The Issue The issue presented for decision in this case is whether Petitioner, St. Petersburg College, should dismiss Respondent from his employment and terminate his continuing contract.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made: Respondent is an instructor in humanities at the College's Clearwater campus. Respondent has been an instructor at the College since 1996. He began as an adjunct professor and has been a full-time instructor since 1998. Respondent works under a continuing contract of employment, which is tantamount to a tenured position, entitling the instructor to maintain his position from year-to-year unless terminated by mutual consent, by the instructor’s resignation, or by the suspension or removal of the instructor for cause pursuant to the statutes and rules of the State Board of Education. Prior to the incidents giving rise to this proceeding, Respondent had never been subject to disciplinary proceedings during his employment with the College. At Respondent's July 2004 annual evaluation meeting, Provost Stan Vittetoe and Program Director Anne Cooper expressed concerns about Respondent's failure to keep office hours and the fact that he did not show up for a class he was scheduled to teach. Respondent attributed these problems to his ongoing divorce proceedings. Dr. Vittetoe lectured Respondent on the importance of not allowing "life issues" to affect his work, but did not otherwise discipline Respondent. In the fall semester of 2003, Respondent taught three humanities courses: Humanities I, Humanities II, and East/West Synthesis. Humanities I and II consist of a chronological study of Western civilization. East/West Synthesis focuses on non- Western cultures, such as those of India, China, Japan, Africa, and the Middle East. Pamela Socorro has been a student at the College since 2002. She enrolled in Respondent's East/West Synthesis class in August 2003. The class was scheduled to meet twice a week, on Monday and Wednesday evenings, for the length of the fall semester. Each class period lasted one hour and 45 minutes. Respondent also played keyboards for a local jazz and rhythm and blues band called Bus Stop. Respondent was not a regular member of the band, but sat in for the band when its regular keyboardist was unavailable. Bus Stop played at nightclubs and bars in the Tampa Bay area. In his humanities classes, Respondent would announce the dates of his engagements with Bus Stop and invite the students to come out and hear the band. In response to one such general invitation in late October 2003, Ms. Socorro and a group of friends went to a bar called the Rare Olive in Ybor City to see Respondent perform with Bus Stop. The Rare Olive did not admit persons under 21 years of age. Ms. Socorro was 19 years old at the time, and her friends were also under 21. Respondent intervened with management, asking if Ms. Socorro could come into the bar provided she did not drink alcoholic beverages. Ms. Socorro was allowed to come into the bar, though at least one of her friends, Rian Salmun, was not admitted. During a break from playing, Respondent spoke with Ms. Socorro for five-to-ten minutes. This was their first one- to-one conversation. During this conversation, Respondent asked Ms. Socorro her age. She told Respondent that she was 19 years old, and he told her that he was 33 years old. In November 2003, Ms. Socorro and Respondent had a conversation on the College campus during which Respondent mentioned that Bus Stop would be playing at the Rare Olive in St. Petersburg on November 21, 2003. Because Respondent was sitting in with the band on short notice, he did not have an opportunity to announce this performance to his humanities classes. On November 21, 2003, Ms. Socorro went to the Rare Olive in St. Petersburg with her mother, her aunt, and a group of friends. Ms. Socorro used a friend's identification card to obtain admittance to the bar. Respondent joined Ms. Socorro and her party during a break. Respondent asked Ms. Socorro if she wanted a drink, and she told him that she liked "fruity drinks" and shots. Respondent walked to the bar and came back with two shots. They downed the shots together.2 After about an hour at the Rare Olive, Ms. Socorro's mother wanted to leave. Respondent did not want Ms. Socorro to leave and asked what she would be doing later, after she took her mother home. Respondent gave Ms. Socorro his cellular telephone number, and she said she would call him later. She entered the number into her mother's cellular telephone directory. Ms. Socorro and her group left the bar. Once outside, Ms. Socorro realized that she had neglected to save Respondent's phone number into her mother's cell phone directory. Maria Albornoz, one of Ms. Socorro's friends, went back into the bar and obtained Respondent's cell phone number again for Ms. Socorro. Ms. Socorro did not call Respondent later on the night of November 21, 2003. She did call him on the afternoon of November 22, 2003, and left a message on his cellular telephone. Respondent returned the call that evening. From this point forward, Respondent's and Ms. Socorro's versions of that evening's events differ in several particulars. According to Ms. Socorro, Respondent asked her if she would like to attend the Fall Dance Concert at the College with him that evening. Respondent testified that he had mentioned the concert in class that week, and asked Ms. Socorro whether she was planning to attend, but did not ask her to go with him. Ms. Socorro testified that they arranged on the telephone to meet outside the theater, met as planned, went in together, and sat together in the back row of the theater. Respondent testified that they happened to arrive at the same time and that they sat together in the back of the theater because the recital had already started when they entered. Ms. Socorro testified that, after the recital, she and Respondent arranged to meet at the Marble Slab, a local ice cream shop. Respondent testified that he mentioned that he was going for ice cream but that he did not ask Ms. Socorro to join him. Before proceeding to the ice cream shop, Respondent spoke to several performers of his acquaintance, while Ms. Socorro went across the street from the College to the residence of her friend, Mr. Salmun, and spoke with him for a few minutes. At the hearing, Mr. Salmun testified that Ms. Socorro told him she was meeting Respondent for ice cream at the Marble Slab. Ms. Socorro recalled walking past Respondent's car in the Marble Slab's parking lot and seeing two child car seats in the back. At the time, she was unaware that Respondent was involved in divorce proceedings or that he was the father of twin three-year-old daughters. Respondent was already seated at a table in the Marble Slab when Ms. Socorro entered. Neither Respondent nor Ms. Socorro ordered ice cream. They sat at the table and talked about their families, their astrological signs, Pilates and dance teachers they had in common, yoga, and Latin dance. They eventually felt self- conscious about sitting at the table in the ice cream shop without making a purchase, and they continued their conversation outside the Marble Slab. Ms. Socorro testified that Respondent told her that she was a good student and was doing very well in his class. He asked Ms. Socorro not to "announce" that she had seen him play at the Rare Olive or had gone with him to the dance recital, "because he could get in trouble." He told her that he should not see her again while she was in his class, but he did not tell her that he was forbidden to see her. Respondent urged Ms. Socorro to complete her class assignments and exams as quickly as possible, the implication being that they could begin dating once she had completed the class and received a final grade. Despite his cautionary statements, Respondent also discussed going out to a Latin club with Ms. Socorro so that she could help him with his dance technique. Respondent testified that he was surprised to see Ms. Socorro arrive at the Marble Slab, especially given that she did not order ice cream. He stated that this was the first clear signal that Ms. Socorro might have a romantic interest in him. Respondent recalled that Ms. Socorro asked him to go out with her to a dance club, but that he told her that was "out of bounds." However, he also told Ms. Socorro that he was interested in pursuing a relationship once she was out of his class. To the extent that Respondent's and Ms. Socorro's versions of events on November 22, 2003, differ, Ms. Socorro's version is credited. Even in his own version of events, Respondent agreed that he returned Ms. Socorro's telephone call. He denied asking Ms. Socorro to go with him to the dance recital. However, Respondent admitted telling Ms. Socorro that he was going to the recital and asking Ms. Socorro if she was going. Similarly, Respondent denied asking Ms. Socorro to go with him to the Marble Slab, but there could be little other reason for him to tell her that he was going there. Finally, Respondent admits that he made it clear to Ms. Socorro that he was very much interested in pursuing a relationship with her, as soon as the formality of having her as a student in his class could be dispensed with. On the evening of November 29, 2003, Ms. Socorro attended a performance of the play "Miss Saigon" at Ruth Eckerd Hall in Clearwater. When she came home after the play, she learned that Respondent had telephoned her. She returned the call the next day, while shopping in Orlando with her mother. Ms. Socorro talked to Respondent about "Miss Saigon," because the play was related to the East/West Synthesis course Respondent was teaching. They discussed the Thanksgiving break, then made plans to see the movie "Gothika" that evening at the AMC Woodlands 20 theater complex in Oldsmar. Respondent and Ms. Socorro attended a late showing of "Gothika," then sat and talked in the theater's parking lot until approximately 5:30 a.m. Respondent testified that this was his first "real talk" with Ms. Socorro and that they began to get to know each other at this time. They also shared their first kiss, described by both principals as a "French kiss." Ms. Socorro was scheduled to report to her job as a nanny at 5:45 a.m. on December 1, 2003. She went straight to work from the movie theater parking lot, but arrived late to her job. Because she was unable to change clothes before work, she ended up reporting to Respondent's class that evening wearing the same clothes she had worn on their date the night before. When she arrived at class, Ms. Socorro noted that Respondent was also wearing the same clothes he had worn the previous evening. While Respondent agreed that he went with Ms. Socorro to see the movie "Gothika," and accepted her version of what happened that night after the movie, Respondent contended that this date occurred on December 9, 2003, the day after he gave out the final grades for Ms. Socorro's East/West Synthesis class. Respondent contended that he did not speak with or see Ms. Socorro on November 30, 2003. He denied any recollection of seeing Ms. Socorro in his class wearing the same clothes she had worn on their date. Ms. Socorro testified that she did go to the movies again with Respondent on December 10, 2003, but that they saw "The Last Samurai." Respondent denied ever having seen "The Last Samurai." Ms. Socorro's version of the chronology of these events is more credible and is accepted. Ms. Socorro's recollection of the events of November 30, 2003, was precise in its detail, belying Respondent's contention that she was somehow confused or mistaken as to when they saw "Gothika" together. On December 8, 2003, Ms. Socorro took her last exam in Respondent's class. The exam was a multiple choice "fill in the bubble" test that Respondent machine graded that evening while the students waited. Respondent was able to tell Ms. Socorro that she had made an "A" in his class before she left his classroom on December 8th. However, Respondent did not officially post the grades for his class until December 16, 2003. The semester officially ended on December 19, 2003. Prior to the end of the fall semester, Ms. Socorro told Respondent that her friends Ms. Albornoz and Mr. Salmun knew that she and Respondent were dating. Ms. Socorro testified that Respondent told her that she should tell Ms. Albornoz and Mr. Salmun not to speak to anyone about their relationship. Ms. Socorro and Mr. Salmun were best friends. They saw or spoke to each other every day, and they prepared their schedules for spring semester together before the end of fall semester. Mr. Salmun told Ms. Socorro that he intended to take a class from Respondent, because he needed one more humanities course and Respondent's class fit into his schedule. Ms. Socorro explained to Mr. Salmun that she had discussed this matter with Respondent, who had told her that they could not socialize with any friends of Ms. Socorro's who were taking classes from Respondent. Mr. Salmun nonetheless signed up for the class, though he dropped it for a humanities class taught by another instructor prior to the close of the fall semester. Ms. Socorro told another friend, Teona Gogoladze, that she should not enroll in Respondent's class for the spring semester, due to Respondent's concerns about his relationship with Ms. Socorro becoming widely known. Ms. Gogoladze registered for Respondent's class anyway, because it fit her schedule better than any other humanities class, and she had done well in a previous class taught by Respondent. Ms. Gogoladze told Ms. Socorro that it would not be "the end of the world" if she had to avoid seeing Ms. Socorro with Respondent for one semester. As it happened, Respondent and Ms. Socorro did socialize with Ms. Gogoladze once during the spring semester, attending a party at her house for the airing of the last episode of the television show "Friends." During the Christmas break between fall and spring semesters, Respondent and Ms. Socorro went out to clubs at least twice. On December 19, 2003, they went with a group of College students to an "end of semester" party at Terra, a Latin club in Ybor City. The next weekend, they went to 10 Beach Drive, a piano bar in St. Petersburg. The couple spoke on the telephone on Christmas Day, exchanged Christmas gifts, and spent New Year's Eve together. Respondent introduced Ms. Socorro to his sister and his father. Respondent and Ms. Socorro continued to see each other during the spring semester of 2004. Ms. Socorro had registered for classes, but withdrew from the College for the semester in order to visit her sick father in Venezuela. Ms. Socorro testified that, although Respondent did not press her to withdraw from the College, their relationship improved when she was not in school because Respondent felt less stress about students seeing him on his dates with Ms. Socorro. Ms. Socorro testified that Respondent "constantly" bought her alcoholic beverages during their relationship, though he knew she had not reached the legal drinking age. Ms. Socorro went to the bars at which Respondent was playing with Bus Stop. Respondent would "hang out" with Ms. Socorro during breaks and buy her drinks. At a bar called J.B.'s in Sarasota, Respondent used his credit card to open a tab for a group of people, including Ms. Socorro. At the end of the evening, Respondent was startled at the amount of the bill. Everyone in the group except Ms. Socorro reimbursed Respondent for their drinks. Ms. Socorro did not register for classes at the College for the 2004 summer semester. She cited her relationship with Respondent as her main reason for staying out of school: I knew that when I went back to school, I knew it was going to be a little difficult, because when we would go out to anywhere around town, restaurants, Gary knew everyone. His students were everywhere. He felt uncomfortable. He always asked if the person knew me. So, I knew it was going to be difficult. * * * At that point, by the summer, we were a couple and we had been together for months. I knew it was going to be stressful again and I was working at-- I believe I was beginning to work at a bank and the bank, if I was there long enough, was going to pay for school. And I decided that, putting all these things together, that I would not go in the summer, either. Respondent taught classes during the 2004 summer semester. Margaret Gunn was a student enrolled in one of his classes. Once while Ms. Gunn was in his office, Respondent asked her to come out to a bar to hear his band play. Ms. Gunn declined the offer. Respondent asked her again in September 2004, and Ms. Gunn again declined. Ms. Gunn testified that Respondent's requests made her somewhat uncomfortable, but that she nonetheless maintained a cordial relationship with him. During the annual fall semester orientation in 2004, College president Dr. Carl Kuttler spoke about sexual harassment during a faculty and staff meeting attended by Respondent. Dr. Kuttler stressed that relationships between instructors and students were not allowed if the instructor could in any way affect the student's grade, academic progress, or academic environment. Ms. Socorro described Respondent's reaction to Dr. Kuttler's presentation: He was upset and that was the first time I heard the name "Dr. Kuttler." I remember him saying that they had emphasized the subject of teacher and student relationships. And it was kind of like, "you see, I told you" kind of thing. He said that now he needed to be very, very careful. He was actually concerned, because me and Rian [Salmun] were having problems in our friendship and he was concerned that now Rian was going to be upset and he might say something to people out of spite. He was just-- he was scared. He was paranoid. He told me about a teacher that was fired. And he said, you know, they don't even know if he did it, they just think he did it and he was fired or he left or something happened and he was just scared. Ms. Socorro, who was planning to return to the College in fall 2004, offered to take her classes at a different campus, or at Hillsborough Community College in Tampa, to assuage Respondent's fears. Despite the offer, she eventually registered to take classes at the College's Clearwater campus. Ms. Socorro also asked Respondent why their being seen together remained a concern, given that she was no longer his student. Ms. Socorro stated, "And he kept saying that it just looked bad, it just looked bad that I was his student at the school, because people would wonder how we met. It would be too much of a coincidence that we met, where we met or how." Respondent and Ms. Socorro agreed to give a false story to anyone curious about how they met. Ms. Socorro testified: He would ask me, please, just tell people that you met me at the bar or we would come up with kind of like a script of what I was going to say to [Respondent's] friends. It was usually I met Gary while he was playing out [with the band]. That's what I told everybody. * * * I was protecting him from anyone at all finding out. I don't know if-- I don't know. I don't know if he felt bad himself about it and he just didn't want people to know. He said people don’t-- he would say people don't know our relationship, they don't know us, they don't know how we are, and it doesn't look good that you're so young, it doesn't look good that I was your teacher and people perceive things differently, so let's not let them do that. Throughout their relationship, Respondent stressed to Ms. Socorro that she should not befriend students enrolled in his classes. Respondent testified that he did so not out of fear for his job but because he wanted to keep his professional and personal life as separate as possible. More credibly, Ms. Socorro testified that Respondent told her that he was "risking everything" to continue his relationship with Ms. Socorro. During the 2004 fall semester, Ms. Socorro met and befriended Ms. Gunn, who had taken a class from Respondent during the summer semester and was taking a second class from Respondent in the fall. When they discussed their classes and teachers, Ms. Socorro pretended she did not know Respondent. Respondent became concerned that Ms. Socorro was seeing too much of Ms. Gunn, because he was afraid Ms. Gunn might "put things together." Respondent asked Ms. Socorro to stay away from Ms. Gunn. Ms. Gunn testified that it took only a few weeks for her to determine that Respondent was the "boyfriend" that Ms. Socorro described in their conversations. Respondent told Ms. Socorro that she should just go to her classes, sit through the lectures, then get in her car and leave the campus. Respondent demanded that Ms. Socorro decide between her relationship with him and the life of a "typical student," because he was "risking too much" to have Ms. Socorro jeopardize it by "hanging out" at school. Ms. Socorro testified that "things got really bad" between Respondent and her during the 2004 fall semester, due to their conflicts concerning Ms. Gunn and the pressure of hiding their relationship. They had "a lot of fights," some so bad that they would decide to "take breaks from each other" for as long as one week. Ms. Socorro recalled three such "breaks" before their final breakup in late November and early December 2004. On November 30, 2004, Respondent and Ms. Socorro went to the AMC Woodlands 20 movie complex to see a movie, but never made it past the parking lot because an argument commenced. Ms. Gunn had told Ms. Socorro that Respondent had quizzed her regarding her whereabouts on certain evenings, with the idea of ascertaining whether Ms. Socorro had lied to him when she promised to stop seeing Ms. Gunn. Ms. Socorro confronted Respondent about his questioning of Ms. Gunn. Respondent called her a "compulsive liar" and said that he was "torn" about their relationship and needed time to decide what to do. Ms. Socorro described this fight as "sad" and "horrible." Respondent testified that, despite her promise not to see Ms. Gunn during the fall semester, Ms. Socorro had surreptitiously gone over to Ms. Gunn's house on at least one occasion of which he was aware. He agreed that the confrontation over Ms. Gunn occurred on November 30, though he placed it at a Ruby Tuesday's restaurant.3 Respondent assured Ms. Socorro that they would talk things over the next day, but testified that he also made it clear to her that the romantic relationship was over. On December 1, 2004, Ms. Socorro repeatedly phoned Respondent, who did not answer her calls.4 She sent several e- mail messages to which Respondent did not respond. Respondent was staying at his father's house because relatives were visiting from out of town. That evening, Ms. Socorro went to Respondent's father's house. Respondent did not want a confrontation with Ms. Socorro because his children were with him. He promised to speak with her the next day. On the morning of December 2, 2004, Ms. Socorro drove over to Respondent's house. She had concluded that her relationship with Respondent was over, and she wanted to retrieve some possessions that she kept at his house. Respondent was not at home, but Ms. Socorro knew that the lock was broken on Respondent's sliding glass back door, and she let herself in the house.5 While looking for some of her jewelry on Respondent's bedroom dresser, Ms. Socorro found a letter from and photographs of one of Respondent's former girlfriends, a former College student named Marianna Csongova. She read the letter, and concluded that Respondent was having a relationship with Ms. Csongova at the same time he was dating Ms. Socorro. Ms. Socorro recalled having seen an e-mail exchange between Respondent and Ms. Csongova earlier in 2004. Respondent had explained away this e-mail, but Ms. Socorro now wondered if there were more e-mails between Respondent and Ms. Csongova. She went into Respondent's computer room and checked his e- mails. She found "tons and tons" of e-mails from Ms. Csongova, and responses from Respondent.6 Ms. Socorro continued searching Respondent's e-mail and found correspondence between Respondent and several other female students at the College. She printed "tons" of the e- mails. Respondent's printer ran out of paper before all of the e-mails printed. Ms. Socorro began forwarding the e-mails to her own e-mail account, but then got worried that Respondent would come home and catch her. She turned off Respondent's computer and left the house, taking a half-inch thick stack of printed e-mails with her. Respondent had spent the night at his father's house. He woke up on the morning of December 2, 2004, and drove to his own house to shower and dress for work. He noticed that the sliding glass door had been opened. He went to check his e-mail and noticed that the printer was out of paper. Respondent surmised that Ms. Socorro had been in his house and on his computer. As he had promised Ms. Socorro the previous evening, Respondent phoned Ms. Socorro and arranged for her to come over to his house early in the afternoon to discuss their relationship. Ms. Socorro had a doctor's appointment that afternoon to which Respondent had planned to accompany her. During their phone conversation, Respondent told Ms. Socorro that he would not accompany her to the appointment because he was driving to Orlando to see his brother, who was down from Atlanta on business. Ms. Socorro arrived at Respondent's house at approximately 12:30 p.m. She went in and they sat down to talk. They talked for nearly an hour about Ms. Gunn and the other issues between them. They did not discuss Ms. Socorro's having gone into Respondent's house that morning and printing his e- mails. Ms. Socorro testified that they both "pretended" not to know what she had done. At about 1:15 p.m., Respondent reminded Ms. Socorro of her doctor's appointment at 1:30 p.m. Respondent was also anxious to begin his trip to Orlando. Ms. Socorro again asked Respondent to accompany her to her doctor's appointment, but Respondent again declined. Ms. Socorro told Respondent that she still wanted things to work out. Respondent said that he did not think it would work, but agreed to talk with her again. Respondent walked Ms. Socorro out of his house and to her car. Respondent was the first to reach Ms. Socorro's car. He looked inside. Ms. Socorro then recalled that she had placed the stack of e-mails on the back seat of her car and that they were plainly visible from outside. Respondent asked Ms. Socorro to unlock the car so that he could retrieve a CD that he claimed to have left in her car. Ms. Socorro used her keyless entry device to open the front door. Before Ms. Socorro could get in the car, Respondent reached in and opened the back door. He grabbed the stack of e- mails. Ms. Socorro threw herself onto Respondent's back, and they struggled over the e-mails on the back seat of the car. The papers were falling to the ground outside the car.7 Ms. Socorro pressed the "panic" button on her keyless entry device, setting off the car's alarm system. Respondent took the keys from her, stopped the alarm, and threw the keys outside the car. They continued to struggle inside the car, until Respondent managed to get out of the car. Neighbors were beginning to notice the struggle. Respondent told Ms. Socorro to calm down, that they both needed to act normal. They stopped fighting and picked up the e-mails. Respondent asked Ms. Socorro to go back into the house and talk about matters.8 They walked to the front door. Respondent opened the door, slipped part way into the house, then tossed his stack of e-mails into the house, with the apparent attempt to deny entry to Ms. Socorro. She ran inside the house before Respondent could close the door. They began yelling at each other again. Respondent demanded to know what Ms. Socorro intended to do with the e- mails and threatened to kill her if she tried to "do anything to destroy everything I've worked for all of my life." Respondent tried to force Ms. Socorro out of the house. He pushed her against the wall near the front door and hurt her arm. As Ms. Socorro held on to the jamb of the open front door, Respondent hit her in the chest with his head and shoulder, shoving her off the front porch and into a bush below.9 Respondent took advantage of Ms. Socorro's fall to lock his front door from the outside. Ms. Socorro became hysterical. She began to laugh, unnerving Respondent, who tried to calm her down. As Ms. Socorro quieted, they discussed the e- mails. Respondent explained that he stayed in touch with Ms. Csongova because he needed to keep his options open. She asked him about the e-mails to the other girls. Respondent replied that the College would not care if he "flirted" with a couple of his students. Ms. Socorro asked Respondent why he went to such lengths to keep their relationship a secret, if the College didn't care. According to Ms. Socorro, the exchange proceeded as follows: He said, why do you want to do this? You're going to hurt my kids. . . . He said, you have to understand that I'm 34 years old. I'm not a child like you. You have your whole life ahead of you and I need to find a role model. I need to find a good woman for my kids to marry. And I knew that you and I were rocky and I had to do