OHIO DEPARTMENT OF EDUCATION

In the Matter of: Timothy Pingle, Ph. D. and Richmond Heights Local School District Board of Education

REPORT, FINDINGS OF FACT AND RECOMMENDATION OF REFEREE JOEL R. HLAVATY

August 27, 2012

I.

Introduction and Applicable Law.

This matter came on for a statutory fact-finding hearing under Ohio Revised Code 3319.16 in the matter of Timothy Pingle (Dr. Pingle) and the Richmond Heights Local School District Board of Education (Board), relative to the proposed termination of the contract of a public school principal. A hearing was conducted on May 17-18, 21 and 31, and June 29, 2012, in the Holiday Inn in Independence, Ohio. Dr. Pingle was represented by Bruce Elfvin of Elfvin & Besser, and the Board was represented by Chris Williams of Pepple & Waggoner, Ltd. Both counsel made thorough presentations and acted

throughout the proceedings and towards each other with professional courtesy and respect, for which they are commended. This Report, Findings of Fact and Recommendation is being issued within ten calendar days of receipt by email of the parties post-hearing briefs on August 15, 2012. (Since the tenth day fell on a Saturday, this report is being issued on the following Monday, August 27, 2012.) The basis for these proceedings is set forth in Ohio Revised Code 3319.16 and the case law interpreting the same. See, Hale v. Lancaster Board of Education (1968), 13 Ohio St. 2d 92, 234 N.E. 2d 583, and its progeny. Since as demonstrated by their post-hearing briefs counsel for both parties are knowledgeable of and familiar with the applicable law, it need not and will not be repeated here.

The Board notified Dr. Pingle on or about February 28, 2012, of its intention to consider the termination of his principal contract for good and just cause within the meaning of Ohio Revised Code 3319.16, for the following reasons: 1. Dr. Pingles statements to the Board President by email dated November 7, 2011 advocating that the Board violate Board Policy 2260B, and State and federal law, and disqualify a candidate for Interim Superintendent based upon the candidates race; 2. Dr. Pingles repeated racially insensitive comments made during student assemblies at the beginning of the school year; 3. Dr. Pingles racially derogatory statements and stereotypes as set forth in a November 6, 2011 email to the Board President; 4. Dr. Pingles insubordination in directing the Secondary School Assistant Principal not to attend a cabinet meeting of administrators called by the Interim Superintendent on November 8, 2011, after the Interim Superintendents office had directed the Assistant Principal to attend that meeting; and, 5. Dr. Pingles failure to properly and efficiently process student discipline referrals from November through his relief from duties in December, 2011, resulting in a backlog of almost a month in processing such referrals. (See Board Resolution of February 27, 2012, Board Exhibit Y.) There were no objections raised as to timeliness or any failure to follow proper procedures in accordance with Section 3319.16. II. Statement of Issue.

The issue before this Referee is whether the evidence presented supports the grounds specified by the Board for the termination of Dr. Pingles contract, and whether the grounds constitute good and just cause for the termination of his contract such that his termination should be recommended to the Board.

III.

Findings of Fact.

Upon thorough consideration of the testimony elicited and the exhibits submitted by both parties, I make the following findings of fact. The Board operates a local school district in Richmond Heights, Ohio (the District) in which approximately one thousand (1,000) students are enrolled in grades K-12. Approximately ninety percent (90%) of the students in the District are African American, although both the community and the teaching staff are predominantly Caucasian. In or about February, 2011, allegations were raised regarding the Caucasian high school boys basketball coachs actions with respect to his team members, all of whom were African American. The coach, Jason Popp (coach Popp), was also the president of the union that represented the teachers within the District for purposes of collective bargaining. The allegations included claims of various actions of a racially harassing, derogatory and/or discriminatory nature. As a result of these allegations, a complaint was filed with the U.S. Department of Educations Office for Civil Rights (OCR), and the OCR conducted a lengthy and comprehensive investigation. While coach Popp was immediately relieved of his basketball coaching duties in or about February, 2011, his employment was not terminated at that time nor was he immediately relieved of his teaching duties. In fact, coach Popp continued to coach track in 2011, and he subsequently applied in 2012 for his former boys basketball coaching position, as well as the positions of girls high school basketball coach and head track coach. He was recommended for the position of head track coach in 2012 by interim superintendent Dr. Robert Moore (Dr. Moore). None of these positions were awarded to

