STATE OF OHIO )

) SS: AFFIDAVIT OF KATHLEEN J. CINTAVEY, PH.D.

COUNTY OF LAKE )

I, Kathleen J. Cintavey, Ph.D., do hereby depose and state as follows:

1. I am a resident of Concord Township, Ohio and I was born on December 4,

1949.

2. Since April 14, 2008, I have been employed as the Superintendent of the

Wickliffe City School District, located in Wickliffe, Ohio. As Superintendent, I am the chief

executive officer of the District, reporting directly to the Board of Education. Attached as Exhibit

1 is the District's organizational chart.

3. The Board of Education is an elected body, empowered to set policy for the

Wickliffe City School District. The current Board of Education is comprised of President Tony

Vitale, Vice President Joe Muscatello, and Members Carl Marine, Jeremy Forsythe, and Daniel

Thomeier.

4. The Board of Education has adopted numerous policies governing ethics

and education practices in the District. Attached as Exhibit 2 is the Board's graduation credit

policy, denoting the requirement that students complete coursework towards at least 21 Carnegie

credits in order to receive a diploma. The State of Ohio, in contrast, requires a minimum of 19

credits to graduate.

5. Attached as Exhibit 3 is the District's Code of Ethics for its employees.

Attached as Exhibit 4 is the Board's policy governing Board-Staff communications. Attached as

Exhibit 5 is the Board's policy defining the District's management team. Attached as Exhibit 6 is

the Board's policy concerning the authority of building principals. Attached as Exhibit 7 is the
Board's policy concerning staff relations and lines of authority, i. e., the "chain of command" for

problem solving. Attached as Exhibit 8 is the Board's policy concerning staff involvement in

decision making. Attached as Exhibit 9 is the Board's policy concerning staff conduct. Attached

as Exhibit 10 is the Board's policy concerning staff complaints and grievance procedures.

Attached as Exhibit 11 are the Board's policies concerning the evaluation of staff.

6. The Superintendent is responsible for the day-to-day operations of the

District; implementing and enforcing Board of Education policies; implementing "best practices"

for education of the District's students; maximizing educational outcomes; and ensuring the

District's compliance with state and federal statutes and regulations governing K-12 education,

special education, and student and employee health and safety.

7. The Wickliffe City School District educates a student population of

approximately 1,500 students in three school buildings, an elementary school serving Pre

Kindergarten through grade 4; a middle school with grades 5 through 8; and a high school serving

grades 9 through 12. In addition, high school student can pursue vocational training through the

Career Tech and College Tech Prep program offered by a consortium of school districts (among

them are Euclid City School District, Mentor Exempted Village School District, Willoughby-

Eastlake City School District, and Wickliffe). Wickliffe City School District also offers its high

school students post-secondary enrollment options and college options.

8. In my capacity as Superintendent, all instructional employees report to me,

directly or indirectly. All three building principals report directly to me and teachers report to

their respective building principal. Attached as Exhibit 12 is the job description for the High

School Principal. The High School Principal is responsible for ''the total operation of the high

school program and staff. (Exh. 12). The High School Principal's responsibilities include

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"[keeping] the superintendent ... informed of the school's activities and problems"; «[interpreting

and enforcing] district policies and administrative regulations for staff, parents and students;

"[establishing and maintaining] an effective learning climate in the school"; "[supervising] all

professional, paraprofessional, administrative, and support personnel attached to the school"; and

"[evaluating and counseling] all staff members regarding their individual and group performance."

(Id.).

9. I am personally familiar with Charging Party Vicki Wheatley, since she

served as Principal at Wickliffe High School during my tenure. Currently, Ms. Wheatley is on

an administrative suspension, with full pay and benefits. Attached as Exhibit 13 is the 2009-2010

school year salary notice for Ms. Wheatley.

10. I have reviewed the Charge of Discrimination filed by Ms. Wheatley on

August 3, 2009. I categorically deny that Ms. Wheatley has been discriminated against or

retaliated against for any reason. Instead, Ms. Wheatley was reprimanded and suspended for

severe breaches of Board of Education policies; unauthorized decisions regarding staffing,

curricula, and graduation requirements that negatively impacted the District's orderly and lawful

operations; and severe breaches of state and federal special education laws that exposed the

District to potential liability under the special education laws.

11. Ms. Wheatley's charge claims that I discriminated against her in favor of

male employees and created a hostile environment based on her gender. This is false.

