Findings Of Fact At all times pertinent to this proceeding, Respondent was employed by Petitioner as a classroom teacher on an annual contract basis. Respondent first began working for Petitioner in February 1987, as an elementary teacher at Westview Elementary School. She taught at Westview Elementary School from February 1987 to the end of the 1986-87 school year and at Miami Park Elementary School during the 1987-88 school year. Both Westview Elementary School and Miami Park Elementary School are public school in the Dade County School District. For the 1988-89 school year, Respondent was assigned to teach a first grade class at Westview Elementary School. At the time of the final hearing, Respondent was 29 years of age. Respondent had received training as to Petitioner's disciplinary policies. She was aware of Petitioner's general disciplinary policies and the specific disciplinary procedures in place for Westview Elementary. During the 1988-89 school year there was in place at Westview Elementary an assertive discipline policy which was designed to discipline students without the use of physical punishment and which prohibited the use of physical force by teachers in the discipline of students. Teachers were instructed to remove disruptive students from the classroom by referring them to the administration office. If a student would not willingly go to the administration office, the teachers were to summon an administrator to the classroom to take charge of the disruptive student. In Respondent's classroom at Westview Elementary there was a coat closet that had hooks and shelves for storage. This closet was left without light when the two doors to this closet were closed. S.W., D.C., and D.W. were, during the 1988-89 school year, first grade students in Respondent's class at Westview Elementary. From the beginning of the 1988-89 school year, Respondent disciplined S.W., D.C., and D.W., individually, by placing each of them at various times in the coat closet and by then closing the two doors to the closet. On each occasion, the respective student was left in darkness. Respondent administered this punishment to S.W., a student Respondent characterized as having emotional problems, on seven separate occasions. Respondent administered this punishment to D.C. on at least one occasion and to D.W. on more than one occasion. Respondent knew, or should have known, that this form of discipline was inconsistent with Petitioner's disciplinary policies. During the 1988-89 school year, D.N. and S.M. were first grade students at Westview Elementary School who were assigned to Ms. Ortega's class. On February 14, 1989, Respondent observed D.N. and S.M. fighting while returning to their class from lunch. Ms. Holt, a substitute teacher temporarily assigned to that class while Ms. Ortega was on maternity leave, was the teacher in charge of D.N. and S.M. Respondent did not think that Ms. Holt could manage D.N. and S.M. Instead of referring the two students to the administration office, Respondent, with the permission of Ms. Holt, took D.N. and S.M. to Respondent's classroom to discipline the two students. Respondent had not been asked to assist Ms. Holt in this fashion. Respondent placed D.N. and S.M. in separate corners of the room and instructed them to be quiet. While Respondent attempted to teach her class, D.N. and S.M. continued to misbehave. D.N. began playing with a fire extinguisher and S.M. began writing and drawing on a chalkboard. To discipline D.N., Respondent tied his hands behind his back with a red hair ribbon. While he was still tied, Respondent placed the end of a broom handle under D.N.'s chin, where it remained propped until it fell to the floor. Respondent then placed the fire-extinguisher into D.N.'s tied hands to show him that the heavy fire extinguisher could harm him if it fell on him. These actions took place in Respondent's classroom in the presence of Respondent's class. Respondent frightened D.N. and almost caused him to cry in front of his fellow students. Respondent exposed D.N. to embarrassment and subjected him to ridicule from his fellow students. Respondent knew, or should have known, that this form of discipline was inconsistent with Petitioner's disciplinary policies. To discipline S.M., Respondent placed him in the coat closet. Respondent closed one of the doors and threatened to close the other door if S.M. did not remain still and quiet. After S.M. did not obey her instructions, Respondent closed the other door of the closet which left the closet without light. While S.M. was in the coat closet, Respondent remained stationed by the second door and continued instructing her class. After a brief period of time, Respondent let S.M. out of the dark closet. Respondent knew, or should have known, that this form of discipline was inconsistent with Petitioner's disciplinary policies. D.N. and S.M. remained in Respondent's class until a student sent by Ms. Holt summoned them to the library to participate with the rest of their class in vision and hearing testing. D.N. had to walk from Respondent's class to the library with his hands tied behind his back. This exposed D.N. to further embarrassment and ridicule. Ms. Holt untied D.N.'s hands in the library in the presence of other students. The ribbon which Respondent had used to bind D.N.'s hands behind his back left red marks on D.N.'s wrists. Ms. Holt immediately reported the incident to the principal. During the course of its investigation into the incidents involving D.N. and S.M., Petitioner learned of the prior incidents during which S.W., D.C., and D.W. were punished by being placed in the closet. Following the investigation of the Respondent's disciplinary methods, Petitioner suspended her without pay on May 17, 1989, and instituted proceedings to terminate her annual contract. Respondent timely demanded a formal hearing of the matter and this proceeding followed. The progressive discipline approach used by Petitioner in some cases involving teachers who violate disciplinary procedures usually requires that a reprimand be imposed for the first offense. Subsequent violations by the teacher would result in the imposition of progressively severe sanctions, culminating in dismissal. The progressive discipline approach is not used in a case involving a serious breach of policy such as where an established pattern of violations is established. Respondent's repeated practice of placing students in a darkened closet, which began at the beginning of the school year and continued into February when the incident involving D.N. and S.M. occurred, established a patterned breach of disciplinary procedure. Respondent's effectiveness as a teacher in the school became impaired because of her repeated breaches of discipline policy.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the School Board of Dade County, Florida, enter a final order which finds Katherine R. Santos guilty of misconduct, which affirms her suspension without pay, and which terminates her annual contract. DONE AND ENTERED this 15th day of December, 1989, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of December, 1989. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-3064 The following rulings are made on the proposed findings of fact submitted by Petitioner: The proposed findings of fact in paragraph 1 are adopted in material part by paragraphs 1 and 2 of the Recommended Order. The proposed findings of fact in paragraph 2 are adopted in material part by paragraphs 5 and 6 of the Recommended Order. The students, who are identified by initials, are described as being first grade students rather than as being a specific age. The proposed findings of fact in paragraph 3 are adopted in material part by paragraph 3 of the Recommended Order. The proposed findings of fact in paragraph 4 are adopted in material part by paragraph 3 of the Recommended Order. The proposed findings of fact in paragraph 5 are adopted in part by paragraphs 5 and 9 of the Recommended Order. The proposed findings of fact relating to Respondent's having struck a student with a ruler and having twisted the ears and arms of other students are rejected as being contrary to the weight of the evidence. The proposed findings of fact in paragraph 6 are rejected as being contrary to the weight of the evidence. The proposed findings of fact in paragraph 7 are adopted in material part by paragraph 6 of the Recommended Order. The proposed findings of fact in paragraph 8 are adopted in material part by paragraphs 8, 9, and 10 of the Recommended Order. The proposed findings of fact in paragraph 9 are adopted in material part by paragraph 8 of the Recommended Order. The proposed findings of fact in paragraph 10 are adopted in material part by paragraph 8 of the Recommended Order. The proposed findings of fact in paragraph 11 are adopted in material part by paragraph 12 of the Recommended Order. The proposed findings of fact in paragraph 12 are adopted in material part by paragraph 3 of the Recommended Order. The proposed findings of fact in paragraph 13 are rejected as being subordinate to the findings made in paragraph 13 of the Recommended Order. The proposed findings of fact in paragraph 14 are adopted in material part by paragraph 13 of the Recommended Order. The proposed findings of fact in paragraph 15 are adopted in material part by paragraph 12 of the Recommended Order. The proposed findings of fact in paragraphs 16 and 17 are rejected as being the recitation of testimony and as being subordinate to the findings made. The following rulings are made on the proposed findings of fact submitted by Respondent: The proposed findings of fact in paragraph 1 are adopted in material part by paragraph 2 of the Recommended Order. The proposed findings of fact in paragraph 2 are adopted in material part by paragraph 1 of the Recommended Order. The proposed findings of fact in paragraph 3 are adopted in material part by paragraphs 6 and 7 of the Recommended Order. The proposed findings of fact in paragraph 4 are adopted in material part by paragraphs 7 and 9 of the Recommended Order. The proposed findings of fact in paragraph 5 are adopted in material part by paragraphs 7 and 8 of the Recommended Order. The proposed finding that the ribbon was tied loosely is rejected because of the marks left on the student's wrists. The proposed findings of fact in paragraph 6 are rejected as being the recitation of testimony and as being subordinate to the findings made. The proposed findings of fact in paragraph 7 are rejected as being conclusions and as not being findings of fact. The proposed findings of fact in paragraph 8 are rejected. A finding that none of the students were struck or hit is rejected as being unnecessary to the conclusions reached. A finding that none of the students were abused is rejected as being a conclusion that is unnecessary to the results reached and as being unsubstantiated by the evidence. The proposed findings of fact in paragraph 9 are rejected as being unsubstantiated by the evidence. The greater weight of the evidence is that Respondent had been advised as to Petitioner's disciplinary policies and that she knew or should have known that the forms of punishment she was using violated those policies. The proposed finding of fact in paragraph 10 that the discipline inflicted on these students does not amount to corporal punishment is rejected as being a conclusion that is unnecessary to the results reached and as being unsubstantiated by the evidence. The remaining proposed findings of fact in paragraph 10 are adopted in material part. COPIES FURNISHED: Madelyn P. Schere, Esquire School Board of Administration Building 1450 Northeast Second Avenue Miami, Florida 33132 Jaime C. Bovell, Esquire 370 Minorca Avenue Coral Gables, Florida 33134 William DuFresne, Esquire 2929 Southwest Third Avenue Suite One Miami, Florida 33129 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 Dr. Joseph A. Fernandez Superintendent of Schools Dade County Public Schools Office of Professional Standards 1444 Biscayne Boulevard, Suite 215 Miami, Florida 33132
The Issue The issue in this proceeding is whether just cause exists to terminate Respondent's employment with the St. Lucie County School Board.
Findings Of Fact The Parties Petitioner is the authorized entity charged with the responsibility to operate, control, and supervise the public schools within St. Lucie County, Florida. At all times material to this proceeding, Respondent was employed by Petitioner as a teacher at Parkway Elementary School in the St. Lucie County School District. During the 2011-2012 school year, Respondent was assigned to a class of 14 pre-kindergarten children, all of whom received exceptional student education ("ESE") services. Incident of March 14, 2012 As noted previously, this case arises from an interaction between Respondent and one of her students, G.M., during the morning of March 14, 2012. At approximately 9:30 a.m. on that date, Respondent and her paraprofessional, Shameria Baker, assembled the students outside their classroom in preparation for recess. Prior to departing for the school playground, Respondent selected one of the students to act as the "line leader," and chose a second student, G.M., to pull a small cart that held playground toys. Once the students were suitably lined up, Respondent and Ms. Baker began to escort the children towards the playground area, with Ms. Baker situated near the front of the line and Respondent toward the back, in close proximity to G.M. While en route to the school playground, the students, Respondent, and Ms. Baker proceeded down a path that immediately adjoined a volleyball area (on the left) and a basketball court (on the right). For reasons known only to him, G.M. veered from the walkway and headed——with the cart in tow——towards the volleyball net.4/ Respondent, who was attending to another child at that time, attempted, unsuccessfully, to stop G.M. with verbal redirection. Undeterred, G.M. continued onward and entangled the cart in the volleyball net, which had been set at a low height. At that point, Respondent walked over to G.M. (who was crying), removed the cart from the net, and handed off the cart to another child. Seconds later, and in an effort to motion G.M. towards the walkway, Respondent placed her hand——in a benign and wholly appropriate fashion——on G.M.'s upper back area.5/ At no point did Respondent hit or strike G.M. Unbeknownst to Respondent, her interaction with G.M. had been witnessed from an indeterminate6/ distance by the school principal, Ucola Barrett-Baxter. (Ms. Barrett-Baxter's vantage point was from behind the line of students, who were walking in the opposite direction.) Believing, erroneously, that she had observed Respondent hit G.M. on the head, Ms. Barrett-Baxter proceeded to the administration building and instructed the school clerk to find Respondent in the playground area and send her to the office. As she awaited Respondent's arrival, Ms. Barrett- Baxter telephoned Susan Ranew, the School Board's Assistant Superintendent for Human Resources. During the call, Ms. Barrett-Baxter advised Ms. Ranew of the event she believed she had witnessed and discussed the need to contact the Florida Department of Children and Families ("DCF"). After she completed the call, Ms. Barrett-Baxter summoned to her office the school's ESE chairperson, Tammy DePace. A brief discussion ensued, during which Ms. Barrett- Baxter informed Ms. DePace of the allegations. Respondent entered the room moments later, at which point Ms. Barrett- Baxter, who was visibly angry, accused Respondent of committing the improper act (a hit) she thought she had witnessed. The witnesses' accounts as to what occurred next vary considerably: Ms. DePace testified that Respondent initially denied any wrongdoing, yet later admitted, during the same conversation, to hitting7/ G.M. after being confronted by Ms. Barrett-Baxter a second time; Ms. Barrett-Baxter testified, in contrast, that Respondent did not deny the misconduct and stated, "yes, it did happen," or words to that effect, upon being informed of the allegations; Respondent, offering the third (and credible) version of what occurred, testified that she was in a state of shock during the conversation, that she did not knowingly admit to any wrongdoing, and that any affirmative response on her part (e.g., "yes" or "okay") resulted from a misunderstanding as to the nature of the conduct of which she was accused. In the ensuing hours, Fred Bradley,8/ a DCF employee, initiated an investigation concerning that allegations raised by Ms. Barrett-Baxter. An examination of G.M., which Mr. Bradley conducted during the evening of March 14, 2012, yielded no sign of physical injury.9/ The following day, Mr. Bradley interviewed Respondent, who denied the allegations, as well as Ms. Barrett- Baxter, who described (and physically demonstrated) Respondent's conduct as a "shove"——as opposed to a "hit," the precise conduct alleged in the Petition.10/ Significantly, Ms. Barrett-Baxter did not advise Mr. Bradley of Respondent's supposed confession from the previous day.11/ Determinations of Ultimate Fact The greater weight of the evidence fails to establish that Respondent is guilty of violating School Board Policy 6.301(2). The greater weight of the evidence fails to establish that Respondent is guilty of violating School Board Policy 6.301(3)(b). The greater weight of the evidence fails to establish that Respondent is guilty of violating School Board Policy 6.302.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that the School Board enter a final order: (a) exonerating Respondent of all charges brought against her in this proceeding; (b) providing that Respondent be reinstated to the position from which she was suspended without pay; and (c) awarding Respondent back salary, plus benefits, that accrued during the suspension period, together with interest thereon at the statutory rate. DONE AND ENTERED this 24th day of January, 2013, in Tallahassee, Leon County, Florida. EDWARD T. BAUER 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 24th day of January, 2013.
The Issue Whether there was “just cause” for the termination of Respondent’s employment, as that term is referred to in section of the Policies and Procedures Manual of the School Board of Manatee County, Florida, by: Respondent’s using school district property for personal gain, by working on tasks related to a student-based educational European trip through Education First (EF) during her district duty hours in the spring of 2009. Respondent’s consuming excessive alcoholic beverages in the presence of students and parents of Buffalo Creek Middle School (BCMS) during an EF trip in the summer of 2009. Respondent’s reporting to BCMS on August 14, 2009, in order to collect her personal belongings, and appearing to be inebriated Respondent’s contacting witnesses to the investigation to discuss details of the investigation. Respondent’s coming on school grounds on December 7, 2009, while under the influence of alcoholic beverages.