coach Popp, and he eventually was suspended by the Board with pay pending further investigation in February, 2012, one year after the allegations were first brought against him. The allegations brought against coach Popp and the ensuing investigation by the OCR culminated in the Board submitting a resolution agreement to the OCR in April, 2012, that included, among other things, an agreement by the Board that by May 29, 2012, it would initiate the steps necessary to ensure appropriate sanctions were taken against coach Popp, up to and including the initiation of proceedings to remove him from any teaching and coaching positions. (Dr. Pingle Exhibit 10.) As of the close of the evidentiary portion of the hearing on June 29, 2012, there was no evidence presented that such action had been taken. Racial tension existed within the District, and particularly the high school, in February, 2011, that continued into the next school year. There was not sufficient evidence presented to determine whether the racial tension existed prior to the coach Popp situation, whether it was the result of the allegations against coach Popp and the ensuing investigation, whether if it previously existed it was exacerbated by the coach Popp situation, whether it was because some of the Caucasian teachers continued to support coach Popp, or whether other factors caused the racial tension, but the cause and timing are not important to this proceeding. Rather, what is important and relevant is the fact that going into the 2011-2012 school year, even if the coach Popp situation had been somewhat resolved, there was still the need for the Board to be sensitive to the issue of racial tension. It is also evident that Dr. Pingle knew at some point of the racial tension and the need to be

sensitive to race relations, and that point was at least prior to the assemblies of September, 2011 that serve as one of the bases for the action taken by the Board against him and which are discussed below. In August, 2011, Dr. Pingle was hired by the Board on a two-year contract to be the principal for the Districts secondary school, which had approximately five hundred plus students. Dr. Pingle is Caucasian. Harold Booker (Mr. Booker) was subsequently hired to be the assistant principal for the secondary school, with his primary responsibility being student discipline. Mr. Booker is African American. Linda Hardwick, Ph. D. (Dr.

Hardwick), African American, was the superintendent at that time, having been hired in 2009, and Dr. Moore, African American, was the principal of the elementary school, having been hired in 2010. The president of the Board in 2011 was Joshua Kaye (Mr. Kaye), who is Caucasian. Dr. Hardwick was relieved of her duties as superintendent, but not her salary, by the Board in November, 2011, and subsequently filed various charges of discrimination against the Board. Dr. Moore was appointed interim superintendent in November, 2011, and Mr. Booker assumed the duties of the elementary school principal. There are a number of additional relevant factual findings that will be set forth in the discussion below regarding the specific allegations against Dr. Pingle that led to the Boards resolution to terminate his contract. They will be discussed in chronological order rather than the order set forth in the Boards resolution of February 27, 2012.

A. The Student Assemblies of September, 2011. In September, 2011, Dr. Pingle held seven assemblies for the various classes in the secondary school for the stated purpose of addressing the use of racially insensitive remarks and to educate students on how to be good citizens and have good character in order to improve the school and make it more unified. While the reason for the assemblies appears fairly clear, and in this regard I note the testimony of teacher Jodi Hanford, what took place, or more specifically what was specifically stated by Dr. Pingle at the assemblies, is not clear. It has been alleged that Dr. Pingle made racially insensitive remarks at the assemblies by stating something to the effect that he likes Black people and one in three students in the District would end up in jail. Dr. Pingle denies having made this latter statement, but he does admit having discussed statistics and that a percentage of people who did not finish high school would likely have more contact with the court system. There was no testimony from students who attended the assemblies, but teachers and administrators who attended the assemblies did testify, as did Dr. Pingle. There was also testimony from parents who presented second-hand testimony from their children. I find based upon the testimony presented that it is not clear exactly what was stated by Dr. Pingle in the assemblies, as the evidence is inconsistent. I find that the evidence does not support a finding that there were direct or explicit racial comments made by Dr. Pingle at the assemblies. While his actions and comments made have been ill conceived and perhaps not fully thought out, the evidence does not

support a finding that his comments were racial statements, and certainly not that they were racially motivated. There was also evidence presented that the statements of Dr. Pingle at the assemblies created issues among the students and increased the already present racial tension in the District. The evidence, however, shows that only one African American student who had other disciplinary issues walked out of an assembly and was subsequently suspended for doing so, that another African American student got loud and became upset because her father apparently was incarcerated, and that perhaps one to two other African American students may have been upset by what occurred in the assemblies. In regard to the students who may have been upset by the comments of Dr. Pingle at the assemblies, I find that they were so few in number, particularly since seven assemblies were held, as not to support a claim that the statements were racially insensitive. In this regard, I note the testimony of Russell White (Mr. White), the African American Head of Security and Director of Transportation for the District. Mr. White attended the assemblies and stated that there was only one class that had an adverse reaction to the assemblies. Mr. Whites testimony was supported by other witnesses. I also note that no action was taken by the Board against Dr. Pingle at that time as a result of the assemblies, and that in addition to Mr. White, Mr. Booker also attended the assemblies. The Board has argued that Dr. Pingle showed poor judgment in not seeking input prior to the assemblies from race relations experts and/or counselors retained by the

