FAU Hearing on Firing of Dolphin Expert Stephen McCulloch May Be Heated

The grievance hearing tomorrow in the case of Stephen McCulloch, the "dolphin gurn" fired by FAU, has been preceded by wrangling over procedure. The school has agreed to allow McCulloch to bring witnesses and cross-examine the school's witnesses but has declared the hearing a closed-door affair. See also: - Dolphin Expert Stephen McCulloch Fired by FAU, Seeks Reinstatement

McCulloch's attorney, Barry Silver, feels the school's guidelines still fail to assure his client's rights, however. A ruling upholding McCulloch's firing may lead to legal action against the school.

McCulloch -- for 15 years a key figure in marine mammal rescue and research at FAU's Harbor Branch Oceanographic Institute (HBOI) in Fort Pierce -- was fired by the school February 14 in the aftermath of an unorthodox dolphin rescue last December.

According to a January 6 letter from the National Marine Fisheries Service (NMFS), the federal agency that oversees marine mammal conservation, McCulloch on December 28, in response to a Vero Beach dolphin stranding, moved the dying animal from the beach to a nearby swimming pool without prior approval from higher-ups in the NMFS.

The NMFS letter described McCulloch's unauthorized transport of the dolphin and his failure to notify the pool's owners of health risks as "egregious violations." For that, the Fisheries Service suspended HBOI from marine mammal rescue for 30 days and placed the institution on probation for a year.

The NMFS did not, however, ask that McCulloch be fired. That was FAU's decision. FAU officials have refused to discuss the matter, citing "a long-standing policy of not commenting on personnel actions."

In a January 24 news release, however, the school repeated the "egregious violations" language, charged an unnamed "HBOI staff member" with "possibly exposing" the public to "dangerous pathogens," and said "our employee" put the Vero Beach swimming pool's owners through the trouble and expense of draining and decontaminating the pool. (According to the Vero News, HBOI picked up that tab; set it back a grand. And no one on the scene is known to have taken ill.)

The school recounted the NMFS findings in a January 24 "notice of proposed termination" and dismissed McCulloch's rebuttal. "You attempt to convince the reader that you acted in the animal's best interest and protected the bystanders," FAU Interim Provost Gary Perry wrote. "The evidence and your actions contradict these statements."

On February 14, following a predisciplinary hearing with FAU officials, the school fired McCulloch for "substandard, incompetent, unprofessional or incomplete performance"; "falsification of records"; and "violation of safety practices."

Reaction to McCulloch's firing has been widespread and impassioned, both from leading figures in the world marine mammal science community and from witnesses to the December dolphin stranding.

Here's how John A. Knight, an internationally known zoo and wildlife consultant, put McCulloch's case in a January 28 letter to Interim Provost Perry:

I have spoken to Steve about what happened on the 28th December 2013 on Vero Beach, and his subsequent actions. I understand, as he does, that protocol was broken, and as such he has committed a misdemeanor. However, there were mitigating circumstances... It appears that Steve made the most of what circumstance allowed... In this incident no individual person or animal was injured as a consequence of Steve's actions; the stranding was successfully attended and humanely concluded. Whilst Mr. Steve McCulloch might expect an investigation and possibly a reprimand, it appears to me that the impending termination of his contract is a grossly disproportionate reaction to his misdemeanor. I also fail to see how it could be to the benefit of the Harbor Branch Oceanographic Institution, or its national and international reputation.

Two individuals who were present at the Vero Beach stranding have written to FAU in support of McCulloch. One, following a detailed description of the anxieties of the day, concluded:

Through this entire ordeal, I was so impressed with Mr. McCulloch's handling of all the factors in play: assuaging the concerns of animal welfare champions, educating children and keeping them out of harm's way, continually monitoring the dolphin's vital signs, communicating with his team... [He] obviously knows how to take care of dolphins, but his public relations and emergency management skills were some of the most masterful I've ever seen.

The full extent of FAU's case for firing McCulloch -- instead of merely reprimanding him -- is unknown. One veteran member of the South Florida marine mammal science community told New Times that HBOI interim director Megan Davis, who fired McCulloch, told a gathering of marine mammal scientists that "there's more to the case" than the Vero Beach stranding, but that she disclosed no details. It is widely held that McCulloch -- self-taught in marine mammal science and a bit of a hot dog -- may simply be the victim of a clash of cultures.

Barry Silver has pushed the school to grant McCulloch the most generous possible interpretation of its grievance procedure, which is described in FAU regulation 5.009.

