The Issue Whether Respondent should be transferred from Glades Middle School to an opportunity school.
Findings Of Fact For the 1989-90 school year John Sarmiento was enrolled in the Dade County public school system and he was assigned to the eighth grade at Giades Middle School. On November 27, 1989, Petitioner administratively transferred him from Glades Middle School to J.R.E. Lee, an opportunity school. The stated basis for the transfer was the student's disruptive behavior and his failure to adjust to the regular school. As an opportunity school, J.R.E. Lee has a more structured program than a traditional school, such as Glades Middle School, and is designed to assist students with discipline problems. While attending Glades Middle School, John Sarmiento repeatedly engaged in disruptive conduct that interfered with his own learning and with the learning of others in his classes. This conduct resulted in his being referred to the assistant principal's office between five and ten times per week. On one occasion the student, while in class, threw a piece of chalk at another student. On another occasion, the student engaged in an argument with another student that almost resulted in a fight during class. On an almost daily basis, the student would wander around the class while making loud, boisterous comments. This student's misconduct would have merited his suspension according to the district code of student conduct. Instead of suspending this student, the school officials worked with him and with his parents in an effort to improve his behavior. Unfortunately the considerable efforts of the personnel at Glades Middle School to serve the student's educational needs did not succeed. The student needs the structured environment that the opportunity school can provide, and his educational needs will best be served by his transfer.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner enter a final order which approves John Sarmiento's assignment to the J.R.E. Lee opportunity school. DONE AND ENTERED this 3rd day of April 1990, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of April 1990. COPIES FURNISHED: Frank R. Harder, Esquire 2780 Galloway Road, Suite 100 Twin Oaks Building Miami, Florida 33165 Maria Ruiz de la Torre, Esquire 7111 Biscayne Boulevard, Suite Three Miami, Florida 33138 Madelyn P. Schere, Esquire Assistant Board Attorney Dade County Public Schools School Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132 Dr. Paul W. Bell Superintendent of Schools Dade County Public Schools School Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132
The Issue Whether Respondent, Robert P. Sulcer, as principal of Riverland Elementary School, is guilty of "incompetency, and/or misconduct in office and/or willful neglect of duty" as charged in a 28-count "Amended Petition for Dismissal from Broward County School System," filed September 6, 1984, and should be dismissed from employment with the Petitioner, Broward County School Board.
Findings Of Fact RESPONDENT: BACKGROUND AND PAST PERFORMANCE In 1955, Respondent received a Master's Degree in Education, Supervision, and Administration from Southern Illinois University. He moved to Broward County in 1957 and was first employed by the School Board as a teacher at McNab Elementary School. He has been employed as a principal for 25 years. In 1960, he became the principal of McNab Elementary and continued as a principal in various elementary schools until 1971 or 1972, when he became a principal at Pompano Beach Middle School for seven years. He was assigned the principalship at Lake Forest Elementary School for 5 years, then became principal of Riverland Elementary School in 1982. When he was suspended without pay on August 2, 1984, based on the charges which are the subject of this proceeding, he had a continuing contract (as principal) with the School Board. His supervisors evaluated (in writing) his performance as a principal during each of the 25 years he was a principal, including the 1982-83 and 1983- 84 school years. All evaluations were positive and described his performance as satisfactory. There were no negative comments. II COUNTS 1 AND 2: CONSISTENT DISCIPLINE PLAN Count 1 You are hereby charged with failing to estab- lish and/or maintain and/or formally present consistent rules and/or regulations regarding student discipline and/or student behavior for the staff and student body at Riverland Elementary School for the 1982-83 school year, which constitutes incompetency and/or misconduct in office and/or willful neglect of duty. Count 2 You are hereby charged with failing to estab- lish and/or maintain and/or formally present consistent rules and/or regulations regarding student discipline and/or student behavior for the staff and student body at Riverland Elementary School for the 1983-84 school year, which constitutes incompetency and/or misconduct in office and/or willful neglect of duty. Counts 1 and 2 center on the "development of a consistent disciplinary plan" at Riverland Elementary School, including rules and regulations for the 1982-83 and 1983-84 school years. To sustain these charges the School Board must demonstrate that there was no consistent disciplinary plan including rules and regulations in effect at Riverland Elementary School for the years 1982-1983 and 1983-84 and that such omission constituted incompetency, misconduct in office or willful neglect of duty. The evidence not only fails to substantiate these two charges but affirmatively establishes that a consistent formal disciplinary plan and procedure was in effect at Riverland Elementary School during the 1982-83 and 1983-84 school years. A. 1982-83 During the 1982-83 school year, the Student Conduct and Discipline Code ("Discipline Code") for Broward County was in effect and fully utilized. Riverland Elementary School received its accreditation at the conclusion of that year and there was no reference to an inconsistent or non-existent disciplinary plan. There were no reports of a non-existent or inappropriate disciplinary system at Riverland Elementary School during 1982-83 made to School Board administrators at any time prior to the lodging of initial charges in March 1984. (R-2; TR-IV, p.467; TR-V, p.712; TR-XI, pp.42,108) The Discipline Code delineated the teachers' responsibilities for student discipline as well as the consequences for student misconduct. During school year 1982-83, Respondent utilized the disciplinary referral system and handled student discipline problems in a manner consistent with the Discipline Code. (Conversely, there is no evidence demonstrating that Respondent failed to follow the Student Discipline Code in any instance, whatsoever during the year 1982-83.) He made sure (that parents, teachers, and students were aware of the Discipline Code. When he became principal of Riverland he discussed discipline with the students during an orientation assembly. He met with the grade level chairpersons on a daily basis and discussed discipline with them. They, in turn, were instructed to direct the teachers under their jurisdiction to review the contents of the Discipline Code with their students and ensure that students took the Code pamphlets home to be signed by their parents. In connection with the SACS review process, a student assembly was held to discuss discipline. Because of the type of children in the school and the age of the majority of the students, however, school-wide assemblies to discuss discipline proved to be less effective than small group discussions. Respondent's preferred use of small group settings and his utilization of the Discipline Code was deemed acceptable by his immediate supervisor. Other teachers followed a similar practice without objection. (TR-III, p.372; TR-IX, p.40, TR-X, p.83, TR-XIII, p.77, TR-XV, pp.38 169,2,192-193; TR-XVI, pp.8-9,16,48-49) B. 1983-84 During school year 1983-84, the Discipline Code remained in effect. Respondent continued to utilize it as the foundation for the disciplinary process in place at Riverland Elementary School. Indeed, use of the Discipline Code, as adopted by the School Board of Broward County, was mandated. Although several teachers testified that there should be a school-wide code which overlaps or supercedes the official county-wide Discipline Code, there is no showing that a school-wide code, other than the Discipline Code, was required or even customarily used in the school system (TR-I, pp.89,90, TR-II, p.201; TR- IV, p.467, TR-V, p.712; TR-IX, p.38; TR-XI, p.108; TR-XV, p.16) Several teachers critical of Respondent's performance testified that he should have adopted a code listing infractions which would automatically lead to specific consequences. To comply with this request, Respondent would have had to enact a code inconsistent with the Discipline Code mandated by the School Board. Page 6 of the Code sets forth the criteria to be used by a principal or his designee in meting out discipline. The Code attempts to match specific conse- quences with specific behavior. The numbers in brackets which follow each rule refer to consequences which may be used if misbehavior occurs. With the exception of Attendance, consequences are listed on page 24. Under certain circumstances, specification is mandatory and is so identified by an asterisk (*). When discipline problems occur in the pres- ence of a teachers it is the responsibility of the teacher to handle the situation until all strategies available to the teacher according to the School Board Policy have been exhausted. School personnel are encouraged to employ realistic and appropriate methods of disci- pline not necessarily outlined in this Code. For example, cleaning desk tops is an appro- priate consequence for writing on them. When determining the consequences, the fol- lowing circumstances should be taken into consideration: age and/or grade level of student; frequency of misconduct; seriousness of particular misconduct; attitude of student; student records; any other relevant factors including but not limited to, handicapped students who are governed by provi- sions outlined in School Board Policy 5006.1. (e.s.) Under this disciplinary scheme, a principal administers discipline not only to punish students but to encourage behavior modification. To accomplish the latter a principal is given alternatives and combinations of alternatives for use based on the unique circumstances of each situation. Factors to be taken into account include the number of prior referrals, the seriousness of the situation, the child's previous disciplinary record, the age of the child, the intellectual level of the child, the emotional level of the child, and any learning disabilities that might be associated with the child. Respondent followed the Discipline Code and administered discipline based upon the referrals he received from teachers. There was no showing that he failed to follow the student Discipline Code. If the charge is that the Discipline Code, itself, lacks "consistent rules and regulations," or fails to conform to "consistent rules and regulations" such charge is more appropriately directed at the School Boards which adopted the Coded than Respondent who merely implemented it. (TR-XV, pp.38-39, 54; TR-XVI, p.31) At the outset of the 1983-84 school year, Respondent again directed his grade level chairpersons to disseminate the Code to teachers and instruct them to teach the Code to their students. The teachers were instructed to use the Discipline Code in conjunction with I.T.V. programs during the first week or two of school. The teachers carried out these instructions. Students were taught the Code, and their understanding of the Code was reinforced throughout the year. (R,4, TR-II, pp.184, 189,201; TR-V, pp.638,640; TR-X, p.126; TR-XVI, pp.48-49,5-6) In addition to the grade level chairpersons' meetings, Respondent disseminated various bulletins dealing with discipline, specifically Bulletin 83-9, which set forth the steps the teachers were to utilize in the disciplinary process. He issued Bulletin 83-9 because some teachers were not following the Discipline Code and meting out the appropriate discipline in the classrooms (per the Code) before sending students to his office. This bulletin was intended to reinforce the Code's recognition that teachers are primarily responsible for discipline in the classroom. The Code recognizes that classroom management is an integral part, if not the most important component, in the disciplinary process: When discipline problems occur in the pres- ence of a teacher, it is the responsibility of the teacher to handle the situation until all strategies available to the teacher according to the School Board Policy have been exhausted. (R-4; TR-III, P.394; TR-V, p.708)(R-2, p.6, TR-XV, p.31) COUNTS 3 AND 4: INCONSISTENT METING OUT OF DISCIPLINE Count 3 You are hereby charged with failing to admin- ister discipline consistently and/or effec- tively for students referred to you by staff members during the 1982-83 school year, which constitutes incompetency and/or misconduct in office and/or willful neglect of duty. Count 4 You are hereby charged with failing to admin- ister discipline consistently and/or effec- tively for students referred to you by staff members during the 1983-84 school year, which constitutes incompetency and/or misconduct in office and/or willful neglect of duty. These charges allege inconsistency in the meting out of discipline by Respondent as opposed to the failure to establish or maintain consistent disciplinary rules alleged in Counts 1 and 2. Although inconsistent discipline was alleged, none has been shown. The only evidence offered to support these charges was innuendo and vague, elusive accusations or perceptions by several teachers, most of which were based on hearsay consisting of generalizations uttered by others. The record is devoid of specific, concrete examples of "inconsistent" disciplinary action by Respondent. The complete lack of specific evidence is not due to want of records. Detailed records of every disciplinary action taken by Respondent during 1983-84 were available for analysis. (743 discipline referral slips covering school year 1983-84 were retained by Respondent and available for review.) There is no evidence, however, that anyone critical of Respondent's meting out of discipline ever took the time to, or went to the trouble of, reviewing them. Indeed, no one on behalf of the School Board even asked to see them.) It was Respondent who offered all referral slips (identifying details of each infraction and Respondent's action) into evidence. Some teachers testified that there were too many steps in the referral process although how this complaint relates to inconsistency was not shown. Others testified that they had to go through every single disciplinary step in order to refer a child to Respondent for discipline. The opposite was proven to be true. If a situation was serious enough, the disciplinary steps prescribed by Respondent (which were essentially the same steps as those prescribed by the Discipline Code) could be short, circuited and an immediate referral made. When serious disciplinary problems occurred, teachers brought students directly to Respondent's office and he handled the situation. (TR-II, p.219; TR-III, p.425; TR-IV, p.475; TR-X, p.15; TR-XI, P.24) Respondent made an effort to insure that the disciplinary process at Riverland was rational, and known to and followed by all. In addition to Bulletin 83-9 (delineating the steps in the process), Respondent disseminated numerous other bulletins and materials dealing with assertive discipline as part of the Faculty Handbook. He met with the faculty and discussed the disciplinary process. He insisted they use the detailed referral process which he established. The referral slips themselves show that he used all of the allowable disciplinary consequences--individually or in combination--including, but not limited to, student conferences, verbal reprimands written punishments, parental contacts, internal suspensions, corporal punishments, and external suspensions based upon the unique circumstances of each case. (TR-III, P.427; TR-XVI, pp.15,31; R-1; R-2) A. 1982-83 Count 3 alleges that Respondent failed to administer discipline in a consistent manner for the school year 1982-83. There was no meaningful evidence of any inconsistent discipline administered in 1982-83. There was no testimony or documentation of one specific incident which Respondent could cross-examine or refute. 2/ Indeed the record supports an inference that discipline was meted out consistently during 1982-83. There was a detailed Discipline Code in effect, known to all, and he insisted that it be followed. The SACS Report, prepared by the teachers at Riverland, and the grant of accreditation do not reflect that discipline was being inconsistently administered. Ms. Swilley, the Department of Education's competence reviewer, doesn't find inconsistent discipline; she refers to materials appended to her report, and then states the referrals reflect the teacher "concerns." The appended material only contains referrals from 1983-84 gathered together by Ms. Elmore, one of Respondent's harshest critics. The official Broward County School Board Progress Reports for Riverland Elementary School during 1982-83 and 1983-84, reflect teachers', students', and parents', attitudes, all of which are extremely high. (Teachers- -86 percent, parent--92 percent, and students--88 percent) There is no evidence that this alleged deficiency was ever complained of or mentioned in any memoranda, read-react-and-return memo, grade level chairperson minutes, faculty minutes, correspondence to Respondent's supervisor or Board administrators, notes or minutes of the P.T.A., parents advisory group, Respondent's performance evaluation, or any other document. (R-4; Appendix 14; P-4; P-3; R-19) B 1983-84 Similarly, no factual basis has been shown for the charge that Respondent inconsistently administered discipline during the 1983-84 school year. This charge, too, is unsubstantiated. No systematic analysis of the 1983-84 disciplinary records of particular students was done to demonstrate that students were disciplined differently when the facts indicate they should have been disciplined the same. Although some witnesses generally testified that Respondent disciplined students inconsistently during 1983-84, their conclusions were not substantiated. Although one teacher, Ms. Ordway, claimed inconsistency in the meting out of discipline, she could not give one specific example. Similar negative conclusions by Ms. Ross, another teacher, were based on "what the [other] teachers would say." The testimony of Ms. Kasmarik, another teacher, supports the opposite conclusion: Q. (By Mr. Panza) Ms. Kasmarik, let me ask you do you know what--can you give me specific instances that Mr. Sulcer treated two children with disparate consequences for the same act? Can you give me an example? A. That I personally saw it or that I heard about it? Q. No. You are the witness. What you saw, personally were involved in. A. With the referrals that he wrote up, Mr. Sulcer--The only referrals I wrote up were for fighting. That's the only referrals I wrote up, and when I got the response from that, Mr. Sulcer had used corporal punishment on both children. Q. So they were consistent as it goes to your personal observations? A. As my personal observations, it was consistent, yes. (e.s.) (TR-VI, p.826, TR-X, p.147) Likewise, Ms. Bullock, another teacher critical of Respondent's performance, testified: A. I would say that the punishment was consistent. Now, the problem is I didn't feel it was severe enough because it didn't prevent them from repeating the same incidents. (TR-XI, p.23) Mr. Dandy, Respondent's supervisor throughout, and the person who initially pressed him to correct alleged deficiencies, was unable to recall any specific instance of inconsistent discipline being meted out; rather, his criticism of Respondent only reflected the "teachers' perceptions." The unsubstantiated "perceptions" of other teachers based on nothing more than generalized complaint or hearsay are patently insufficient to sustain the charge. (TR-XIII, pp.82- 83,92,97) Respondent followed a set procedure in disciplining students. Before referral the child would describe, in writing, the misbehavior so that the child would understand the significance and inappropriateness of the conduct. On referral to the principal the child would bring with him or her the written description of the incident. Respondent would discuss the situation with the child review any prior disciplinary problems, and then determine the appropriate consequence based on the Discipline Code. He often gave verbal reprimands arranged for parent conferences, or wrote letters to parents. (TR- XVI, pp.10,11,20,31) Witnesses who complained of Respondent's disciplinary actions at hearing never stated what they expected him to do other than to formulate an additional code specifying an automatic consequence for every conceivable infraction. Such a rigidly defined code is neither required nor customary in Broward County. Moreover, it would be difficult, if not impossible, to construct a code with such mathematical precision. The effective disciplining of students is an art, not a science, involving many human variables. It requires flexibility and the exercise of professional judgment. A rigid code which precludes a principal from taking into account the unique circumstances of each case would be inconsistent with the Discipline Code adopted by the Board. COUNTS 5 AND 6: DETERRENCE OF CHRONIC BEHAVIOR OFFENDERS Count 5 You are hereby charged with failing to estab- lish adequate deterrent as a result of your action of causing or allowing students to become chronic or serious behavior offenders as a result of your inadequately disciplining said, students referred to you by teachers during the 1982-83 school year, which consti- tutes incompetency and/or misconduct in office and/or willful neglect of duty. Count 6 You are hereby charged with failing to estab- lish adequate deterrent as a result of your action causing or allowing students to become chronic or serious behavior offenders as a result of your inadequately disciplining said students referred to you by teachers during the 1983-84 school year, which constitutes incompetency and/or misconduct in office and/or willful neglect of duty. Here, the Board charges that Respondent failed to establish adequate deterrents and, as a result, he allowed or caused students to become chronic or serious behavior offenders during school year 1982-83. A. 1982-83 The Board has not shown what a "chronic behavior offender" 3/ is or how many students, out of the total student population of approximately 600, fit this category. Neither was it shown that there were a significant number of chronic offenders that "were caused" by Respondent's disciplinary actions. There was student misbehavior at Riverland Elementary School while Respondent was principal, as there was prior to his arrival and after his departure. It has not been shown that the misbehavior was caused by Respondent's efforts to enforce the Student Discipline Code. Many of the children at Riverland came from poor families. These children had little respect for authority and had attitude problems stemming from background and upbringing. Many came from single-parent homes. Many of the children who had behavior problems at school came from homes where discipline was lax or nonexistent. The student population was transient--students were constantly checking in or out of the school. Some students had repeated at least two grade levels so there were several children 13 or 14 years old. Some children had learning disabilities and could be disciplined only in accordance with their prescribed plans. (TR-II, pp.193,222; TR-X, pp.39, 40, 131; TR-XI, p.27; TR-XV, pp.39, 44, 46) Given the diversity and nature of this student body, it has not been shown how the repetitive misbehavior of five to ten of the students can be fairly or logically imputed to Respondent's action or inaction. These students, which the Board (at least for the purpose of this proceeding) classifies as "chronic offenders," were not identified, neither was each incident of misbehavior together with Respondent's disciplinary action, analyzed, compared and critiqued by qualified witnesses. Finally, though some students were referred numerous times, it has not been shown that there was an inordinate number of such students, given the nature and diversity of the student population. Neither does it appear that such repetitive referrals became a problem of serious concern to teachers. The SACS Report, prepared by the teachers at Riverland, does not indicate that a "chronic offender" problem existed at the school. (R-13) B. 1983-84 The nature of students at Riverland Elementary School during 1983-84 was similar to that of the previous year and the Board's failure of proof is, likewise, the same. Respondent applied the district-wide Discipline Code in disciplining the students. The teachers were responsible for the teaching of the Code to students, and for the management of students in their classrooms. All acknowledged that the proper disciplining of students is a joint or cooperative effort by teachers, administrators, and principals. The evidence fails to show that there was an inordinate number of repetitive referrals, neither does it disclose the identity of these children (including their particular acts of misbehavior and the discipline administered) or how Respondent's action was deficient. To the extent some children were repeatedly referred for misbehavior, it has not been shown that Respondent's disciplinary action was the cause. It may well be that the teachers of these children failed to properly control and prevent their misbehavior, or the misbehavior may be due more to the unique personality and family context of each child. (R-2) Indeed, the parents of some of these children tried, without success, to modify their behavior. There were occasions when Respondent would have two or three parental conferences concerning a child's misbehavior, yet--a few weeks later--the child would revert to inappropriate conduct. Several teachers who testified were critical of the effectiveness of Respondent's disciplinary action, but failed to indicate action that would have been more effective. Some teachers favored more use of external suspensions, but under School Board policy external suspensions are to be used only as the last resort. Respondent did suspend some students and the referral slips for 1983-84 showed he used corporal punishment extensively. (R-66) As with school year 1982-83, the record does not establish the identity and number of the "chronic or serious behavior offenders". A reasonable estimate would be that there were between five and ten children (out of 600 students) who had repetitive disciplinary referrals. There is no basis to conclude that this is an inappropriate or unusually high number. In a student population of this nature and diversity, it is perhaps unavoidable that there will be some students who will be repetitively referred for disciplinary action. This condition existed before Respondent arrived at Riverland--and has persisted since he left. COUNTS 7 AND 8 VERBAL AGREEMENTS-1982-83 AND 1983-84 Count 7 You are hereby charged with repeatedly ac- cepting or entering into verbal agreements with students who are repeat offenders that they will not repeat said negative behav- ior/offense in lieu of providing appropriate discipline which has resulted in a negative impact on student behavior and/or student discipline at Riverland Elementary School during the 1982-83 school year, which consti- tutes incompetency and/or misconduct in office and/or willful neglect of duty. Count 8 You are hereby charged with repeatedly ac- cepting or entering into verbal agreements with students who are repeat offenders that they will not repeat said negative behav- ior/offense in lieu of providing appropriate discipline which has resulted in a negative impact on student behavior and/or student discipline at Riverland Elementary School during the 1983-84 school year, which consti- tutes incompetency and/or misconduct in office and/or willful neglect of duty. A. 1982-83 In order to substantiate this charge, it was incumbent on the Board to identify those "repeat offender" students with whom Respondent entered into verbal agreements not to engage in the same conduct to specify the circumstances surrounding the infraction and to show that such verbal agreements were inappropriate. The appropriateness of a disciplinary action (otherwise authorized) cannot be determined without considering the facts and circumstances of the case. The Board has failed to substantiate its charges with concrete and specific evidence. Indeed the record is devoid of evidence establishing that Respondent even entered into verbal agreements with students during 1982-83, under any circumstances. (The Board apparently assumed that he entered into verbal agreements with children who were repeat offenders, that such agreements were "in lieu of providing any appropriate discipline," and that such action had a negative impact on student behavior and student discipline at Riverland Elementary School.) It was not shown that Respondent inappropriately used the Student Discipline Code in any instance when he "counseled" with students concerning inappropriate conduct. 4/ To determine appropriate discipline for an individual student, all of the factors contained on page 6 of the Discipline Code would have to be considered in light of the specific infraction. Because of the flexibility and discretion given school principals, any analysis less definitive would be incomplete. (R-2) B. 1983-84 In 1983-84, Respondent--who continued to use the Student Discipline Code--entered into verbal agreements with students, whereby the students agreed not to engage in further inappropriate conduct. It has not been shown that he entered such verbal agreements in lieu of any other more appropriate discipline, or that, in any particular case, the verbal agreement was inappropriate. "Repeat offenders" were not identified nor Respondent's action in any particular incident shown to be improper. As already mentioned, the Board has not demonstrated that Respondent failed to follow the Student Discipline Code in the meting out of discipline. Under this Code, the use of verbal agreements, as part of the overall discipline process, is appropriate. Thus the critical factor is not the entering into of verbal agreements (because verbal agreements are permitted), but rather whether he did so in lieu of other more appropriate discipline. But disciplinary action--otherwise permissible--cannot be found inappropriate without knowing the specific facts of an incident. Such facts have not been shown. COUNTS 9 AND 10 RAMPANT DISRESPECT AND VERBAL ABUSE Count 9 You are hereby charged with unacceptable performance in administering the school discipline program during the 1982-83 school year and said performance has led to rampant disrespect by students toward teachers through verbal abuse and defiance of teacher instructions, which constitutes incompetency and/or misconduct in office and/or willful neglect of duty. Count 10 You are hereby charged with unacceptable performance in administering the school discipline program during the 1983-84 school year and said performance has led to rampant disrespect by students toward teachers through verbal abuse and defiance of teacher instructions, which constitutes incompetency and/or misconduct in office and/or willful neglect of duty. A. 1982-83 Here the Board charges Respondent with "unacceptable performance" in administering the school discipline program during school year 1982-83. Respondent's discipline program was based on the Student Discipline Code and it was not shown that he ever violated that Code. The Board further charges that Respondent's disciplinary performance led to "rampant disrespect" by students towards teachers through verbal abuse and defiance of teachers' instructions. The evidence is insufficient to sustain a finding of rampant disrespect for teachers by students. 