esquire Miami-Dade County School Board 1450 Northeast 2nd Avenue, Suite 430 Miami, Florida 33132 (eServed) Catherine A. Riggins, Esquire 18520 Northwest 67th Avenue, Suite 105 Miami, Florida 33015 (eServed) Alberto M. Carvalho, Superintendent Miami-Dade County Public Schools 1450 Northeast 2nd Avenue, Suite 912 Miami, Florida 33132-1308 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
Findings Of Fact During the 1977-78 school year, the Respondent, Erma Frederick, was employed as a classroom teacher in the Dade County Public School System, assigned to Buena Vista Elementary School. On October 10, 1977, a conference was scheduled between the Respondent, United Teachers of Dade, Representative, Ms. Mattie Squire and Ms. Linda E. Stuart, Principal of Buena Vista Elementary School. During the conference, Respondent was advised that based on two years of unsatisfactory evaluations (1973-74 and 1974-75) deficiencies in her teaching performance existed which, if not corrected by December 1, 1977, would affect her status as an employee in the Dade County Public School System and which, if not corrected by December 1, a complaint of incompetency would be filed seeking Respondent's dismissal. The substance of this conference was reduced to writing by letter dated October 10, 1977, and cited the following deficiencies: Failure to maintain pupil control by establishing and maintaining discipline. Failure to file instructional plans. Failure to implement lesson plans and to present materials correctly. Failure to correctly grade student papers and maintain accurate grade books. Failure to properly maintain cumulative records and to maintain attendance and other data entries on report cards. Failure to accurately take attendance. Failure to follow class schedules. Failure to maintain supervision of pupils at all times. Based on the Respondent's failure to otherwise remedy the above cited deficiencies to Petitioner's satisfaction, Petitioner suspended Respondent from her position as an instructional teacher on March 9, 1978. Respondent, although properly noticed, failed to appear at the hearing to refute the cited deficiencies relied on by Petitioner in suspending her as an instructional employee at Buena Vista Elementary School. Based thereon, and in the absence of any evidence having been offered by Respondent to refute or otherwise negate the above-cited deficiencies, they must be, and are, considered meritorious.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That the Respondent's appeal of her suspension by Petitioner be DENIED. DONE and ENTERED this 30th day of April, 1979, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675
Findings Of Fact Background Respondent is a teacher certified in English, which he has taught while employed by Petitioner. He was first employed by Petitioner during the 1984-85 school year. In 1987, he was awarded a professional service contract. He has six years' teaching experience outside Highlands County. Principals or assistant principals routinely conduct annual teacher evaluations. The evaluation form contains two sections. Section 1 contains 14 categories that are marked based on one or more classroom observations. Section 2 contains 15 categories that are marked based on classroom observations and experience with the teacher. The back of the evaluation form explains the marks as follows: Mark Description Commendable (C) Indicates exceptional performance of the identified behavior(s). Satisfactory (S) Indicates satisfactory performance of the identified behavior(s) Needs Improvement (NI) Indicates a need for the employee to strengthen/improve performance of the identified behavior(s). Must Improve (MI) Indicates a need for the employee to remediate deficient behavior(s). If the deficiency is not corrected, the employee's contract status could be affected. The back of the evaluation form explains the "NEAT Procedure/Due Process": When an employee is evaluated as Must Improve, remediation procedures must be implemented as follows: Notice--The employee has the right to receive full written notification of the identified deficient behaviors. Explanation--The employee has the right to receive a full explanation for the reason behaviors are considered deficient. Assistance--The employee has the right to receive assistance in remediating the deficient behavior. Time--The employee has the right to a reasonable amount of time to achieve remediation. Various documents exist to normalize the evaluations of teachers. However, a degree of subjectivity necessarily remains in the evaluation process. Petitioner has prepared a booklet entitled, "Performance Appraisal System for Instructional Personnel" (Appraisal Booklet). The Appraisal Booklet introduced into evidence is dated October 5, 1992, but, judging from the cover letter from the superintendent, was in effect for the entire 1992-93 school year. The Appraisal Booklet contains, at page 12, a section describing the assessment process. The booklet states in part: When a competency or behavior is marked "NI-Needs Improvement," the appraiser shall provide counseling and/or resources whereby improvement may occur. For each competency or behavior which is marked "MI--Must Improve," a remediation procedure must be designed and implemented. The procedures will be described in a Professional Development Plan, as called for in the NEAT procedures. Each deficient item shall be addressed in a separate [Professional Development Plan]. The plan shall include the following: Area to be improved: specify the identified problem. Specific desired improvement: write as a measurable goal or objective. Action to be taken: describe action the involved parties will complete to achieve desired improvement. Assistance plan: List and describe who will provide assistance, showing role of each participant. Time line: specify dates for each activity to be completed and evaluated. Evaluation: describe how and when evaluation of progress or success will occur. Consequences: specify consequences if improvement is not achieved satisfactorily. The Appraisal Booklet contains, at page 15, a section entitled, "Use of Assessment Data for Personnel Decisions." This section requires written comments for every C, NI, or MI. Under a subsection entitled, "Unsatisfactory Ratings," the Appraisal Booklet states in its entirety: For every MI assigned, the assessor will conduct a follow-up of the Professional Development Plan to determine if the appraisee accomplished the required improvement and/or when that competency will be reassessed. Failure to improve within the expected time may be grounds for returning to annual contract for an employee holding a Professional Service Contract or a Continuing Contract. If the deficiency is not corrected during the second year, it may be grounds for non-renewal. (See NEAT) If the appraisee receives two consecutive unsatisfactory annual evaluations, the superintendent shall notify the Department of Education as required by statute. On [the evaluation form] three or more ratings of MI . . . will constitute an "unsatisfactory annual evaluation" for purposes of reporting to the DOE. The Appraisal Booklet discusses C's. Nothing in this section of the booklet explicitly addresses NI's except, as noted above, that comments must accompany each NI. The contract between Petitioner and the teachers discusses evaluations, but not in such detail as to address the meaning of NI's and MI's. Concerning remediation, the contract states: Where deficiencies are brought to the teacher's attention by his/her supervisor, the teacher shall be responsible for taking the necessary steps for improving his/her skills to an acceptable level as determined by the principal. Assistance shall be offered the employee and such assistance for improvement shall be noted in writing and a signed copy be retained by the appropriate supervisor and the employee. Following remediation, reassessment shall be accorded the employee in compliance with the procedures of Article XI. If the final assessment report fails to note specific deficiency, it shall be interpreted to mean adequate improvement has taken place. The professional judgment of the evaluator shall not be subject to the grievance procedure. The contract acknowledges that it shall not be interpreted to abridge or in any way usurp the authority or power of [Petitioner] as established by constitutional provisions or state Board of Education regulations or statutes existing at the time of the [contract]. And further, [Petitioner] shall be relieved of compliance with any term or condition of this [contract] if such compliance is contrary to any constitutional provision or state Board of Education regulation or statute in effect or enacted subsequent to the signing of this [contract]. Petitioner has no clear written or unwritten policy regarding whether a performance deficiency evidenced by an MI is corrected by an NI, rather than a C or an S. The determination whether a teacher has corrected performance deficiencies depends on the circumstances. The Lake Placid Teacher Handbook for the 1992-93 school year, a copy of which was given to Respondent at the beginning of the year, notes that teachers are to administer their assertive discipline plan and enforce all school rules. Regarding student control, "teachers must not argue with students, use profanity or sarcasm, and must keep hands off students." Petitioner's Code of Student Conduct for the 1992-93 school year describes the teacher's role in the maintenance of discipline as starting with the preparation of a classroom assertive discipline plan, which outlines a series of increasing consequences for disciplinary problems. Under the first step, the teacher will follow his or her plan, which may contain consequences such as withholding a privilege, isolation, counseling, detention, extra work, task assignment, or a parent conference. Under the second step, if the misconduct is repeated, the teacher shall try to contact the parent and record the result. Under the third step, the teacher will refer the matter to the social worker, school nurse, Guidance Committee, or School Attendance Review Committee for positive intervention. Under the fourth step, if the problem persists or the misconduct becomes a major disruption, the teacher will complete a student disciplinary referral form and a school administrator will determine the appropriate punishment. Evaluations Prior to 1991-92 School Year Respondent's evaluation dated November 13, 1985, contains all S's with the exception of an NI for circulating and assisting students. The evaluation was prepared by Donn Goodwin, an assistant principal at Sebring High School where Respondent was then teaching. Respondent's evaluation dated March 5, 1986, contains all S's except for C's in demonstrating friendly, positive attitude toward all students; maintaining academic focus; using effective questioning techniques; providing for practice; dependability; and punctuality/attendance. The evaluation contains one NI for parent/community relations. The comment accompanying the NI is obscured, but suggests that Respondent did not schedule enough parent conferences, although he did a good job with those that he conducted. The evaluation was prepared by James Bible, the principal of Sebring High School. Respondent's evaluation dated September 4, 1986, contains all S's except for C's in demonstrating effective communication skills, presenting subject matter effectively, maintaining academic focus, arranging physical features of the classroom for a safe learning environment, dependability, work attitude, and commitment. A note at the bottom of the evaluation states that Respondent maintained an "excellent class." The evaluation was prepared by Michael Agner, an assistant principal at Sebring High School. Respondent's evaluation dated February 25, 1987, contains all S's except for C's in maintaining academic focus and maintaining effective classroom control and an NI in using specific academic praise. The evaluation was prepared by Mr. Bible. Respondent's evaluation dated April 6, 1988, contains all S's except for C's in demonstrating effective communication skills, having materials ready, maintaining academic focus, using effective questioning techniques, punctuality/attendance, quantity/quality of work, commitment, and professional behavior/ethics. The evaluation was prepared by Mr. Bible. Respondent's evaluation dated February 28, 1989, contains all S's. A comment under parent/community relations notes: "Need to continue working in this area. Parental support helps your teaching." A comment under student/staff relations adds: "Need to be mindful of backing students in corners with no alternatives." The evaluation was prepared by Mr. Bible. Respondent's evaluation dated October 17, 1989, was obscured in the copying process. It appears to contain all S's with some C's in Section 1. The evaluation was prepared by Thomas Knowles, an assistant principal at Sebring High School. Respondent's evaluation dated October 3, 1990, contains all S's. The evaluation was prepared by Ruth Hatfield, then an assistant principal at Sebring High School. Respondent's evaluation dated February 20, 1991, contains all S's except for C's in having materials ready and circulating and assisting students and NI's in punctuality/attendance, student/staff relations, personal appearance, and receptiveness. Among the comments under Section 1 is that the observer did not see Respondent's assertive discipline rules posted. Section 2 comments are that Respondent was often late and "very defensive--refuses criticism." Under student/staff relations, the comment is: "Alienates students. Backs up kids in corners. Need to be aware of this." Another comment suggests a need to dress more professionally. The final comment states: "Need to work on areas that deal with students and parents." The evaluation was prepared by Mr. Bible. A letter dated May 13, 1991, memorializes a conference that took place on May 9, 1991, between Respondent and Rebecca Clark, another assistant principal at Sebring High School. The letter states that Ms. Clark had noticed Respondent leaving his class while two guest speakers were making a presentation. Upon questioning, Respondent said that he had to run a quick errand and would be right back. Ms. Clark remained in the classroom until the end of the period, at which time Respondent returned. The letter warns Respondent that he must remain with his class and may not leave campus without prior authorization from an administrator. Evaluations During 1991-92 School Year A new principal, Calvin Smith, replaced Mr. Bible at Sebring High School for the 1991-92 school year. Mr. Smith conducted Respondent's next evaluation, which was dated December 2, 1991. Based on an observation taking place during a 50- minute period on November 26, 1991, Respondent received all S's in Section 1 except for a C in presenting the subject matter effectively and an NI in using specific academic praise. In Section 2, Respondent received S's in only five categories: keeping accurate records, punctuality and attendance, initiative, student evaluation, and professional growth. Receiving no C's in Section 2, Respondent received three NI's in