this and I was leading more than one life, more than one relationship and if I had to do it, I did it for my kids, that they need a mother. He said, I can't be alone when I'm 44. I remember telling him that he was sick. I said that you're just sick. That's sick. He said, do you want me to tell you the truth. He said, from the moment you told me that you had an eating disorder, I knew that you and I weren't going to work. And I kept yelling at him, if it was that long ago, why didn't you stop the relationship, because you have known that forever. He said, I thought you would change, but you never did. Ms. Socorro got into her car and started to drive away. Believing that Ms. Socorro was in no condition to drive, Respondent tried to talk her into waiting while he called her mother or some other person to come over and help her. Ms. Socorro declined any assistance from Respondent. She told him that she was hurt and needed to get to the hospital. She drove away. From her car, Ms. Socorro phoned her doctor's office, because she had missed her appointment. The doctor's receptionist was so alarmed that she stayed on the phone with Ms. Socorro until she reached her mother's office. Ms. Socorro's mother, Patricia Mills, drove Ms. Socorro to the emergency room of Morton Plant Hospital in Clearwater, where she was treated for scrapes, an injured wrist, and a slightly cracked rib. Due to the injured rib, Ms. Socorro had to take time off from her job as a waitress at Applebee's. She also wore a splint on her wrist for a time. The emergency room staff at Morton Plant Hospital notified the Pinellas County Sheriff's Office, which dispatched deputies to interview Ms. Socorro while she was still at the hospital. The Sheriff's deputies also interviewed Respondent. No arrests were made and no charges were filed in the matter. The Sheriff's Office reported the incident to the College. Ms. Mills phoned the College's security office to inform the College of the altercation between Respondent and Ms. Socorro. The security office passed the complaint to Clearwater campus Provost Dr. Stan Vittetoe. The College's standard procedure is to lock the computer of any instructor who is the subject of a complaint. Dr. Vittetoe locked Respondent's computer. On December 3, 2004, Dr. Vittetoe and Dr. Cooper met with Respondent to inform him that Ms. Socorro had lodged a complaint against him and to provide Respondent with an opportunity to give his side of the story. Respondent told them that during the physical confrontation with Ms. Socorro, he was merely trying to protect himself. He showed them a scratch on his cheek and stated that he had been trying to retrieve some papers that belonged to him. Respondent admitted that he had been involved in a romantic relationship with Ms. Socorro. This initial meeting with Dr. Vittetoe and Dr. Cooper lasted only about 15 minutes, because Respondent had a class to teach. Also on December 3, 2004, Dr. Vittetoe met with Ms. Socorro and her mother. Ms. Socorro told Dr. Vittetoe that she began dating Respondent during the fall semester of 2003, when she was a student in his class. She told Dr. Vittetoe that she and Respondent often discussed the need to hide their relationship, because of its impropriety. She told Dr. Vittetoe that Respondent often bought alcoholic drinks for her when they went out to bars. Ms. Socorro admitted that she had printed e- mails from Respondent's computer and that it was Respondent's seeing those e-mails that triggered their physical altercation. Dr. Vittetoe requested a formal written statement detailing the facts of her relationship with Respondent. Ms. Socorro furnished a written statement to the College on December 8, 2004. On December 7, 2004, Dr. Vittetoe and Dr. Cooper met with Respondent again. At the outset of the meeting, Dr. Vittetoe made clear the gravity of the situation, letting Respondent know that his job was in jeopardy. Dr. Vittetoe questioned Respondent about his involvement with female College students other than Ms. Socorro. Respondent admitted that he had been involved with Ms. Csongova. Dr. Cooper, as Respondent's immediate supervisor, expressed concern at what appeared to be a pattern of romantic involvement with students.10 Dr. Cooper noted that Respondent was not following college procedures and appeared to view the female student population as potential candidates for relationships. Dr. Cooper recounted the meeting as follows: I raised questions with him in regards to his ability to maintain his professional boundaries and expressed great concern over the fact that he didn't seem to recognize that, in his position as an instructor, he had a position of authority and power and could easily use that to influence students' decisions. I remember that he said that, well, they weren't students in my class at the time that he had become involved with them. My concern was that if you say to a young, impressionable individual, well, I don't date students if they're in my class, well, then what you're saying is, well, just get out of my class and then we can have a relationship. And I tried to express that concern over the fact that he was not maintaining his professional boundaries. And then he shared that, well, he didn't want students to dislike him and, you know, he didn't know how to respond when a student came on to him. Dr. Cooper attempted to explain that the student/teacher relationship should not be a matter of "liking" or "disliking," but a matter of respect based on the teacher's knowledge of his subject matter and ability to foster the student's quest for knowledge in the teacher's field of expertise. Dr. Cooper was extremely concerned that Respondent seemed unable to understand or respect basic professional boundaries established between students and teachers. Dr. Cooper was also concerned that Respondent issued invitations to students to come watch his band play in bars that served alcoholic beverages, when most of those students were underage. She did not agree with Respondent's contention that a band playing in an Ybor City bar constituted a "cultural event." She suggested that, if Respondent wanted to share his music with his classes, then he should have the band come to the class and play. During the meeting, Respondent attempted to defend his relationship with Ms. Socorro, first by denying that it commenced prior to the end of the 2003 fall semester, then by pointing out how careful he had been to instruct Ms. Socorro not to discuss their relationship with other students and not to make friends with students on the Clearwater campus. At the conclusion of this meeting, both Dr. Vittetoe and Dr. Cooper concluded that Respondent had breached College rules and could not be trusted with the safety of College students. Dr. Vittetoe gave Respondent the option of resigning before completion of the investigation and a possible recommendation for termination. Respondent declined the offer of resignation. On December 14, 2004, Ms. Socorro met with associate provost Maria Edmonds. Because she was also an Hispanic female, Ms. Edmonds believed that Ms. Socorro might be more comfortable discussing the issues with her than she had been with Dr. Vittetoe. After the meeting, Ms. Edmonds drafted a memorandum summarizing her conversation with Ms. Socorro, the substance of which was consistent with the findings of fact above. Ms. Socorro executed a sworn affidavit attesting to the accuracy of Ms. Edmonds' memorandum, which was forwarded to Dr. Vittetoe. Dr. Vittetoe investigated Respondent's relationships with Socorro and other female College students. Associate Provost Jeff Davis interviewed students at the Clearwater campus to determine their knowledge of Respondent's relationships with various female College students. The investigation disclosed that Respondent had been involved with College students other than Ms. Socorro and Ms. Csongova. Respondent admitted to a relationship with Harmony Holt, who had been a student in his class during the 1999 fall semester. However, Respondent's romantic relationship with Ms. Holt did not commence until 2002, after she had graduated. Respondent admitted to a relationship with Kimberly Kimball. Ms. Kimball was in Respondent's class twice, first in the 2004 spring semester, then in the 2004 summer session. The summer session ended in July 2004, then Respondent dated her for a short time in September 2004, during one of his periodic breakups with Ms. Socorro. Respondent testified that he stopped dating Ms. Kimball because he was not over Ms. Socorro. Respondent admitted to a "friendly, casual" dating relationship with his former student Kelly McGill in 2003. Respondent testified that, although there was a mutual attraction, no sexual relationship occurred with Ms. McGill. On December 13, 2004, Respondent submitted to Dr. Vittetoe his written statement concerning his relationship with Ms. Socorro. This document is a remarkable mixture of rationalization, self-pitying emotional immaturity, and self- centered moral obtuseness.11 Respondent commences with an irrelevant narrative of his divorce proceedings. He next describes his first contacts with Ms. Socorro. Respondent states that there was a "decision to meet and get to know each other on a more personal level." Though he "can't remember exactly how or when it happened," he is absolutely certain that it occurred after the conclusion of the 2003 fall semester. Respondent notes that he stopped dating other women after he had sexual intercourse with Ms. Socorro, on "about the 5th date." Respondent writes that he was concerned about the age difference, but that such differences are the norm in Ms. Socorro's Latin American culture. Respondent states, "Ultimately I was able to handle it because she seemed mature for her age." Respondent devotes a long passage to a discussion of Ms. Socorro's bulimia, notable for its emphasis on the impact her disease was having on its real victim, Respondent: "She could tell the bulimia was putting a strain on me to know what she was doing to herself everyday and that it was hurting me." Respondent writes that he accompanied Ms. Socorro to a therapist whose name he could not recall. This therapist, whom Ms. Socorro never saw again, apparently introduced the concept of "borderline personality disorder" to Respondent. The therapist also commended Respondent on how well he was dealing with Ms. Socorro. Respondent now realized that the borderline personality disorder was responsible for Ms. Socorro's "pathological lying," the fact that she could not hold a job, and the fact that she spent all her money on "binge foods and/or shopping." Respondent described the impetus for the final breakup as follows: The relationship problems came to a head this past month when she continued to socialize in the student population instead of with friends outside the school which was a boundary we set in the relationship and it made it uncomfortable for us to go out. I was too worried someone would see the two of us together. Eventually she met someone in a class that was in one of my classes and I asked her not to pursue the friendship until after the class was over so that there would be no possible problems. She continued to pursue a close relationship with the woman and lied about it on at least a couple of occasions. I wanted to look beyond it and even began to question why I asked her to do it and felt guilty that I might be negatively affecting her college experience and knew it needed to end quickly. Once again I was being manipulated and didn't realize it. I also was having difficulty because although this would only be an issue until she graduated in May of '05, I still felt it was something she knew was important to me but she didn't see it and just ignored it and lied to me about it. I couldn't see being in a relationship where a set boundary was ignored. Respondent concludes by alleging that Ms. Socorro "is retaliating against me for ending our eleven month long relationship and this retaliation is a form of sexual harassment." From the beginning to the end of the relationship, Respondent claims he was victimized, manipulated, and finally smeared by Ms. Socorro. Respondent claimed his only failing was being too nice for his own good. On December 16, 2004, Dr. Vittetoe issued a memorandum to Dr. Kuttler, the College president, stating as follows, in relevant part: The evidence, which we have received to date, causes us to have great and immediate concerns for our female students' safety and freedom from sexual harassment and inappropriate relationships. We have evidence that he has been assisting under age students with unlawful drinking, which is a serious violation of the law. With the evidence presented thus far, I have no choice but to recommend his suspension, effective immediately. Because of the above matters, I further recommend he not be allowed to come on campus or have any contact or conversations with students. Any retaliation by Mr. Rodriguez should be a separate cause for disciplinary action. I further recommend his dismissal be presented to the Board of Trustees. On December 17, 2004, Dr. Kuttler issued a memorandum adopting Dr. Vittetoe's recommendations. Respondent was suspended with pay, effective immediately. Dr. Kuttler anticipated that he would petition the College's Board of Trustees for the suspension without pay and dismissal of Respondent at the Board's next meeting, on January 18, 2005. Dr. Kuttler filed the Petition for Dismissal on January 12, 2005. By Order dated January 18, 2005, the Board of Trustees voted to suspend Respondent without pay and to forward the matter to the Division of Administrative Hearings, should Respondent request a hearing. Through counsel, Respondent filed an Answer on January 20, 2005, asserting his right to a hearing. As noted above, the matter was forwarded to the Division of Administrative Hearings on January 24, 2005. Based upon the findings of fact set forth above, the College has demonstrated by a preponderance of the evidence that Respondent did aid and abet at least one student under the age of 21, Ms. Socorro, in the unlawful drinking of alcoholic beverages. Based upon the findings of fact set forth above, the College has demonstrated by a preponderance of the evidence that Respondent did improperly use his position and abuse his power to encourage and induce female students to come to a nightclub in an attempt to establish a personal relationship, by giving female students inappropriate attention, which Respondent knew could lead to romantic and/or sexual relationships. The evidence established that Respondent would make blanket invitations to his entire class, male and female. However, Respondent would also select individual females, such as Ms. Socorro and Ms. Gunn, for personal invitations. The evidence established that Respondent knew, or should have known, that he was using his position as an instructor to manipulate impressionable young female students into attending his performances, whereby he hoped to impress them sufficiently to make them susceptible to his romantic overtures. As Dr. Cooper said to Respondent at one of their meetings, "[I]t seems like what's more important is for you to organize a set of groupies to follow your band," than to maintain the proper professional relationship with students. Based upon the findings of fact set forth above, the College has demonstrated by a preponderance of the evidence that Respondent did cause a female student, Ms. Socorro, with whom he had a romantic and sexual relationship, to stop her academic progress by inducing her not to continue her schooling at this College, adversely affecting the student's academic progress for Respondent's sole benefit. The evidence did not establish that Respondent made a direct demand that Ms. Socorro quit school. By her own testimony, Ms. Socorro did not attend classes during the 2004 spring semester because she wanted to visit her father in Venezuela. However, she also testified that her relationship with Respondent was much improved when she was not in school, because Respondent felt less pressure about students seeing him on dates with her. Ms. Socorro also testified that her relationship with Respondent was her main reason for not enrolling during the 2004 summer session. Respondent testified that he encouraged Ms. Socorro to complete her education, but only on his terms: that she stay on the campus only long enough to attend classes and that she socialize with none of her classmates. The unreasonable pressure placed on her by Respondent was unquestionably the cause of Ms. Socorro's decision not to attend classes for at least one semester during their relationship. Based upon the findings of fact set forth above, the College has demonstrated by a preponderance of the evidence that Respondent did have a sexual and/or romantic relationship with a female student, Ms. Socorro, during a time when the student was enrolled in Respondent's class or when Respondent was in a position to determine the student's grade or otherwise affect the student's academic progress or environment. The weight of the evidence leads to the finding that the romantic relationship between Ms. Socorro and Respondent commenced prior to the end of the 2003 fall semester, when Ms. Socorro was a student in Respondent's class. By the time the semester ended, Respondent and Ms. Socorro had attended a dance recital and a movie together. Their romantic relationship was well underway while Ms. Socorro was still a student in Respondent's class. Even if Respondent's testimony were fully credited, the couple went on their first "date" (not counting the dance recital and the Rare Olive meeting) on the night after Ms. Socorro took her final exam in his class. This fact, coupled with Respondent's admission that on November 22, 2003, the night of the dance recital, he told Ms. Socorro that he was very interested in pursuing a relationship with her, indicates that the romantic relationship between Respondent and Ms. Socorro did not blossom suddenly after she completed Respondent's class. Respondent's rationalization appears to be that it was perfectly acceptable for him to use his classes as a dating service, planning romantic relationships with his female students while they were in his class, so long as the actual dating did not begin until the semester ended. The College naturally and reasonably disagreed with Respondent's reading of the applicable rule, discussed in the conclusions of law below. Based upon the findings of fact set forth above, the College has not demonstrated by a preponderance of the evidence that Respondent committed an assault and battery upon Ms. Socorro. While their testimony about the events of December 2, 2004, differed in many particulars, both Ms. Socorro and Respondent agreed that she initiated the physical confrontation by jumping on Respondent's back as he attempted to get the e-mails out of the back seat of her car. It could be reasonably contended that matters then cooled off and that the second physical altercation at the front door of the house was initiated by Respondent and did constitute assault and battery. In any event, the facts of the situation were ambiguous enough that the Pinellas County Sheriff's Office did not charge either party after completing its investigation. Though Respondent's conduct during the events of December 2, 2004, was an embarrassment to himself and the College, the specific allegation of assault and battery was not proven by a preponderance of the evidence. Based upon the findings of fact set forth above, the College has not demonstrated that Respondent made untruthful or deceitful statements to College representatives during the investigation. At worst, Respondent appeared to suffer convenient lapses during which his memory became "fuzzy" or "foggy" when the thrust of his testimony varied from that of other witnesses. The evidence established that Respondent was deceitful to the various women in his life, but failed to establish that he said anything to College officials that he did not believe was true. The College's allegation that Respondent was married while some of the alleged misconduct occurred was technically proven but should have no bearing on the discipline imposed. Respondent had been separated from his wife for well over a year at the time he met Ms. Socorro and was in the process of finalizing his divorce and custody arrangements. For all the good reasons Respondent had to avoid a romantic relationship with Ms. Socorro, remaining faithful to his wife was not one of them.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Board enter a final order dismissing Respondent from any and all employment by the Board and/or the College and canceling his contract status retroactive to January 12, 2005. DONE AND ENTERED this 8th day of February, 2006, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of February, 2006.
The Issue As to DOAH Case No. 12-2859TTS, whether Rhea Cohen (Respondent), a classroom teacher, committed the acts alleged in the Amended Administrative Complaint filed by Robert Runcie, as Superintendent of the Broward County Schools (Superintendent) and, if so, the discipline that should be imposed against Respondent’s employment. As to DOAH Case No. 13-0704PL, whether Respondent committed the acts alleged in the Administrative Complaint filed by Pam Stewart, as Commissioner of Education (Commissioner) and, if so, the discipline that should be imposed against Respondent’s teacher’s certificate.
Findings Of Fact At all times material hereto, the School Board has been the constitutional entity authorized to operate, control, and supervise the public schools in Broward County, Florida; and Robert Runcie was Superintendent of Schools. At all times material hereto, the Commissioner has been the head of the state agency responsible for certifying and regulating public school teachers in the State of Florida; and Pam Stewart was the Commissioner. Respondent has been employed by the School Board since 2002 and holds a Professional Services Contract, issued in accordance with section 1012.33(3)(a). During the time relevant to this proceeding, Respondent was an ESE classroom teacher at Crystal Lake. During the 2007-2008 school year, Respondent was employed as an ESE classroom teacher at Atlantic West Elementary School teaching students on the autism spectrum. During that school year, the Education Practices Commission (EPC) reprimanded Respondent for sleeping in class while students were present and for using restraints inappropriately to control or manage autistic and exceptional student education students. The EPC imposed an administrative fine against her in the amount of $500.00. Thereafter, Respondent transferred to Crystal Lake. Respondent taught ESE students at Crystal Lake for the 2010-2011 and 2011-2012 school years. The events at issue in this proceeding occurred during either the 2010-2011 school year or the 2011-2012 school year. Exact dates were available for some of the events, but unavailable for other events. Respondent’s classroom at Crystal Lake for those two school years was divided into two halves, separated by tables and rolling chalkboards that did not form a solid wall. For the 2010-2011 school year, Respondent taught her class of ESE students on one side of the divided classroom and a Ms. Knighton taught on the other side. For the 2011-2012 school year Respondent shared the classroom with Mr. Montalbano. On one side of the classroom was Respondent’s class, consisting of 11 ESE students. On the other side of the room was Mr. Montalbano’s class, consisting of seven ESE students. Mr. Montalbano’s class was smaller because his class functioned at a lower level than Respondent’s class. On October 4, 2011, student J., a non-verbal, wheel chair-bound boy, and student D., a boy with Down’s syndrome, were sitting next to each other in Respondent’s classroom. Student D. did something to irritate student J. Student J. balled up his fist as if to strike student D. Respondent, in front of the entire class, Lisa Phillips (an ESE paraprofessional), and Ms. Sorren, made the following statement: “So is the cripple [student J.] going to beat up the retard [student D.]”./4 Other students in the classroom laughed at student J. and student D. Student J.’s wheelchair is motorized. After making the statement quoted above, Respondent attempted to move student J. into a corner. When student J. moved the wheelchair away from the corner, Respondent unplugged the wheelchair’s battery and made the statement: “Now who has the power. I am in control, not you.” The other students laughed at student J. Respondent then moved student J. to the corner./5 On October 11, 2011, Respondent sent student J. to Mr. Montalbano’s classroom and commented that “he’s too much of a bother.” One day at dismissal, student J. asked Respondent three or four times to be taken to the bathroom. Respondent did not respond to student J. The bus arrived, but the driver refused to accept student J. because of his request to go to the toilet. Mr. Montalbano, who overheard student J.’s requests to Respondent, took over the responsibility for student J. Respondent became frustrated while helping student J. with the computer after student J. got the wires to the headphones tangled. Respondent ripped the headphones out of the back of the computer leaving the male connection in the female end of the computer. In a private discussion with Mr. Montalbano, Respondent referred to student D. as being a “moron.” Respondent sent her 11 students to Mr. Montalbano’s side of the classroom, which housed ten computers. There was a disturbance because one student did not have a computer. Respondent came to Mr. Montalbano’s side of the classroom and told student D. to give up his computer. Student D.’s first language is Bulgarian. When student D. muttered in protest, Respondent yelled at him to express himself in English. When student D. left the computer, his place was quickly taken by another student. Student D. began to cry. Respondent walked back to her side of the classroom, leaving student D. crying in Mr. Montalbano’s side of the classroom. On October 11, 2011, student Mi., an 11 year-old female on the autism spectrum, was playing with a puzzle during free time when she spotted an open computer. Student Mi. left the puzzle pieces out to go to the computer. Respondent noted the puzzle on the table and yelled out, “Who left this puzzle out?” Student Mi. hid under a table in reaction to Respondent’s statement. Respondent came to the table, roughly grabbed student Mi., and pulled her out from under the table. Respondent led student Mi. to the table with the puzzle and yelled in front of the class: “I don’t know what your mother teaches you at home, but you’re a little, spoiled brat and I am not going to clean up after you.” Respondent then took student Mi.’s doll away from her and put her in time out for the remainder of the day, approximately 30 minutes. On another occasion, Respondent had the other members of the class imitate student Mi., after student Mi. had engaged in self-stimulatory behavior. The other students laughed at student Mi. In October 2011, Ms. Hudson discovered Respondent and student Mi. in Mr. Montalbano’s half of the classroom with the lights dimmed. Ms. Hudson thought student Mi. had been crying. Ms. Hudson reported the incident to her principal, but she did not question Respondent, nor did Respondent volunteer to Ms. Hudson an explanation of the circumstances that resulted in Respondent being in the darkened classroom with student Mi. At the formal hearing, Respondent explained that student Mi. had run into traffic while waiting to be transported from school. Respondent testified, credibly, that she was trying to calm down student Mi./6 Ms. Sorren testified, credibly, that during the short time she was in Respondent’s classroom (approximately three school days), she heard Respondent address the students as morons, monkeys, jungle monkeys, and animals. That testimony was consistent with the other testimony as to the language used by Respondent in her classroom. Petitioners established that Respondent repeatedly yelled at her students to “shut up,” described a student’s behavior as being “stupid,” and called at least one student a “brat.” Student Mo., a female on the autism spectrum, was new to Respondent’s class. On an unidentified date, Respondent directed student Mo. to go to timeout. After student Mo. refused to go to timeout, Respondent shoved student Mo. into the timeout area. During the 2010-2011 school year, Respondent became upset with student C., a female, and ordered her out of her classroom. When student C. talked back to Respondent, Respondent threw student C.’s backpack and her shoes over the chalkboard that divided the classroom. Ms. Knighton and her class were in the part of the classroom into which Respondent threw the objects. Student C. became very upset. Respondent became upset with Ma., a male student. Ma. had a snack on his desk. Respondent knocked the snack to the floor and smashed it with her foot. Petitioners established that Respondent engaged in a pattern of misconduct. Respondent’s effectiveness in the school system has been impaired.