5/ Neither was it shown that any specific incident of disrespect was attributable to Respondent's implementation of the Student Discipline Code. Once again, this charge rests on supposition and generalization and lacks a factual foundation. Assuming, arguendo, that a student verbally defies a teacher's instructions, the question becomes whether the defiance is attributable to a principal's conduct. There are several plausible reasons as for defiance of a teacher's instructions, many of them unrelated to a principal's actions or inactions. Teachers may fail in managing their classrooms and earning the respect of their students, parents may have neglected to teach their children to respect and obey teachers. Here, the Board has not established a causal relationship between Respondent's conduct and any defiance of teachers by students. Speculation or generalization cannot substitute for specific and concrete evidence. (TR-X, pp. 100,101) B. 1983-84 For similar reasons, the charge relating to school year 1983-84 is unsubstantiated. Rampant disrespect for teachers has not been shown. (TR-X, pp.9,10,16,17) It has not been shown that Respondent violated the Discipline Coded the foundation of his disciplinary process, during 1982-83 or 1983-84. Neither has rampant disrespect for teachers been shown. The SACS Report completed by the teachers at the conclusion of the 1983 school year, makes no mention of it. Neither do any memoranda, documents, or other school records support this claim. If student disrespect and defiance had been so widespread, it is likely that it would have been brought to the attention of School Board officials long before Mr. Dandy came to Riverland to listen to teachers' grievances on February 17, 1984. (R-13) COUNTS 11 AND 12 CONTRIBUTING TO SERIOUS DISCIPLINE AND/OR BEHAVIOR PROBLEMS WHEREIN STUDENTS EXHIBITED DEFIANCE Count 11 You are hereby charged with contributing to the serious discipline and/or student behav- ior problems which occurred at Riverland Elementary School during the 1982-83 school year, wherein students exhibited defiance and disrespect toward authority figures and toward fellow students which constitutes incompetency and/or misconduct in office and/or willful neglect of duty. Count 12 You are hereby charged with contributing to the serious discipline and/or student behav- ior problems which occurred at Riverland Elementary School during the 1982-83 school year, wherein students exhibited defiance and disrespect toward authority figures and toward, fellow students which constitutes incompetency and/or misconduct in office and/or willful neglect of duty. Counts 11 and 12, virtually identical to Counts 9 and 10, are, likewise, unsubstantiated by the evidence. The record is inadequate to support a conclusion that Respondent contributed to serious discipline or student behavior exhibiting defiance and disrespect toward teachers and fellow students. It is likely that student disrespect for or defiance of teachers occurs, at least occasionally, in every elementary school. Relevant questions are what was the frequency and magnitude of the defiance and disrespect; who were the offenders, and what factors or combination of factors caused or contributed to it? The evidence offered by the Board is non-specific and incapable of supplying answers to these questions. Count 13 THE LOCKING OF THE BATHROOMS BECAUSE OF VANDALISM Count 13 You are hereby charged with failing to di- rect, administer and maintain a program to foster proper student behavior in the halls to such an extent that during the 1983-84 school year one set of bathrooms had to be locked because of fights among students and vandalism of bathrooms during the school day, which constitutes incompetency and/or miscon- duct in office and/or willful neglect of duty. Here, alleged student misbehavior (establishing Respondent's incompetence and/or misconduct in office and/or willful neglect of duty) was so bad that one set of bathrooms had to be locked because of fights among students and vandalism. This charge is unsubstantiated by concrete factually meaningful evidence; it is based, in the main, on hearsay and the unsupported conclusions of several teachers. It was not shown that vandalism in the bathrooms at Riverland Elementary increased or was at an unacceptably high level during 1983-84, or that any property damage was attributable to Respondent's performance of his duties. An occasional act of vandalism or damage to school property cannot, by itself and without more, support a conclusion that a principal is guilty of incompetency, misconduct in officer or willful neglect of duty. Neither was it shown that there were students fights in the bathrooms, or that fights occurred with such frequency that Respondent was forced to close the bathrooms. Rather, students would gather in the bathrooms prior to school starting and get into mischief. Mary Jo Sluder a teacher who was also Safety Patrol Director and supervised the school hallways, complained to Respondent that she was having problems watching both sets of bathrooms before school started. Respondent asked if it would help if one set of bathrooms remained locked until the second bell at 8:15 a.m., signaling the start of school. Ms. Sluder replied that it would be helpful and the plan was implemented. So one set of bathrooms remained locked for approximately 15 minutes, between 8:00 a.m. and 8:15 a.m., while children were at school. At 8:15 a.m., it was opened. (TR- XVI, pp.41,42; TR-IV, p.452) This was an acceptable strategy used by other principals under similar circumstances, and violated no rule or policy of the School Board. Between the first (8:00 a.m.) and second (8:15 a.m.) bells, bathrooms were always accessible to students. Respondent's action was a rational measured response to a problem perceived by the Safety Patrol Director and it obtained positive results without imposing a hardship on anyone. The danger of relying on hearsay and generalized conclusions of others is illustrated by the testimony offered to support this charge. Mr. Dandy, Respondent's immediate Area Supervisor and an individual who identified Respondent's action as deficient, admitted that he had no specific facts to support this charge; he had only talked to teachers and had reviewed no vandalism records at the school. Of the teachers who testified, one did not know if vandalism had increased during Respondent's tenure over that which had occurred under his predecessor; one did not know how long the bathrooms were closed. Although one teacher testified that it was common knowledge that the bathroom was locked because of vandalism--and this was the extent of her knowledge--vandalism was not discussed at the faculty meetings. Teachers would sometimes stop in the girls' and boys' bathrooms, to tell them to quit playing around. One teacher who complained of vandalism never witnessed conditions inside the bathrooms, never wrote disciplinary referrals for students who congregated in them, and never sent them to Respondent's office. (TR-V, pp. 578,774, TR-II, pp.242, 243, 245, 324; TR-IV, pp. 433, 451; TR-VI, pp. 871,872; TR-X, p.150) COUNTS 14 AND 15: TOO MUCH TIME OFF-CAMPUS AND NOT ENOUGH ON-CAMPUS VISIBILITY Count 14 You are hereby charged with spending too much or inordinate amounts of time in your office and/or off campus and not making yourself visible enough among students which has contributed to poor student disci- pline/behavior problems at Riverland Elemen- tary School during the 1982-83 school year, which constitutes incompetency and/or miscon- duct in office and/or willful neglect of duty. Count 15 You are hereby charged with spending too much or inordinate amounts of time in your office and/or off campus and not making yourself visible enough among students which has contributed to poor student disci- pline/behavior problems at Riverland Elemen, tary School during the 1983-84 school year, which constitutes incompetency and/or miscon, duct in office and/or willful neglect of duty. These charges accuse Respondent of spending too much time off-campus or in his officer and not making himself "visible enough" among students, thus contributing to poor student disciplinary behavior. Once again, as with the other charges, there is no evidence that Respondent, during 1982-83, spent too much time or an inordinate amount of time in his office or off-campus. This was not identified as a problem by the SACS Report or documented by any exhibit in evidence. A principal is evaluated based on his or her performance. Respondent's evaluations for the years 1982-83 and 1983-84 were totally acceptable. Neither indicates Respondent spent inordinate amounts of time in his office or off-campus, or that he did not make himself "visible enough." Respondent, charged with the responsibility of administering an entire school, attended numerous off-campus functions such as county directed meetings, parent conferences, visitations, professional meetings, and community service projects relating to Riverland Elementary School. His attendance was legitimate and, in most instances, required. (TR-I, p.74; TR-VIII, pp.40,42; TR-XIII, pp.14,16,20; TR-XV, p.46, R-45) It was not shown (nor was it alleged) that Respondent was unlawfully or inappropriately engaging in personal activities off campus. The charges focus on the frequency of his absences, not his whereabouts. The school district official who prepared this charge had no independent knowledge of Respondent's absences, and did no analysis to determine the extent of his absences from campus. Rather, he simply relied on and reiterated vague conclusions offered by several teachers dissatisfied with Respondent's performance. (TR-II, p.246; TR-IV, p.888; TR-VIII, pp.23, 24, 143) Mr. Stephenson, the school district official who helped prepare the charge, never asked Respondent about his alleged excessive absenteeism from campus because (according to Stephenson) that would be a normal routine matter discussed between a principal and his Area Superintendent (Mr. Dandy). But Mr. Dandy never asked Respondent about alleged excessive absenteeism either. (TR- XIII, p.140) The evidence is insufficient to support a conclusion that Respondent was absent from campus for an inordinate amount of time. The only evidence in support of the accusation is sporadic hearsay, or conclusions by others lacking a factual basis. Rather, the evidence establishes that Respondent's presence on campus was sufficient and that, if he left campus, he handled any disciplinary problems (that arose in his absence) upon his return. His secretary always knew where he was. A teacher could find out where he was by simply asking his secretary. (TR-I, p.75; TR-X, p.32) As to Respondent's alleged poor visibility among students, there is no specific factual information pertaining to 1982-83, so this charge is unsubstantiated. As for 1983-84, the evidence was also insufficient to support a conclusion that Respondent was not "visible enough." No standard of visibility was established against which Respondent's conduct could be measured. There is no evidence in the record that anyone (teachers, parents, or administrators) complained to Respondent about his visibility or asked that he become more visible on campus. (TR-VIII, p.91) Testimony by several teachers on this subject was inconsistent and contradictory. Some offered critical opinions, but their conclusions lacked factual support, they simply had a feeling that he should have been more visible. In contrast, some teachers felt that Respondent was "sufficiently visible;" Ms. Kasmarik testified that he was always around the campus and always walking down the halls: CROSS-EXAMINATION Q. (By Mr. Panza) Ms. Kasmarik, isn't it a fact that it's your opinion that you're better off with discipline when Mr. Sulcer was there than you are right now with the new principal? Isn't that a fact? Isn't that what you just said within the last couple of weeks? A. We have the same kinds of problems that we had when Mr. Sulcer was there. Q. Same kinds of problems with the new principal, is that right? A. Yes. Q. Okay. Are those same kinds of problems based upon the type of children, in your opinion, that are in that school? A. Yes. Q. Now, you mentioned--Just kind of working backwards a little bit--that visibility was a problem or--not was a problem, is not a problem. You said Mr. Sulcer was walking the hall? A. Yes. Q. Mr. Sulcer went into classrooms, is that correct? A. Yes. He was in and out of the classroom all the time. Q. So teachers could see him around the school. He wasn't--he was there physically in the school? A. Yes. (TR-X, pp.121-122) Ms. Bullock, another teacher critical of Respondent's performance, admitted that he had been visible and had visited her classroom 15 to 20 times: DIRECT-EXAMINATION Q. (By Mr. Montante) Did you ever tell him it was necessary to come down [to observe her class? A. No. Q. Did you ever tell him it was necessary to become visible? A. No. Q. Did he ever offer to become visible to you? A. No. I felt he was visible. Q. Several times a year? A. Yes. Q. How long is the school year, ma'am? A. From August until June. Q. August until June? A. Yes. Q. That's a period of 11 months. A. Ten months. The school year is ten months. Q. He came down to the classroom several times: A. Several times. Q. Three times in 11 months. A. I didn't say three times. Several. How many is several? A. Ten, 15, 20. (e.s.) (TR-XI, pp.61,62) Although Ms. Ross, another teachers claimed that his visibility was almost non- existent, her location in the library (where she worked) was such that she would not have known when he was out of his office or in it. Ms. Bullock, another teacher, never asked him to come to her room because it wasn't necessary. (TR- VI, pp. 823,828; TR-XI, p.61) The vague and indefinite charge of not "enough visibility" must be based on more then the subjective, unsubstantiated judgment of a critical teacher. To be meaningful, the charge must be put in a factual context. In a letter to Dr. Stephenson, the district administrator involved in preferring the charges, Respondent's counsel asked for specific information on the charge so that Respondent could comply with Mr. Dandy's March 21, 1984 directive requiring improvement in this area: 4. Monitor hallways frequently through- out the school day (in an attempt to assist in undesirable behavior on the part of students (Effective immediately) Mr. Sulcer will, as he always has, monitor the hallways. As I am certain you are well aware, it is impossible to be in the hallway all day if one is expected to be a Principal of a school. Once again, I would request specific instances of when Mr. Sulcer was negligent in his monitoring of the hallways which allowed undesirable behavior to take place. I would also like to have the specif- ic set of circumstances that the administra- tion of the School Board can demonstrate that there was undesirable behavior on the part of students because of Mr. Sulcer's conduct. I would like to know the exact amount of time required by Mr. Dandy so Bob Sulcer can comply. If Mr. Dandy is going to evaluate Bob Sulcer in this area, he (Dandy) must know exactly how much time he expects Sulcer to spend. (R-50) This letter went unanswered. COUNTS 16 AND 17 SUPPLIES Count 16 You are hereby charged with failing to supply teachers with basic materials and supplies such as paper, crayons, scissors, etc., thus depriving student [sic] from essential mate- rials necessary for optimum instructions during the 1982-83 school year, which consti- tutes incompetency and/or misconduct in office and/or willful neglect of duty. Count 17 You are hereby charged with failing to supply teachers with basic materials and supplies such as paper, crayons, scissors, etc., thus depriving student [sic] from essential mate- rials necessary for optimum instructions during the 1983-84 school year, which consti- tutes incompetency and/or misconduct in office and/or willful neglect of duty. There were no records of any kind, type or description, offered in evidence to support the allegations that school supplies were inadequate during 1982-83. One team chairperson during 1982-83 and 1983-84 never heard a complaint about lack of supplies. Dr. Stephenson, the school district administrator who helped prepare this charge, became aware of the alleged budget problem through information he received in writing from Ms. Elmore, a teacher critical of Respondent's performance. Based on Ms. Elmore's submittal, he concluded that there was a lack of materials and supplies at Riverland, a situation which should not have existed because adequate funds were available. He never independently investigated to determine if Ms. Elmore's statements were correct. (TR-XI, p.19; TR-VIII, pp.11,151) Ms. Elmore, a Faculty Chairperson at Riverland, had been told by the school bookkeeper that there was a freeze on supplies in 1983-84. She never personally asked Respondent for supplies, and he never told her that funds were unavailable. She felt that it was unnecessary to bother Respondent "with things that minor." (TR-V, pp.771,776) Ms. Ross, a grade level chairperson responsible for coordinating the ordering of supplies for teachers under her control, had no difficulty ordering supplies or books except that, when the funds were frozen, she "couldn't spend the money in my budget for awhile." (TR-VI, p.819) (She never asked Respondent if the budget was frozen.) She had all materials needed to currently teach her students. (Funds were temporarily unavailable only while the F.T.E. count was underway, a situation which was not unusual in the school district). When told the budget was frozen during F.T.E. count, she simply delayed ordering until the count was completed, she "had enough (supplies) to carry (her) over past the F.T.E. count." (TR-VI, p.865) After the count, she was allowed to order whatever she needed. (TR-VI, pp.819, 862, 864, 865) Ms. Ordway, a fifth grade teacher, who had switched to kindergarten, testified that she was unable to get necessary books and supplies for her kindergarten class. However, Ms. Callender, her Faculty Grade Level Chairperson, testified that Ms. Ordway as well as the rest of her grade group, had supplies the entire year. Ms. Callender also testified that Ms. Ordway was given permission to go to the A.B.C. Store to purchase whatever supplies she needed. Ms. Callender's testimony, more precise and less emotional than Ms. Ordway's, is accepted as persuasive. (TR-X, pp.28,48) Respondent did not turn down any supply order for materials that were needed for classes during 1982-83 and 1983- 84. The charge that teachers lacked supplies in 1983-84 is unsubstantiated by the evidence. (TR-XVI, pp.57,58,61) Finally, Ms. Elmore, one of the teachers most critical of Respondent's performances testified that she did not have enough supplies for 1982-83 and 1983-84. Her testimony was conclusory and is rejected as lacking in credibility. Finally, the SACS Report does not mention any problem with supplies at Riverland Elementary School for 1982-83. It is likely that if there was a supply problem of the magnitude alleged, it would have been mentioned in the SACS Report. The evidence does not establish that any children at Riverland were denied instructional materials due to lack of supplies. These charges are unsubstantiated. (TR-V, p.580; R-13) COUNTS 18 AND 19: SECOND IN COMMAND Count 18 You are hereby charged with failing to desig- nate a teacher as second in command and/or failing to inform the faculty which teacher would be in charge during your absence during the 1982-83 school year, thereby leaving the school unsupervised during your absences from campus, which constitutes incompetency and/or misconduct in office/and or willful neglect or duty. Count 19 You are hereby charged with failing to desig- nate a teacher as second in command and/or failing to inform the faculty which teacher would be in charge during your absence until approximately January 1984 of the 1983-84 school year, thereby leaving the school unsupervised during your absences from cam- pus, which constitutes incompetency and/or misconduct in office and/or willful neglect of duty. Respondent appointed a second in command or designee at Riverland Elementary School for years 1982-83 and 1983-84. For 1982-83, Respondent appointed Polly Jones as his second in command or designee. There was no requirement to identify the second in command by posting a notice. However, Mr. Dandy, the Area Superintendent, required principals within his area to advise him of the name of the second in command at the commencement of the school year. Respondent notified him in accordance with this requirement. (TR-I, p.32; TR- VII, p.92; TR-XVI, p.7) During 1982-83, Ms. Jones handled discipline referrals during Respondent's absence and signed as designee. Teachers who were unaware of who the second in command needed only to ask. Respondent's secretary, the office personnel, and administrative staff were informed that Ms. Jones was the appointed second in command. (TR-XVI, pp.7,104) The contention that problems resulted from some teachers not knowing who was second in command during 1982-83, is unsupported by the evidence. No teacher asked Respondent who was second in command--either in person (at grade level chairperson meetings, faculty meetings, in the halls, at SACS Committee Meetings) or by memorandum. Ms. Elmore who was Faculty Chairperson during 1982- 83, never placed the question of who was second in command on the faculty agendas though she had the authority to do so. Although she testified that she did not know who was second in command in 1982-83, she did not ask Respondent or her grade/level chairperson who, ironically, was Ms. Jones, the second in command. In any case, most teachers at Riverland knew Polly Jones handled disciplinary problems in Respondent's absences and expected her to do so. (TR- V, pp.598, 763) For school year 1983-84, Respondent designated Elaine Callender as his second in command. Again, he informed Mr. Dandy of his action at the beginning of the school year. Although most teachers knew that she was the second in command, they did not hear it officially from Respondent. They knew that Ms. Callender could, and did, administer corporal punishment in Respondent's absence. Finally, teachers in 1983-84 knew, or should have known, that Ms. Callender was the second in command because she signed referral slips above the signature line marked "Designee": copies of the completed slip are normally returned to the referring teacher. (TR-I, pp.34,35; TR-X, p.5, TR-XVI, p. 175) These charges must fail since Respondent did, in fact, appoint a designee, and the teachers knew or could have known by simply asking him. Although it was suggested (through hearsay testimony) that students were disciplined by secretaries, there is no substantial evidence to support that implication. When the issue of who was second in command surfaced up at the faculty meeting on November 15, 1983 (as part of 12 identified concerns) would it not have seemed reasonable at the time for someone to ask Respondent who was second in command? The Faculty Council, after it was organized and operational in the early part of January, did ask Respondent, stating that some teachers claimed they did not know who was second in command and wanted this information posted. Respondent posted his second in command that very day. (Mr. Dandy's testimony that the second in command was not posted until mid-February is rejected as clearly erroneous.) (TR-XII, p.87; TR-XIII, p.123) COUNTS 20 AND 21: MORALE Count 20 You are hereby charged with failing to estab- lish and maintain positive lines of communi- cation with the faculty and students during the 1982-83 school year at Riverland Elemen- tary regarding student discipline which has contributed to the decline of faculty morale toward the principal relative to student discipline, which constitutes incompetency, and/or misconduct in office and/or willful neglect of duty. Count 21 You are hereby charged with failing to estab- lish and maintain positive lines of communi- cation with the faculty and students during the 1983-84 school year at Riverland Elemen- tary regarding student discipline which has contributed to the decline of faculty morale toward the principal relative to student discipline, which constitutes incompetency. These two Counts center on the issue of faculty morale as it related to student discipline caused allegedly by Respondent's failure to maintain positive lines of communication with faculty and students during schools years 1982-83 and 1983, 84. Morales a somewhat amorphous term, is defined in the American Heritage Dictionary as "the state of the spirits of an individual or group as shown in willingness to perform assigned tasks, confidence, cheerfulness, and discipline." Although affected by many variables, morale is not a subject incapable of measurement. Instead of utilizing an objective or standard method to determine the level of morale at Riverland the School Board presented the testimony of selected teachers, for the most part, the same teachers who were on the ad hoc disciplinary committee and among Respondent's most avid critics. Their testimony lacks credibility and fails to support a conclusion that morale was lowered due to Respondent's handling of discipline problems. They were the teachers who complained most about morale. They gave secret testimony to Dr. Stephenson, the ranking administrator, who developed the charges against Respondent and they were, generally, unwilling to cooperate with Respondent and other teachers (led by the Faculty Council), who were attempting (between November, 1983 and March 1984) to develop ways to improve discipline at Riverland. 6/ No systematic evaluation of faculty morale, using any acceptable and reliable method, was ever undertaken. A poll was conducted at Riverland Elementary in connection with the Official Progress Report of the School Board. The poll indicated that 86 percent of the teachers thought that Riverland was a good school. Ninety-two percent of the parents with children at Riverland responded, "this is a good school." (TR-IV 34 p.461) These results detract from the weight to be given the adverse opinions of the several teachers (testifying at hearing) most critical of Respondent's performance. (TR-IV, p.461; R-19) COUNT 22 FAILING TO DISCIPLINE A STUDENT Count 22 You are hereby charged with failing to disci- pline a student who said to a teacher's aided "Fuck You," during the 1983-84 school year, which constitutes incompetency and/or miscon- duct in office and/or willful neglect of duty. On one occasion during the 1983-84 school year, a child cursed at a teacher's aide, Ms. Williams, who promptly referred the student to Respondent's office. Respondent asked the student for an explanation and the child admitted that he had said the disrespectful words and was ready to be spanked. Respondent asked Ms. Williams (the aide that was cursed at) to enter the office and witness the corporal punishment. After she entered, the child refused to submit to the spanking and constantly moved around, putting his hands across his buttocks and fidgeting making it difficult for Respondent to administer corporal punishment without injuring him. Under these circumstances, Respondent decided not to administer the corporal punishment for fear of injuring the child's hands. Instead, he telephoned the child's parents and told them the child refused the spanking. The parents told him they would punish the child, by using a belt. (TR-XVI, pp.53-54; TR-X, pp.67-68,85) This particular child did not have any further behavior problems at Riverland Elementary. Respondent did not ignore, dismiss, or fail to discipline this child. His handling of this incident of disrespect toward an aide was appropriate and consistent with the Discipline Code. (Although the Board faults him for not reporting the incident to the Department of Internal Affairs, Board Policy 4018, reasonably construed, does not require the reporting of every instance of student disrespect toward a teacher.) Since Respondent properly disciplined the child, the charge must fail. COUNT 23 RAT-INFESTED ROOM Count 23 You are hereby charged with failing to take appropriate action to remove kindergarten students at the request of the teacher from a rat infested room after being informed by the teacher that rats were prevalent in the area, subjecting kindergarten students to rat poison which had been placed by custodial personnel in the students' classroom, and refusing from approximately February 28, 1984, to March 7, 1984, to relocate said kindergarten students from said classroom to an empty portable on the school site which action had been formerly requested by the complaining kindergarten teachers which constitutes incompetency and/or misconduct in office and/or willful neglect of duty. On March 1, 1984, Ms. Ordway, a kindergarten teacher at Riverland Elementary, complained to Respondent about a mouse she had seen in her classroom. He told her that he would get the custodian on it right away, which he did on that same day. The custodian set out traps that night, Respondent also went to Ms. Ordway's classroom that night to make sure that the traps were placed so that there would be no danger to the children. He continued to periodically check the room after school throughout the week, he looked for evidence of mice, but found none. Meanwhile, Ms. Ordway did not ask to have her class moved and her class remained at its regular location. (TR-XVI, pp.71- 73,87,155,254) On Thursday, March 8, 1984, approximately one week after Ms. Ordway had complained of a mouse, Mr. Dandy telephoned Respondent and told him of a complaint he had received (presumably from Ms. Ordway) concerning the mice situation. Respondent immediately called the Area Maintenance Office and requested assistance, then contacted Omni Pest Control and asked them to come out that day. (Respondent had not called the exterminator prior to this because neither he nor the custodian had found evidence of mice, and the custodian was actively addressing the complaint.) (TR-XVI, pp.72,154,157) Omni Pest Control came out on Monday, March 12, 1984, around noontime. Respondent immediately relocated Ms. Ordway's class since he assumed that the exterminator might use chemicals hazardous to children. The exterminator treated the classroom and returned two days later to do a follow- up. At 7:30 a.m. on March 19, 1984, the exterminator returned to check the classroom. Respondent, unavailable to talk to him at that time, called him later to check on the classroom's condition. The exterminator, having found no evidence of mice, told him that the mouse sighting "must have been a fluke." (TR-XVI, pp.72-73,86,88,155,157,159) The evidence does not support a conclusion that Ms. Ordway's classroom was infested with mice or rats. She is the only person who sighted one, and her testimony about what she saw, and the frequency of her sighting's, was inconsistent. No other mice were sighted and no evidence of mice was found by those who investigated and responded to her complaint: Respondent, a Health Department inspector, the school custodian, and the professional exterminator. Respondent reacted to Ms. Ordway's complaint in a reasonable and timely manner. The school custodian was the person who would normally investigate and handle such a complaint. When Respondent received a second complaint, he immediately contacted a professional exterminator despite the fact that he and others had found no evidence of mice in the classroom. This charge is based on the exaggerated complaint of Ms. Ordway, a teacher who, seemingly, Respondent could not mollify. COUNTS 24 AND 25 FAILING TO COOPERATE Count 24 You are hereby charged with failing to util- ize the suggestions of parents and teachers and/or work cooperatively with said groups to improve the declining [sic] student disci- pline/behavior problems at Riverland Elemen- tary during the 1982-83 school year, which constitutes incompetency and/or misconduct in office and/or willful neglect of duty. Count 25 You are hereby charged with failing to util- ize the suggestions of parents and teachers and/or work cooperatively with said groups to improve the increasing student disci- pline/behavior problems at Riverland Elemen- tary during the 1983-84 school year, which constitutes incompetency and/or misconduct in office and/or willful neglect of duty. The School Board failed to substantiate its charge that during 1982-83 or 1983-84, Respondent failed to utilize the suggestions of parents and work with them to improve student discipline at Riverland Elementary. Indeed, there is no evidence that any parents made specific suggestions to Respondent concerning ways to improve student discipline. Even if, arguendo, suggestions were submitted, there was no showing that Respondent was obliged to follow theme