Findings Of Fact The School Board of Manatee County, Florida, is the duly-authorized entity responsible for providing public education in Manatee County, Florida. Respondent, Tammy M. Johnson, has been employed with the School District of Manatee County since February 8, 2000. She was most recently employed as the senior secretary at BCMS. As the senior secretary to the principal of BCMS, Respondent served as the point person for the principal of the school, working hand-in-hand with the principal. Her duties included screening the principal’s mail and phone calls, handling substitute teachers, performing payroll duties, handling leave forms, coordinating clerical office staff, and handling emergency situations as they arose within the school. Respondent was exposed to confidential school information on a regular basis, such as complaints regarding faculty and staff and policy changes being considered within the district. Respondent was employed on an annual contract basis, which was renewed from year to year. Her employment contract was for a term of 11 months and lasted typically from early August to June of the following year. While employed full-time as the senior secretary, in the fall of 2008 and the spring of 2009, Respondent organized a trip to Europe through the student-based educational travel company EF. Respondent sought to recruit BCMS students and their family members to sign up for the trip by placing fliers on campus, posting a sign-up board at the incoming students’ open house, and placing a notice about the trip in the school newsletter. Respondent routinely included a signature line in her school-assigned email address that identified her not only as a Senior Secretary but as an EF tour guide in every email that she sent from her school account. Announcements about informational meetings related to the EF trip were made over the school intercom and these meetings occurred on school property in the evenings. Respondent made fliers at BCMS advertising the EF trip on at least two occasions using school equipment. On one occasion, she made 750 fliers using school paper. During the time Respondent was conducting these activities, her principal was Scott Cooper. Cooper knew of Respondent’s activities in promoting the trip, and that she was using school resources to accomplish it. He did not object or tell Respondent to stop doing so; in fact, he encouraged such trips. Respondent ultimately recruited 10 student participants for the EF trip, all of whom were students at BCMS. The trip also included 15 adult participants, all of whom were family members of BCMS students. In exchange for her work organizing, promoting and chaperoning the EF European trip, Respondent was to receive, and did receive a free spot on the trip to Europe. Respondent served as the group leader for the EF group of BCMS students and parents. Three other BCMS teachers became involved in the EF trip as chaperones: Joseph Baker, Malissa Baker and Jessica Vieira. They also used school resources to promote the trip. The EF trip to Europe took place from June 22, 2009, to July 1, 2009. On June 17, 2009, the Office of Professional Standards (OPS) received a complaint that Respondent was misusing school resources for personal gain. OPS opened an investigation into these allegations. Shortly before Respondent left for Europe, Scott Cooper was replaced as principal. The newly-appointed BCMS Principal Matt Gruhl, met with Respondent to discuss his concern that she included an EF tagline in the signature block of all of her school emails. Gruhl asked Respondent to remove the EF tagline from her email, take the EF poster off of her door, make any necessary copies at a non-school location, and pay standard rates in the future for any advertising done in the school newsletter. Respondent complied with the directive. On June 22, 2009, the flight for the EF trip left from Tampa. Prior to the flight’s departure, Respondent purchased several small bottles of vodka in the airport duty-free shop. Several students observed Respondent doing so. Respondent drank two vodka-and-cranberry drinks on the flight to Europe in the presence of BCMS students and parents. Upon arrival in London, Respondent went with several other parents to a pub across the street from the hotel. While there, Respondent had too much to drink that evening and became intoxicated. Several BCMS students said that Respondent was speaking so loudly that they were able to hear her all the way across the street and up to the fifth story of the hotel. These students were upset by Respondent’s behavior. Respondent was very loud when she returned from the pub. BCMS parents had to help Respondent into the lobby, as she was falling over and laughing loudly. The adults tried to persuade Respondent to go to bed, but she insisted on ordering another drink in the lobby. Respondent was finally coaxed to go upstairs to bed, and she began banging on all the doors to the hotel rooms in the hallway. Respondent had to be physically restrained from banging on the doors. On more than four occasions Respondent was observed mixing vodka-and-cranberry juice drinks in a Styrofoam to-go cup before leaving the hotel with students for the day. The BCMS students on the EF trip commented on multiple occasions about Respondent’s drinking on the trip. The students did not want to go off alone with Respondent because they did not feel safe with her. The students also made observations that Respondent was drunk and stumbling around. On the return plane ride from Europe to Tampa, Respondent again was drinking alcoholic beverages to excess and exhibiting loud and boisterous behavior. While Respondent was in Europe with the EF trip, she had received a text message notifying her that she may be under an OPS investigation. Shortly after Respondent returned, she approached Gruhl and asked him whether there was an investigation concerning her being conducted by OPS. When Gruhl declined to comment on any pending OPS investigations, Respondent then called Debra Horne, specialist in the Office of Professional Standards, and asked whether there was an investigation being conducted. Horne confirmed that there was an open investigation and told Respondent that it might not be resolved until after school started because it involved students and parents. After speaking to Horne, on or about July 20, 2009, and being made aware that she was involved in an open investigation, Respondent called Vieira and told her that they needed to get their stories straight. Respondent also left messages for Joe and Malissa Baker stating that she heard that there was an OPS investigation and wanted to know if they had any information or had heard anything about the investigation. Respondent was only partially aware of a School Board rule which prohibited contacting potential witnesses during an investigation, although she was aware that she was expected to abide by all School Board rules. Gruhl spoke to Horne and reported Vieira and Malissa Baker’s concerns. Horne expanded her open investigation to include the allegations about Respondent’s behavior on the trip. Effective August 3, 2009, Respondent was removed from her position and placed on administrative leave with pay pending the completion of an investigation of her conduct by the Petitioner’s Office of Professional Standards. During the time of paid leave she was required to report daily to her principal and could not travel outside the country without permission. After Respondent was placed on paid administrative leave, she came to the BCMS campus on August 14, 2009, to pick up her belongings from her office. She met Gruhl and Assistant Principal Nancy Breiding at the school. Gruhl observed that Respondent smelled strongly of alcohol. She had difficulty keeping her balance and ran into walls, ran into doorways and almost fell when she tried to adjust her flip-flop. Respondent also had great difficulty following the line of conversation when she was speaking with Gruhl and repeated herself numerous times. Concerned, Gruhl permitted Respondent to leave campus after observing that her husband was driving her. He did not seek to send her for drug or alcohol testing, as provided in school board rules. Respondent testified that she had “just one” vodka and grapefruit drink at lunch earlier that day. She denied that Gruhl’s observations were accurate, but also alleged that she was on a prescription medication, Cymbalta, and stated that it caused her to be increasingly emotional and somewhat dizzy. However, she testified that she was completely unaware that combining the medication with alcoholic beverages would have an adverse effect on her. Respondent’s testimony in this regard is not credible. Gruhl’s observations of Respondent’s behavior on August 14, 2009, were incorporated into the OPS investigation. Horne interviewed Respondent on August 20, 2009, regarding the allegations made prior to the trip and the allegations made concerning her behavior on the EF trip. On September 1, 2009, the results of the OPS investigation was presented within the chain-of-command, who recommended to Superintendant Tim McGonegal that Respondent’s employment be terminated. The Superintendant concurred with their recommendation, and on September 21, 2009, the Superintendant notified Respondent that he intended to seek termination of her employment, or, should she request an administrative hearing, suspension without pay pending the outcome of that hearing. Respondent requested an administrative hearing. At their meeting on October 13, 2009, the School Board suspended Respondent without pay. While on unpaid suspension, Respondent had no duties, was not required to report to anyone, and was not limited in her ability to travel. However, she was still a School District employee. On December 7, 2009, while on suspension without pay, Respondent returned by car to the BCMS campus while school was in session to check her son out early for a doctor’s appointment. Aware that she was under investigation for excessive drinking, Respondent admitted that she nonetheless had a drink at lunchtime before going to pick up her son from school around 2 p.m. While on campus, Respondent’s eyes were glassy, she smelled of alcohol, and she was unkempt, which was out of keeping with her usual appearance. When Gruhl learned of the incident on December 7, 2009, he recommended to the Superintendant that Johnson not be permitted to return to the BCMS campus On December 7, 2009, the OPS opened an addendum investigatory file on Respondent concerning the events of December 7, 2009. The addendum OPS investigation alleged that, on December 7, 2009, Johnson entered the BCMS campus while under the influence of alcohol. The testimony of Horne, Keefer, Vieira, Hosier and Gruhl is credible. Respondent’s testimony is found to be unreliable.
The Issue The issue presented for decision in these consolidated cases is whether Respondent’s employment with the Polk County School Board, first as an assistant principal, then as a teacher, should be terminated, as recommended by Glenn Reynolds, Superintendent of Schools, pursuant to Section 231.36(6), Florida Statutes.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made: Respondent is an African-American male who attended Florida A&M University and Jacksonville State, earning masters degrees in physical education and educational leadership. Respondent served ten years in the military prior to entering the field of education. Respondent has been employed by the School Board since 1988. From 1988 to 1993, he was a teacher. In 1993, Respondent was promoted to the position of Assistant Principal for Discipline at Boone Middle School ("Boone"). He served in that position until July 23, 1997. Eileen Killebrew was the principal at Boone and was Respondent’s direct supervisor throughout his tenure at Boone. Ms. Killebrew testified that Respondent did a "great job" during his first three years at Boone. Respondent testified that he believed he had a good working relationship with Ms. Killebrew until April 25, 1997, when the events that are the subject of this proceeding commenced. Respondent testified that Ms. Killebrew repeatedly told him he was the best assistant principal she had ever seen and expressed a desire to continue working with Respondent throughout her career. Ms. Killebrew testified that Respondent’s job performance began to suffer during the 1996-1997 school year. He seemed preoccupied and less focused than in prior years. He spent more time on personal telephone calls. Parents complained that they felt Respondent was not listening to their children in his role as Assistant Principal for Discipline. Ms. Killebrew stated that she attributed these problems to difficulties Respondent was having in building a new house and that she referred him to a lawyer who handled such matters. No documentation was produced to corroborate Ms. Killebrew’s testimony regarding Respondent’s performance in the 1996-1997 school year. She did not set forth her concerns in any evaluation or other contemporaneous notation. She testified that parents and teachers had come to her with concerns, but she did not name them and Petitioner did not produce any of them as witnesses. None of the other witnesses in this proceeding testified that they had noted any problems with Respondent’s performance during this period, or that Ms. Killebrew had mentioned her concerns to them prior to April 25, 1997. Respondent testified that throughout the 1996-1997 school year, Ms. Killebrew had been confiding in him regarding her ambition to move up to a higher administrative position in the school district. Ms. Killebrew told Respondent that she had applied for two area superintendent positions, and later that she was a finalist for one of those positions. Ms. Killebrew told Respondent on several occasions that she was convinced that if a woman were to get the job, it would be her. Knowing that Respondent was also ambitious of improving his position, Ms. Killebrew assured him that if she got the area superintendent job, she would recommend him for the position as principal of Boone. At some point in April 1997, Ms. Killebrew learned she would not get the area superintendent job. Shortly thereafter, she learned that she was being reassigned from Boone to Crystal Lake Middle School. Respondent testified that on the afternoon of her reassignment, Ms. Killebrew came into his office. She had tears in her eyes and clearly had been weeping. She told Respondent that she was going home, leaving him and Nancy Woods, the other assistant principal at Boone, in charge of the school for the remainder of the afternoon. The following morning, Ms. Killebrew again came to Respondent’s office. Respondent testified that she began telling him about the reassignment and broke down crying. Respondent testified that Ms. Killebrew was upset partially because she believed that Crystal Lake was the worst school in the district, with students from the worst families in the county, "white trash" and "rednecks." She asked Respondent to transfer with her to continue as her Assistant Principal of Discipline. After thinking about it for a day, Respondent declined Ms. Killebrew’s request to join her at Crystal Lake. He told her that he was in the pool for appointment to a principal’s position, and as one of only two African-American males in the pool, he believed his chances were good. Respondent also had been advised that his chances of getting a principal’s job would be enhanced if he obtained administrative experience outside his current area of discipline. Thus, he told Ms. Killebrew that if he were to spend another year as an assistant principal, he would attempt to become Assistant Principal for Curriculum at Boone. Frances Lee, a teacher at Boone for 32 years, testified that Respondent was a very fair, congenial person. She stated that he was also a very religious person and that she often talked about the Bible with him. Bill Podoski, the guidance counselor at Boone, testified that in his experience, Respondent had always behaved professionally. Raymond Dean Hunt, a teacher at Boone during the relevant time period, testified that he was always impressed with the professional conduct of Respondent. He stated that they had disagreements over the years, and "I’m not one to back down or be quiet . . . but I’ve been impressed with Mr. Mickens, the way he handled me, if you will, on these occasions." He testified that on these occasions, Respondent’s manner was assertive but professional. Rae Fields, a parent and daily volunteer at Boone during the relevant period, testified that Respondent was a very even-tempered person. She had never heard him raise his voice, and noted that he had to use a megaphone in the hallways to make himself heard. She testified that the students respected Respondent and that he could break up school yard fights by simply ordering the combatants to stop. She testified that children would come to him with their problems and that often in the morning there would be a line of students waiting outside his door to talk with him. She told her son that if he was ever in trouble, he should go straight to Respondent. Ms. Fields testified that the idea of Respondent yelling or even raising his voice at anyone would be "totally out of character." She added that she had seen parents "all over his desk, yelling in his face, carrying on," while Respondent sat quietly and listened. Irene Roberts, the PTA President at Boone and a daily volunteer at the school, testified that Respondent was always a gentleman, very polite, and very fair. She took her own child to Respondent, "which I would never have done if I had not felt that Mr. Mickens was fair in his dealings with all children, and that he would help my son and deal with him fairly." Ms. Roberts testified that Respondent treated all children alike and with respect. He never screamed or yelled at the students and was never threatening or rude. Ms. Roberts testified that Respondent was equally adept at dealing with parents: I was amazed, very often, to see this man never lose control. I saw parents come in who were so rude and cruel when they thought the punishment that was meted out to their child wasn’t fair, and I heard him called names and everything, and he never ever lost his temper. He always was polite to them and a gentleman. Ms. Fields and Ms. Roberts were less complimentary toward Ms. Killebrew. Ms. Fields testified that she got to know Ms. Killebrew fairly well as a volunteer at Boone, where she worked for several hours every school day. Ms. Fields characterized Ms. Killebrew as a "bully" who "liked to intimidate the parents. She liked to intimidate the students." More diplomatically, Ms. Roberts described Ms. Killebrew as "feisty." "It was her way or no way. She just didn’t . . . give very easily." When asked if Ms. Killebrew was open-minded, Ms. Roberts replied, "That all depended on what she wanted or what the occasion was." During Ms. Killebrew’s tenure at Boone, there was a certain amount of racial tension at the school. Much of the tension focused on the School Resource Officer ("SRO"), Ed Nixon. The SRO is a local police officer or sheriff’s deputy assigned to each middle school and high school in Polk County. Ms. Roberts, who is white, testified about Officer Nixon as follows: There’s no nice way to say this. I think he was a little bit biased, bigoted. He kind of was very heavy handed with Hispanic kids and sometimes the black children. He just . . . seemed to be a little heavier and hotter on them . . . He was kind of, he was rough with kids and he was especially rough with the Hispanics. Ms. Fields, who is African-American, agreed with Ms. Roberts’ assessment. She testified that Officer Nixon was different with different children, and not friendly with minority children. She testified that "If you were doing something, and you were black or Hispanic, you more than likely got drug [sic] into his office or into the main office for some type of action to be taken." She testified that Officer Nixon was more likely to let white children walk away with a scolding, unless the offense was too severe to overlook. Ms. Fields testified that she was also disturbed that Officer Nixon was actively involved in disciplining children for typical school yard infractions, when she understood the SRO’s job to be deterring illegal activity. Ms. Fields testified that she thought the school, not the SRO, was responsible for primary discipline of children, and she brought her concerns to the attention of Ms. Killebrew. Ms. Fields testified that Ms. Killebrew at first tried to mollify her with a recitation of Officer Nixon’s personal and professional virtues. When Ms. Fields persisted, Ms. Killebrew told Ms. Fields that she could take her child out of the school if she was unhappy with Officer Nixon. Ms. Fields testified that this was a typical reaction by Ms. Killebrew to parents’ expressions of concern. Ms. Killebrew testified that she could not recall whether Officer Nixon was contributing to problems on the Boone campus and that nothing to that effect had ever been reported to her. This testimony is not credible. Both Ms. Roberts and Ms. Fields testified that Officer Nixon tended to harass verbally certain students. Ms. Fields noted this to be especially the case with certain Hispanic children whom Officer Nixon characterized as "known gang members." Ms. Fields testified that the cause of much of the aforementioned parental "yelling and screaming" was Officer Nixon. Parents would come in to complain about Officer Nixon’s treatment of their children, and Mr. Mickens would have to deal with the problem. Respondent testified as to Officer Nixon’s treatment of one particular Hispanic student, J.G. Respondent stated that J.G. had a discipline record that included some time in an alternative school, and that Officer Nixon claimed to have information that J.G. was a "bona fide gang member." Respondent testified that Officer Nixon monitored J.G.’s activity constantly, and that he was always confrontational in his dealings with J.G. Respondent added: And I have to say, I got numerous complaints from Hispanic kids, from black kids . . . it was on a regular basis about how he handled them . . . . [J.G.] had complained to me himself about, you know, Officer Nixon, the way he said things, accusations and things, you know. If there may be some writing on the bathroom wall, or there may be a gang