Recommendation The following recommendations are based on the foregoing findings of fact and conclusions of law: As to Case No. 12-2859TTS, it is RECOMMENDED that the School Board of Broward County, Florida, enter a final order adopting the findings of fact and conclusions of law set forth in this Recommended Order. It is FURTHER RECOMMENDED that the final order uphold the suspension without pay of Rhea Cohen’s employment and terminate that employment. As to Case No. 13-0704PL, it is RECOMMENDED that the Education Practices Commission enter a final order adopting the findings of fact and conclusions of law set forth in this Recommended Order. It is FURTHER RECOMMENDED that the final order suspend Rhea Cohen’s educator’s certificate for a period of five years, to be followed by probation for three years with conditions to be set by the Education Practices Commission. DONE AND ENTERED this 12th day of July, 2013, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of July, 2013.
The Issue The issue presented for decision in this case is whether Petitioner, St. Petersburg Junior College, should dismiss Respondent from his employment and terminate his continuing contract.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made: Respondent is an instructor in computer programming and networking at the College. Respondent has been an instructor at the College since 1983. Since the 1986-87 academic year, Respondent has worked under a continuing contract of employment. A continuing contract is tantamount to a tenured position, entitling the instructor to maintain his position from year-to-year unless terminated by mutual consent, by the instructor’s resignation, or by the suspension or removal of the instructor for cause pursuant to the statutes and rules of the State Board of Education. Respondent has received at least above-average evaluations of his job performance both from the institution and from his students during his tenure at the College. Respondent has not been subject to disciplinary proceedings of any kind prior to or since the incidents giving rise to this proceeding. Kimberly Zemola, a married woman in her late twenties, was a student in Respondent’s classes during Session II and Session III of the 1994-95 academic year. In January 1995, while she was a student in Respondent’s class, Ms. Zemola wrote an anonymous note to Respondent suggesting that they commence a relationship and that Respondent should indicate his interest by wearing a certain sweater to class on a certain day. Respondent wore the sweater as suggested in the note. Respondent testified that his purpose in doing so was not to initiate a relationship, but to identify the author of the note, discover her problem, and direct her into obtaining assistance. Respondent and Ms. Zemola met. Their testimony was consistent in describing that they were both involved in troubled marriages, spent a great deal of time discussing their problems with each other, and, over a period of weeks, became close friends and confidants. During the period of January through May 1995, the relationship was not sexual, though there was some holding of hands and kissing during their meetings. During the summer session of 1995, while Ms. Zemola was a student in Respondent's class, Respondent and Ms. Zemola engaged in consensual sex. Both Respondent and Ms. Zemola testified that this occurred on only one occasion, in June 1995. Respondent and Ms. Zemola continued their relationship until December 1995, at which point Ms. Zemola ended it. Ms. Zemola testified that in January 1996, after she ended the relationship with Respondent, she was diagnosed as clinically depressed. She testified that she believed Respondent took advantage of her depressed condition in pursuing a relationship with her. Respondent testified that Ms. Zemola mentioned suicidal thoughts on one occasion in late 1995, and that she revealed to him that she had been addicted to drugs and was a victim of child abuse. Nonetheless, Respondent testified that he had no knowledge Ms. Zemola was fighting depression during the period of their relationship. In January 1996, John Zemola, the husband of Kimberly Zemola, phoned Myrtle Williams, Associate Provost of the Gibbs Campus, to complain that Respondent had an affair with his wife. Ms. Williams testified that Mr. Zemola was very agitated, so she invited him to her office to discuss the matter. Mr. Zemola met in person with Ms. Williams, and a little later in the day had a second meeting with both Ms. Williams and Charles Roberts, the Provost of the Gibbs Campus. Ms. Williams and Dr. Roberts testified that Mr. Zemola was very agitated and upset, expressing a great deal of anger toward Respondent. Mr. Zemola repeatedly demanded to know what the College was going to do about the situation. Shortly after his meeting with Mr. Zemola, Dr. Roberts called Respondent and asked him to come over to his office. Dr. Roberts testified that his main concern in calling Respondent was to warn him of Mr. Zemola’s angry and agitated state. Dr. Roberts also alerted campus security of the situation. At this meeting with Dr. Roberts, Respondent openly and voluntarily acknowledged his relationship with Ms. Zemola, including the romantic aspects thereof. The only discrepancy was that Respondent recalled the sexual encounter as having occurred after Ms. Zemola was a student in his class, whereas Ms. Zemola recalled that it occurred when she was a student in Respondent’s class. Ms. Williams and Dr. Roberts investigated the matter further, attempting to set up a meeting with Ms. Zemola herself. It took them roughly ten days to two weeks to set up this meeting, which finally occurred in Dr. Roberts’ office. Present at the meeting were Dr. Roberts, Ms. Williams, and the Zemolas. At this meeting, Ms. Zemola acknowledged the relationship with Respondent, and acknowledged that it was she who initiated it. Both of the Zemolas were adamant that Respondent should not be permitted to continue teaching at the College. \ 18. Mr. Zemola in particular seemed intent on seeing Respondent punished. Ms. Williams testified that Mr. Zemola telephoned her “all the time talking about what are we going to do about Mr. Brooks.” Mr. Zemola’s threatening demeanor led Ms. Williams to move Ms. Zemola’s classes to a different campus, so that Respondent and Ms. Zemola would not be in each other’s presence. Ms. Williams testified that this precaution was taken, not because of Respondent or Ms. Zemola, but because of John Zemola. No evidence was presented that Respondent ever attempted to contact Ms. Zemola after she ended the relationship. In January 1996, Ms. Williams began attempting to get Ms. Zemola to sign an affidavit stating the facts of the situation. Ms. Zemola initially declined to do so, her stated reason being that she feared Respondent’s influence in the local market could jeopardize her academic future. No evidence was presented that Respondent ever took any action to adversely affect Ms. Zemola’s academic standing or career, either within or outside of the College setting. In a memorandum to Respondent, dated February 8, 1996, Dr. Roberts recounted the details of the charges leveled by the Zemolas, as well as Respondent’s admissions regarding his relationship with Ms. Zemola. The memorandum recited portions of the College’s “Sexual Harassment Policy and Definitions” (the “Policy”). Under the Policy, “sexual harassment” is defined as: An employee’s or a student’s unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature, sexually related jokes, display of pornographic material in the workplace or an academic or student setting (An academic or student setting includes all settings on campus, off-campus clinical programs, off- campus courses, and off-campus college- sponsored events), when submission to such conduct is made explicitly or implicitly a term or condition of an individual’s employment or an individual’s treatment as a student; submission or rejection of such conduct by an individual is used as the basis for employment decisions or the treatment of a student affecting such individual; or such conduct has the purpose or effect of unreasonably interfering with an individual’s work or a student’s academic performance or creating a sexually intimidating, hostile or offensive working or academic environment. The definition quoted above does not apply to the conduct alleged against Respondent, though a later section of the Policy, labeled “Instructor-Student Relationships,” appears to broaden the definition, as indicated in the relevant portion quoted below: This rule applies to instructor-student relationships. In the instructor-student context, the term sexual harassment has a broader impact. The fundamental element of such behavior is the inappropriate personal attention, including romantic and sexual relationships with a student by an instructor or staff member who is in a position to determine a student’s grade or otherwise affects the student’s academic advancement. Because the instructor-student relationship is one of professional and client, the above inappropriate behavior is unacceptable in a college; it is a form of unprofessional behavior which seriously undermines the atmosphere of trust essential to the academic setting. Both President Kuttler and Dr. Roberts testified that, in their opinion, the language quoted in the preceding paragraph broadened the definition of “sexual harassment” as applied to the instructor-student relationship, such that any form of romantic or sexual relationship between an instructor and a student constitutes sexual harassment, at least when the instructor is in a position to determine the student’s grade or otherwise affect the student’s academic advancement. The Policy also forbids retaliation against any person who has filed a complaint or complained about sexual harassment. No evidence was presented indicating that Respondent took any retaliatory action against Ms. Zemola. The Policy states that discipline for violation of its provisions “will depend on the nature of the incident,” but that the range of such discipline is from admonishment to dismissal. The February 8, 1996, memorandum goes on to state that, because of the seriousness of the alleged violations and because a violation of the Policy could lead to a recommendation of suspension or dismissal, Dr. Roberts was scheduling a meeting on February 13 with Ms. Williams, Martha Adkins, who was the Assistant Director of Business Technologies, and Nevis Herrington, Vice President of Human Resources, for the purpose of permitting Respondent to tell his side of the story in full. Ms. Williams was the only witness who testified as to the February 13 meeting, but her recollection was unclear as to the details of this meeting as distinguished from others involving Dr. Roberts, Respondent, and her. She recalled generally that Respondent was made aware of the Policy and potential penalties for violation thereof. Some delay ensued in the disciplinary process, because Dr. Roberts and Ms. Williams were waiting for the affidavit from Ms. Zemola, which was not forthcoming as spring turned into summer of 1996. At length, Dr. Roberts issued a memorandum to Respondent, dated August 13, 1996, and titled “Reprimand.” In the memorandum of reprimand, Dr. Roberts found that the facts to which Respondent had already admitted, characterized by Dr. Roberts as “a romantic relationship, including sexual relations, following the time that the student was a student in your class,” were sufficient to warrant a written admonishment. The memorandum stated that there were certain mitigating factors that caused Dr. Roberts not to recommend suspension or dismissal: that the student’s initiating the contact led to the relationship; that, according to Respondent, no romantic relationship or sexual relationship occurred while Ms. Zemola was Respondent’s student; and that Ms. Zemola had thus far refused or failed to provide her version of the facts in writing. However, Dr. Roberts’ memorandum went on to state: On the other hand, if the student had confirmed in an Affidavit what she originally advised us took place, I do not believe that I would have any choice but to consider recommending dismissal since such conduct would be a gross and direct violation of the College’s Sexual Harassment Policy. Such conduct would not only be in violation of the College’s Sexual Harassment Rule and Procedure but it would be unprofessional, immoral and constitute misconduct in office. Should confirming or additional information come forward to support the verbal statements we were given by the student and her husband, further consideration of an additional discipline including up to dismissal will be necessary. (Emphasis added.) The August 13, 1996, memorandum placed dispositive emphasis on the timing of the romantic and/or sexual relationship between Respondent and Ms. Zemola. As of August 13, Dr. Roberts accepted Respondent’s version of the facts, i.e., that the romantic and sexual aspects of the relationship occurred after Ms. Zemola was a student in Respondent’s class. Dr. Roberts found that this version, while contrary to the spirit of the Policy, and constituting misconduct in office and immorality, merited only a written admonishment. Dr. Roberts testified that “the power relationship is there whether the student is a student in that individual’s class or not,” somewhat contradicting the distinction he drew in his memorandum regarding the timing of the affair and its impact on the proposed discipline. Dr. Roberts testified that the admonishment was based on his judgment that Respondent’s relationship with the student violated the Policy “in terms of creating a threatening or offensive or intimidating environment.” He testified that Ms. Zemola had clearly complained that she felt intimidated and reluctant to take classes. Dr. Roberts’ conclusion in this regard was based on Ms. Zemola’s subjective apprehensions. No evidence was produced, at any point in these proceedings, that Respondent engaged in any behavior that could have caused Ms. Zemola to feel “intimidated” or “reluctant to take classes.” Ms. Zemola testified that she heard students at other campuses discussing the incident, and that an instructor in one of her classes talked about the case in front of the class. She believed that Respondent was the source of these persons’ knowledge of the situation. Ms. Zemola offered nothing more than her suspicions in this regard, and Respondent resolutely and credibly denied having discussed the affair with students or fellow instructors. In fact, the weight of the credible evidence leads to the finding that John Zemola was the likely source of any campus gossip regarding the incident. On at least one occasion, Mr. Zemola disrupted a College class by writing accusations against Respondent on the blackboard. Dr. Roberts’ August 13 reprimand memorandum left open the possibility that further disciplinary measures might be taken, should Ms. Zemola come forward with a sworn affidavit confirming her version of the timing of the romantic and sexual aspects, i.e., that they occurred while she was a student in Respondent’s class. In a sworn affidavit dated October 24, 1996, Ms. Zemola attested that, while she was a student in Respondent’s classes during Session II, 1994-95, they had an affair which consisted of “a great amount of time talking, and some time kissing, hugging, and holding hands.” She attested that during Session III, 1994- 95, while she was still a student in Respondent’s class, Respondent told her that “if our affair did not go any further, then it had to end.” She attested that at this time she was constantly fighting suicidal thoughts, and believed that if she lost Respondent, the only person she could talk to, she might no longer be able to fight those thoughts. Therefore, during Session III, 1994-95, she engaged in a single sexual encounter with Respondent. By memorandum dated December 11, 1996, Dr. Roberts informed Respondent that the affidavit has been filed and offered Respondent an opportunity to meet with Dr. Roberts and two other officials “to respond to the allegations and share your side of the story.” There is no record evidence that this meeting ever took place. On May 8, 1997, the College filed the Petition. The essential allegation was framed as follows: The faculty member entertained romantic and sexual relations with a student while that student was in the faculty member’s class. This relationship continued after the student was no longer in the faculty member’s class for a period of several months while the student continued her course of education at the College. Such conduct therefore occurred during a time when the faculty member could influence and affect the student’s academic advancement. In addition to the allegations regarding Respondent’s romantic and/or sexual relationship with Ms. Zemola, the Petition alleged: The faculty member thereafter encouraged students of his to pressure the woman with whom he had had the romantic relationship to refrain from stating charges against him in order that it not jeopardize the faculty member’s career. Petitioner offered no evidence to support this allegation, and it is thus assumed that it has been dismissed. The remaining factual allegations contained in the Petition are for the most part conclusions alleged to arise from Respondent’s conduct: Said conduct seriously undermines the atmosphere of trust essential to the student/instructor relationship, and further is inconsistent with the standards of public conscience and good morals, and was sufficiently notorious so as to disgrace the faculty member’s profession and impair the faculty member’s service to the community and to students. The faculty member’s conduct had serious adverse consequences upon the student, the student’s relationship with her husband, as well as adverse impact on other students, faculty, staff, and upon members of the community, impairing his effectiveness. The effect of the faculty member’s aforesaid conduct was the creation of an intimidating, hostile and/or offensive educational environment for the student and others. No evidence was presented of any “adverse consequences” to other students, faculty, staff, or members of the community, caused by Respondent’s actions. None of the College administrators who testified could recall receiving any complaints regarding Respondent. Dr. Roberts recalled an inquiry from the campus newspaper, but testified that no article ever ran in that or any other newspaper regarding this situation. Ms. Zemola testified that she heard some gossip around the campus, though none of it mentioned the parties by name. Such talk naturally affected Ms. Zemola, but could not be said to have had any other adverse impact. Ms. Zemola’s relationship with her husband was plainly affected by this incident. However, testimony from both Respondent and Ms. Zemola indicated that neither of their marriages was happy at the outset of their relationship. In fact, their testimony indicated that mutual unhappiness in their marriages was one of the main reasons they were drawn together in the first place. No evidence was presented to demonstrate that Ms. Zemola’s grades or academic advancement were in any way compromised by her affair with Respondent. Ms. Zemola received grades of “A” in both classes she took from Respondent. Both Ms. Zemola and Respondent testified that these grades were earned by Ms. Zemola based entirely on her work in those classes. Respondent has continued to work as an instructor at the College since the affair and subsequent disciplinary proceedings. His work has been performed competently and completely without incident. The episodes of disruption and/or diminished effectiveness cited by the College’s administrators were in fact caused by John Zemola, not by Respondent. When asked for evidence that Respondent’s effectiveness as a teacher has been diminished as a result of the relationship, President Kuttler related an incident in which John Zemola disrupted a class to inform the students about Respondent’s situation, and another incident in which John Zemola harassed Respondent at his home, telling Respondent’s neighbors about the incident. President Kuttler concluded that Respondent’s effectiveness was diminished by the fact that it became known on the campus that there was a teacher/student sexual relationship. However, all the credible record evidence indicates no one involved in the incident or the subsequent disciplinary proceedings other than John Zemola ever publicly disclosed the relationship. Respondent cannot fairly be blamed for the actions of Mr. Zemola in publicizing the incident. Several of Respondent’s colleagues testified to attest to Respondent’s outstanding ability in the classroom. All opined, based on their experience as instructors at the College and their knowledge of Respondent’s character and abilities, that Respondent could continue to perform as an effective instructor at the College. No evidence was presented to demonstrate that Respondent’s actions created “an intimidating, hostile and/or offensive educational environment for the student and others.” Respondent acknowledged the impropriety of his actions, and the impact they have had on his personal life, but testified that it has had no impact on his professional life.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Board enter a final order finding that Respondent violated the “Instructor-Student Relationships” portion of the College’s Sexual Harassment Policy, and suspending Respondent from his position at the College for a period not to exceed one Session. DONE AND ENTERED this 24th day of April, 1998, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 24th day of April, 1998. COPIES FURNISHED: Maria N. Sorolis, Esquire Shannon Bream, Esquire Allen, Norton and Blue Hyde Park Plaza, Suite 350 324 South Hyde Park Avenue Tampa, Florida 33606 Mark Herdman, Esquire Herdman and Sakellarides 2595 Tampa Road, Suite J Tampa, Florida 34684 Charles L. Roberts, Provost St. Petersburg Junior College St. Petersburg/Gibbs Campus Office of the Provost St. Petersburg, Florida 33733 District Board of Trustees St. Petersburg Junior College Post Office Box 13489 St. Petersburg, Florida 33733 Carl M. Kuttler, Jr., President St. Petersburg Junior College Post Office Box 13489 St. Petersburg, Florida 33733
The Issue The ultimate issue to be resolved in this proceeding is whether the Petitioner should be awarded a doctor of education degree by Florida State University. Petitioner contends that he properly completed the requirements for the degree, that a valid offer of the degree was made to him, that he accepted the offer, and that the degree was then wrongfully withheld. The university contends that Petitioner did not meet the requirements for the degree and that no valid, enforceable offer of it was made to Petitioner.