Furthermore, when Ms. Wheatley made her initial complaints in the fall of 2008, the Board hired

an outside attorney, Barbara K. Besser, Esq., to investigate Ms. Wheatley's allegations. A copy of

Ms. Besser's report is attached as Exhibit 14. Ms. Besser determined that there was no evidence

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of discrimination toward Ms. Wheatley; rather, Ms. Besser noted communications problems

between Ms. Wheatley and me.

12. Ms. Wheatley's charge claims that she received a written reprimand on

December 3, 2008. This is not accurate. Attached as Exhibit 15 is a memorandum I sent Ms.

Wheatley on December 3, 2008, along with attached Board policies. The memorandum was not a

reprimand; rather, it was a directive to Ms. Wheatley intending to remind her of the District's

reporting procedures (i.e., she reports to me, not the Treasurer); to remind her to compile

information to address the Board of Education's concerns regarding the high school curriculum;

and to remind her to share that information with me, her direct supervisor, before presenting it to

the Board. These communication issues were the exact kind of problem addressed in Barbara

Besser's report.

13. Ms. Wheatley's charge claims that she received a written reprimand on

February 9, 2009; she did receive a reprimand that day, for performance reasons. Specifically,

Ms. Wheatley's e-mail of January 30, 2009, attached as Exhibit 16, Wheatley complained that I

had talked with a study hall monitor about his job performance when I visited the High School. In

fact, I visited the High School on several occasions in January 2009, entering the High School

through the cafeteria door when study hall was being held in the cafeteria. Each time I found

chaos. There was excessive noise, students socializing all around the cafeteria, and few students

engaged in their studies. Other students were eating, playing cards, milling around, etc. One

time, I witnessed female students with low-cut tops leaning over a seated duty monitor, who was

actively socializing with those female students. I asked Mr. Phillips, the duty monitor, what was

being done to address the lack of student passes, the lack of accurate record keeping on attendance

that had been brought to my attention, as well as the generally chaotic atmosphere I had observed.

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I also spoke to Chris Papouras, the Assistant Principal, about getting the study hall into order

after Ms. Wheatley informed me that the study hall was his responsibility. I did not see any

positive changes during my walk-throughs, so I approached Ms. Wheatley about the problem.

Attached as Exhibit 17, please find a copy of a memorandum I sent Ms. Wheatley on February 2,

2009, regarding the performance expectations for all high school duty monitors (i.e., study halls,

lunchroom, and hall monitors).

14. My February 2,2009 memo specifically instructed Ms. Wheatley to put the

duty monitor job performance expectations in writing for distribution to the duty monitors when

she spoke with them. The letter also instructed Ms. Wheatley to put together a job description for

the duty monitor positions. Attached as Exhibit 18, is a responsive e-mail from Ms. Wheatley,

dated February 2, 2009, in which she states that she had discussed my expectations concerning

duty monitor performance. The e-mail, however, did not outline the substance of those

conversations, or mention any written explanation of the duty monitor's performance

expectations. Ms. Wheatley sent this e-mail to the various study hall monitors, but also sent it to a

former employee. Attached as Exhibit 19 is Ms. Wheatley's follow-up e-mail of February 5,

2009, regarding the planned meeting of February 13,2009, and my response.

15. Attached as Exhibit 20, please find the written reprimand I issued to Ms.

Wheatley on February 9, 2009. The reprimand notes that Ms. Wheatley's mass e-mail of

February 2 included information relating to one individual employee's job performance. This was

highly inappropriate. In addition, the reprimand noted that Ms. Wheatley had abdicated her

responsibility for those performance issues. I felt that Ms. Wheatley had attempted to shift the

blame Mr. Papouroas, her assistant principal, for her own poor performance managing the study

hall problem. In addition, by informing the duty monitors that she was communicating my

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expectations, not her expectations, I felt that Ms. Wheatley was abdicating any responsibility for

setting perfonnance standards for employees who worked in her school building.

16. Attached as Exhibit 21, dated February 10,2009, is Ms. Wheatley's rebuttal

to the February 9, 2009 reprimand. In the second paragraph of the rebuttal, Ms. Wheatley

mentioned that the duty monitors had been infonned of their job duties and perfonnance

expectations "on the first day of school, August 24, 2008." This response was unacceptable to me

because I had observed deficient perfonnance by the duty monitors in Ms. Wheatley's building

and I had specifically instructed her in my February 2 e~mail that she was to layout her

perfonnance expectations in writing. See Exhibit 17. Ms. Wheatley's rebuttal also disturbed me

because she did not seem to grasp my expectation that she take ownership of her staffs

perfonnance issues.

