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

Categories: Broward News

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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