irrespective of their merit. Although the School Board also charges Respondent with failing to utilize the suggestions of, and work with, teachers, the opposite was shown. Respondent relied on the teachers of Riverland. He routinely asked them to address problems, and suggest specific changes, usually he implemented their suggestions. One of his management techniques to maximize participation was to set up committees of teachers to address problems and make recommendations. His conviction was that since teachers were a vital part of the school, they should have a say in how it was run--and what changes should be made. He respected their views and welcomed their comments. For example, in late 1983 and early 1984, he encouraged the Faculty Council to devise ways to improve student discipline. When the Council presented him with a School Wide Disciplinary Plan (suggesting numerous changes to improve student discipline) he promised to implement it. (In contrast, some teachers refused to cooperate with either the Faculty Council or Respondent, and were determined to leave student discipline problems to Respondent--alone--to solve.) Another example was his formation of a Cafeteria Committee (of teachers) to address student misbehavior in the cafeteria--a focal point of student "horseplay" in most elementary schools. The Committee met and formulated a plan, which Respondent approved and implemented. Both charges must be dismissed for failure of proof. (TR-III, p.387; TR-V, p.708; TR-VI, p.819; TR-XI, pp. 143,149,150,162; TR-XV, pp.59,110; TR-XVI, p.76) COUNT 26 THE CAFETERIA Count 26 You are hereby charged with failing to prop- erly maintain student control and discipline in the cafeteria and/or inadequately super- vising and/or providing inadequate supervi- sion of students which has resulted in chaos throughout the 1982-83 school year and has continued through the 1983-84 school year, which constitutes incompetency and/or miscon- duct in office and/or willful neglect of duty. The School Board has not established a standard against which the adequacy of the supervision and control of students in school cafeterias can be judged. Elementary school students abound with energy and will sometimes run in cafeterias. Such running occurred prior to Respondent's arrival at Riverland, and continues, even now. As one witness summed it up, "Every child runs." . . . [and] "Kids are kids." (TR-X, p.78) These cafeterias are noisy, relatively unstructured places where children, within limits, are free to be themselves. No evidence was presented showing that, on a comparative basis, student behavior in the Riverland cafeteria was any worse than that prevalent in the other elementary schools. Indeed, Dr. Gail Daly (an experienced elementary school principal and chosen by the School Board to investigate Respondent's performance at Riverland) visited the school's cafeteria and found student behavior acceptable. (TR-XV, p.59) Although some teachers were critical of Respondent's visibility in the student cafeteria, they rarely ate their own lunches there (to help maintain order)-- even though they could leave school a half-hour early for doing so. Since most teachers did not eat their lunches with the students, supervision of student behavior in the cafeteria was left, for the most part, to teachers' aides. This was an acceptable practice in the various elementary schools. Any student misbehavior which may have existed in the cafeteria was not serious enough to warrant being brought to Respondent's attention, either by the group of teachers who identified "12 concerns" at Riverland or to Mr. Dandy, the Area Supervisor who responded to them. The teachers "12 concerns" do not mention misbehavior in the cafeteria, neither do Mr. Dandy's letters of February 24, and March 1, 1984 (which identify deficiencies in Respondent's performance and require corrective action). This charge must fail for lack of proof. (P-5, P-6, R-2) COUNT 27 FAILURE TO PERFORM DUTIES AS ALLEGED IN COUNTS 1-26 Count 27 You are hereby charged with failing to ade- quately perform your duties as principal with respect to student discipline/behavior as enumerated in the above counts during the 1982-83 and 1983-84 school years to such an extent that your effectiveness as a principal in this area has been impaired serious enough to warrant your dismissal as principal for "good and sufficient reasons, which consti- tutes incompetency and/or misconduct in office and/or willful neglect of duty. The efficacy of this charge depends on a positive finding that Respondent failed to adequately perform his duties as principal with respect to student discipline during 1982-83 and 1983-84, as alleged in the foregoing counts, Nos. 1 through 26. Since these counts were not sustained by the evidence, the charge fails. COUNT 28 SWILLEY REPORT Count 28 You are hereby charged with failing to demon- strate competent performance as an adminis- trator in one or more of the following areas: the administrative and supervisory require- ments and/or communication skills and/or management techniques and/or exercise learn- ing and goal achievement and/or human and interpersonal relationships for the school year (or any part thereof) 1983-84, which constitutes incompetency and/or misconduct in office and/or willful neglect of duty. Dr. Stephenson, then Associate Superintendent of Personnel, requested a review of Respondent on April 3, 1984, for the purpose of determining his competence. The Department of Education selected Henrietta Swilley (from Bay County) to conduct the competency review. She visited Riverland Elementary from May 1, 1984, to May 3, 1984, (2 1/2 days) one-half day short of the three-day observation required by 6B-5.02(12) Florida Administrative Code. On or about July, 1984, she sent to the School Board her undated and unsigned report. This report was placed in evidence by the School Board as an attachment to a deposition taken of Respondent. Neither Ms. Swilley nor any School Board official testified about the contents of this report, or vouched for its accuracy. Consequently, Respondent's ability to challenge the accuracy of its opinions and conclusions, or examine those who developed or relied on it, was limited. The report, however, is hearsay which, though admissible, can be used only to explain or corroborate other evidence, it cannot, in itself, support a finding of fact. See, 120.58(1)(a), Florida Statutes. Apart from this limitation on its use, the report is replete with factual errors, misstatements, and inconsistencies. It appends materials which do not correspond to references in the report. These errors detract from the weight which might otherwise be given to the report, and place in doubt the credibility of its assertions and conclusions. Several examples should suffice. On pages 4 and 5 of the report, Ms. Swilley reviews teacher observations and evaluations. Of the eight teachers listed, the evaluations of only four were included in the appendix. She indicates that Respondent held conferences with all eight teachers on the same day, May 17, 1983. The four evaluations appended, however, show that the conferences were held on March 3, 16, and April 12 and 15, 1983. On page 5, she faults Respondent of using similar or "patterned" comments on seven of the eight teachers evaluated. But she does not show how this violated any rule or standard of practice. (Mr. Dandy, Area Supervisor, using a similar form, includes no comments, whatsoever, on his evaluations of principals, a practice which, in his views was perfectly acceptable. (TR-XII, p.43).) On page 6, she states: From studying the 1983 evaluations of Ms. Elayna Cross and Ms. Catherine Phoenix it was unclear to this reviewer as to how much time Mr. Sulcer spent observing these teachers. Yet, the time Respondent spent in observing Ms. Phoenix (9:15 to 10:15 on March 3, 1983) is shown on the top of her evaluation contained in the appendix. On page 6, Ms. Swilley further states: If the sampling of evaluations studied is an indication of administrative progress in the area of assessment, all other continuing contract employees on staff would have to be evaluated within 25 days from my visit in order to stay within the confines of the negotiated contract [which prohibited princi- pals from conducting evaluations during the last week of school]. But the evaluations in her sampling were completed, and applied only to the prior school year--1982-83, not 1983-84. Thus her conclusion lacks support. (In fact, Respondent had approximately ten teachers left to evaluate after Ms. Swilley's visit in May, 1984 [TR-XVI, p.77].) Finally, on pages 6,7, Ms. Swilley questions whether Respondent acted as an instructional leader at Riverland. She opines as to what Respondent would have observed if he had visited the classrooms, and includes the results of her interviews with an unknown number of teachers. Among those teachers were Ms. Ross, Ms. Sluder and Ms. Elmore. (These were Respondent's most vociferous critics and members of the original ad hoc faculty committee which identified "12 concerns" at Riverland.) The assertions of Ms. Ross and Ms. Sluder--hearsay, once removed--concerning Respondent's alleged failure to visit or observe their classes are rejected in favor of Respondent's more persuasive testimony to the contrary. (TR-X, p.121; TR-XVI, pp.46-47) The School Board has not shown, by independent evidence, that Respondent failed to demonstrate competence in any of she areas described in this charge. Thus the Swilley Report, even if internally consistent, cannot support a finding of incompetence. This charge must also fail. FAILURE OF SCHOOL SYSTEM TO FOLLOW PROCEDURAL RULES In recommending the suspension and dismissal of Respondent, the Superintendent of Schools failed to follow procedures governing dismissal. Rule 6B-4.08, entitled, "Criteria for Dismissal Procedures," provides: 6B-4.08 Criteria for Dismissal Procedures. When an action or other matter appears to exist which may possibly result in the future dismissal of any employee, the immedi- ate supervisor of the individual should take appropriate action to advise the employee of the matter and the potential consequence if not corrected. Every possible helpful effort should be made by the immediate supervisor to aid the employee to correct the matter which could cause his or her dismissal if not corrected. Except in extremely serious circum- stances, the employee should be given suffi- cient time, following notification, for improvement. Any charges of undesirable traits or practices should be bona fide, verifiable, and clearly stated to the employee in writ- ing. Any employee thus charged should have a fair opportunity to explain or otherwise defend himself or herself, as provided in Section 231.36, Florida Statutes. These criteria mandate that an employee be advised of deficiencies which may result in his dismissals and that he be given sufficient time, following notice, to improve or correct the deficiencies. Here, Mr. Dandy, as Area Supervisor, routinely evaluated Respondent on January 31, 1984, and found him satisfactory when judged against all performance criteria. On February 17, 1984, approximately two weeks later, Mr. Dandy--at the invitation of Ms. Elmore or Ms. Sluder--came to Riverland Elementary and met with some teachers who had gathered to complain to him about lack of student discipline. After hearing the complaints of several teachers, Mr. Dandy--precipitously--told them he was now in control, that they should hence forth come directly to him. Some teachers were intimated by his manner and aggressiveness. Instead of asking individual teachers about any perceived problems, he asked, "Do you feel the rest of the teachers feel . . . is a problem?" or words to that effect. On February 21, 1984, three days later, Mr. Dandy met with the teachers again and, this time, invited Respondent to attend. Respondent, though genuinely surprised by this turn of events, came to the meeting and responded to each of the complaints or concerns raised by the teachers. On February 24, 1984, three days later, Mr. Dandy wrote Respondent outlining the teachers' complaints or concerns and asked for a written response by March 1, 1984. Respondent complied, submitting a timely response addressing, as specifically as possible, each of the concerns. Mr. Dandy responded with a second letter on March 21, 1984, directing Respondent to take eight corrective actions (Mr. Dandy never subsequently evaluated Respondent to determine if those directives were satisfactorily carried out, though he admits improvements were being made.) On March 22, 1984, one day after receiving Mr. Dandy's eight directives, the Superintendent filed the charges against Respondent which later (with one added count) became the basis for Respondent's dismissal. (P-5; P-6; P-19; TR-XII, p.47; TR-XIII, pp. 14, 47, 72, 128, 129) The complaint about Respondent's performance voiced by some teachers to Mr. Dandy were never thoroughly, and conscientiously, investigated or verified by Mr. Dandy prior to his undermining Respondent's authority and, to some extent, taking control of the school away from him. When Respondent was finally informed of the complaints he responded to each in a professional and meaningful way. He was then given "directives," quickly followed by charges, without being given a fair opportunity to take corrective action and effectively respond to the complaints. In their hasty action, school board officials disregarded or were oblivious to the requirements of Rule 6B-4.08. This is all the more perplexing in light of the fact that Mr. Dandy, the Area Supervisor and Respondent's immediate supervisor, never recommended--then or now--that Respondent be dismissed.
Recommendation Based on the foregoing, it is RECOMMENDED: That all charges against Respondent be dismissed, that he be reinstated with full back-pay and emoluments of employment; and that he be awarded reasonable attorney's fees which he actually expended in his defense or which he has legal duty to pay. DONE and ORDERED this 14th day of November, 1985, in Tallahassee, Florida. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of November, 1985.
Findings Of Fact Michael Douglas began the 1982-83 school year as a seventh grade student at South Miami Junior High School. Disciplinary measures were required on September 1, 10, 14, 17 and 29, 1982. The student refused to obey rules and instructions, and was generally incorrigible. On September 29, he threatened another student with assault. During September, school officials had several contacts with Michael's mother and his case was referred to the child study team. As a result of these conferences, he was assigned to a youth opportunity school on October 28, 1982.
Recommendation From the foregoing, it is RECOMMENDED: That Petitioner continue its placement of the student, Michael Douglas, in the Youth Opportunity School. DONE and ENTERED this 14th day of February, 1983, in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of February, 1983. COPIES FURNISHED: Mark Valentine, Esquire 3000 Executive Plaza 3050 Biscayne Boulevard Miami, Florida 33137 Dr. Leonard M. Britton, Superintendent Dade County Public Schools Administrative Office Lindsey Hopkins Building 1410 Northeast Second Avenue Miami, Florida 33132 Ms. Lillie Mae Jordon 5920 Southwest 6th Street Miami, Florida 33143
The Issue Did Respondent, Yolie Bauduy, violate section 1012.795(1)(g), Florida Statutes (2018)?1 Did Respondent, Yolie Bauduy, violate section 1012.795(1)(j)? 1 All citations to the Florida Statutes are to the 2018 codification unless otherwise noted. Did Respondent, Yolie Bauduy, violate Florida Administrative Code Rule 6A-10.081(2)(a)1.?
Findings Of Fact Parties Petitioner, Richard Corcoran, is the Commissioner of Education. The Commissioner is the head of the state agency, the Florida Department of Education, responsible for investigating and prosecuting allegations of misconduct against individuals holding Florida educator certificates. Ms. Bauduy holds a Florida Educators Certificate covering the areas of Autism Spectrum Disorder, Elementary Education, English for Speakers of Other Languages (ESOL), Exceptional Student Education (ESE), and Middle Grades Integrated Curriculum. It is valid through June 30, 2025. Ms. Bauduy teaches at Gotha Middle School in the Orange County School District and did at the time of the events alleged in the Administrative Complaint. During the period during which the alleged acts occurred, Ms. Bauduy taught students with autism. She has served students with disabilities of Orange County as an educator in ESE programs for 16 years. She taught at Gotha Middle School for 14 of those 16 years. Other than discipline for the incidents that are the subject of this proceeding, the District has never disciplined Ms. Bauduy. The school has recognized Ms. Bauduy as an effective teacher. For instance, an evaluation resulting from seven days of in-class observation in November 2020 concluded that she was applying all four expected classroom strategies and behaviors. The Education Practices Commission has never disciplined Ms. Bauduy. Gotha Middle School and Ms. Bauduy's Class During the 2018-2019 school year, all of Ms. Bauduy's students had disabilities that required more assistance and support than needed by students in the general population. Because of their disabilities, Ms. Bauduy's students required a modified curriculum that was less rigorous than the standard curriculum. The modified curriculum included social, skills, personal skills, and independent function skills. Teaching those skills helps students learn to manage their behavior and become more independent. All of Ms. Bauduy's students had Individual Education Plans (IEP). These plans identify a student's disabilities, their effect, and behavior that may arise from them. They establish goals for the student in light of the student's disabilities. And they identify strategies for helping the students accomplish the established goals. The demands of teaching students with disabilities required additional staff in the classroom to assist Ms. Bauduy. The school determined that properly caring for and teaching the children required a three to one student teacher ratio. The students' IEPs also required this staffing ratio. For that reason, the school assigned two paraprofessionals to assist in Ms. Bauduy's class of ten people. This was in addition to Ms. Edoo, who was assigned to student E.K. one-on-one. Thus, the proper staffing complement for Ms. Bauduy's class was four adults. Throughout the 2018-2019 school year, Gotha Middle School experienced chronic staffing shortages. One paraprofessional position in Ms. Bauduy's class was vacant the entire year. The school engaged a long- term substitute. That person often did not show up for work. In those instances, the school sought, often unsuccessfully, to engage fill-ins from a temporary staffing agency. In addition, the school usually did not provide staff to cover the paraprofessionals' breaks and lunches. Throughout the year, Ms. Bauduy had to juggle staffing shortages as best she could. During the representative month of September 2018, Ms. Bauduy's class was short one adult seven full days and four partial days. On September 11, 2018, Ms. Bauduy's class was down two professionals. When the paraprofessional staff took their breaks or lunch periods, the staffing deficiencies worsened. Ms. Bauduy repeatedly advised the administration about the staffing deficiencies, sought assistance, and expressed her concerns about not complying with students' IEP requirements. Her communications included a September 5, 2018, email advising that a substitute had not arrived, a September 11 email forwarding an email from a paraprofessional advising she was not coming in, and a September 26 email advising that a substitute once again failed to arrive and asking for assistance. In January 2019, despite the chronic understaffing, the school transferred two students, T.M. and N.A., from other classrooms to Ms. Bauduy's class. These students' disabilities were more profound and required more supports than the other students. They were regular elopers, required diaper changes, and required individual nearly one-on-one prompting for tasks. Among other things, T.M.'s disabilities required having someone hold his hand during transitions. Placement of T.M. and N.A. in Ms. Bauduy's class was not appropriate. Ms. Bauduy continued sending emails expressing her concerns and frustrations about understaffing. She also repeatedly, without effect, sought to get the school to change mandatory meetings to her planning period or after school because the meetings caused her to leave the classroom and exacerbated the staffing problems. Between October 25, 2018, and March 4, 2019, Ms. Bauduy sent 17 emails requesting full staffing and advising of staff absences. Ms. Bauduay could not rely upon prompt responses when she called for assistance or additional staffing to put her room back in compliance with the required student/adult ratio. Sometimes she received a quick response. Sometimes no one came. Often there was a 20 to 30-minute delay before assistance arrived. Even when management responded to Ms. Bauduy's request for a schedule of when behavior staff would be available to support her students, management's response was conditional. For instance, Laura Fogarty, ESE Curriculum and Instruction Team Instructional Coach, conditioned the schedule of available staff that she provided as follows. Please remember, however, that this schedule is in a perfect world. The behavior support team's first priority is to respond to radio calls and have other responsibilities that don't always make it possible for them to be in your room for the times listed below. They may also have to leave to respond to a behavior call when they are in there. Below is the ideal, if everything goes right and there are no behavior calls or other areas that require their attention. The world in which Ms. Bauduy taught was neither perfect nor ideal. Ms. Bauduy's testimony about staffing difficulties and insufficient responses to requests for assistance differs from testimony of school representatives. Ms. Bauduy was more credible and persuasive than the school representatives. Four of the reasons for this judgment are Ms. Bauduy's sincere demeanor, documents such as emails and logs consistent with her testimony, the admission in Ms. Fogarty's email that even scheduled availability of support was not reliable, and the corroborating testimony of a paraprofessional who worked in Ms. Bauduy's room, Lauren Mueller. K.C. K.C. was a male sixth grade student in Ms. Bauduy's class. K.C.'s IEP specified that K.C. should always be supervised. It stated, "He requires continuous supervision as he is very impulsive and responds aggressively and or obscenely." K.C. also had a Behavioral Improvement Plan (BIP). It too noted a need for intensive intervention to address inappropriate touching of and advances toward female students. The BIP provided, among other things, "If outside the classroom, one on one supervision must be provided." The BIP went on to state that K.C.'s transitions out of the classroom should be limited to necessary transitions and that a staff member should provide one-on-one supervision during all transitions. Ms. Bauduy was aware of the contents of the IEP and BIP. At each day's end, Ms. Edoo usually escorted K.C. from class to the transportation loading area, after escorting her assigned student to the transportation area. This did not happen on September 11, 2018. This was one of the many days when Ms. Bauduy's room was short-staffed. Because of a vacant position and a paraprofessional not showing up, Ms. Bauduy was down to two adults, including herself, of the staff that should have been in the room. This excludes Ms. Edoo who was responsible for providing one-on- one care for a single student. The afternoon of September 11 the substitute paraprofessional was to escort the students, in shifts, to the transportation area. The substitute took a student to the transportation area and did not return. This left Ms. Bauduy the sole adult in the room, responsible both for getting the children to the transportation area and supervising students in the classroom. Ms. Edoo called Ms. Bauduy on the radio and said to release K.C. Ms. Bauduy thought that meant Ms. Edoo was returning to the classroom and would meet K.C. in the hall. Although her room had a telephone and a two-way radio, Ms. Bauduy knew from experience a response to a request for help would be slow, if there even was one. Faced with confounding choices, Ms. Bauduy explained to K.C. that she would release him to go directly down the hall to meet Ms. Edoo. K.C. did not go straight down the hall to Ms. Edoo, and Ms. Edoo was not in the hall. K.C. went to the bathroom that opened on the hall. A student, K.M., found K.C. laying naked, save for his socks, on the bathroom floor, masturbating. This scared and confused K.M. He went home and told his mother about the incident. She called the school. The next day a guidance counselor met with K.M. to discuss the incident and reassure him. Shortly after K.M. left for home, an ESE clerk, Elizabeth Elkholi, saw K.C. naked in the bathroom, through the open door. She called for Shantell Johnson, a behavior trainer. Ms. Johnson did not wish to enter the bathroom because K.C. was naked. A substitute, Stephen Harnishfeger, and Deputy Luna, a school resource officer, joined Ms. Elkholi and Ms. Johnson. Between them, these four adults kept K.C. in sight. K.C. got dressed in a stall. Ms. Johnson escorted him back to Ms. Bauduy's classroom. Ms. Bauduy was not aware of this activity until K.C. was returned to her room. K.C. could have left the school grounds during the period that he was unsupervised. Eventually the substitute reappeared and declared she was leaving for the day. Ms. Bauduy convinced the substitute to escort K.C. to the transportation loading area before leaving. The school suspended Ms. Bauduy for five days without pay for this incident. T.M. T.M. was a student on the autism spectrum that the school transferred to Ms. Bauduy's class in January. T.M.'s previous classroom, Ms. Franklin's, was adjacent to Ms. Bauduy's classroom. On February 25, 2019, the school had again failed to staff Ms. Bauduy's classroom in compliance with the requirements of her students' IEPs. That day the school required Ms. Bauduy to participate in an IEP meeting, scheduled for 30 minutes, during her planning period. The meeting took two hours, running through her lunch period and ending at 4:00 p.m. When Ms. Bauduy returned to the classroom, she realized none of her paraprofessionals had taken a break. So, she released them one at a time for a short break. While one paraprofessional was gone on break, the remaining one left the room with a student to go to the restroom and change a diaper. This left Ms. Bauduy alone with the students. At that time, Ms. Bauduy was providing directions to a group of students. She heard the door slam. She looked for T.M. and did not see him in the classroom. T.M. had slipped away from Ms. Bauduy's classroom out into the hall. He left through the classroom's only door. Ms. Bauduy immediately went to the doorway to look for him. She knew T.M. had a history of leaving the classroom but waiting just outside the door. She did not see him. Then Ms. Bauduy took a few steps outside the door of her classroom into the hall. To the left of Ms. Bauduy's classroom the hall met double doors just yards away that led to the outside and a nearby road. Ms. Bauduy was in the hall approximately 23 seconds seeking to ensure that T.M. had not gone to the left toward the double doors. During these 23 seconds there was no adult inside Ms. Bauduy's class room. She however was just feet from the only door. One of the students could have done something destructive or harmful. But the brief period of time that Ms. Bauduy was outside the classroom, her proximity to the door, and the very short distance she was from her students made that risk minimal. Ms. Bauduy saw the door to Classroom B104 close. This was T.M.'s former classroom, which was next to Ms. Bauduy's room. This reassured her that T.M. was safe. She ran back to her classroom. The students had spent the 23 seconds without incident. Then Ms. Bauduy called for assistance. A staff member came to return T.M. to Ms. Bauduy's room. When T.M. slipped away, Ms. Bauduy had no good choices. In the time it would take to call for assistance and wait for it to arrive, if it did, T.M. could have been out the doors and in the road. Ms. Bauduy's experience taught her that assistance was often slow to arrive and sometimes did not arrive at all. Stepping out in the hall to quickly see where T.M. went left the eight remaining students without direct adult supervision for 23 seconds. But Ms. Bauduy was just outside the only door out of the classroom. She made a reasonable choice, one that most reduced the risk of a bad outcome to T.M. and his classmates. The school suspended Ms. Bauduy for five days without pay because of this incident. F.O. F.O. was a student in Ms. Bauduy's class. F.O. was non-verbal and deaf. She was working on pre-academic skills. F.O. was a joyful and social student. She, however, was defiant. She did not like to be corrected. She wanted to be on her own, basically following her own schedule. When corrected, F.O. would shake her head, point her finger, and stick her tongue out. The school regularly delivered breakfast and lunch to the class. On September 11, 2019, F.O. ate breakfast around 10:00 a.m. After breakfast, F.O. and the other students had a short lesson and went to PE. After they returned to class, they had another short lesson. Afterwards, Ms. Bauduy gave the class another short break. Around 11:30 a.m., the lunch cart's arrival signaled the beginning of lunch to the class. The lunch service procedure began with placing meals on tables for students who could feed themselves. Then Ms. Bauduy and the paraprofessionals assisted students who needed help eating. F.O.'s lunch was placed in front of her. It was time for F.O. to pick up her toys and eat. She refused. Ms. Bauduy tried prompting F.O. several ways. Ms. Bauduy's efforts to persuade F.O. to put her toys up included gestures, pantomiming the desired actions, and modeling the actions by picking up some toys herself. This did not work. Ms. Bauduy took F.O. out of the classroom to see if a change in environment would help. Ms. Bauduy then took F.O. to the behavior specialist's classroom down the hall. But it was not staffed. They returned to Ms. Bauduy's classroom. There Ms. Bauduy tried to get F.O. to comply with simple directions like "put it down." F.O. would not respond. Also, F.O. continued to refuse to pick up her toys and eat lunch. Ms. Bauduy concluded that F.O.'s refusal to eat lunch was a defiance issue. Ms. Bauduy learned a behavior management strategy called "First – Then" in her applied behavior classes at the University of Central Florida. Ms. Bauduy kept a graphic depicting this strategy posted in her classroom. Other teachers and paraprofessionals in the school also used this strategy. It was a system where the "Then" was something the child wanted or wanted to do and the "First" was a task the child was resisting. After F.O. continued to play with toys and ignore her lunch. Ms. Bauduy decided to use the "First—Then" strategy by withholding F.O.'s lunch until she picked up her toys. She asked a paraprofessional, Ms. Lewis, to remove the food. Ms. Lewis refused. Ms. Bauduy then placed the lunch on a shelf so that other students would not eat it or play with it. Around 2:00 p.m., snack time, F.O. had put up her toys. Ms. Bauduy gave her the lunch. Ms. Bauduy's log for the day, sent home with each student each day, advised F.O.'s parents that F.O. would not listen or follow directions most of the day and that "lunch was delayed till she showed more compliance." Withholding lunch was not a proper use of the "First – Then" strategy. Meals are a regular part of the day and necessary for nutrition, although in this case the student repeatedly declined food. Withholding a meal, as opposed to withholding a treat, is not proper. Also, since F.O. was not interested in eating lunch, making lunch the "Then" was not a well-reasoned use of the strategy. Ms. Bauduy, however, did not withhold lunch as a punishment. But withholding lunch was not a reasonable behavior management strategy. The school suspended Ms. Bauduy for five days for this instance.