personal appearance, receptiveness, and commitment and seven MI's in dependability, work attitude, parent/community relations, student/staff relations, quantity/quality of work, planning, and professional behavior/ethics. The comments for the NI's are brief and in handwriting. Under receptiveness, the comment is: "seem[s] to be afraid of dealing with a problem. I am only trying to make you a better teacher." The comment under commitment states: "dedicate yourself to your job. You have too much talent to waste." Each MI is treated in a separate Professional Development Plan. The Professional Development Plans, which are attached to the December 2 evaluation, consist of several parts: "area to be improved," "desired improvement," "action to be taken," "who will provide assistance," "time line for achieving objectives/goal/improvement," "evaluation process to determine improvement," and "consequences if improvement is not satisfactorily achieved." Under parent/community relations, the desired improvement is: "When dealing with parents you must exhibit an air of professionalism but be understanding." The action to be taken is: "Schedule parent conferences as needed to resolve situations with students. Apologize for your actions if need be and start over with the situation." Under dependability, the desired improvement is: "Should show he is able to be counted on without constant badgering." The action to be taken is: "Submit lesson plans on time. Supply I[n] S[chool] S[uspension] students with work when requested. Meet with parents without being directed to do so. Learn to deal with students as an adult rather than getting into shouting matches, etc." Under student/staff relations, the desired improvement is: "Show you understand students by working with them in correcting deficiencies." The action to be taken is: "Don't get in students['] faces and yell at them. Don't allow things to go on and then establish a rule of the next one goes to the office. Learn to deal with student problems rather than expecting the office to handle the problem." Under work attitude, the desired improvement is: "Show that you like what you do. Turn students on to your subject. Work on faculty relations." The action to be taken is: "Be cooperative in dealing with parents, students, and faculty members. Present an atmosphere of enthusiasm that is contagious and infectious to those around you." Each Professional Development Plan states that assistance or training would be provided if requested by Respondent. For student/staff relations, the plan states: "Inservice will be provided by administrators as requested and a workshop may be recommended." Similar language is contained in the plan for work attitude. Under time line for achieving objectives/goal, improvement, each Professional Development Plan states: "Should show some immediate improvement but enough improvement must be shown prior to evaluation in 92/93 school year to remove the MI." Each Professional Development Plan describes the evaluation process to determine improvement as: "List kept of ineffective behaviors. [Respondent] will be given a copy of each item placed in folder." Each Professional Development Plan warns that, "if improvement is not satisfactorily achieved," there will be a "recommendation to place [Respondent] back on annual contract." By letter dated December 16, 1991, Mr. Smith refers to the evaluation and the evaluation conference that took place on December 5, 1991. The letter notes that one of the Professional Development Plans required Respondent to supply in-school suspension students with work when requested. The letter acknowledges that Respondent had said at the conference that he would take care of all of the MI's. The December 16 letter notes that Respondent had already failed to provide make-up work for five named students who had been sent to in-school suspension. Students punished by in-school suspension are prohibited from attending their classes, but are sent to another part of the school. It is important for their teachers to provide their assignments, so the students can study the same materials that the teacher is presenting to their classes. The December 16 letter concludes: "Repeated cases of this problem will lead to my recommendation to the superintendent that you be suspended without pay for five (5) days for gross insubordination." Respondent received a second evaluation from Mr. Smith during the 1991-92 school year. Dated March 3, 1992, the second evaluation is slightly worse than the first. Section 1 contains the same C for the presentation of the subject matter and NI for using specific academic praise. A new NI appears in Section 1 for demonstrating friendly attitude toward all students, and a new MI appears for maintaining effective classroom control. The new MI rating appears to be based in part on Respondent's allowing several students to have food and drink in the classroom after telling one student to dispose of his food or drink. In Section 2, Respondent received five S's, as he did in the first evaluation, as planning went from MI to S and punctuality/attendance went from S to NI. Work attitude improved from MI to NI, but personal appearance and receptiveness went from NI to MI. A written comment states that dependability improved some, but not enough to remove the MI. The MI's on the March 3 evaluation are again the subject of attached Professional Development Plans. Under dependability, the desired improvement is: "Show you are able to be counted on without constant badgering." The action to be taken is: "Learn to deal with students without being sarcastic or getting into shouting matches. Student and parent complaints are numerous." Under parent/community relations, the desired improvement is: "Exhibit an air of professionalism in meetings with parents." The action to be taken is: "Schedule parent conferences as needed to resolve situations with students. Apologize for your actions if need be and start over. Show parents you care about their child." Under student/staff relations, the desired improvement is: "Work with students in correcting deficiencies." The action to be taken is: "Learn to deal with student problems. Be more friendly. Be consistent in your discipline but be fair." Under receptiveness, the desired improvement is: "Be able to listen to constructive criticism and follow suggestions made by administration." the action to be taken is: "Follow rules and regulations established for personnel and students at Sebring High School rather than defying directions given by an administrator." Each of the Professional Development Plans states that the administration will provide assistance or training if requested to do so by Respondent. The time line for achieving objectives/goal/improvement is now "immediate" for the cited areas. There is no longer any mention of the removal of MI's, except that the Professional Development Plan for student/staff relations requires: "Immediate improvement--MI must be removed prior to October 92 visitation." The consequence of Respondent's failure to remove the MI's remains returning him to annual contract. The March 3 evaluation is followed by a letter dated March 9, 1992, from Mr. Smith to the superintendent. Mr. Smith writes that Respondent has not improved since the December 2 evaluation and recommends that Respondent be placed on annual contract for the following school year. The Grievance Process On March 13, 1992, Respondent filed a grievance seeking a list of specific remedies for each MI in the March 3 evaluation, adherence to the NEAT procedure, a reconfirmation of the deadline stated in the December 2 evaluation of 1992-93 "for remediation," withdrawal of the recommendation that Respondent be returned to annual contract, and transfer of Respondent to another position where he could be evaluated by someone not part of the current Sebring High School administration. Mr. Smith responded to the grievance with two documents, both dated April 7, 1992. In a three-page memorandum, Mr. Smith recounted the December 2 evaluation, noting that Respondent's "statement to all of this (as he signed the assessment and the PDP's) was, 'You mean all I have to do is correct these and I will get satisfactories?'" The April 7 memorandum notes that the March 3 evaluation was worse than the December 2 evaluation. Despite the fact that, with one exception, the March 3 evaluation did not equate correction with the removal of MI's, the April 7 memorandum states: "[Respondent] still has until the 1992-93 assessment to remove the MI's from his assessment. However, if he does not, he will be notified of non-renewal of a contract for 1993-94." Attached to the April 7 memorandum are "Specific Remedies for Must Improve." These remedies track the areas receiving MI's in the evaluations and discussion in the Professional Development Plans. Under maintaining effective classroom control, the April 7 attachment informs Respondent that he is to ensure that his students follow the rules. Under dependability, the April 7 attachment gives 12 examples of assignments that Respondent must perform. These include timely providing grades for meetings of the School Attendance Review Committee, remaining current with printed attendance sheets, submitting in-school suspension assignments when requested, arriving and leaving on time, not leaving the classroom unattended, and not allowing the students to break the rules. Under parent/community relations, the April 7 attachment states that Respondent should meet with parents at his initiative rather than waiting until irate parents demand a conference after hearing their child's complaints. Also, the attachment advises Respondent to be "gentle" with parents and not be negative. The attachment suggests that Respondent return parents' telephone calls. Under student/staff relations, the April 7 attachment warns Respondent not to back students into a corner. The attachment notes that many reports indicate that Respondent uses sarcasm with students and then disciplines them when they reciprocate with sarcasm. The attachment recommends, "Work on your personality to be more accepting and understanding of students." Under quantity/quality of work, the April 7 attachment suggests that Respondent spend more time on grammar rather than literature alone. The attachment suggests that Respondent should become involved with students' activities so that they know that he cares about them, as well as about what they learn. Under receptiveness, the April 7 attachment notes a lack of desire by Respondent to change his attitude about the providing in-school suspension assignments. Under professional behavior/ethics, the April 7 attachment recommends that Respondent not retaliate against students. It is unclear exactly what Mr. Smith means by "retaliate"; it may mean confront the students in class or respond to the students' sarcasm with sarcasm. By letter dated May 13, 1992, Deputy Superintendent John Martin decided the grievance by determining that Petitioner would grant Respondent a subsequent year of employment, under a subsequent year or annual contract, to correct the indicated deficiencies, and, if Respondent "corrects the indicated deficiencies," he would be given a new professional service contract. The May 13 letter also states that Respondent would be transferred, as he had requested. Respondent chose not to pursue additional grievance procedures available to him, so the grievance was resolved at this point. On May 15, 1992, Petitioner informed Respondent that he had been appointed for a "subsequent year of employment . . . on annual contract pursuant to Florida Statute 231.26(3)(e)." On June 23, 1992, Petitioner and Respondent executed a contract for a "'subsequent year of employment,' as that term is used in 231.36(3)(e), Florida Statutes . . .," for the 1992-93 school year. The 1991-92 School Year During the 1991-92 school year at Sebring High School, Respondent experienced problems in his relationship with the students and parents and in his inability to fulfill certain important responsibilities imposed on each teacher. With students, Respondent was often sarcastic. When the students returned in like kind, Respondent took offense and disciplined them, often with a disciplinary referral to the office. Mr. Smith witnessed a half dozen confrontations between Respondent and students in the main office where Respondent made derogatory remarks to the students. With parents, Respondent often failed to behave professionally in parent/teacher conferences. He walked out on one conference involving a parent who was also a teacher at Sebring High School. He often responded negatively to parents and sometimes failed to follow through on conferences or even return parents' telephone calls. Respondent was often late in fulfilling his duties. He was frequently late in getting his grades or attendance sheets to the Student Attendance Review Committee, which consisted of a guidance counsellor, an administrator, student's teachers, and student's parents who met periodically to discuss a student's attendance problems. Respondent consistently failed to submit assignments for students who had been assigned to in-school suspension. Each of the deficiencies described in the preceding paragraph interfered materially with Respondent's performance as a teacher. With respect to each of these deficiencies, Respondent was materially worse than his fellow teachers at Sebring High School. The resulting evaluations were the worst ever given by Mr. Smith, who describes himself as a hard evaluator. Evaluations During the 1992-93 School Year As Respondent demanded in the grievance, Petitioner transferred Respondent to Lake Placid High School for the 1992- 93 school year. He was assigned to teach English to all of the ninth grade students except those in honors and dropout prevention. On November 3, 1992, Respondent received his first evaluation at Lake Placid High School. He received all S's except for C's in demonstrating effective communication skills, and student evaluations and NI's in maintaining academic focus and maintaining effective classroom control. The evaluation was prepared by David Robinson, who was an assistant principal. On February 25, 1993, Respondent received a second evaluation for the 1992-93 school year. This evaluation, which was prepared by the principal, Roger Goddard, was worse than the first. There were no C's, and there were NI's in demonstrating friendly attitude toward all students, maintaining academic focus, parent/community relations, student/staff relations, receptiveness, and professional behavior/ethics. Under the comments in Section 1 of the February 25 evaluation, a note reads: "Needs skills in [knowing] when to use in-class discipline or office referral." The handwritten comments under Section 2 note that Respondent "had difficulty dealing with parents in conferences an/or returning phone calls" and "lack[s] rapport with students, staff, and administration." The handwritten comments state that Respondent is "many times defensive during conferences with administrators" and "needs a better procedure with make-up work utilizing school policy." By letter dated March 19, 1993, Dr. Goddard informed Respondent that he would be