Findings Of Fact In 1976, Petitioner was admitted into the doctoral program in biology at Florida State University. He applied to transfer to the science education program and was admitted to the doctoral program in science education within the College of Education at Florida State University on June 24, 1977. He was pursuing a doctor of philosophy (Ph.D.) degree. Among the requirements that Petitioner needed to meet in order to receive the degree were successful completion of a diagnostic examination, completion of thirty-six resident hours of course work, course work in the field of statistics, a preliminary examination, approval of a prospectus for a doctoral dissertation, and presentation of an acceptable dissertation and a successful dissertation defense. Following his admission into the Ph.D. program in science education, a supervisory committee was established for the Petitioner, and a major professor was appointed. It was the major professor's and supervisory committee's function to monitor Petitioner's progress and ultimately to make a recommendation as to whether petitioner should be awarded a degree. By November 7, 1980, Petitioner had completed all of the requirements for a Ph.D. degree except for the presentation of his dissertation and the dissertation defense. These were scheduled to be conducted by the supervisory committee on November 7, 1980. Petitioner had been advised by at least two members of the committee that he might not be ready to present and defend his dissertation. Petitioner felt that he was. On November 7, 1980, Petitioner met with his supervisory committee and presented and defended his dissertation. After his presentation, Petitioner left the room, and the committee evaluated the dissertation and defense. The committee unanimously concluded that the dissertation and defense were inadequate. The dissertation was not marginally inadequate. It was grossly below standards. The committee unanimously and appropriately concluded that the dissertation and defense were not acceptable, and that Petitioner had not met the requirements for a Ph.D. degree. Petitioner's major professor felt that the Petitioner had devoted considerable time, energy, and hard work to the degree program. He was concerned that the effort not be totally wasted. He requested that the committee consider accepting the dissertation as adequate for the award of a doctor of education (Ed.D.) degree or a "master's specialist" degree, and that the committee recommend that Petitioner be awarded one of those degrees or that he be allowed to continue working toward a Ph.D. degree. None of the members of the supervisory committee had had experience with the Ed.D. degree. They all considered it an inferior degree and felt that awarding it to Petitioner would constitute something of a "consolation prize." In fact, an Ed.D. degree from Florida State University is not intended to be an inferior degree. Its focus is somewhat different, but the requirements for obtaining the degree are basically the same. The committee was mistaken in considering the offer of such a degree to Petitioner. Indeed, the requirements for an Ed.D. degree being similar, and in some cases identical to those for the Ph.D. degree, Petitioner had not qualified for the award of an Ed.D. degree. After the committee adjourned its proceedings on November 7, Petitioner's major professor discussed the committee's actions with Petitioner. He told Petitioner that pending proper approval, Petitioner would have the options of continuing to work toward a Ph.D. degree, or receiving an Ed.D. or master's specialist degree. It appears that the major professor was overly sensitive about the Petitioner's feelings, and he may not have bluntly advised Petitioner that he failed his dissertation, presentation, and defense. Petitioner considered his options and told his major professor that if it was possible, he would be amenable to accepting an Ed.D. degree. The major professor contacted administrative officials and was advised that the award of an Ed.D. degree would be possible. The major professor advised the Petitioner of that and told him that pending approval from the department chairman who had charge of the science education program, Petitioner could receive the Ed.D. degree. The major professor also advised Petitioner that some revisions would need to be made in the dissertation and that the title page would need to be retyped in order to reflect that it was being submitted in support of an Ed.D. degree. Petitioner complied with the direction to retype the first page, but made only minor revisions in the dissertation. Members of the supervisory committee signed off on the dissertation as being acceptable in support of an Ed.D. degree. The matter was submitted to the department chairman. The department chairman read the dissertation and concluded that it was grossly inadequate. He determined that he would not authorize the award of an Ed.D. degree because Petitioner would need to be properly accepted into an Ed.D. program before he could be awarded such a degree, and additionally because he considered the dissertation inadequate to support an Ed.D. degree. This action was communicated to the supervisory committee. The committee met again and determined that since the Ed.D. degree could not be awarded, that Petitioner should be given failing grades for the dissertation, presentation, and defense. Prior to the department chairman's review of the dissertation, Petitioner had paid his fees and was anticipating being awarded an Ed.D. degree. Since it was not approved by the department chairman, the degree was not awarded. Thereafter, the Petitioner opted not to apply to have his work considered in support of an Ed.D. degree or master's specialist degree. He continued working toward a Ph.D. degree for approximately six months. Ultimately, he decided to drop out of the program, and he initiated this proceeding.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, hereby, RECOMMENDED: That a final order be entered by Florida State University denying Petitioner's application for award of an Ed.D. degree and dismissing the Petition for Administrative Hearing. RECOMMENDED this 24th day of January, 1983, in Tallahassee, Florida. G. STEVEN PFEIFFER Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of January, 1983. COPIES FURNISHED: John D. Carlson, Esquire Woods, Johnston & Carlson 1030 East Lafayette Street Suite 112 Tallahassee, Florida 32301 Patricia A. Draper, Esquire Charles S. Ruberg, Esquire Florida State University Suite 311, Hecht House Tallahassee, Florida 32306 Dr. Bernard F. Sliger President Florida State University 211 Westcott Tallahassee, Florida 32306
Findings Of Fact Petitioner is licensed as a psychologist in Argentina, where she was educated. She attended the University of Buenos Aires completing a six-year program in four years. Petitioner received a degree in psychology from the University of Buenos Aires on December 23, 1977, but did not receive her diploma from that institution until June of 1979. She became licensed as a psychologist by the Ministry of Health in 1979. Upon her graduation from the University of Buenos Aires, Petitioner began to practice psychology in Argentina. She worked in a hospital from 1979 to 1983. Petitioner describes this period of work as her "internship." She also worked in a drug abuse program, which she also describes as an "internship." During these work experiences, Petitioner supervised other personnel. During the same period of time, specifically from 1980 to 1982, Petitioner also engaged in private practice. In 1981 Petitioner enrolled in the Argentina School of Psychotherapy for Graduates, where she took a number of courses and wrote a paper which she presented to the faculty there. The Argentina School of Psychotherapy for Graduates is not a degree-granting institution. Upon completion of the four year program, only a certificate is issued. Petitioner did not produce a transcript from the Argentina School of Psychotherapy for Graduates as part of her application for licensure in Florida. She submitted only a syllabus, i.e., a listing of the names of the courses she took at that institution. A syllabus, however, is not a transcript. Subsequently, Petitioner moved to the state of Michigan where she applied for licensure as a psychologist at the master's degree level. Based upon her education and training, she received a limited license to practice psychology in 1989. Michigan recognizes master's degree level psychologists. In Florida, however, master's degree level applicants are not eligible for licensure as psychologists. In 1991 Petitioner was interviewed by the licensure board in Michigan. Subsequent to that interview, Michigan granted her full licensure to practice as a psychologist in that state. In granting Petitioner full licensure, the Michigan licensing board deemed that her education and training were equivalent to education and training at the doctorate level even though between 1989 and 1991, Petitioner had not added to her education credentials. She had merely obtained additional supervised experience. At some point, Petitioner took and passed the Michigan examination for licensure. The Michigan examination is not the same as the examination for licensure developed by Professional Examination Services. Petitioner has never taken the national examination required for licensure in Florida. In 1993, Petitioner applied for licensure as a psychologist in Florida. She maintains that Michigan's determination that her education and training are equivalent to a doctorate level education should be sufficient to qualify her for Florida licensure as well. She admits, however, that she does not have a Ph.D. She also admits that there is "a huge difference" between the training in Argentina and the training in the United States. As part of her application process and in order to demonstrate to Respondent her qualifications for licensure in Florida, Petitioner submitted her education and training credentials to two foreign education credentialing services. One of those services determined that Petitioner has the equivalent of a Bachelor of Science degree in psychology from an institution in the United States that has regional academic accreditation, plus completion of four years of advanced theoretical and clinical training. The other service found that Petitioner has the equivalent of a bachelor's degree in psychology. The second credentialing service was unable to evaluate Petitioner's studies at the Argentina School of Psychotherapy for Graduates because that institution is not recognized as a degree-granting institution of higher education. Neither of those evaluations could verify that Petitioner possesses the equivalent of a doctorate degree as a result of her training and education in Argentina. In 1992, the University of Buenos Aires created a Ph.D. program in psychology; however, that program did not exist at the time that Petitioner attended that institution. The Argentina School of Psychotherapy for Graduates is not a degree granting institution and does not offer a doctorate program in psychology. At the time that Petitioner chose to attend the University of Buenos Aires and the Argentina School of Psychotherapy for Graduates, it was possible to obtain a Ph.D. in psychology in Argentina, but Petitioner chose not to pursue that course of study. Based upon Petitioner's advanced education beyond her bachelor's degree, she has the educational equivalent of a master's level degree without the thesis generally required to obtain such a degree.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Petitioner's application for licensure as a psychologist either by endorsement or by examination. DONE and ENTERED this 7th day of June, 1996, at Tallahassee, Leon County, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of June, 1996. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 94-4675 Petitioner's proposed findings of fact numbered 1-3, 5, 7, 9, 11, 20- 22, 24, 28 and 46 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed findings of fact numbered 4 and 10 have been rejected as being irrelevant to the issues under consideration in this cause. Petitioner's proposed findings of fact numbered 6, 13-17, 19, 39, 41- 43, 47, and 50-54 have been rejected as not constituting findings of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony. Petitioner's proposed findings of fact numbered 8, 12, 18, 25-27, 34- 38, 40 and 49 have been rejected as not being supported by the weight of the competent evidence in this cause. Petitioner's proposed findings of fact numbered 23, 29-33, 44, 45, and 48 have been rejected as being subordinate to the issues herein. Respondent's proposed findings of fact numbered 1-10, 12 and 15 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 11, 13 and 14 have been rejected as not constituting findings of fact but rather as constituting argument of counsel. COPIES FURNISHED: Frank P. Rainer, Esquire 215 South Monroe Street, Suite 815 Tallahassee, Florida 32301 Virginia Daire, Esquire Department of Legal Affairs The Capitol PL-01 Tallahassee, Florida 32399-1050 Dr. Kay Howerton, Executive Director Agency for Health Care Administration Board of Psychology 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Respondent and the Alternative Learning Center Respondent In 1974, at 22 years of age, Respondent earned his Bachelor of Science degree in social studies from Florida Memorial College, an historically black college in Miami. In his freshman year, he was named the Outstanding Freshman from Southwest Florida attending historically black colleges. At various times during his last three years of college, Respondent worked in inner-city ministries in St. Louis and New Orleans. For about five years following graduation, Florida Memorial College employed Respondent, first as Associate Director of Admissions and then as Director of Alumni-Church Relations, assistant basketball coach, head baseball coach, and head volleyball coach. After moving from Miami to Lee County, Respondent worked for a short time outside of education. At the start of the 1986- 87 school year, Respondent returned to education by accepting employment with the Lee County School District (District) as a social studies teacher at Cypress Lake High School, where he remained for two years. While at Cypress Lake High School, Respondent also served as head girls' basketball coach, head girls' track coach, assistant volleyball coach, and assistant baseball coach. While employed by the District, Respondent helped with the fathers' program at LAMP, which is an educational program operated by the District at the New Directions Center. The LAMP program provides high-school instruction for teenage mothers. Respondent also headed the District's first mentor program, which finds mentors, without regard to race, to encourage minority students to excel in an academic setting, such as in gifted and honors courses. In 1988, Respondent earned his Master of Science degree in educational leadership from Nova University. Then-Superintendent Engle named Respondent to serve as principal-on-assignment for the 1988-89 school year to recruit minority teachers for the District. Respondent was the second minority person assigned to an administrative position in the District. At the time, a federal court had entered a desegregation order against the District. In the ten years prior to Respondent's new assignment, the District had hired about a dozen minority teachers. In one summer, Respondent recruited 30 minority teachers. After completing his assignment in minority teacher recruitment, Respondent returned to Cape Coral High School as Dean of Students. He served in this position for the 1989-90 school year. Following the 1989-90 school year, Respondent was appointed the Coordinator of Educational Equity and Reassignments, in which capacity Respondent served for five years. When he assumed the job, he received a $5000 raise to about $40,000 annually. A coordinator is the lowest level of management in the District office. Coordinators are subordinate to assistant directors or, if none, directors. Directors are subordinate to assistant and associate superintendents, who are subordinate to the Superintendent. The Superintendent is appointed by the Lee County School Board. As Coordinator of Educational Equity and Reassignments, Respondent monitored the district's desegregation efforts. Due to the nature of his responsibilities, Respondent, even though only a coordinator, had direct access to the Superintendent and School Board attorney. Working closely with then-Superintendent Adams, who became Respondent's mentor, Respondent helped redraw school- attendance zones to desegregate schools. Respondent also handled racially based complaints from staff, including teachers, and generally tried to assure that poorer schools received the same resources as those enjoyed by wealthier schools. Respondent became the focus of considerable controversy while Coordinator of Educational Equity and Reassignments. One day, his young daughter answered the phone at home and heard an unidentified caller threaten, "Your nigger father is a dead man." Shortly after the murder of Superintendent Adams, Petitioner, then serving as Interim Superintendent, informed Respondent that she was removing him from his coordinator position. She created a new position for Respondent as Director of Adult Education and Dropout Prevention. Respondent received a raise from $48,000 to $55,000 annually and assumed his new duties in November 1994. Petitioner disclosed that she made the change based on concerns for Respondent's safety and complaints that she had received from the School Board and parents related to Respondent's rezoning decisions. Three months after Petitioner created Respondent's new position, she eliminated it and suggested that Respondent apply for other administrative positions with the District. Respondent and Petitioner discussed an opening at the New Directions Center. The New Directions Center occupies a three-year old facility owned and operated by the Lee County School Board. The New Directions Center comprises three separate programs: the LAMP program, the Academy, and the Alternative Learning Center (ALC). The Academy, which includes the Employment Skills Program, provides alternative education by offering its students different types of teaching strategies than are typically available at conventional schools. Academy students are not behaviorally much different from students attending regular schools in the District. Prior to the 1995-96 school year, each program at the New Directions Center had an assistant principal, and a supervisory principal was in charge of the entire New Directions Center. When she mentioned the opening at the ALC, Petitioner informed Respondent that she intended to appoint a separate principal for each of the three programs starting the 1995-96 school year. In May 1995, Petitioner appointed Respondent to serve as the new ALC Principal, starting July 1. As ALC Principal, Respondent was also the head District administrator at the juvenile detention center, Price Halfway House, and Lee County boot camp. At the time of assuming his new responsibilities, Respondent had served nine years in the Lee County School system: two years in the classroom, one year in administration at a school, over five years in administration involving minority matters at the District office, and less than one year in Adult Education and Dropout Prevention. Respondent received no training in preparation for his new assignment as a school principal. As of February 19, 1996, Respondent's District personnel file contained nothing negative, aside from some isolated suggestions recorded on classroom observation sheets. This was the file that Respondent and his attorney examined after giving the District three days' notice of their intent to examine and copy Respondent's personnel file. Discussed below is Petitioner's contention that two missing items should have been included in the file. Respondent's evaluation for his first year of teaching notes: "Excellent start as a beginning teacher in Lee County." This 1987 evaluation states: "Outstanding teacher. Should be considered for advancement to administration as soon as possible." The 1988 evaluation reports: "Excellent year-- Promoted to dean of students, Cape Coral H.S." The first administrative evaluation of Respondent is in 1989 and covers his work in minority-teacher recruitment. The 1989 evaluation states that Respondent is "an asset to our team." The 1990 evaluation, which addresses Respondent's year as Dean of Students, reports: "Charles has demonstrated his concern for young people and has spent many hours above and beyond the call of duty working with and for kids." For the first year in which Respondent was responsible for desegregation efforts, the 1991 evaluation notes that Respondent has only partially achieved a goal--namely, learning desegregation issues. However, the 1991 evaluation, which was prepared by Dr. Mary Nell Gunter, states: "Charles Daily [sic] demonstrates talent and skill in dealing with people. He is eager to do a good job and I appreciate his professional outlook." A memorandum from Dr. Gunter commends Respondent for his "positive attitude" and work in specific programs. The memorandum suggests, though, that Respondent needs to develop his skills in "facilitative leadership," which he demonstrates in "many instances," but perhaps insufficiently when dealing with "principals and school-based people." Respondent's evaluation for the 1991-92 school year is missing from Respondent Exhibit 13, which is his District personnel file. The missing evaluation apparently was completed with no remarkable comments. Respondent's evaluation for the 1992-93 school year is noteworthy because it was prepared by Petitioner, who was not yet Superintendent. This 1993 evaluation finds that Respondent has fully achieved all of his goals, one of which is: To establish effective communication to the public that would assist in dealing with the increasing cultural, demographic and social change effecting [sic] our students and community. Petitioner's narrative comments on the 1993 evaluation are: Charles Dailey is an extremely valued and important member of the Division of Administrative Operations. He has demonstrated outstanding leadership during the Desegregation process. He is a role model for every administrator in his work ethic, committment [sic], teamwork and educational values. Petitioner found that Respondent reached an effective level of performance (the only satisfactory rating offered on the evaluation form) in all categories. Categories include judgment issues, including making good decisions based on law and policy, and sensitivity issues, including tact, effective dealing with people over emotional issues, exhibiting a positive professional attitude, and perceiving the needs and concerns of other persons. Petitioner concluded the 1993 evaluation as follows: Charles must work under stress everyday in his office due to our desegregation process. He has handled this in an outstanding manner. The evaluation for the 1993-94 school year should have been performed by Dr. James Browder, who is now principal of Cypress Lake High School. Dr. Adams was murdered on February 7, 1994. Another administrator was responsible for Respondent's evaluation until April or May of 1994. Given the understandable disruption resulting from the sudden death of Dr. Adams and the administration reorganization that followed, Respondent's evaluation for the 1993-94 school year was never prepared. However, Dr. Browder testified that he had perceived no problems with Respondent of sufficient seriousness to document in an evaluation. The evaluation for the 1994-95 school year should have been performed by Assistant Superintendent Dr. Mary Santini. She assumed that position in January 1995 and may have felt unable to evaluate Respondent by the time the evaluations are due in May. Respondent has been recognized repeatedly in the educational community. The past three years, Respondent was a finalist for the Ida S. Baker award, which is given to the outstanding minority educator in Florida. Respondent was named in 1995 the administrator of the year for the southeastern United States by the Southeast Desegregation Assistance Center. During this period, Respondent has been serving as a consultant and expert witness in the Rockford (IL) School District desegregation case. The ALC In general, the ALC is the District's last-chance school for students whose disciplinary problems have resulted in their removal from their geographical schools. ALC students are the most difficult to manage in the District. Nearly all ALC students are enrolled in the ALC as an alternative to expulsion from the Lee County School System. A few students are assigned to the ALC through the juvenile justice system. Almost all of the ALC students have had serious problems with criminal activity, seriously disruptive behavior in school, and school attendance. At any given time, roughly 10-20 students attending the ALC have been convicted of felonies. On a cumulative basis for the 1995-96 school year, excluding exceptional student education (ESE) students, 80 students enrolled in the ALC sometime during the 1995-96 school year were guilty of felonies, 91 were guilty of the possession of drugs or drug paraphernalia, 29 were guilty of armed burglary or grand theft, 36 were guilty of assault or battery against a teacher or administrator, 68 were guilty of fighting with other students, 38 were guilty of possession of weapons, and numerous others were guilty of other offenses ranging from "sexual misconduct" (7) to "peeing in a bottle" (1). (Some of these students were guilty of more than one offense, and some students entered the ALC more than once during the school year, so their offenses would be counted more than once in each category.) Prior to the 1995-96 school year, the Supervisory Principal of the New Directions Center was Jeananne Folaros. The ALC Assistant Principal was Richard Hagy. The LAMP Assistant Principal was Carolyn McCollum. And the Academy Assistant Principal was John Wortham. For the 1995-96 school year, Ms. McCollum and Mr. Wortham retained their prior positions except they became principals, and Mr. Hagy and Ms. Folaros were reassigned. Respondent and the ALC When Respondent arrived at the ALC, student behavior and academics were both in need of improvement. Perhaps the most dramatic indicator of the situation was that in the prior school year Mr. Hagy had twice required hospital treatment for injuries he had received from being struck by ALC students. The school was the scene of frequent fights with students wandering in the halls and often in possession of drugs, making it hard for motivated students to work. In an effort to reduce the number of suspensions, the ALC had retained some extremely disruptive students, who sometimes threatened even the teachers. Frightened by these students, some teachers had resorted to a policy of appeasement, allowing difficult students to sleep or play cards in the classroom with academic activity going on around them, or sending these students to a separate timeout room, where they slept and played cards without the distraction of academic activity going on around them. When Respondent was first appointed as ALC Principal, he spoke with middle- and high-school principals and learned of their concerns that the ALC was a "revolving-door" program. They said that the ALC disrupted regular academic programs at their schools and inadequately served the needs of the students assigned to the ALC. District principals and ALC teachers and students reported that the ALC offered a poor educational program where students could easily avoid academic challenge. One of Respondent's first moves was to select Beth Smith as the assistant principal for the ALC. Respondent recognized that their strengths and weaknesses were complementary. She was a curriculum specialist, and he was an effective disciplinarian. After hiring Ms. Smith, Respondent formed a curriculum team consisting of her, a guidance counselor, a school psychologist, and a peer-counseling teacher to address curriculum changes. Respondent reimplemented the 45 good-day policy. This policy meant that the ALC would not return a student to his geographical school until he had 45 days of punctual attendance, good behavior, and successful academics. Respondent developed and enforced a dress code, prohibited sleeping and card games in class, and required teachers to stiffen their academic requirements. Respondent's disciplinary plan eliminated the separate timeout room, where misbehaving students had enjoyed freedom from academics. Respondent instead introduced a multi-step intervention system where the teacher first warned the misbehaving student in the classroom, then warned the student in the hallway, then placed the student in timeout in the classroom, and then sent him to Respondent, who would warn the student, assign cafeteria duty, or suspend him, depending on the seriousness of the offense. In all senses of the word, Respondent was a "hands-on" principal. Sondra Saldana, an ALC guidance counselor, best described Respondent's style when she testified that he meets students where they are. Undoubtedly, Respondent models good behavior in numerous ways. But he does not stop there. With passionate intensity, Respondent readily reveals his love and expectations for each student and satisfaction or dissatisfaction with each student's behavior. Respondent is direct and frank, not oblique or diplomatic. He demands the respect of all of his students, and he earns the respect of nearly all of them because they see that he cares about them in a vital and effective way. Many of the ALC students probably would not have responded to Respondent's disciplinary innovations without clear evidence of Respondent's belief in their academic potential. More than anything else, Respondent wanted "to keep turning on lights for students," according to his favorite expression. Refusing to allow ALC students to think of themselves or be treated like academic or cultural outcasts, Respondent made the ALC more like a regular school, not so that he could have the experience of running a regular school, but so that the ALC students could have the experience of attending and succeeding at a regular school. In giving ALC students more positive opportunities than they had had in the past, Respondent introduced to the ALC student assemblies, a literary magazine, school plays, and other activities typical of regular schools. Respondent ordered the physical education teacher to make the ALC students play sports besides basketball, just like the physical education students were doing at the regular schools. (After hearing the concerns of the physical education teacher about placing bats in the hands of certain students, Respondent agreed to drop softball.) Respondent