Conclusions For Petitioner: Ron Weaver, Esquire Post Office Box 770088 Ocala, Florida 34477-0088 For Respondent: Branden M. Vicari, Esquire Herdman & Sakellarides, P.A. 29605 U.S. Highway 19 North, Suite 110 Clearwater, Florida 33761
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding that Respondent, Yolie Bauduy, violated section 1012.795(1)(j), Florida Statutes, by violating Florida Administrative Code Rule 6A- 10.081(2)(a)1., and imposing a reprimand upon Respondent, Yolie Bauduy. DONE AND ENTERED this 24th day of November, 2021, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us COPIES FURNISHED: Filed with the Clerk of the Division of Administrative Hearings this 24th day of November, 2021. Lisa M. Forbess, Executive Director Education Practices Commission Department of Education Turlington Building 325 West Gaines Street, Suite 316 Tallahassee, Florida 32399-0400 Branden M. Vicari, Esquire Herdman & Sakellarides, P.A. 29605 U.S. Highway 19 North, Suite 110 Clearwater, Florida 33761 Randy Kosec, Jr., Chief Office of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 Ron Weaver, Esquire Post Office Box 770088 Ocala, Florida 34477-0088 Anastasios Kamoutsas, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issue presented herein concerns the Respondent's through the person of his parents appeal of the School Board's assignment (of Respondent) to Youth Opportunity School South - an alternative school placement.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following relevant findings of fact. By letter dated November 8, 1983, Petitioner, the School Board of Dade County, Florida, advised the Respondent, Carlos Alberto Giralt, an eighth grade student attending Glades Junior High School, that he was being administratively assigned to the opportunity school program based on his "disruption of the educational process in the regular school program and failure to adjust to the regular school program." Carlos Alberto Giralt, date of birth December 6, 1969, was assigned to Glades Junior High School as an eighth grader during the 1983-84 school year. During October of 1983, Carlos' brother was involved in a physical altercation with another student and Carlos came to his brother's aid by using a stick to physically strike the other student involved in the altercation. Initially, Carlos was given a ten-day suspension and thereafter the suspension was changed to the administrative assignment to the alternative school placement which is the subject of this appeal. 1/ Carlos' father, Salvador Giralt, was summoned to Glades Junior High School and advised of the incident involving Carlos and the other student in the physical altercation. Mr. Giralt was advised of the policy procedures in effect at Glades and was assured that Respondent would be given the least severe penalty, which was the ten-day suspension originally referred to herein. The Giralts are very concerned parents and have voiced the concern by complaining of Respondent's assignment to the Petitioner's area office. In keeping with this concern, the Giralts have requested that their son, Carlos, be reassigned to his original community school, Glades Junior High School. Respondent does not have a history of repeated defiant conduct as relates to School Board authority. According to Petitioner's Assistant Principal at Glades Junior High, Gerald R. Skinner, Respondent was last disciplined approximately two years ago. No showing was made herein that Carlos was either disruptive of the educational process or has failed to adjust to the regular school program.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby recommended that the School Board of Dade County enter a Final Order transferring the Respondent to Glades Junior High School or other appropriate regular school program. RECOMMENDED this 24th day of May, 1984, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of May, 1984.
The Issue Did the Lee County School Board (Board) have just cause to suspend Respondent without pay for ten days?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Board is a corporate and governmental agency duly empowered by the Constitution and statutes of the State of Florida to administer, manage, and operate the public schools within Lee County, Florida. At all times pertinent to this proceeding, Respondent was employed by the Board as an Assistant Principal at Lehigh Senior High School (LSHS). At all times pertinent to this proceeding, Respondent was employed by the Board under an administrator's contract as defined in Section 230.36(3)(a), Florida Statutes. Respondent has taught in the public school system of Florida for 30 years, and in the Lee County school system for the last 18 of those 30 years. During his 30-year career, Respondent has no disciplinary incidents on his record and his evaluations were either satisfactory or above average. Respondent began his tenure with the Board as a teacher and swimming coach at Cape Coral High School on August 17, 1983. On August 9, 1994, Respondent applied for, and was appointed to, the position of Assistant Principal of Student Affairs at LSHS. At the beginning of the 1999-2000 school year, Respondent occupied the position of Assistant Principal for Curriculum at LSHS. During his tenure with the Board, Respondent applied for numerous positions within the Lee County School system. Several of those applications resulted in Respondent being assigned to different positions. However, there were 17 applications filed by Respondent with the Lee County school system that did not result in any kind of a response from the Superintendent's office. Some of these applications were submitted as late as the 1998-1999 school year. By the beginning of the 1999-2000 school year, Respondent had become frustrated because he had not received the courtesy of a response, not even a negative one, to his many applications. As a result of his frustration, Respondent, at the beginning of the 1999-2000 school year, made some inappropriate remarks which resulted in Dr. Harter's suspension of Respondent for 10 days with pay, pending a predetermination investigation and predetermination hearing. As a result of the investigation and hearing, John V. Hennebery, Director of Public Relations, advised Respondent by letter of September 3, 1999, of the recommended disciplinary action to be taken against Respondent. This recommended disciplinary action was that: (1) the letter of discipline was to be placed in Respondent's personnel file; Respondent was to continue counseling until successful completion of the Employee Assistance Program (EAP) is provided indicating that Respondent was able to return to work; (3) a recommendation for 10-day suspension without pay be brought forward to the Board; and (4) upon eligibility to return to work, Respondent would be reassigned to a position of an 11 1/2-month assistant principal on assignment for the remainder of the 1999-2000 school year. By letter dated September 20, 1999, Superintendent Harter notified Respondent that he would be recommending to the Board that Respondent be suspended for 10 days without pay from his position as assistant principal of Lehigh Senior High School. This letter also advised Respondent of his right to contest the Superintendent's decision. By letter addressed to Victor Arias, staff attorney of the Lee County School District, dated September 21, 1999, Respondent, through counsel, requested an administrative hearing on the matter. Respondent submitted to a psychiatric examination by Dr. Newman, Psychiatrist of the Employee Assistance Program, who certified Respondent safe to return to work without any restrictions. Respondent did not undergo any psychiatric treatment. When Respondent returned to work after his suspension with pay, he was assigned as assistant principal at the Alternative Learning Center High School. On September 24, 1999, Superintendent Harter filed a Petition For Suspension Without Pay with the Board requesting that Respondent be suspended without pay for 10 days. Petitioner's Exhibit D is Kimberly McGlohon's notes of her recollection of the comments made by Respondent concerning Lynn Strong on August 12-13, 1999, and the comments made by Respondent on August 11, 1999, concerning Superintendent Harter. These notes were apparently made contemporaneously to the time of the comments. McGlohon's notes indicate that Respondent made the comment, "I am waiting for someone to go down and shoot Dr. Harter." Furthermore, McGlohon's notes indicate that she was outside the Student Affairs office along with Respondent when he made this comment and that Eric McFee, another assistant principal, also heard the comment. On direct examination, McGlohon testified that she was in the Student Affairs office on August 11, 1999, when she heard Respondent, who was in the hallway, say "that someone needed to shoot-go down and shoot Dr. Harter." On cross- examination, McGlohon testified that what she had written in her notes ("I am waiting for someone to go down and shoot Dr. Harter.") was correct rather than her statement made on direct examination. McGlohon's notes indicate that Eric McFee was in the room with McGlohon and heard Respondent's statement concerning Dr. Harter. McFee's notes make mention of this incident, but indicate that the incident occurred on Thursday, August 12, 1999, rather than August 11, 1999. In his direct testimony concerning this incident, McFee testified that he was in the Student Affairs room in August, 1999 (no specific date) with McGlohon when Respondent came into the room and made the statement: "Does anyone want to bet who will shoot Dr. Harter?" McGlohon testified that on August 12, 1999, while attending a district leadership meeting at Three Oaks Middle School, she overheard Respondent make the statement: "Someone needs to shoot Lynn Strong." Sitting at the table with McGlohon were Herman Williams, assistant principal, and Respondent. Williams testified that he also heard Respondent make basically the same statement. Respondent's recollection was that someone said, "They should give Lynn Strong a hand for all she had done." Respondent admitted that he replied: "I would rather someone give her a bullet." On August 13, 1999, at an administrative meeting in the conference room at Lehigh Senior High School attended by McGlohon, Williams, McFee, and Peter Folaros, Principal of LSHS, McGlohon heard Respondent mumbling something but could not make out what he was saying. After this meeting, while following Williams and Respondent down the hallway, McGlohon thought she heard Respondent say that he wanted to shoot Lynn Strong. Williams' recollection was that he thought Respondent said: "Someone should shoot Lynn Strong." Respondent's recollection of this incident was that he was walking down the hall by himself and did not make any comment concerning Dr. Harter or Lynn Strong. Both Williams and McFee recollect that Respondent made inappropriate remarks concerning Lynn Strong and Dr. Harter at the meeting on August 13, 1999, to the effect that "someone needs to shoot Lynn Strong" and "someone needs to shoot Dr. Harter." Neither in his notes nor in his testimony does Folaros, who also attended this meeting, indicate that he heard any inappropriate remarks concerning Dr. Harter or Lynn Strong during the meeting at LSHS on August 13, 1999. None of the individuals (McGlohon, Williams, and McFee) who heard Respondent make the remarks concerning Dr. Harter or Lynn Strong considered the remarks threatening to either Dr. Harter or Lynn Strong but were the result of Respondent's frustration with the system. Around 12:00 noon on August 13, 1999, McGlohon and Williams approached Folaros concerning the inappropriate remarks about Lynn Strong and Dr. Harter made by Respondent. Folaros assured McGlohon and Williams that he would talk to Respondent concerning these remarks. Subsequently, Folaros talked with Respondent about the remarks and advised him of that such remarks could result in dire consequences. Respondent assured Folaros that any remarks made by him were purely off-the-cuff or off-hand remarks and were in no manner meant to be threatening. Additionally, Respondent assured Folaros that he would cease making such remarks. After discussing the matter with Respondent, Folaros called Debbie Diggs, in staff development, who had already been informed of this matter by McGlohon. As a result of the conversation with Diggs, Folaros called Lynn Strong and was advised by Strong that an investigation would be initiated. Although Folaros had assured both McGlohon and Williams that he would talk with Respondent and have the matter investigated, McGlohon took it upon herself to call Lynn Strong, apparently at her home, and tell her the "whole story" on Strong's answering machine. After Respondent's suspension, McGlohon was appointed to fill his position as assistant principal of curriculum at Lehigh Senior High School. Clearly, Respondent's remarks concerning Dr. Harter and Lynn Strong were inappropriate. However, it is equally clear that those remarks were made out of frustration with the system and not intended as threats to either Dr. Harter or Lynn Strong and should be considered as off-the-cuff or off- hand remarks Although Respondent's remarks were inappropriate, the evidence does not establish that Respondent's remarks or behavior jeopardized the life and safety of Dr. Harter, Lynn Strong, or any other staff member of the school district. Likewise, the evidence does not establish that Respondent's remarks or behavior caused fear or disruption in the work environment within the school district.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board enter a final order dismissing Superintendent Harter's Petition For Suspension Without Pay filed against Respondent. DONE AND ENTERED this 28th day of February, 2000, in Tallahassee, Leon County, Florida. ___________________________________ WILLIAM R. CAVE 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of February, 2000. COPIES FURNISHED: Honorable Tom Gallagher Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Dr. Bruce Harter Superintendent Lee County School District 2055 Central Avenue Fort Myers, Florida 33901-3988 Victor M. Arias, Esquire School District of Lee County 2055 Central Avenue Fort Myers, Florida 33901-3988 Harry A. Blair, Esquire 2180 West First Street, Suite 401 Fort Myers, Florida 33901
The Issue The issued posed herein is whether or not the Respondent School Board of Dade County's reassignment of Petitioner/student, Valerie Patrice McDonald, from Miami Springs Junior High School to the Jan Mann Opportunity School North, should be upheld.
Findings Of Fact Valerie Patrice McDonald, Petitioner, is a student enrolled in the Dade County Public School System. Petitioner was enrolled in Miami springs Junior High School in August of 1978. Petitioner's guidance records indicates no serious behavioral problems and that her attendance at school is excellent. Her academic progress has been a steady B and C average since enrolling in the public school system. Petitioner was referred to the guidance office of Miami Springs Junior High School on numerous occasions during the 1978-1979 school year for various disciplinary problems. For example, on September 25, 1978, Petitioner was referred by her mathematics teacher for playing and not working in class. For this referral, she was counseled. Again, on October 25, 1978, she was referred by the social studies teacher for "being involved in a classroom disturbance with another student wherein pencils were broken, books were thrown out the window and the students began kicking each other. A parent conference was requested." On November 3, 1978, Petitioner was referred by the physical education teacher for "striking another student in the locker room for no apparent reason. Petitioner counseled and warned by principal." Again, on November 16, 1978, Petitioner was counseled for being loud and for refusing to remain quiet when requested. Petitioner was placed outside the classroom door by her English teacher. This pattern of disruptive behavior continued through March of 1979 when Petitioner was involved in a fire incident in the girl's physical education locker room. Based on this incident and the culmination of the prior behavioral problems, an administrative placement was requested by the school board for Petitioner to be assigned to the Opportunity School, which request was approved on April 3, 1979. Since that time, Petitioner has been attending the Jan Mann Opportunity School. Charles W. Bales, principal of Miami Springs Junior High School, testified that the assignment of Petitioner to the Opportunity School is beneficial inasmuch as it permits the student to utilize the benefits of smaller class settings, better individualized instruction; smaller class enrollments; better counselor to pupil ratio and basic educational program which enables a "disruptive" student to succeed in an individualized instructional setting. (TR 18-20) Testimony also reveals that the Opportunity School has a full-time visiting teacher who serves as the contact person for resolving any individual problems such as attendance or other behavioral problems for students at the Opportunity School. Ms. Helen Wilson, Petitioner's mother, requested that Principal Bales reassign Petitioner from three of her teachers due to matters which Ms. Wilson considered to be personal in nature. Principal Bales explained that there were approximately 1500 students at the school and that it was impossible for him to reassign students when personal differences of opinions exist between their teachers. Additionally, Principal Bales testified that students reassigned to the Opportunity School may request a transfer back to the regular school program following the close of the grading periods. Inasmuch as Petitioner has been attending the Jan Mann Opportunity School since March, 1979, it appears that she will be eligible for a reassignment to the regular school program provided that her grades, attendance, and behavioral pattern is such that she can function normally in the regular school program.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner's petition filed herein be dismissed. Additionally, it is requested that the Respondent give full consideration to Petitioner's request that she be reassigned to the regular school program when such a request is properly filed with the school board. RECOMMENDED this 27th day of August, 1979, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of August, 1979. COPIES FURNISHED: Ms. Helen Wilson 3311 North West 52 Street Miami, Florida 33142 Michael J. Neimand, Esquire Dade County School Board Lindsey Hopkins Building Miami, Florida 33132
Findings Of Fact During the 1985-86 school year Respondent Gregory Hunter Stephens was a student in the tenth grade at Miami Sunset Senior High School. On April 18, 1986, during the lunch period Respondent drove into the faculty parking lot in his Corvette with the police following closely behind. It was determined that during his lunch break Respondent had been driving his Corvette in a nearby condominium development threatening residents and throwing beer cans on the lawns. The residents had summoned the police. An Assistant Principal held a conference with Respondent's father whose response was that the police should have better things to do than to bother his son for drinking beer and driving around during his lunch break. Respondent was given a three-day suspension. On May 22, 1986, Respondent got into a fight in class, a Group III violation of the Code of Student Conduct. A conference was held with Respondent's father, and Respondent was given a ten-day suspension. Although other informal discussions were held with Respondent's father during that school year, by the end of the third grading period Respondent's grades were one "C," one "D," and 4 "Fs." His absences from his classes during the third grading period alone ranged between 2 and 13. He received only a "3" for his effort in each and every class. During the 1985-86 school year, Respondent was absent 95 days out of the 180-day school year. On March 3, 1987, an Assistant Principal observed Respondent leaving the campus during Respondent's second-period class. He stopped Respondent and gave him a warning. A few minutes later he caught Respondent again attempting to leave. Respondent's mother was contacted, and Respondent was given a "work detail detention." On April 2, 1987, a fight broke out off campus between a group of Latin students and a group of Anglo students. On the following day Respondent admitted to an Assistant Principal that he was one of the participants. All of the students involved (including Respondent) were suspended for three days for that Group III Code violation. On October 19, 1987, Respondent was nearly involved in a collision in the parking lot. Respondent got out of his car and started pushing the other driver. A fight ensued. Respondent's parents were contacted, and he was given a ten-day suspension. By the time of the October 19th incident, Respondent had already been absent 6 days that school year. Further, although the Assistant Principal had two conferences with Respondent's father during the month of October, Respondent was receiving one "C," one "D," and five "Fs" in his classes. A Child Study Team was convened, and a meeting was held on November 3, 1987. Respondent and his parents refused to attend. The Team recommended that Respondent be transferred to Douglas MacArthur Senior High School-South, based upon the October 19, 1987, incident, his failing grades during the most-recent two years, and Respondent's chronic aggressive behavior which constituted a threat to the welfare of the other students. It was determined that Respondent required assistance a normal school could not provide and that a structured environment would be more appropriate since the educators at Miami Sunset Senior High School had unsuccessfully attempted to modify Respondent's behavior by conferences between Respondent and a counselor, meetings between Respondent's parents and assistant principals, indoor suspensions, outdoor suspensions, and work detail suspensions
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered assigning Respondent Gregory Hunter Stephens to the opportunity school program at Douglas MacArthur Senior High School-South until such time as his performance reveals that he can be returned to the regular school program. DONE and RECOMMENDED this 29th day of March, 1988, at Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675, Filed with the Clerk of the Division of Administrative Hearings this 29th day of March, 1988. COPIES FURNISHED: JOSEPH A. FERNANDEZ, SUPERINTENDENT SCHOOL BOARD OF DADE COUNTY 1410 NORTHEAST SECOND AVENUE MIAMI, FLORIDA 33132 FRANK R. HARDER, ESQUIRE 175 FONTAINEBLEAU BOULEVARD SUITE 2A-3 MIAMI, FLORIDA 33172 LANA STEPHENS 15490 S.W. 85TH LANE MIAMI, FLORIDA 33183 MADELYN P. SCHERE, ESQUIRE ASSISTANT BOARD ATTORNEY DADE COUNTY PUBLIC SCHOOLS 1410 NORTHEAST SECOND AVENUE MIAMI, FLORIDA 33132 PHYLLIS O. DOUGLAS, ESQUIRE ASSISTANT BOARD ATTORNEY DADE COUNTY PUBLIC SCHOOLS 1410 NORTHEAST SECOND AVENUE MIAMI, FLORIDA 33132
Findings Of Fact Respondent and the Alternative Learning Center Respondent In 1974, at 22 years of age, Respondent earned his Bachelor of Science degree in social studies from Florida Memorial College, an historically black college in Miami. In his freshman year, he was named the Outstanding Freshman from Southwest Florida attending historically black colleges. At various times during his last three years of college, Respondent worked in inner-city ministries in St. Louis and New Orleans. For about five years following graduation, Florida Memorial College employed Respondent, first as Associate Director of Admissions and then as Director of Alumni-Church Relations, assistant basketball coach, head baseball coach, and head volleyball coach. After moving from Miami to Lee County, Respondent worked for a short time outside of education. At the start of the 1986- 87 school year, Respondent returned to education by accepting employment with the Lee County School District (District) as a social studies teacher at Cypress Lake High School, where he remained for two years. While at Cypress Lake High School, Respondent also served as head girls' basketball coach, head girls' track coach, assistant volleyball coach, and assistant baseball coach. While employed by the District, Respondent helped with the fathers' program at LAMP, which is an educational program operated by the District at the New Directions Center. The LAMP program provides high-school instruction for teenage mothers. Respondent also headed the District's first mentor program, which finds mentors, without regard to race, to encourage minority students to excel in an academic setting, such as in gifted and honors courses. In 1988, Respondent earned his Master of Science degree in educational leadership from Nova University. Then-Superintendent Engle named Respondent to serve as principal-on-assignment for the 1988-89 school year to recruit minority teachers for the District. Respondent was the second minority person assigned to an administrative position in the District. At the time, a federal court had entered a desegregation order against the District. In the ten years prior to Respondent's new assignment, the District had hired about a dozen minority teachers. In one summer, Respondent recruited 30 minority teachers. After completing his assignment in minority teacher recruitment, Respondent returned to Cape Coral High School as Dean of Students. He served in this position for the 1989-90 school year. Following the 1989-90 school year, Respondent was appointed the Coordinator of Educational Equity and Reassignments, in which capacity Respondent served for five years. When he assumed the job, he received a $5000 raise to about $40,000 annually. A coordinator is the lowest level of management in the District office. Coordinators are subordinate to assistant directors or, if none, directors. Directors are subordinate to assistant and associate superintendents, who are subordinate to the Superintendent. The Superintendent is appointed by the Lee County School Board. As Coordinator of Educational Equity and Reassignments, Respondent monitored the district's desegregation efforts. Due to the nature of his responsibilities, Respondent, even though only a coordinator, had direct access to the Superintendent and School Board attorney. Working closely with then-Superintendent Adams, who became Respondent's mentor, Respondent helped redraw school- attendance zones to desegregate schools. Respondent also handled racially based complaints from staff, including teachers, and generally tried to assure that poorer schools received the same resources as those enjoyed by wealthier schools. Respondent became the focus of considerable controversy while Coordinator of Educational Equity and Reassignments. One day, his young daughter answered the phone at home and heard an unidentified caller threaten, "Your nigger father is a dead man." Shortly after the murder of Superintendent Adams, Petitioner, then serving as Interim Superintendent, informed Respondent that she was removing him from his coordinator position. She created a new position for Respondent as Director of Adult Education and Dropout Prevention. Respondent received a raise from $48,000 to $55,000 annually and assumed his new duties in November 1994. Petitioner disclosed that she made the change based on concerns for Respondent's safety and complaints that she had received from the School Board and parents related to Respondent's rezoning decisions. Three months after Petitioner created Respondent's new position, she eliminated it and suggested that Respondent apply for other administrative positions with the District. Respondent and Petitioner discussed an opening at the New Directions Center. The New Directions Center occupies a three-year old facility owned and operated by the Lee County School Board. The New Directions Center comprises three separate programs: the LAMP program, the Academy, and the Alternative Learning Center (ALC). The Academy, which includes the Employment Skills Program, provides alternative education by offering its students different types of teaching strategies than are typically available at conventional schools. Academy students are not behaviorally much different from students attending regular schools in the District. Prior to the 1995-96 school year, each program at the New Directions Center had an assistant principal, and a supervisory principal was in charge of the entire New Directions Center. When she mentioned the opening at the ALC, Petitioner informed Respondent that she intended to appoint a separate principal for each of the three programs starting the 1995-96 school year. In May 1995, Petitioner appointed Respondent to serve as the new ALC Principal, starting July 1. As ALC Principal, Respondent was also the head District administrator at the juvenile detention center, Price Halfway House, and Lee County boot camp. At the time of assuming his new responsibilities, Respondent had served nine years in the Lee County School system: two years in the classroom, one year in administration at a school, over five years in administration involving minority matters at the District office, and less than one year in Adult Education and Dropout Prevention. Respondent received no training in preparation for his new assignment as a school principal. As of February 19, 1996, Respondent's District personnel file contained nothing negative, aside from some isolated suggestions recorded on classroom observation sheets. This was the file that Respondent and his attorney examined after giving the District three days' notice of their intent to examine and copy Respondent's personnel file. Discussed below is Petitioner's contention that two missing items should have been included in the file. Respondent's evaluation for his first year of teaching notes: "Excellent start as a beginning teacher in Lee County." This 1987 evaluation states: "Outstanding teacher. Should be considered for advancement to administration as soon as possible." The 1988 evaluation reports: "Excellent year-- Promoted to dean of students, Cape Coral H.S." The first administrative evaluation of Respondent is in 1989 and covers his work in minority-teacher recruitment. The 1989 evaluation states that Respondent is "an asset to our team." The 1990 evaluation, which addresses Respondent's year as Dean of Students, reports: "Charles has demonstrated his concern for young people and has spent many hours above and beyond the call of duty working with and for kids." For the first year in which Respondent was responsible for desegregation efforts, the 1991 evaluation notes that Respondent has only partially achieved a goal--namely, learning desegregation issues. However, the 1991 evaluation, which was prepared by Dr. Mary Nell Gunter, states: "Charles Daily [sic] demonstrates talent and skill in dealing with people. He is eager to do a good job and I appreciate his professional outlook." A memorandum from Dr. Gunter commends Respondent for his "positive attitude" and work in specific programs. The memorandum suggests, though, that Respondent needs to develop his skills in "facilitative leadership," which he demonstrates in "many instances," but perhaps insufficiently when dealing with "principals and school-based people." Respondent's evaluation for the 1991-92 school year is missing from Respondent Exhibit 13, which is his District personnel file. The missing evaluation apparently was completed with no remarkable comments. Respondent's evaluation for the 1992-93 school year is noteworthy because it was prepared by Petitioner, who was not yet Superintendent. This 1993 evaluation finds that Respondent has fully achieved all of his goals, one of which is: To establish effective communication to the public that would assist in dealing with the increasing cultural, demographic and social change effecting [sic] our students and community. Petitioner's narrative comments on the 1993 evaluation are: Charles Dailey is an extremely valued and important member of the Division of Administrative Operations. He has demonstrated outstanding leadership during the Desegregation process. He is a role model for every administrator in his work ethic, committment [sic], teamwork and educational values. Petitioner found that Respondent reached an effective level of performance (the only satisfactory rating offered on the evaluation form) in all categories. Categories include judgment issues, including making good decisions based on law and policy, and sensitivity issues, including tact, effective dealing with people over emotional issues, exhibiting a positive professional attitude, and perceiving the needs and concerns of other persons. Petitioner concluded the 1993 evaluation as follows: Charles must work under stress everyday in his office due to our desegregation process. He has handled this in an outstanding manner. The evaluation for the 1993-94 school year should have been performed by Dr. James Browder, who is now principal of Cypress Lake High School. Dr. Adams was murdered on February 7, 1994. Another administrator was responsible for Respondent's evaluation until April or May of 1994. Given the understandable disruption resulting from the sudden death of Dr. Adams and the administration reorganization that followed, Respondent's evaluation for the 1993-94 school year was never prepared. However, Dr. Browder testified that he had perceived no problems with Respondent of sufficient seriousness to document in an evaluation. The evaluation for the 1994-95 school year should have been performed by Assistant Superintendent Dr. Mary Santini. She assumed that position in January 1995 and may have felt unable to evaluate Respondent by the time the evaluations are due in May. Respondent has been recognized repeatedly in the educational community. The past three years, Respondent was a finalist for the Ida S. Baker award, which is given to the outstanding minority educator in Florida. Respondent was named in 1995 the administrator of the year for the southeastern United States by