sign on a table, he was always . . . one of the individuals that Officer Nixon would automatically allege or assume had performed the misconduct, you know, without really any evidence. [J.G.] always complained that . . . Officer Nixon always came up and would be questioning him and breaking up their groups, you know, this type thing . . . "He’s not making these other people spread out. Why are we supposed to be gang members, and none of the other people are being accused . . ." And there was always comments about some of the kids’ parents being drug dealers or being, you know, gang members. The morning of Friday, April 25, 1997, was somber on the Boone campus. Ms. Rubio, an aide for special education students at Boone, had died suddenly. Ms. Rubio very well-liked by students and teachers and everyone on the campus was saddened at her death. April 25, 1997, was the date of her funeral. The funeral was scheduled for 11 a.m. at a local church. Respondent came to the campus early that morning. Ms. Killebrew was not on the campus that day. She testified that she was absent because she was at another middle school participating in preparations for a presentation to the School Board. However, she later testified that she remembered attending Ms. Rubio’s funeral. It is undisputed that Ms. Killebrew was not on the Boone campus that morning. Because of Ms. Killebrew’s absence, the two assistant principals met and decided that only one of them should attend the funeral. They decided that Respondent would go to the funeral and that Ms. Woods would stay in charge of the campus. In chatting with Officer Nixon, Respondent mentioned that he was going to the funeral. At that, Officer Nixon "just started crying. He told me that Ms. Killebrew told him that he could not go. He said that he had wanted to lead the procession, you know. He asked me to give his condolences, you know, to the family. And he . . . was just crying about it." Respondent went to the funeral, and returned to the Boone campus around noon. He headed for the patio outside the cafeteria to prepare for monitoring the eighth grade lunch hour. As usual, he carried his megaphone and a portable radio with which he communicated with Officer Nixon. Respondent testified that, as he entered the hallway adjacent to the cafeteria, he saw a student who, upon seeing Respondent, turned on his heels and headed in the other direction toward his class. At about the same time, Officer Nixon radioed Respondent. Respondent testified that he thought Officer Nixon’s message related to the student whom Respondent had just seen heading toward class. Respondent replied to Officer Nixon that all was well, the problem was taken care of. Respondent testified that he later found out that he had misunderstood Officer Nixon’s message. "I learned later on that he had called me to come over to the cafeteria, and I didn’t come. But I did not understand that that was the communication." Respondent testified that he was standing on the patio monitoring the eighth graders going into the cafeteria when Officer Nixon approached him from behind. Officer Nixon asked Respondent if he had disciplined J.G. for running in the bus zone a few days earlier. Respondent answered that he had forgotten. Respondent testified that Officer Nixon then said, "I’m going to handcuff him, slam dunk him, and haul him downtown." Respondent testified that this statement "got my attention," and that he told Officer Nixon to write up a referral on J.G. if he did something wrong. Respondent testified that Officer Nixon was upset, and continued to mutter, to no one in particular, "I’m going to haul him downtown. I’m going to haul his butt off campus." Respondent testified that, up to this point, he had an amicable working relationship with Officer Nixon. They had always been able to talk about Respondent’s concerns with Officer Nixon’s performance. "I treated him with the utmost courtesy, and vice versa. He listened to me. Several things he was doing that I had concerns about, he did proper research and he changed from doing. And we were making progress." Respondent testified that his goal was always to avoid "getting physical" with the children. Two years earlier, Respondent had seen a child handcuffed, thrown to the ground and manhandled, and had vowed that he was going to do everything possible to prevent that from happening again. Thus, when he heard Officer Nixon talking about "slam dunking" J.G., Respondent said, "I don’t want you picking on the kid." With that, Officer Nixon stepped away from Respondent, pointed his finger, and said, "You’re not my boss. You can’t tell me what to do." Respondent testified that he did not respond because there were still children in the area filing into the cafeteria. Officer Nixon then walked away toward the main office. Respondent waited for the children to finish filing into the cafeteria, which he estimated took a couple of minutes. He then asked another teacher to take over his monitoring duties and went to the office. Upon reaching the office, Respondent told Officer Nixon that they needed to speak. Officer Nixon shrugged dismissively and walked away from Respondent. Respondent again stated that he needed to speak to Officer Nixon and that if Officer Nixon would not speak to him, then Officer Nixon should leave the campus. Respondent testified that they were standing at the door of the office and that there were no threats of violence or belligerence of any kind. Only three other people were in the office area at this time: Bill Podoski and Raymond Dean Hunt, teachers who were in Mr. Hunt’s adjacent guidance office when Respondent and Officer Nixon entered; and the guidance secretary. Mr. Podoski heard the altercation from Mr. Hunt’s office and testified that he did not hear Respondent raise his voice. Mr. Hunt came out of his office and saw the two men. He testified that Officer Nixon was speaking loudly and belligerently, saying something to the effect that Respondent was not his boss and could not tell him what to do. Mr. Hunt stated that Respondent was speaking assertively but not as loudly as Officer Nixon. He testified that Respondent’s tone of voice was no louder than he had heard it in previous disagreements Mr. Hunt had had with Respondent, "assertive but professional." Respondent and Officer Nixon proceeded out the office door to a walkway outside the building. Respondent again told Officer Nixon that he should leave the campus. Officer Nixon responded that he was not going to argue with Respondent in front of students, then walked away. Respondent testified that there were a few students sitting on a bench along the walkway. He testified that he did not believe the bulk of the students sitting on the patio could hear his conversation with Officer Nixon due to the distance and to the fact that the patio was noisy with typical lunchtime activity. Respondent testified that at this point he was content to let Officer Nixon walk away, as he had duties to resume. He did not see Officer Nixon again that day. Respondent testified that Ms. Woods, the other assistant principal, came into his office some time later that afternoon. Ms. Woods told Respondent that she had spoken with Officer Nixon, who told her he was scared that Respondent was calling his boss about the incident. Ms. Woods executed a sworn statement on Monday, April 28, 1997. Her statement reads, in relevant part: I was at eighth grade lunch and Officer Nixon came over to where I was. He was very upset. He said that Mr. Mickens had yelled at him in front of students and told him to get off campus. I tried to calm him down. He went on out the back door of the cafeteria. I walked over to the door with him, still trying to calm him down. He said it wasn’t right for Mr. Mickens to do that in front of students. I went back inside and Officer Nixon went on down the sidewalk. * * * After lunch duty was over, Mr. Brickel and I were walking back to the office and Officer Nixon was standing out there by the wall. He was crying (not boo-hooing, but tears in his eyes). He was saying that Mr. Mickens was calling his chief. He said that several times. We tried to calm him down, and Mr. Brickel told him to get in his car and go off and have a cigarette to help him calm down. James Brickel, the teacher referenced in Ms. Woods’ statement, also provided a written statement that confirmed the essentials of Ms. Woods’ account, as well as Respondent’s testimony regarding the miscommunication over the radio between Respondent and Officer Nixon. Respondent testified that after the incident, he called the office of Carolyn Baldwin, the assistant superintendent, to let her know what he said to Officer Nixon. Respondent also called Angus Williams, the Director of Discipline for the school district, who served as the school system’s liaison to the SROs. Respondent attempted to call Lt. Raggs, who was the charge officer for SROs, or anyone else in authority at the Haines City Police Department, but could not reach anyone there. He instructed his secretary to call them continuously, but was never able to speak to them. Respondent testified that Ms. Woods told him that she would call Ms. Killebrew. Ms. Killebrew testified that Ms. Woods called her. Ms. Killebrew stated that Ms. Woods was upset and told her there had been a loud argument between Mr. Mickens and the SRO. Ms. Killebrew stated that Ms. Woods was concerned because students had heard the argument and were already talking about it. Ms. Killebrew stated that Ms. Woods asked her to come back to Boone quickly. Ms. Killebrew testified that Ms. Woods also told her that Chief Wheeler of the Haines City Police Department wanted Ms. Killebrew to call him. This fact indicates that the Haines City Police Department was aware of the situation and acting upon it, despite Respondent’s futile attempts to contact the police directly. Ms. Killebrew testified that she called Chief Wheeler from her car, and he was "very angry and upset." It was agreed that Ms. Killebrew would meet him at the police station. Ms. Killebrew testified that Chief Wheeler was so angry and upset that she called Mr. Williams, the SRO liaison, to go with her to the police station to help guide her through the meeting. Ms. Killebrew and Mr. Williams first went to Boone, where they heard Respondent’s account of the incident. Ms. Killebrew testified that Respondent was "very calm" as he described what happened. She stated that the one point of contention was Respondent’s statement that he asked Officer Nixon to leave the campus. Mr. Williams informed Respondent that the SROs were not employed by the school district and that school administrators lacked the authority to order them off campus. Ms. Killebrew testified that Respondent believed he should have such authority but that he expressed his disagreement in a calm manner. Respondent generally agreed with Ms. Killebrew’s version of the meeting. His recollection was that it was Ms. Killebrew, not Mr. Williams, who told him he lacked the authority to order Officer Nixon off campus. Respondent also recalled that Mr. Williams cut off the conversation during this disagreement and stated that "we’re going to let administration take care of" investigating the matter. Mr. Williams instructed Respondent to report to the school board offices on the morning of Monday, April 28, 1997. Ms. Killebrew and Mr. Williams then drove to the police station. She testified that Officer Nixon was there when she arrived at the police station. Chief Wheeler and Lt. Raggs told her that Officer Nixon was in an office writing up his statement of what happened. Officer Nixon’s unsworn statement reads as follows, in full: On Friday, April 25, 1997 I, Officer Nixon, was on duty at Boone Middle School (225 South 22nd Street) when I advised the Assistant Principal Ron Mikens [sic] that I was having a problem with a student, [J.G.], in the cafeteria. Mr. Mikens then refused to come to the cafeteria. 8th grade lunch then started and I went outside to speak to Mr. Mikens about the problem. I told Mr. Mikens that [J.G.] was accused of picking on [B.D.] and I asked him if he had done anything about an incident that occured [sic] earlier in the week when [J.G.] refused to leave the bus zone and Mr. Mikens told me he had not done anything. I then told Mr. Mikens that [J.G.]’s behavior was getting worse and I felt that a student may get injured if some action was not taken. Mr. Mikens then got agitated and raised his voice at me and told me that I was picking on the kids. Mr. Mikens then pointed his finger at me and said, "let me tell you something Officer Nixon." I then told Mr. Mikens that I do not work for him and walked away. I then went into the main office and walked down the hall when Mr. Mikens began yelling at me again and pointing his finger in my face. I told him again that I did not work for him and at that point he told me to leave the campus. I told him I would not leave the campus and I walked out the door to Student Services and he followed me out the door. Mr. Mikens then began yelling at me in the hallway adjacent to the 8th grade patio and he put his finger in my face and told me that I did work for him and I will leave the school. Mr. Mikens created a disturbance in front of several 8th grade students and Mr. Mikens also stated that he wished I did put my hands on him. I walked away from him again and told Assistant Principal Becky Woods of the situation. I then left the school to prevent any further incident. Officer Nixon did not testify at the hearing. Ms. Killebrew testified that Chief Wheeler was threatening to arrest Respondent. Mr. Williams interjected that he would go to the school and that he would handle the situation. On Monday, Respondent reported as instructed and was interviewed by Dale McDonald, the school district’s Personnel Investigator Specialist, along with William Londeree, the Director of Employee Relations and Noninstructional Personnel. Respondent testified that he wrote a statement at their request. Respondent then was sent home for the rest of the day. Besides meeting with Respondent, Mr. McDonald talked to roughly ten students and had each of them make a written statement. He testified that Respondent gave him the names of three or four students who might have observed the incident. Mr. McDonald did not indicate the source of the other names. Ms. Roberts, the PTA President, testified that she was in the office on the day the interviews were conducted. Mr. McDonald was calling students down to the office, and Ms. Roberts noted four or five students who were discussing what they were going to say when Mr. McDonald called them in. She also noted that four of these students were members of the "Explorers," a Boy Scout type organization focusing on police work. Officer Nixon ran the Explorers chapter at Boone. Ms. Roberts testified that she interrupted the students’ conversation and told them to cease discussing the matter. She ordered them to sit quietly, wait to be called in, and tell the truth to the investigator. In a subsequent written statement, Mr. McDonald reported that he asked each student interviewed if he or she was a member of the Explorers, and that they all told him they were not. Ms. Roberts, who was at Boone every day during that school year and logged more than 1,000 volunteer hours, was in a position to know that the students in question were members of the Explorers, regardless of what these students told Mr. McDonald, an outsider to the Boone campus. Mr. McDonald also took statements from four staff persons, including the statements of Ms. Woods and Mr. Brickel referenced above. Mr. McDonald did not take the statement of Mr. Hunt because "Mr. Hunt was apparently a witness to only the tail end of the conversation." Mr. McDonald’s reasoning is curious in light of the fact that several of the statements he deemed worth taking were from students who saw only the episode on the walkway, and who could hear nothing of what the two men were saying. The walkway episode occurred later than the scene witnessed by Mr. Hunt. Leaving aside questions of bias on the part of the student witnesses, their hearsay statements are unreliable on their face as the basis for findings of fact. The students claim to have heard statements and seen actions that neither participant made or took. One student claimed to have seen Respondent raise his fist as if to hit Officer Nixon. Given the self-serving tenor of Officer Nixon’s written statement, it is difficult to believe he would have refrained from mentioning such an action if it occurred. The students also placed statements in the wrong person’s mouth. Even Officer Nixon agreed that it was he who substantially stated, "You’re not my boss." Yet one of the students claims Respondent made that statement. Mr. McDonald took the statement of one student who saw nothing of the incident, but whose friends told her that Respondent and Officer Nixon were "mad at each other." Another student heard someone say, "Don’t put your hand on me," but did not know who said it. Mr. McDonald also apparently found some value in the following student statement, which reads in full: Last Friday I had just come out of the lunchroom and I went to go sit with my friends and [S.W.] was sitting down by me and I was starting to talk to him and he told me to be quiet he wanted to hear what Mr. Mickens, Officer Nixon, and Mr. Brickel was saying, so I turned around to see what they were doing and that is all I saw. I could not understand what they were saying. Mr. Mickens was talking, but he usually talks loud. None of the students testified at the hearing, further eroding the probative value of their cursory written statements. The students’ statements are useful as an impressionistic indication that the conversation was somewhat more heated than Respondent recalled. All of the students agreed that both men appeared angry. The statements are also useful to indicate that Officer Nixon was not merely the passive recipient of abuse as he claimed in his self-serving written statement. Finally, the student statements are of some value in corroborating Respondent’s testimony that the conversation was not conducted in loud tones. Some of the students frankly admitted they could not hear what the two men were saying. Others claim to have heard statements that appear to be their surmises of what the men must have been saying, given that they "looked mad." In summary, Respondent’s version of events is the only one made under oath and subject to cross-examination, and was corroborated in part by Mr. Hunt. Petitioner offered no testimony from any eyewitness to the event. Officer Nixon’s unsworn hearsay statement is patently self-serving, portraying him as the victim of an unprovoked tirade by Respondent. The student statements are unreliable, except as indicated above. Respondent’s version is consistent with the descriptions of his character and demeanor and of Officer Nixon’s character and demeanor offered at the hearing. It is found that Respondent’s version of the incident with Officer Nixon is essentially accurate, though it likely understates somewhat the heat of the conversation between the two men. It is found that the confrontation was entirely verbal, and that neither man ever threatened to escalate the matter to physical violence. Both men were in a labile emotional state due to the funeral of Ms. Rubio, which contributed to turning a minor misunderstanding into a confrontation. Respondent calmed down quickly, but Officer Nixon remained upset and fearful that Respondent would report his actions to his superiors. This caused Officer Nixon to preemptively go to his superiors with his one-sided version of events, which outraged Chief Wheeler and led him to demand retribution against Respondent. Returning to the chronology of events, Respondent was sent home on Monday, April 28, 1997, after his meeting with Messrs. Londeree and McDonald. On Wednesday, April 30, Respondent received a phone call from Ms. Baldwin’s secretary, telling him to come to a meeting at which Ms. Baldwin "was going to work this thing out." He was told nothing further about the substance of this meeting or even who would be present. Ms. Baldwin testified that the meeting was attended by herself, Respondent, Officer Nixon, Ms. Killebrew, Chief Wheeler, Angus Williams, and Tillman Sanders, who worked in the Superintendent’s office. Ms. Killebrew recalled that two or three police lieutenants were present along with Chief Wheeler. Respondent also recalled that at least one other police officer besides Officer Nixon and Chief Wheeler was present. All agreed that Ms. Baldwin chaired the meeting. Ms. Baldwin testified that the meeting was called at the request of Chief Wheeler because he was "very upset about what he perceived to be unprofessional treatment of a police officer on our school campus." Ms. Baldwin testified that her agenda for the meeting was to assure Chief Wheeler that the incident would not be repeated and to allow Chief Wheeler to speak directly to Respondent. She did not testify as to any effort made by her or her staff to inform Respondent of the purpose of the meeting. Ms. Baldwin testified that Respondent spoke at length, giving his version of events. She opined that he seemed "pretty defensive," and became upset with Officer Nixon’s version of events. Ms. Killebrew testified that she was instructed by Ms. Baldwin during the meeting to write a letter of reprimand to be placed in Respondent’s file. She stated that Respondent was upset by this instruction and continued to argue that such a letter was not in order. Ms. Baldwin also testified that she "recommended" to Ms. Killebrew that a letter of reprimand be written for unprofessional behavior in front of staff and students. Ms. Killebrew testified that Ms. Baldwin gave her detailed instructions as to the form and content of the letter. Respondent testified that he was puzzled throughout the meeting. He testified that Ms. Baldwin lectured him that he was not under any circumstances to order a police officer off the campus. He testified that Chief Wheeler was extremely angry at the statement he had written, which contradicted that of Officer Nixon. At some point, it became clear to Respondent that the purpose of the meeting was to give him a letter of reprimand, not to air the facts of the situation. He testified that he had never heard of any school employee receiving such a public reprimand. Respondent