17. Ms. Wheatley's charge claims that the Board Vice President, Joe

Muscatello, sent her a "frightening" e-mail. Attached as Exhibit 22 is the e-mail of March 18,

2009, from Dr. Muscatello to Ms. Wheatley, which was copied to me and Board President Tony

Vitale. Attached as Exhibit 23, please find Ms. Wheatley's e-mail, dated March 24, 2009,

responding to Dr. Muscatello's e-mail, along with Dr. Muscatello's response. By way of

background, the Board considered, but never adopted, a seven period per day class schedule for

Wickliffe High School. In November 2008, however, Ms. Wheatley created and distributed a

write up, attached as Exhibit 24, announcing that Wickliffe High School had "been instructed to

implement a seven (7) period bell schedule for the 2009-20 10 school year." This statement was

not true, because the Board had never adopted any policy making such a change to the schedule. I

brought this issue to the Board's attention and confronted Ms. Wheatley about the write up. It is

my understanding that, during the November Board of Education meeting, the Board questioned

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Ms. Wheatley about this matter, and about a subsequent letter writing campmgn involving

students. Ms. Wheatley refused to explain her actions and she was later instructed by the Board's

attorney, Tim Sheeran, and her own attorney, Susan Gragel, to submit a written explanation. Dr.

Muscatello's e-mail appears to be a follow up on those instructions.

18. The Board and I did not confront Ms. Wheatley about the November 2008

write up to harass or retaliate against her. Instead, we addressed the issue with Ms. Wheatley

because she had misinfonned the public that the Board had ordered that the District's only high

school change its entire schedule. Neither the Board nor I had even issued any such order. Such a

schedule change would have impacted teachers, students, non-teaching employees, and parents

alike, which is why Ms. Wheatley's incorrect write up was so disturbing to us. In addition, Ms.

Wheatley never showed me or the Board the write up before distributing it. This created problems

for me and the Board members, because we were forced to respond to incorrect infonnation in an

official school document that we had never seen or approved. Finally, in her November 2008

write up, Ms. Wheatley made it appear that she had been instructed to change the High School's

schedule, which was false. No one instructed Ms. Wheatley to change the schedule or to

announce such a change to the public. Dr. Muscatello's e-mails, which Ms. Wheatley claimed

were "frightening," sought to address these issues.

19. Ms. Wheatley's charge claims that I filed a "complaint" with the Ohio

Department of Education at the end of April 2009. This is not accurate and, in the context of her

charge, misleading. On or about March 31, 2009, a teacher approached me to report that she was

uncomfortable with a particular practice at the High School. She initially explained that high

school students were receiving 12 credits for a speech class during a class period in which they

were earning 1 or more credits for English. The teacher's concern was that the English class did

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not actually cover the elements of the speech course, but the students were getting credit anyway.

In addition, students were receiving a total of 1'l2 to 2 Y2 credits for only 1 credit of work. Finally,

since speech is a graduation requirement, students were given credit toward both the required

credits for graduation, and for completing a required class that they, in fact, never took.

20. As the teacher explained what was happening, I concluded that this

practice, in effect, meant that students might have graduated who did not actually meet the Board

of Education's requirements for graduation. I was also concerned that state and federal special

education laws might have been violated if special education students' class assignments were not

consistent with their individualized education program ("IEP"), or if they received credit for

courses they never completed, or that a "free and appropriate public education" ("FAPE") was not

afforded to these special education students because they were graduated from the High School

without meeting the same graduation criteria as regular education students. The teacher informed

me that she had tried to use the chain of command and have Ms. Wheatley solve this problem.

The teacher even showed me e-mails documenting her efforts to have Ms. Wheatley rectify the

situation. Ms. Wheatley, however, had taken no action to correct the problem, so the teacher went

"over her head" and came to me.

21. Ms. Wheatley's charge claims that she received a written reprimand on

May 26, 2009 and it implies she received another one on June 2, 2009. This is not accurate.