the Southeast Desegregation Assistance Center. During this period, Respondent has been serving as a consultant and expert witness in the Rockford (IL) School District desegregation case. The ALC In general, the ALC is the District's last-chance school for students whose disciplinary problems have resulted in their removal from their geographical schools. ALC students are the most difficult to manage in the District. Nearly all ALC students are enrolled in the ALC as an alternative to expulsion from the Lee County School System. A few students are assigned to the ALC through the juvenile justice system. Almost all of the ALC students have had serious problems with criminal activity, seriously disruptive behavior in school, and school attendance. At any given time, roughly 10-20 students attending the ALC have been convicted of felonies. On a cumulative basis for the 1995-96 school year, excluding exceptional student education (ESE) students, 80 students enrolled in the ALC sometime during the 1995-96 school year were guilty of felonies, 91 were guilty of the possession of drugs or drug paraphernalia, 29 were guilty of armed burglary or grand theft, 36 were guilty of assault or battery against a teacher or administrator, 68 were guilty of fighting with other students, 38 were guilty of possession of weapons, and numerous others were guilty of other offenses ranging from "sexual misconduct" (7) to "peeing in a bottle" (1). (Some of these students were guilty of more than one offense, and some students entered the ALC more than once during the school year, so their offenses would be counted more than once in each category.) Prior to the 1995-96 school year, the Supervisory Principal of the New Directions Center was Jeananne Folaros. The ALC Assistant Principal was Richard Hagy. The LAMP Assistant Principal was Carolyn McCollum. And the Academy Assistant Principal was John Wortham. For the 1995-96 school year, Ms. McCollum and Mr. Wortham retained their prior positions except they became principals, and Mr. Hagy and Ms. Folaros were reassigned. Respondent and the ALC When Respondent arrived at the ALC, student behavior and academics were both in need of improvement. Perhaps the most dramatic indicator of the situation was that in the prior school year Mr. Hagy had twice required hospital treatment for injuries he had received from being struck by ALC students. The school was the scene of frequent fights with students wandering in the halls and often in possession of drugs, making it hard for motivated students to work. In an effort to reduce the number of suspensions, the ALC had retained some extremely disruptive students, who sometimes threatened even the teachers. Frightened by these students, some teachers had resorted to a policy of appeasement, allowing difficult students to sleep or play cards in the classroom with academic activity going on around them, or sending these students to a separate timeout room, where they slept and played cards without the distraction of academic activity going on around them. When Respondent was first appointed as ALC Principal, he spoke with middle- and high-school principals and learned of their concerns that the ALC was a "revolving-door" program. They said that the ALC disrupted regular academic programs at their schools and inadequately served the needs of the students assigned to the ALC. District principals and ALC teachers and students reported that the ALC offered a poor educational program where students could easily avoid academic challenge. One of Respondent's first moves was to select Beth Smith as the assistant principal for the ALC. Respondent recognized that their strengths and weaknesses were complementary. She was a curriculum specialist, and he was an effective disciplinarian. After hiring Ms. Smith, Respondent formed a curriculum team consisting of her, a guidance counselor, a school psychologist, and a peer-counseling teacher to address curriculum changes. Respondent reimplemented the 45 good-day policy. This policy meant that the ALC would not return a student to his geographical school until he had 45 days of punctual attendance, good behavior, and successful academics. Respondent developed and enforced a dress code, prohibited sleeping and card games in class, and required teachers to stiffen their academic requirements. Respondent's disciplinary plan eliminated the separate timeout room, where misbehaving students had enjoyed freedom from academics. Respondent instead introduced a multi-step intervention system where the teacher first warned the misbehaving student in the classroom, then warned the student in the hallway, then placed the student in timeout in the classroom, and then sent him to Respondent, who would warn the student, assign cafeteria duty, or suspend him, depending on the seriousness of the offense. In all senses of the word, Respondent was a "hands-on" principal. Sondra Saldana, an ALC guidance counselor, best described Respondent's style when she testified that he meets students where they are. Undoubtedly, Respondent models good behavior in numerous ways. But he does not stop there. With passionate intensity, Respondent readily reveals his love and expectations for each student and satisfaction or dissatisfaction with each student's behavior. Respondent is direct and frank, not oblique or diplomatic. He demands the respect of all of his students, and he earns the respect of nearly all of them because they see that he cares about them in a vital and effective way. Many of the ALC students probably would not have responded to Respondent's disciplinary innovations without clear evidence of Respondent's belief in their academic potential. More than anything else, Respondent wanted "to keep turning on lights for students," according to his favorite expression. Refusing to allow ALC students to think of themselves or be treated like academic or cultural outcasts, Respondent made the ALC more like a regular school, not so that he could have the experience of running a regular school, but so that the ALC students could have the experience of attending and succeeding at a regular school. In giving ALC students more positive opportunities than they had had in the past, Respondent introduced to the ALC student assemblies, a literary magazine, school plays, and other activities typical of regular schools. Respondent ordered the physical education teacher to make the ALC students play sports besides basketball, just like the physical education students were doing at the regular schools. (After hearing the concerns of the physical education teacher about placing bats in the hands of certain students, Respondent agreed to drop softball.) Respondent personally conducted entrance interviews, so he could explain the rules and purpose of the ALC to each new student and any parents or guardians accompanying him. Respondent made the exit process--merely an exercise in paperwork in prior years--an experience that would bring some closure to the ALC experience and prepare the student for a more successful reentry into his geographical school. There is no doubt that Respondent was markedly successful in improving the atmosphere at the ALC. Respondent's immediate supervisor, Herbert Wiseman, the District Director of Secondary Operations, twice during the fall of 1995 complimented Respondent on how well run the ALC was. The latter compliment took place on December 15, 1995, when Mr. Wiseman, with whom Respondent had a good relationship, told Respondent that he was running the ALC well. Mariner High School Principal Michael McNerney described in detail a visit he made to the ALC in November 1995. He was greeted quickly and professionally at the office, rather than allowed merely to walk into the school. Respondent took him to 8-10 classrooms where Respondent and students spoke freely. Respondent knew each of his students and which of them were from Mariner High School. He even knew when each student was due to return to his geographical high school. Jill Culligan, an ALC teacher who was disaffected with Respondent, noted the positive changes in writing on December 5, 1995: Under [Respondent's] system of discipline interventions and sensitivity to individual student needs, the students appear to be exhibiting the better behavior expected of them. Fights are no longer tolerated. More opportunities for assemblies are getting them ready for re-entry into the regular schools. But Respondent always balanced his academic innovations with disciplinary innovations, recognizing that behavior and academic achievement among ALC students are inextricably linked. Respondent personally led the effort to restore and maintain order at the ALC. It was a considerable, ongoing effort, made more difficult by the fact that the most troublesome students were no longer warehoused in the timeout room or banished from school by suspension. A key element of Respondent's relationship with the most difficult of these most difficult students is that he literally was not afraid to touch a student. Respondent was unafraid to place an arm around such students and hug them close to his body. The hug conveyed affection and physical constraint. While holding the child firmly, Respondent would then typically say that he had to calm down. In many instances, this approach was successful; in some instances--disproportionately represented in the next section--this approach was not. There were always clear limits to Respondent's disciplinary efforts. As noted below, he did not believe in striking students, and never did so except one time at the behest of a parent, who sought to avoid the more burdensome punishment of a suspension. Respondent scrupulously tried to get all significant information before taking any disciplinary action. Though a strong believer in discipline, Respondent was never inflexible. To the contrary, it appears he was always willing to fashion the most appropriate penalty under the circumstances--such as pushups or cafeteria duty--and was often willing to modify a penalty upon request of a parent or guardian or even the student himself. During Respondent's tenure, which ended with his suspension on January 11, 1996, there was a fight every three weeks among students. After his suspension, there was a fight everyday. During Respondent's tenure, the police were present at school every other week. After his suspension, the police were present every other day. Despite Respondent's success at the ALC, he encountered some resistance and engendered some resentment among staff. Clearly, disgruntled staff was the source of many of Respondent's problems, causing management problems at school and, more importantly, conveying misinformation to the District office. In general, at least two-thirds of the ALC staff supported Respondent even after he was suspended. Some staffmembers were neutral. Among staffmembers vocally opposed to Respondent, some were doubtlessly put off by Respondent's assertive personality. But there were other reasons for the vocal disaffection of some staffmembers, and some of these reasons have a material bearing on the credibility of these persons as witnesses and the weight accorded their testimony. In some cases, the source of staff disaffection may have been professional, such as when Respondent selected Ms. Smith over Jim Nassiff, an ALC teacher, for the position of assistant principal. Mr. Nassiff was unhappy with Respondent for choosing Ms. Smith over him. Most disaffected staffmembers had job-performance problems, which were exacerbated by the demands that Respondent placed upon them in terms of academics and discipline. Teachers in this category included Kenneth Vitale, Pamela Minton, Cheryl Gruenefeld, and Ms. Culligan. To varying degrees, teachers in this category manifested an unwillingness or inability to adapt to the changes implemented by Respondent. The sources of disaffection of Mr. Vitale and Ms. Culligan are described in connection with incidents involving them. However, two staffmembers were involved in a number of incidents. Lisa Krucher, a security guard, was notable for the extent of her dissatisfaction with Respondent and her inability to perform her job. She defied Respondent's efforts to ban smoking from the ALC building. She was unable to break up fights and lax in enforcing discipline. She eventually became the eyes and ears of Petitioner by daily reporting incidents to Mr. Wortham, who passed them on to Dr. Santini. Her job-related deficiencies were such that--despite her loyalty--Ms. Krucher was transferred to the Academy after Respondent's suspension. Ms. Smith offered a more balanced perspective on Respondent than did Ms. Krucher, and the source of Ms. Smith's disaffection with Respondent is more professional. Previously a guidance counselor in a middle school and dropout prevention program, Ms. Smith is an articulate exponent of the modern disciplinary theories of positive reinforcement and behavior modification. She deemphasizes more traditional, coercive methods of discipline, such as punishment for wrongs-- which of course awaits those ALC students who, having already failed to take their behavioral cues in the setting of the regular schools, continue misbehaving until they encounter the criminal justice system. Respondent does not advocate the more traditional, coercive disciplinary method of punishment for wrongs to the exclusion of more modern techniques of behavior modification. However, his more intense style of personal involvement with misbehaving students bore little resemblance to Ms. Smith's more restrained style. Ms. Smith was disturbed by her perception of how Respondent handled certain misbehaving ALC students. The record is less clear in revealing her methods of modifying the behavior of such students. In any event, her reactions to the misbehavior and Respondent's attempts to correct it were entirely sincere. She was frustrated to the point of tears at times, believing at times that students who continued to misbehave simply had not been exposed to sufficient positive reinforcement. The problem is that Ms. Smith lacked experience with the kinds of students who can be found at the ALC. She was still developing effective means of handling the most dangerous and disruptive of these students when Respondent was suspended. At that time, Ms. Smith still had nothing approaching Respondent's experience in dealing with young persons who, with little if any warning or provocation, explode into a violent frenzy, seriously injuring anyone in their immediate vicinity. Following Respondent's suspension, Petitioner appointed Ms. Smith as Acting ALC Principal. On February 20, 1996, Petitioner replaced Ms. Smith with Mr. Hagy as Acting ALC Principal. Respondent and Students Spring 1995 Visits to ALC: Paragraphs 33 and 35 At the urging of Petitioner, Respondent visited the ALC shortly after Petitioner named him the new principal. He visited the school three times in the spring of 1995 before assuming his duties there on July 1, 1995. On his first visit, Respondent met briefly with Mr. Hagy and discussed how the school operates. On this visit, Respondent saw students loitering in the halls and cursing loudly. Respondent saw the timeout room, where staff had hung plastic to cover the holes that students had punched in the walls. Respondent saw students were sleeping rather than studying. Respondent and Mr. Hagy came across a student who was walking out of the class during the school day very upset, using abusive language. Mr. Hagy asked him to stop, but he ignored Mr. Hagy and walked out. In another class, taught by James Nassiff, Respondent found the class watching an entertainment movie. Mr. Hagy escorted Respondent into several classrooms. These visits were brief. Respondent later made a second visit, without Mr. Hagy, to observe the classes in session. These visits were somewhat longer. In each classroom during the second visit, Respondent introduced himself as the new ALC principal. He warned the students that things would be changing. He promised that he would suspend any student who talked back to a teacher, swore, or fought. Respondent ordered the students not to call male teachers "man" and female teachers "woman"; teachers would be called "Mr." and "Mrs." Respondent told the students that he would not tolerate sleeping or card playing in class. In a lighter tone, Respondent added that the students should tell their friends and family that there was a new sheriff in town and the ALC was going to be about education. Respondent then flashed his badge. The badge is a small shiny badge that designates Respondent as an Honorary Deputy Sheriff for the term of Sheriff McDougal, who remains in office. Respondent understands that the badge confers on him no special power to arrest persons. He has never tried to arrest anyone using the badge, and he has never displayed the badge on the occasions that he has actually summoned law enforcement officers. In Ms. Gruenefeld's class, Respondent found students sleeping. He approached one student who had his head down on the desk and did not look up when Respondent entered the room. Respondent told him to look at Respondent when he was speaking, or Respondent would suspend the student. Ms. Gruenefeld tried to justify the student's behavior on the grounds that he was a good student and had been working very hard. She believed that the student, who was Hispanic, did not engage in eye contact for cultural reasons. Nothing in the record supports the assertion that Hispanics disfavor eye contact. Absent an undisclosed medical condition, the student should have been able to raise his head off the desk and make eye contact with the new principal, who had entered the classroom to introduce himself to the students. There is no indication that Respondent's first or second visits to the ALC destroyed any instructional momentum in the classrooms. Obviously, the students were off-task for the time that Respondent was in the classroom, in most cases due to Respondent's presence. However, the students did not remain off-task for long and soon returned to whatever they were doing before Respondent entered the classroom. At most, Respondent's comments about changes at the ALC might have caused some harmless confusion among those students who were about to be returned to their geographical schools. There is no evidence that students were intimidated by Respondent's announcement or his display of a badge. Some students laughed after Respondent's announcement. Some responded more seriously, wanting to know if he were really going to be the new principal. In general, the students listened thoughtfully to Respondent's statement. Respondent made a third visit to meet with the faculty at the request of an ALC guidance counselor, who had called Respondent and told him that the faculty wanted to meet him. In this meeting, Respondent repeated the ground rules that he had given the students a few days earlier. Respondent invited each teacher to prepare a wish list for the ALC and a list of any concerns that he or she may have. Ending a positive meeting, Respondent introduced the teachers to his favorite expression, "We need to turn lights on for kids." Following Respondent's visits, Ms. Folaros telephoned Respondent and asked him what had taken place. He explained that he wanted to meet the students at that time because summer school would start before he assumed the role of principal. Respondent added that he wanted the students whom he met to tell other students that he would not tolerate students sleeping and misbehaving, as they had been doing in the past. Other Incidents of Flashing the Badge: Paragraph 33 In September or October, 1995, M. P. enrolled at the ALC. M. P. is a 14 year-old ninth grader, who started the year at Lehigh High School. M. P. was sent to the ALC after he urinated in the middle of class into a glue bottle because his teacher had refused him permission to use the bathroom. M. P. was accompanied by his mother and sister on the day that he enrolled--a process that took about 20 minutes. During the entrance interview, Respondent informed M.P. of the rules of the school. They discussed the dress code, the prohibition of drugs on campus, and M. P.'s misbehavior at Lehigh High School. During the conversation, Respondent flashed his badge and warned M. P. not to do anything wrong. M. P. testified that he was scared at the sight of the badge. This testimony is discredited. It takes more than a badge to frighten M. P.. M. P.'s mother saw Respondent flash the badge, and she decided, based on this meeting, that Respondent would be a good role model for her son. Respondent flashed the badge on other occasions. One time, four middle-school girls assaulted another student in the cafeteria. They ignored Respondent when he tried to talk to them, so he flashed the badge and warned them that he could have them arrested. They took him more seriously and listened after that. Another time, Respondent displayed the badge to a boy who was misbehaving in Respondent's office. Again, Respondent warned that he could have the student arrested. Respondent displayed the badge several other times and warned misbehaving students that he could have them arrested. Some of the students took him seriously; others did not. The ability of Respondent to have students arrested did not depend on his possession of the badge, and ALC students understood that. Flashing the badge unlikely intimidated anyone. M. P.'s Other Incident: Paragraph 29 After the entrance interview, M. P.'s mother spoke privately with Respondent about M. P. She described him as emotionally troubled over her recent divorce. She warned that he was quick to anger and especially intolerant of females because he blamed the divorce on his mother. He also resented females because of a gender issue in the family and the teacher who had refused him permission to go to the bathroom at Lehigh High School was a female. While in April Pepin's class, M. P. walked out of the classroom without permission. Ms. Pepin sent him to Ms. Smith's office. Talking to Ms. Smith, M. P. denied that he had left the classroom without permission and gave Ms. Smith trouble. Ms. Smith determined that he had misbehaved in Ms. Pepin's class, decided to suspend M. P. for one day, and called M. P.'s mother. M. P.'s mother asked Ms. Smith to have Respondent reinforce the point with M. P. Ms. Smith preceded M. P. to Respondent's office and explained the situation to Respondent, stating that M. P.'s mother wanted Respondent to talk to her son and that Ms. Smith was having trouble dealing with him. Respondent summoned M.P. into the office, leaned over his desk toward M. P., and raised his voice in an authoritative manner. Respondent warned M. P. that he could not act up at Respondent's school and that, if Ms. Smith told him something, it was like Respondent telling him something. M. P. elected not to listen to Respondent either and tried to walk out of his office. When he turned to walk around the chair, Respondent stopped him by grabbing his arm. Respondent was worried that he might be going after Ms. Smith. Respondent was also intent on not allowing M. P. to disobey Ms. Smith and Respondent by coming and going as he pleased, especially after his mother had asked repeatedly for Respondent's help in dealing with her son. After grabbing M.P.'s arm, Respondent told him to go up against the wall for a search, and, when he did not do so, forced him up against the wall. When Respondent tried to pat down M. P. for weapons, M.P. lost his composure and began to fight with Respondent. M.P. brought his arms down hard on Respondent and struck him. Respondent wrestled M. P. down to the floor and shouted for someone to call the police. Arriving a few minutes later, the police officers had to bind M.P. by the ankles and drag him to the police car, where he tried to kick out the car window. M. P.'s mother then had M. P. admitted to Charter Glades Hospital, a psychiatric treatment facility. M. P. remained hospitalized for ten days and remained on homebound instruction for two months. Charter Glades treated M. P. for an anger disorder. M. P.'s mother blames Respondent for M. P.'s hospitalization. She is understandably worried about her son, but the evidence does not in any way suggest that Respondent initiated, and the greater weight of the evidence does not prove that Respondent exacerbated or unreasonably triggered, M. P.'s obvious behavior disorder, which had manifested itself before his assignment to the ALC. Ms. Smith felt that Respondent overreacted to the situation, but she was unaware of the details or extent of M.P.'s behavior disorder prior to the incident. Under the circumstances, Respondent was justified in reacting quickly to prevent M. P. from leaving the office and precluding the possibility that the student might strike Ms. Smith. Pushups: Paragraphs 20 and 21 Respondent sometimes gave the option of pushups to male students whose misbehavior otherwise warranted suspension. (For female and other male students, Respondent would sometimes offer cafeteria duty.) On at least two occasions, students chose to do the pushups. Respondent demanded 50 pushups and sometimes called out the count himself, starting fast and ending slow. If a student could not do 50 pushups, Respondent allowed him to do as many as he could; in no event would Respondent suspend him for failing to reach 50. On one occasion, three students were doing their pushups in Respondent's office when a faculty meeting was about to start. The teachers were supportive of the students, cheering them on. When finished, the students, taking the matter in good humor, thanked Respondent for not suspending them. There is absolutely no evidence that any of the students choosing to do pushups were humiliated, injured, or exposed to a risk of injury. Presumably, as alleged by Petitioner, their arms shook and, for the white boys, their faces reddened. These things happen with pushups. Spankings: Paragraphs 18 and 19 There were two student spankings during the fall of 1995. One of them took place in October 1995 and involved O. B., who is 13 years old. O. B. lied to Respondent about not being involved in a fight. Based on O. B.'s word, Respondent was about to suspend another boy. After discovering the truth, Respondent went down to O.B.'s classroom and found the class watching a movie. Respondent said, loud enough for the teacher, Mr. Vitale, and other students to hear, "Son, you've lied to me. You've lied to me." O. B. answered, "Man, I don't know what you're talking about." Respondent then grasped O. B. firmly by the back of the neck and walked him down to Respondent's office. In the office, Respondent suspended O. for five days, called O. B.'s father (his biological grandfather who had adopted O. B.), and told him that he needed to pick up his son. O. B.'s classmates already knew that O. B. had lied about the incident. O. B. was not embarrassed by the manner in which Respondent removed him from class, nor was he hurt by the grasp of Respondent. When O. B.'s father arrived, he said to Respondent that O. B. had just been suspended and had been out of school more than he had been in. The father asked Respondent if there were another alternative, like a spanking, and suggested that Respondent spank the child. Respondent said he did not like to spank students. The father asked if he could, in order to avoid another suspension. Respondent said that was acceptable to him, so the father took his belt and applied it to O. B.'s buttocks five or six times. O. B. cried a little, so Respondent suggested that the father take him home for the rest of the day, rather than return to the classroom after having cried. The father did that. Respondent, O. B., and O. B.'s father were the only persons present during the spanking. The blinds were drawn in Respondent's office during the spanking. The other spanking involved J. N., who is also 13 years old. One day, J. N. repeatedly misbehaved. His teacher, Mr. Nassiff, talked to him several times without effect. J. N. got angry at another student and was about to get into a fight. Another teacher told him to be quiet and he refused. School Resource Officer Fred Jackson and Ms. Krucher also intervened, but failed to calm J. N. J. N. demanded to talk to Respondent. After a brief discussion, Respondent said that he was going to have to suspend J. N. if he misbehaved again that day. Respondent allowed J. N. to return to his class. J. N. returned to class and immediately caused trouble by getting into an argument with another student. Mr. Nassiff sent him back to the office. Respondent called J. N.'s mother and said that he was being suspended. J. N.'s mother asked Respondent to spank her child instead. She explained that she could not afford to arrange for someone to care for J. N. while he was out of school. He had just finished a suspension two or three weeks earlier, and his mother lacked the funds to hire another babysitter. After expressing some reluctance, Respondent agreed to the spanking, but required J. N.'s mother to come to the office to serve as the witness. She did, and Respondent, behind closed blinds and a closed door, hit J. N. six times with a belt on the buttocks. The spanking did not hurt and J. N. did not cry out. Lee County School Board Policy 5.16 addresses corporal punishment as follows: Subject to the provisions of law, if a teacher or school administrator feels that corporal punishment is necessary, at least the following procedures shall be followed: Reasonable alternatives have been used and documented. Written permission has been obtained from the student's parent or guardian at the beginning of each school year, and a call to the parent or guardian for each specific incident involved prior to using corporal punishment. The use of corporal punishment shall be approved by the principal or designee before it is used. The use of corporal punishment shall be administered only in the presence of the principal, another administrator, or a teacher. The principal, other administrator, or teacher shall, in the presence of the student, be informed of the reason for the punishment before it is administered. A principal, or designee who has administered corporal punishment shall, upon request, provide the student's parent or guardian with written explanation of the reason for the punishment and the name of the administrator or teacher who was present. Policy 5.16 is inapplicable to the O. B. spanking because O. B.'s father, not an employee of the District, spanked the child. Policy 5.16 is inapplicable to the J. N. spanking because--consistent with his disciplinary philosophy--Respondent never determined that corporal punishment was necessary. Such a determination is the precondition stated in the flush language of Policy 5.16 for the remaining conditions to apply. Respondent had determined to suspend J. N. Policy 5.16 governs spankings initiated by District employees, not by parents. Respondent merely acceded to the mother's requests that he substitute for suspension the lesser punishment of a mild spanking and that Respondent perform the spanking for her, in her presence--in effect as her agent and not an agent of the School Board. Violation of Dress Code: Paragraph 31 In September 1995, Respondent noticed an unidentified female student exiting a school bus on her way to class at the ALC. She was wearing a top that exposed her midriff, in violation of the ALC dress code. In the presence of District Transportation Coordinator Janet Harris, Respondent told the girl, "Get your ass into my office and call your mother. We don't allow those kinds of tops." Petitioner did not call the improperly clad student as a witness. There was no sexual content to Respondent's ill- chosen word, voiced in the presence of a female employee of the School Board who was a stranger to Respondent. Ms. Harris was not so startled by the comment as to report it at the time to anyone. She first mentioned it the next month to Mr. Wortham. Absent additional proof of the circumstances surrounding Respondent's isolated remark, including the student's reaction, Petitioner has failed to prove that Respondent's momentary lapse disparaged and embarrassed the student. C. L. Incident: Paragraph 22 C. L. was a 200-pound female student at the ALC with a history of violent outbursts where she would leave school and not return home for a couple of days. C. L.'s mother asked Respondent, when he became principal, not to allow C. L. to continue to leave school whenever she wanted. Previously, if she were resolved to leave school, no one would try to stop her. One day at school in September or October 1995, C. L. was out of control, trying to leave the school. Gerald Gilmore, a security guard, was trying to stop her when Respondent approached. Respondent took one of C. L.'s arms, and she suddenly dropped on him. Respondent and Mr. Gilmore each took an arm and walked her to the office, talking to her the whole way in an attempt to calm her. Respondent summoned Officer Jackson to help calm C. L. In the office, Respondent and Mr. Gilmore placed C. L. in a chair. Each time she popped out of the chair, they returned her to the chair. Eventually, C. L. calmed down, and they let her return to class. D. C. Incident: Paragraph 26 One morning in October 1995, Respondent saw D.C. smoking marijuana off-campus before school. When D. C. entered the school, Respondent asked him to come down to the office. D. C. was belligerent. Respondent placed his right arm around the back of the D. C., who was about Respondent's height, and grabbed his right arm, while holding his left arm close to the boy's side. Respondent then walked D.C. down the hall, side-by-side, to the office. Respondent frequently used this hold on students who were noncompliant. It does not hurt the student, but gives Respondent control over the student's movements. In particular, Respondent can sense immediately if a student is going for a weapon. Respondent's use of this hold and his readiness to search students (which is also part of his effort to keep drugs off campus) are prompted by Respondent's justified concerns for the safety of students and staff. The ALC has no metal detector and weapons are a constant worry. In the fall of 1995, Respondent