testified that Ms. Baldwin stated that she had not read Mr. McDonald’s report and was not interested in reading it. This was essentially confirmed by Ms. Baldwin, who testified that her basic understanding of the facts came by way of conversations with Ms. Killebrew. Ms. Baldwin testified that it was not her role to investigate the facts. As found above, Ms. Killebrew was not a witness to any of the events on the Boone campus. Thus, Ms. Baldwin’s version of the facts was a third hand retelling of Officer Nixon’s story and need not be repeated here. Ms. Baldwin testified that Ms. Killebrew assured her that "numerous" staff members at Boone confirmed her version of the story, essentially an adoption of Officer Nixon’s statement. Neither Ms. Baldwin nor Ms. Killebrew provided the names of these "numerous" staff members. Ms. Baldwin admitted she performed no independent investigation of the facts or of the credibility and emotional state of Officer Nixon. She was not made aware of teachers from Boone who disagreed with Ms. Killebrew’s version of the facts. Based upon all the testimony, it is found that the principal purpose of this meeting was to publicly reprimand Respondent in an effort to mollify Chief Wheeler of the Haines City Police Department. The testimony indicates that every school board employee at the meeting, except Respondent and Angus Williams, was aware beforehand that he or she was present for a public chastisement of Respondent, not for a fair hearing. Both Ms. Baldwin and Ms. Killebrew insisted that the reprimand had nothing to do with whether Respondent was right or wrong in the argument, but was based on his behavior in front of students and staff. Their testimony was that they were not required to choose between the stories of Respondent and Officer Nixon in order to reprimand Respondent. This testimony is belied by the actual text of the letter of reprimand, dated April 30, 1997, which states in relevant part: I regret that I must reprimand you for unprofessional behavior in the performance of your duties as Assistant Principal at Boone Middle School. This comes as a result of the incident that took place with School Resource Officer Ed Nixon on Friday, April 25, 1997. I am also requiring that you get counseling through the Employee Assistance Program in the hope that it may help you understand the situation better. Despite its use of the first person singular, the letter was signed by both Ms. Baldwin and Ms. Killebrew. The first paragraph of the letter is consistent with the testimony that Respondent was reprimanded for having an argument with Officer Nixon in front of students and staff, regardless of the motivation or whose version of the story Ms. Baldwin and Ms. Killebrew believed. However, in the second paragraph of their letter, Ms. Baldwin and Ms. Killebrew order Respondent to enter counseling. This order indicates that Respondent’s version of events was disregarded and that Officer Nixon’s was entirely accepted. If Respondent was confronting Officer Nixon to protect a student from harassment and possibly from physical abuse, counseling would hardly be necessary to help him "understand the situation." Counseling might be called for if Respondent had gone into an unprovoked rage in response to an innocuous question by Officer Nixon. The finding that Respondent’s story was disregarded is supported by the fact that no disciplinary action was taken against Officer Nixon, the other participant in the incident. Respondent was required to stay home for at least three school days while his supervisors contemplated a course of action. Officer Nixon returned to Boone on the Monday following the incident. It is understood that the school district apparently lacked authority to take direct disciplinary action against Officer Nixon. However, nothing in the record of this case indicates that anyone from the school district even suggested disciplinary action to Officer Nixon’s superiors, despite his participation in the incident and despite repeated complaints from parents about Officer Nixon’s methods and actions on the Boone campus generally. This supports the finding that Respondent’s superiors accepted wholesale the facts as stated by Officer Nixon. Ms. Baldwin testified that the words "I am requiring that you get counseling" did not mean that she was requiring Respondent to get counseling. She stated that the words actually meant that she was "requesting" Respondent to obtain an "evaluation" because of "some behaviors . . . which appeared to be unusual to the supervisory people." She admitted that the "supervisory people" she referenced included no one other than Ms. Killebrew, who testified that the counseling requirement was placed in the letter on Ms. Baldwin’s instructions. Ms. Baldwin’s testimony cannot be credited as anything other than an effort to finesse the fact that she ordered Respondent to enter counseling when she lacked the authority to do so. Petitioner offered no evidence that Ms. Baldwin, as East Area Superintendent, was authorized to require Respondent to obtain counseling through the Employee Assistance Program. Ms. Baldwin testified that it was her understanding that her "recommendations" in this regard must be affirmed by the Superintendent and that she could take no disciplinary action against Respondent for refusing to enter counseling. When asked point blank if she believed she had the authority to require Respondent to submit to the Employee Assistance Program, she answered, "I had the authority to say that I thought that was an appropriate recommendation." Dennis Dunn, the Assistant Superintendent for Human Resources Services, testified that area superintendents such as Ms. Baldwin only have authority to recommend participation in the Employee Assistance Program. He stated that it would be gross misconduct for an area superintendent to require an employee to do something she lacks authority to require. When confronted with the actual letter of reprimand, Mr. Dunn decided that he might be wrong about the area superintendent’s authority in these matters. Ms. Killebrew testified that when she gave Respondent the letter of reprimand, she advised him to drop the matter and "let it go," that with good performance the reprimand letter would "go away." She testified that she told Respondent not to discuss the incident at school because she did not want staff and students gossiping and taking sides in the matter. Respondent testified that Ms. Killebrew never instructed him not to discuss the matter with his co-workers or students. Under cross-examination, Ms. Killebrew conceded that she never "ordered" Respondent not to discuss the matter, and that there was no written directive from her on the subject. She stated that, "I asked him not to, in a professional manner." In early May 1997, Respondent returned to his duties at Boone. On May 8, 1997, two incidents occurred involving Respondent. The first involved a conflict over whether Respondent or Officer Nixon should respond to altercations in classrooms. Ms. Killebrew’s version of events, as she stated was relayed to her by her secretary, is that the secretary placed a call sending Officer Nixon to remove disruptive students from a class pursuant to Ms. Killebrew’s general instruction to always send Officer Nixon on such calls. Shortly thereafter, Respondent approached the secretary and told her that from this point forward she was to send Respondent, not Officer Nixon, to address classroom disturbances. Ms. Killebrew’s secretary did not testify at the final hearing. It is also noted that Ms. Killebrew’s written statement describing these events appears not to have been typed by her secretary. The other letters in the record signed by Ms. Killebrew were typed by her secretary. Ms. Roberts, the PTA President, told a different version of this event. She was in the office when the call came in. She testified that Officer Nixon had just come in the front door when Respondent exited to go to the classroom. She stated that Officer Nixon ran out and said, "I’ll take it, I’ll take it," but that Respondent was already gone. She testified that Officer Nixon returned to the office angry, and said, "That’s it, I’m calling Carolyn Baldwin. He’s fighting me every inch of the way." Ms. Roberts testified that she was puzzled as to what Officer Nixon was talking about, because in her view Respondent was just doing his job. The second incident was caused by the first. Ms. Killebrew testified that she went into Respondent’s office to discuss the ongoing friction between Respondent and Officer Nixon, and particularly the incident between Respondent and her secretary. Ms. Killebrew testified that she also wished to discuss an incident relayed to her by "a teacher," in which Respondent allegedly pulled a child out of class to ask him about the incident with Officer Nixon. Again, Ms. Killebrew did not identify this teacher, and Petitioner offered no corroboration for her hearsay testimony. Thus, this portion of Ms. Killebrew’s testimony cannot be credited. Ms. Killebrew’s written statement of the incident, which she verified as accurate at the final hearing, states in relevant part: I told him that the conflict with Officer Nixon has to stop and that we all have to work together until school is out. I also told him that the staff was becoming divided because he was continuing to discuss it. He responded that he was going to the school board because everybody had lied about him. I told him that was fine, but it needed to be kept away from the school. I reminded him that I had asked him not to discuss the incident when I gave him the letter. He said, "That’s a lie. You never told me that." I asked, "You’re calling me a liar?" He responded, "Yes, I am. After all I’ve did for you, you sat up in that meeting and told those lies . . ." At this point, I stopped him and told him that he needed to take the afternoon off. He continued to go on. Several more times I had to try to stop him and repeat myself. Finally, he acknowledged that he had heard me. Respondent’s version of the incident basically coincides with Ms. Killebrew’s, with some differences in the particulars. When she asked if he was calling her a liar, Respondent testified that his answer was, "Ms. Killebrew, if you said you told me that, yes, you are lying." Respondent testified that he did not say that Ms. Killebrew lied at the earlier meeting with the police officers, but he did reproach her for not supporting him at the meeting. Respondent’s testimony is consistent with Ms. Killebrew’s own testimony that she sat silently at that meeting. Respondent testified that, although he was surprised at Ms. Killebrew’s statements, he responded calmly. On the advice of Dr. Neriah Roberts, Executive Director of the Association of School Based Administrators, Respondent requested that Ms. Killebrew put in writing her order that he go home for the remainder of the day. After obtaining direction from William Londeree, the district’s Director of Employee Relations and Non-Instructional Personnel, Ms. Killebrew put her order in writing and Respondent went home. On the afternoon of May 8, 1997, Ms. Killebrew wrote the statement quoted above, in the form of a letter to Superintendent Glenn Reynolds. The letter concludes as follows: Due to Mr. Mickens’ insubordinate, disrespectful behavior to me, I am asking that you suspend him, without pay, from his duties as assistant principal at Boone Middle School. I am also asking that you consider reassigning him to another location. Not only has he compromised his working relationship with me, he has also put his effectiveness here at the school in jeopardy by failing to behave in a professional manner. Ms. Killebrew testified that she wrote this letter according to instructions given her by Ms. Baldwin, as she had the earlier reprimand letter. She testified that Ms. Baldwin instructed her as to the form and content of the letter, including the suspension recommendation. Ms. Killebrew testified that Ms. Baldwin told her that the School Board has progressive discipline. Ms. Baldwin told Ms. Killebrew that "He had been given a letter of reprimand. This would be step two, therefore I should ask for a suspension." As will be discussed more fully in the conclusions of law below, Ms. Baldwin was correct in stating that the Polk County School Board has progressive discipline. However, "step two" in the progression set forth in Section 3.005(II)(A) of the School Board policies is a "written reprimand," not a suspension. "Suspension or demotion" is step three in the progression. In their eagerness to pacify Chief Wheeler, the district administrators passed over step one in the School Board’s progressive discipline scheme, "verbal reprimand." It is found that Respondent was truthful in testifying that he did not understand Ms. Killebrew to have directed him to refrain from discussing these matters at school. Ms. Killebrew herself softened her recollection to testify that she had "asked" Respondent not to discuss the incident. However, it is also found that such an instruction should not have been necessary. Whether or not Ms. Killebrew said anything at all to Respondent, he should have understood that no good to the school could come from hallway discussions of the incident with Officer Nixon. Respondent did not deny talking about the incident upon his return to Boone. Ms. Killebrew’s testimony that she was hearing from staff that Respondent was discussing the matter is credited. Thus, Ms. Killebrew was justified in confronting Respondent about the matter. Whatever his feelings, Respondent was impolitic at best in accusing Ms. Killebrew of lying. Her immediate reaction in sending Respondent home for the rest of the afternoon was also justified. Tempers could cool and the matter could be addressed rationally at a later time. Nonetheless, it cannot be overlooked that Ms. Killebrew appears to have been pursuing a personal agenda against Respondent. Ms. Roberts, the PTA President, testified that she spoke with Respondent on the day he returned to the Boone campus in early May and offered to be a character witness for him. Shortly thereafter, she was approached by Ms. Killebrew: Eileen Killebrew came up to me and advised me not to talk to him and not to ask him questions about it or to be friendly, and she made the statement, I want him off my campus, or something to that effect . . . I said, Mr. Mickens, he’s so nice, he’s a nice man. And she said, oh, you don’t know, you don’t know. I want him out of here. The vehemence of Ms. Killebrew’s statements to Ms. Roberts cannot be explained by Respondent’s set-to with Officer Nixon, or by her vague comments that she had noted some slippage in Respondent’s performance during the 1996-1997 school year, even if those comments could be credited as more than after-the-fact rationalizations for her actions. Respondent noted that Ms. Killebrew’s change in attitude toward him coincided with his rejection of her request that he join her in transferring to Crystal Lake Middle School. The facts also demonstrate that Ms. Killebrew was well aware that parents and Respondent were concerned about the bullying methods of Officer Nixon and that Ms. Killebrew stood squarely behind Officer Nixon. It is found that these factors best explain why Ms. Killebrew would seize upon a brief argument that occurred behind closed doors as a pretext for attempting to have Respondent suspended from his job without pay and reassigned. She did not wait for tempers to cool, did not attempt to have a rational conversation with Respondent, or otherwise seek a less drastic remedy. Ms. Killebrew wanted an excuse to get Respondent "off her campus," and this incident could do the job. The following day, May 9, 1997, Superintendent Glenn Reynolds sent a letter to Respondent advising that he was placing Respondent on paid leave, effective May 12, 1997. The letter also stated that Mr. Reynolds was "requiring you to submit to a complete medical and psychological evaluation," and provided a list of physicians and psychologists from which Respondent could choose. The letter required Respondent to choose one physician and one psychologist and to inform the Employee Relations Office of his choices no later than May 14, 1997. Unlike Ms. Baldwin, Mr. Reynolds freely admitted that the word "requiring" in his letter meant "requiring." However, as with Ms. Baldwin, Petitioner offered no evidence to demonstrate that Mr. Reynolds had the authority to require Respondent to submit to a complete medical and psychological examination. Mr. Reynolds essentially contended that he had the inherent authority as Superintendent to require Respondent to submit to these examinations. The school district’s Contract of Employment for Administrators for the school year 1997-1998 contained a provision stating as follows: The Employee, at his expense, agrees to submit to the Board, if required, prior to the effective date of this contract written evidence of good health as required by Board policy. The Employee, at the expense of the Board, further agrees, upon request of the Board at any time during the school term, to submit to a physical or psychiatric examination by a qualified physician or physicians to be selected by the Employee from a list consisting of not less than three (3) names approved by the Board. The Employee further agrees to allow the report of the physicians to be submitted to the board with a copy being forwarded to the Employee. The quoted provision was not contained in the contracts for prior years, including the 1996-1997 school year that is the relevant time period for this hearing. Mr. Reynolds testified that he could not recall the particulars regarding this change to the employment contract. It is noted that even if the quoted provision had been in effect, the authority to require an employee to submit to a psychiatric examination is vested in the School Board, not the Superintendent. Respondent replied by letter dated May 12, 1997, informing Mr. Reynolds of his selection of a physician and a psychologist. Respondent’s letter also requested a conference with Ms. Killebrew and a reason in writing from Mr. Reynolds for the medical and psychological evaluation. By letter dated May 14, 1997, Mr. Reynolds responded as follows, in relevant part: I have required the evaluations to provide me with an independent, professional opinion as to whether there are stress-related or medical reasons for reported behaviors which had not been evidenced in your previous work experience. The information will help me in making decisions relating to behaviors which have been recently reported and/or investigated. Mr. Reynolds’ letter was silent as to Respondent’s request for a meeting with Ms. Killebrew. Mr. Reynolds use of "recently reported and/or investigated" in the statement quoted above is technically accurate but misleading in its implication that an "investigation" may have occurred. Mr. Reynolds in fact relied on Ms. Killebrew’s version of events as conveyed to him by Ms. Baldwin, along with the uninformative statements collected by Mr. McDonald and the self-serving written statement of Officer Nixon, which Mr. Reynolds inaptly termed a "deposition." Mr. Reynolds neither conducted nor ordered an independent investigation of the events at Boone. Respondent was dissatisfied with the reasons given for subjecting him to a psychological evaluation and met with Mr. Reynolds. Respondent testified that at the meeting, Mr. Reynolds would only say that he wanted an independent opinion regarding Respondent’s mental health and told Respondent that he would likely be terminated if he didn’t do it. Respondent testified that he was a former military officer, and if his superior ordered him to see a psychologist, he would see a psychologist. At the hearing, Mr. Reynolds was unable to recall lucidly the chronology of events. He justified ordering the psychological exam by reference to "threats" Respondent had made. Further inquiry revealed that the referenced "threats" related to events that allegedly occurred three months after Mr. Reynolds ordered the examination. Mr. Reynolds also suggested that he was acting to help Respondent and perhaps prevent a situation such as later occurred at Littleton, Colorado, and Conyers, Georgia. This suggestion was irrational, given that Respondent had been accused only of having a shouting match with a School Resource Officer and an argument with Ms. Killebrew. Mr. Reynolds frankly admitted he was relying on the word of Ms. Killebrew regarding the events at Boone and Respondent’s mental state. It is not surprising that someone relying entirely on Ms. Killbrew’s version of events would come away believing that Respondent was emotionally unstable, and come away knowing none of the details regarding Officer Nixon’s pattern of behavior at the school or Ms. Killebrew’s resentment of Respondent. Mr. Reynolds justified his reliance on Ms. Killebrew’s word by saying, "We have to assume that our administrators are going to be honest, be straightforward." He failed to explain why Respondent, also an administrator, did not enjoy the benefit of the same assumption. It is found that Mr. Reynolds lacked a sufficient factual basis for taking the serious, potentially stigmatizing step of ordering Respondent to submit to a psychological examination, even if it is assumed that Mr. Reynolds had the authority to do so. The only facts before Mr. Reynolds were that Respondent had arguments with Ms. Killebrew and Officer Nixon, plus Ms. Killebrew’s vague impressions that Respondent appeared to be under stress. Mr. Reynolds made no independent investigation of the situation. He expressed no curiosity as to whether there were personal grudges or emotional issues on the part of Officer Nixon and Ms. Killebrew, even after a group of parents and teachers including Ms. Fields, Ms. Roberts, and Mr. Hunt met with him to state their support of Respondent and their concerns about Officer Nixon’s behavior on the Boone campus. Respondent submitted to the psychological exam on June 11, 1997. Respondent testified that the psychologist presented him with release forms and asked Respondent to sign them. Respondent refused his consent to allow any examination report to be turned over to the school district. Discussions ensued between Respondent and Messrs. Dunn and Londeree of the school district over the release of the examination report. Respondent testified that the psychologist