personally conducted entrance interviews, so he could explain the rules and purpose of the ALC to each new student and any parents or guardians accompanying him. Respondent made the exit process--merely an exercise in paperwork in prior years--an experience that would bring some closure to the ALC experience and prepare the student for a more successful reentry into his geographical school. There is no doubt that Respondent was markedly successful in improving the atmosphere at the ALC. Respondent's immediate supervisor, Herbert Wiseman, the District Director of Secondary Operations, twice during the fall of 1995 complimented Respondent on how well run the ALC was. The latter compliment took place on December 15, 1995, when Mr. Wiseman, with whom Respondent had a good relationship, told Respondent that he was running the ALC well. Mariner High School Principal Michael McNerney described in detail a visit he made to the ALC in November 1995. He was greeted quickly and professionally at the office, rather than allowed merely to walk into the school. Respondent took him to 8-10 classrooms where Respondent and students spoke freely. Respondent knew each of his students and which of them were from Mariner High School. He even knew when each student was due to return to his geographical high school. Jill Culligan, an ALC teacher who was disaffected with Respondent, noted the positive changes in writing on December 5, 1995: Under [Respondent's] system of discipline interventions and sensitivity to individual student needs, the students appear to be exhibiting the better behavior expected of them. Fights are no longer tolerated. More opportunities for assemblies are getting them ready for re-entry into the regular schools. But Respondent always balanced his academic innovations with disciplinary innovations, recognizing that behavior and academic achievement among ALC students are inextricably linked. Respondent personally led the effort to restore and maintain order at the ALC. It was a considerable, ongoing effort, made more difficult by the fact that the most troublesome students were no longer warehoused in the timeout room or banished from school by suspension. A key element of Respondent's relationship with the most difficult of these most difficult students is that he literally was not afraid to touch a student. Respondent was unafraid to place an arm around such students and hug them close to his body. The hug conveyed affection and physical constraint. While holding the child firmly, Respondent would then typically say that he had to calm down. In many instances, this approach was successful; in some instances--disproportionately represented in the next section--this approach was not. There were always clear limits to Respondent's disciplinary efforts. As noted below, he did not believe in striking students, and never did so except one time at the behest of a parent, who sought to avoid the more burdensome punishment of a suspension. Respondent scrupulously tried to get all significant information before taking any disciplinary action. Though a strong believer in discipline, Respondent was never inflexible. To the contrary, it appears he was always willing to fashion the most appropriate penalty under the circumstances--such as pushups or cafeteria duty--and was often willing to modify a penalty upon request of a parent or guardian or even the student himself. During Respondent's tenure, which ended with his suspension on January 11, 1996, there was a fight every three weeks among students. After his suspension, there was a fight everyday. During Respondent's tenure, the police were present at school every other week. After his suspension, the police were present every other day. Despite Respondent's success at the ALC, he encountered some resistance and engendered some resentment among staff. Clearly, disgruntled staff was the source of many of Respondent's problems, causing management problems at school and, more importantly, conveying misinformation to the District office. In general, at least two-thirds of the ALC staff supported Respondent even after he was suspended. Some staffmembers were neutral. Among staffmembers vocally opposed to Respondent, some were doubtlessly put off by Respondent's assertive personality. But there were other reasons for the vocal disaffection of some staffmembers, and some of these reasons have a material bearing on the credibility of these persons as witnesses and the weight accorded their testimony. In some cases, the source of staff disaffection may have been professional, such as when Respondent selected Ms. Smith over Jim Nassiff, an ALC teacher, for the position of assistant principal. Mr. Nassiff was unhappy with Respondent for choosing Ms. Smith over him. Most disaffected staffmembers had job-performance problems, which were exacerbated by the demands that Respondent placed upon them in terms of academics and discipline. Teachers in this category included Kenneth Vitale, Pamela Minton, Cheryl Gruenefeld, and Ms. Culligan. To varying degrees, teachers in this category manifested an unwillingness or inability to adapt to the changes implemented by Respondent. The sources of disaffection of Mr. Vitale and Ms. Culligan are described in connection with incidents involving them. However, two staffmembers were involved in a number of incidents. Lisa Krucher, a security guard, was notable for the extent of her dissatisfaction with Respondent and her inability to perform her job. She defied Respondent's efforts to ban smoking from the ALC building. She was unable to break up fights and lax in enforcing discipline. She eventually became the eyes and ears of Petitioner by daily reporting incidents to Mr. Wortham, who passed them on to Dr. Santini. Her job-related deficiencies were such that--despite her loyalty--Ms. Krucher was transferred to the Academy after Respondent's suspension. Ms. Smith offered a more balanced perspective on Respondent than did Ms. Krucher, and the source of Ms. Smith's disaffection with Respondent is more professional. Previously a guidance counselor in a middle school and dropout prevention program, Ms. Smith is an articulate exponent of the modern disciplinary theories of positive reinforcement and behavior modification. She deemphasizes more traditional, coercive methods of discipline, such as punishment for wrongs-- which of course awaits those ALC students who, having already failed to take their behavioral cues in the setting of the regular schools, continue misbehaving until they encounter the criminal justice system. Respondent does not advocate the more traditional, coercive disciplinary method of punishment for wrongs to the exclusion of more modern techniques of behavior modification. However, his more intense style of personal involvement with misbehaving students bore little resemblance to Ms. Smith's more restrained style. Ms. Smith was disturbed by her perception of how Respondent handled certain misbehaving ALC students. The record is less clear in revealing her methods of modifying the behavior of such students. In any event, her reactions to the misbehavior and Respondent's attempts to correct it were entirely sincere. She was frustrated to the point of tears at times, believing at times that students who continued to misbehave simply had not been exposed to sufficient positive reinforcement. The problem is that Ms. Smith lacked experience with the kinds of students who can be found at the ALC. She was still developing effective means of handling the most dangerous and disruptive of these students when Respondent was suspended. At that time, Ms. Smith still had nothing approaching Respondent's experience in dealing with young persons who, with little if any warning or provocation, explode into a violent frenzy, seriously injuring anyone in their immediate vicinity. Following Respondent's suspension, Petitioner appointed Ms. Smith as Acting ALC Principal. On February 20, 1996, Petitioner replaced Ms. Smith with Mr. Hagy as Acting ALC Principal. Respondent and Students Spring 1995 Visits to ALC: Paragraphs 33 and 35 At the urging of Petitioner, Respondent visited the ALC shortly after Petitioner named him the new principal. He visited the school three times in the spring of 1995 before assuming his duties there on July 1, 1995. On his first visit, Respondent met briefly with Mr. Hagy and discussed how the school operates. On this visit, Respondent saw students loitering in the halls and cursing loudly. Respondent saw the timeout room, where staff had hung plastic to cover the holes that students had punched in the walls. Respondent saw students were sleeping rather than studying. Respondent and Mr. Hagy came across a student who was walking out of the class during the school day very upset, using abusive language. Mr. Hagy asked him to stop, but he ignored Mr. Hagy and walked out. In another class, taught by James Nassiff, Respondent found the class watching an entertainment movie. Mr. Hagy escorted Respondent into several classrooms. These visits were brief. Respondent later made a second visit, without Mr. Hagy, to observe the classes in session. These visits were somewhat longer. In each classroom during the second visit, Respondent introduced himself as the new ALC principal. He warned the students that things would be changing. He promised that he would suspend any student who talked back to a teacher, swore, or fought. Respondent ordered the students not to call male teachers "man" and female teachers "woman"; teachers would be called "Mr." and "Mrs." Respondent told the students that he would not tolerate sleeping or card playing in class. In a lighter tone, Respondent added that the students should tell their friends and family that there was a new sheriff in town and the ALC was going to be about education. Respondent then flashed his badge. The badge is a small shiny badge that designates Respondent as an Honorary Deputy Sheriff for the term of Sheriff McDougal, who remains in office. Respondent understands that the badge confers on him no special power to arrest persons. He has never tried to arrest anyone using the badge, and he has never displayed the badge on the occasions that he has actually summoned law enforcement officers. In Ms. Gruenefeld's class, Respondent found students sleeping. He approached one student who had his head down on the desk and did not look up when Respondent entered the room. Respondent told him to look at Respondent when he was speaking, or Respondent would suspend the student. Ms. Gruenefeld tried to justify the student's behavior on the grounds that he was a good student and had been working very hard. She believed that the student, who was Hispanic, did not engage in eye contact for cultural reasons. Nothing in the record supports the assertion that Hispanics disfavor eye contact. Absent an undisclosed medical condition, the student should have been able to raise his head off the desk and make eye contact with the new principal, who had entered the classroom to introduce himself to the students. There is no indication that Respondent's first or second visits to the ALC destroyed any instructional momentum in the classrooms. Obviously, the students were off-task for the time that Respondent was in the classroom, in most cases due to Respondent's presence. However, the students did not remain off-task for long and soon returned to whatever they were doing before Respondent entered the classroom. At most, Respondent's comments about changes at the ALC might have caused some harmless confusion among those students who were about to be returned to their geographical schools. There is no evidence that students were intimidated by Respondent's announcement or his display of a badge. Some students laughed after Respondent's announcement. Some responded more seriously, wanting to know if he were really going to be the new principal. In general, the students listened thoughtfully to Respondent's statement. Respondent made a third visit to meet with the faculty at the request of an ALC guidance counselor, who had called Respondent and told him that the faculty wanted to meet him. In this meeting, Respondent repeated the ground rules that he had given the students a few days earlier. Respondent invited each teacher to prepare a wish list for the ALC and a list of any concerns that he or she may have. Ending a positive meeting, Respondent introduced the teachers to his favorite expression, "We need to turn lights on for kids." Following Respondent's visits, Ms. Folaros telephoned Respondent and asked him what had taken place. He explained that he wanted to meet the students at that time because summer school would start before he assumed the role of principal. Respondent added that he wanted the students whom he met to tell other students that he would not tolerate students sleeping and misbehaving, as they had been doing in the past. Other Incidents of Flashing the Badge: Paragraph 33 In September or October, 1995, M. P. enrolled at the ALC. M. P. is a 14 year-old ninth grader, who started the year at Lehigh High School. M. P. was sent to the ALC after he urinated in the middle of class into a glue bottle because his teacher had refused him permission to use the bathroom. M. P. was accompanied by his mother and sister on the day that he enrolled--a process that took about 20 minutes. During the entrance interview, Respondent informed M.P. of the rules of the school. They discussed the dress code, the prohibition of drugs on campus, and M. P.'s misbehavior at Lehigh High School. During the conversation, Respondent flashed his badge and warned M. P. not to do anything wrong. M. P. testified that he was scared at the sight of the badge. This testimony is discredited. It takes more than a badge to frighten M. P.. M. P.'s mother saw Respondent flash the badge, and she decided, based on this meeting, that Respondent would be a good role model for her son. Respondent flashed the badge on other occasions. One time, four middle-school girls assaulted another student in the cafeteria. They ignored Respondent when he tried to talk to them, so he flashed the badge and warned them that he could have them arrested. They took him more seriously and listened after that. Another time, Respondent displayed the badge to a boy who was misbehaving in Respondent's office. Again, Respondent warned that he could have the student arrested. Respondent displayed the badge several other times and warned misbehaving students that he could have them arrested. Some of the students took him seriously; others did not. The ability of Respondent to have students arrested did not depend on his possession of the badge, and ALC students understood that. Flashing the badge unlikely intimidated anyone. M. P.'s Other Incident: Paragraph 29 After the entrance interview, M. P.'s mother spoke privately with Respondent about M. P. She described him as emotionally troubled over her recent divorce. She warned that he was quick to anger and especially intolerant of females because he blamed the divorce on his mother. He also resented females because of a gender issue in the family and the teacher who had refused him permission to go to the bathroom at Lehigh High School was a female. While in April Pepin's class, M. P. walked out of the classroom without permission. Ms. Pepin sent him to Ms. Smith's office. Talking to Ms. Smith, M. P. denied that he had left the classroom without permission and gave Ms. Smith trouble. Ms. Smith determined that he had misbehaved in Ms. Pepin's class, decided to suspend M. P. for one day, and called M. P.'s mother. M. P.'s mother asked Ms. Smith to have Respondent reinforce the point with M. P. Ms. Smith preceded M. P. to Respondent's office and explained the situation to Respondent, stating that M. P.'s mother wanted Respondent to talk to her son and that Ms. Smith was having trouble dealing with him. Respondent summoned M.P. into the office, leaned over his desk toward M. P., and raised his voice in an authoritative manner. Respondent warned M. P. that he could not act up at Respondent's school and that, if Ms. Smith told him something, it was like Respondent telling him something. M. P. elected not to listen to Respondent either and tried to walk out of his office. When he turned to walk around the chair, Respondent stopped him by grabbing his arm. Respondent was worried that he might be going after Ms. Smith. Respondent was also intent on not allowing M. P. to disobey Ms. Smith and Respondent by coming and going as he pleased, especially after his mother had asked repeatedly for Respondent's help in dealing with her son. After grabbing M.P.'s arm, Respondent told him to go up against the wall for a search, and, when he did not do so, forced him up against the wall. When Respondent tried to pat down M. P. for weapons, M.P. lost his composure and began to fight with Respondent. M.P. brought his arms down hard on Respondent and struck him. Respondent wrestled M. P. down to the floor and shouted for someone to call the police. Arriving a few minutes later, the police officers had to bind M.P. by the ankles and drag him to the police car, where he tried to kick out the car window. M. P.'s mother then had M. P. admitted to Charter Glades Hospital, a psychiatric treatment facility. M. P. remained hospitalized for ten days and remained on homebound instruction for two months. Charter Glades treated M. P. for an anger disorder. M. P.'s mother blames Respondent for M. P.'s hospitalization. She is understandably worried about her son, but the evidence does not in any way suggest that Respondent initiated, and the greater weight of the evidence does not prove that Respondent exacerbated or unreasonably triggered, M. P.'s obvious behavior disorder, which had manifested itself before his assignment to the ALC. Ms. Smith felt that Respondent overreacted to the situation, but she was unaware of the details or extent of M.P.'s behavior disorder prior to the incident. Under the circumstances, Respondent was justified in reacting quickly to prevent M. P. from leaving the office and precluding the possibility that the student might strike Ms. Smith. Pushups: Paragraphs 20 and 21 Respondent sometimes gave the option of pushups to male students whose misbehavior otherwise warranted suspension. (For female and other male students, Respondent would sometimes offer cafeteria duty.) On at least two occasions, students chose to do the pushups. Respondent demanded 50 pushups and sometimes called out the count himself, starting fast and ending slow. If a student could not do 50 pushups, Respondent allowed him to do as many as he could; in no event would Respondent suspend him for failing to reach 50. On one occasion, three students were doing their pushups in Respondent's office when a faculty meeting was about to start. The teachers were supportive of the students, cheering them on. When finished, the students, taking the matter in good humor, thanked Respondent for not suspending them. There is absolutely no evidence that any of the students choosing to do pushups were humiliated, injured, or exposed to a risk of injury. Presumably, as alleged by Petitioner, their arms shook and, for the white boys, their faces reddened. These things happen with pushups. Spankings: Paragraphs 18 and 19 There were two student spankings during the fall of 1995. One of them took place in October 1995 and involved O. B., who is 13 years old. O. B. lied to Respondent about not being involved in a fight. Based on O. B.'s word, Respondent was about to suspend another boy. After discovering the truth, Respondent went down to O.B.'s classroom and found the class watching a movie. Respondent said, loud enough for the teacher, Mr. Vitale, and other students to hear, "Son, you've lied to me. You've lied to me." O. B. answered, "Man, I don't know what you're talking about." Respondent then grasped O. B. firmly by the back of the neck and walked him down to Respondent's office. In the office, Respondent suspended O. for five days, called O. B.'s father (his biological grandfather who had adopted O. B.), and told him that he needed to pick up his son. O. B.'s classmates already knew that O. B. had lied about the incident. O. B. was not embarrassed by the manner in which Respondent removed him from class, nor was he hurt by the grasp of Respondent. When O. B.'s father arrived, he said to Respondent that O. B. had just been suspended and had been out of school more than he had been in. The father asked Respondent if there were another alternative, like a spanking, and suggested that Respondent spank the child. Respondent said he did not like to spank students. The father asked if he could, in order to avoid another suspension. Respondent said that was acceptable to him, so the father took his belt and applied it to O. B.'s buttocks five or six times. O. B. cried a little, so Respondent suggested that the father take him home for the rest of the day, rather than return to the classroom after having cried. The father did that. Respondent, O. B., and O. B.'s father were the only persons present during the spanking. The blinds were drawn in Respondent's office during the spanking. The other spanking involved J. N., who is also 13 years old. One day, J. N. repeatedly misbehaved. His teacher, Mr. Nassiff, talked to him several times without effect. J. N. got angry at another student and was about to get into a fight. Another teacher told him to be quiet and he refused. School Resource Officer Fred Jackson and Ms. Krucher also intervened, but failed to calm J. N. J. N. demanded to talk to Respondent. After a brief discussion, Respondent said that he was going to have to suspend J. N. if he misbehaved again that day. Respondent allowed J. N. to return to his class. J. N. returned to class and immediately caused trouble by getting into an argument with another student. Mr. Nassiff sent him back to the office. Respondent called J. N.'s mother and said that he was being suspended. J. N.'s mother asked Respondent to spank her child instead. She explained that she could not afford to arrange for someone to care for J. N. while he was out of school. He had just finished a suspension two or three weeks earlier, and his mother lacked the funds to hire another babysitter. After expressing some reluctance, Respondent agreed to the spanking, but required J. N.'s mother to come to the office to serve as the witness. She did, and Respondent, behind closed blinds and a closed door, hit J. N. six times with a belt on the buttocks. The spanking did not hurt and J. N. did not cry out. Lee County School Board Policy 5.16 addresses corporal punishment as follows: Subject to the provisions of law, if a teacher or school administrator feels that corporal punishment is necessary, at least the following procedures shall be followed: Reasonable alternatives have been used and documented. Written permission has been obtained from the student's parent or guardian at the beginning of each school year, and a call to the parent or guardian for each specific incident involved prior to using corporal punishment. The use of corporal punishment shall be approved by the principal or designee before it is used. The use of corporal punishment shall be administered only in the presence of the principal, another administrator, or a teacher. The principal, other administrator, or teacher shall, in the presence of the student, be informed of the reason for the punishment before it is administered. A principal, or designee who has administered corporal punishment shall, upon request, provide the student's parent or guardian with written explanation of the reason for the punishment and the name of the administrator or teacher who was present. Policy 5.16 is inapplicable to the O. B. spanking because O. B.'s father, not an employee of the District, spanked the child. Policy 5.16 is inapplicable to the J. N. spanking because--consistent with his disciplinary philosophy--Respondent never determined that corporal punishment was necessary. Such a determination is the precondition stated in the flush language of Policy 5.16 for the remaining conditions to apply. Respondent had determined to suspend J. N. Policy 5.16 governs spankings initiated by District employees, not by parents. Respondent merely acceded to the mother's requests that he substitute for suspension the lesser punishment of a mild spanking and that Respondent perform the spanking for her, in her presence--in effect as her agent and not an agent of the School Board. Violation of Dress Code: Paragraph 31 In September 1995, Respondent noticed an unidentified female student exiting a school bus on her way to class at the ALC. She was wearing a top that exposed her midriff, in violation of the ALC dress code. In the presence of District Transportation Coordinator Janet Harris, Respondent told the girl, "Get your ass into my office and call your mother. We don't allow those kinds of tops." Petitioner did not call the improperly clad student as a witness. There was no sexual content to Respondent's ill- chosen word, voiced in the presence of a female employee of the School Board who was a stranger to Respondent. Ms. Harris was not so startled by the comment as to report it at the time to anyone. She first mentioned it the next month to Mr. Wortham. Absent additional proof of the circumstances surrounding Respondent's isolated remark, including the student's reaction, Petitioner has failed to prove that Respondent's momentary lapse disparaged and embarrassed the student. C. L. Incident: Paragraph 22 C. L. was a 200-pound female student at the ALC with a history of violent outbursts where she would leave school and not return home for a couple of days. C. L.'s mother asked Respondent, when he became principal, not to allow C. L. to continue to leave school whenever she wanted. Previously, if she were resolved to leave school, no one would try to stop her. One day at school in September or October 1995, C. L. was out of control, trying to leave the school. Gerald Gilmore, a security guard, was trying to stop her when Respondent approached. Respondent took one of C. L.'s arms, and she suddenly dropped on him. Respondent and Mr. Gilmore each took an arm and walked her to the office, talking to her the whole way in an attempt to calm her. Respondent summoned Officer Jackson to help calm C. L. In the office, Respondent and Mr. Gilmore placed C. L. in a chair. Each time she popped out of the chair, they returned her to the chair. Eventually, C. L. calmed down, and they let her return to class. D. C. Incident: Paragraph 26 One morning in October 1995, Respondent saw D.C. smoking marijuana off-campus before school. When D. C. entered the school, Respondent asked him to come down to the office. D. C. was belligerent. Respondent placed his right arm around the back of the D. C., who was about Respondent's height, and grabbed his right arm, while holding his left arm close to the boy's side. Respondent then walked D.C. down the hall, side-by-side, to the office. Respondent frequently used this hold on students who were noncompliant. It does not hurt the student, but gives Respondent control over the student's movements. In particular, Respondent can sense immediately if a student is going for a weapon. Respondent's use of this hold and his readiness to search students (which is also part of his effort to keep drugs off campus) are prompted by Respondent's justified concerns for the safety of students and staff. The ALC has no metal detector and weapons are a constant worry. In the fall of 1995, Respondent found one student at school carrying a .25 caliber pistol with 18 rounds of ammunition in it. Once in the office, D. C. voluntarily leaned against the wall in Respondent's office so Respondent could search him with an electronic beeper. Respondent did not find any marijuana, but found a tobacco cigarette with half of the tobacco removed from the cigarette. Students smoking marijuana often removed part of the tobacco from a tobacco cigarette and replaced it with marijuana to avoid detection. Respondent suspended D. C. from school and contacted D.C.'s probation officer. D. C. subsequently violated the conditions of his probation and is now missing. ESE Student and Housing Project: Paragraph 32 In November 1995, Respondent spoke to an unidentified female student who was repeatedly being suspended for disciplinary reasons. The student lived in a public housing project. Respondent warned the student that, if she continued to get suspended, stay home, and cause trouble around the project during school hours, she and her mother could be evicted from the project. The student calmed down and behaved appropriately after that. Respondent was a commissioner of public housing for the City of Fort Myers at the time. He understood the rules of the housing projects, which permit the eviction of tenants whose unsupervised school-age children cause trouble in a project during school hours. Slightly Built Child: Paragraph 25 Petitioner presented no significant evidence on this allegation. It probably refers to another incident, such as the S. P. incident discussed below. M. B. Incident: Paragraph 28 In November 1995, M. B. was involved in a fight in the classroom. Respondent gave him the option of a suspension or working in the cafeteria, where he would clean up trays and take out the trash. He chose cafeteria duty. Shortly after arriving in the cafeteria, M. B. so infuriated the cafeteria manager that he called Respondent and told him that M. B. was the most arrogant boy he had ever seen, and he did not want the student back in the cafeteria again. Respondent left his office to retrieve M. B. and found him walking toward the office. Respondent said, "Son, come here." M. B. approached Respondent, who asked him what was his problem. M. B. said that he refused to empty any "God damned" trash. Respondent placed his arm around M. B.'s back and escorted him to the office. M. B. wanted to go straight home, and Respondent would not allow him. Respondent asked him to lean against the wall so Respondent could check him for weapons and drugs. M. B. did so. Respondent then called M. B.'s grandmother and warned her that, if M. B. continued to fight, he could be expelled for two years. She asked him not to suspend him. Respondent agreed not to suspend him, and M.B. completed the school day without further incident. L. S. P. Incident: Paragraph 23 S. P. is a 12 year-old male. He is about five feet one inch tall and is slightly built. He fights constantly. S.P. was sent to the ALC last year for fighting and insubordination. He was transferred from the ALC to his geographical school last Christmas, but, by the time of the final hearing in the present case four months later, he was back at the ALC. On the day of his testimony, S. P. had a black eye from fighting. On his first day at the ALC, S. P. got into a fight. He had not even reached his classroom when he started fighting with another student while still in the office. Respondent saw the fight and put his arm