found one student at school carrying a .25 caliber pistol with 18 rounds of ammunition in it. Once in the office, D. C. voluntarily leaned against the wall in Respondent's office so Respondent could search him with an electronic beeper. Respondent did not find any marijuana, but found a tobacco cigarette with half of the tobacco removed from the cigarette. Students smoking marijuana often removed part of the tobacco from a tobacco cigarette and replaced it with marijuana to avoid detection. Respondent suspended D. C. from school and contacted D.C.'s probation officer. D. C. subsequently violated the conditions of his probation and is now missing. ESE Student and Housing Project: Paragraph 32 In November 1995, Respondent spoke to an unidentified female student who was repeatedly being suspended for disciplinary reasons. The student lived in a public housing project. Respondent warned the student that, if she continued to get suspended, stay home, and cause trouble around the project during school hours, she and her mother could be evicted from the project. The student calmed down and behaved appropriately after that. Respondent was a commissioner of public housing for the City of Fort Myers at the time. He understood the rules of the housing projects, which permit the eviction of tenants whose unsupervised school-age children cause trouble in a project during school hours. Slightly Built Child: Paragraph 25 Petitioner presented no significant evidence on this allegation. It probably refers to another incident, such as the S. P. incident discussed below. M. B. Incident: Paragraph 28 In November 1995, M. B. was involved in a fight in the classroom. Respondent gave him the option of a suspension or working in the cafeteria, where he would clean up trays and take out the trash. He chose cafeteria duty. Shortly after arriving in the cafeteria, M. B. so infuriated the cafeteria manager that he called Respondent and told him that M. B. was the most arrogant boy he had ever seen, and he did not want the student back in the cafeteria again. Respondent left his office to retrieve M. B. and found him walking toward the office. Respondent said, "Son, come here." M. B. approached Respondent, who asked him what was his problem. M. B. said that he refused to empty any "God damned" trash. Respondent placed his arm around M. B.'s back and escorted him to the office. M. B. wanted to go straight home, and Respondent would not allow him. Respondent asked him to lean against the wall so Respondent could check him for weapons and drugs. M. B. did so. Respondent then called M. B.'s grandmother and warned her that, if M. B. continued to fight, he could be expelled for two years. She asked him not to suspend him. Respondent agreed not to suspend him, and M.B. completed the school day without further incident. L. S. P. Incident: Paragraph 23 S. P. is a 12 year-old male. He is about five feet one inch tall and is slightly built. He fights constantly. S.P. was sent to the ALC last year for fighting and insubordination. He was transferred from the ALC to his geographical school last Christmas, but, by the time of the final hearing in the present case four months later, he was back at the ALC. On the day of his testimony, S. P. had a black eye from fighting. On his first day at the ALC, S. P. got into a fight. He had not even reached his classroom when he started fighting with another student while still in the office. Respondent saw the fight and put his arm around the child's back, grasped the student's right arm, and hugged the boy close to Respondent. Respondent tried to calm him, warning that he did not want to have to suspend S. P. before he was even enrolled. S. P. tried to escape Respondent's grasp, but Respondent would not release him until S. P. said that Respondent was choking him. Respondent released him then, even though he was not choking the student. When S. P. remained noncompliant, Respondent grasped him again in the same manner as before. Respondent warned S. P., as he hugged him close to Respondent, "Son, you can't continue to fight. You're going to force me to suspend you." However, S. P. swore at Respondent, who replied that S. P. was suspended for the day. After telling S. P. that he was suspended, Respondent walked S. P. to the bench outside Respondent's office and sat him down. S. P. was upset and, after Respondent walked away, began crying. M. T. R. Incident: Paragraph 27 J. B. is an 18 year-old female who attended the ALC in the fall of 1995. From the third day of her attendance at the ALC through the remainder of the fall term, she was sexually harassed and physically threatened by T. R., who is another student at the ALC. On three occasions, J. B. complained of the harassment and threats, including actual touching, to Ms. Krucher, who did nothing about J. B.'s complaints. The first two complaints were early in the fall term and the last complaint was in January 1996. The day after her last complaint to Ms. Krucher had resulted in no action, J. B. complained directly to Respondent. After interviewing J. B., Respondent sent her back to class and summoned T. R. from his class. Terry Smith, a security guard, escorted T. R. to the office. Respondent told T. R. that he should not talk to or look at J. B. If he saw her walking down the hall, he should go in a different direction. Above all, T. R. was not to touch her anymore. T. R. denied any knowledge of who J. B. was. Respondent sent for J. B., who came to Respondent's office and stood in the doorway. When T. R. was told this is who was complaining about him, he jumped up, screaming to J. B., "What the hell are you doing telling people I did this?" He then lunged toward a visibly frightened J. B. Ms. Krucher pushed J. B. safely out of the doorway and escorted her back to the classroom. Respondent got to T. R. before he got to J. B. and pinned him against the wall. T. R. struggled, hitting Respondent while he tried to control T. R.'s arms. Mr. Smith assisted Respondent, who had T. R.'s upper body, by grabbing T. R.'s legs, and the two men wrestled T. R. to the floor. Ms. Krucher returned, and Respondent told her to call the school resource officer, so T. R. could be removed from the campus. In the meantime, Respondent and Mr. Smith tried to calm T. R. by talking quietly to him. Before the school resource officer arrived, T. R. calmed down and pleaded with Respondent not to send him to jail. T. R.'s girlfriend was pregnant, and he had criminal sex abuse charges pending. Respondent agreed to suspend T. R. for the rest of the day and not have him arrested. Respondent and Teachers Culligan Incident: Paragraph 41 At a faculty meeting early in the 1995-96 school year, Ms. Culligan addressed Respondent's decision to eliminate the timeout room. Ms. Culligan endorsed the previous policy where a teacher sent a student to the timeout room for a short period the first time, a longer period the second time, and the remainder of the day the third time on the same day. She said that she typically would not have to send a student back a second or third time. Respondent answered that that was not what the records showed. He implied that teachers had routinely sent students to the timeout room for long periods of time. He did not state that Ms. Culligan had resorted to the timeout room more than did the rest of the teachers, although she likely had. Respondent had considerable difficulty with Ms. Culligan. At the start of the 1995-96 school year, Ms. Culligan sent more students to the office for minor offenses than did other teachers. By memorandum dated September 21, 1995, Respondent directed Ms. Culligan to follow the interventions that "have been explained to you countless times." The memorandum reviews the intervention plan in detail and concludes: Failure to follow this directive violates the rights of the student in the academic setting when it has been clearly stated in writing, that this school will follow that particular policy. This is the third occasion that I've had the opportunity to address this particular policy with you and am therefore directing you to follow this policy to the letter. If I can be of assistance, please feel free to contact me. After receiving this memorandum and the assistance of Ms. Smith in improving her cultural sensitivity, Ms. Culligan reduced her office referrals to an acceptable level. But her claims of humiliation and embarrassment over Respondent's informative reply at the faculty meeting, as well as her testimony concerning other incidents, are largely the product of the early difficulties that Ms. Culligan experienced with Respondent's new, more demanding discipline plan. Nassiff Incident: Paragraph 41 During another faculty meeting, Respondent was discussing an assembly that was to take place in the next day or two. The assembly, which featured drug-detecting dogs from the Port Authority, would be attended by ALC students. This was to be the first assembly ever for ALC students. Respondent was discussing the logistical aspects of moving the students into and out of the assembly and explaining how the assembly was part of the academic rehabilitation of ALC students. Suddenly, Mr. Nassiff raised his hand and asked who would be responsible for watching his students. They were in physical education at the time of the assembly, and Mr. Nassiff thought that the physical-education teacher should continue to watch Mr. Nassiff's students during what was Mr. Nassiff's planning period. Respondent had told the teachers that they could leave school early that day to make up for their lost planning time. Upon hearing Mr. Nassiff's question, some teachers groaned audibly. Respondent replied by asking Mr. Nassiff, "You're an administrator-in-training. How would you respond to that question?" Mr. Nassiff answered Respondent's question by saying, "I'd give me my planning period." Respondent replied, "That's not an appropriate answer. If you want to be an administrator, you wouldn't ask a question like this. Let me see you after the meeting." After the meeting, Respondent explained to Mr. Nassiff the importance of teamwork. Mr. Nassiff conceded that he had said the wrong thing and knew it the moment he had said it. Respondent first gave Mr. Nassiff an opportunity to extricate himself gracefully from the awkward situation created by his question. When Mr. Nassiff persisted, Respondent answered him, directly but not in a hostile tone. Most teachers found nothing inappropriate in Respondent's handling of this situation. Mr. Nassiff and the few teachers who felt otherwise evidently preferred that Respondent handle privately an issue that Mr. Nassiff raised publicly. But Mr. Nassiff invited a public response, and Respondent's handling of the matter was entirely suitable. Announcement Incident: Paragraph 39 One day early in the 1995-96 school year, the students misbehaved badly. The next morning, during the morning announcements, Respondent stated that he expected students to act appropriately in an academic setting. He noted that too many students were coming down to his office and that they needed to do what teachers tell them to do. Respondent added words to the effect that teachers would continue to follow the intervention plan. The effect of such an announcement, nominally addressed to the teachers, was to notify the students that their teachers had no choice but to follow the intervention plan and, if the students objected to the plan, their problem was with Respondent, not with individual teachers. By this comment, Respondent was trying to take some of the pressure off the teachers for enforcing the new intervention plan, which, as noted above, imposed greater burdens on teachers than the previous policy with its excessive reliance on the timeout room and suspension. The meaning of Respondent's announcement does not lend itself to contrary interpretations. Two of the three witnesses who testified that the announcement demeaned the teachers testified about a number of incidents. The testimony of these witnesses--Ms. Culligan and Ms. Minton--must be doubted based in part on the fact that their claimed reaction to Respondent's announcement appears disingenuous. Holzborne Incidents: Paragraphs 36 and 37 Kathleen Holzborne is the lead communications teacher at the Academy. One school day, Ms. Holzborne saw Respondent opening classroom doors in the Academy looking for someone. This was innocuous. Respondent was likely looking for someone or checking on nearby classrooms after a disturbance. Another school day, Ms. Holzborne saw Respondent admitting drug dogs and their handlers into Academy classrooms while Mr. Wortham was elsewhere in the building. Respondent was doing this under the authority of Mr. Wiseman, who was also in the building. Another school day, Respondent and Ms. Holzborne were in the cafeteria while the Academy students were eating lunch. Respondent said she did not need to stay, adding, "Daughter, everything will be fine here." Respondent is from a family of ministers. He sometimes speaks of persons as sons and daughters, meaning they are sons and daughters of God. He used "daughter" in speaking to Ms. Holzborne in a personal, nonsexual manner not intended to intimidate or offend. Had she objected, he would have apologized and explained his innocent use of the word. However, Ms. Holzborne did not complain to Respondent or anyone else until, months later, she mentioned the comment during Petitioner's investigation. Testifying, Ms. Holzborne seemed much more upset over Respondent's alleged failure to return promptly a piece of a tripod, but Petitioner has not charged Respondent with this omission. Intimidation Incident(s): Paragraph 38 Respondent did not intimidate his teachers or staff. To the contrary, he was supportive of teachers and staff, although he demanded that they work hard and smart. At the time of Respondent's suspension, faculty morale was good. A small number of teachers were dissatisfied with Respondent, but not many. The greater part of the faculty got along with each other and Respondent. A reliable portrayal of Respondent's supportiveness comes from Lisa McKeever, an ALC teacher who displayed an unusual degree of independence for a witness in this controversial case. She testified to tell the truth, unaffected by any fear of retribution from Petitioner or Dr. Santini or from the community of supporters of Respondent. Answering a question about whether she supported the Charles Dailey Foundation, which was organized to help pay Respondent's legal fees, she testified that, if she had money to give away, she would first give it to her children and then to literary or musical organizations before she would give it to the Dailey Foundation or any political organization. On two occasions, students threatened Ms. McKeever while she was seven months pregnant. In one case, a boy pushed her up against a chalkboard. Respondent asked Ms. McKeever what she wanted him to do about it. Ms. McKeever did not want him suspended, so Respondent dealt with him, but did not suspend him. In another case, a girl approached her with a clenched fist, threatening Ms. McKeever by saying, "You stupid flat-assed white bitch. Get out of my fucking face." Ms. McKeever was frightened by this assault, and Respondent expelled the student, who that night was arrested after attacking family members with a knife. Respondent and Administrators, Law Enforcement Officers, Guardians, and School Board Policies A. Overenrollment: Paragraph 51 The overenrollment issue arose at the start of Respondent's tenure as ALC Principal. Dr. Santini arranged a meeting on June 20, 1995, among the three new principals at the New Directions Center. The purpose of the meeting was to divide responsibilities among the principals. Ominously, Dr. Santini testified that she had had lots of experience with Respondent not cooperating. It is not entirely clear what specific ALC enrollment policies were advocated by Dr. Santini and Respondent at the June 20 meeting, or even that either of them advocated a specific policy. Dr. Santini stated that the ALC was a short-term program. Respondent wanted the same flexibility that the ALC administrators had had in the past in deciding when to return students to their geographical schools. The ALC enrollment policy from the preceding school year had been the 45 good-day policy described above. In general, Dr. Santini wanted to limit enrollments due to safety considerations. Overcrowding at the ALC became a bigger problem once the new school year got underway due to the introduction of more students from regular schools, as a result of a new zero-tolerance policy in the regular schools, and increased referrals from the juvenile detention center. Respondent's argument for greater enrollment flexibility was based on behavioral and academic factors. Behaviorally, an ALC student might need more than 45 days before he is ready to return to his geographical school. Academically, an ALC student might have difficulty returning to his geographical school due to the differences in the calendars at the ALC and regular schools. The high schools are on a seven-period daily schedule, and the ALC is on an 18- day modular schedule where one class is taught for 18 days. A behaving, attending ALC student could only take two and one-half classes in 45 school days, so that, when returned to his geographical school, he would be behind his classmates in most of his classes. After the meeting, Dr. Santini spoke with Respondent privately and told him that his behavior during the meeting had bordered on the insubordinate. Respondent countered that Dr. Santini was discriminating against him on the basis of race. Respondent's continued implementation of the 45 good- day policy at the start of the 1995-96 school year did not violate any directive that Dr. Santini had given him. Their disagreement during the June 20 meeting was probably limited to a disagreement over general philosophy. Most likely, Dr. Santini had decided to see the effect on ALC enrollment levels of Respondent's implementation of the 45 good-day policy. On October 20, 1995, Dr. Santini conducted another meeting concerning ALC enrollments. This time she met with Respondent and Mr. Wiseman. She called the meeting after receiving a telephone call that a student had remained at the ALC since April 1995. She was also concerned with current ALC enrollment levels under Respondent's approach. During this meeting, Dr. Santini told Respondent that the ALC building was designed for a maximum of 270 students. She told him to cap enrollment at 250 students. Dr. Santini testified that she told Respondent that she approved of the 45 good-day policy. She also testified that Respondent was angry at the meeting. If Dr. Santini approved the 45 good-day policy at the October 20 meeting, the only reason why Respondent would have angered at the meeting would have been a disagreement over the application of the policy; after all, Respondent wanted the 45 good-day policy. Perhaps, Dr. Santini believed that she was approving the 45 good-day policy, but in fact she was not, as evidenced by their closing comments and her October 25 memorandum, described below. At the end of the October 20 meeting, Dr. Santini promised written guidelines and asked Respondent if he wanted any input. Dr. Santini testified that Respondent said that the only thing that he disagreed with was, if a student must be returned to his geographical school at the end of 45 days, ready or not, that those schools would be prepared to help him in the transition. Mr. Wiseman promised to adopt or modify the PASS program to help with this transition. The significance of Respondent's comment, as recounted by Dr. Santini, is as additional proof that Dr. Santini had not approved the continuation of the 45 good-day policy and Respondent was resigned to following her new enrollment policy. The comment tends to prove the elimination of the 45 good-day policy because, if the ALC were permitted to retain students until they were ready to return to their geographical school, there would be little need for the geographical school to help with the transition. The comment proves the obedience of Respondent because he had disagreed was more than the issue of the preparedness of the geographical school to help the former ALC student. Respondent had tried and failed to win Dr. Santini's approval for the 45 good-day policy, so that the ALC students returning to their geographical schools would not need any special assistance from the geographical schools in the transition. But this comment proves that he was giving up on the 45 good-day policy. Dr. Santini sent a memorandum dated October 25, 1996, to Respondent with copies to Petitioner, Mr. Wiseman, and all principals in the District. The memorandum largely memorialized what Dr. Santini had said at the meeting five days earlier. Dr. Santini testified that the only change between the October 25 memorandum and what she had said at the October 20 meeting was that she had eliminated the 45 good-day policy. She explained that she did not want Respondent to be the sole person to decide what good days were. However, the omission of the 45 good-day provision from the memorandum is strong proof that Dr. Santini never approved the 45 good-day policy at the October 20 meeting. There were less drastic means of eliminating Respondent's discretion in applying the 45 good-day policy, without eliminating the policy itself. Dr. Santini could have reserved such authority for these decisions to Mr. Wiseman, herself, the principal of the geographical school, or some combination of the above. The October 25 memorandum states in its entirety: The following plan is to be implemented immedi- ately as a result of our meeting on Friday, October 20, 1995. High school, middle school and ESE students will be returned to their home schools at the end of a quarter after approximately 45 days at the Alternative Learning Center (ALC). In most cases, those students entering the ALC during the first three weeks of a quarter would be eligible for return at the end of that quarter. Those students entering after the first three weeks of a quarter would remain at the ALC until the end of the following quarter. In rare cases a student may be returned to a different high school when recommended by the home school principal and agreed to by the receiving principal. All high school principals have agreed to alter their PASS program to accommodate an orderly reentry of students into the high schools. The ALC will not exceed 250 students. When full capacity is reached the student who has made the most progress will be returned to his/her home school when a new student arrives at the ALC. The above procedures would not prohibit a principal from requesting an earlier return or an extended stay at the ALC. The ALC will continue to function in its capacity as a special center serving the high schools, middle schools and special schools with an ongoing influx and reflux of students. It is understood that the school principals and the ALC principal will main- tain open and direct communication in a spirit of cooperation to best help students. Ultimately, the length of a student's stay at the ALC is dependent upon the nature of the original offense and the sound judgment of the principals involved. There are two possible interpretations of the October 25 memorandum. Either it is a consistent expression of an inflexible enrollment cap with the final sentence as a general surplusage to other, more detailed provisions to the contrary. Or, if the last sentence is to be given real effect, the memorandum is contradictory and meaningless. Paragraph 1 of the October 25 memorandum states clearly that the duration of a student's enrollment at the ALC is 45 days. As mentioned above, there is no requirement that these be good days. The word "approximately" does not restore any discretion to the ALC principal or anyone else; rather, like Paragraph 2, the word "approximately" allows for some minor flexibility in shortening or lengthening the 45-day enrollment based on the end of the academic quarter. More importantly, Paragraph 5 of the October 25 memorandum unconditionally limits the enrollment of the ALC to 250 students and supplies a simple procedure for the release of students when the enrollment exceeds 250 students. The student making the most progress when enrollment exceeds 250 students is returned to his geographical school. The returned student is not necessarily prepared for the transfer; he is only the most prepared among the ALC students. Paragraph 6 grants some discretion to the principal of the geographical school, not the ALC, to shorten or extend the stay of a student at the ALC. But the provision gives no guidance as to when stays should be lengthened. Nothing in this provision conflicts with the preceding provisions of the October 25 memorandum. The last sentence of the flush language at the end of the October 25 memorandum seems to ignore the preceding, more- detailed provisions of the memorandum. The last sentence abruptly introduces some discretion to the ALC and geographical school principals as to the length of a student's stay at the ALC. Respondent could not afford to read his supervisor's memorandum as contradictory and meaningless. His reading of the memorandum was guided by what Dr. Santini had told him at the October 20 meeting, which was that the 45 good- day policy was no longer in effect. When enrollment reached 250 students, Respondent had to return the students who had made the most progress. As promised, Mr. Wiseman sent a memorandum dated November 1, 1995, to the eight high school principals stating: Please send to me immediately, above your signature, a statement that you will provide the opportunity for returning students from the ALC to make up their work, and not be denied the chance to pass their classes. Return your memo to me by Wednesday, November 8, 1995. The principals did so. Shortly after receiving the October 25 memorandum, in compliance with her directive, Respondent returned 75-80 students to their geographical schools. Included in this number was A.B., whom Respondent returned to Mariner High School. Respondent had serious reservations as to A. B.'s readiness to return to a less-structured school setting. Even the student shared these misgivings. When he learned he was to be returned to Mariner High School, A. B. told Respondent that he was worried that he was not ready to return to a regular school. He had been apprehended with drugs or drug paraphernalia twice previously and was undergoing counseling. Three weeks after he was returned to Mariner High School, A. B. was apprehended with marijuana. On December 13, 1995, a Board-appointed hearing officer conducted A. B.'s formal expulsion hearing. Witnesses at the hearing, including Respondent, were sworn to tell the truth and subject to cross examination. Petitioner was represented by counsel, and A.B. was represented by his father, who has been a law enforcement officer for 21 years and is currently employed with the Cape Coral Police Department. Petitioner charged that A. B. had been in possession of marijuana and drug paraphernalia on November 28, 1995, and was a repeat offender. Petitioner sought to expel A. B. for the remainder of the 1995-96 school year and the following year-- evidently, the maximum penalty allowed by law. A. B. had attended the ALC on at least two occasions. His more recent ALC enrollment was from April 17, 1995, through November 6, 1995. In his opening statement at the expulsion hearing, A.B.'s father admitted that A. B. had been caught possessing marijuana and stated: But the point of the issue too is that he was sent back to Mariner. He was in the ALC. He was flourishing in ALC for the first time. Whatever Mr. Dailey sparked in him was the first time since he's ever been in school. He was bringing books home and everything else, which is not heard of from ALC. When he was alerted to come back to Mariner, he went to Mr. Dailey and told him he wasn't mentally or physically ready to go back. Because the other problem that if he's offered a joint, he can't say no. And Mr. Dailey agreed and that's when that fell apart less than four weeks later. The hearing officer asked A. B.'s father if he wanted A. B. to return to the ALC. The father responded by saying, "Yes, sir. I never wanted him to leave. . . . And the result of this too which I wish people would take into consideration, the night that this happened, because of this, my wife tried to commit suicide." A. B.'s father continued in his opening statement: In ALC Dailey sparked four point something and he was studying. He was getting high grades. His grade point average went up. He didn't want to leave. He did not have the problem. Four weeks--it wasn't even four weeks after he was back that this happened. .... I'm not totally blaming [Mariner High School]. A[.] is at fault with that too. And that's what we are addressing through the counseling. But to put him out in the street or expel him I don't think is the answer either. Especially since for the first time in his life he showed an interest in school. Petitioner's second witness in the expulsion hearing was an assistant principal at Mariner High School. He testified in response to a question directed toward the propriety of the handling of A. B. at Mariner High School: Our position there is that Mr. Dailey is a competent expert, that he handles the people and when he recommends for us to come--for someone to come back, we take that individual. . . . Answering the question whether he would have handled A.B. differently if he had known that he had not successfully completed the ALC program, the assistant principal testified: . . . You know, we have to accord him his rights like all the kids who complete the program at the Alternative Learning Center. Once he's paid his debt and satisfied them that he's capable, then they send him to us. I don't know of any students they send to us that they don't feel like has made the improvement that the school was set up to start with. Do you understand what I'm saying? So when they come to us, their staffing to exit over there is telling us that they feel like they had--now the kid has shown improvement and he's now corrected what it is and he's ready to return. Petitioner's last witness at the expulsion hearing, John Hennebery, who is the District Director of Student Services, testified that the ALC Principal determines when the student is to be returned to his geographical school. A. B.'s father called Respondent as his sole witness. In response to a question as to A. B.'s progress at the ALC, Respondent testified: . . . I noticed, number one, he tends to be completely honest and tells the truth. That's the experience I have had with him. He is begin- ning to come around in terms of when he feels someone is making up evidence or getting to that point, he would seek out--attempt to seek out in terms of trying to find some assistance rather than jumping in first. But that again is a kind of structured environment that we have at the Alternative Learning School. Q: In your professional opinion, do you believe that [A.] at this point in time still needs that structure of school? A: I most certainly do. Q: At the time when he was requested from the School Board to go back to Mariner, did [A.] approach you in reference to this? A: Yes, he did. Q: And in what aspect did he? A: The usual policy of the district was that on a first offense there was a 45 good day policy. That means that the student has the responsi- bility of spending 45 good days there, good days, which are defined as attendance, punctu- ality, academic and discipline. And on the second offense it's a ninety day offense. Q: Uh-huh. A: Then this year the rules are changed. In the middle of the semester. I was given a directive from the Assistant Superintendent, along with other Principals were informed of it; that the students were called by numbers. At the Alternative Learning School were addi- tional programs of juvenile justice, programs dealing with the number of felons that we were having come into school; that our numbers were getting too large and we had to--I had to send students back. [A.] was one of the students that had been there a period of time and that based on the period of--on the time that he had spent there, that we have to send him back to Mariner. [A.] had some concern about that and spoke with me in great detail about going back and being under those pressures. Now my conversation with [A.] was that because if he had done well at the Alternative Learning School, that my expectations with [A.] would be that he would go over there and do well and make good decisions at Mariner High School. So that in terms of that's the type of conversa- tion that we had and that's where it led. Now did [A.] complete his stay? No, he did not. And he is not one that I would have automatically sent back to Mariner because I was not yet convinced of his ability to deal with the pressures that he was going to have to face at Mariner High School. * * * Q: But your general concerns that the peer pressure is basically--or the pressures in the school itself that he couldn't handle was also [A.]'s concerns too when he came to speak to you about going back? A: Yes, those were [A.]'s concerns but those would be anyone's concerns as relates to going back to the regular school once you have been at the Alternative for a long period of time. You get the anxiety of going back and wanting to do well. So it's not out of the ordinary for students, I might say, to be excited. I have students right now that actually do something wrong so they won't have to go back. So [A.]'s concern or his emotions that he expressed were not unordinary. I felt at that time that because I was given a directive, that it was my responsibility as a Principal to assist him in moving in that direction and I had all the confi- dence in the world in the Mariner staff that they would assist him in moving in that direction. There is an issue that I must be very honest is that the decisions that [A.] makes is [sic] [A.]'s decisions and once in fact--and this is what we teach them at the Alternative School; that once in fact you see that kind of situation