refused to go over the results of the examination with him unless he would sign the release forms. Respondent testified that Mr. Dunn later phoned him to say that he had spoken with the psychologist and arranged for Respondent to go back in and sit down with the psychologist to go over the report. Respondent returned to the psychologist, who told him that he had not written a "report" and did not intend to do so. Respondent testified that the psychologist said to him, "Your problem is not with me, it’s with the Superintendent of Schools." Respondent testified that he next received a call from Mr. Londeree, who wanted to make a deal. Mr. Londeree asked Respondent to permit the psychologist to send a copy of the report to the school district at the same time a copy was sent to Respondent. Respondent testified that his answer was, "I don’t make deals." Respondent testified that Mr. Londeree told him that if the school district did not receive a copy of the psychologist’s report, then it would go to "Plan B." Respondent stated that he and Dr. Roberts puzzled over what "Plan B" might be. Respondent testified that, in retrospect, he assumed "Plan B" was to transfer him to McLaughlin Middle School, because the transfer occurred immediately after he confirmed his refusal to release his records. By letter dated July 23, 1997, Mr. Reynolds informed Respondent that he was reassigned to the assistant principal position at McLaughlin Middle School, effective immediately. Mr. Reynolds testified that Respondent’s refusal to release the exam results played no part in his decision to transfer Respondent, though he offered no alternative explanation for the timing of his decision. The same alleged facts were before Mr. Reynolds on May 9, 1997, when he suspended Respondent with pay, yet more than two months lapsed before this reassignment, just after Respondent’s refusal to release the records of a psychological examination he should not have been required to take. Ronald Rizer, the principal of McLaughlin Middle School, testified that he could not remember the date he was told that Respondent would begin work at his school. He remembered that Ms. Baldwin called him and asked if he would be willing to swap his current assistant principal for Respondent. Mr. Rizer testified that he told Ms. Baldwin he would work with her and the Superintendent in any way he could. Mr. Rizer did not testify as to whether Ms. Baldwin or Mr. Reynolds briefed him on the previous spring’s events at Boone or gave him their opinion of Respondent’s mental and emotional state. Respondent took a few days’ personal leave, then reported at McLaughlin on Tuesday, August 5, 1997. Classes had not begun, but the faculty had returned to prepare for the approaching school year. Mr. Rizer testified that he greeted Respondent and told him he would introduce him to the faculty via the intercom. He told Respondent that he had no basic assignments for him that day and that Respondent should spend the day getting acquainted with the faculty. Alan Jostes was the Dean of Students at McLaughlin. He testified that he learned that morning there was a new assistant principal, and went to Respondent’s office to introduce himself. He testified that Mr. Rizer had assigned him to prepare the duty assignment list, and that he began going over the list with Respondent. Mr. Jostes testified that Respondent saw his name on the list for morning bus duty and immediately became "very upset, yelling at me, ‘Why is my name on this? I don’t do any duties.’" Mr. Jostes told Respondent that he had simply plugged Respondent’s name into the spots on the list that had been filled by the previous assistant principal the year before. Mr. Jostes testified that Respondent became very angry with him: "I felt very threatened at that point. Accusing me of, you know, being insubordinate and not doing my job, when I was asked by the building Principal." Respondent testified that he never yelled at anybody. He stated that when he saw Mr. Jostes had assigned him to bus duty five days a week, he told Mr. Jostes, "I’m a rover. I have to do student, teachers, parent conferences in the morning. I have to check the teachers’ duty stations." Respondent told Mr. Jostes to take the morning bus duty until Respondent could evaluate the personnel and assign someone to the duty on a permanent basis. Mr. Jostes testified that things calmed down as he took Respondent for a tour of the various duty stations, but that Respondent again became agitated when he saw his name on the assignment list for eighth grade cafeteria duty. Mr. Jostes testified that Respondent became "very confrontational" and yelled at him. Mr. Jostes stated that at this point the conversation was going nowhere and he asked Respondent if he needed anything else. Respondent asked Mr. Jostes to show him the classrooms. They walked down the sixth and eighth grade hallways, after which Respondent said, "That’s all I need. You may go back to your office." Respondent agreed that Mr. Jostes took him around the campus. He testified that when he saw Mr. Jostes had put him down for one hour’s duty in the cafeteria, he informed Mr. Jostes that "I pull lunch duty all three hours. I said this is my time to be proactive with the students. I explained all this to him. And I said, Mr. Jostes, [you’re] really talking to me in a condescending manner. [You’re] talking to me like you’re the assistant principal. Mr. Jostes just kind of turned his head." Respondent testified that he then asked Mr. Jostes to show him the sixth and eighth grade wings, after which he told Mr. Jostes that was all he needed. Respondent’s version of these events is credited as a more objectively accurate statement, though it is found that Mr. Jostes’ honestly perceived that Respondent was "yelling" at him. In his demeanor while testifying, Mr. Jostes appeared to be a soft-spoken, sensitive, somewhat timorous gentleman. Respondent does not speak in a loud voice, but his voice does carry conviction and assertiveness. Respondent is also sensitive to what he perceives as condescension, and likely took on a stern tone when he felt Mr. Jostes was talking down to him. This in turn intimidated Mr. Jostes, who considered it "yelling." Supporting the finding that Mr. Jostes’ reactions do not provide an accurate measure of Respondent’s "anger" and propensity for "yelling" is the testimony of Gene Carroll, the in-school suspension instructor at McLaughlin. Over the course of two days, Respondent and Mr. Carroll engaged in serious discussions over the direction of the discipline program at McLaughlin. There were times when the two men were at loggerheads over changes that Respondent wished to make in the program. Despite these serious disagreements, Mr. Carroll testified that Respondent "always had a good attitude, I thought. Very pleasant to speak to, and I like him real well as far as [that]. I just didn’t like his program." Mr. Jostes testified that the next afternoon, he went to Respondent’s office at Respondent’s request. Mr. Jostes then stated: When I arrived back about 12:30, I went directly to his office. And I said, "Is now a good time?" And he’s sitting at his desk, and he said, "You need to shut both doors," after I walked into the office. The conversation in his office turned to, "You have an attitude. You’re very insubordinate to me," and it went from nothing to yelling and screaming at me. I mean, it was not a directive voice, it was yelling and screaming. "You’re insubordinate. You’re very . . . you have an attitude. And if you don’t like the way I do things around here, I’m going to find someone else for the job, and I will get you out of here." And he said, "Do you have any questions?" And before I could even answer that, he says, "And if you don’t like what I’m saying, we’ll get Mr. Rizer in here." And at that point, I said, "I think that would be a good idea." Respondent’s recollection of this incident was markedly different: I guess a little bit before 1:00, I called Mr. Jostes into my office, and I want to go over and want to make sure that he was prepared to, you know, take part, you know, in the afternoon [teachers’] meeting. Mr. Jostes [sat] down . . . and my door was here. I asked him, I said would you please close the door. He just [sat] there. And he said, I think we need to see Mr. Rizer. Q. Had you had a conversation? A. No. He said, I think we need to go see Mr. Rizer. So I said, all right, let’s go see Mr. Rizer. Respondent’s version of this encounter is credited. It appears that Mr. Jostes confused statements that Respondent made during the subsequent meeting with Mr. Rizer with statements made in Respondent’s office. It is also more plausible that Mr. Jostes would be the person to suggest taking their dispute to Mr. Rizer, because Mr. Jostes had a long-standing working relationship with Mr. Rizer. Respondent had met Mr. Rizer only the previous day. The two men went to Mr. Rizer’s office. Mr. Rizer testified that they came in because of Respondent’s concerns that Mr. Jostes was being insubordinate and trying to tell him what to do. Mr. Rizer testified that Mr. Jostes had already reported to him the difficulties he was having with Respondent. This supports Respondent’s testimony that it was Mr. Jostes who suggested a meeting with Mr. Rizer. Mr. Rizer testified that he attempted to explain to Respondent that he had assigned Mr. Jostes the duty assignment list, but had difficulty getting a word in edgewise. He testified that Respondent repeatedly interrupted him. Mr. Rizer testified that he became irritated and slammed his hand down on his desk and said, "Wait a minute. I’m the Principal here and I’m the boss. You’re not, and you’re going to do things my way." Mr. Rizer testified that Respondent settled down at that point and listened. Mr. Rizer testified that the latter portion of the meeting was productive. He explained to Respondent that he had carved out a special role for Mr. Jostes to further his career goals, and that role was somewhat different than that of the typical dean of students. Mr. Rizer testified that he felt there was a meeting of minds as to the way he had established things as principal of McLaughlin Middle School. Mr. Jostes and Respondent generally agreed with Mr. Rizer’s testimony regarding their meeting. Mr. Jostes agreed that the meeting ended calmly and positively. He also stated that he and Respondent returned to Respondent’s office after the meeting, and "we actually had a very productive communication." Respondent testified that in the early part of the meeting, he complained about the lack of cooperation from Mr. Jostes and told Mr. Rizer that "I can carry it by myself until we can bring in somebody who wants to cooperate and be my Dean of Students." Respondent did not recall Mr. Rizer's slamming his hand on the desk, but agreed there came a point at which Mr. Rizer asserted control of the meeting and Respondent listened to what he said. Respondent testified that by meeting’s end, all three participants seemed happy. Mr. Jostes agreed that Respondent seemed better to understand the situation on the campus at the end of the meeting. Respondent said to Mr. Jostes, "Let’s get out of here and go to work." They returned to Respondent’s office and prepared for the afternoon meetings, then sat together in those meetings for the rest of the afternoon. Gene Carroll was in charge of the In-School Suspension ("ISS") program at McLaughlin. On the afternoon of August 5, he introduced himself to Respondent and showed him a copy of the written protocols for the ISS program. Mr. Carroll testified that Respondent handed the paper back to him and said that he did not want a concrete program because he preferred flexibility in making disciplinary decisions. This commenced a substantive dispute, the narrow details of which are unnecessary to recite in this Order. In essence, Respondent had been in charge of discipline at Boone and had run it with a measure of personal discretion in meting out punishment. The program at McLaughlin was a more lockstep system of progressive punishment. Mr. Carroll conceded that Respondent’s program worked well at Boone, but testified that he and Mr. Rizer believed the stricter program was needed at McLaughlin because of its larger and more diverse student population. Respondent believed that his methods were in keeping with school district policy, and that McLaughlin was out of step with the district’s disciplinary philosophy. Mr. Carroll believed that Respondent was "coming on a little strong" in light of the facts that he had just been assigned to the school, that he was unfamiliar with the McLaughlin community and problems, and especially that the McLaughlin ISS program had been developed by Mr. Rizer when he was Assistant Principal for Discipline. However, Mr. Carroll stated that his differences with Respondent were philosophical, not personal. The only point of contention was Mr. Carroll’s testimony that at one point in the discussions, Respondent told him that he would do it Mr. Rizer’s way for a while, but then would run the program as he saw fit. Mr. Carroll testified that he told Respondent that he needed to talk to Mr. Rizer and straighten things out. Respondent testified that Mr. Carroll misunderstood his comments. He was trying to convey to Mr. Carroll that as disciplinarian, he believed he had to personalize the program. He testified that he was willing to do things in any way Mr. Rizer saw fit. Respondent stated that he told Mr. Carroll to do exactly what Mr. Rizer told him to do. Mr. Carroll agreed that Respondent accepted the ISS program once he understood it. Mr. Carroll’s written statement of events concluded, "I left with a very good feeling that everything would be fine and we would continue our successful program." On Friday, August 8, 1997, Respondent attended a semi- annual district-wide meeting of assistant principals, school resource officers, and deans of students. The purpose of these meetings is to discuss code of conduct and other disciplinary issues. The meeting was chaired by Robert Bondurant, Director of Discipline and Security for the Polk County School Board. During the meeting, Respondent raised his hand during a question session. Mr. Bondurant recognized him. Respondent asked if the district could provide a written definition of the duties and scope of authority of assistant principals and school resource officers. Mr. Bondurant testified that this was a prudent request and agreed to provide the requested definition. While he had the floor, Respondent also spoke for several minutes about his own dispute with Officer Nixon regarding the scope of the SRO’s authority on the Boone campus, and the response of district administrators to the dispute. Mr. Bondurant characterized this portion of Respondent’s remarks as an unprofessional "lambasting" of district administration for its handling of Respondent’s situation. Mr. Bondurant did not believe that what took place between Respondent and his principal or district administration was a proper subject for this meeting, even though it provided the factual context of Respondent’s request for written definitions of duties. Mr. Bondurant conceded that his was a subjective judgment, and that another witness might have no objection to Respondent’s statements. Mr. Jostes was present at the meeting and agreed with Mr. Bondurant that Respondent’s comments were inappropriate. He opined that Respondent was "airing out a lot of anger and frustrations that should have been done in a one-on-one situation with . . . the powers that be in the county." Mr. Jostes, too, conceded that this was his subjective assessment of Respondent’s statements. Patricia Barnes is an assistant principal at Mulberry High School, and was present at the meeting. She testified that Respondent spoke for a long time, but that he spoke in a professional manner and that his statements were relevant to the audience of assistant principals, deans of students, and school resource officers. Keith Mitchell is a 17-year veteran of the City of Bartow Police Department. He was present at the meeting and testified that Respondent spoke in a professional manner and that his statements were relevant to the subject matter of the meeting. On the afternoon of August 8, 1997, a coordinated letter writing effort began. It is unclear precisely who instigated this effort, but the testimony of Dennis Dunn, the Assistant Superintendent for Human Resource Services, makes it clear that Mr. Rizer was instructed by someone in the Superintendent’s office to write a statement. Mr. Dunn testified that he could not recall the precise date when the instruction was given or whether the instruction came directly from Mr. Reynolds or from an associate superintendent. He conceded that the instruction had to have been given some time between Tuesday, August 5, when Respondent commenced work at McLaughlin, and Friday, August 8, when the letters were written. In any event, on August 8, 1997, Mr. Rizer wrote a three-page memorandum to Glenn Reynolds in which he repeated, as fact, the accusations of Mr. Jostes and Mr. Carroll concerning events which Mr. Rizer did not witness. He also repeated comments made by "a teacher," who allegedly told him that "a lot of other teachers" had "concerns" about Respondent. One of these "other teachers" "wondered how many personalities Mr. Mickens has." Mr. Rizer stated that "he was told" that Respondent "seemed not to have his act together" while speaking at a faculty meeting. Mr. Rizer skipped the faculty meeting to write the memorandum. Most damaging to Respondent was the following statement in Mr. Rizer’s memorandum: I personally have some concerns about Mr. Mickens; one minute he is calm and the next minute he is very angry. This man has a lot of anger and I feel something serious could happen when he is in his angry state. I do not feel comfortable him being here. Mr. Rizer spent a total of two to three hours in the same room as Respondent. He estimated that he spent about a half-hour with Respondent in a one-on-one basis. He claimed to have seen Respondent become angry one time and testified that Respondent calmed down after Mr. Rizer asserted himself and that they went on to have a productive meeting. Mr. Rizer had no factual basis for the opinion quoted above, plainly implying that he believes Respondent is a danger to the school. He witnessed nothing that would lead a rational person to fear that Respondent might do "something serious." His sources of information were the exaggerations of Mr. Jostes and some hallway gossip by unnamed teachers. Even Mr. Carroll testified that there was no problem with Respondent’s behavior. At the hearing, Mr. Rizer denied that his memorandum was an attempt to portray Respondent as an emotionally unstable person. In fact, this appears to have been his precise purpose. In addition to writing his own memorandum, Mr. Rizer secured written statements from Mr. Jostes, Mr. Carroll, and Russell Aaron, a teacher at McLaughlin. Also on August 8, Mr. Bondurant wrote a letter to Mr. Reynolds concerning Respondent’s comments at the assistant principals’ meeting, a further indication that the Superintendent’s office was coordinating this effort. The letters from Mr. Jostes and Mr. Carroll recapitulate their testimony outlined above. Mr. Carroll states that he is writing his letter "at the request of Mr. Rizer." The letter from Mr. Aaron to Mr. Rizer, dated August 8, 1997, states, in full: After your phone call this evening about the situation with Mr. Mickens, I felt I should write this letter about an incident that took place last week. On Friday, August 1, 1997, I was riding by the school and saw Mr. Hardee [the former Assistant Principal at McLaughlin] standing in front of the school. I had already been informed that he was leaving our school so I stopped to tell him goodbye. He was talking to another man and when I walked up he introduced Mr. Mickens to me. I asked Mr. Hardee [why] he was leaving McLaughlin Middle and he said Mrs. Baldwin asked him to. At that Mr. Mickens said "Carolyn Baldwin, that Fat Bitch, I’m suing her, Glenn Reynolds and all those Bitches over there. I got my Due Process, they didn’t give me my Due Process. I’m gonna get all of them." At that point you walked out of the door and he (Mr. Mickens) stopped talking and walked back in the building with you. Mr. Aaron testified at the hearing. Mr. Hardee did not. Despite the statement that he was writing this letter "After your phone call this evening about the situation with Mr. Mickens," Mr. Aaron testified that it was he who called Mr. Rizer, on a Friday evening a week after the alleged incident occurred. When asked why he waited a week before calling Mr. Rizer about this incident, Mr. Aaron stated, "I think maybe we had talked about it at school, and then we talked about me putting it in writing, and I had called him that night or something, about how I was supposed to go about doing that. He knew about it before that week was out." This testimony cannot be credited. The letter itself indicates that Mr. Aaron was solicited by Mr. Rizer on Friday evening, not vice versa. Given the opprobrious hearsay that Mr. Rizer saw fit to include in his own memorandum to Mr. Reynolds, it is implausible to believe he would not have included this incident had he known of it on Friday afternoon. Mr. Aaron testified that he had never met Respondent before this incident. He testified that Respondent made his statements at the mention of Ms. Baldwin’s name. He testified that neither he nor Mr. Hardee used any profanity during this conversation. Mr. Aaron’s testimony is credited to the extent that Respondent made some sort of derogatory comments about Ms. Baldwin and Mr. Reynolds. Given the prior testimony regarding Respondent’s character and manner, it seems unlikely that he would have erupted with such vehement language, particularly in front of a complete stranger and without so much as a nudge from those in his company. Under the circumstances of the conversation, it also seems unlikely that Respondent was the only person present who made derogatory remarks about district administrators. Mr. Aaron’s credibility is compromised by his equivocations about the phone call from Mr. Rizer, and by the fact that he did nothing for a week and apparently required some coaxing to write his letter reporting the incident. These findings are also influenced by the fact that Mr. Hardee did not testify