Board. I find that while it was not necessary for Dr. Pingle to have consulted with such experts and counselors prior to conducting the assemblies, it is surprising that he did not avail himself of such resources given the known racial tension that existed in the District at that time. B. The Emails of November 6 & 7, 2011. In November, 2011, Dr. Hardwick was removed by the Board as superintendent of the District. On November 6, 2011, Dr. Pingle wrote and sent an email to the Board president, Mr. Kaye, and to the Board vice president, Robert Fox (Mr. Fox), who is also Caucasian, in which Dr. Pingle referenced and attached an article regarding then United States presidential candidate Herman Cain. The email was sent at 12:38 a.m. from Dr. Pingles personal email account to the personal email addresses of Mr. Kaye and Mr. Fox. (Board Exhibit H.) On November 7, 2011, after it had become known at least to Dr. Pingle that Dr. Moore was to be named the interim superintendent to replace Dr. Hardwick, Dr. Pingle wrote and sent another email to Messrs. Kaye and Fox from his home email address and again using their personal email addresses. This email was sent at 7:49 a.m. when Dr. Pingle was at work in the District and using his work computer, and it addressed a number of points relative to the Boards selection of Dr. Moore to be interim superintendent. (Board Exhibit I.) In its February 27, 2012 resolution regarding the removal of Dr. Pingle, the Board referenced Board Policy 2260B in regard to the November 7, 2012 email, and Dr. Pingle has argued that the Policy may not have been adopted or widely circulated prior to it being

presented to him when he was advised of his suspension by Dr. Moore on December 12, 2011. I find, however, that Dr. Pingles knowledge of Board Policy 2260B is not an issue, as regardless of whether he was aware of the specific policy, as an experienced administrator, and per his testimony, he certainly was aware of and had received training regarding general harassment and discrimination principles relative to race. There has also been an argument made or suggested that Dr. Pingle sent one or both emails because Mr. Kaye allegedly led Dr. Pingle to believe that he would be the next superintendent and/or interim superintendent. I find, however, that there was no binding promise made to Dr. Pingle, and that the evidence regarding the qualifications and prior experience of Dr. Pingle and Dr. Moore suggests that any such expectation by Dr. Pingle was not well founded. There was evidence elicited that Mr. Kaye supposedly stated to Dr. Pingle that Dr. Moore was chosen to be interim superintendent because of his race. While I do not find the evidence on this point to be conclusive, even if true, it does not absolve Dr. Pingle from his actions in drafting and sending either of the emails in question. At this juncture it is appropriate to comment on the evidence presented relative to Board members going outside the chain of command and directly contacting Dr. Pingle and/or directly contacting teachers rather than going through the Districts superintendent. While this may be unusual by some standards, I find no evidence that a practice of Board members contacting administrators or teachers only through the superintendent was a hard and fast rule or policy, or that there was anything improper about a Board member directly contacting an administrator or teacher. I additionally note, however, that the

practice of Mr. Kaye having extended conversations with Dr. Pingle on the telephone appears to be highly unusual if not strange. It is also appropriate at this juncture to comment on the testimony of Messrs. Kaye and Fox. I find that Mr. Kaye had the motive to cover-up certain of his actions and to make misrepresentations, and I find his testimony not to be credible in several respects. I do not find that he had any malicious intent, but rather that his conduct, although negligent or reckless, if not intentional, was perhaps based upon a lack of knowledge regarding racial matters and how a school board president is to conduct himself and lead a school board and school district. In regard to the testimony of Mr. Fox, while he was at times a belligerent if not hostile witness and did not have the best of recollections regarding certain points, I find that he was generally a credible witness. I note, however, that his recollection of Dr. Pingle using the N word during a telephone discussion was not credible given that he had not previously reported the comment to anyone, including the person whom the Board had charged to investigate certain allegations regarding Dr. Pingle, but I give the testimony regarding the use of the N word no weight since it was not one of the bases cited for the removal of Dr. Pingle by the Board. In regard to the emails drafted and sent by Dr. Pingle on November 6 & 7, 2011, I find that they were not private or personal emails regardless of the fact that Dr. Pingle may have sent them from his personal email address to the personal emails of Messrs. Kaye and Fox. To begin with, the emails were sent to two members of the Board, one of whom was the president of the Board and the other of whom was the vice president. The reason the