present, then you must not go to the situation. You must remove yourself from the situation. And, you know, I'm one that's trying to be very fair and equitable in this hearing and in telling you that this is a situation that, yes, he should have known not to go near that, should have backed off from it. Q: Did he? A: No, sir, he didn't. Was I ready to release him? No, I wasn't. I'd like to concur with Mr. McNerney. I'd like to see [A.] back at the Alternative Learning School for ninety days with the approval of the-- with some kind of documentation showing that he has completed his drug testing and after that, then backing up Mr. McNerney's decision in attendance at the school. And I'm being very honest. The preceding excerpts from the transcript represent all of Respondent's material testimony. Petitioner conducted limited cross examination, devoted to an exposition of the District's drug policy. A. B.'s father introduced into evidence a letter dated December 12, 1995, from Licensed Mental Health Counselor Beverly Barbato, Ph.D., stating that it is in A. B.'s best interest to return to the structure of the ALC. On December 18, 1995--working without a transcript in the interest of time--the hearing officer summarized the testimony of the witnesses, commending each of them for some aspect of their participation in the hearing. As to Respondent, the hearing officer stated: "Mr. Dailey should certainly be commended for his honesty and his ability to assess the situation in a very diplomatic manner." Acknowledging that Petitioner sought expulsion for the maximum time permitted by law, the hearing officer stated that he "sense[d] that both Mr. Hennebery and Mr. McNerney felt that reinstatement should occur in the 1996-1997 school year or upon [A.] completing a successful drug rehabilitation program pursuant to Florida Statutes." Never mentioning old or new enrollment policies at the ALC in his discussion, the hearing officer accepted the recommendations of Respondent, A. B.'s father, the treating health care professional, and A. B. that A. B. be placed on probation for the remainder of the 1995-96 school year at the ALC, subject to additional conditions. In no way did the hearing officer's recommendation rely on Respondent's brief testimony about the transfer of A. B. under the new ALC enrollment policy. The court reporter finished the transcript on December 26, 1995. In Exceptions filed January 8, 1996, Petitioner requested that A. B. be expelled at least for the remainder of the 1995-96 school year. The record does not indicate what action the School Board took on the hearing officer's recommendation. The expulsion transcript reveals that the Assistant Principal at Mariner High School construed the ALC enrollment policy to ensure that students would not be returned to their geographical schools until they were ready to return. The Director of Student Services shared this misinterpretation, at least to the extent of thinking that the transfer decision was made by the ALC principal. The expulsion transcript reveals that Respondent told the truth that B. had come to Respondent and said he was afraid he was not ready to return. Respondent told the truth that he too shared these concerns. And Respondent told the truth that the current policy was that he had no choice but to return unprepared students when ALC enrollments reached the cap. In one respect, Respondent's testimony may have reflected a misunderstanding of a portion of Dr. Santini's policy. He testified that the new policy meant that "the students were called by numbers." Numbers triggered the necessity to return some students. But the new policy did not require that students be returned on a first in, first out basis. Rather, the students to be returned were to be those most prepared to be returned. Respondent's testimony seems to indicate that he interpreted the new policy as providing that he return students on a first in, first out basis. He implied that he selected for transfer the students who had been enrolled the longest at the ALC. In his next sentence, Respondent mentioned "numbers" in connection with the enrollment at the ALC getting too high as trigger for the need to transfer some ALC students. This suggests that his reference to "numbers" was not to the determination of who to return to their geographical schools. But in his next sentence, Respondent implied that the decision to return A. B. was based strictly on how long he had been at the ALC. However, two sentences later, Respondent recounted how A. B. had done well at the ALC, implying that he had at least made some progress, although without any mention of his progress relative to the progress of the other ALC students. Close analysis of Respondent's testimony does not reveal the basis on which he selected the students to be transferred. However, even if Respondent returned A. B. on a first in, first out basis, this action, although not consistent with the better reading of the October 25 memorandum, would have been consistent with Paragraphs 1 and 2, which imply that the sole criterion of enrollment duration is the length of the student's enrollment. Although close scrutiny of the October 25 memorandum permits a reconciliation of Paragraphs 1, 2, and 5--though not also the last sentence of the flush language-- Respondent cannot be expected to perform such textual analysis to discern meaning from such careless wording. In any event, Respondent's testimony at the expulsion hearing did not dwell on the inflexible enrollment cap ordered by Dr. Santini. He mentioned it briefly, then proceeded to describe, almost as briefly, his application of the policy in A.B.'s case. He cast his testimony in a light favorable to Petitioner by explaining that many ALC students are worried about their ability to survive in a regular school, A. B. had made some progress at the ALC, Respondent had encouraged A. B. to behave at Mariner High School, and A. B. must bear final responsibility for his poor choices. After receiving Dr. Santini's memorandum, Respondent was doing the best he could to implement the new enrollment policy. Probably unknown to Dr. Santini at the time, Respondent called Mr. Wiseman around Christmas vacation and asked if he should transfer 112 students then or wait until the end of the semester in January. Mr. Wiseman told Respondent to retain the students until the semester break. Dr. Santini never tried to clarify her confusing memorandum to Respondent or assist him in its implementation. In response to questioning during a School Board meeting from a School Board member concerning the conflict between Paragraphs 5 and 6 of the October 25 memorandum, Dr. Santini issued a memorandum of clarification dated January 5, 199[6.] The January 5 memorandum was issued to all middle- and high-school principals. The first four paragraphs are identical to the October 25 memorandum, except for the addition of a sentence to the fourth paragraph mentioning some new software to facilitate the transition of students back to their geographical schools. The new fifth paragraph states: The ALC will not exceed 250 students unless there are special circumstances with individual students that may warrant extended time. The principal of the geo-school will discuss these circumstances with the ALC principal. When extended time is recommended, the ALC principal will then compile a short report to the Secondary Operations Director that includes the following: the time already spent at ALC by that student, the original offense committed by that student, and any other justification that may warrant extended time (i.e., parent request). The Secondary Operations Director will consider all above factors and then give approval or disapproval on any requested extended time. Dr. Santini also revised the last sentence of the October 25 memorandum to reflect that the length of a student's assignment to the ALC is dependent on the nature of the original offense and the sound judgment of the principals and-- now--Director of Secondary Operations. The overenrollment issue did not end here. Dr. Santini conducted a meeting with Respondent and Mr. Wiseman on January 9, 1996, but this is addressed below in connection with another issue. However, one more fact has a bearing on the issue of overenrollment itself. Respondent never violated the ALC enrollment policy as Dr. Santini applied it to Respondent's immediate successors, Ms. Smith and Mr. Hagy. During the 77 days of Respondent's tenure, the average student enrollment was 265 students. During the 73 days of his successors' tenure, the average student enrollment was 253 students. After adjusting for actual attendance, there were 184 students present on average under Respondent's tenure and 189 students present on average under his successors' tenure. Improper Voluntary Enrollment and ESE Procedures: Paragraph 52 At the end of July 1995, Respondent called Mr. Hennebery and asked if he could voluntarily enroll two students. Mr. Hennebery explained that ALC administrators had made voluntary enrollments before deciding to discontinue the practice one or two school years ago. Since that time, Dr. Santini or Mr. Wiseman had approved all voluntary enrollments. Mr. Hennebery was not Respondent's direct or indirect supervisor. Mr. Hennebery lacked the authority to accept voluntary enrollments, or to make policy on this issue. At no time did Respondent's direct supervisors, Dr. Santini or Mr. Wiseman, instruct Respondent as to voluntary enrollments. The issue of voluntary enrollments is not, in any event, of major importance. Of the hundreds of students enrolled at the ALC during Respondent's tenure, not more than 18 of them were voluntarily enrolled. Most if not all of the students whom Respondent voluntarily enrolled were exceptional cases who were ineligible to return to their geographical schools or enter the Academy. During Respondent's tenure, six ESE students were transferred from the ALC without individual educational plans. Respondent relied on Mr. Vitale, who was the ESE department head, and Ms. Smith to handle ESE paperwork, as Respondent candidly admitted at the hearing that he was unknowledgeable about ESE procedures. Five of the six students left the ALC and entered Adult Education. These were obviously older students for whom an individual educational plan is of less importance than it would be for students with many more years in the educational system. Ultimate responsibility for ensuring compliance with ESE procedures at the ALC rests with Respondent. However, the circumstances suggest only an innocent mistake on Respondent's part, not incompetency, misconduct in office, or gross insubordination. Student Visits to Hi Tech Center Central: Paragraph 55 One day in late November 1995, Ms. Saldana had arranged for two students to visit the District's High Tech Center Central, which is a vocational school. When they returned, they told her that, at the end of the day, the counselor at High Tech Center Central had refused to talk to them because they were ALC students. Ms. Saldana called High Tech Center Central Director Ron Pentiuk, who confirmed that he would not allow ALC students to enroll directly from the ALC or even to visit his campus while still enrolled at the ALC. He said that this had been his agreement with Ms. Folaros. Ms. Saldana explained that, in the case of three to five students, they could not first return to their geographical schools because they were graduating early. If they could not enroll in High Tech Center Central directly from the ALC, they could not attend the vocational school. Mr. Pentiuk refused to consider the request, insisting the students still had to spend six to nine weeks at their geographical schools before they could enroll at the vocational school. He said someone in the District office told him not to accept any more ALC students. By letter to Respondent dated December 19, 1995, with copies to Dr. Santini, Mr. Wiseman, Mr. Wortham, and others, Mr. Pentiuk restated his position: "no ALC students will have direct access to High Tech Central programs. . . . [A]ll visitations shall come from the student[']s geo school and not ALC directly." The letter cites as authority for this policy a meeting that took place at the start of the 1994-95 school year between representatives of High Tech Center Central and the New Directions Center. The implicit reason for this policy is that Mr. Pentiuk wanted someplace to send a student if he failed to perform at High Tech Center Central. By memorandum dated January 10, 1996, to Mr. Pentiuk, Respondent memorialized a discussion at a principals' meeting earlier that day. The agreement appears to allow ALC students who are ready to be returned to their geographical schools, but have not yet been returned, to visit the High Tech Center Central. The record reveals only that Respondent tried to send ALC students to the High Tech Center Central for visits. When they were treated rudely by Center personnel, Respondent and Ms. Saldana discovered an unreasonable policy that emanated not from the District office, but from an understanding reached by Mr. Pentiuk and Respondent's predecessor. This agreement had little logic to commend it. It delayed and, in some cases, denied ALC students access to important vocational training. Mr. Pentiuk explained that he could not deal directly with ALC students because he needed to have a place to which to return them if they misbehaved. However, his concern does not address the aspect of the policy prohibiting even campus visits by ALC students. And his concern fails even to address the remainder of the policy, as the record does not explain why Mr. Pentiuk could not expel students back to the ALC as easily as to their geographical schools. In any event, Respondent and Ms. Saldana rectified the situation, achieving a much-improved policy than the one that preceded Respondent's involvement. Refusal to Reenroll J. M.: Paragraph 50 In September 1995, Respondent refused to reenroll J.M. when his grandmother brought him back to school after an unexcused absence. J. M.'s father had called Respondent and complained that his mother was interfering with J. M., her grandson. The boy was skipping school with the father's brother, who was also of school age. J.M. asked Respondent not to let the grandmother return the boy to school or supply a legal excuse for his absence. When J. M.'s grandmother brought the boy back to school one day, Respondent did as the father had directed him. Respondent told the grandmother, "Ma'am, you can't bring your child back. I got a call from your son, and he is the legal guardian. Call your son and get it straight with him. I shouldn't even be talking to you about J. M." E. Arrest of W. S.: Paragraph 49 On November 1, 1995, W. S. tried to leave the cafeteria without permission. She has a history of violent outbursts. Riley Ware, a teacher, tried to stop her. W. S. asked him who he thought he was with that crooked gold tooth. Mr. Ware responded by telling her to sit her "big-lipped" self down. (Respondent later reprimanded Mr. Ware for this comment.) W. S. swore at Mr. Ware, calling him, among other things, a "black bitch." Teacher Christine Peete then intervened. She said, "Young lady, you've been very inappropriate." Gently placing her arm on W. S.'s shoulder, Ms. Peete added, "Come with me until you cool off." W. S. angrily responded by slinging Ms. Peete's arm off of her shoulder. She shouted, "Get your hands off me, bitch. I'll dip on [beat up] all of you. Ms. Peete had to return to her class, so she asked Ms. Krucher to escort W. S. to the office. Ms. Peete found Respondent in the middle-school area and told him that he needed to deal with W. S. Respondent returned to his office to find W. S. leaving. He greeted her by saying, "Well, daughter, Ms. Peete tells me that you called her a bitch." S. said she called Mr. Ware a bitch, but she did not call "that bitch" (Ms. Peete) a bitch. Respondent told her she was suspended for five days, and W. S. replied, "I don't give a fuck about five days." Respondent raised the suspension to seven days, and W. S. lunged toward Respondent and Ms. Peete, who was standing next to him. W. S.'s initial lunge threw Respondent, herself, and a computer to the floor. Respondent wrestled his way to the top, and W. S. demanded that he get his "big belly" off her. She scratched him or snapped his suspenders, causing his chin to bleed. She grabbed his tie and choked him. She tried to bite and kick him. Respondent ordered a nearby staffperson to call the police. Officer Garrett Kusienski of the Fort Myers Police Department responded to the call and arrived at the school in a three or four minutes. When he arrived at the ALC office, Respondent and W. S. had just gotten off the floor, and Respondent and several male staffmembers were escorting her into the office. Respondent approached Officer Kusienski and asked him to arrest W. S. Officer Kusienski asked why, and Respondent directed him to handcuff and remove her. Officer Kusienski refused to do so until Respondent explained why. Officer Kusienski's police report, which is credited, states Respondent answered that, if Officer Kusienski were not going to do his job, "I needed to get off his campus." Officer Kusienski asked again what happened, and Respondent "stated that he would give all the details to Chief Hart when he was contacted, to get the hell off his campus if I wasn't going to arrest anyone." Officer Kusienski left the building, but returned a few minutes later, spoke with W. S. and possibly others, and took her into custody. The police report notes that another officer, who had arrived on the scene as backup, took statements from witnesses. At the hearing, Officer Kusienski testified that Respondent said, "If I'm not going to do my fucking job to get the fuck off this campus." Officer Kusienski did not explain at the hearing why he deleted one "fuck" entirely and replaced another with "hell" in his police report. It is unlikely that Officer Kusienski was graciously sparing Respondent any embarrassment in the report because he also noted that Respondent became "very disorderly toward me." The only other evidence that Respondent said "fuck" is Ms. Krucher, who testified that Respondent said it to Officer Kusienski once, not twice as Officer Kusienski testified. However, her testimony is contradicted by numerous other witnesses, who testified that she was not there and they did not hear Respondent say "fuck" to the officer or otherwise during the incident. Ms. Krucher's testimony has not generally been credited on grounds, among others, that she harbored considerable ill-will toward Respondent. The testimony of Officer Kusienski is countered by the testimony of Officer Jackson, also of the Fort Myers Police Department. Officer Jackson testified that Respondent did not use foul language toward Officer Kusienski. There is no preponderance of the evidence as to what Respondent said to Officer Kusienski. Respondent Late to Work: Paragraph 54 On November 16, 1995, the parent of a student at Cape Coral High School called Respondent and asked him to attend a meeting for the purpose of determining whether to transfer the parent's child to the ALC. The parent did not want the child transferred to the ALC and asked for Respondent's help at the meeting. Seeing a chance to help control the ALC enrollment, Respondent agreed to attend the meeting, which was scheduled for 7:00 a.m., and try to help the student remain at his geographical school. Respondent's intent was to speak first and then drive back to the ALC, which was about 20-30 minutes away at that time of day. Respondent reasonably expected that he would arrive at the ALC between 7:30 a.m. and 7:45 a.m. Respondent typically arrived at school at 7:30 a.m. and took cafeteria duty until school starts at 8:00 a.m. The evening of November 16, Respondent called Mr. Ware and told him to cover the cafeteria the following morning in case Respondent was late. Ms. Smith was on personal leave on November 17. However, Respondent and LAMP principal McCollum had an agreement that, if one of them was absent from the campus, the other would serve as acting administrator to be called upon by teachers or staff as needed. Their agreement--which was a necessity for Ms. McCollum because she lacked an assistant principal--did not require that either give the other advance notice of his absence. Unfortunately, Respondent did not get to speak first at the meeting, which ran longer than Respondent had expected because the student had been charged with drug possession, not merely disrespect to a teacher, as Respondent had been told. From the meeting at Cape Coral High School, Respondent called someone--probably Mr. Ware--and told him that he would be later than he had anticipated the prior night. Respondent returned to the ALC between 8:30 a.m. and 8:45 a.m. When Respondent did not appear at school by 8:00 a.m., Ms. Krucher told Mr. Wortham that Respondent had left the ALC without an administrator. Mr. Wortham called Dr. Santini and told her. The same afternoon, Dr. Santini or her designee called Respondent and asked him where he had been that morning. Dr. Santini and Mr. Wiseman met with Respondent on November 20 to discuss Respondent's tardiness on November 17. This meeting is described in the following section. By memorandum to Respondent dated November 28, 1995, with copies to Petitioner and Mr. Wiseman, but not to Respondent's personnel file, Dr. Santini concluded as to the incident: As per our conversation of November 20, 1995, I am reminding you that I consider the fact that you were not in school on November 17, 1995 until 8:45 A.M. with no assistant present, a serious offense. The students at ALC need constant monitoring and supervision and to have the school unstaffed by any administrator, even for forty minutes, could lead to a catastrophe. I do not expect this to happen again. By letter dated December 8, 1995, to Dr. Santini, with copies to Petitioner and Mr. Wiseman, Respondent acknowledged receipt of her November 28 "letter relating to your concerns of me not being present in my building without an assistant." The letter explains that, once at the Cape Coral High School meeting, Respondent learned that the student had not only threatened a teacher, but had also used drugs. The letter states that Respondent had previously covered for Mr. Wortham and Ms. McCollum. Respondent's letter concludes: This is not to say that I don't concur with you. I most certainly agree with you whole heartedly that not only in ALC but all schools, we must have an administrator on duty. An administrator was on duty, as I had informed you verbally. Mrs. McCollum and I had total agreement relating to coverage without any problems. Your letter gives the perception that I was purposely avoiding my responsibility and was irresponsible in fulfilling my duty as a principal. I would like the record to show that I was fulfilling my duty as an educator, as a principal and as a community leader. Through my efforts, I was able to at least save the life of a young man that we could have possibly lost to drugs. This is one I don't have to look over and he not look back. Thank you for your concern and I accept your letter of concern and would vow that I will continue to work with you and to make the ALC the best learning environment that I can. Dr. Santini's November 28 letter is not a letter of reprimand, nor did she intend for a copy of the letter to be included in Respondent's personnel file. Her intent is inferred from the absence of the letter from Respondent's personnel file in mid-February, the omission from the letter of any express notation of copies to Respondent's personnel file (as contrasted to the January 2 letter described below), and the failure of Dr. Santini to respond to Respondent's subsequent characterization of the letter in his letter of December 8. Petitioner failed to prove that Respondent violated any policy of the District in effect on November 17. The record reveals no prohibition against having another administrator, such as Ms. McCollum, cover for Respondent for a short time, even in the absence of advance notice. November 20, 1995, Meeting: Paragraph 42 Three days after Respondent was late to work due to the meeting at Cape Coral High School, Dr. Santini and Mr. Wiseman visited Respondent to discuss the incident, as well as charges of heavy-handed dealing with students, yelling at teachers, and leaving campus early. Dr. Santini and Mr. Wiseman dismissed as unfounded all charges except for Respondent's tardiness on November 17. Around this time, Ms. Krucher, who had been talking to Mr. Wortham daily, began contacting Dr. Santini and possibly Petitioner, whom Dr. Santini testified that she had suggested Ms. Krucher call. The purpose of these calls was to supply, on a confidential basis, unfavorable information about Respondent. If the information resembled her testimony, nearly all of it was unreliable. One incident illustrates the lengths to which unidentified persons would go to fabricate evidence unfavorable to Respondent. By two-page, handwritten letter dated February 17, 1996, from Ms. Pepin to Ms. Minton, Ms. Pepin objected to a statement attributed to Ms. Minton in the newspaper to the effect that she spoke for all of the ALC staff when she criticized Respondent. In her letter, which is entirely supportive of Respondent, Ms. Pepin admitted that, last June, she had not much liked Respondent entering her classroom and giving his "new sheriff in town" speech. But the letter continues to state that she now understands the effectiveness of Respondent's style. Someone--not in the office of Petitioner's counsel-- fraudulently altered Ms. Pepin's letter and sent it to Petitioner's counsel. By careful folding, whiting out, and photocopying, this person reduced the two-page letter to five and one-half lines and moved Ms. Pepin's signature beneath these lines, so as to make the letter look like a short note objecting to the "new sheriff" speech. This person then passed the counterfeit note as a gross distortion of Ms. Pepin's views-- literally out of context. It is highly unlikely that such fraud would be perpetrated by someone in the District office. The record does not reveal who had access to the letter after it was received by Ms. Minton. But the incident reveals indisputably the unreliability of at least some of the information that Dr. Santini and Petitioner received about Respondent. In any event, toward the end of the November 20 meeting, Respondent demanded that Dr. Santini tell him who had made the allegations against him. The request was not unreasonable given the inaccuracy of most of the charges. Dr. Santini refused to divulge the name or names of these persons. She explained reasonably that, if she were going to do something about the charges, she would tell him, but she was not going to do anything about them. Petitioner failed to prove that Respondent was rude in the November 20 meeting. Dr. Santini's November 28 memorandum makes no mention of any rudeness. Petitioner's counsel did not inquire of Mr. Wiseman as to Respondent's behavior at the November 20 meeting. Dr. Santini's testimony was not detailed in its description of Respondent's behavior at the November 20 meeting. On direct, she testified only that Respondent exhibited an "insubordinate attitude," and "we couldn't talk to him for his continuing to talk to us." Dr. Santini did not use the word "shout" or "yell" to describe Respondent's manner of speaking. On cross, Dr. Santini added only that Respondent was "insubordinate, rude, and unreceptive." Gate Incident: Paragraph 43 Immediately after school on December 12, 1995, a boy hit a girl near the front gate of the New Directions campus. Respondent, Mr. Ware, Mr. Gilmore, Mr. Smith, Ms. Krucher, Mr. Nassiff, Mr. Wortham, and other adults immediately went to the scene. At first, the two students refused to tell Respondent what had happened. A group of boys outside of the gate had seen the altercation. Respondent motioned them to enter the school grounds, but, before he could talk to them, Mr. Nassiff told Respondent that he had seen the altercation. Not needing to speak to the group of boys, Respondent motioned them to go back. However, two or three of them were already inside the gate. A security guard was in the process of locking the two front gates, so Respondent told Mr. Ware and Mr. Smith to escort the two or three boys off campus through the back gate, which was closer to their homes. Unknown to Respondent, the remaining boys from the group had just told Mr. Wortham that they were going to beat up the next student whom they saw. Respondent, the two students involved in the altercation, and other staff, except for Mr. Ware and Mr. Smith, walked toward the ALC where Respondent could deal with the two students. Respondent saw Mr. Wortham signalling to Ms. Krucher, and Respondent asked her what he wanted. She replied that he wanted her to close the back gate. Respondent told her not to close the back gate because he had just sent Mr. Ware and Mr. Smith with some students to let them out the back gate. He reminded her that he, not Mr. Wortham, was her boss. At the time, Respondent was unaware that some Academy students were preparing Christmas decorations inside the back gate, which typically remained open before and after school for deliveries. Respondent was also unaware that Mr. Ware and Mr. Smith had not gone to the back gate because they had been able to get the students through one of the front gates before it had been locked. After Respondent returned to the ALC building, the group of students walked around the side the school to the back gate, where one or more of them beat up an Academy student so badly that he required hospitalization. As soon as Respondent learned of the incident in the back, Respondent called Mr. Wortham, who said he was angry and had some concerns. Respondent invited him to discuss them, but he declined, saying he would instead call Dr. Santini. Respondent suggested that he take his concerns directly to Petitioner in that event. Respondent then found out from Mr. Nassiff and Ms. Krucher what had happened. Respondent asked Mr. Nassiff to explain to Mr. Wortham that Respondent had not known that there were students in the back inside the gate and that Respondent had sent two teachers back there to escort students out of the campus. Shortly after that, Respondent went to the Academy building to speak to Mr. Wortham. Respondent explained what had happened from his perspective, and Mr. Wortham acknowledged that he had later found that out, but, by that time, he had already called Dr. Santini. Petitioner did not call Mr. Wortham to testify about the gate incident, even though Petitioner claims it was his order that Respondent countermanded. Under the circumstances reasonably known to him at the time, Respondent behaved responsibly throughout the gate incident. He did not know he lacked crucial information when he told Ms. Krucher not to go to the back gate. But he reasonably assumed that he had more information than did Mr. Wortham. He knew that he had already sent two men to the back. Even had he known that the boys wanted to beat someone up and that an Academy student was in the back, Respondent would reasonably have relied on Mr. Ware and Mr. Smith to prevent the attack. When Respondent told Ms. Krucher that he, not Mr. Wortham, was her boss, he was merely emphasizing his direction that she not close the back gate. He was not stating the cause for the direction. The cause was that he had sent two men to the back gate. Respondent's comment about who was Ms. Krucher's boss was thus not an act of insubordination or lack of cooperation. I. Respondent's Police Interview About Gate Incident: Paragraph 48 Mr. Nassiff witnessed the police interview of Respondent concerning the gate incident. In the interview, Respondent did not state that he countermanded Mr. Wortham's order to Ms. Krucher to go lock the back gate. Respondent did not withhold material information from the police, who were investigating the beating of the Academy student, not Respondent. The direction that Respondent gave Ms. Krucher was entirely appropriate under the circumstances as reasonably understood by Respondent at the time that he told her not to close the back gate. There was no reason for Respondent to mention this minor point to the police. J. January 9, 1996, Meeting: Paragraph 44 Three days after the gate incident, Dr. Santini asked Respondent to come to her office that day. He said that he was helping students deliver Christmas food baskets to the needy and could not, so they set up a 7:00 a.m. appointment for the following Monday, December 18. When Respondent arrived at the meeting, expecting it to be between him and Dr. Santini, he found Mr. Wiseman and Mr. Wortham, who had prepared a written statement. Dr. Santini said she wanted to hear both sides of the gate incident. Respondent objected that the meeting was unfair because he had not had the chance to prepare a statement. Dr. Santini replied that she had not asked Mr. Wortham to prepare a statement, and Respondent said that at least he had known what the meeting was about. Mr. Wortham and Respondent each stated what happened. Mr. Wiseman asked Mr. Wortham if he had disclosed to Respondent the threat by the group of boys in the front, and Mr. Wortham admitted that he had not. Dr. Santini said that she would speak to Ms. Krucher to obtain a statement, but refused Respondent's request that she also speak to Mr. Ware and Mr. Smith. Respondent was worried that he was being set up and informed Dr. Santini that he would be requesting a meeting with Petitioner to complain about the discriminatory treatment that he was receiving. Respondent contacted Petitioner's office to set up a meeting. Petitioner contacted Respondent during Christmas break, and, at her request, the two of them met for two hours on December 28 at a local restaurant. They discussed the ALC enrollment policy, Respondent's testimony at the expulsion hearing, Respondent's claims of harassment by Dr. Santini, Dr. Santini's practice of invariably bringing Mr. Wiseman with her on visits with Respondent, Respondent's good relationship with Mr. Wiseman