unable to reappoint Respondent for employment at Lake Placid High School for the following school year. Respondent asked Dr. Goddard to perform another evaluation, and Dr. Goddard did so on April 23, 1993. There were fewer NI's than in the February 25 evaluation, but the evaluation was not much better. Under Section 1, Respondent received all S's except for an NI in demonstrating a friendly attitude toward all students. An anecdotal comment adds: "There have been over 70 referrals for discipline during the year. This is as many as 20 other teachers combined." Under Section 2, Respondent received all S's except for three NI's in parent/community relations, student/staff relations, and receptiveness. Accompanying handwritten notes state that Respondent "still shows difficulty in dealing with parent conferences," "still lacks understanding of role of assistant principal [and] staff," and "many times still defensive regarding suggestions from administration." By letter dated April 26, 1993, Dr. Goddard advised Respondent that he could not change his original recommendation given on March 19. The letter states that the recommendation is based on the need for a change in the ability to handle discipline effectively within the classroom, handle parent conferences without conflict, and be receptive to administrative suggestions without a defensive attitude. By letter dated April 30, 1993, to Dr. Goddard, Respondent states, in part: . . . Some administrators are possessed by a sort of spectral indifference, and look at their fellow beings as ghosts. For them, teachers and other staff members are often merely vague shadowy forms, hardly distinct from the nebulous background of such a life, and easily blended with the invisible. But you, Dr. Goddard, are an honorable man and I believe, from our conversations, that you really care about the parents, staff, and students of our school. . . . Respondent's letter to Dr. Goddard discusses the preceding evaluation and asks for an opportunity to continue teaching. By letter dated May 25, 1993, Superintendent Richard Farmer states that Dr. Goddard had informed Mr. Farmer that Respondent had not successfully removed all deficiencies from his evaluation. The letter advises Respondent that his annual contract was expiring, Dr. Goddard had decided not to issue Respondent another annual contract, and, according to Section 231.36(4), Florida Statutes, Petitioner would not issue him a new professional service contract. By notice to the Florida Department of Education dated June 2, 1993, Dr. Goddard advised that, after two consecutive unsatisfactory annual evaluations, Respondent's employment with Petitioner was being terminated or not renewed. The 1992-93 School Year Despite the absence of MI's on the 1992-93 evaluations, the problems Respondent had experienced with students, parents, and administrators in 1991-92 worsened in 1992-93. With respect to relations with students, the basic problem is that Respondent reverted to sarcasm at Lake Placid High School, and his students reciprocated, just as his students at Sebring High School had done the prior year. Sarcasm bred sarcasm, which bred disciplinary referrals--125 of them in fact. Respondent outdistanced his nearest competitor in disciplinary referrals by 2.5 times. On two separate days, Respondent submitted more than 10 disciplinary referrals--more than most teachers submitted all year. As Dr. Goddard's comment notes, Respondent issued more disciplinary referrals than a score of his colleagues. The huge number of disciplinary referrals did not mean that Respondent was maintaining firm control of his classes. To the contrary, he was not able to maintain firm control of his classes, partly due to the atmosphere of mutual disrespect that his sarcasm engendered. The number of disciplinary referrals indicated that Respondent had lost control of the situation and tried to shift to the administrators the job of regaining control of his classroom. A major part of the problem, in addition to Respondent's sarcasm, was his inability to adhere to his own assertive discipline plan. Respondent's assertive discipline plan, which was duly posted in his classroom, contains the following consequences in increasing order of severity: warning, contact parents, detention, and office referral. Sometime during the school year, Respondent switched the second and third consequences, so that he would place a student on detention before he would contact the parents. This change was duly posted in the classroom. Respondent's assertive discipline plan is satisfactory, but he never adhered to it. Sometimes he gave detentions, but then failed to appear at the location where the students were to serve the detentions. Sometimes Respondent simply placed the offending students in the hall where they remained, unsupervised, in violation of school rules. Sometimes Respondent gave warnings, and often he gave disciplinary referrals. But he displayed an aversion to parent/teacher conferences by almost invariably omitting the step that required him to contact a parent. Nearly all disciplinary referrals were made prior to this step taking place, and many were made prior to giving the student a detention. Respondent clung doggedly to his sarcasm despite all efforts to free him from this habitual behavior. Dr. Goddard intervened at one point during a parent/teacher conference and prevailed upon Respondent to stop using sarcasm against the student who was the subject of the conference. Respondent's response was to post a sign in his room indicating a "moratorium" in the use of sarcasm--intentionally implying that the cessation in sarcasm would be temporary. At times, Respondent lashed out at students with hurtful remarks lacking even the thin veneer of humor. He told one student that he would be a serial killer. He told another student that he would never be rich and successful. He repeatedly referred publicly to one student as a witch and asked if she had taken her Midol. In front of another student's mother, as well as other teachers and Mr. Robinson during a parent/teacher conference, Respondent referred to a girl as "bitchy." Respondent refused to accommodate valid student needs, such as the unusual demands placed on one child by a disabled brother. The regressive effect on students of Respondent's embittered and embittering classroom presence was unwittingly reflected in another student's class journal. His early entries demonstrated an emotional vulnerability as he depicted his simple, rural lifestyle; his later entries were defiantly copied out of textbooks, magazines, or encyclopedias. As a result of Respondent's poor relations with students, more than one student quit Respondent's class, even if it meant taking English in summer school or another school or dropping out of high school altogether. One parent checked her son out of school just long enough that he would not have to attend Respondent's class. By the end of the 1992-93 school year, morale among Respondent's students and their parents was a very serious problem. Respondent's relationship with parents was, if possible, even worse than his relationship with students, although his contact with parents was less frequent. During one meeting with a father in the main office, the parent and Respondent had a heated exchange. Mr. Robinson intervened and diplomatically tried to end the conference. After the parent had started to walk away, Respondent restarted the argument and approached the parent until their noses were touching. Mr. Robinson again broke up what had transformed from a conference into a confrontation, and again Respondent reinitiated the engagement. Again, Mr. Robinson had to break up the argument. Mr. Robinson attended another parent/teacher conference in which the mother, according to Respondent, looked at him with "eyes . . . like daggers." (Tr 541) The mother observed that her daughter had no problems in any other classes but Respondent's class. The parent charged that Respondent's class was out of control. Respondent saw that Mr. Robinson was not "going to fulfil his role as mediator," so Respondent got up, announced that "I'm not going to take this damn stuff anymore," and walked out of the conference. (Tr 542) At first glance, Respondent's relationship with the administrators seems better than his relationships with the students and parents, but this is due to the professionalism of Dr. Goddard, inexperience of Mr. Robertson, and uninvolvement of Ms. Hatfield. For different reasons, each administrator at the school responded differently to Respondent's increasingly bizarre behavior and in no case did any administrator at the school ever lose his or her composure in dealing with Respondent. Respondent believes that he has been unfairly treated by every administrator at Lake Placid High School, and at least two at Sebring High School. Interestingly, Ms. Hatfield had given Respondent his last evaluation-- in October, 1990--without an NI or MI. However, without any evident provocation, Respondent demanded that the other assistant principal, Mr. Robinson, handle Respondent's evaluations and disciplinary referrals. Respondent was apprehensive that Ms. Hatfield might be biased due to her past service at Sebring High School. In November, 1992, Ms. Hatfield had a conference with Respondent and cautioned him that she was receiving a number of student complaints about his use of sarcasm. Respondent's reaction was to request that he be evaluated by Mr. Robinson, who was in his first year of service as an assistant principal. In retrospect, Respondent's demand proved unwise. As evidenced by his treatment of another teacher, Mr. Robinson displayed a heightened sensitivity toward humor directed at students, even if the humor did not seem sarcastic at all. Thus, Mr. Robinson's concern about Respondent's sarcasm was not due to bias against Respondent, but was due to Mr. Robinson's concern that students be treated with dignity and respect. But, as noted above, even without Mr. Robinson's heightened concern about humor, Respondent's sarcasm exceeded the wildest imaginable limits. Dr. Goddard intervened after the first evaluation. Respondent's concern about bias defies reason and logic when applied to Dr. Goddard, who counselled Respondent and gave him an opportunity to discover for himself the shortcomings of his defensive style of dealing with students, parents, and administrators. To imply that Dr. Goddard's evaluations were orchestrated by individuals at Sebring High School or the district office is to ignore reality. As discussed in the Conclusions of Law, the very lack of coordination presents legal problems that could have easily been avoided with the smallest amount of coordination. Respondent had trouble with nearly every administrator. And Respondent consistently found himself the blameless target of unwarranted persecution. His paranoia interfered with his ability to do his job. This fact is best illustrated by the time that Dr. Goddard instructed the teachers to clean up their rooms in preparation for a visit that night by the school board. Respondent wrote the following on his chalkboard to be read by the school board members: "The fact that you're paranoid doesn't mean that they are not out to get you." In addition to problems with students, parents, and administrators, Respondent continued to display an inability to fulfill his important responsibilities. He failed to appear at ninth grade orientation at the beginning of the school year, despite the fact that he was a new teacher at the school and taught most of the ninth graders. Respondent routinely failed to supply grades to students for whom guidance counsellors were trying to prepare weekly progress reports in order to monitor the students' progress more closely than is possible with report cards. Respondent was routinely resistant to assigning make- up work. Students would have to pursue him for days to get assignments, until finally Respondent decided to write these up on the chalkboard. On more than one occasion, Respondent's solution--when pushed by parents or administrators--was to avoid the extra work imposed upon him by grading additional materials; rather than assign make-up work or tests, Respondent would simply not penalize the student for the missed assignment, such as by doubling the weight of the next grade. There is no evidence that the administration at Lake Placid High School learned of Respondent's 1991-92 evaluations at Sebring High School until Respondent mentioned them when he received his first evaluation at Lake Placid High School. There is no evidence that the actions taken by the administration at Lake Placid High School were influenced by anything except the Respondent's performance during the 1992-93 school year. Respondent was warned about his problems in evaluations going as far back as the 1980's when Respondent was evaluated by Mr. Bible. The March, 1986 evaluation identifies Respondent's reluctance to deal with parents. The February, 1989 evaluation suggests that Respondent lacked the support of parents and was placing students on the defensive. In the February, 1991 evaluation, Mr. Bible warned Respondent that he needed to improve in several areas, including student/staff relations and receptiveness to criticism from administrators. Again, Mr. Bible pointed out that Respondent was alienating students. Respondent's problems, which culminated in the exceptionally bad evaluations during the 1991-92 school year, largely represented a continuation of problems that had been identified in one manner or another for the preceding five years. But instead of correcting the problems, Respondent had allowed them to get worse. These problems were described in greater detail in the 1991-92 and 1992-93 evaluations due to the deterioration of Respondent's behavior. Petitioner provided Respondent with reasonable assistance in remediating his performance deficiencies. Dr. Goddard made numerous additional visits to Respondent's classroom, and he and other administrators routinely talked to Respondent. After the first evaluation in November, 1992, Mr. Robinson twice recommended to Respondent that he rely on his assertive discipline plan because he was referring too many students to the office. After discovering how poorly Respondent handled parent conferences, administrators ensured that appropriate persons participated in Respondent's conferences to model suitable behavior. In early February, 1993, Mr. Robinson gave Respondent a set of assertive discipline tapes to view to assist in imposing proper discipline in his class. This intervention preceded the February 25 evaluation by almost three weeks. About one week prior to the February 25 evaluation, Mr. Robinson suggested that Respondent attend a workshop on parent/teacher conferences. Respondent attended the workshop. Evidently arranged prior to the February 25 evaluation, Respondent went to a high school in another district to observe a ninth-grade English teacher. The practical effect of this assistance is attenuated by the fact that the February 25 evaluation preceded the visit, although the visit preceded the March 19 non-appointment letter, April 23 follow-up evaluation, and April 26 follow-up letter. The extent of the assistance effectively offered Respondent must be evaluated in the context of Respondent's problems. He was not an ineffective teacher due to an inadequate grasp of the course material or inability to present material imaginatively. To the contrary, Respondent is a highly intelligent, literate individual who is intellectual capable of being an outstanding teacher. If his problems were in his understanding of the material or an inability to find the methods to convey the material to his students, a program of assistance and inservice workshops probably could be designed to provide meaningful help. Instead, Respondent needed to stop disparaging students. He needed to stop confronting parents. He needed to stop ignoring administrators who were trying to stop Respondent from disparaging students and confronting parents. But Respondent simply refused to change his ways, and no amount of videotapes, inservice workshops, school visits, evaluation follow-ups, and informal discussions were going to help. Respondent was given a second chance when he was transferred to Lake Placid High School. But instead of addressing the source of the problem-- himself--he attacked students, parents, and administrators. He avoided performing rigorously all of his teaching duties, such as enforcing his assertive disciplinary plan and its graduated response to misbehavior, promptly providing make-up work, and sending interim grades when needed. Instead, he inexplicably continued to bicker with the students, provoke the parents, and defy the legitimate demands of the administrators.