10

emails were sent to these two gentlemen by Dr. Pingle was because of their positions. Second, Dr. Pingle was the principal of the secondary school and regardless of whether he does not believe he sent the emails in his capacity as principal, he signed them with his professional title. Furthermore, the actions taken by a principal of a school, regardless of the time of day or day of the week, are always potentially associated with the persons position, and a person in an administrative position should be cognizant of that. This is particularly true where, as here, the communications related to a position within the District, a desired position, and the functions of the District and Board. Third, at least as to the second email of November 7, 2011, which I find to be the more serious and egregious of the two, it was sent while Dr. Pingle was at his school and on school time. Fourth, given the OCR investigation that was underway, Dr. Pingle knew or should have known that his emails were subject to being produced in the course of the ongoing investigation and published beyond just Messrs. Kaye and Fox. Fifth, Mr. Fox had the emails that were addressed and sent to his Board email address automatically forwarded to his personal email address, and he responded to them from his personal email address. Thus, Mr. Foxs Board and personal email addresses were essentially one and the same, even if Dr. Pingle was not aware of such. Further in this regard, Mr. Kaye had given Dr. Pingle his personal email address, Just so he could communicate. (Tr. at 596.) In regard to the content of the emails and whether they contained racially derogatory statements and stereotypes, or advocated that the Board violate its Policy and state and federal law by disqualifying a candidate based upon race, I find that the emails did have racial overtones and were inappropriate. I also note, however, that it appears

11

unusual for the Board to have waited as long as it did before taking action against Dr. Pingle with respect to the emails. C. Dr. Pingles Alleged Insubordination on November 8, 2011. On November 8, 2011, Dr. Moore, who had just been named interim superintendent, called an emergency meeting of the Districts administrators. He did so by having his administrative assistant, Phyllis Sargi, send an email to all concerned. (See Board Exhibit L.) Dr. Pingle informed his assistant principal, Mr. Booker, that he need not attend the meeting. (Id.) The Board has alleged that this was an act of insubordination. I disagree and find to the contrary for the following reasons. When Dr. Pingle informed Mr. Booker that he need not attend Dr. Moores emergency meeting, he did so by email and copied Phyllis Sargi on the email. Thus, he did not try to hide his message to Mr. Booker and knew that his directive to Mr. Booker would likely be reported to Dr. Moore. After Dr. Pingles directive to Mr. Booker was brought to light, Dr. Pingle and Dr. Moore had a conversation in which Dr. Pingle was instructed by Dr. Moore that Mr. Booker was to attend the emergency meeting. Dr. Pingle obeyed Dr. Moores instruction, he informed Mr. Booker that he should attend the emergency meeting, and Mr. Booker did in fact attend the emergency meeting. (See Board Exhibit M.) All of the above occurred within a very short span of time on the morning of November 8, 2011. Dr. Moore did not discipline Dr. Pingle at that time for the alleged insubordination.

12

In light of the above chain of events, I find that Dr. Pingles action in directing Mr. Moore not to attend the emergency meeting called by Dr. Moore on November 8, 2011, was not an act of insubordination. D. Dr. Pingles Alleged Failure to Process Student Discipline. The last incident cited by the Board as a basis for the termination of Dr. Pingles contract is his alleged failure to properly and efficiently process student discipline referrals from November, 2011 until his removal from duties in December, 2011. I find for the following reasons that Dr. Pingle did not fail to properly and efficiently process student referrals in the stated time period. Mr. Booker was the assistant principal in the secondary school and was responsible for student discipline. The evidence demonstrated that there were twenty or more student discipline referrals a day, and Mr. Booker testified that handling student discipline was a full-time job. In early November, 2011, Mr. Booker was reassigned to be the acting principal of the elementary school after Dr. Moore was named interim superintendent. Although Mr. Booker was later informed that he would also need to spend time performing services as the assistant secondary school principal, the amount of time he had to devote to handling student discipline was obviously limited. There was insufficient evidence presented to demonstrate the number of supposed unprocessed referrals, the types of referrals that went unprocessed, and any specific hardship suffered by the District in this regard. I am aware of the testimony of Mr. Booker,

13

but also not that Mr. Bookers testimony demonstrated that he misremembered or simply could not remember various events. While there may have been a backlog of student disciplinary actions in the secondary school at the time Dr. Pingle was relieved of his duties in December, 2011, that should not have been a surprise and even have been expected given that the handling of student discipline had been a full-time job for Mr. Booker. Furthermore, after Mr. Booker became interim elementary school principal, Dr. Pingles duties as secondary school principal were not reduced such that he had extra time within which to handle student discipline. Accordingly, I find that Dr. Pingle did not fail to properly and efficiently process student discipline referrals from November, 2011 until his removal from duties in December, 2011. IV. Conclusion and Recommendation.