to corroborate Mr. Aaron’s story. It is found that Mr. Rizer’s actions on August 8, 1997, were out of all proportion to the minor incidents that occurred on the McLaughlin campus, which a rational person might attribute to a new assistant principal’s over-eagerness to take control and make a good impression and to the natural resistance he would meet from entrenched employees less than eager to change their established methods of doing business. The testimony of Respondent, Mr. Carroll, Mr. Jostes, and even Mr. Rizer himself, indicated that Respondent was beginning to settle in to a smooth working relationship with his peers at McLaughlin after an admittedly rocky start. Mr. Rizer’s actions are made even more irrational by the fact that, though he was contemplating action that he hoped would remove Respondent from the campus, he never mentioned to Respondent that there was even a problem. Respondent testified that he believed things were going well at McLaughlin. He presided over an open house on the morning of Thursday, August 7, 1997, and over teacher meetings all that afternoon with Mr. Jostes. He testified that these were "great" meetings. Respondent testified that after he returned from the assistant principals’ meeting on Friday, Mr. Carroll approached him and told him "point blank" that he would work with Respondent in every way. Respondent testified that he liked Mr. Carroll very much, and that Mr. Carroll seemed to like him. Mr. Rizer had given him a project to complete by Friday. He intervened in a situation in which a parent had a "heated, profane argument" with a school secretary, and resolved it such that the parent left the school "super happy." He made a short presentation to the teachers on Friday afternoon, then completed a video for a presentation he planned to make on Monday. Counsel for Respondent pressed the theory that the transfer to McLaughlin was a set-up from the outset, that the Superintendent’s office planned from the beginning to move Respondent there for a short period before cooking up some reason to terminate him. Based on the evidence presented, it would be fair to reach this conclusion. However, a more plausible explanation of events is that, at the time Ms. Baldwin asked Mr. Rizer about the trade of assistant principals between Boone and McLaughlin, she or someone else in the Superintendent’s office fully briefed Mr. Rizer about the events at Boone and their aftermath. It makes sense that anyone in Mr. Rizer’s position would ask why Ms. Baldwin wanted to make this switch and that she would respond with a recitation of the Boone events according to Ms. Killebrew. If Mr. Rizer "knew" on August 23 that he was getting an emotionally unstable, insubordinate, over-stressed employee who had been ordered to visit a psychologist and refused to release the results, then his disproportionate response to Respondent’s actions and the fearful tone of his letter become understandable. Nothing in the record directly indicates that Mr. Rizer had been briefed about Respondent before he arrived, but that is a rational explanation for his actions. Respondent had no idea of the machinations going on between Mr. Rizer and the Superintendent’s office until the morning of Saturday, August 9, 1997. Dennis Dunn phoned Respondent and told him not to report to the school on the following Monday. Rather, Respondent was told to report to the district office. Respondent reported to the district office on Monday, August 11, 1997. He was told to turn in his keys and handed a letter from Mr. Reynolds that read, in relevant part: Based upon reports of your misconduct in office and gross insubordination, which are grounds for suspension or termination of your employment as provided in Section 231.36(6)(b), Florida Statutes, please be advised that I am suspending you with pay effective August 11, 1997 pending the completion of an investigation. You will be given an opportunity to give your explanations regarding the accusations and will be notified of the results of the investigation. As with the incidents at Boone, there was no "investigation" of the events at McLaughlin as that term is commonly used, i.e., an independent effort to ascertain the relevant facts. Mr. Reynolds and his subordinates simply took at face value the materials provided by Mr. Rizer and others, then met to decide on a course of discipline for Respondent. This is borne out by Mr. Reynolds’ letter to Respondent of August 14, 1997, stating, "Enclosed are letters and reports of incidents upon which I could impose disciplinary action." In other words, the "investigation" lasted less than three days, and the investigative report consisted of the letters from Messrs. Rizer, Jostes, Carroll, Aaron, and Bondurant. Mr. Reynolds testified that he met with Ms. Baldwin, Mr. Londeree, Mr. Dunn, and his legal counsel, Donald Wilson, Jr., to deliberate action against Respondent. This meeting was not noticed or open to the public. Respondent was given no notice or opportunity to attend. Mr. Reynolds solicited and received the advice and recommendations of those present at the meeting. He received legal advice from Mr. Wilson. Mr. Dunn testified that the group "collectively" participated in the decision-making process. On August 29, 1997, Mr. Wilson wrote a letter to Respondent’s lawyer, which stated in relevant part: I am writing this letter at the direction of the Superintendent. It is the Superintendent’s opinion that Mr. Mickens’ actions constitute misconduct in office as an assistant principal and that generally his ongoing conduct and repeated actions are wholly incompatible with the standard of conduct the Superintendent reasonably requires from school based administrators. Further, Mr. Mickens’ actions at both Boone Middle School and McLaughlin Middle School and his conduct toward and statements to members of the staff at those schools have made it impossible for him to continue to effectively perform the duties of an assistant principal. In summary, the Superintendent has concluded that Mr. Mickens has specifically engaged in misconduct in office as an assistant principal and that his conduct generally is so serious as to constitute just cause for termination of his position as an assistant principal. The Superintendent will be recommending to the School Board at its regular meeting on September 9, 1997 that Mr. Mickens be removed as an assistant principal. He will continue to be suspended with pay until that time. Mr. Mickens holds a professional services contract pursuant to Section 231.36(3), Florida Statutes, and the Superintendent’s recommendation regarding his contract as an assistant principal is not intended to affect his professional services contract. Accordingly, if the School Board should act favorably on the recommendation on September 9th, Mr. Mickens will be asked to report on September 10, 1997 to Assistant Superintendent Denny Dunn to available teaching positions to determine an appropriate position to which Mr. Mickens will be assigned. It is noted that Mr. Reynolds’ suspension letter of August 11 also accused Respondent of "gross insubordination." Mr. Wilson’s letter mentions only "misconduct in office." The reference to "Mr. Mickens’ actions at both Boone Middle School and McLaughlin Middle School and his conduct toward and statements to members of the staff at those schools" is as close to a formal statement of factual allegations as Respondent ever received in this process. No formal charging document enumerating the facts upon which the Superintendent based his recommendation was ever provided to Respondent or this tribunal, even after Judge Cave directed the School Board to provide a statement of factual allegations at the motion hearing of February 25, 1999. No charging document was ever filed setting forth the particular provisions of the Code of Ethics of the Education Profession, Rule 6B-1.001, Florida Administrative Code, or the Principles of Professional Conduct for the Education Profession in Florida, Rule 6B-1.006, Florida Administrative Code, that Respondent was alleged to have violated. In fact, Petitioner’s first mention of those rules in this case occurred in its Proposed Recommended Order. At its meeting of September 9, 1997, the School Board took up the Superintendent’s recommendation. Mr. Reynolds addressed the School Board, reciting that Respondent "has engaged in a series of actions which constitute misconduct in office as an Assistant principal, and that his ongoing conduct and repeated actions are generally and wholly incompatible with the standard of conduct we reasonably require from school based administrators." Mr. Reynolds did not state any factual allegation against Respondent. During the lengthy deliberations that ensued, at least two members of the School Board voiced concerns over being asked to vote on a matter without knowing any of the underlying facts. The School Board’s lawyer was Steven L. Selph. Mr. Selph advised the School Board that it would be "inappropriate" and possibly "prejudicial" for the board to hear the alleged facts of the case because the board would later be required to enter a final order. Mr. Selph advised the board that its only choices were to vote on the Superintendent’s recommendation in a factual vacuum, or to hold a full evidentiary hearing before the board itself. Mr. Selph stated that "the main thing the board has to consider is whether the recommendation is based on just cause for the purpose of approving it subject to the outcome of a hearing." Mr. Selph did not explain to the inquiring board members how they could determine "just cause" when they did not know what Respondent was alleged to have done. Mr. Selph assured the School Board that its adoption of the Superintendent’s recommendation was a mere formality necessary to trigger Respondent’s right to a formal administrative hearing. Comments by School Board members prior to their vote indicate that they accepted Mr. Selph’s opinion that the vote was essentially procedural, a necessary step to secure Respondent’s right to an administrative hearing, and thus the board did not need to know the factual allegations. Mr. Selph did not explain that the School Board’s vote to accept the Superintendent’s recommendation would become final agency action if Respondent did not timely request an administrative hearing. On the basis of the Superintendent’s recommendation that Respondent committed misconduct in office, the School Board voted to terminate Respondent from his assistant principal position and to place Respondent into a teacher’s position during the pendency of any administrative hearing. It is found that the School Board’s action was a perfunctory ratification of a decision made earlier by Mr. Reynolds in consultation with his subordinates and lawyer. While there was a lengthy discussion of procedural matters at the School Board meeting, no discussion of the ultimate facts alleged to constitute misconduct in office, or of any facts at all, was allowed. Thus, the School Board did not and could not assess the merits of Mr. Reynolds’ probable cause determination. The School Board’s vote was simply a vote of confidence in Mr. Reynolds. The undersigned viewed a videotape of the School Board meeting. Respondent addressed the board concerning the denial of due process he believed was about to occur. It is noted that Respondent’s presentation was forceful and articulate, but not disrespectful, loud, angry or abusive. It is also noted that Mr. Reynolds testified that Respondent was "agitated." By letter dated September 10, 1997, Mr. Reynolds formally notified Respondent that his employment as an assistant principal had been terminated and that he would be returned to an appropriate teaching position for the remainder of the 1997-1998 school year. Mr. Reynolds’ letter also made reference to a statement made by Respondent to Mr. Dunn that he could not return to a teaching position at that time and desired to use his accumulated sick leave. The letter informed Respondent that he could use the leave if he provided medical certification from a physician that he was unable to work and the anticipated amount of time he would be away from work. Mr. Dunn, the Assistant Superintendent for Human Resource Services, testified that Respondent was placed in a teaching position because "my hands were tied" by the fact that Respondent had a continuing contract that had to be honored. By letter dated September 14, 1997, Respondent requested an administrative hearing regarding his termination as an assistant principal. The letter also stated that Respondent would provide the requested medical certification. On November 5, 1997, Mr. Wilson wrote on behalf of Superintendent Reynolds to Respondent. Mr. Wilson reminded Respondent of his September 14, 1997, letter promising medical certification to justify his sick leave and of a conversation he had with Respondent on November 3, 1997, during which Respondent indicated he had a doctor’s appointment to obtain the certification on November 17. Mr. Wilson informed Respondent that the physician’s certification must be received by Mr. Londeree on or before November 20, 1997, and that failure timely to file the certification would be deemed an abandonment of Respondent’s employment with the Polk County School Board. Respondent never provided the physician’s certification. Mr. Dunn and Mr. Londeree testified as to a conference call with Respondent, during which Respondent conceded that he was not sick but that he could not come back to work under the circumstances. Respondent confirmed that he did not accept the teaching position because his reputation had been destroyed. He believed that he could not be effective in the classroom because people were afraid of him. By letter dated December 12, 1997, Mr. Reynolds notified Respondent that he had been determined to have abandoned his teacher’s position and that Mr. Reynolds would recommend to the School Board that Respondent’s employment be terminated. At its meeting of January 13, 1998, the School Board voted to terminate Respondent’s employment.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the School Board enter a final order reinstating Respondent for the remainder of his assistant principal contract for the 1997-1998 school year, and enter into assistant principal contracts with Respondent for the 1998-1999 and 1999-2000 school years. DONE AND ENTERED this 2nd day of March, 2000, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of March, 2000. COPIES FURNISHED: Donald H. Wilson, Jr., Esquire Boswell & Dunlap, LLP 245 South Central Avenue Post Office Drawer 30 Bartow, Florida 33831 Timothy G. Schoenwalder, Esquire Hopping Green Sams & Smith, P.A. 123 South Calhoun Street Tallahassee, Florida 32314 Glenn Reynolds, Superintendent School Board of Polk County 1915 South Floral Avenue Bartow, Florida 33831-0391
The Issue Whether Respondent engaged in inappropriate conduct with students and colleagues during the 1996-97 school year, having received a Letter of Reprimand on September 22, 1997. Whether Respondent violated various provisions of the Principles of Professional Conduct during the 1996-97 and 1997-98 school year. Rule 6B-1.006(3)(a) and (e), Florida Administrative Code. Whether Respondent's teaching certificate should be revoked or suspended or other penalty imposed as provided by law, for gross immorality or an act involving moral turpitude, in violation of Section 231.28(1)(i), Florida Statutes.
Findings Of Fact Based upon the exhibits received into evidence, the stipulation of the parties, and the testimony of the witnesses at the hearing, the following findings of fact are made: The Education Practices Commission has the authority to suspend or revoke the teaching certificate of any person holding a Florida Educator's Certificate for violation of Florida laws and rules. Respondent holds Florida Educator's Certificate 537304, covering the areas of Elementary Education and Middle Grade Math, and which is valid through June 30, 1999. At all times pertinent hereto, Respondent was employed by Orange County School District as a teacher at Union Park Middle School. April Cook, now 14, had Respondent as a math and English teacher when she was in the sixth grade. On one occasion, during the 1996-97 school year, while April was attending Respondent's class, Respondent was talking to the class about a "higher power" and raised her hand using her middle finger stating that this referred to the higher power. April interpreted this hand gesture to mean "fuck you" and was "stunned" by Respondent's conduct in the classroom. Ricky Souza, now 14, had Respondent as his sixth grade language arts teacher and seventh grade math teacher. On one occasion while Ricky was attending Respondent's class, Respondent was talking to the class about how she praised God and raised her hand using her middle finger in the same manner observed by Cook. Ricky was "offended" by Respondent's hand gesture, although Respondent stated that God was a good force. Respondent was not a popular teacher while at Union Park Middle School and students were regularly disrespectful in class and would spread rumors about her throughout the school. Rebecca Jones and Carol Pickler are teachers at Union Park Middle School. Mrs. Jones has been a teacher for 18 years, Mrs. Pickler, 32 years. On one occasion during the 1996-97 school year, while Mrs. Jones and Mrs. Pickler were in the hallway of the school talking, Respondent approached them and stated: "Every time I see the two of you, I'd like to beat the shit out of both of you." She then turned and walked down the hallway. No provocation for the statement has been established. However, no students were in the area to hear the remark. Diane Lovett was the principal at Union Park Middle School during the relevant time period. She has been a teacher and administrator for 10 years. Her responsibilities include evaluation of teachers, observations of teachers and handling disciplinary matters. While principal at Union Park, Mrs. Lovett observed Respondent teach on several occasions. During these observations Respondent's teaching seemed to be "scattered discourse." On one occasion, Lovett heard the Respondent threaten her students by telling them that the FBI would come and take them to jail if they did not behave. Mrs. Lovett also observed Respondent, while holding her hand up and counting on all of her fingers, use her middle finger in the same manner described by April Cook and Ricky Sousa. She alluded to the third finger as being an example of the higher power. Parents reported to Mrs. Lovett that they were offended by the hand gesture made by Respondent, as reported to them by students. Respondent used hand gestures in the classroom which were misinterpreted by the students. Mrs. Lovett counseled Respondent about the hand gesture and told her that it was an obscene gesture and that she should not use it in the classroom. After Mrs. Lovett counseled Respondent about her using the hand gesture, Mrs. Lovett observed Respondent use the gesture in the classroom again by referring to the middle finger as the higher power. On another occasion, Mrs. Lovett went to Respondent's classroom. When Mrs. Lovett arrived, Respondent was very distraught. Respondent was screaming at a student and pointing in the face of one of the students because she thought the student's book bag was not placed properly under his desk. Respondent stated that she could not take it anymore. Other students in the classroom observed Respondent's behavior and they were "on the verge of tears." Respondent used acrostics often in the classroom. One acrostic was to use the word "Christ" to spell out a positive message. Linda Lovell is the bookkeeper at Union Park Middle School. Mrs. Lovell has been at Union Park for 14 years. On one occasion, Respondent directed one of her students to take a document to Mrs. Lovell and ask her to send the document to the address by fax. Mrs. Lovell told the student to inform Respondent that she (Mrs. Lovell) could not fax the document, but that she would show Respondent how to use the fax machine. Later that afternoon, Respondent went to the front office where Mrs. Lovell's office was located and engaged in a verbal altercation with Lovell, at whom Respondent yelled and screamed. Respondent accused Mrs. Lovell of causing her husband to lose his insurance because Mrs. Lovell did not send the fax. Because Respondent was very angry and appeared out of control, Mrs. Lovell was afraid and did not know what to do. Others in the office could hear the Respondent's verbal assault upon Mrs. Lovell. On September 22, 1997, the principal of Union Park issued a letter of reprimand for misconduct, including inappropriate conduct in the classroom and with school statements for the incidents described above which occurred in the 1996-97 school year. Respondent disputed the substance of the allegations contained in the letter. The 1996-97 school year was a very stressful period for Respondent. During the period, Respondent's mother died, her husband became gravely ill and subsequently died also, and Respondent was removed from the classroom for a period of time. When she returned she came under the close scrutiny of a new principal.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby: RECOMMENDED that the Education Practices Commission enter a final order that: Respondent engaged in inappropriate conduct with students and colleagues during the 1996-97 school year. Respondent be found not guilty of gross immorality or committing an act involving moral turpitude, in violation of Section 231.28(1)(i), Florida Statutes. Respondent be found not guilty of violating Rule 6B- 1.006(3)(a), Florida Administrative Code. Respondent be found guilty of violating Rule 6B- 1.006(3)(e), Florida Administrative Code. Respondent be issued a letter of reprimand in view of the minor matter of the offense and the demonstration of mitigation by Respondent. DONE AND ENTERED this 10th day of December, 1999, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of December, 1999. COPIES FURNISHED: Harvey M. Alper, Esquire Alper & Crichton, P.A. 112 West Citrus Street Altamonte Springs, Florida 32714 Ron Weaver, Esquire 528 East Park Avenue Tallahassee, Florida 32301 Kathleen M. Richards, Executive Director Education Practices Commission Department of Education Florida Education Center 325 West Gaines Street, Room 224-E Tallahassee, Florida 32399 Jerry W. Whitmore, Program Director Professional Practices Services Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400 Michael H. Olenick, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400