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the School Board of Highlands County enter a final order not issuing Respondent a new professional service contract. ENTERED on January 13, 1993, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings on January 13, 1993. APPENDIX Rulings on Petitioner's Proposed Findings 1-6: adopted or adopted in substance. 7-8: rejected as irrelevant. 9-18: adopted or adopted in substance. 19: rejected as irrelevant. 20-35: adopted or adopted in substance. 36: rejected as irrelevant. 37-39: adopted or adopted in substance. 40: rejected as irrelevant. Nothing requires that Petitioner make "every effort" to help Respondent through the means cited. 41: adopted or adopted in substance. 42: rejected as subordinate. 43-44: adopted or adopted in substance. 45: rejected as irrelevant. 46: adopted or adopted in substance. 47-48 (first three sentences): rejected as irrelevant. 48 (last sentence)-53: adopted or adopted in substance. 54-56: rejected as irrelevant. 57-59: adopted or adopted in substance. 60-61: rejected as irrelevant. 62: adopted or adopted in substance. 63: rejected as irrelevant. 64-65: adopted or adopted in substance. 66: rejected as subordinate. 67-69: adopted or adopted in substance. 70: rejected as subordinate. 71-74: adopted or adopted in substance. 75-76: rejected as subordinate. 77-78: adopted or adopted in substance. 79: rejected as hearsay. 80-85: adopted or adopted in substance. 86: rejected as irrelevant. 87-92: adopted or adopted in substance. 93: rejected as subordinate. 94: rejected as irrelevant. 95-100: adopted or adopted in substance. 101: rejected as irrelevant. In fact, to permit either student to leave the classroom would violate Paragraph 11 of the Classroom Management section of the Teacher Handbook. 102: rejected as irrelevant. Mr. Smith wore sunglasses indoors during part of the hearing. 103-04: rejected as irrelevant. 105: rejected as subordinate. 106-17 (first sentence): adopted or adopted in substance. 117 (second sentence): rejected as unsupported by the appropriate weight of the evidence. 118: rejected as irrelevant and subordinate. 119: rejected as hearsay. 120-34: adopted or adopted in substance. 135-37: rejected as irrelevant. 138: adopted or adopted in substance. 139: rejected as irrelevant. 140: adopted or adopted in substance. 141: rejected as irrelevant. 142-43: adopted or adopted in substance. 144: rejected as subordinate. 145-46: adopted or adopted in substance. Rulings on Respondent's Proposed Findings 1-7: adopted or adopted in substance. 8-10: rejected as irrelevant. 11-14: adopted or adopted in substance. 15-17 (first sentence): rejected as unsupported by the appropriate weight of the evidence. 17 (second sentence): adopted or adopted in substance. 18-19: rejected as unsupported by the appropriate weight of the evidence. 20: adopted or adopted in substance. 21-22: rejected as subordinate. 23-24: rejected as unsupported by the appropriate weight of the evidence. 25-26: rejected as subordinate. 27-28 (first sentence): adopted or adopted in substance. 28 (second sentence)-29: rejected as unsupported by the appropriate weight of the evidence. 30: adopted or adopted in substance. 31: rejected as unsupported by the appropriate weight of the evidence. 32: rejected as subordinate. 33: rejected as unsupported by the appropriate weight of the evidence. 34: rejected as unsupported by the appropriate weight of the evidence. This provision governs only when Petitioner must refer matters to the Department of Education. 35: rejected as subordinate. 36: rejected as unsupported by the appropriate weight of the evidence. 37-39: adopted or adopted in substance except as to meaningful follow-up conferences. 40-41: rejected as unsupported by the appropriate weight of the evidence. 42: rejected as irrelevant. COPIES FURNISHED: Superintendent Richard Farmer Highlands County School District 426 School St. Sebring, FL 33870-4048 Commissioner Doug Jamerson Department of Education The Capitol Tallahassee, FL 32399-0400 James F. McCollum James F. McCollum, P.A. 129 S. Commerce Ave. Sebring, FL 33870-3698 Anthony D. Demma Meyer and Brooks, P.A. P.O. Box 1547 Tallahassee, FL 32302
The Issue Whether the Respondent, Anna Mann, should be dismissed from her employment with the Palm Beach County School Board.
Findings Of Fact Petitioner is a school board charged with the duty to operate, control, and supervise the public schools within the Palm Beach County School District. Such authority includes, but is not limited to, the employment and discipline of the instructional staff for all Palm Beach County public schools. At all times material to the allegations of this case, Respondent was employed by Petitioner as a classroom teacher teaching Family and Consumer Sciences (formerly known as Home Economics). Respondent's teaching duties were at Glades Central Community High School (GCCHS). Respondent received a continuing contract (CC) for employment during the 1974-75 school year. There is no evidence that Respondent elected to accept a professional services contract (PSC) during her tenure with the District. Respondent did not voluntarily relinquish her continuing contract. Consequently, it is presumed Respondent continued employment as a CC teacher until the end of the 1997-98 school year. At the conclusion of the 1997-98 school year, the superintendent of schools, acting on the recommendation of the principal, notified Respondent that she would not be recommended for employment and would not be offered a teaching contract for the subsequent school year. This notice was issued on or before April 1, 1998. Such notice further advised Respondent that her employment with the District would end on June 11, 1998. Upon receipt of the notice that she would not be re- appointed for employment, Respondent timely challenged the termination, and the matter was forwarded to the Division of Administrative Hearings for formal proceedings. Thereafter, in accordance with the notice previously provided to Respondent, the District did not offer Respondent a contract to teach for the 1998-99 school year. The District utilizes an evaluation instrument known as the Classroom Teacher Assessment System (CTAS) Evaluation. Persons using this CTAS tool must be trained and approved prior to implementing any use of the instrument for teacher assessment. All individuals in this proceeding who assessed Respondent's classroom performance were fully trained and authorized to evaluate Respondent. Those using the CTAS instrument had been trained and approved in its use. Those using other methods of evaluation were also fully trained and approved for evaluation of instructional personnel. While Respondent did not agree with the findings of the assessments, Respondent has not raised any credible challenge to the qualifications of any assessor. The CTAS instrument rates the teacher as "acceptable" for which 2 points are assigned or as "concern" for which 1 point is given. There are sixteen specific assessment areas covered by the CTAS instrument. Thus, there is a possible 32-point score for any teacher receiving "acceptable" in all areas of review. Teachers with less than 28 points are formally directed to correct the cited deficiencies. In May of 1996, Respondent was given an annual evaluation by the Assistant Principal, Mr. Campbell. This assessment noted four areas of concern and yielded a total score of 28 points. The topics of the assessment wherein Respondent showed concern (as opposed to acceptable performance) were: management of student conduct, instructional organization and development, presentation of subject matter, and establishes an appropriate classroom climate. Because Respondent had received a marginal rating in the prior annual assessment, Dr. Grear directed another Assistant Principal, Dr. Fuller, to conduct a mid-year evaluation for Respondent during the fall of 1996. This mid-year evaluation was conducted on December 6, 1996. On this occasion Dr. Fuller observed Respondent in all three of her classes. The evaluation comments were memorialized on a Florida Performance Measurement System Screening/Summative Observation Instrument (FPMS) form as well as in anecdotal notes of the review. Although Respondent did not have many students in the classes observed (her largest observed class held 22 students), frequently students were off-task and not engaged in the learning process. According to Dr. Fuller, Respondent allowed students to put their heads on the desks, get out of their seats and walk around, and ignore her directions to them. In one instance when Respondent directed students to gather at a table for a demonstration, six of the thirteen attending students paid no attention. The CTAS evaluation for the December 6, 1996, mid-year review yielded a total score of 26 points. This instrument documented concerns in six assessment areas: management of student conduct, instructional organization and development, presentation of subject matter, establishes an appropriate classroom climate, demonstrates ability to plan effectively, and demonstrates effective written communication skills. Respondent reviewed the CTAS form and executed the receipt of it on December 9, 1996. Based upon the concerns noted in the mid-year evaluation, Respondent was given a school site assistance plan. It was hoped this plan would allow Respondent to improve in the deficient areas. This plan outlined strategies and directed Respondent to perform certain tasks by the progress dates indicated in the plan. Respondent was advised that during the time frame identified in the school site assistance plan she would be observed to determine if deficiencies had been corrected. Over the course of the rest of that school year, Respondent continued to receive school site assistance. Unfortunately, although she was able to improve in two areas of concern, she was not able to remedy all deficiencies. At the conclusion of the 1996-97 school year Respondent still had six areas of concern (albeit two new areas of concern added to four uncorrected deficiencies). Assistant Principal Jean Beehler performed Respondent's annual evaluation at the end of the 1996-97 school year. This evaluation, conducted on March 12, 1997, awarded Respondent a total score of 26 points. The areas of concern noted on this CTAS form were: management of student conduct, instructional organization and development, presentation of subject matter, establishes an appropriate classroom climate, demonstrates knowledge of subject matter, and demonstrates ability to evaluate instructional needs. To her credit, Respondent had improved in planning and written communication skills. Moreover, she demonstrated compliance with the curriculum framework for her courses. Nevertheless, because there were still six areas of concern at the end of the school year, Respondent was given a district level professional development plan to assist her in the correction of the deficiencies. This district level plan (See Petitioner's exhibits 5, 6, and 8) replaced the school site plan. The strategies and directives of this plan offered Respondent a wider level of resources for improvement. A portion of this plan outlined summer remediation activities for Respondent. As to all portions of the plan, Respondent was given set time frames within which to accomplish various tasks. At all times material to the evaluations and plans adopted for Respondent during the 1996-97 school year Respondent had the assistance of Clarence Gunn, a representative from the Classroom Teachers' Association. Mr. Gunn was aware of the evaluations and recommendations for correction made to Respondent and participated in meetings conducted with the teacher when the annual evaluation was reviewed and when the subsequent corrective plan was implemented. It is undisputed that Respondent was given the entire 1997-98 school year to utilize numerous school resources in order to remedy the deficiencies outlined by the CTAS evaluations from the prior year. Respondent was offered assistance at the school site from administrators and peer teachers, as well as from district support staff. Respondent was permitted to attend various conferences and seminars. Despite the numerous and continuous efforts of school personnel to assist in the correction of the deficiencies, Respondent remained resolved, and improvidently observed to students that the school administration was out to get her job. Although Respondent attended workshops and made some efforts to improve, neither gravamen of the deficiencies nor the remedies necessary to correct them registered with Respondent until the time of hearing. In short, the Respondent did not correct the deficiencies. Students in Respondent's class continued to exhibit unacceptable, out of control, behaviors. They ignored her directions, tampered with her resource materials, and would walk out of the classroom. The mid-year evaluation conducted on December 9, 1997, by the principal, Dr. Grear, mirrored the past CTAS forms in that Respondent still showed the same six areas of concern. The district level professional development plan was updated in January 1998 to again offer Respondent assistance, guidance and timelines for correction of the deficiencies. Among the aids offered to Respondent were full-day workshops (for which substitutes were provided for Respondent's classes), after school seminars, reading materials and videos. Regional personnel, an outside expert, and peer-level teachers were also offered to Respondent. None of these individuals or references resulted in the correction of the deficiencies. In March 1998, Respondent was given her annual evaluation which noted