around the child's back, grasped the student's right arm, and hugged the boy close to Respondent. Respondent tried to calm him, warning that he did not want to have to suspend S. P. before he was even enrolled. S. P. tried to escape Respondent's grasp, but Respondent would not release him until S. P. said that Respondent was choking him. Respondent released him then, even though he was not choking the student. When S. P. remained noncompliant, Respondent grasped him again in the same manner as before. Respondent warned S. P., as he hugged him close to Respondent, "Son, you can't continue to fight. You're going to force me to suspend you." However, S. P. swore at Respondent, who replied that S. P. was suspended for the day. After telling S. P. that he was suspended, Respondent walked S. P. to the bench outside Respondent's office and sat him down. S. P. was upset and, after Respondent walked away, began crying. M. T. R. Incident: Paragraph 27 J. B. is an 18 year-old female who attended the ALC in the fall of 1995. From the third day of her attendance at the ALC through the remainder of the fall term, she was sexually harassed and physically threatened by T. R., who is another student at the ALC. On three occasions, J. B. complained of the harassment and threats, including actual touching, to Ms. Krucher, who did nothing about J. B.'s complaints. The first two complaints were early in the fall term and the last complaint was in January 1996. The day after her last complaint to Ms. Krucher had resulted in no action, J. B. complained directly to Respondent. After interviewing J. B., Respondent sent her back to class and summoned T. R. from his class. Terry Smith, a security guard, escorted T. R. to the office. Respondent told T. R. that he should not talk to or look at J. B. If he saw her walking down the hall, he should go in a different direction. Above all, T. R. was not to touch her anymore. T. R. denied any knowledge of who J. B. was. Respondent sent for J. B., who came to Respondent's office and stood in the doorway. When T. R. was told this is who was complaining about him, he jumped up, screaming to J. B., "What the hell are you doing telling people I did this?" He then lunged toward a visibly frightened J. B. Ms. Krucher pushed J. B. safely out of the doorway and escorted her back to the classroom. Respondent got to T. R. before he got to J. B. and pinned him against the wall. T. R. struggled, hitting Respondent while he tried to control T. R.'s arms. Mr. Smith assisted Respondent, who had T. R.'s upper body, by grabbing T. R.'s legs, and the two men wrestled T. R. to the floor. Ms. Krucher returned, and Respondent told her to call the school resource officer, so T. R. could be removed from the campus. In the meantime, Respondent and Mr. Smith tried to calm T. R. by talking quietly to him. Before the school resource officer arrived, T. R. calmed down and pleaded with Respondent not to send him to jail. T. R.'s girlfriend was pregnant, and he had criminal sex abuse charges pending. Respondent agreed to suspend T. R. for the rest of the day and not have him arrested. Respondent and Teachers Culligan Incident: Paragraph 41 At a faculty meeting early in the 1995-96 school year, Ms. Culligan addressed Respondent's decision to eliminate the timeout room. Ms. Culligan endorsed the previous policy where a teacher sent a student to the timeout room for a short period the first time, a longer period the second time, and the remainder of the day the third time on the same day. She said that she typically would not have to send a student back a second or third time. Respondent answered that that was not what the records showed. He implied that teachers had routinely sent students to the timeout room for long periods of time. He did not state that Ms. Culligan had resorted to the timeout room more than did the rest of the teachers, although she likely had. Respondent had considerable difficulty with Ms. Culligan. At the start of the 1995-96 school year, Ms. Culligan sent more students to the office for minor offenses than did other teachers. By memorandum dated September 21, 1995, Respondent directed Ms. Culligan to follow the interventions that "have been explained to you countless times." The memorandum reviews the intervention plan in detail and concludes: Failure to follow this directive violates the rights of the student in the academic setting when it has been clearly stated in writing, that this school will follow that particular policy. This is the third occasion that I've had the opportunity to address this particular policy with you and am therefore directing you to follow this policy to the letter. If I can be of assistance, please feel free to contact me. After receiving this memorandum and the assistance of Ms. Smith in improving her cultural sensitivity, Ms. Culligan reduced her office referrals to an acceptable level. But her claims of humiliation and embarrassment over Respondent's informative reply at the faculty meeting, as well as her testimony concerning other incidents, are largely the product of the early difficulties that Ms. Culligan experienced with Respondent's new, more demanding discipline plan. Nassiff Incident: Paragraph 41 During another faculty meeting, Respondent was discussing an assembly that was to take place in the next day or two. The assembly, which featured drug-detecting dogs from the Port Authority, would be attended by ALC students. This was to be the first assembly ever for ALC students. Respondent was discussing the logistical aspects of moving the students into and out of the assembly and explaining how the assembly was part of the academic rehabilitation of ALC students. Suddenly, Mr. Nassiff raised his hand and asked who would be responsible for watching his students. They were in physical education at the time of the assembly, and Mr. Nassiff thought that the physical-education teacher should continue to watch Mr. Nassiff's students during what was Mr. Nassiff's planning period. Respondent had told the teachers that they could leave school early that day to make up for their lost planning time. Upon hearing Mr. Nassiff's question, some teachers groaned audibly. Respondent replied by asking Mr. Nassiff, "You're an administrator-in-training. How would you respond to that question?" Mr. Nassiff answered Respondent's question by saying, "I'd give me my planning period." Respondent replied, "That's not an appropriate answer. If you want to be an administrator, you wouldn't ask a question like this. Let me see you after the meeting." After the meeting, Respondent explained to Mr. Nassiff the importance of teamwork. Mr. Nassiff conceded that he had said the wrong thing and knew it the moment he had said it. Respondent first gave Mr. Nassiff an opportunity to extricate himself gracefully from the awkward situation created by his question. When Mr. Nassiff persisted, Respondent answered him, directly but not in a hostile tone. Most teachers found nothing inappropriate in Respondent's handling of this situation. Mr. Nassiff and the few teachers who felt otherwise evidently preferred that Respondent handle privately an issue that Mr. Nassiff raised publicly. But Mr. Nassiff invited a public response, and Respondent's handling of the matter was entirely suitable. Announcement Incident: Paragraph 39 One day early in the 1995-96 school year, the students misbehaved badly. The next morning, during the morning announcements, Respondent stated that he expected students to act appropriately in an academic setting. He noted that too many students were coming down to his office and that they needed to do what teachers tell them to do. Respondent added words to the effect that teachers would continue to follow the intervention plan. The effect of such an announcement, nominally addressed to the teachers, was to notify the students that their teachers had no choice but to follow the intervention plan and, if the students objected to the plan, their problem was with Respondent, not with individual teachers. By this comment, Respondent was trying to take some of the pressure off the teachers for enforcing the new intervention plan, which, as noted above, imposed greater burdens on teachers than the previous policy with its excessive reliance on the timeout room and suspension. The meaning of Respondent's announcement does not lend itself to contrary interpretations. Two of the three witnesses who testified that the announcement demeaned the teachers testified about a number of incidents. The testimony of these witnesses--Ms. Culligan and Ms. Minton--must be doubted based in part on the fact that their claimed reaction to Respondent's announcement appears disingenuous. Holzborne Incidents: Paragraphs 36 and 37 Kathleen Holzborne is the lead communications teacher at the Academy. One school day, Ms. Holzborne saw Respondent opening classroom doors in the Academy looking for someone. This was innocuous. Respondent was likely looking for someone or checking on nearby classrooms after a disturbance. Another school day, Ms. Holzborne saw Respondent admitting drug dogs and their handlers into Academy classrooms while Mr. Wortham was elsewhere in the building. Respondent was doing this under the authority of Mr. Wiseman, who was also in the building. Another school day, Respondent and Ms. Holzborne were in the cafeteria while the Academy students were eating lunch. Respondent said she did not need to stay, adding, "Daughter, everything will be fine here." Respondent is from a family of ministers. He sometimes speaks of persons as sons and daughters, meaning they are sons and daughters of God. He used "daughter" in speaking to Ms. Holzborne in a personal, nonsexual manner not intended to intimidate or offend. Had she objected, he would have apologized and explained his innocent use of the word. However, Ms. Holzborne did not complain to Respondent or anyone else until, months later, she mentioned the comment during Petitioner's investigation. Testifying, Ms. Holzborne seemed much more upset over Respondent's alleged failure to return promptly a piece of a tripod, but Petitioner has not charged Respondent with this omission. Intimidation Incident(s): Paragraph 38 Respondent did not intimidate his teachers or staff. To the contrary, he was supportive of teachers and staff, although he demanded that they work hard and smart. At the time of Respondent's suspension, faculty morale was good. A small number of teachers were dissatisfied with Respondent, but not many. The greater part of the faculty got along with each other and Respondent. A reliable portrayal of Respondent's supportiveness comes from Lisa McKeever, an ALC teacher who displayed an unusual degree of independence for a witness in this controversial case. She testified to tell the truth, unaffected by any fear of retribution from Petitioner or Dr. Santini or from the community of supporters of Respondent. Answering a question about whether she supported the Charles Dailey Foundation, which was organized to help pay Respondent's legal fees, she testified that, if she had money to give away, she would first give it to her children and then to literary or musical organizations before she would give it to the Dailey Foundation or any political organization. On two occasions, students threatened Ms. McKeever while she was seven months pregnant. In one case, a boy pushed her up against a chalkboard. Respondent asked Ms. McKeever what she wanted him to do about it. Ms. McKeever did not want him suspended, so Respondent dealt with him, but did not suspend him. In another case, a girl approached her with a clenched fist, threatening Ms. McKeever by saying, "You stupid flat-assed white bitch. Get out of my fucking face." Ms. McKeever was frightened by this assault, and Respondent expelled the student, who that night was arrested after attacking family members with a knife. Respondent and Administrators, Law Enforcement Officers, Guardians, and School Board Policies A. Overenrollment: Paragraph 51 The overenrollment issue arose at the start of Respondent's tenure as ALC Principal. Dr. Santini arranged a meeting on June 20, 1995, among the three new principals at the New Directions Center. The purpose of the meeting was to divide responsibilities among the principals. Ominously, Dr. Santini testified that she had had lots of experience with Respondent not cooperating. It is not entirely clear what specific ALC enrollment policies were advocated by Dr. Santini and Respondent at the June 20 meeting, or even that either of them advocated a specific policy. Dr. Santini stated that the ALC was a short-term program. Respondent wanted the same flexibility that the ALC administrators had had in the past in deciding when to return students to their geographical schools. The ALC enrollment policy from the preceding school year had been the 45 good-day policy described above. In general, Dr. Santini wanted to limit enrollments due to safety considerations. Overcrowding at the ALC became a bigger problem once the new school year got underway due to the introduction of more students from regular schools, as a result of a new zero-tolerance policy in the regular schools, and increased referrals from the juvenile detention center. Respondent's argument for greater enrollment flexibility was based on behavioral and academic factors. Behaviorally, an ALC student might need more than 45 days before he is ready to return to his geographical school. Academically, an ALC student might have difficulty returning to his geographical school due to the differences in the calendars at the ALC and regular schools. The high schools are on a seven-period daily schedule, and the ALC is on an 18- day modular schedule where one class is taught for 18 days. A behaving, attending ALC student could only take two and one-half classes in 45 school days, so that, when returned to his geographical school, he would be behind his classmates in most of his classes. After the meeting, Dr. Santini spoke with Respondent privately and told him that his behavior during the meeting had bordered on the insubordinate. Respondent countered that Dr. Santini was discriminating against him on the basis of race. Respondent's continued implementation of the 45 good- day policy at the start of the 1995-96 school year did not violate any directive that Dr. Santini had given him. Their disagreement during the June 20 meeting was probably limited to a disagreement over general philosophy. Most likely, Dr. Santini had decided to see the effect on ALC enrollment levels of Respondent's implementation of the 45 good-day policy. On October 20, 1995, Dr. Santini conducted another meeting concerning ALC enrollments. This time she met with Respondent and Mr. Wiseman. She called the meeting after receiving a telephone call that a student had remained at the ALC since April 1995. She was also concerned with current ALC enrollment levels under Respondent's approach. During this meeting, Dr. Santini told Respondent that the ALC building was designed for a maximum of 270 students. She told him to cap enrollment at 250 students. Dr. Santini testified that she told Respondent that she approved of the 45 good-day policy. She also testified that Respondent was angry at the meeting. If Dr. Santini approved the 45 good-day policy at the October 20 meeting, the only reason why Respondent would have angered at the meeting would have been a disagreement over the application of the policy; after all, Respondent wanted the 45 good-day policy. Perhaps, Dr. Santini believed that she was approving the 45 good-day policy, but in fact she was not, as evidenced by their closing comments and her October 25 memorandum, described below. At the end of the October 20 meeting, Dr. Santini promised written guidelines and asked Respondent if he wanted any input. Dr. Santini testified that Respondent said that the only thing that he disagreed with was, if a student must be returned to his geographical school at the end of 45 days, ready or not, that those schools would be prepared to help him in the transition. Mr. Wiseman promised to adopt or modify the PASS program to help with this transition. The significance of Respondent's comment, as recounted by Dr. Santini, is as additional proof that Dr. Santini had not approved the continuation of the 45 good-day policy and Respondent was resigned to following her new enrollment policy. The comment tends to prove the elimination of the 45 good-day policy because, if the ALC were permitted to retain students until they were ready to return to their geographical school, there would be little need for the geographical school to help with the transition. The comment proves the obedience of Respondent because he had disagreed was more than the issue of the preparedness of the geographical school to help the former ALC student. Respondent had tried and failed to win Dr. Santini's approval for the 45 good-day policy, so that the ALC students returning to their geographical schools would not need any special assistance from the geographical schools in the transition. But this comment proves that he was giving up on the 45 good-day policy. Dr. Santini sent a memorandum dated October 25, 1996, to Respondent with copies to Petitioner, Mr. Wiseman, and all principals in the District. The memorandum largely memorialized what Dr. Santini had said at the meeting five days earlier. Dr. Santini testified that the only change between the October 25 memorandum and what she had said at the October 20 meeting was that she had eliminated the 45 good-day policy. She explained that she did not want Respondent to be the sole person to decide what good days were. However, the omission of the 45 good-day provision from the memorandum is strong proof that Dr. Santini never approved the 45 good-day policy at the October 20 meeting. There were less drastic means of eliminating Respondent's discretion in applying the 45 good-day policy, without eliminating the policy itself. Dr. Santini could have reserved such authority for these decisions to Mr. Wiseman, herself, the principal of the geographical school, or some combination of the above. The October 25 memorandum states in its entirety: The following plan is to be implemented immedi- ately as a result of our meeting on Friday, October 20, 1995. High school, middle school and ESE students will be returned to their home schools at the end of a quarter after approximately 45 days at the Alternative Learning Center (ALC). In most cases, those students entering the ALC during the first three weeks of a quarter would be eligible for return at the end of that quarter. Those students entering after the first three weeks of a quarter would remain at the ALC until the end of the following quarter. In rare cases a student may be returned to a different high school when recommended by the home school principal and agreed to by the receiving principal. All high school principals have agreed to alter their PASS program to accommodate an orderly reentry of students into the high schools. The ALC will not exceed 250 students. When full capacity is reached the student who has made the most progress will be returned to his/her home school when a new student arrives at the ALC. The above procedures would not prohibit a principal from requesting an earlier return or an extended stay at the ALC. The ALC will continue to function in its capacity as a special center serving the high schools, middle schools and special schools with an ongoing influx and reflux of students. It is understood that the school principals and the ALC principal will main- tain open and direct communication in a spirit of cooperation to best help students. Ultimately, the length of a student's stay at the ALC is dependent upon the nature of the original offense and the sound judgment of the principals involved. There are two possible interpretations of the October 25 memorandum. Either it is a consistent expression of an inflexible enrollment cap with the final sentence as a general surplusage to other, more detailed provisions to the contrary. Or, if the last sentence is to be given real effect, the memorandum is contradictory and meaningless. Paragraph 1 of the October 25 memorandum states clearly that the duration of a student's enrollment at the ALC is 45 days. As mentioned above, there is no requirement that these be good days. The word "approximately" does not restore any discretion to the ALC principal or anyone else; rather, like Paragraph 2, the word "approximately" allows for some minor flexibility in shortening or lengthening the 45-day enrollment based on the end of the academic quarter. More importantly, Paragraph 5 of the October 25 memorandum unconditionally limits the enrollment of the ALC to 250 students and supplies a simple procedure for the release of students when the enrollment exceeds 250 students. The student making the most progress when enrollment exceeds 250 students is returned to his geographical school. The returned student is not necessarily prepared for the transfer; he is only the most prepared among the ALC students. Paragraph 6 grants some discretion to the principal of the geographical school, not the ALC, to shorten or extend the stay of a student at the ALC. But the provision gives no guidance as to when stays should be lengthened. Nothing in this provision conflicts with the preceding provisions of the October 25 memorandum. The last sentence of the flush language at the end of the October 25 memorandum seems to ignore the preceding, more- detailed provisions of the memorandum. The last sentence abruptly introduces some discretion to the ALC and geographical school principals as to the length of a student's stay at the ALC. Respondent could not afford to read his supervisor's memorandum as contradictory and meaningless. His reading of the memorandum was guided by what Dr. Santini had told him at the October 20 meeting, which was that the 45 good- day policy was no longer in effect. When enrollment reached 250 students, Respondent had to return the students who had made the most progress. As promised, Mr. Wiseman sent a memorandum dated November 1, 1995, to the eight high school principals stating: Please send to me immediately, above your signature, a statement that you will provide the opportunity for returning students from the ALC to make up their work, and not be denied the chance to pass their classes. Return your memo to me by Wednesday, November 8, 1995. The principals did so. Shortly after receiving the October 25 memorandum, in compliance with her directive, Respondent returned 75-80 students to their geographical schools. Included in this number was A.B., whom Respondent returned to Mariner High School. Respondent had serious reservations as to A. B.'s readiness to return to a less-structured school setting. Even the student shared these misgivings. When he learned he was to be returned to Mariner High School, A. B. told Respondent that he was worried that he was not ready to return to a regular school. He had been apprehended with drugs or drug paraphernalia twice previously and was undergoing counseling. Three weeks after he was returned to Mariner High School, A. B. was apprehended with marijuana. On December 13, 1995, a Board-appointed hearing officer conducted A. B.'s formal expulsion hearing. Witnesses at the hearing, including Respondent, were sworn to tell the truth and subject to cross examination. Petitioner was represented by counsel, and A.B. was represented by his father, who has been a law enforcement officer for 21 years and is currently employed with the Cape Coral Police Department. Petitioner charged that A. B. had been in possession of marijuana and drug paraphernalia on November 28, 1995, and was a repeat offender. Petitioner sought to expel A. B. for the remainder of the 1995-96 school year and the following year-- evidently, the maximum penalty allowed by law. A. B. had attended the ALC on at least two occasions. His more recent ALC enrollment was from April 17, 1995, through November 6, 1995. In his opening statement at the expulsion hearing, A.B.'s father admitted that A. B. had been caught possessing marijuana and stated: But the point of the issue too is that he was sent back to Mariner. He was in the ALC. He was flourishing in ALC for the first time. Whatever Mr. Dailey sparked in him was the first time since he's ever been in school. He was bringing books home and everything else, which is not heard of from ALC. When he was alerted to come back to Mariner, he went to Mr. Dailey and told him he wasn't mentally or physically ready to go back. Because the other problem that if he's offered a joint, he can't say no. And Mr. Dailey agreed and that's when that fell apart less than four weeks later. The hearing officer asked A. B.'s father if he wanted A. B. to return to the ALC. The father responded by saying, "Yes, sir. I never wanted him to leave. . . . And the result of this too which I wish people would take into consideration, the night that this happened, because of this, my wife tried to commit suicide." A. B.'s father continued in his opening statement: In ALC Dailey sparked four point something and he was studying. He was getting high grades. His grade point average went up. He didn't want to leave. He did not have the problem. Four weeks--it wasn't even four weeks after he was back that this happened. .... I'm not totally blaming [Mariner High School]. A[.] is at fault with that too. And that's what we are addressing through the counseling. But to put him out in the street or expel him I don't think is the answer either. Especially since for the first time in his life he showed an interest in school. Petitioner's second witness in the expulsion hearing was an assistant principal at Mariner High School. He testified in response to a question directed toward the propriety of the handling of A. B. at Mariner High School: Our position there is that Mr. Dailey is a competent expert, that he handles the people and when he recommends for us to come--for someone to come back, we take that individual. . . . Answering the question whether he would have handled A.B. differently if he had known that he had not successfully completed the ALC program, the assistant principal testified: . . . You know, we have to accord him his rights like all the kids who complete the program at the Alternative Learning Center. Once he's paid his debt and satisfied them that he's capable, then they send him to us. I don't know of any students they send to us that they don't feel like has made the improvement that the school was set up to start with. Do you understand what I'm saying? So when they come to us, their staffing to exit over there is telling us that they feel like they had--now the kid has shown improvement and he's now corrected what it is and he's ready to return. Petitioner's last witness at the expulsion hearing, John Hennebery, who is the District Director of Student Services, testified that the ALC Principal determines when the student is to be returned to his geographical school. A. B.'s father called Respondent as his sole witness. In response to a question as to A. B.'s progress at the ALC, Respondent testified: . . . I noticed, number one, he tends to be completely honest and tells the truth. That's the experience I have had with him. He is begin- ning to come around in terms of when he feels someone is making up evidence or getting to that point, he would seek out--attempt to seek out in terms of trying to find some assistance rather than jumping in first. But that again is a kind of structured environment that we have at the Alternative Learning School. Q: In your professional opinion, do you believe that [A.] at this point in time still needs that structure of school? A: I most certainly do. Q: At the time when he was requested from the School Board to go back to Mariner, did [A.] approach you in reference to this? A: Yes, he did. Q: And in what aspect did he? A: The usual policy of the district was that on a first offense there was a 45 good day policy. That means that the student has the responsi- bility of spending 45 good days there, good days, which are defined as attendance, punctu- ality, academic and discipline. And on the second offense it's a ninety day offense. Q: Uh-huh. A: Then this year the rules are changed. In the middle of the semester. I was given a directive from the Assistant Superintendent, along with other Principals were informed of it; that the students were called by numbers. At the Alternative Learning School were addi- tional programs of juvenile justice, programs dealing with the number of felons that we were having come into school; that our numbers were getting too large and we had to--I had to send students back. [A.] was one of the students that had been there a period of time and that based on the period of--on the time that he had spent there, that we have to send him back to Mariner. [A.] had some concern about that and spoke with me in great detail about going back and being under those pressures. Now my conversation with [A.] was that because if he had done well at the Alternative Learning School, that my expectations with [A.] would be that he would go over there and do well and make good decisions at Mariner High School. So that in terms of that's the type of conversa- tion that we had and that's where it led. Now did [A.] complete his stay? No, he did not. And he is not one that I would have automatically sent back to Mariner because I was not yet convinced of his ability to deal with the pressures that he was going to have to face at Mariner High School. * * * Q: But your general concerns that the peer pressure is basically--or the pressures in the school itself that he couldn't handle was also [A.]'s concerns too when he came to speak to you about going back? A: Yes, those were [A.]'s concerns but those would be anyone's concerns as relates to going back to the regular school once you have been at the Alternative for a long period of time. You get the anxiety of going back and wanting to do well. So it's not out of the ordinary for students, I might say, to be excited. I have students right now that actually do something wrong so they won't have to go back. So [A.]'s concern or his emotions that he expressed were not unordinary. I felt at that time that because I was given a directive, that it was my responsibility as a Principal to assist him in moving in that direction and I had all the confi- dence in the world in the Mariner staff that they would assist him in moving in that direction. There is an issue that I must be very honest is that the decisions that [A.] makes is [sic] [A.]'s decisions and once in fact--and this is what we teach them at the Alternative School; that once in fact you see that kind of situation present, then you must not go to the situation. You must remove yourself from the situation. And, you know, I'm one that's trying to be very fair and equitable in this hearing and in telling you that this is a situation that, yes, he should have known