The Issue Whether Respondent's educator's certificate should be subject to discipline for the violations alleged in the Administrative Complaint dated February 20, 2003.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing and the entire record of this proceeding, the following Findings of Fact are made: Respondent, Audrey Larson-Kalich (referred to herein as Ms. Kalich, as she was called by her students and fellow teachers), holds Florida Educator Certificate No. 711981, covering the areas of elementary education (grades 1-6), English to Speakers of Other Languages (ESOL), and primary education (grades K-3), which is valid through June 30, 2008. At all times relevant to this proceeding, Ms. Kalich was employed as a kindergarten teacher at Tillman Elementary School ("Tillman") by the Manatee County School District (the "District"). Ms. Kalich began her teaching career in Texas in 1981. She taught second, third, fifth, and seventh grades during a three-year period at a parochial school. After the 1983-1984 school year, she got married and took a hiatus from teaching. Beginning with the 1986-1987 school year, Ms. Kalich taught for seven years in the public school system of San Patricio County, Texas, the last four as a kindergarten teacher. Ms. Kalich left Texas after the 1992-1993 school year to join her husband in Manatee County, where he had commenced working at a position in the university system in March 1993. Ms. Kalich spent the next three years as a substitute teacher in the District, all the while seeking a full-time position. She performed well in a long-term substitute position at Braden River Middle School, teaching science to sixth and seventh graders. Ms. Kalich also substituted three different times at the Adolescent Recovery Center, a residential facility for students in rehabilitation for alcohol or drug abuse. Near the end of the 1995-1996 school year, while substituting at Tillman, Ms. Kalich learned of a full-time vacancy for a kindergarten teacher at that school. She applied for the position, though she knew that Tillman was a "very, very rough school." At the time, Tillman had a disproportionately large percentage of students with a lower socioeconomic background, learning disabilities, and difficulties complying with ordinary classroom discipline. As the 1996-1997 school year approached, the position remained unfilled. Ms. Kalich drove to Tillman to speak personally with Principal Gloria Mitchell and resolve lingering questions regarding her certification to teach kindergarten. After her certification was verified, Ms. Kalich was hired for the 1996-1997 school year. She taught at Tillman for five years. Principal Mitchell's evaluations of Ms. Kalich for the 1996-1997, 1997-1998, 1998-1999, and 1999-2000 school years were all "satisfactory." Ms. Mitchell's comments regarding Ms. Kalich's job performance stated that she "creates a positive learning environment" and is "always searching for new ways to improve student progress." Ms. Mitchell retired after the 1999-2000 school year. She was succeeded as principal by Patsy Roberson. An assessment document completed by Ms. Roberson during the 2000-2001 school year indicated that Ms. Kalich "consistently meets and/or exceeds district competency standards of performance." Paula Rosario was a kindergarten teacher at Tillman with Ms. Kalich. She and Ms. Kalich were personal friends, as well as colleagues. Ms. Rosario testified that she became increasingly alarmed at Ms. Kalich's classroom behavior during the 2000-2001 school year. As she walked down the hall, Ms. Rosario often heard Ms. Kalich yelling at her class, "Shut up. Just shut up." Ms. Rosario discussed this behavior with Ms. Kalich, urging her to lower her voice and to ask for help with her class if she needed it. Dawn Stewart, a kindergarten teacher at Tillman whose classroom shared a wall with Ms. Kalich's, testified that she often heard Ms. Kalich raising her voice, even "yelling at the top of her lungs," and telling her class to "shut up." Karen Ammons, currently the magnet coordinator at Tillman, was assigned as Ms. Kalich's "peer teacher" when Ms. Kalich was hired. A "peer teacher" advises a new teacher during her probationary period. Prior to the 2000-2001 school year, Ms. Ammons had advised Ms. Kalich not to grab students. Ms. Ammons testified that there are ways of moving a child from one place to another without grabbing the child's arms, which the child can perceive as malicious. Ms. Ammons also advised Ms. Kalich against yelling at her students. Ms. Ammons believed that yelling at children is counterproductive because children tend to respond better to a calm, quiet voice. This opinion was supported by Ms. Rosario, who advised Ms. Kalich to be "fair, firm, and friendly" when trying to establish order in her classroom. Ms. Rosario also testified that if a situation in the classroom appeared to be escalating to the point where physical restraint would be necessary, she would phone the office for assistance. Ms. Stewart testified that if a child is out of control, she moves the other children away from the flailing child and calls for assistance from an administrator. Carolyn Furnbach, another teacher at Tillman, testified that she would call for help before attempting to physically restrain a student, even though she had been trained in safe methods of restraint. Ms. Ammons testified that during the 2000-2001 school year, she saw Ms. Kalich trying to line up her class in the hallway. Ms. Kalich's class was a loud, boisterous group, and Ms. Kalich was being very loud in trying to lay down the rules. Ms. Ammons saw Ms. Kalich grab one little boy by the arm and jerk him back into line. She then bent down and started talking to him very loudly, putting her finger near his face. The rest of the class became louder, seeing that Ms. Kalich was occupied with this boy. Ms. Ammons intervened and calmed the class down. After school, Ms. Ammons discussed the matter with Ms. Kalich. Ms. Ammons told Ms. Kalich that she could not handle children in that manner. Ms. Kalich claimed not to know what Ms. Ammons was talking about. At the hearing, it was established that the practice among the Tillman kindergarten teachers was to defuse emotional disciplinary situations by sending the offending student to a different classroom for a "time out." Ms. Rosario was the "team leader" for the Tillman kindergarten teachers and offered her classroom as the "time out" room for any teacher who needed a break from a certain student. Ms. Rosario testified that, while other teachers would send their "time out" students down to Ms. Rosario's classroom, Ms. Kalich often dragged them in by the arm. Ms. Rosario told Ms. Kalich to take her hands off the students, and that it was improper to pull on students' arms. D.W. was a female student in Ms. Kalich's class during the 2000-2001 school year. She was prone to throwing tantrums. She would freeze herself to one spot or fall to the ground kicking, screaming, flailing her arms, and refusing to be moved. Children in D.W.'s vicinity during one of these tantrums were likely to get kicked or hit by D.W.'s flailing arms. Ms. Rosario witnessed Ms. Kalich carrying or pulling D.W. into Ms. Rosario's classroom for "time out." Ms. Rosario conceded that D.W. was a "challenging" child and that Ms. Kalich had great difficulty in getting D.W. to listen or follow her classroom rules. Once in Ms. Rosario's room, D.W. would calm down and comply with Ms. Rosario's instructions. Ms. Rosario never asked D.W. about events leading to her being sent to Ms. Rosario's classroom, because her immediate goal was to get D.W. under control. Ms. Rosario testified that neither D.W. nor any other student sent to her class by Ms. Kalich ever reported abuse by Ms. Kalich. Prior to May 29, 2001, D.W. and Ms. Kalich had several confrontations that led either to allegations of abuse against Ms. Kalich or discipline against D.W. On April 10, 2001, D.W. alleged that Ms. Kalich hit her on the hand with a book. Assistant Principal Deborah Houston removed D.W. from the classroom pending an investigation of the allegation. After interviewing several teachers and a student, Ms. Houston determined that the allegation could not be sustained, and she returned D.W. to Ms. Kalich's classroom. On April 23, 2001, D.W. refused to report to a "time out" classroom and, later, pushed another child in the lunch line. When Ms. Kalich came near her in the lunch line, D.W. bit Ms. Kalich. Ms. Houston conferred with D.W.'s mother and imposed a three-day in-school suspension on D.W. On May 23, 2001, D.W. called Ms. Kalich "an ugly bitch," when Ms. Kalich told her to go to another classroom for a "time out." On this occasion, Ms. Houston imposed a two-day out-of-school suspension on D.W. Ms. Kalich testified at length concerning the events of May 29, 2001. This was the next to last day of the school year, and the children were therefore in a higher state of agitation than usual. Ms. Kalich was preparing her class to go out for physical education ("PE"). She called the children by name to line up in the classroom before walking down the hallway. When D.W.'s turn came to line up, she was displeased with her position and began pushing other children to make her way to the front of the line. Ms. Kalich ordered D.W. to go to the end of the line. D.W. refused. Ms. Kalich then informed D.W. that, if she would not go to the end of the line, she would walk to PE alongside Ms. Kalich. D.W. commenced a tantrum, throwing herself on the floor. She lay on her stomach, flailing her hands, and kicking her feet. Ms. Kalich closed the classroom door to minimize the disturbance to other classes. She then got down on her knees beside D.W. and rested her hands on D.W.'s calves and feet to stop her from kicking. She kept her hands in that position for "a few minutes," until D.W. calmed down. Ms. Kalich conceded that the position of her hands might have made it look as though she were dragging D.W. by the legs, but she denied dragging the child. After D.W. quieted down, Ms. Kalich helped her to her feet. They started out the door, with Ms. Kalich holding onto one of D.W.'s hands. As they went out the door, D.W. began hitting other students with her free hand. Ms. Kalich took both of D.W.'s hands and clasped them between her own, and in that way they walked down the hallway and outside the building. Another of Ms. Kalich's students, J.Q., was carrying a chair outside because she was to be disciplined with a "time out," while the rest of the class took PE. As Ms. Kalich and D.W. were rounding a corner outside the building, J.Q. dropped the chair, creating a loud crashing sound. Ms. Kalich testified that just as she was distracted by the crash, D.W. jerked away from her grip and hit her head on the wall. D.W. began to cry and ran away to the corner of a fenced area outside the school. Ms. Kalich joined Ms. Stewart in checking to see if J.Q. was hurt. After she was assured that J.Q. was not hurt, Ms. Kalich told the child, "That's what you get for acting silly." Ms. Kalich turned her attention back to D.W., ordering her back into the line. D.W. refused to come. Ms. Kalich testified that she told D.W., "Then I will go to the office and tell them you're not coming back." The PE coach, Michael VanSerke, came out and helped Ms. Kalich move D.W. from the corner to the PE area. Coach VanSerke told Ms. Kalich that he would have two of his first grade "helpers" take D.W. to a classroom for "time out" during the PE class. Ms. Kalich was skeptical that two first grade boys could handle D.W. She saw D.W. approach one of the boys and try to kick him. Ms. Kalich interceded. She carried D.W. under the arms and, with the help of the two first grade helpers, got D.W. to the "time out" classroom. Ms. Stewart's version of the events of May 29, 2001, was very different. Ms. Stewart walked with Ms. Kalich because some of the children in her class went to PE at the same time as Ms. Kalich's class. Ms. Stewart testified that she looked in the doorway of Ms. Kalich's class and saw D.W. sitting on the floor, flailing her arms and crying, refusing to get up. Ms. Kalich grabbed D.W. by the ankles and dragged her out of the room. Ms. Stewart asked Ms. Kalich if she needed help, but Ms. Kalich said she did not. Ms. Stewart recalled that J.Q. dropped the chair on her foot and was crying. Ms. Kalich still had D.W. by the arm, and D.W. was still flailing. Ms. Kalich jerked D.W.'s arm, presumably to make her stop flailing, and the child's head hit the wall and she began to cry. Ms. Stewart did not believe that Ms. Kalich deliberately pushed D.W. into the wall. Ms. Stewart recalled Ms. Kalich telling D.W. "something like, 'You never need to come to school again.'" Carolyn Furnbach, another teacher at Tillman, witnessed the portion of the incident that occurred outside. She recalled that there was "a lot of commotion" and that Ms. Kalich "had the child by the arm and was pulling her quite forcibly." Ms. Furnbach was concerned for D.W.'s safety. D.W. testified at the final hearing. She recalled being pushed into the wall by Ms. Kalich but could offer no further details of the incident. Ms. Stewart's testimony is credited as to Ms. Kalich dragging D.W. out of the classroom. Ms. Kalich's testimony that she was merely resting her hands on D.W.'s calves to calm her is not credible for several reasons. First, given the general descriptions of D.W.'s tantrums involving flailing arms and wildly kicking legs, it is not credible that Ms. Kalich's resting her hands on the child's calves would have the effect claimed by Ms. Kalich. Second, Ms. Kalich's placing her hands on the child's legs would not stop D.W.'s flailing arms. Third, it is not credible that Ms. Stewart would mistake hands resting on the child's calves for the act of dragging the child out of the classroom. Fourth, it is not credible that the rest of the class would stand by quietly for the "few minutes" Ms. Kalich claimed it took her to calm D.W. Ms. Stewart's testimony is credited as to Ms. Kalich's causing D.W.'s head to hit the wall. Ms. Stewart's testimony was bolstered by that of Ms. Furnbach, who also saw Ms. Kalich pulling on D.W.'s arm. Ms. Kalich's testimony is credited as to her statement to D.W. after the incident. Ms. Stewart's recollection of that statement was not precise and could have been consonant with Ms. Kalich's version of her statement. It is found that Ms. Kalich was trying to obtain D.W.'s cooperation by threatening to tell the office that D.W. was not coming back to school, not telling the child not to come back to school. Ms. Rosario did not witness the May 29 incident, but afterwards Ms. Stewart and Ms. Furnbach came to her, as their kindergarten team leader, with their concerns about Ms. Kalich's handling of D.W. Ms. Rosario advised them to go to Principal Roberson with their concerns. Ms. Roberson asked all three of the teachers to submit written statements outlining their observations of, and concerns about, Ms. Kalich's behavior in the classroom. Ms. Rosario opined that Ms. Kalich is a "great person" and a caring, hard-working teacher, but that she was teaching in the wrong school, because Tillman students are "hard on you." Ms. Rosario noted that there are many special needs children at Tillman, including some from bad homes and some who were "drug babies" or "fetal alcohol children." Because they have just started school, many of these children have not yet been identified for special services. Ms. Rosario stated that she would not send her own children to Tillman. She believed that Ms. Kalich tried everything she knew to deal with her students, but that nothing in Ms. Kalich's education or background prepared her for the type of students she encountered at Tillman. Ms. Furnbach testified that Tillman is a school with a "tough group" of students, many of whom have behavioral problems. She believed that Ms. Kalich always had the right intentions, was a good instructor, and cared about her students. Ms. Furnbach believed that Ms. Kalich should receive some help in classroom management and dealing with problem students before returning to Tillman or that she be assigned to work with less challenging students. Lisa Revell, another kindergarten teacher at Tillman, worried that Ms. Kalich was "too nice" to be working in the Tillman environment. Ms. Mitchell, the former principal, commented that certain children were able to take advantage of Ms. Kalich. In summary, the Department demonstrated by clear and convincing evidence that Ms. Kalich repeatedly yelled at the children in her kindergarten class, telling them to "shut up"; and that on May 29, 2001, Ms. Kalich dragged D.W. from the classroom by her ankles, pulled her by the arm, and jerked her arm in a manner that caused D.W.'s head to hit an outside wall. The evidence did not establish that Ms. Kalich told D.W., "You don't need to ever, ever come back to school again," or words to that effect. The evidence did not establish that any of Ms. Kalich's actions were motivated by malice or an intent to abuse the children. To the contrary, even those teachers who testified against Ms. Kalich spoke highly of her dedication and desire to provide the best possible educational environment for her students. The evidence established that Ms. Kalich was ill- equipped to deal with the unique needs of the student population at Tillman and that, in her desperation to maintain order, she would resort to yelling and rough handling of young children. Ms. Kalich submitted several letters attesting to her good character and her quality as a teacher. These have been considered, but are beside the point. Ms. Kalich's good character is not at issue. Specific acts were alleged. Eyewitnesses testified that they observed these acts, even as they continued to believe that Ms. Kalich was a person of good character who sincerely cared about the children in her charge. Grabbing students, jerking them by the arms, dragging them by the ankles, yelling at them, all are improper means of maintaining order in the classroom. Ms. Kalich's inability to cope with the behavior of the children in her classroom evokes some sympathy, but it must be noted that the other kindergarten teachers at Tillman managed to keep order in their classrooms without resort to such abusive methods.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued finding that Respondent violated the provisions of Florida Administrative Code Rule 6B-1.006(3)(a) and (e). It is further RECOMMENDED that a final order be issued providing that a written reprimand be placed in her certification file and placing her on a two-year period of probation, subject to such conditions as the Commission may specify, including classroom supervision by another certified educator and completion of appropriate college courses in classroom management. DONE AND ENTERED this 9th day of January, 2004, 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 9th day of January, 2004.
Findings Of Fact The Respondent, Harvey R. Steckler, holds Teacher's Certificate No. 520419 issued by the State of Florida, Department of Education. This Certificate covers the area of substitute teaching. On February 5, 1985, the Respondent was employed as a substitute teacher at Brownsville Junior High School in the Dade County Public School System. On February 5, 1985, while substitute teaching in a physical education class, the Respondent was conversing with a group of minor male students. During this conversation, a minor female student passed the Respondent and the group of students. While looking at the female student, the Respondent began to make sexual remarks about her. She could hear portions of these remarks, such as "Oh, she's so fine; he had a girl on his boat and liked to eat her out; you wouldn't mind getting to her; he would like to eat her out," and other sexual comments. These remarks were also overheard by the boys in the group, as well as by the female student. The female student went to the school office and told the Principal and the Assistant Principal about the incident. They suggested to her that she write out a report on the incident, which she did. The Respondent's remarks caused the female student to be both nervous and frightened, as well as embarrassed. When the Principal of Brownsville Junior High reported this incident to the Dade County school system, the Respondent was informed that his name had been removed from the approved list of substitute teachers, pending further notice. After an investigation and several conferences, the Respondent's name was permanently removed from the list of authorized substitute teachers in the Dade County public school system. On April 24, 1985, the Respondent appeared before a publicly televised meeting of the school board to appeal the removal, but the school board took no action to reinstate him. The nature of the incident described above, together with the awareness of the incident on the part of students, staff, parents and the community, because of its publicity, so impaired the Respondent's effectiveness as a substitute teacher and as an educator, that the school board could not re-employ him in any capacity in the Dade County public schools.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Education Practices Commission enter a Final Order permanently revoking Teacher's Certificate No. 520419 held by the Respondent, Harvey R. Steckler. THIS RECOMMENDED ORDER ENTERED this 17th day of June 1987, in Tallahassee, Leon County, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of June 1987. COPIES FURNISHED: William E. Williams, Esquire Post Office Box 1739 Tallahassee, Florida 32302 Mr. Harvey R. Steckler 825 82nd Street Miami Beach, Florida 33141 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399 Sydney Moenzie, Esquire General Counsel Department of Education Knott Building Tallahassee, Florida 32399 Marlene T. Greenfield Administrator Professional Practices Services Section 319 West Madison Street, Room 3 Tallahassee, Florida 32301 Karen B. Wilde, Executive Director Education Practices Commission Room 418 Knott Building Tallahassee, Florida 32399
The Issue Whether just cause exists for Petitioner to suspend without pay and terminate Respondent’s employment as a teacher.