the same six areas of concern. As a result, on or about April 1, 1998, Respondent was notified that the superintendent would recommend that the School Board not renew Respondent's teaching contract for the 1998-99 school year. Perhaps most telling of Respondent's failure to maintain classroom management and to establish an appropriate classroom climate was the testimony of Respondent's witness, Mary Willingham. Ms. Willingham was a student in two of Respondent's classes during the 1997-98 school year. She recited different activities done in the classes but when asked: Did you experience the same kind of disruptive behavior in your classmates, like, throwing books and throwing Crayolas in your other three classes like you did in Mrs. Mann's class? Answer: No, nothing like it was in her class. Even Ms. Rasmussen, the AVDA guest speaker in Respondent's classroom, had to shorten a presentation due to the disruptive conduct of the students while Respondent was present in the classroom. The collective bargaining agreement between the School Board and the classroom teachers (the contract) contains several paragraphs Respondent argues are pertinent to this case. Article II, Section G, paragraph 3 of the contract provides: 3. The evaluation shall be discussed with the employee by the evaluator. After the conference, the employee shall sign the completed evaluation form to acknowledge that it has been received. The employee shall have the right to initiate a written response to the evaluation which shall be made a part of the employee's official personnel file. If a PSC/CC employee's performance warrants a mid-year evaluation then such mid- year evaluation shall be completed by December 10 and shall follow all aspects of this Section. If any deficiency is noted on the mid-year evaluation, the Principal shall provide the employee with written and specific recommendations for improvement within twenty (20) days of the employee receiving the mid-year evaluation. The Principal/District will provide assistance to the affected employee in all noted areas of concern and adequate time to improve. Except as provided in this Section, employees shall be formally evaluated once yearly prior to May 31. As to both mid-year evaluations conducted in this matter the Petitioner complied with the provisions set forth in Article II, Section G, paragraph 3. Article II, Section M, of the contract provides, in pertinent part: With the consent of the employee and the Association, disciplinary action may not be taken against an employee except for just cause, and this must be substantiated by clear and convincing evidence which supports the recommended disciplinary action. All disciplinary action shall be governed by applicable statutes and provisions of this Agreement. Further, an employee shall be provided with a written notice of wrong- doing, setting forth the specific charges against that employee prior to taking any action. * * * Where just cause warrants such disciplinary action(s) and in keeping with provisions of this Section, an employee may be reprimanded verbally, reprimanded in writing, suspended with pay, suspended without pay or dismissed upon the recommendation of the immediate supervisor to the Superintendent. Other disciplinary action(s) may be taken with the mutual agreement of the parties. Except in cases which clearly constitute a real and immediate danger to the District or the actions/inactions of the employee constitute such clearly flagrant and purposeful violations of reasonable school rules and regulations, progressive discipline shall be administered as follows: * * * (d) Dismissal. An employee may be dismissed (employment contract terminated or non- renewed) when appropriate in keeping with provisions of this Section, including just cause and applicable laws. An employee against whom disciplinary action(s) has been taken may appeal through the grievance procedure. If the disciplinary action(s) taken includes either a suspension or a dismissal, the grievance shall be initiated at STEP TWO. Pertinent to this case, Petitioner fully advised Respondent of the allegations which resulted in the non-renewal of her CC contract. Moreover, Petitioner fully advised Respondent of the remedies necessary to correct all deficiencies. Finally, Petitioner extended to Respondent a protracted period of time within which to correct such deficiencies. In reaching such conclusions, it is observed that Respondent was provided adequate notice of all deficiencies asserted by the Petitioner, was kept apprised of her progress (or lack thereof) in the efforts to remedy the deficiencies, was given a sufficient number of evaluations by different evaluators to properly and accurately document the areas of concern, and was afforded two school years to correct the deficiencies noted in her evaluations. To her credit, Respondent has, over the course of her employment, provided valuable contributions to the GCCHS community. She has maintained close contact in the community and supported many extracurricular activities. Indeed, it is not subject to dispute that she has been helpful to the school and its community. Such positive contributions do not, however, ameliorate her classroom deficiencies.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that School Board of Palm Beach County, Florida enter a final order affirming the decision to not renew Respondent's teaching contract for the 1998-99 school year. DONE AND ENTERED this 10th day of March, 1999, in Tallahassee, Leon County, Florida. J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of March, 1999. COPIES FURNISHED: M. Annette Himmelbaum, Esquire 6770 Indian Creek Drive Suite 9E Miami Beach, Florida 33141 Anthony D. Demma, Esquire Meyer and Brooks, P.A. Post Office Box 1547 Tallahassee, Florida 32301 Thomas E. Elfers, Esquire Palm Beach County School District 3318 Forest Hill Boulevard, Suite C-302 West Palm Beach, Florida 33406 Dr. Joan Kowel, Superintendent Palm Beach County School District 3318 Forest Hill Boulevard, Suite C-316 West Palm Beach, Florida 33406
The Issue Whether Respondent is guilty of "misconduct in office" as defined in Florida Administrative Code Rule 6B-4.009(3). Whether Respondent is guilty of "gross insubordination" as defined in Florida Administrative Code Rule 6B-4.009(4). Whether Respondent's actions constitute "just cause" and further constitute "good and sufficient reason" to terminate Respondent's contract of employment with the Hernando County School Board for the 2004-2005 academic year.
Findings Of Fact Petitioner is the duly appointed Superintendent of Schools in and for Hernando County, Florida. The School Board of Hernando County, Florida, is a duly-constituted school board charged with the responsibility to operate, control, and supervise all free public schools within the School District of Hernando County, Florida, pursuant to Section 1001.31, Florida Statute. Petitioner is responsible for the operation and supervision of all the public schools in Hernando County, Florida, and is further responsible for making recommendations to the School Board for the hiring and discipline of school principals. As of November 2004, Respondent was employed by the School Board of Hernando County as principal of Powell Middle School, pursuant to an annual contract for the period of July 1, 2004, to June 30, 2005. Pursuant to the annual contract and the educator's certifications issued by the Department of Education (DOE) to Respondent, he was, at all times material, subject to the rules and regulations of the Hernando County School Board and to Florida law, including Sections 1012.23 and 1012.33, Florida Statutes and Florida Administrative Code Rules 6B-1.001, 6B- 1.006, and 6B-4.009. Respondent's duties as a school principal were defined by Sections 1001.32, 1001.54, 1012.28, Florida Statutes and by the Hernando County School Board-approved job description for principals. Prior to his employment with the Hernando County School Board, Respondent was employed by the Broward County School Board from 1993 until 2002. His personnel file in evidence shows that by a letter dated June 11, 2001, Respondent was appointed "interim assistant principal" of Deerfield Beach Middle School commencing in August 2001. On or about October 17, 2001, the Broward County Superintendent of Schools presented formal charges for a finding of probable cause to the Broward County School Board against Respondent, alleging that Respondent had committed misconduct in his office as an assistant principal of Deerfield Beach Middle School on August 25, 2001, when Respondent pawned a school lap top computer. Petitioner was given an opportunity to appear and make a presentation. On November 16, 2001, the Broward County School District referred the same charges to the DOE, Bureau of Professional Practices (BPP). A school district is required by law to make such referrals to DOE but is free to proceed on its own against an educator under its own annual contract with him. It is up to DOE's BPP to determine if DOE will file DOE's independent administrative complaint for purposes of disciplining the same individual's state educator's certificate, which certificate (license) is issued by DOE. On November 16, 2001, DOE sent a letter by certified mail to Respondent at the address he had provided to DOE's BPP as his permanent address. That letter provided, in pertinent part: This is to advise you that a complaint has been filed against you with the Office of Professional Practices Services of the Department of Education, which alleges that you misused school property. This matter has been assigned to Henry Mixon, Consultant for the purpose of conducting an investigation. If founded, such allegations could lead to disciplinary action taken against your Florida Educator's Certificate. (emphasis supplied) Despite the clear wording of the foregoing letter, Morgan Thompson, a current DOE-BPP investigator for such complaints, testified that DOE-BPP considers that "action is pending" against an individual educator's certificate as soon as the certificate holder is notified that a complaint has been filed with DOE-BPP and an investigation is occurring, regardless of whether there ultimately is a finding of "probable cause" or "no probable cause," to file a formal administrative complaint by that Agency. DOE-BPP did not immediately file a formal administrative complaint against Respondent's educator's certificate concerning the pawned laptop computer. The "permanent address" Respondent had provided to both DOE-BPP and to the Broward County School Board was "1860 NW 132nd Avenue, Ft. Lauderdale, FL 33311." As set forth hereafter in greater detail, Respondent received all correspondence from the Broward County School Board and its Superintendent regarding their actions preliminary to Broward County's administrative complaint at 1860 NW 132nd Avenue, Ft. Lauderdale, FL 33311. (See Finding of Fact 26.) Between 2001 and October 2002, Respondent utilized the following address for all purposes regarding his employment with the Broward County School Board: 1860 NW 132nd Avenue, Ft. Lauderdale, FL 33311. Between 2001 and January 2003, Respondent utilized the following address for all purposes regarding DOE: 1860 NW 132nd Avenue, Ft. Lauderdale, FL 33311. Between 2001 and November 17, 2004, Respondent utilized the following address for purposes of correspondence with DOE-BPP: 1860 NW 132nd Avenue, Ft. Lauderdale, FL 33311. Between August 2001 and November 17, 2004, Respondent utilized the same address for purposes of correspondence regarding the Equal Employment Opportunity Commission (EEOC), DOE-BPP, and the Broward County School Board. Respondent did not reside at 1860 NW 132nd Avenue, Ft. Lauderdale, FL 33311, at any time between 2001 and November 8, 2005. As of the November 1-8, 2005, dates of hearing herein, Respondent still utilized the 1860 NW 132nd Avenue, Ft. Lauderdale, FL 33311, as a valid, permanent address. DOE-BPP's November 16, 2001, letter (see Finding of Fact 10), was received and signed for by one of Respondent's family members. Respondent has consistently maintained that his brother, Rueben C. Ransaw III, signed for this correspondence; that his brother is incompetent; and that his brother did not forward this particular item to Respondent. The evidence presented at hearing indicates that the brother has been incarcerated and involuntarily committed at various times, but not that he was determined legally incompetent in the time frame crucial to this issue. The School Board of Broward County proceeded formally against Respondent under its annual contract by an administrative complaint, dated January 30, 2002, alleging that he had misused institutional privileges for personal gain or advantage, in violation of Florida Administrative Code Rule 6B- 1.006(4)(c); committed immorality, in violation of Section 231.36(1)(a), Florida Statutes, and Florida Administrative Code Rule 6B-4.009; and committed misconduct in office through violation of various provisions of the Code of Ethics of the Educational Profession, in violation of Section 231.36(1)(a), Florida Statutes, and Florida Administrative Code Rule 6B- 4.009(3). The School Board of Broward County sought to discipline Respondent with a penalty of 10 days' suspension without pay and transfer to an instructional guidance position, in the sole discretion of the Superintendent of Schools in and for Broward County, for a period of three years, after which, if Respondent completed three years of satisfactory evaluations, he would be eligible to return to an administrative position. On February 19, 2002, the Broward County School Board approved the penalty requested by its Superintendent in the administrative complaint. On March 5, 2002, Broward County received Respondent's request for a disputed-fact hearing before the Division of Administrative Hearings on the Broward County administrative complaint. Effective March 6, 2002, pending resolution of the Broward County School District's administrative complaint, Broward County's Superintendent involuntarily transferred Respondent to the position of guidance counselor at Lyons Creek Middle School. In the Broward County School District, the position of guidance counselor has fewer duties and less authority than the position of assistant principal, which position Respondent had previously held at Deerfield Beach Middle School. The paperwork suggests that the position of guidance counselor in Broward County is not even an administrative position, but an instructional one. (See Finding of Fact 22.) Thus, it is clear that Respondent's March 6, 2002, involuntary transfer included a demotion, even though his Broward County disciplinary case was still pending. On April 17, 2002, a disputed-fact hearing on Broward County School District's administrative complaint was heard by a Division of Administrative Hearings Administrative Law Judge. Respondent and a lawyer representing him participated in that evidentiary proceeding, so it is certain that Respondent knew about the Broward County School Board's actions since October 17, 2001, and knew about the prosecution of its administrative complaint against him. On May 17, 2002, before learning the result of his April 2002 disputed-fact