Before setting forth my recommendation, it is appropriate to make a few comments and observations. The first is that it is clear that the District has had and continues to have numerous issues by and among Board members, administrators, teachers, students and parents, that may have included and/or been precipitated by issues of race, but that also transcend race. Whether Dr. Pingle got caught up in the turmoil and politics by which the Board has operated in recent times, and whether Board members, and specifically Messrs. Kaye and/or Fox, used Dr. Pingle to aid them in the removal of Dr. Hardwick, are beyond the purview of this report. Furthermore, regardless of whether any of the foregoing occurred, it nevertheless does not absolve Dr. Pingle from the actions that he took.

14

Second, it is interesting to note that coach Popp, who allegedly engaged in racial harassment, denigration and/or discrimination at least as bad if not worse than what Dr. Pingle has been alleged to have done, was not relieved of his duties until February, 2012, and then with pay, and as of the close of this hearing he had not had his contract terminated. Indeed, after his removal as basketball coach, and despite the egregious racial allegations against him, coach Popp not only apparently continued to coach track, but was recommended by Dr. Moore to receive a supplemental contract to be the head track coach for 2012. Similarly, Dr. Hardwick, whom the Board alleged to have engaged in numerous performance deficiencies of a serious nature, including some that may have led to or perpetuated some of the race issues that existed in the District, also was relieved of her duties with pay. While both of these situations seem inconsistent with the Boards actions with respect to Dr. Pingle, and perhaps unfair in that regard, my duty is to determine whether the Board has demonstrated its stated grounds for the termination of Dr. Pingles contract and whether those grounds constitute good and just cause. Third, the evidence demonstrates that Dr. Pingles background, history and character do not necessarily lend themselves to a conclusion that he would engage in discriminatory conduct. Recent events and experiences of which all can take judicial notice demonstrate, however, that people do not necessarily follow their prior history. Hence, the facts must be determined based upon the evidence that was presented via documents and testimony. As discussed above in the Findings of Fact, I do not find that the Board demonstrated that Dr. Pingles comments at the assemblies in September, 2011 were

15

racially insensitive, that Dr. Pingle was insubordinate when he instructed Mr. Moore not to attend Dr. Moores emergency meeting on November 8, 2011, or that Dr. Pingle failed to properly and efficiently process student discipline referrals in the period from November to December, 2011. I do find, however, that Dr. Pingles emails of November 6 and 7, 2011, were not private emails, and that they had racial overtones and were racially insensitive. At worst they were racist and at best they showed poor judgment. I further find that while the Board may not have demonstrated three of the five bases for its resolution to consider the termination of Dr. Pingle, the two that it did demonstrate carry more weight than the other three, as they concern themselves with racial issues and the District was and is clearly still struggling in that regard. While the assemblies also concerned racial issues, I find that the racial comments made by Dr. Pingle in the two emails are sufficient to give the Board good and just cause to terminate his contract. In so finding, I note that as an administrator and secondary school principal, Dr. Pingle, in addition to his various duties and responsibilities, was or should have been a role model to others in the District, particularly teachers and students. Regardless of whether anyone outside of the Board knew of his emails, his action in sending them demonstrated conduct that was unacceptable and which the Board could not risk him repeating. I additionally continue to note the differing treatment of Dr. Pingle vis--vis coach Popp, and to a lesser extent Dr. Hardwick, and I also note that my findings do not prevent the Board from imposing a lesser sanction than termination of Dr. Pingles contract without pay as of February, 2012.

16

In summary, I find that there is good and just cause for the termination of Dr. Pingles contract and recommend the same for all of the reasons stated above, but I also recommend that the Board consider the other findings, comments and observations set forth herein before making the final decision to terminate the contract of Dr. Pingle.

/s/ Joel R. Hlavaty____________ Joel R. Hlavaty

Dated this 27th day of August, 2012.

17