In an April 23 email to FAU Senior Associate General Counsel Lawrence Glick, he argued that since the regulations place the burden of proof on the school and allow McCulloch to (1) review all evidence and argument against him, (2) present evidence and argument of his own, (3) submit rebuttal evidence, and (4) be represented by counsel -- and since "A basic right of counsel includes the right of cross-examination, which I intend to utilize for any adverse witnesses or evidence" -- the two hours the school had allowed for the hearing was insufficient.

Silver argued that, depending on how aggressive and global a case the school presented against McCulloch, 12 or more hours would be required for a full and fair hearing:

this hearing should require a minimum one full day even without a lunch break, and due to the numerous issues, evidence, expert testimony and the gravity of this decision for Mr. McCulloch, FAU and marine mammal research and protection, two days, not two hours, should be scheduled in order to comply with FAU's termination regulations and due process.

Silver also pressed the school to open the hearing to the media and public:

I would also like to know why, if Mr. McCulloch has no objection, FAU would not want the public to know why it is making a decision that is considered wrong by so many people. Wouldn't FAU want the public to understand the basis for this very serious and momentous decision, rather than have it shrouded in mystery?

As conveyed by Glick to Silver, Hearing Officer Stacy Volnick (FAU President John Kelly's chief of staff and liaison to the school's board of trustees) granted an additional hour for the hearing and wrote, without explanation:

Live testimony is permitted but not necessary. You may present evidence or testimony in writing at the hearing. This will be a closed hearing. Please advise your client and contacts. Only hearing participants may attend.

Glick offered this additional comment:

With regard to duration, there is no need for you to "read some of the letters of support and expert testimony for those who are unable to attend." Rather you can simply submit those documents with the other documents you plan to introduce to the record for the Hearing Officer's consideration. Given the duration of the hearing, you may plan accordingly to collect other written documentation, reports or transcripts from those witnesses who may not have time to testify in person. The Hearing Officer stated in her April 14 email to us that she will accept all those documents... notwithstanding my inability to cross examine those witnesses.

In an email to New Times, FAU General Counsel David Kian offered more detail:

The University disagrees with Mr. Silver's analysis of the public access issue. This is not a meeting of any board or public body. It is a review of an internal administrative process that will be conducted by a single University official. As University Regulation 5.009 states, the presiding official is the sole decision maker. Florida law is very clear (as Mr. Silver's email seems to concede) that internal, personnel meetings conducted by a single official are not open meetings. [Silver disputes that "a single official" is involved, citing the presence of school counsel as well as hearing officer Volnick.] The presiding official has determined that the proceeding will be conducted most efficiently, and the evidence presented most reliably, if access is restricted to participants. That decision fully comports with all legal requirements.

Silver remains unsatisfied, per this email to New Times:

There are many complex issues and fabrications against Steve in this case, that cannot be adequately refuted in the time allotted by FAU for this hearing...

It appears that regulation 5.009 permits cross-examination in termination proceedings and this cannot be done in an hour or even three hours with all the witnesses who are needed to defend Steve. FAU's [original] scheduling of one hour for this hearing indicates a rubber stamp not a hearing for one of the most highly respected marine mammal protectors in the world.

Should FAU rule against McCulloch (a decision is due within 15 days of the hearing's conclusion, unless both parties agree to an extension), further legal action is possible, perhaps likely. As Glick noted in an email to Silver, "Perhaps [closing the hearing to the public] is an issue for post-hearing appellate review." To which Silver replied:

I would also like a record of these proceedings for appellate review. Please advise whether FAU intends to record this hearing, and if it has an objection to someone else doing so if you shall not. Please also advise us of your understanding of Mr. McCulloch's appellate rights if he wishes to contest the decision made about his termination.

Without addressing the matter of McCulloch's appellate rights, Glick responded:

These proceedings are recorded by a digital voice recorder unless the grievant arranges for a court reporter to transcribe the hearing for appellate review at his expense. Please advise if a court reporter will be present.

Silver has told New Times he "will try to find a court reporter." Otherwise, like the rest of us, he will have to rely on FAU's audio recording of the hearing, which, according to FAU General Counsel Kian:

will be available more or less immediately after the hearing officer is finished with it. FAU's Media Relations office will, as always, have a reasonable period to respond to any request for it, so that they can get the tape and arrange for the requestor to either listen to it here or have a copy made. But there is no additional period in which it is exempt from public access.

Stephen McCulloch's grievance hearing will be held Tuesday from 9 a.m. to noon in the Controller's Conference Room, first floor, FAU Administration Building, on the Boca Raton Campus.

Fire Ant -- an invasive species, tinged bright red, with an annoying, sometimes-fatal sting -- covers South Florida news and culture. Got feedback or a tip? Contact Fire.Ant@BrowardPalmBeach.com.

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