Rather, on April 15, 2009, I confronted Ms. Wheatley about this "double booking" practice and

she admitted that it had occurred. At the time, Ms. Wheatley rationalized the practice by claiming

that speech "used to be" a part of the English curriculum (before my tenure), so she saw no harm

in giving 1Y2 credits for 1 credit of work. Ms. Wheatley, however, never informed me about this

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practice, she never sought my approval, and she never informed the Board or sought its approval,

either.

22. Later, in a written response, Ms. Wheatley implied that, for the double

booked special education students, their IEPs had not been violated because they were receiving

the interventions required by their rEPs while attending those double booked, multiple credit

classes. See Ms. Wheatley's rebuttal to my draft reprimand, dated May 29, 2009, attached as

Exhibit 25. But none of these students had "double credit" courses listed on their IEPs. Based on

this explanation and the teacher's complaint, I was worried that this practice might be illegal when

applied to special education students because it would violate the requirement that the District

provide a "free and appropriate public education" ("FAPE") to special education students. I was

also concerned that this may have been "the tip of the iceberg" to a more widespread problem

with special education in the High School.

23. In April 2009, I contacted Kathe Shelby of the Ohio Department of

Education's Office for Exceptional Children, the agency charged with overseeing special

education in Ohio, and I contacted Jacqueline Barker at the Office for Professional Conduct, the

agency that oversees teacher licenses and practices. I contacted Ms. Barker and Ms. Shelby

because I needed advice on how to deal with the ramifications of possible violations of state and

federal special education laws resulting from the double booking practice that Ms. Wheatley

employed at Wickliffe High School. Ultimately, that investigation resulted in two actions. First,

parents and students who were about to graduate without required courses were given the choice

of (a) free summer school courses resulting in receipt of diplomas upon passing those courses, or

(b) parents and students could select a "credit waiver" option, which would be officially voted

upon and approved by the Board. Second, I issued an administrative reprimand to Ms. Wheatley.

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My reprimand, dated June 2,2009, is attached as Exhibit 26. Attached as Exhibit 27 is my formal

evaluation of Ms. Wheatley's job performance.

24. During the investigation of Ms. Wheatley's management of Wickliffe High

School's "double booking" issue, I uncovered other troubling information. For example, though I

refer to the improper practice as "double booking," one special education student was actually

"triple booked" - given credit for two English courses and speech during a single period. In

addition, contrary to Ms. Wheatley's explanation, I discovered that special education students

were receiving credit for speech during classes that had nothing to do with the school's English

curriculum, i.e., Algebra and Art. A chart of special education students double and triple booked

during the 2008-2009 school year is attached as Exhibit 28.

25. I later found other violations of Board policies, unauthorized practices, and

potential violations of state and federal special education laws and regulations. I discovered that

Ms. Wheatley had created a "work study" program where students received credit for working

jobs during school hours. Ibis program had no curriculum and it had no teacher oversight of the

student's educational performance; as such there was no academic component that would justifY a

student earning credit for working. Despite this, our records show that Ms. Wheatley gave

students as many as 6 credits toward graduation for participating in her unauthorized "work study"

program. Ms. Wheatley, however, had never informed me about these practices, she never sought

my approval, and she never informed the Board or sought its approval, either.

26. I also discovered that Ms. Wheatley gave special education students credit

toward graduation for time spent in tutoring mandated by their IEPs. Special education tutoring is

intended as supplemental help for students having trouble with a course and is known as a "related

service" in special education law. Since tutoring is not an academic subject, and since no

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student's IEP indicated that they would receive credit for tutoring, it was entirely inappropriate

under the special education laws to give credit for a non-academic service. Ms. Wheatley,

however, denoted the students' tutoring time as "support" and gave them credit. Ms. Wheatley

had never informed me about this practice, she never sought my approval, and she never informed

the Board or sought its approval, either. A chart of the unauthorized work study program and

unlawful credit for special education tutoring is attached as Exhibit 29.

27. In reviewing student records, I found that, from 2004 through 2008, Ms.

Wheatley graduated 30 students even though they had fewer than 21 officially approved credits.

This was a violation of the Wickliffe City School District's graduation requirements and was not

approved by the Board of Education.

28. From 2004 through 2008, Charging Party Vicki Wheatley graduated 14

special education students even though they had fewer than 21 officially approved credits. This

was a violation of the Wickliffe City School District's graduation requirements and a violation of

the federal Individuals with Disabilities Education Act (IDEA) and a failure to provide the special

education students a "free and appropriate public education" as required by that federal statute.