hearing on the Broward County disciplinary case (see Finding of Fact 39), Respondent submitted a Letter of Interest and Formal Resume to the Hernando County School Board, seeking employment in the position of assistant principal at Hernando County's Nature Coast Technical High School. Within his resume, Respondent reflected, under "Professional History" that he was then currently employed as an assistant principal at Deerfield Beach Middle School in Broward County, Florida. His resume specifically stated, under "Professional History" that he held that position, "March '01 to Pres." This statement was patently false. In making the foregoing finding of fact as to falsity, the undersigned has carefully considered all the evidence with regard to the issue, including but not limited to when, and under what conditions, Respondent took a voluntary leave of absence without pay from Lyons Creek Middle School on October 3, 2002 (see Finding of Fact 49), and the information that Broward County official records were not finalized until the end of the 2002-2003 school year, to reflect backwards and classify Respondent as an "involuntary transfer" and "terminated" as opposed to using the more accurate words, "demoted" and "not re-appointed." (See Finding of Fact 66.) Respondent's testimony that in applying to Hernando County he mistakenly relied on a "form resume" which was "outdated" is not persuasive that he was being honest in that resume. His testimony that he merely made an "error" as to his "work site" (showing Deerfield Beach Middle School instead of Lyons Creek Middle School) likewise is not persuasive. It is particularly noted that all of Respondent's other entries on this resume under "Professional History" are actual job titles within the Broward County School District.1/ On May 28, 2002, Respondent completed and submitted a Formal Application for Employment to the Hernando County School Board. Within his May 28, 2002, Formal Application to the Hernando County School Board, Respondent reflected that from March 2001 through March 2002, he was an assistant principal at Deerfield Beach Middle School and his then-current employment (position unspecified) was located at Lyons Creek Middle School. On his May 28, 2002, application, instead of specifying a position that he held at Lyons Creek Middle School, Respondent requested that the potential employer, Hernando County School Board, not contact Lyons Creek Middle School's principal at that time. This Formal Application also reflected that Respondent was transferred from Deerfield Beach Middle School to Lyons Creek Middle School. Respondent knew of his transfer and of his Broward County demotion to the position of guidance counselor on March 6, 2002, which was prior to his May 28, 2002, application to the Hernando County School Board. The statement made by Respondent on his May 28, 2002, application for employment to the Hernando County School Board that he was "transferred" to Lyons Creek Middle School was true, but it did not volunteer that he also was demoted to guidance counselor. Within this application to the Hernando County School Board, Respondent also certified "to the best of [his] knowledge and belief" that he had never been "not re-appointed." Because the Recommended Order in his Broward County contract disciplinary case was not entered until July 2002 (see Finding of Fact 39), and because Broward County re-appointments did not come out until August 2002, Respondent may have, at this point, legitimately believed that he had not ever been "not re- appointed." However, during Respondent's interview for the position of assistant principal at Nature Coast Technical High School, in Hernando County, Respondent held himself out as a then-current assistant principal in Broward County, Florida. The overall effect of Respondent's May 17, 2002, and May 28, 2002, materials and subsequent interview was to mislead Hernando County officials. Respondent was not recommended for appointment to the position he sought as assistant principal at Nature Coast Technical High School in Hernando County. The Administrative Law Judge entered his Recommended Order in Respondent's Broward County contract disciplinary case on July 2, 2002. Therein, he found, as fact, that Respondent had pawned a school-owned laptop computer; signed a document that represented that he owned the computer; received $350.00 for the computer in pawn; had gone to the pawn shop to redeem the computer not knowing that the Broward County School authorities or law enforcement had discovered the wrongful pawning; and that Respondent had not attempted or intended to deprive the School District of its laptop computer permanently. Citing mitigating circumstances, that Recommended Order concluded, as a matter of law, that Respondent was guilty only of misconduct in office and recommended that the School Board of Broward County enter a final order also only concluding that Respondent was guilty of misconduct in office and only imposing a 10 days' suspension without pay, but no demotion. At that point, the Broward County School Board could have accepted rejected, or modified, via its final order, the Administrative Law Judge's recommendation, but no final order has ever been entered by the Broward County School Board. Respondent remained in the demoted position of guidance counselor at Lyons Creek Middle School until October 3, 2002, when he took a leave of absence for family illness. (See Finding of Fact 49.) ` 42. Paperwork produced by Broward County in 2002 omits Respondent's name from the list of those re-appointed or re- assigned to Deerfield Beach Middle School. Respondent was not re-appointed to the position of assistant principal at Deerfield Beach Middle School in August 2002, for the beginning of the 2002-2003 school year. In August 2002, Respondent knew that he had not been reappointed to that position. In August 2002, Respondent also knew that he was beginning the 2002-2003 school year as a guidance counselor at Lyons Creek Middle School. On September 4, 2002, Respondent submitted a Letter of Interest and Formal Resume to the Hernando County School Board, seeking the position of assistant principal at Pine Grove Elementary School. Within this resume, Respondent reflected under "Professional History" that from "March '02 to Present" his employment with the Broward County School District was that of "Guidance/Administrative Support" at Lyons Creek Middle School, and that he was "Interim Assistant Principal" of Deerfield Beach Middle School from "March '01 to Feb. '02." On September 4, 2002, the Broward County School District did not, and it does not now, have a position titled "Guidance/Administrative Support," and on September 4, 2002, Respondent knew he was not employed in such a position. (See Finding of Fact 44.) Moreover, his dates for "Interim Assistant Principal" of Deerfield Beach Middle School" remained problematic for the reasons set out in Findings of Fact 27-28. Respondent's testimony that his first application (see Findings of Fact 27-32) could have remained on file in Hernando County for a year; that no one requested that he amend it; and that he amended his first application voluntarily on September 4, 2002, is accepted. However, the statements in his "voluntarily amended" resume continued to be intentionally false and misleading to the extent that he was "padding" his purely instructional guidance counselor position with administrative experience. In making the foregoing finding of fact as to false and misleading statements in the September 4, 2002 resume, Respondent's explanation that Broward County had appointed and paid him as an assistant principal in February 2001 to begin taking three years of "Interim Assistant Principal" classes, on how to be an assistant principal and to create a portfolio at the end of the three years has been considered. However, Respondent's explanation that he thought he had amended his resume to show his current employment work site (Lyons Creek Middle School) and to show his professional history, prior responsibilities, and prior functions, and not to provide his job titles, is not credible because all his other entries under "Professional History" are job titles and because classes to transition into an assistant principalship are not the same as being an assistant principal. At all times during the interview process for the position of assistant principal of Pine Grove Elementary School, Respondent represented to Hernando County that he was either an assistant principal or an interim assistant principal (filling- in for a permanent assistant principal) in Broward County, Florida. On or about September 23, 2002, Respondent sought a leave of absence from his position as guidance counselor at Lyons Creek Middle School in Broward County, effective October 3, 2002, for the whole remainder of the 2002-2003 school year, to care for his mother, whom he alleged was ill. Broward County granted this leave, effective October 3, 2002. Respondent also sought, and received, permission to be employed outside the Broward County School District. On October 7, 2002, unaware of the factual misrepresentations made by Respondent within his resume of May 17, 2002, his application of May 28, 2002, and his resume of September 4, 2002, the Hernando County School Board hired Respondent for the position of assistant principal at Pine Grove Elementary School. On October 10, 2002, Respondent completed and submitted the required Hernando County School Board Security Background Check document. On this document, he was asked, "Have you ever had a teaching certificate revoked, suspended, or denied? If yes, in what state and when?" Respondent answered "No." Also on this document, Respondent was asked "Have you ever had sanctions placed on your teaching certificate for any reason?" He answered "No." Also on this Security Background Check document, Respondent was asked the question, "Is disciplinary action currently pending anywhere against your teaching certificate?" He answered "No." Respondent then signed beneath the form's statement that: "By signing this document, I certify that I have carefully read and fully understand each question and all information contained herein is true and accurate and includes no falsifications, omissions, or misrepresentations of the information requested." While employed in Hernando County between 2002-2005 Respondent used several local addresses, all of which were his legitimate residences. On or about October 25, 2002, Respondent was engaged with the EEOC in challenging his Broward County "demotion" on grounds of racial discrimination, using his Ft. Lauderdale address. (See Finding of Fact 18.) Respondent's EEOC charge (complaint) reflects that Respondent represented to the EEOC that the Broward County School Board had "given no valid reason for its actions" in demoting him. Respondent testified that he intended to use the EEOC complaint to force the Broward County School Board into entering its final order so as to adopt the Administrative Law Judge's July 2, 2002, Recommended Order in Broward County's disciplinary action against him, and that he later dropped the EEOC action. Respondent is not charged here with any falsehoods to the EEOC. Indeed, Respondent's choice of words on his EEOC complaint that no "valid" reason had been given him by the Broward County School Board is, at worst, ambiguous. However, his EEOC complaint and testimony otherwise clearly demonstrate that Respondent knew on October 25, 2002, that he had already been demoted in Broward County and that no final order had been entered by the Broward County School Board altering that demotion. On January 21, 2003, Respondent submitted his application for certification in an additional subject matter area to the Hernando County School Board for forwarding to DOE. Within this application, under the heading "29. REVOCATION," Respondent was asked the question, Have you ever had a teaching certificate revoked, suspended, or denied by any state, or is there any action pending against your certificate or application?" (A determination of academic ineligibility is not considered a denial of a certificate.) If YES, "you must give the state, reason, and year in which your certificate was revoked, suspended, denied or in which action is pending against your certificate or application. (boldface in original; underlining supplied for emphasis) Respondent answered, "No," to the foregoing question. Petitioner signed this application for certification stating, "I further certify that all information pertaining to this application is true, correct, and complete." The address Respondent used on this application was located in Hernando County. He received his additional certificate from DOE's Certifications Section in 2003 at that Hernando County address. Both the Hernando County School Board Security Background Check document and the DOE Application for Florida Educator's Certificate warned the applicant of severe consequences should the information contained therein be untruthful. However, the first of the warnings on the Background Check document addresses only failure to make full disclosure of prior criminal offenses. On January 16, 2003, Respondent submitted to the Hernando County School Board a Letter of Interest and Resume, seeking the position of principal of Powell Middle School. This time, his resume reflected under "Professional History" that "3/02 to 9/02" Respondent was "Administrative Support/Guidance" at Lyons Creek Middle School and "2/01 to 3/02" was "Interim Assistant Principal" at Deerfield Beach Middle School, both positions in Broward County, Florida. The Broward County School Board did not then, and does not now, have a position titled Administrative Support/Guidance." Respondent's January 16, 2003, resume and application are false and/or misleading for all the reasons previously cited in Finding of Fact 46. On or about April 29, 2003, the Broward County School Board terminated Respondent, due to his failure to advise Lyons Creek Middle School and the Board of his intentions about returning to Lyons Creek Middle School for the 2003-2004 school year. At that point, Respondent was officially classified in Broward County School Board records as "involuntarily transferred" and "terminated." He certainly was not reappointed as a guidance counselor. On July 1, 2003, unaware of Respondent's misrepresentations, and based on Petitioner Superintendent's recommendation, the Hernando County School Board appointed Respondent to the position of principal of Powell Middle School. On May 20, 2004, DOE-BPP sent a letter to Respondent at his permanent address on file with DOE-BPP: 1860 NW 32nd Avenue, Ft. Lauderdale, Florida 33311. The certified mail receipt was signed for by Respondent's mother. This letter was similar to DOE-BPP's letter of November 16, 2001, (see Finding of Fact 10). It stated: This is to advise you that a complaint has been filed with the Department of Education, Office of Professional Practices Services, alleging that you misused school property. The circumstances leading to the complaint are being investigated by our office. If founded, these allegations could subject you to disciplinary action by the Education Practices