not to go near that, should have backed off from it. Q: Did he? A: No, sir, he didn't. Was I ready to release him? No, I wasn't. I'd like to concur with Mr. McNerney. I'd like to see [A.] back at the Alternative Learning School for ninety days with the approval of the-- with some kind of documentation showing that he has completed his drug testing and after that, then backing up Mr. McNerney's decision in attendance at the school. And I'm being very honest. The preceding excerpts from the transcript represent all of Respondent's material testimony. Petitioner conducted limited cross examination, devoted to an exposition of the District's drug policy. A. B.'s father introduced into evidence a letter dated December 12, 1995, from Licensed Mental Health Counselor Beverly Barbato, Ph.D., stating that it is in A. B.'s best interest to return to the structure of the ALC. On December 18, 1995--working without a transcript in the interest of time--the hearing officer summarized the testimony of the witnesses, commending each of them for some aspect of their participation in the hearing. As to Respondent, the hearing officer stated: "Mr. Dailey should certainly be commended for his honesty and his ability to assess the situation in a very diplomatic manner." Acknowledging that Petitioner sought expulsion for the maximum time permitted by law, the hearing officer stated that he "sense[d] that both Mr. Hennebery and Mr. McNerney felt that reinstatement should occur in the 1996-1997 school year or upon [A.] completing a successful drug rehabilitation program pursuant to Florida Statutes." Never mentioning old or new enrollment policies at the ALC in his discussion, the hearing officer accepted the recommendations of Respondent, A. B.'s father, the treating health care professional, and A. B. that A. B. be placed on probation for the remainder of the 1995-96 school year at the ALC, subject to additional conditions. In no way did the hearing officer's recommendation rely on Respondent's brief testimony about the transfer of A. B. under the new ALC enrollment policy. The court reporter finished the transcript on December 26, 1995. In Exceptions filed January 8, 1996, Petitioner requested that A. B. be expelled at least for the remainder of the 1995-96 school year. The record does not indicate what action the School Board took on the hearing officer's recommendation. The expulsion transcript reveals that the Assistant Principal at Mariner High School construed the ALC enrollment policy to ensure that students would not be returned to their geographical schools until they were ready to return. The Director of Student Services shared this misinterpretation, at least to the extent of thinking that the transfer decision was made by the ALC principal. The expulsion transcript reveals that Respondent told the truth that B. had come to Respondent and said he was afraid he was not ready to return. Respondent told the truth that he too shared these concerns. And Respondent told the truth that the current policy was that he had no choice but to return unprepared students when ALC enrollments reached the cap. In one respect, Respondent's testimony may have reflected a misunderstanding of a portion of Dr. Santini's policy. He testified that the new policy meant that "the students were called by numbers." Numbers triggered the necessity to return some students. But the new policy did not require that students be returned on a first in, first out basis. Rather, the students to be returned were to be those most prepared to be returned. Respondent's testimony seems to indicate that he interpreted the new policy as providing that he return students on a first in, first out basis. He implied that he selected for transfer the students who had been enrolled the longest at the ALC. In his next sentence, Respondent mentioned "numbers" in connection with the enrollment at the ALC getting too high as trigger for the need to transfer some ALC students. This suggests that his reference to "numbers" was not to the determination of who to return to their geographical schools. But in his next sentence, Respondent implied that the decision to return A. B. was based strictly on how long he had been at the ALC. However, two sentences later, Respondent recounted how A. B. had done well at the ALC, implying that he had at least made some progress, although without any mention of his progress relative to the progress of the other ALC students. Close analysis of Respondent's testimony does not reveal the basis on which he selected the students to be transferred. However, even if Respondent returned A. B. on a first in, first out basis, this action, although not consistent with the better reading of the October 25 memorandum, would have been consistent with Paragraphs 1 and 2, which imply that the sole criterion of enrollment duration is the length of the student's enrollment. Although close scrutiny of the October 25 memorandum permits a reconciliation of Paragraphs 1, 2, and 5--though not also the last sentence of the flush language-- Respondent cannot be expected to perform such textual analysis to discern meaning from such careless wording. In any event, Respondent's testimony at the expulsion hearing did not dwell on the inflexible enrollment cap ordered by Dr. Santini. He mentioned it briefly, then proceeded to describe, almost as briefly, his application of the policy in A.B.'s case. He cast his testimony in a light favorable to Petitioner by explaining that many ALC students are worried about their ability to survive in a regular school, A. B. had made some progress at the ALC, Respondent had encouraged A. B. to behave at Mariner High School, and A. B. must bear final responsibility for his poor choices. After receiving Dr. Santini's memorandum, Respondent was doing the best he could to implement the new enrollment policy. Probably unknown to Dr. Santini at the time, Respondent called Mr. Wiseman around Christmas vacation and asked if he should transfer 112 students then or wait until the end of the semester in January. Mr. Wiseman told Respondent to retain the students until the semester break. Dr. Santini never tried to clarify her confusing memorandum to Respondent or assist him in its implementation. In response to questioning during a School Board meeting from a School Board member concerning the conflict between Paragraphs 5 and 6 of the October 25 memorandum, Dr. Santini issued a memorandum of clarification dated January 5, 199[6.] The January 5 memorandum was issued to all middle- and high-school principals. The first four paragraphs are identical to the October 25 memorandum, except for the addition of a sentence to the fourth paragraph mentioning some new software to facilitate the transition of students back to their geographical schools. The new fifth paragraph states: The ALC will not exceed 250 students unless there are special circumstances with individual students that may warrant extended time. The principal of the geo-school will discuss these circumstances with the ALC principal. When extended time is recommended, the ALC principal will then compile a short report to the Secondary Operations Director that includes the following: the time already spent at ALC by that student, the original offense committed by that student, and any other justification that may warrant extended time (i.e., parent request). The Secondary Operations Director will consider all above factors and then give approval or disapproval on any requested extended time. Dr. Santini also revised the last sentence of the October 25 memorandum to reflect that the length of a student's assignment to the ALC is dependent on the nature of the original offense and the sound judgment of the principals and-- now--Director of Secondary Operations. The overenrollment issue did not end here. Dr. Santini conducted a meeting with Respondent and Mr. Wiseman on January 9, 1996, but this is addressed below in connection with another issue. However, one more fact has a bearing on the issue of overenrollment itself. Respondent never violated the ALC enrollment policy as Dr. Santini applied it to Respondent's immediate successors, Ms. Smith and Mr. Hagy. During the 77 days of Respondent's tenure, the average student enrollment was 265 students. During the 73 days of his successors' tenure, the average student enrollment was 253 students. After adjusting for actual attendance, there were 184 students present on average under Respondent's tenure and 189 students present on average under his successors' tenure. Improper Voluntary Enrollment and ESE Procedures: Paragraph 52 At the end of July 1995, Respondent called Mr. Hennebery and asked if he could voluntarily enroll two students. Mr. Hennebery explained that ALC administrators had made voluntary enrollments before deciding to discontinue the practice one or two school years ago. Since that time, Dr. Santini or Mr. Wiseman had approved all voluntary enrollments. Mr. Hennebery was not Respondent's direct or indirect supervisor. Mr. Hennebery lacked the authority to accept voluntary enrollments, or to make policy on this issue. At no time did Respondent's direct supervisors, Dr. Santini or Mr. Wiseman, instruct Respondent as to voluntary enrollments. The issue of voluntary enrollments is not, in any event, of major importance. Of the hundreds of students enrolled at the ALC during Respondent's tenure, not more than 18 of them were voluntarily enrolled. Most if not all of the students whom Respondent voluntarily enrolled were exceptional cases who were ineligible to return to their geographical schools or enter the Academy. During Respondent's tenure, six ESE students were transferred from the ALC without individual educational plans. Respondent relied on Mr. Vitale, who was the ESE department head, and Ms. Smith to handle ESE paperwork, as Respondent candidly admitted at the hearing that he was unknowledgeable about ESE procedures. Five of the six students left the ALC and entered Adult Education. These were obviously older students for whom an individual educational plan is of less importance than it would be for students with many more years in the educational system. Ultimate responsibility for ensuring compliance with ESE procedures at the ALC rests with Respondent. However, the circumstances suggest only an innocent mistake on Respondent's part, not incompetency, misconduct in office, or gross insubordination. Student Visits to Hi Tech Center Central: Paragraph 55 One day in late November 1995, Ms. Saldana had arranged for two students to visit the District's High Tech Center Central, which is a vocational school. When they returned, they told her that, at the end of the day, the counselor at High Tech Center Central had refused to talk to them because they were ALC students. Ms. Saldana called High Tech Center Central Director Ron Pentiuk, who confirmed that he would not allow ALC students to enroll directly from the ALC or even to visit his campus while still enrolled at the ALC. He said that this had been his agreement with Ms. Folaros. Ms. Saldana explained that, in the case of three to five students, they could not first return to their geographical schools because they were graduating early. If they could not enroll in High Tech Center Central directly from the ALC, they could not attend the vocational school. Mr. Pentiuk refused to consider the request, insisting the students still had to spend six to nine weeks at their geographical schools before they could enroll at the vocational school. He said someone in the District office told him not to accept any more ALC students. By letter to Respondent dated December 19, 1995, with copies to Dr. Santini, Mr. Wiseman, Mr. Wortham, and others, Mr. Pentiuk restated his position: "no ALC students will have direct access to High Tech Central programs. . . . [A]ll visitations shall come from the student[']s geo school and not ALC directly." The letter cites as authority for this policy a meeting that took place at the start of the 1994-95 school year between representatives of High Tech Center Central and the New Directions Center. The implicit reason for this policy is that Mr. Pentiuk wanted someplace to send a student if he failed to perform at High Tech Center Central. By memorandum dated January 10, 1996, to Mr. Pentiuk, Respondent memorialized a discussion at a principals' meeting earlier that day. The agreement appears to allow ALC students who are ready to be returned to their geographical schools, but have not yet been returned, to visit the High Tech Center Central. The record reveals only that Respondent tried to send ALC students to the High Tech Center Central for visits. When they were treated rudely by Center personnel, Respondent and Ms. Saldana discovered an unreasonable policy that emanated not from the District office, but from an understanding reached by Mr. Pentiuk and Respondent's predecessor. This agreement had little logic to commend it. It delayed and, in some cases, denied ALC students access to important vocational training. Mr. Pentiuk explained that he could not deal directly with ALC students because he needed to have a place to which to return them if they misbehaved. However, his concern does not address the aspect of the policy prohibiting even campus visits by ALC students. And his concern fails even to address the remainder of the policy, as the record does not explain why Mr. Pentiuk could not expel students back to the ALC as easily as to their geographical schools. In any event, Respondent and Ms. Saldana rectified the situation, achieving a much-improved policy than the one that preceded Respondent's involvement. Refusal to Reenroll J. M.: Paragraph 50 In September 1995, Respondent refused to reenroll J.M. when his grandmother brought him back to school after an unexcused absence. J. M.'s father had called Respondent and complained that his mother was interfering with J. M., her grandson. The boy was skipping school with the father's brother, who was also of school age. J.M. asked Respondent not to let the grandmother return the boy to school or supply a legal excuse for his absence. When J. M.'s grandmother brought the boy back to school one day, Respondent did as the father had directed him. Respondent told the grandmother, "Ma'am, you can't bring your child back. I got a call from your son, and he is the legal guardian. Call your son and get it straight with him. I shouldn't even be talking to you about J. M." E. Arrest of W. S.: Paragraph 49 On November 1, 1995, W. S. tried to leave the cafeteria without permission. She has a history of violent outbursts. Riley Ware, a teacher, tried to stop her. W. S. asked him who he thought he was with that crooked gold tooth. Mr. Ware responded by telling her to sit her "big-lipped" self down. (Respondent later reprimanded Mr. Ware for this comment.) W. S. swore at Mr. Ware, calling him, among other things, a "black bitch." Teacher Christine Peete then intervened. She said, "Young lady, you've been very inappropriate." Gently placing her arm on W. S.'s shoulder, Ms. Peete added, "Come with me until you cool off." W. S. angrily responded by slinging Ms. Peete's arm off of her shoulder. She shouted, "Get your hands off me, bitch. I'll dip on [beat up] all of you. Ms. Peete had to return to her class, so she asked Ms. Krucher to escort W. S. to the office. Ms. Peete found Respondent in the middle-school area and told him that he needed to deal with W. S. Respondent returned to his office to find W. S. leaving. He greeted her by saying, "Well, daughter, Ms. Peete tells me that you called her a bitch." S. said she called Mr. Ware a bitch, but she did not call "that bitch" (Ms. Peete) a bitch. Respondent told her she was suspended for five days, and W. S. replied, "I don't give a fuck about five days." Respondent raised the suspension to seven days, and W. S. lunged toward Respondent and Ms. Peete, who was standing next to him. W. S.'s initial lunge threw Respondent, herself, and a computer to the floor. Respondent wrestled his way to the top, and W. S. demanded that he get his "big belly" off her. She scratched him or snapped his suspenders, causing his chin to bleed. She grabbed his tie and choked him. She tried to bite and kick him. Respondent ordered a nearby staffperson to call the police. Officer Garrett Kusienski of the Fort Myers Police Department responded to the call and arrived at the school in a three or four minutes. When he arrived at the ALC office, Respondent and W. S. had just gotten off the floor, and Respondent and several male staffmembers were escorting her into the office. Respondent approached Officer Kusienski and asked him to arrest W. S. Officer Kusienski asked why, and Respondent directed him to handcuff and remove her. Officer Kusienski refused to do so until Respondent explained why. Officer Kusienski's police report, which is credited, states Respondent answered that, if Officer Kusienski were not going to do his job, "I needed to get off his campus." Officer Kusienski asked again what happened, and Respondent "stated that he would give all the details to Chief Hart when he was contacted, to get the hell off his campus if I wasn't going to arrest anyone." Officer Kusienski left the building, but returned a few minutes later, spoke with W. S. and possibly others, and took her into custody. The police report notes that another officer, who had arrived on the scene as backup, took statements from witnesses. At the hearing, Officer Kusienski testified that Respondent said, "If I'm not going to do my fucking job to get the fuck off this campus." Officer Kusienski did not explain at the hearing why he deleted one "fuck" entirely and replaced another with "hell" in his police report. It is unlikely that Officer Kusienski was graciously sparing Respondent any embarrassment in the report because he also noted that Respondent became "very disorderly toward me." The only other evidence that Respondent said "fuck" is Ms. Krucher, who testified that Respondent said it to Officer Kusienski once, not twice as Officer Kusienski testified. However, her testimony is contradicted by numerous other witnesses, who testified that she was not there and they did not hear Respondent say "fuck" to the officer or otherwise during the incident. Ms. Krucher's testimony has not generally been credited on grounds, among others, that she harbored considerable ill-will toward Respondent. The testimony of Officer Kusienski is countered by the testimony of Officer Jackson, also of the Fort Myers Police Department. Officer Jackson testified that Respondent did not use foul language toward Officer Kusienski. There is no preponderance of the evidence as to what Respondent said to Officer Kusienski. Respondent Late to Work: Paragraph 54 On November 16, 1995, the parent of a student at Cape Coral High School called Respondent and asked him to attend a meeting for the purpose of determining whether to transfer the parent's child to the ALC. The parent did not want the child transferred to the ALC and asked for Respondent's help at the meeting. Seeing a chance to help control the ALC enrollment, Respondent agreed to attend the meeting, which was scheduled for 7:00 a.m., and try to help the student remain at his geographical school. Respondent's intent was to speak first and then drive back to the ALC, which was about 20-30 minutes away at that time of day. Respondent reasonably expected that he would arrive at the ALC between 7:30 a.m. and 7:45 a.m. Respondent typically arrived at school at 7:30 a.m. and took cafeteria duty until school starts at 8:00 a.m. The evening of November 16, Respondent called Mr. Ware and told him to cover the cafeteria the following morning in case Respondent was late. Ms. Smith was on personal leave on November 17. However, Respondent and LAMP principal McCollum had an agreement that, if one of them was absent from the campus, the other would serve as acting administrator to be called upon by teachers or staff as needed. Their agreement--which was a necessity for Ms. McCollum because she lacked an assistant principal--did not require that either give the other advance notice of his absence. Unfortunately, Respondent did not get to speak first at the meeting, which ran longer than Respondent had expected because the student had been charged with drug possession, not merely disrespect to a teacher, as Respondent had been told. From the meeting at Cape Coral High School, Respondent called someone--probably Mr. Ware--and told him that he would be later than he had anticipated the prior night. Respondent returned to the ALC between 8:30 a.m. and 8:45 a.m. When Respondent did not appear at school by 8:00 a.m., Ms. Krucher told Mr. Wortham that Respondent had left the ALC without an administrator. Mr. Wortham called Dr. Santini and told her. The same afternoon, Dr. Santini or her designee called Respondent and asked him where he had been that morning. Dr. Santini and Mr. Wiseman met with Respondent on November 20 to discuss Respondent's tardiness on November 17. This meeting is described in the following section. By memorandum to Respondent dated November 28, 1995, with copies to Petitioner and Mr. Wiseman, but not to Respondent's personnel file, Dr. Santini concluded as to the incident: As per our conversation of November 20, 1995, I am reminding you that I consider the fact that you were not in school on November 17, 1995 until 8:45 A.M. with no assistant present, a serious offense. The students at ALC need constant monitoring and supervision and to have the school unstaffed by any administrator, even for forty minutes, could lead to a catastrophe. I do not expect this to happen again. By letter dated December 8, 1995, to Dr. Santini, with copies to Petitioner and Mr. Wiseman, Respondent acknowledged receipt of her November 28 "letter relating to your concerns of me not being present in my building without an assistant." The letter explains that, once at the Cape Coral High School meeting, Respondent learned that the student had not only threatened a teacher, but had also used drugs. The letter states that Respondent had previously covered for Mr. Wortham and Ms. McCollum. Respondent's letter concludes: This is not to say that I don't concur with you. I most certainly agree with you whole heartedly that not only in ALC but all schools, we must have an administrator on duty. An administrator was on duty, as I had informed you verbally. Mrs. McCollum and I had total agreement relating to coverage without any problems. Your letter gives the perception that I was purposely avoiding my responsibility and was irresponsible in fulfilling my duty as a principal. I would like the record to show that I was fulfilling my duty as an educator, as a principal and as a community leader. Through my efforts, I was able to at least save the life of a young man that we could have possibly lost to drugs. This is one I don't have to look over and he not look back. Thank you for your concern and I accept your letter of concern and would vow that I will continue to work with you and to make the ALC the best learning environment that I can. Dr. Santini's November 28 letter is not a letter of reprimand, nor did she intend for a copy of the letter to be included in Respondent's personnel file. Her intent is inferred from the absence of the letter from Respondent's personnel file in mid-February, the omission from the letter of any express notation of copies to Respondent's personnel file (as contrasted to the January 2 letter described below), and the failure of Dr. Santini to respond to Respondent's subsequent characterization of the letter in his letter of December 8. Petitioner failed to prove that Respondent violated any policy of the District in effect on November 17. The record reveals no prohibition against having another administrator, such as Ms. McCollum, cover for Respondent for a short time, even in the absence of advance notice. November 20, 1995, Meeting: Paragraph 42 Three days after Respondent was late to work due to the meeting at Cape Coral High School, Dr. Santini and Mr. Wiseman visited Respondent to discuss the incident, as well as charges of heavy-handed dealing with students, yelling at teachers, and leaving campus early. Dr. Santini and Mr. Wiseman dismissed as unfounded all charges except for Respondent's tardiness on November 17. Around this time, Ms. Krucher, who had been talking to Mr. Wortham daily, began contacting Dr. Santini and possibly Petitioner, whom Dr. Santini testified that she had suggested Ms. Krucher call. The purpose of these calls was to supply, on a confidential basis, unfavorable information about Respondent. If the information resembled her testimony, nearly all of it was unreliable. One incident illustrates the lengths to which unidentified persons would go to fabricate evidence unfavorable to Respondent. By two-page, handwritten letter dated February 17, 1996, from Ms. Pepin to Ms. Minton, Ms. Pepin objected to a statement attributed to Ms. Minton in the newspaper to the effect that she spoke for all of the ALC staff when she criticized Respondent. In her letter, which is entirely supportive of Respondent, Ms. Pepin admitted that, last June, she had not much liked Respondent entering her classroom and giving his "new sheriff in town" speech. But the letter continues to state that she now understands the effectiveness of Respondent's style. Someone--not in the office of Petitioner's counsel-- fraudulently altered Ms. Pepin's letter and sent it to Petitioner's counsel. By careful folding, whiting out, and photocopying, this person reduced the two-page letter to five and one-half lines and moved Ms. Pepin's signature beneath these lines, so as to make the letter look like a short note objecting to the "new sheriff" speech. This person then passed the counterfeit note as a gross distortion of Ms. Pepin's views-- literally out of context. It is highly unlikely that such fraud would be perpetrated by someone in the District office. The record does not reveal who had access to the letter after it was received by Ms. Minton. But the incident reveals indisputably the unreliability of at least some of the information that Dr. Santini and Petitioner received about Respondent. In any event, toward the end of the November 20 meeting, Respondent demanded that Dr. Santini tell him who had made the allegations against him. The request was not unreasonable given the inaccuracy of most of the charges. Dr. Santini refused to divulge the name or names of these persons. She explained reasonably that, if she were going to do something about the charges, she would tell him, but she was not going to do anything about them. Petitioner failed to prove that Respondent was rude in the November 20 meeting. Dr. Santini's November 28 memorandum makes no mention of any rudeness. Petitioner's counsel did not inquire of Mr. Wiseman as to Respondent's behavior at the November 20 meeting. Dr. Santini's testimony was not detailed in its description of Respondent's behavior at the November 20 meeting. On direct, she testified only that Respondent exhibited an "insubordinate attitude," and "we couldn't talk to him for his continuing to talk to us." Dr. Santini did not use the word "shout" or "yell" to describe Respondent's manner of speaking. On cross, Dr. Santini added only that Respondent was "insubordinate, rude, and unreceptive." Gate Incident: Paragraph 43 Immediately after school on December 12, 1995, a boy hit a girl near the front gate of the New Directions campus. Respondent, Mr. Ware, Mr. Gilmore, Mr. Smith, Ms. Krucher, Mr. Nassiff, Mr. Wortham, and other adults immediately went to the scene. At first, the two students refused to tell Respondent what had happened. A group of boys outside of the gate had seen the altercation. Respondent motioned them to enter the school grounds, but, before he could talk to them, Mr. Nassiff told Respondent that he had seen the altercation. Not needing to speak to the group of boys, Respondent motioned them to go back. However, two or three of them were already inside the gate. A security guard was in the process of locking the two front gates, so Respondent told Mr. Ware and Mr. Smith to escort the two or three boys off campus through the back gate, which was closer to their homes. Unknown to Respondent, the remaining boys from the group had just told Mr. Wortham that they were going to beat up the next student whom they saw. Respondent, the two students involved in the altercation, and other staff, except for Mr. Ware and Mr. Smith, walked toward the ALC where Respondent could deal with the two students. Respondent saw Mr. Wortham signalling to Ms. Krucher, and Respondent asked her what he wanted. She replied that he wanted her to close the back gate. Respondent told her not to close the back gate because he had just sent Mr. Ware and Mr. Smith with some students to let them out the back gate. He reminded her that he, not Mr. Wortham, was her boss. At the time, Respondent was unaware that some Academy students were preparing Christmas decorations inside the back gate, which typically remained open before and after school for deliveries. Respondent was also unaware that Mr. Ware and Mr. Smith had not gone to the back gate because they had been able to get the students through one of the front gates before it had been locked. After Respondent returned to the ALC building, the group of students walked around the side the school to the back gate, where one or more of them beat up an Academy student so badly that he required hospitalization. As soon as Respondent learned of the incident in the back, Respondent called Mr. Wortham, who said he was angry and had some concerns. Respondent invited him to discuss them, but he declined, saying he would instead call Dr. Santini. Respondent suggested that he take his concerns directly to Petitioner in that event. Respondent then found out from Mr. Nassiff and Ms. Krucher what had happened. Respondent asked Mr. Nassiff to explain to Mr. Wortham that Respondent had not known that there were students in the back inside the gate and that Respondent had sent two teachers back there to escort students out of the campus. Shortly after that, Respondent went to the Academy building to speak to Mr. Wortham. Respondent explained what had happened from his perspective, and Mr. Wortham acknowledged that he had later found that out, but, by that time, he had already called Dr. Santini. Petitioner did not call Mr. Wortham to testify about the gate incident, even though Petitioner claims it was his order that Respondent countermanded. Under the circumstances reasonably known to him at the time, Respondent behaved responsibly throughout the gate incident. He did not know he lacked crucial information when he told Ms. Krucher not to go to the back gate. But he reasonably assumed that he had more information than did Mr. Wortham. He knew that he had already sent two men to the back. Even had he known that the boys wanted to beat someone up and that an Academy student was in the back, Respondent