Furthermore, this practice was not approved by the Board of Education.

29. From 2004 through 2008, Charging Party Vicki Wheatley graduated 11

students even though they had fewer than 19 officially approved credits. This was a violation of

the state minimum requirements for graduation, a violation of the Wickliffe City School District's

graduation requirements, and this practice was not approved by the Board of Education.

30. From 2004 through 2008, Charging Party Vicki Wheatley graduated 7

special education students even though they had fewer than 19 officially approved credits. This

was a violation of the state minimum requirements for graduation, a violation of the Wickliffe

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City School District's graduation requirements, a violation of the IDEA and a failure to provide

FAPE as required by that federal statute. 1ms practice was not approved by the Board of

Education.

31. Because of the emerging problems I discovered in Ms. Wheatley's

management of Wickliffe High School, I removed her from the High School Principal position

and put her on home assignment, with full pay and benefits.

32. On or about July 15, 2009, Marilyn Foote, the interim High School

Principal, discovered another issue. She learned and reported to me that, during the 2008-2009

school year, five teachers were teaching classes for which they had no certification. Specifically,

two mathematics teachers were teaching weightlifting; a teacher certified for history, bookkeeping

and basic business was teaching government; a teacher certified for English and science was

teaching web page design; and a teacher certified for business education and bookkeeping was

teaching computer applications, multi-media and yearbook. The teachers teaching outside their

areas of certification produced error codes in the District's reporting to the state education

management information system ("EMIS"). These EMIS error codes, in turn, jeopardized some

of the District's state funding under the state's rules, which penalize school districts for not having

a "HigWy Qualified Teacher" ("HQT") teaching students. Ms. Wheatley had never informed me

about this practice, she never sought my approval, and she never informed the Board or sought its

approval, either. Moreover, the practice of assigning teachers outside their area of certification

was contrary to my express directive to all principals that every assigned teacher would be

certified for the courses they were assigned to teach.

33. I also learned that, during the 2008-2009 school year, Ms. Wheatley

instructed the High School Assistant Principal to have duty monitors teach classes when other

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substitutes were not available. While some of the duty monitors held teaching certificates, others

did not. Most importantly, however, none of the duty monitors were Board approved as substitute

teachers. This created a situation where students were, in some instances, taught by unlicensed

individuals. Conversely, duty monitors were assigned to do a job for which they had not been

hired, for which they had not received training, and for which they had not been approved. Ms.

Wheatley had never informed me about this practice, she never sought my approval, and she never

informed the Board or sought its approval, either. Furthermore, during the same timeframe when

I was instructing Ms. Wheatley to take charge of managing the then-unacceptable job performance

of the high school duty monitors, she was assigning those same individuals to teach classes.

34. I reported all the facts I discovered to the State Board of Education's Office

for Professional Conduct, for their investigation and possible discipline of Ms. Wheatley. To my

knowledge, the State Board of Education has not taken any action on Ms. Wheatley's licenses.

35. On July 31, 2009, Ms. Wheatley submitted a letter requesting a transfer to

a teaching position. Attached as Exhibit 30, please find Ms. Wheatley's letter requesting a

transfer and attached as Exhibit 31, please find Ms. Wheatley's employment contract. During this

same time period, the Board's attorney, Adam Miller, has engaged in negotiations with Ms.

Wheatley's attorneys to try to resolve the situation with Ms. Wheatley's employment. To date,

the parties have not come to any agreement regarding her employment.

36. As a result of Ms. Wheatley's various unauthorized decisions concerning

special education students, the work study program and giving academic credit for tutoring, the

Board has been forced to conduct a complete audit of the special education program at Wickliffe

High School.

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 37. Ms. Wheatley's violations of Board policies, state and federal laws and

regulations, and acceptable administrative practices would, in my opinion, constitute sufficient

cause to terminate Ms. Wheatley's employment contract under Ohio's statutes. The Board of

Education, however, has not yet taken any action to terminate Ms. Wheatley's employment, or

suspend her without pay pending termination, because the investigation of Ms. Wheatley's job

performance is still in process.

~fi ~1f1
KATHLEEN 1 INTAVEY, PH~'
Fl.])
'
SWORN TO BEFORE ME and subscribed in my presence this C)'+~ay of

October, 2009.

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