Findings Of Fact The School Board is a duly-constituted school board charged with the duty to operate, control, and supervise the public schools within St. Lucie County, Florida. At all times material hereto, Respondent was employed by the School Board as a music teacher at Manatee Academy K-8 School (“Manatee”), pursuant to a Professional Services Contract, issued in accordance with section 1012.33(3)(a), Florida Statutes. Respondent’s employment with the School Board as a teacher began in 2006. At all times material hereto, Respondent’s employment with the School Board was governed by Florida law and the School Board’s policies. Prior to the incidents giving rise to this proceeding, Respondent was not the subject of any discipline. She had received overall ratings of “Exceptional” or “Above Expectation” on her teaching evaluation forms. The incidents giving rise to this proceeding occurred on October 18 and 19, 2012, during the 2012-2013 school year. October 18 and 19 Respondent awoke around 6:00 a.m. on Thursday, October 18, 2012, and reported to work at Manatee. That afternoon, Respondent finished her work day at Manatee and left the school sometime after 3:15 p.m. After running some errands, Respondent arrived at her single-family residential home in Fort Pierce, sometime after 5:00 p.m. Respondent shared the home with her long-time boyfriend and fiancé, Dominic Madison (“Madison”). Madison was also a teacher employed by the School Board. At that time, Madison was a band director at a local high school. By the time Respondent got home, Madison had not yet returned home from his work day at the high school. Shortly after arriving home, Respondent sat down at her personal laptop computer to check e-mails and do some work. The computer was connected to the home’s wi-fi network. While working on the computer, Respondent discovered an unfamiliar icon and link to a file on the home network. The icon peaked Respondent’s interest. Upon clicking on the icon, a video opened with Madison’s face. Respondent then observed Madison and a white female engaged in sexual activity in a room inside their home.1/ While Respondent was unsure, it appeared that the female might be a former student of Madison’s who might also be a minor. As she continued watching the video, Respondent recognized the female as one of Madison’s 17-year-old students, K.M. After watching the video, Respondent was devastated, upset, angry, and unable to process what she saw. She called Madison at 6:36 p.m., to confront him about the video and confirm her suspicions that he, in fact, engaged in sexual activity with a minor student. They spoke for approximately 36 minutes. During the call, they argued, and Madison neither admitted nor denied engaging in sexual activity with K.M. By this point, Respondent was in tears and so upset and completely devastated that she experienced chest pains. After getting off the phone with Madison and while still at home, Respondent called her pastor, Theodore Sanders, for guidance. They spoke around 7:13 p.m., for approximately 14 minutes. Pastor Sanders knew Madison because his children had been members of the band at Madison’s high school. Pastor Sanders was shocked by Respondent’s allegation that Madison had engaged in sexual activity with a minor student. Due to the ramifications of such a “huge allegation,” Pastor Sanders was cautious and wanted to make sure that Respondent was certain about what she saw on the video. It is understandable that Respondent needed some period of time in which to process the situation, given that Madison was her fiancé; they had a long relationship together; and she observed Madison on her personal computer engaging in sexual activity with a minor student in their home. Sometime after 7:30 p.m., Respondent left the home. At 7:26 p.m., Respondent and Madison spoke again on the phone for approximately 38 minutes. Respondent and Pastor Sanders spoke again on the phone at 8:03 p.m. and 8:45 p.m., with such calls lasting one minute and 10 minutes, respectively. In the interim, Respondent spoke again on the phone with Madison for 43 minutes starting at 8:03 p.m. As a teacher, Respondent is a mandatory reporter of child abuse under sections 39.201(2)(a) and 1006.061(1), Florida Statutes. Respondent clearly understood that she had a mandatory obligation to report the sexual activity she saw on the video between Madison and K.M.2/ Respondent and Pastor Sanders discussed the need to report what Respondent saw. There was never any doubt that the abuse needed to be reported. Because of Respondent’s distraught emotional state at the time, they agreed that Pastor Sanders would make the call. Pastor Sanders told Respondent to get off the road and go home. Pastor Sanders then called “911” at some point after they got off the phone at 8:55 p.m., to report the abuse. At the hearing, Respondent acknowledged that there was almost a four-hour gap from when she first saw the video until the time that Pastor Sanders stated he was going to report the abuse. Respondent further acknowledged that prior to 8:55 p.m., she had never made a phone call to report the abuse to 911, DCF, or her principal. However, given that Respondent had just recently seen a video on her personal computer of her fiancé engaged in sexual activity with a minor female student in their home, it was understandable that Respondent needed time to process the situation. A less than four-hour delay from when Respondent first saw the video to Pastor Sanders’ call to 911 was immediate, and not an unreasonable delay given the unique facts of this case. Sometime before 10:00 p.m., Respondent returned to her residence. She saw Madison’s vehicle and assumed he was inside the home. According to Respondent, she knew the police were on their way. Respondent nevertheless entered the home, but she did not approach Madison in any manner. At approximately 10:00 p.m., two St. Lucie County Sheriff’s deputies arrived at the home and rang the doorbell at the front door. Madison answered the door, and was told by one of the deputies that they were there to talk to Respondent. The officer asked Respondent to step outside to speak with them and Madison was directed to step back. Madison then went back inside the home and closed the door behind him. One of the deputies remained at the front porch area while Respondent and the other deputy began to discuss what Respondent had seen on the video. At this point, one of the deputies requested to see the video so Respondent and the deputies proceeded to attempt to go back inside the front door. However, they discovered that Madison had locked the door behind him when he re-entered the home. By this point, no law enforcement officer had explored the perimeter of the home to determine whether there were any other entrances or exists from the home. Nor was Respondent asked by either deputy if there were any other entrances or exits from the home. Respondent began ringing the doorbell and knocking on the front door. In the midst of Respondent ringing the doorbell, knocking on the door, and receiving no response from Madison, the deputies asked Respondent, for the first time, if there were any guns in the home and any other entrances and exits. Respondent advised the deputies that there was a back door. Ultimately, it was determined that Madison had snuck out the back door of the home to elude law enforcement. Respondent gave the deputies permission to enter and search the home. They entered through the open back door. Once the house was cleared by the officers, Respondent and the officers went inside the home. Respondent was cooperative during the search of the home and she consented to allowing the officers to look at the computer. Respondent attempted to show one of the deputies what she saw on the computer, but nothing would come up. Ultimately, it was determined that Madison took the evidence with him when he fled the home. When officers went into the front office and wanted to collect some items belonging to Madison, Respondent told the officers that she would prefer if they got a search warrant. The officers obtained a search warrant and stayed all night searching the home until approximately 5:00 a.m. Respondent did not sleep or eat while the officers were at the home and she was visibly “shaken-up” and crying at times during the evening and early morning hours of October 19. Detective Wentz was at the home and spoke with Respondent throughout the night and early morning of October 19. At some point, Detective Wentz “flat out asked” Respondent if she knew where Madison was located. Respondent responded, indicating she did not know where he fled to. Detective Wentz made it clear to Respondent on multiple occasions during the evening of October 18 and early morning of October 19 that if she knew Madison’s whereabouts, she should let him know. Before he left the home on the morning of October 19, Detective Wentz reiterated to Respondent that she needed to contact law enforcement immediately if she had any information about Madison’s whereabouts. Respondent clearly understood this directive. At no time during the evening of October 18 and early morning of October 19 did Respondent ever volunteer information as to where she thought Madison might be. On the other hand, the persuasive and credible evidence adduced at hearing establishes that Respondent did not know of Madison’s whereabouts at any time during the evening of October 18 and early hours of October 19 after he fled the home. However, by 11:45 a.m., on October 19, Respondent discovered that Madison might be staying at the local Holiday Inn Express, based on information she received from Madison’s father. Respondent called the front desk of the hotel at 11:47 a.m. and 12:01 p.m., in an effort to confirm that Madison was indeed at the Holiday Inn. Respondent and Madison spoke at 12:09 p.m., at which time Respondent knew Madison was still at the hotel, about to check-out of the hotel. At no time between 11:47 a.m. and 1:39 p.m., did Respondent make any calls to law enforcement to let them know that Madison might be at the Holiday Inn. Master Deputy Horowitz was at Respondent’s home before 1:39 p.m. However, Respondent failed to inform Master Deputy Horowitz that Madison was at the Holiday Inn. Master Deputy Horowitz specifically asked Respondent if she knew where Madison was. Respondent responded, stating that she “did not know where his whereabouts were at the time.” Respondent spoke with Master Deputy Horowitz by telephone on two or three occasions later that afternoon. Respondent’s testimony that she told Master Deputy during one of these telephone conversations that Madison had been at the Holiday Inn is not credited and is rejected as unpersuasive. Later that afternoon, Respondent was transported to the Sheriff’s Office for an interview. During the interview, Respondent admitted she failed to inform law enforcement that Respondent had been staying at the Holiday Inn: DETECTIVE NORMAN: I know you’ve talked to several detectives throughout yesterday evening, last night, this morning, this afternoon. Probably seen more faces that you want to see. Here’s--here’s what we’re trying to figure out, where your fiancé is. Do you know where he is? MISS THOMAS: And I understand that. And like I told the officers that came to the home, it was information that was left out. And it truly was not intentional. I know the way it looked, intentionally, it made me look bad, but I honestly do not know where he is. At the time when I did speak to him, he told me that’s where he was, that he was leaving that location so I haven’t a clue. He hasn’t contacted me since the last time I spoke with him today. * * * And I mean, I’m disappointed because I made a mistake. I did. I omitted something that I didn’t realize at the time and I don’t know if it was, you know, just, you know, just did it just because I guess deep down I was maybe trying--you know, I don’t know why I didn’t say, “Oh yea, by the way this.” I don’t know why. That was so stupid. Petitioner’s Exhibit 12, pp. 5-7. Following the interview, Respondent was placed under arrest and charged with one felony count of failing to report child abuse in violation of sections 39.201(1)(b) and 39.205, Florida Statutes, and one felony count of being an accessory after the fact, in violation of section 777.03(1)(c), Florida Statutes. After Respondent was arrested, she was placed on temporary duty assignment at home with pay. On Monday, October 22, Respondent self-reported her arrest and the abuse of K.M. by Madison to her principal and the District. Subsequently, the State Attorney charged Respondent in the Nineteenth Judicial Circuit for the felony charges of failing to report child abuse in violation of sections 39.201(1)(b) and 39.205, and for the felony charge of being an accessory after the fact in violation of section 777.03(1)(c). The persuasive and credible evidence adduced at hearing establishes that Respondent did not call Madison while he was at the Holiday Inn Express to warn him so that he could elude arrest. Nevertheless, Respondent knew Madison was at the Holiday Inn at least by 12:09 p.m. on October 19, when she spoke to Madison on the telephone. Respondent failed to inform law enforcement that he was at the Holiday Inn, or that he had been at the Holiday Inn, until her interview at the Sheriff’s office later that afternoon just prior to her arrest. After a 23-hour manhunt, law enforcement officers found and arrested Madison at the Holiday Inn Express around 7:00 p.m. Respondent’s delay in informing law enforcement of Madison’s whereabouts or that he had been at the Holiday Inn Express delayed his arrest by at most, approximately seven hours. Notably, the video was discovered by Respondent, reported by Respondent to law enforcement, and Madison was arrested, within the span of approximately 25 or 26 hours. Ultimately, it was Respondent who identified the victims of Madison’s crimes. It was Respondent’s discovery of the video, her immediate reporting of the abuse, and her later identification of the victims, which led to Madison’s arrest and his conviction on all charges. The State Attorney charged Madison in the Nineteenth Judicial Circuit with 40 counts of criminal activity: 34 felony charges of sexual activity with a minor; five felony charges of sexual battery on a child in custodial relationship; and one felony charge of using a child in a sexual performance. On April 1, 2016, Madison was adjudicated guilty on five counts of sexual activity with a minor. Madison was sentenced to 15 years, consecutive, for each count. On August 7, 2013, Respondent pled no contest to both charges. On the plea form, Respondent checked section 25, which states: “I specifically believe the plea is in my best interest even though I am innocent of the charge, charges, or violations, or may have defenses to them.” After Madison was adjudicated guilty, all criminal charges against Respondent were Nolle Prossed. The persuasive and credible evidence adduced at hearing fails to establish that Respondent is guilty of misconduct in office in violation of Florida Administrative Code Rule 6A- 5.056(2)(d) or (e). The evidence does not establish that Respondent engaged in behavior that disrupted a student’s learning environment or reduced her ability or his or her colleagues’ ability to effectively perform duties. The persuasive and credible evidence adduced at hearing fails to establish that Respondent violated Florida Administrative Code Rule 6B-1.006(3)(a). The evidence does not establish that Respondent failed to make reasonable efforts to protect a student from conditions harmful to learning and/or to the student’s mental and/or physical health. Indeed, Respondent protected students from any further abuse by Madison. Respondent is responsible for Madison’s abuse of K.M. being brought to the attention of law enforcement immediately after she observed the video on her personal computer. Within about four hours after observing her fiancé engaging in sexual activity with a minor on her personal computer and processing the situation and speaking with her pastor, the matter was reported to 911, and law enforcement arrived at Respondent’s home. Madison was at the home when the deputies arrived. Notably, the deputies who arrived at Respondent’s home did not ask to speak with Madison first. Instead, they asked to speak with Respondent, and Respondent was asked to step outside the home. Madison, the alleged perpetrator of the sexual abuse, was ordered by one of the deputies to go back inside the home. Knowing full well that the suspect, Madison, went back inside the home through the front door, neither deputy undertook any efforts to determine whether Madison might have an escape route through another door. A perimeter was not established until after law enforcement officers discovered that Madison had fled the home. Respondent cooperated with law enforcement while they were at her home. She cooperated fully in the prosecution of Madison and she was instrumental in securing Madison’s criminal conviction for the abuse. Given the totality of the circumstances, Respondent’s failure to inform law enforcement during the afternoon of October 19 of Madison’s whereabouts at the Holiday Inn, which delayed the arrest of Madison by seven hours, at most, does not rise to the level of conduct sufficient to support a finding of guilt in violation of rule 6B-1.006(3)(a). The persuasive and credible evidence adduced at hearing fails to establish that Respondent violated rule 6B-1.006(3)(n). Respondent reported the abuse to appropriate authorities when Pastor Sanders called 911. She also reported the abuse to appropriate authorities when deputies arrived at her home. Respondent also self-reported the incident to her principal and the District on the following Monday, October 22. The persuasive and credible evidence adduced at hearing fails to establish that Respondent is guilty of immorality in violation of rule 6A-5.056(1). Insufficient credible and persuasive evidence was adduced at hearing to establish that Respondent engaged in conduct inconsistent with the standards of public conscience and good morals, and that the conduct was sufficiently notorious so as to disgrace or bring disrespect to Respondent or the teaching profession and impair Respondent’s service in the community. The persuasive and credible evidence adduced at hearing fails to establish that Respondent violated Policy 5.37(8)(a). Respondent “directly” reported her knowledge of Madison’s abuse of K.M. as required by the policy when Pastor Sanders called 911 within four hours of Respondent’s view of the video. The persuasive and credible evidence adduced at hearing fails to establish that Respondent violated Policy 6.301(3)(b). As to Policy 6.301(3)(b)(viii), Respondent did not engage in immoral conduct, nor was it shown that Respondent’s conduct was “indecent.” As to Policy 6.301(3)(b)(xxx), the School Board failed to prove that Respondent engaged in off-duty conduct that does not promote the good will and favorable attitude of the public toward the School District, its programs, and policies. In reaching this conclusion, it is notable that the School Board did not call any members of the public or any administrators, teachers, or other personnel as witnesses to support this claim. Moreover, the School Board does not argue in its proposed recommended order that it proved that Respondent violated Policy 6.301(3)(b)(xxx). Paragraphs 71 through 73 refer to another specific subdivision within Policy 6.301(3)(b), 6.301(3)(b)(viii). However, there is no specific argument that Respondent violated Policy 6.301(3)(b)(xxx). The persuasive and credible evidence adduced at hearing fails to establish that Respondent violated Policy 6.94(2)(a). As detailed above, Respondent reported the abuse when Pastor Sanders called 911. Respondent also reported the incident to the deputies when they arrived at her home shortly after Pastor Sanders called 911, and when she self-reported the abuse to her principal and the District on the following Monday, October 22.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the St. Lucie County School Board enter a final order rescinding Respondent’s suspension without pay and termination, and reinstate her with back pay and benefits. DONE AND ENTERED this 23rd day of May, 2017, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of May, 2017.