Commission as described by Section 1012.79, Florida Statutes, copy enclosed. You are not required to respond at this time; however, in accordance with Sections 120.60(6) and 1012.796, Florida Statutes, you are provided with an opportunity to submit documents or statements which refute, explain or mitigate the allegations of misconduct listed above. You or your representative may present written materials to become a part of the record which will be reviewed by the Commissioner of Education. You may present these materials in person or through the mail. An informal conference has been scheduled for you with the Office of Professional Practices Services consultant assigned to your case on Thursday, June 10, 2004 at 10:45 a.m. If you wish to attend the conference in person or mail materials, the address is Turlington Building, Suite 224-E, Tallahassee, Florida 32399. If you wish to conduct the conference by telephone, the number is (850)245-0438. (emphasis supplied) Respondent's mother forwarded DOE's May 20, 2004, letter to him. Respondent received the May 20, 2004, DOE materials. He personally responded to DOE on June 3, 2004. For purposes of his response to DOE, Respondent utilized his permanent address of 1860 NW 32nd Avenue, Ft. Lauderdale, Florida 33311, instead of his then-current Hernando County residence, and acknowledged his receipt of the May 20, 2004, correspondence from DOE. The content of Respondent's reply to DOE clearly demonstrates his familiarity with all stages of Broward County's correspondence with, and prosecution of, Respondent in 2001-2002. (See Findings of Fact 23, 26.) On October 25, 2004, DOE filed its formal administrative complaint, based on the pawned laptop computer, against Respondent's educational certificate, and sent the administrative complaint, written notice that probable cause for the complaint had been found, and an election of rights form to Respondent at his permanent Ft. Lauderdale address that Respondent had used for his June 3, 2004, response to DOE. (See Finding of Fact 69.) Because of the laptop pawning, DOE's administrative complaint charged Respondent with gross immorality or an act involving moral turpitude pursuant to Section 1012.795(1)(c), Florida Statutes; with violation of the Principles of Professional Conduct for the Education Profession, pursuant to Section 1012.795(1)(i), Florida Statutes; and with use of institutional privileges for personal gain or advantage, pursuant to Florida Administrative Code Rule 6B-1.006(4)(c). On November 6, 2004, DOE's administrative complaint, written notice, and election of rights form were delivered by certified mail and signed for by a family member of Respondent at the Ft. Lauderdale address Respondent had used in his June 3, 2004, response to DOE. On November 16, 2004, the Hernando County School Board received from DOE a copy of DOE's October 25, 2004, letter, notifying Respondent of the filing of DOE's administrative complaint against Respondent. The actual administrative complaint and other documents were not enclosed. At no time had Respondent advised the Hernando County Superintendent that he was being investigated by DOE. When asked, on November 16, 2004, to explain what was going on, Respondent told Petitioner Superintendent that he knew nothing about any investigation by DOE. He told the Hernando County School Board's Human Resources Officer that he had received no election of rights form. He also told her that he did not know that Broward County had not submitted a final order in the case it had brought against him in 2002. The Superintendent asked Respondent to give her a written statement. On November 17, 2004, Respondent wrote the Superintendent in pertinent part, as follows: * * * Please be advised that I am not aware of any investigation conducted by the Commissioner or the Office of Professional Practices. Also be advised that I never took part nor was I ever involved in any dialogue with the Commissioner or the Office of Professional Practices regarding this recent finding of probable cause. As a point of information I was not informed of any complaint filed against me by Broward County Public School or anyone until this year. This recent notification is approximately three years after an isolated incident that occurred in Broward County, Florida, which resulted in an formal hearing with the Department [sic.] of Administrative Hearings. As a result of the hearing the appropriate disciplinary action was recommended by the Administrative Law Judge for my offense. * * * Respondent's theory of the instant case, and at least some of his frequently vacillating testimony, was to the effect that he had not received the November 6, 2004, package from DOE, containing DOE-BPP's October 25, 2004, administrative complaint and election of rights form, at his residence in Hernando County by November 16, 2004, when he spoke with the Superintendent and Human Resources Officer, and still had not received the DOE package by November 17, 2004, when he wrote his statement for the Superintendent, and therefore, his statements as related in Findings of Fact 73-74, were not false. By way of further explanation, Respondent contended that without interrogating him, DOE could not be "dialoguing" or "investigating" charges against him. To the contrary, it is found that Respondent's November 16-17, 2004, oral and written representations to Hernando County representatives were largely false, and were made knowing they were false, as evidenced by Respondent's need to redefine "dialogue" and "investigation" in his own terms, in order to defend his written statement. Giving Respondent the benefit of the doubt, some parts of Respondent's November 17, 2004, written statement are ambiguous,2/ but clearly, Respondent was, prior to November 16, 2004, aware that DOE-BPP was currently investigating him (see Findings of Fact 68-69) and denied it to the Superintendent. Likewise, he clearly knew that no final order had been entered by Broward County in its disciplinary action against him (see Findings of Fact 56-57), and denied that to the Human Resources Officer. Therefore, his November 16-17, 2004, statements to the Superintendent, with the exception of the statements that he had not yet received DOE's formal administrative complaint, finding of probable cause, and election of rights form, were false. It is noted also that Respondent had only failed to receive these items because they were sent to the permanent address Respondent, himself, had used for correspondence with DOE about its disciplinary investigation of him. At a meeting of Petitioner, the Superintendent, and the Human Resources Officer on November 19, 2004, Respondent again denied any knowledge of the DOE investigation, despite having been given three separate direct orders November 16-19, 2004, by the Superintendent to be truthful with her. That day, Petitioner provided Respondent with an Employee Conference Report notifying him of charges against him by the Hernando County School Board. Respondent has stated some complaints about the specificity and detail of these charges, which complaints are not material to the instant proceeding. On November 22, 2004, Respondent was suspended with pay, pending investigation of Hernando County School Board's charges against him. Respondent has stated some procedural complaints about the specificity and detail of these charges, which complaints are not material to the instant proceeding. On November 30, 2004, and again on December 2, 2004, Petitioner Superintendent requested that Respondent return all items of Hernando County School Board equipment in his possession to the Hernando County School Board. At the time of Respondent's suspension with pay on November 22, 2004, Respondent was in possession of the following items of Hernando County School Board-owned equipment: two laptop computers; two palm pilots; one facsimile (FAX) machine; one laser printer; two cellular phones; one school walkie- talkie/radio; and one portable stereo/cassette player. Respondent's explanation for why he had so many pieces of equipment was that he and his family had begun to have concerns for his safety if he worked at Powell Middle School late into the evening, so he had begun to work more at home than at school in his off-hours. He claimed to be working on his portfolio and school matters, consulting advisors and mentors, and recruiting teachers. Other principals and educators testified more credibly that they could not conceive of any reason a principal would require that much equipment, much of it duplicative, to do School Board-related work at home. In the Hernando County School District, school principals are normally issued, for take-home usage, only the following items of equipment owned by the Hernando County School District: one cellular telephone; one laptop computer (if requested), and one palm pilot (if requested). Respondent had been issued one of each of these three types of equipment. On December 2, 2004, Respondent returned all the Hernando County School Board equipment in his possession. Respondent had two laptop computers in his possession because a new one had become available to him; Respondent had asked the Powell Middle School technology coordinator to transfer all files in the "my documents" folder from Respondent's old laptop to the new laptop; and Respondent had told the technology coordinator that Respondent wanted to transfer his "confidential" folder himself, and to leave those confidential files alone. The technology coordinator copied the files requested from the old laptop computer to the new laptop computer and gave both laptops to Respondent to check. Checking the transfer should have taken Respondent about two hours, but Respondent retained both laptop computers in excess of three months, despite the technology coordinator's occasional requests for the return of the old laptop computer for recycling. At the hearing in this cause, Respondent admitted that on December 1, 2004, the evening immediately prior to his return of the foregoing Hernando County School Board-owned equipment to the District, he had deleted all files from the two laptop computers owned by the Hernando County School Board. He represented that the same material had existed on his office desktop computer at Powell Middle School when he turned in the two laptop computers, and if it were no longer on the desktop computer, the material (School Board documents) had been compromised by someone other than himself. However, in December 2004, immediately after Respondent returned the two laptop computers, computer technicians for the School Board had determined that no files were deleted from Respondent's desk top computer and none were transferred to the desktop computer on or about December 1, 2004. At that time, only about 12 files existed on the principal's office desk top computer which coordinated, even by their file names, with the deleted material on the two returned laptops. There exists no method or mechanism by which the data deleted by Respondent from the two laptop computers owned by the Hernando County School Board can be recreated or restored from the machines. Knowing a file name does not equate with determining the contents of the file, itself. At the disputed-fact hearing in the instant case, Respondent offered no explanation or justification for his deletion of data from the two laptop computers. Indeed, he specifically denied that he had deleted only "personal files." He testified that he had downloaded all the material from each laptop onto floppy disks and had produced at the hearing all that material in hard copy for each respective machine. (Exhibits R-4A and R-4B). Respondent's testimony further revealed that he had kept the knowledge of the existence of any floppy disks secret from the Superintendent and School Board from December 2, 2004, until approximately 10 months later, when he produced six floppy disks, pursuant to a discovery order in the instant case. At that time, a School Board computer technician determined that the hard copies which were eventually admitted as Respondent's Exhibits R-4A and R-4B, had been printed on September 8, 2005, well after December 2, 2004, when Respondent had relinquished the laptops. The computer technician further determined that all the files, at least by file name, from both laptops were not on the six floppy disks produced by the Respondent. A computer technician also testified competently and credibly that for each item printed from the six floppy disks produced by Respondent and represented by Respondent as the floppy disks he had used to store the entire contents of both laptops on December 1, 2004, the "created" date was September 8, 2005; that this "created date" demonstrated that the disks produced by Respondent were copied from another source on September 8, 2005; and that therefore, the floppy disks produced by Respondent during discovery were not copied from the laptops on December 1, 2004, as Respondent had represented. When he was reminded of the foregoing technical testimony, Respondent then testified that he had supplied in discovery to the School Board and its technicians only copies of his original floppy disks, which "floppy copies" were created by him on September 8, 2005, during discovery, and that the hard copy material also had been printed on September 8, 2005, from the copies of the September 8, 2005, "floppy copies." Therefore, the undersigned infers from the evidence as a whole, that on December 1, 2004, Respondent anticipated being charged by the Superintendent with personal use of the School Board's two laptop computers and that Respondent therefore deleted all the material from both laptops in order to remove any "confidential" and personal material (see Finding of Fact 85), with the intent to not provide the Superintendent with any self-incriminating evidence of his personal use of the laptop computers. A review by the undersigned of the hard copy material presented by Respondent (Exhibits R-4A and R-4B) reveals that the material in each exhibit is identical and that each may be considered school-related material. However, none of the hard copy material produced by Respondent is clearly material protected by Chapter 119, Florida Statutes. The Hernando County School Board has duly adopted Board Policy 8.60, which provides in pertinent part: Use of information resources shall be limited to legitimate educational purposes. Programs for personal, commercial, or illegal purposes, including games, are not authorized. E-mail, world wide web pages, and other forms of electronic documentation. * * * (b) Will require the same handling as other public records. * * * (5) Users shall not take unauthorized actions which . . . deny access or attempt to deny access to, disrupt, change, or destroy the data or service of the computer or network systems. By deleting all data from the two laptop computers owned by the Hernando County School Board, Respondent deleted electronic data located on Hernando County School Board computers. The material he has produced is related to school matters. Giving Respondent the benefit of the doubt that the items he produced are, in fact, at least most of the contents of the two laptops, then he intentionally