whenever he was separated from Dr. Santini, and the gate incident. Petitioner told Respondent that he needed to return to school after Christmas break and work more closely with his supervisors, as well as Ms. McCollum and Mr. Wortham. Petitioner promised to set up a meeting among her, Respondent, and Dr. Santini. This meeting was later scheduled for January 9, 1996, at 3:00 p.m. By letter to Respondent dated January 2, 1996, with copies to Petitioner, Mr. Wiseman, and Respondent's personnel file, Dr. Santini stated that she had completed her investigation into the gate incident and had spoken with Respondent, Mr. Wortham, and Ms. Krucher following the meeting of December Dr. Santini concluded: the key issue is the fact that after Mr. Wortham asked your security guard, Lisa Krucher, to run to the back of the school and lock the gate because he felt the boys who were threatening to harm someone would come in through the back gate, you instructed Lisa Krucher not to lock the gate because she worked for you and not Mr. Wortham. I consider this action on your part a poor judgment call and a lack of cooperation with other adminis- trators on campus. * * * I am directing you from this point on, to work together with Mr. Wortham for the benefit of the children in the school. The attitude that employees work for one principal and not another is an attitude that can cause disruption and, as we have seen with regard to this incident, harm to a student. Dr. Santini's letter misstates an important fact. Respondent did not redirect Ms. Krucher "because she worked for you and not Mr. Wortham." He redirected her because he had sent two able staffpersons to the back gate, and there was no need to send a third person. Dr. Santini evidently discredited an important element of Respondent's version of the gate incident. She could not have determined that Respondent countermanded Ms. Wortham's order for the sole reason of showing Ms. Krucher who was her boss, unless Dr. Santini had eliminated the possibility that Respondent countermanded the order because he had already sent two men back there. Whether Respondent sent the two men to the back or not is a difficult fact question. Although Dr. Santini might reasonably have concluded that Respondent, Mr. Ware, and Mr. Smith were lying, her factual determination is deficient as long as she refused to talk to Mr. Ware and Mr. Smith. Respondent was reasonably concerned with Dr. Santini's fairness when she talked to Mr. Wortham's corroborating witness, but refused even to talk to Respondent's corroborating witnesses. On January 5, 1996, which was the date that Dr. Santini issued her letter clarifying the October 25 memorandum on the ALC enrollment policy, Dr. Santini contacted Respondent's office to set up a meeting for January 8, which was the day prior to their meeting with Petitioner. She had by now seen the transcript of the expulsion hearing and wanted to discuss this matter with Respondent. Taking the advice of Dr. Cecil Carter, an administrator in the District, Respondent called Dr. Santini's office back and asked the purpose of the meeting. Dr. Santini relayed the information through someone in her office that they were going to discuss Respondent's "deposition." The only deposition with which Respondent was familiar was in connection with his testimony in the Rockford, Illinois desegregation case. Dr. Santini inadvertently used "deposition" to mean Respondent's testimony at the A. B. expulsion hearing. However, Respondent assumed that she was going to discuss some aspect of desegregation with him. Around 2:00 p.m. on January 8, Respondent told his secretary to call Dr. Santini's office and cancel the meeting. He told his secretary that he was ill and going home directly after school, but told her to tell Dr. Santini that she could call Respondent at home and they could at least talk on the phone. Dr. Santini did not call Respondent at home. Instead, she and Mr. Wiseman appeared, without prior notice, in Respondent's office between 8:00 and 8:30 a.m. on January 9, 1996, which was the day of the meeting with Petitioner. Respondent said he was busy with school duties, and they waited until he could see them. In a few minutes, Respondent, Dr. Santini, and Mr. Wiseman met. Dr. Santini started the meeting by saying, "Charles, I'm going to talk to you about this deposition." She showed him the transcript of the A. B. expulsion hearing. She stated, "The way this looks, I'm going to have to write you up." Understandably worried that Dr. Santini had already made her decision to discipline him, Respondent asked for permission for his secretary to attend the meeting as a witness. Dr. Santini said no. Respondent then asked to tape the meeting. Dr. Santini agreed. As Respondent left to find a tape recorder, Mr. Wiseman said, "Mary, you're going to have to give him a chance to tell his side of the story." Unable to find a tape recorder, Respondent returned to the meeting. Dr. Santini pointed to a page of the transcript and, without discussing the testimony directly, declared that Respondent had testified that numbers were more important than students. Respondent tried to interrupt, but Dr. Santini would not allow him. Respondent stated, "You can't accuse me of things and expect me not to respond." Dr. Santini replied, "You are going to listen to me." Dr. Santini accused Respondent of talking to A. B.'s father. In fact, Respondent had told him to work with Mr. Hennebery's office. Suddenly, Respondent told her that the meeting was over until we meet Petitioner. Dr. Santini slammed a book and told Respondent that he had "disrespected me and Mr. Wiseman." Respondent answered, "My dear friend, how have I disrespected you?" Dr. Santini stated, "That's it." She turned and walked out the door. Mr. Wiseman was still seated when she left. He then jumped up, shook Respondent's hand, and said, "See you later, baby boy." Alone among the key participants in this case, Mr. Wiseman appears to have maintained his sense of humor. During this brief meeting, for example, Mr. Wiseman was the only person not to have raised his voice. Later on the day of January 9, the meeting with Petitioner took place with Respondent, Dr. Santini, Mr. Wiseman, Dr. Carter, Dr. Counsel, and an administrative assistant in attendance. Respondent began the meeting by reading a letter from him to Petitioner dated January 8, 1996. The letter reviews the condition of the ALC when he was appointed principal, the changes that he has made, and the problems posed by the ALC enrollment policy stated in the October 25 memorandum. The participants discussed the ALC enrollment policy. Respondent objected that it appeared that they had met with other principals and not him. Mr. Wiseman admitted that they had met and had excluded Respondent because he had threatened another principal. There is no evidence of such a threat. After the discussion about ALC enrollments ended, Petitioner said that she was out of time and everyone would have to return to finish their discussion. Petitioner told Respondent that she had sent Dr. Santini and Mr. Wiseman to see him, and she did not want him calling off meetings with her staffmembers, such as he had done that morning. Respondent understood that he should not do that. Respondent complained that he had thought that he was doing an outstanding job and could not understand what the problem was with his job performance. Dr. Santini disagreed with him about the job he was doing. Respondent stated that no one had ever sufficiently spelled out a problem so that he could address it. He asked who was complaining about what. He asked Dr. Santini directly if she had any complaints. Dr. Santini said she had one complaint, but would not disclose it to Respondent, even after being urged to do so by all of the other participants, except the administrative assistant. Dr. Santini said that the attorneys had told her that she did not have to disclose it. She then said to Petitioner, "Bobbie, the problem is he will listen to you, not me." Respondent and Dr. Santini began to argue about the meeting earlier in the day. In anger, Respondent said he would not follow Dr. Santini's directions, but go directly to Petitioner. He also admitted that he was afraid of Dr. Santini. Petitioner closed the meeting by promising to check with the attorneys and see if she could supply Respondent with a copy of the complaint to which Dr. Santini had referred. Two days later, on January 11, Petitioner sent a letter to Respondent suspending him with pay due to "your conduct in a meeting with Mr. Herb Wiseman . . . and Dr. Mary Santini on January 9, 1996." The letter adds: "you should know that other allegations have been made against you that are currently being investigated by the District." V. Conclusion Petitioner failed to prove by a preponderance of the evidence that Respondent is guilty of misconduct in office, incompetency, gross insubordination, or immorality. Petitioner never trained Respondent to serve as a school principal. Respondent's previous administrative roles provided valuable experience, but they had also permitted Respondent to become accustomed to serving in a close relationship with a Superintendent who was also a mentor, working outside the normal hierarchical channels of the District office, and alienating numbers of parents, teachers, and administrators in making tough rezoning and equity decisions. But Respondent's qualifications were obvious. As Petitioner wrote in one evaluation, Respondent was a "role model" for other administrators in, among other things, teamwork. Despite the gaps in his experience, Respondent employed vast stores of energy, enthusiasm, and commitment to make the ALC work for its students. He intelligently assessed the situation at the ALC and devised strategies for exploiting the available resources. Fully aware of his own limitations, for instance, he hired Ms. Smith for her knowledge of curriculum. In a short time, he had produced dramatic results at the ALC. Respondent complied with Dr. Santini's directives, although before adoption he argued with those of them with which he disagreed. The October 25 memorandum, as well as the October 20 meeting, set an enrollment cap. Respondent acceded to Dr. Santini's decision. He closed the October 20 meeting with a plea that geographical schools be prepared to finish the job that the ALC would not have time to finish. He transferred 75-80 students out by early November. He asked Mr. Wiseman around Christmas break if he should transfer another 112 students back to their geographical schools. And his average enrollment exceeded the enrollment of his successors by 13 students--while his average actual attendance was five students less than the average actual attendance of his successors. By mid-December, Dr. Santini, misinformed by unreliable information from Ms. Krucher and possibly other informants at the ALC, was concerned about whether Respondent would work out as the ALC Principal. This concern may have influenced her gate investigation and reaction to Respondent's testimony at the expulsion hearing. The situation rapidly deteriorated when Dr. Santini visited Respondent, unannounced, on the morning of the day that they had a meeting with Petitioner and began the meeting by saying that she would probably have to write up Respondent for his testimony. A supervisor should always be able to conduct a meeting with a subordinate. Respondent should not have abruptly terminated the meeting with Dr. Santini. Supervisors terminate meetings, not subordinates. However, this was an isolated action by Respondent, who had never before terminated a meeting with a supervisor. Respondent had understandably felt that Dr. Santini had treated him unfairly in the gate incident, heard her announce at the start of this meeting what looked like a decision, and decided to deal with all of this at the meeting with Petitioner later that day. Under the circumstances, Respondent's imprudent decision to end the meeting did not rise to gross insubordination. In the final analysis, as Petitioner testified, it is good practice to document problems with employees before terminating them. And, as Petitioner testified, her staff did not do so here. Clearly, Respondent and Dr. Santini have a serious communications problem, for which each bears some responsibility, even though, by the nature of things, a communications problem is typically a bigger problem for the subordinate employee than it is for his boss. But as Dr. Council and Dr. Gunter testified, there was no reason for this case to proceed this far. And the case would not have come this far if District staff had tried to help Respondent or even treated this case as a performance case--where, under the law, District staff would have had to identify Respondent's deficiencies and help him eliminate them.
Recommendation It is RECOMMENDED that the School Board of Lee County enter a final order dismissing the Petition, reinstating Respondent, and awarding him back pay as provided by law. ENTERED on June 28, 1996, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings on June 28, 1996. APPENDIX Rulings on Petitioner's Proposed Findings 1: adopted or adopted in substance except as to date of initial employment. 2-3: adopted or adopted in substance. 4: rejected as unsupported by the appropriate weight of the evidence, to the extent of the implication that these behaviors were more than isolated or represented significant problems. 5: rejected as unsupported by the appropriate weight of the evidence. 6-7: adopted or adopted in substance. 8-9: rejected as unsupported by the appropriate weight of the evidence. 10 (first two sentences): adopted or adopted in substance, as to the back of the neck. 10 (remainder)-12: rejected as unsupported by the appropriate weight of the evidence. 13 (through "end"): adopted or adopted in substance. (remainder): rejected as unsupported by the appropriate weight of the evidence. (first two sentences): adopted or adopted in substance. (remainder): rejected as unsupported by the appropriate weight of the evidence. (through "classroom"): adopted or adopted in substance, except as to throwing C. L. into the chair. (remainder): rejected as unsupported by the appropriate weight of the evidence. (through "credited"): adopted or adopted in substance. 16 (remainder): rejected as unsupported by the appropriate weight of the evidence. 17: rejected as unsupported by the appropriate weight of the evidence. 18 (first sentence): rejected as subordinate. 18 (remainder): rejected as unsupported by the appropriate weight of the evidence. 19: rejected as unsupported by the appropriate weight of the evidence. 20: rejected as unsupported by the appropriate weight of the evidence, except that O. B. complied with Respondent, who did not apply force to move him. 21: rejected as unsupported by the appropriate weight of the evidence. The testimony of Ms. Culligan is not credible. 22 (first sentence): adopted or adopted in substance. 22 (remainder): rejected as unsupported by the appropriate weight of the evidence. 23: rejected as subordinate. 24: rejected as unsupported by the appropriate weight of the evidence. 25: adopted or adopted in substance, except that Ms. Krucher did not witness the entire incident. 26: adopted or adopted in substance, except that Ms. Krucher did not step between J. B. and T. R., nor did she witness the rest of the incident. She prevaricated the portion of the incident that she missed while returning J. B. to her classroom, J. B. testified that Ms. Krucher returned her to her classroom. J. B. also testified that Ms. Krucher even tried to convince her than T. R. had not lunged at J. B. Ms. Krucher's credibility as a witness is very poor. 27: rejected as unsupported by the appropriate weight of the evidence, except that T. R.'s testimony was stricken after several vacillations demonstrated that, as to this incident, he could not distinguish between the truth and fiction. 28: rejected as unsupported by the appropriate weight of the evidence. 29 (first two sentences): adopted or adopted in substance. (remainder): rejected as unsupported by the appropriate weight of the evidence. (first two sentences): adopted or adopted in substance. 30 (remainder): rejected as unsupported by the appropriate weight of the evidence. 31: Respondent's testimony that he feared M. P. was on drugs is not credited, at least to the extent of attempting to create a well-founded fear in Respondent's mind that the mental state of M. P. was so altered as to render him dangerous. However, Respondent intervened with M. P. to stop him from leaving and preclude the possibility that this student, who obviously is afflicted with a serious behavior disorder, might strike Ms. Smith. The remainder of this proposed finding is rejected as unsupported by the appropriate weight of the evidence. 32 (first two sentences): adopted or adopted in substance. (remainder): rejected as unsupported by the appropriate weight of the evidence. (except last sentence): adopted or adopted in substance. There is no need to resort to Ms. Keel's testimony about the "rat's ass" remark. 33 (last sentence): rejected as unsupported by the appropriate weight of the evidence. 34: adopted or adopted in substance, except as to crediting Ms. Krucher's testimony and as to any harm to the student's mental health. 35 (except last sentence): adopted or adopted in substance, except that the displaying of the badge never frightened or intimidated anyone and no student believed that Respondent had extraordinary arrest powers by virtue of the badge. When Respondent spoke to the class, they presumably were off-task, but he did not destroy any instructional momentum. 35 (last sentence): rejected as unsupported by the appropriate weight of the evidence. 36: adopted or adopted in substance, except that Respondent did not badger the student or mistreat him in any way. 37: rejected as unsupported by the appropriate weight of the evidence. 38: adopted or adopted in substance, although Respondent appropriately dealt with the student, who should have raised his head to meet the new principal. 39: rejected as unsupported by the appropriate weight of the evidence, except that Respondent threatened the student with suspension if he did not make eye contact and listen to him. 40 (first two sentences): adopted or adopted in substance. 40 (third sentence): rejected as unsupported by the appropriate weight of the evidence. 40 (fourth sentence): rejected as irrelevant and unsupported by the appropriate weight of the evidence. 41: rejected as recitation of evidence and unsupported by the appropriate weight of the evidence. 42: rejected as unsupported by the appropriate weight of the evidence, except that on rare occasions Respondent opened doors to Academy classrooms. 43-45: rejected as unsupported by the appropriate weight of the evidence. 46: rejected as unsupported by the appropriate weight of the evidence, except to the extent of findings in the recommended order. 47-48 (except last sentence): adopted or adopted in substance, except Respondent did not say, "her record." (last sentence): rejected as unsupported by the appropriate weight of the evidence. (first sentence): adopted or adopted in substance. 49 (remainder): rejected as unsupported by the appropriate weight of the evidence. 50-51 (first sentence): adopted or adopted in substance. 51 (remainder)-52: rejected as unsupported by the appropriate weight of the evidence. 53: rejected as unsupported by the appropriate weight of the evidence. 54 (first sentence): adopted or adopted in substance. 54 (remainder): rejected as unsupported by the appropriate weight of the evidence. Respondent had not made a prior arrangement with Ms. McCollum, but Petitioner failed to prove that he was required to. 55: rejected as unsupported by the appropriate weight of the evidence. 56 (first two sentences): adopted or adopted in substance. 56 (remainder): rejected as unsupported by the appropriate weight of the evidence. 57: rejected as unsupported by the appropriate weight of the evidence. 58: rejected as unsupported by the appropriate weight of the evidence, except that Respondent terminated the meeting. The behavior was inappropriate, but did not constitute either insubordination or, more to the point, gross insubordination. 59 (first two sentences): adopted or adopted in substance. 59 (remainder): rejected as unsupported by the appropriate weight of the evidence. 60: adopted or adopted in substance. 61: rejected as unsupported by the appropriate weight of the evidence, as to no reason to arrest W. S. at the time. However, the altercation had ceased, and Respondent should have answered the reasonably inquiry of the officer. But his behavior did not constitute misconduct in office, gross insubordination, incompetency, or immorality. 62: rejected as unsupported by the appropriate weight of the evidence. Petitioner never accounted adequately for Officer Kusienski's omission of the word "fuck" from his police report or, less importantly, the discrepancy between Ms. Krucher and Officer Kusienski as to the number of times that Respondent uttered the expletive. Another problem for Petitioner was the contrary testimony of another officer of the Fort Myers Police Department. 63: rejected as unsupported by the appropriate weight of the evidence. 64 (first two sentences): adopted or adopted in substance, at least as to the effect that the grandmother could not serve as the legal guardian of J. M. because she was not. 64 (remainder): rejected as unsupported by the appropriate weight of the evidence and hearsay. 65-66: rejected as unsupported by the appropriate weight of the evidence. 67 (first sentence): adopted or adopted in substance. 67 (remainder): rejected as unsupported by the appropriate weight of the evidence, except that Respondent voluntarily admitted up to 18 students. 68: rejected as unsupported by the appropriate weight of the evidence. 69 (first sentence): adopted or adopted in substance. 69 (second sentence): rejected as unsupported by the appropriate weight of the evidence. 69 (remainder): rejected as unsupported by the appropriate weight of the evidence, as to Respondent's role in the failure to obtain individual educational plans constituting misconduct in office, incompetency, or gross insubordination. 70-71: rejected as unsupported by the appropriate weight of the evidence. Rulings on Respondent's Proposed Findings 1-13: adopted or adopted in substance, although there is some uncertainty as to the dates of Respondent's early employment with the District. The findings in the recommended order are guided by the dates and job descriptions contained in the evaluations. 13A: rejected as irrelevant. 14-15: adopted or adopted in substance, except that M. P. was not fearful. 16-29: adopted or adopted in substance. 30: rejected as unsupported by the appropriate weight of the evidence. The incident did occur. 30A-43: adopted or adopted in substance. 44: adopted or adopted in substance, but Respondent's brief conversation with Ms. Krucher more closely resembled the version in the recommended order, rather than the more elaborate version in the proposed finding. 45-46: adopted or adopted in substance. 47 (first sentence): rejected as unsupported by the appropriate weight of the evidence. Dr. Santini never reviewed several lines of the testimony. She focused only on one phrase. (remainder)-48 (through "Wiseman"): adopted or adopted in substance. (remainder): adopted or adopted in substance, although it is unclear the extent to which they discussed the January 5 memorandum itself, as opposed to the ALC overenrollment issue generally. 49-55: adopted or adopted in substance. 56-57: rejected as subordinate, except to the extent described in the recommended order. 58-62: adopted or adopted in substance, although the fact that Respondent's enrollments were no higher than the enrollments of his successors suggests that Respondent's enrollments did not exceed the cap or the cap as applied. 63: rejected as subordinate. 64-68: adopted or adopted in substance. COPIES FURNISHED: Superintendent Bobbi D'Allessandro The School District of Lee County 2055 Central Avenue Fort Myers, Florida 33901-3988 John M. Hament Kunkel, Miller and Hament 1800 Second Street, Suite 882 Sarasota, Florida 34236 Harry A. Blair Blair & Blair, P.A. 2138-40 Hoople Avenue Fort Myers, Florida 33901 The Honorable Frank T. Brogan Commissioner of Education The Capitol Tallahassee, Florida 32399-0400
Findings Of Fact Respondent holds Certificate Number 227135, regular, valid through June 30, 1982, covering the areas of biology, science and social studies. Respondent received a bachelor's degree in history, zoology and education from Parson's College in 1967, and a Master of Science degree from the Florida Institute of Technology in 1980. During the 1976-77 school year, Respondent was employed as a science teacher at Nims Middle School in Tallahassee, Florida. Respondent, a licensed professional photographer, also worked with the photography club at Nims Middle School during the school years from 1975 through 1978. On or about May 30, 1977, while Respondent was employed as a science teacher at Nims Middle School, two students, Linda McKenzie and Linda Underwood, were excused from their regularly scheduled sixth period classes to go to Respondent's classroom to look at laboratory animals kept there. At all times material hereto, Respondent aid the two students mentioned above were the only occupants of the classroom. Respondent and the two students engaged in conversation, during which Respondent discussed taking photographs of the two students. As the two students began to leave the classroom, Respondent placed his hands on Linda Underwood's waist and "French-kissed" her. Ms. Underwood was shocked and embarrassed, and quickly left the classroom. The incident was not reported to Ms. Underwood's parents, but was reported to school officials by Ms. Underwood several days after the incident occurred. Prior to the above-described incident, Ms. Underwood had called Respondent on the telephone at his home, and had also written him letters. None of these letters were introduced into evidence in this proceeding. Ms. Underwood apparently also made several telephone calls to Respondent after the incident occurred. Neither the content of these telephone conversations nor any other evidence of record in this proceeding is sufficiently clear to demonstrate that Ms. Underwood was so biased against Respondent to have fabricated her testimony. Having observed the demeanor of the several witnesses testifying on this issue, and having considered their interest, if any, in the outcome of this proceeding, Ms. Underwood's version of the incident is accepted as persuasive. While Respondent was employed as a science teacher at Nims Middle School, he drove to the home of Mrs. Juanita Jackson accompanied by two Nims Middle School students, Carlotta Wolfe and Lori Taylor. The two students were dressed in either bathing suits or shorts, and rode in the front seat with Respondent. had offered the two students a ride when he observed them walking, and was asked by them to drive to the Jackson home. Respondent did not know the purpose of the visit to the Jackson home. One of the students apparently requested that Mrs. Jackson's daughter be allowed to get into the car with Respondent and the other students, but Mrs. Jackson refused to allow her daughter to do so. Although Mrs. Jackson testified that she observed Respondent's arm on the back of the seat while Carlotta Wolfe was seated next to him, there is insufficient evidence of record from which to conclude that any impropriety was intended by Respondent, or in fact occurred. Respondent was granted a leave of absence by the Leon County School Board for the 1979-80 school year, and was reassigned to Godby High School for the 1980-81 school year. On August 4, 1980, Respondent met with William J. Montford, principal of Godby High School, and other administrative personnel. During that meeting Respondent was specifically warned about inappropriate and improper comments and behavior directed toward students. During the 1980-81 school year Ms. Kelly Moore was one of Respondent's students. On one occasion when Ms. Moore was tardy to class and was in the process of signing a late sheet in compliance with school policy, Respondent told her to put her telephone number by her name "...in case I get horny one day." On another occasion, when Respondent inquired and was told that Ms. Moore worked in the lingerie department at Maas Brothers department store, he observed to Ms. Moore that he "...could really get into panties, especially yours." Each of these comments was made in Respondent's classroom, in the presence of other students, and for no appropriate reason. Respondent denies making these remarks, but it is specifically concluded that the testimony of Ms. Moore is more persuasive concerning these incidents. While employed as a teacher at Godby High School, Respondent engaged in a conversation with Dorothy Bryant, Yolanda Jenkins and Kendra Green, three of his students. During the course of this conversation, Respondent told these students that he would like to take them out and get something to drink and smoke with them. During the course of this conversation, Respondent either used or agreed to the use of the term "orgy" in connection with the above-described offer, and wrote a mathematical equation on the blackboard, and inquired of the students "How many times can one go into three?" During the 1980-81 school year at Godby High School, Traci Lingel was another of Respondent's female students. On one occasion when Ms. Lingel sought a pass to leave Respondent's classroom, Respondent remarked to her "Just because I'm your teacher and because I'm older than you doesn't mean that we can't go to bed together." On another occasion, Respondent remarked to Ms. Lingel that he had met her sister, also a student at Godby High School, and that he knew that it was her sister because she had "sexy eyes" just like Ms. Lingel. Further, Respondent observed to Ms. Lingel that he would award her an "A" in his course if she could arrange a date for him with her sister. On still another occasion, Respondent inquired of Ms. Lingel's boyfriend if Respondent could blow in Ms. Lingel's ear. On other occasions Respondent told two of his students, Debbie McCauley and Leeann Nelson, during class periods that he thought they had "nice legs." In addition, Respondent on one occasion told Ms. Nelson that he would like to go to bed with her. On several occasions during his tenure at Godby High School, Respondent related to various of his students that he was "hung over," had gotten drunk the preceding weekend and/or had smoked marijuana. On at least one other occasion, upon sending a male student to Respondent's vehicle to retrieve some items left there by Respondent, Respondent told the student that a bottle of liquor was under the seat in the truck, and the student could take a drink if he wished to do so. This latter remark was made in the presence of other students. Respondent spoke on the telephone with another of his students, Theresa Tran, about taking photographs of her. Respondent inquired of Ms. Tran concerning her favorite alcoholic beverages, and remarked to her that he could take her photographs and afterwards take her out for a drink. Respondent also on one occasion remarked to Traci Lingel, another of his students mentioned earlier in this order, that he and Ms. Lingel could get drunk or high and he could take her photographs. Respondent received a written reprimand dated February 10, 1981, from his principal, William J. Montford, concerning his improper conduct with female students. Respondent was again reprimanded by his principal by written reprimand dated March 17, 1981. On or about June 6, 1981, a presentation designed to inform high school students about the dangers of drug abuse was made in Respondent's classroom. A student attending a drug abuse program outside Godby High School participated in the program to share his negative experiences with drugs with other students. During a break in the program, Respondent engaged in a conversation in which the above-mentioned student and a representative of the Florida Alcohol and Drug Abuse Association participated. During the course of this conversation, Respondent related that he obtained high-quality cocaine through his girlfriend from the New York or Boston areas, and that the quality of drugs so obtained was better than could be obtained in the Tallahassee area. Respondent's remarks to female students were often made openly in a classroom setting so that the students who were the subject of the remarks were embarrassed before their peers and Respondent's predilection for making such remarks became common knowledge among his students. As a result, many of his students were uncomfortable attending his classes. Because of the frequently open and notorious nature of his conduct as hereinbefore related, Respondent's effectiveness as an instructional employee has been seriously reduced. Respondent generally denies that the incidents related above ever occurred. There is, accordingly, a sharp divergence in the various accounts of these activities as related by several of the witnesses. In resolving these testimonial discrepancies, the Hearing Officer observed the demeanor of the witnesses while testifying and considered the interests, if any, of these witnesses in the outcome of this proceeding in determining which of the various versions of these occurrences were the more credible. Both counsel for Petitioner and Respondent have submitted proposed findings of fact for consideration by the Hearing Officer during the course of this proceeding. To the extent that those proposed findings of fact are not included in this Recommended Order, they have been rejected either as not having been supported by evidence of record or as being irrelevant to the issues involved in this proceeding.
Recommendation Pursuant to notice, the Division of Administrative Hearings, through its undersigned Hearing Officer, William E. Williams, held a public hearing in this cause on September 17 and 18, 1981, in Tallahassee, Florida.