would reasonably have relied on Mr. Ware and Mr. Smith to prevent the attack. When Respondent told Ms. Krucher that he, not Mr. Wortham, was her boss, he was merely emphasizing his direction that she not close the back gate. He was not stating the cause for the direction. The cause was that he had sent two men to the back gate. Respondent's comment about who was Ms. Krucher's boss was thus not an act of insubordination or lack of cooperation. I. Respondent's Police Interview About Gate Incident: Paragraph 48 Mr. Nassiff witnessed the police interview of Respondent concerning the gate incident. In the interview, Respondent did not state that he countermanded Mr. Wortham's order to Ms. Krucher to go lock the back gate. Respondent did not withhold material information from the police, who were investigating the beating of the Academy student, not Respondent. The direction that Respondent gave Ms. Krucher was entirely appropriate under the circumstances as reasonably understood by Respondent at the time that he told her not to close the back gate. There was no reason for Respondent to mention this minor point to the police. J. January 9, 1996, Meeting: Paragraph 44 Three days after the gate incident, Dr. Santini asked Respondent to come to her office that day. He said that he was helping students deliver Christmas food baskets to the needy and could not, so they set up a 7:00 a.m. appointment for the following Monday, December 18. When Respondent arrived at the meeting, expecting it to be between him and Dr. Santini, he found Mr. Wiseman and Mr. Wortham, who had prepared a written statement. Dr. Santini said she wanted to hear both sides of the gate incident. Respondent objected that the meeting was unfair because he had not had the chance to prepare a statement. Dr. Santini replied that she had not asked Mr. Wortham to prepare a statement, and Respondent said that at least he had known what the meeting was about. Mr. Wortham and Respondent each stated what happened. Mr. Wiseman asked Mr. Wortham if he had disclosed to Respondent the threat by the group of boys in the front, and Mr. Wortham admitted that he had not. Dr. Santini said that she would speak to Ms. Krucher to obtain a statement, but refused Respondent's request that she also speak to Mr. Ware and Mr. Smith. Respondent was worried that he was being set up and informed Dr. Santini that he would be requesting a meeting with Petitioner to complain about the discriminatory treatment that he was receiving. Respondent contacted Petitioner's office to set up a meeting. Petitioner contacted Respondent during Christmas break, and, at her request, the two of them met for two hours on December 28 at a local restaurant. They discussed the ALC enrollment policy, Respondent's testimony at the expulsion hearing, Respondent's claims of harassment by Dr. Santini, Dr. Santini's practice of invariably bringing Mr. Wiseman with her on visits with Respondent, Respondent's good relationship with Mr. Wiseman whenever he was separated from Dr. Santini, and the gate incident. Petitioner told Respondent that he needed to return to school after Christmas break and work more closely with his supervisors, as well as Ms. McCollum and Mr. Wortham. Petitioner promised to set up a meeting among her, Respondent, and Dr. Santini. This meeting was later scheduled for January 9, 1996, at 3:00 p.m. By letter to Respondent dated January 2, 1996, with copies to Petitioner, Mr. Wiseman, and Respondent's personnel file, Dr. Santini stated that she had completed her investigation into the gate incident and had spoken with Respondent, Mr. Wortham, and Ms. Krucher following the meeting of December Dr. Santini concluded: the key issue is the fact that after Mr. Wortham asked your security guard, Lisa Krucher, to run to the back of the school and lock the gate because he felt the boys who were threatening to harm someone would come in through the back gate, you instructed Lisa Krucher not to lock the gate because she worked for you and not Mr. Wortham. I consider this action on your part a poor judgment call and a lack of cooperation with other adminis- trators on campus. * * * I am directing you from this point on, to work together with Mr. Wortham for the benefit of the children in the school. The attitude that employees work for one principal and not another is an attitude that can cause disruption and, as we have seen with regard to this incident, harm to a student. Dr. Santini's letter misstates an important fact. Respondent did not redirect Ms. Krucher "because she worked for you and not Mr. Wortham." He redirected her because he had sent two able staffpersons to the back gate, and there was no need to send a third person. Dr. Santini evidently discredited an important element of Respondent's version of the gate incident. She could not have determined that Respondent countermanded Ms. Wortham's order for the sole reason of showing Ms. Krucher who was her boss, unless Dr. Santini had eliminated the possibility that Respondent countermanded the order because he had already sent two men back there. Whether Respondent sent the two men to the back or not is a difficult fact question. Although Dr. Santini might reasonably have concluded that Respondent, Mr. Ware, and Mr. Smith were lying, her factual determination is deficient as long as she refused to talk to Mr. Ware and Mr. Smith. Respondent was reasonably concerned with Dr. Santini's fairness when she talked to Mr. Wortham's corroborating witness, but refused even to talk to Respondent's corroborating witnesses. On January 5, 1996, which was the date that Dr. Santini issued her letter clarifying the October 25 memorandum on the ALC enrollment policy, Dr. Santini contacted Respondent's office to set up a meeting for January 8, which was the day prior to their meeting with Petitioner. She had by now seen the transcript of the expulsion hearing and wanted to discuss this matter with Respondent. Taking the advice of Dr. Cecil Carter, an administrator in the District, Respondent called Dr. Santini's office back and asked the purpose of the meeting. Dr. Santini relayed the information through someone in her office that they were going to discuss Respondent's "deposition." The only deposition with which Respondent was familiar was in connection with his testimony in the Rockford, Illinois desegregation case. Dr. Santini inadvertently used "deposition" to mean Respondent's testimony at the A. B. expulsion hearing. However, Respondent assumed that she was going to discuss some aspect of desegregation with him. Around 2:00 p.m. on January 8, Respondent told his secretary to call Dr. Santini's office and cancel the meeting. He told his secretary that he was ill and going home directly after school, but told her to tell Dr. Santini that she could call Respondent at home and they could at least talk on the phone. Dr. Santini did not call Respondent at home. Instead, she and Mr. Wiseman appeared, without prior notice, in Respondent's office between 8:00 and 8:30 a.m. on January 9, 1996, which was the day of the meeting with Petitioner. Respondent said he was busy with school duties, and they waited until he could see them. In a few minutes, Respondent, Dr. Santini, and Mr. Wiseman met. Dr. Santini started the meeting by saying, "Charles, I'm going to talk to you about this deposition." She showed him the transcript of the A. B. expulsion hearing. She stated, "The way this looks, I'm going to have to write you up." Understandably worried that Dr. Santini had already made her decision to discipline him, Respondent asked for permission for his secretary to attend the meeting as a witness. Dr. Santini said no. Respondent then asked to tape the meeting. Dr. Santini agreed. As Respondent left to find a tape recorder, Mr. Wiseman said, "Mary, you're going to have to give him a chance to tell his side of the story." Unable to find a tape recorder, Respondent returned to the meeting. Dr. Santini pointed to a page of the transcript and, without discussing the testimony directly, declared that Respondent had testified that numbers were more important than students. Respondent tried to interrupt, but Dr. Santini would not allow him. Respondent stated, "You can't accuse me of things and expect me not to respond." Dr. Santini replied, "You are going to listen to me." Dr. Santini accused Respondent of talking to A. B.'s father. In fact, Respondent had told him to work with Mr. Hennebery's office. Suddenly, Respondent told her that the meeting was over until we meet Petitioner. Dr. Santini slammed a book and told Respondent that he had "disrespected me and Mr. Wiseman." Respondent answered, "My dear friend, how have I disrespected you?" Dr. Santini stated, "That's it." She turned and walked out the door. Mr. Wiseman was still seated when she left. He then jumped up, shook Respondent's hand, and said, "See you later, baby boy." Alone among the key participants in this case, Mr. Wiseman appears to have maintained his sense of humor. During this brief meeting, for example, Mr. Wiseman was the only person not to have raised his voice. Later on the day of January 9, the meeting with Petitioner took place with Respondent, Dr. Santini, Mr. Wiseman, Dr. Carter, Dr. Counsel, and an administrative assistant in attendance. Respondent began the meeting by reading a letter from him to Petitioner dated January 8, 1996. The letter reviews the condition of the ALC when he was appointed principal, the changes that he has made, and the problems posed by the ALC enrollment policy stated in the October 25 memorandum. The participants discussed the ALC enrollment policy. Respondent objected that it appeared that they had met with other principals and not him. Mr. Wiseman admitted that they had met and had excluded Respondent because he had threatened another principal. There is no evidence of such a threat. After the discussion about ALC enrollments ended, Petitioner said that she was out of time and everyone would have to return to finish their discussion. Petitioner told Respondent that she had sent Dr. Santini and Mr. Wiseman to see him, and she did not want him calling off meetings with her staffmembers, such as he had done that morning. Respondent understood that he should not do that. Respondent complained that he had thought that he was doing an outstanding job and could not understand what the problem was with his job performance. Dr. Santini disagreed with him about the job he was doing. Respondent stated that no one had ever sufficiently spelled out a problem so that he could address it. He asked who was complaining about what. He asked Dr. Santini directly if she had any complaints. Dr. Santini said she had one complaint, but would not disclose it to Respondent, even after being urged to do so by all of the other participants, except the administrative assistant. Dr. Santini said that the attorneys had told her that she did not have to disclose it. She then said to Petitioner, "Bobbie, the problem is he will listen to you, not me." Respondent and Dr. Santini began to argue about the meeting earlier in the day. In anger, Respondent said he would not follow Dr. Santini's directions, but go directly to Petitioner. He also admitted that he was afraid of Dr. Santini. Petitioner closed the meeting by promising to check with the attorneys and see if she could supply Respondent with a copy of the complaint to which Dr. Santini had referred. Two days later, on January 11, Petitioner sent a letter to Respondent suspending him with pay due to "your conduct in a meeting with Mr. Herb Wiseman . . . and Dr. Mary Santini on January 9, 1996." The letter adds: "you should know that other allegations have been made against you that are currently being investigated by the District." V. Conclusion Petitioner failed to prove by a preponderance of the evidence that Respondent is guilty of misconduct in office, incompetency, gross insubordination, or immorality. Petitioner never trained Respondent to serve as a school principal. Respondent's previous administrative roles provided valuable experience, but they had also permitted Respondent to become accustomed to serving in a close relationship with a Superintendent who was also a mentor, working outside the normal hierarchical channels of the District office, and alienating numbers of parents, teachers, and administrators in making tough rezoning and equity decisions. But Respondent's qualifications were obvious. As Petitioner wrote in one evaluation, Respondent was a "role model" for other administrators in, among other things, teamwork. Despite the gaps in his experience, Respondent employed vast stores of energy, enthusiasm, and commitment to make the ALC work for its students. He intelligently assessed the situation at the ALC and devised strategies for exploiting the available resources. Fully aware of his own limitations, for instance, he hired Ms. Smith for her knowledge of curriculum. In a short time, he had produced dramatic results at the ALC. Respondent complied with Dr. Santini's directives, although before adoption he argued with those of them with which he disagreed. The October 25 memorandum, as well as the October 20 meeting, set an enrollment cap. Respondent acceded to Dr. Santini's decision. He closed the October 20 meeting with a plea that geographical schools be prepared to finish the job that the ALC would not have time to finish. He transferred 75-80 students out by early November. He asked Mr. Wiseman around Christmas break if he should transfer another 112 students back to their geographical schools. And his average enrollment exceeded the enrollment of his successors by 13 students--while his average actual attendance was five students less than the average actual attendance of his successors. By mid-December, Dr. Santini, misinformed by unreliable information from Ms. Krucher and possibly other informants at the ALC, was concerned about whether Respondent would work out as the ALC Principal. This concern may have influenced her gate investigation and reaction to Respondent's testimony at the expulsion hearing. The situation rapidly deteriorated when Dr. Santini visited Respondent, unannounced, on the morning of the day that they had a meeting with Petitioner and began the meeting by saying that she would probably have to write up Respondent for his testimony. A supervisor should always be able to conduct a meeting with a subordinate. Respondent should not have abruptly terminated the meeting with Dr. Santini. Supervisors terminate meetings, not subordinates. However, this was an isolated action by Respondent, who had never before terminated a meeting with a supervisor. Respondent had understandably felt that Dr. Santini had treated him unfairly in the gate incident, heard her announce at the start of this meeting what looked like a decision, and decided to deal with all of this at the meeting with Petitioner later that day. Under the circumstances, Respondent's imprudent decision to end the meeting did not rise to gross insubordination. In the final analysis, as Petitioner testified, it is good practice to document problems with employees before terminating them. And, as Petitioner testified, her staff did not do so here. Clearly, Respondent and Dr. Santini have a serious communications problem, for which each bears some responsibility, even though, by the nature of things, a communications problem is typically a bigger problem for the subordinate employee than it is for his boss. But as Dr. Council and Dr. Gunter testified, there was no reason for this case to proceed this far. And the case would not have come this far if District staff had tried to help Respondent or even treated this case as a performance case--where, under the law, District staff would have had to identify Respondent's deficiencies and help him eliminate them.
Recommendation It is RECOMMENDED that the School Board of Lee County enter a final order dismissing the Petition, reinstating Respondent, and awarding him back pay as provided by law. ENTERED on June 28, 1996, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings on June 28, 1996. APPENDIX Rulings on Petitioner's Proposed Findings 1: adopted or adopted in substance except as to date of initial employment. 2-3: adopted or adopted in substance. 4: rejected as unsupported by the appropriate weight of the evidence, to the extent of the implication that these behaviors were more than isolated or represented significant problems. 5: rejected as unsupported by the appropriate weight of the evidence. 6-7: adopted or adopted in substance. 8-9: rejected as unsupported by the appropriate weight of the evidence. 10 (first two sentences): adopted or adopted in substance, as to the back of the neck. 10 (remainder)-12: rejected as unsupported by the appropriate weight of the evidence. 13 (through "end"): adopted or adopted in substance. (remainder): rejected as unsupported by the appropriate weight of the evidence. (first two sentences): adopted or adopted in substance. (remainder): rejected as unsupported by the appropriate weight of the evidence. (through "classroom"): adopted or adopted in substance, except as to throwing C. L. into the chair. (remainder): rejected as unsupported by the appropriate weight of the evidence. (through "credited"): adopted or adopted in substance. 16 (remainder): rejected as unsupported by the appropriate weight of the evidence. 17: rejected as unsupported by the appropriate weight of the evidence. 18 (first sentence): rejected as subordinate. 18 (remainder): rejected as unsupported by the appropriate weight of the evidence. 19: rejected as unsupported by the appropriate weight of the evidence. 20: rejected as unsupported by the appropriate weight of the evidence, except that O. B. complied with Respondent, who did not apply force to move him. 21: rejected as unsupported by the appropriate weight of the evidence. The testimony of Ms. Culligan is not credible. 22 (first sentence): adopted or adopted in substance. 22 (remainder): rejected as unsupported by the appropriate weight of the evidence. 23: rejected as subordinate. 24: rejected as unsupported by the appropriate weight of the evidence. 25: adopted or adopted in substance, except that Ms. Krucher did not witness the entire incident. 26: adopted or adopted in substance, except that Ms. Krucher did not step between J. B. and T. R., nor did she witness the rest of the incident. She prevaricated the portion of the incident that she missed while returning J. B. to her classroom, J. B. testified that Ms. Krucher returned her to her classroom. J. B. also testified that Ms. Krucher even tried to convince her than T. R. had not lunged at J. B. Ms. Krucher's credibility as a witness is very poor. 27: rejected as unsupported by the appropriate weight of the evidence, except that T. R.'s testimony was stricken after several vacillations demonstrated that, as to this incident, he could not distinguish between the truth and fiction. 28: rejected as unsupported by the appropriate weight of the evidence. 29 (first two sentences): adopted or adopted in substance. (remainder): rejected as unsupported by the appropriate weight of the evidence. (first two sentences): adopted or adopted in substance. 30 (remainder): rejected as unsupported by the appropriate weight of the evidence. 31: Respondent's testimony that he feared M. P. was on drugs is not credited, at least to the extent of attempting to create a well-founded fear in Respondent's mind that the mental state of M. P. was so altered as to render him dangerous. However, Respondent intervened with M. P. to stop him from leaving and preclude the possibility that this student, who obviously is afflicted with a serious behavior disorder, might strike Ms. Smith. The remainder of this proposed finding is rejected as unsupported by the appropriate weight of the evidence. 32 (first two sentences): adopted or adopted in substance. (remainder): rejected as unsupported by the appropriate weight of the evidence. (except last sentence): adopted or adopted in substance. There is no need to resort to Ms. Keel's testimony about the "rat's ass" remark. 33 (last sentence): rejected as unsupported by the appropriate weight of the evidence. 34: adopted or adopted in substance, except as to crediting Ms. Krucher's testimony and as to any harm to the student's mental health. 35 (except last sentence): adopted or adopted in substance, except that the displaying of the badge never frightened or intimidated anyone and no student believed that Respondent had extraordinary arrest powers by virtue of the badge. When Respondent spoke to the class, they presumably were off-task, but he did not destroy any instructional momentum. 35 (last sentence): rejected as unsupported by the appropriate weight of the evidence. 36: adopted or adopted in substance, except that Respondent did not badger the student or mistreat him in any way. 37: rejected as unsupported by the appropriate weight of the evidence. 38: adopted or adopted in substance, although Respondent appropriately dealt with the student, who should have raised his head to meet the new principal. 39: rejected as unsupported by the appropriate weight of the evidence, except that Respondent threatened the student with suspension if he did not make eye contact and listen to him. 40 (first two sentences): adopted or adopted in substance. 40 (third sentence): rejected as unsupported by the appropriate weight of the evidence. 40 (fourth sentence): rejected as irrelevant and unsupported by the appropriate weight of the evidence. 41: rejected as recitation of evidence and unsupported by the appropriate weight of the evidence. 42: rejected as unsupported by the appropriate weight of the evidence, except that on rare occasions Respondent opened doors to Academy classrooms. 43-45: rejected as unsupported by the appropriate weight of the evidence. 46: rejected as unsupported by the appropriate weight of the evidence, except to the extent of findings in the recommended order. 47-48 (except last sentence): adopted or adopted in substance, except Respondent did not say, "her record." (last sentence): rejected as unsupported by the appropriate weight of the evidence. (first sentence): adopted or adopted in substance. 49 (remainder): rejected as unsupported by the appropriate weight of the evidence. 50-51 (first sentence): adopted or adopted in substance. 51 (remainder)-52: rejected as unsupported by the appropriate weight of the evidence. 53: rejected as unsupported by the appropriate weight of the evidence. 54 (first sentence): adopted or adopted in substance. 54 (remainder): rejected as unsupported by the appropriate weight of the evidence. Respondent had not made a prior arrangement with Ms. McCollum, but Petitioner failed to prove that he was required to. 55: rejected as unsupported by the appropriate weight of the evidence. 56 (first two sentences): adopted or adopted in substance. 56 (remainder): rejected as unsupported by the appropriate weight of the evidence. 57: rejected as unsupported by the appropriate weight of the evidence. 58: rejected as unsupported by the appropriate weight of the evidence, except that Respondent terminated the meeting. The behavior was inappropriate, but did not constitute either insubordination or, more to the point, gross insubordination. 59 (first two sentences): adopted or adopted in substance. 59 (remainder): rejected as unsupported by the appropriate weight of the evidence. 60: adopted or adopted in substance. 61: rejected as unsupported by the appropriate weight of the evidence, as to no reason to arrest W. S. at the time. However, the altercation had ceased, and Respondent should have answered the reasonably inquiry of the officer. But his behavior did not constitute misconduct in office, gross insubordination, incompetency, or immorality. 62: rejected as unsupported by the appropriate weight of the evidence. Petitioner never accounted adequately for Officer Kusienski's omission of the word "fuck" from his police report or, less importantly, the discrepancy between Ms. Krucher and Officer Kusienski as to the number of times that Respondent uttered the expletive. Another problem for Petitioner was the contrary testimony of another officer of the Fort Myers Police Department. 63: rejected as unsupported by the appropriate weight of the evidence. 64 (first two sentences): adopted or adopted in substance, at least as to the effect that the grandmother could not serve as the legal guardian of J. M. because she was not. 64 (remainder): rejected as unsupported by the appropriate weight of the evidence and hearsay. 65-66: rejected as unsupported by the appropriate weight of the evidence. 67 (first sentence): adopted or adopted in substance. 67 (remainder): rejected as unsupported by the appropriate weight of the evidence, except that Respondent voluntarily admitted up to 18 students. 68: rejected as unsupported by the appropriate weight of the evidence. 69 (first sentence): adopted or adopted in substance. 69 (second sentence): rejected as unsupported by the appropriate weight of the evidence. 69 (remainder): rejected as unsupported by the appropriate weight of the evidence, as to Respondent's role in the failure to obtain individual educational plans constituting misconduct in office, incompetency, or gross insubordination. 70-71: rejected as unsupported by the appropriate weight of the evidence. Rulings on Respondent's Proposed Findings 1-13: adopted or adopted in substance, although there is some uncertainty as to the dates of Respondent's early employment with the District. The findings in the recommended order are guided by the dates and job descriptions contained in the evaluations. 13A: rejected as irrelevant. 14-15: adopted or adopted in substance, except that M. P. was not fearful. 16-29: adopted or adopted in substance. 30: rejected as unsupported by the appropriate weight of the evidence. The incident did occur. 30A-43: adopted or adopted in substance. 44: adopted or adopted in substance, but Respondent's brief conversation with Ms. Krucher more closely resembled the version in the recommended order, rather than the more elaborate version in the proposed finding. 45-46: adopted or adopted in substance. 47 (first sentence): rejected as unsupported by the appropriate weight of the evidence. Dr. Santini never reviewed several lines of the testimony. She focused only on one phrase. (remainder)-48 (through "Wiseman"): adopted or adopted in substance. (remainder): adopted or adopted in substance, although it is unclear the extent to which they discussed the January 5 memorandum itself, as opposed to the ALC overenrollment issue generally. 49-55: adopted or adopted in substance. 56-57: rejected as subordinate, except to the extent described in the recommended order. 58-62: adopted or adopted in substance, although the fact that Respondent's enrollments were no higher than the enrollments of his successors suggests that Respondent's enrollments did not exceed the cap or the cap as applied. 63: rejected as subordinate. 64-68: adopted or adopted in substance. COPIES FURNISHED: Superintendent Bobbi D'Allessandro The School District of Lee County 2055 Central Avenue Fort Myers, Florida 33901-3988 John M. Hament Kunkel, Miller and Hament 1800 Second Street, Suite 882 Sarasota, Florida 34236 Harry A. Blair Blair & Blair, P.A. 2138-40 Hoople Avenue Fort Myers, Florida 33901 The Honorable Frank T. Brogan Commissioner of Education The Capitol Tallahassee, Florida 32399-0400
The Issue At issue herein is whether or not the Respondent School Board of Dade County's reassignment of the Petitioner based on an alleged pattern of disruptive behavior in the educational program should be sustained.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the following relevant facts are found. During September, 1978, Victor John Cecchi was transferred from Miami Springs Junior High School to the Jan Mann Opportunity School North. Charles W. Bales, the principal of Miami Springs Junior High School appeared at the hearing and testified that the Petitioner was transferred based on an extensive pattern of "disruptive behavior in the educational program which deprived other students in the program of the full benefits of the educational system." According to principal Bales, the transfer to the Jan Mann Opportunity School North is one where the Opportunity School provides a more controlled atmosphere, smaller classes, more direct supervision which enables a "problem child" to get the benefits of the Dade County educational program. It is eventually the goal of the Opportunity School to reintegrate the "problem child" back into the regular school system so that he is mainstreamed back into the full academic process. During the period October 4, 1977 through the assignment in September of 1978, Petitioner had been referred to the principal's office 35 times for referrals due to disruptive behavior. Principal Bales testified in detail respecting the various incidences by the Petitioner wherein he had been involved in an extended pattern of disrupting classes, leaving the school campus without permission, engaging in altercations with other students and destroying the personal property of others. During these incidences, petitioner was at times returned to the school campus by truant officers and officers from the Miami Springs Police Department While the Petitioner, through his father, does not dispute the fact that he was referred to the principal`s office based on a pattern of disruptive behavior, Petitioner requested that his son be reconsidered for reassignment back in the normal school program at Miami Springs Junior High School. In this regard, testimony reveals that the Petitioner has attended the Jan Mann Opportunity School for a total of only three days since his reassignment to the center. Testimony reveals further that the school system through its Opportunity School affords "problem or disruptive students" opportunity to reacclimate themselves through the process by attending the Opportunity School which provides a different setting. For example, the classroom setting is very individualistic and the number of students range from eight to twelve. Special vocational programs are offered and the pupil to counselor ratio is greater in the Opportunity School. For these reasons, and based on the fact that the Respondent has afforded Petitioner numerous occasions within which he was allowed to correct his disruptive pattern while attending the Miami Springs Junior High School, I shall recommend that the Respondent's reassignment of him to the Jan Mann Opportunity School be upheld.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the petition filed herein be dismissed. DONE and ORDERED this 27th day of August, 1979, in Tallahassee, Florida. COPIES FURNISHED: Richard Cecchi 331 Swallow Drive Apartment 17 Miami Springs, Florida 33166 Michael J. Neimand, Esquire Dade County School Board Lindsey Hopkins Building 1410 NE 2nd Avenue Miami, Florida 33013 JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of August, 1979.