denied the school authorities access to these records from December 2004 forward, as well as eliminated his personal work from the laptop computers. When Respondent returned the two School Board palm pilots on December 2, 2004, they had no data memory chips. These palm pilots can also store data without memory chips. All that memory was also blank when Respondent returned the palm pilots to the District. Although Respondent's former office assistant/secretary also testified that she had regularly "hot- sync-ed" material from Respondent's palm pilot to his desktop computer, no palm pilot content (calendars and material related to student schedules) could be found on Respondent's desktop computer. However, the same material on the palm pilots probably could be found in other locations. Respondent had no clear explanation for what became of the memory chips from either palm pilot, but maintained he had not removed the chips or erased the other memory. There is no persuasive evidence that he erased or removed memory from the palm pilots. Credible testimony by other educators was that all the material any principal needed could be contained on one palm pilot, so Respondent's having two working palm pilots was clearly excessive and unnecessary for Respondent's job performance. The Hernando County School Board has duly adopted Policy 7.72 to deal with acquisition, use, and exchange of school property. It provides as follows: Acquisition All property purchased with District funds, internal funds, or funds received from outside sources shall be acquired using District purchasing procedures. All property, including vehicular equipment, shall be under the full control and name of the School Board. All property with a value consistent with the provisions of the policy manual, acquired through internal accounts or donation, shall be reported immediately by the principal or work site supervisor to the designated property records office on the prescribed forms. Principals and work site supervisor shall be responsible for determining that all property is identified and accounted. Exchange Each principal and work site supervisor shall determine the property needs for his/her school or department. The principal or department head shall declare any property which is not needed, upon approval of the designated property control office, and may requisition additional property through proper procedures. Surplus property shall be reported on proper forms to the designated Property Records Office which shall be responsible for acquiring and storing the surplus property. Property item with a value as established in (1)(c) above may be exchanged between and [sic.] District departments when when approval is granted by the designated Property Records Office and subsequently by the appropriate department head. Notification of each approval shall be filed in writing with the designated Property Records Office to adjust property records of schools and departments. School Board equipment may be used by employees away from School Board property under certain conditions when prior approval is obtained from the principal or department head. These conditions include familiarization with the equipment for instructional purposes or improvement of job performance. School Board equipment shall not be used for gainful outside employment or private use of employees for personal gain, or by any outside group or organization. The foregoing policy requires only that the principal account for all property in his/her school. It probably works well where a principal is overseeing administrative and instructional staff, but it contains no clear oversight or accountability for equipment checked out by principals themselves. It is also less than specific as to how a record is to be kept or what "forms" are necessary for items that are taken off-campus. For instance, the policy does not, contrary to some testimony herein, specifically require the use of a "loan of district equipment form" (Petitioner's Exhibit 40, herein), for home use. That is, the policy does not specifically mandate the use of Petitioner's Exhibit 40, which Respondent admittedly did not use, and the form itself makes no reference to Policy 7.72. Since 1997, the Athena system has been the automated computer system used at Powell Middle School to account for property (equipment, books, software, and audiovisual materials). The system is used the same way district-wide. It is based on signing out property to a particular room number within the school itself. Since instructional and administrative personnel are assigned to specific rooms, it is assumed that the computer system knows that people, not rooms, have custody of the assigned equipment and that people are mobile. Respondent appropriately used the Athena system to check out two laptops, a FAX machine, his issued palm pilot, his issued cell phone, the principal's office's cell phone, and the principal's office's walkie talkie/radio. Additionally, an assistant principal confirmed that Respondent had borrowed his palm pilot with his permission, but it remained properly checked out in the Athena system to that assistant principal's room/office. A more accurate procedure would have been to check it out through Athena to Respondent's office, but the second palm pilot was accounted-for and the assistant principal was accountable for it. A stereo/cassette player assigned to a music teacher's room by the Athena system was loaned by the music teacher to Respondent about a week before December 2, 2004, in much the same way as the assistant principal's palm pilot had been. The stereo/cassette player also probably should have been transferred in the Athena system to Respondent's office, but the item was accounted-for and the music teacher was accountable for it. A FAX machine assigned to Respondent's office by the Athena system became obsolete for use as a FAX machine, in that location, when Powell Middle School's phone lines were changed. Although the FAX machine could still be used in the principal's office and in other locations as a printer, Respondent wanted a FAX to use at home; so, Respondent, with the agreement of the school's technology coordinator, took the FAX machine home to work with as a FAX, and it remained on the Athena system as assigned to Respondent's office. A used laser printer, which had been donated to Powell Middle School, had not yet been assessed by the school's technology coordinator to determine whether it could/should be used at Powell Middle School or re-cycled through the School District. Respondent had asked to use it, and the technology coordinator gave it to Respondent to try out. The laser printer worked, and Respondent kept it for home use. Through inadvertence, the technology coordinator never got around to registering it in the Athena system as assigned to Respondent's office. The Hernando County School Board's duly-promulgated Policy 8.61, regarding telephones is as follows: In order to promote efficiency and economy, the Superintendent or designee shall develop a uniform system for implementing effective telephone service systems, including use of telephone lines to support technology. School personnel shall be informed of this system. The system shall encourage use of SUNCOM networks or equivalent services. Logs shall be maintained of long distance calls by work location. Logs shall be in a uniform format. Staff shall not utilize the School Board telephone system for conducting personal business. Telephone service billings and long distance logs shall be subject to periodic review and audit. No person shall charge personal calls to the School Board. Prior to his return of all items to the District on December 2, 2004, Respondent had in his possession, off-site from School Board property, both the cell phone issued to him and the Powell Middle School Office cell phone, as well as the Powell Middle School walkie-talkie/radio. Principals in the Hernando County School District are required to have their School Board-issued cell phones with them 24 hours a day, seven days per week. However, there was also credible testimony from other educators that if Respondent were, indeed, working at home nights and weekends, he could be reached via his home land line phone in an emergency and that he therefore did not need a cell phone then, despite the requirement that he have a cell phone with him at all times. Respondent claimed to have two cell phones because his issued phone had been damaged approximately August 2, 2004, when Shamu, the SeaWorld whale, splashed him during an administrators' field trip, and he had to use the office emergency phone while he was awaiting a new one being provided to him by the School Board. Contrariwise, a witness testified that Respondent had handed-off his issued cell phone before the Shamu incident so that it would not get wet or damaged. Because Respondent made phone calls on both phones on the same days during the period of time he had them both, it is more credible that he did not have any legitimate need of the office phone at least part of the time he had it in his possession off-campus. Tracking of Respondent's phone calls shows that he made numerous phone calls to his parents, friends, and acquaintances on both phones, but because all these people are current or former educators, mentors, or school program advisors, it is impossible to say Respondent's phone calls were purely for personal reasons or gain. Further giving Respondent the benefit of the doubt and assuming that his issued cell phone was, in fact, damaged at some point in time, and that the office cell phone had been used in the past by an assistant principal for up to five weeks, as testified-to by Respondent and that assistant principal, and that the office cell phone had been used by other educators when their cell phones also had been damaged, as testified-to by Respondent, Respondent still should have gotten his issued cell phone fixed and not deprived Powell Middle School of a necessary piece of equipment (the office cell phone) for as long as he did. Respondent's testimony that he ultimately changed out the good SIM card from the office phone to his bad cell phone does not modify the foregoing finding. Because the office cell phone was rendered inoperable by the removal of the SIM card, it was still not available for use in the school office, due to Respondent's actions. All testimony that other cell phones and radios were available elsewhere on campus and that occasionally the principal's office cell phone had to be used by instructional and administrative personnel when their own issued cell phones were not working is accepted. However, the office cell phone is a vital piece of equipment and is intended for fire drills, bomb threats, athletic events, away field trips, and emergency management situations. One can also assume that in its drawer in the principal's office, it may be the only lifeline a school has in a hostage or terrorist situation. Respondent's deprivation of the office of this item for an extended period of time during school hours was inappropriate. All testimony that occasionally all educators in the school who use a walkie-talkie/radio inadvertently walk off campus with one attached to their belts is accepted as valid, as is Respondent's testimony that this was why he had the radio on December 2, 2004, and that the radio would be no good for personal use because it is ineffective more than a mile from the campus. That said, Respondent's simultaneous retention of both the office cell phone and the walkie-talkie/radio created a potentially dangerous situation at the school by depriving office personnel of these backup items. On January 10, 2005, Petitioner recommended to the Hernando County School Board that Respondent's employment with the Hernando County School Board be terminated and provided Respondent with specific and detailed notice of all charges against him. Respondent has stated some complaints about the specificity and detail of these charges, which are not material to the instant proceeding. Respondent had full and complete notice of all charges in the instant case prior to hearing via the Amended Administrative Complaint herein. Respondent knew or should have known the Code of Ethics of the Education Profession in Florida, codified in Florida Administrative Code Rule 6B-1.001. Respondent knew or should have known the Principles of Professional Conduct for the Education Profession in Florida as codified in Florida Administrative Code Rule 6B-1.006. Respondent knew or should have known the content of all Hernando County School Board Policies. Respondent knew or should have known the established procedures to remove equipment from School Board property. Hernando County School Board Policy 6.301 provides as follows: All School Board employees, because of their responsibility as role models to the children of the Hernando County community, shall be held to a high moral and ethical standard of conduct, both in their everyday employment and in their roles within the community. All employees shall familiarize themselves with the "Code of Ethics of the Education Profession in Florida," located in the State Board of Education Rules. All employees shall abide by the Code at all times, and shall be held to the standards of the Code in all matters related to their employment with the Hernando County School Board. The School Board of Hernando County supports strong internal control in its procedures and practices. All incidents of suspected improprieties should be reported using the Board approved Complaint Policy. If the provisions of this policy are found to be inconsistent with the clear language of any employee collective bargaining agreement, the terms of the collective bargaining agreement shall prevail. Three principals and five district administrators, all of whom are former principals or assistant principals, testified competently and credibly that in the event the charges herein are proven against Respondent he could not be effective in the Hernando County School System. To the extent that any of these individuals' testimony was couched in terms of ineffectiveness arising from mere accusations, newspaper coverage, and/or the filing of an administrative complaint, it has been discounted. Moreover, it is noted that as of August 24, 2005, Respondent was appointed to the Hernando County Ordinance Review Board, to review County ordinances and make recommendations for or against their repeal. This appointment suggests that the citizens of Hernando County are interested only in Respondent's guilt or innocence and will not judge him ineffective merely upon accusations.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the School Board of Hernando County enter a final order concluding that Respondent is not guilty of the charges in paragraphs 38 c), d), e), and f) and is guilty of the charges contained in paragraphs 38 a), b), g), and h) of the Amended Administrative Complaint and approving the Superintendent's recommendation to terminate Respondent's 2004- 2005 contract. DONE AND ENTERED this 23rd day of March, 2006, in Tallahassee, Leon County, Florida. S 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 23rd day of March, 2006.
