vs. ) CASE NO. 87-5059
Respondent. )
Pursuant to notice, a formal hearing in this case was held on February 1, 1988, in Pensacola, Florida, before the Division of Administrative Hearings, by its designated Hearing Officer, Diane K. Kiesling.
For Petitioner: Philip J. Padovano
For Respondent: James G. Roark, III
The issue is whether Petitioner, Ricky Lynn Sapp (Sapp), was nonrenewed for his annual teaching contract for constitutionally permissible reasons.
Petitioner presented his own testimony and that of Robert Husbands and Dr.
Roger Mott, together with Petitioner's Exhibits 1-7 which were admitted in evidence. Respondent, the School Board of Escambia County, presented the testimony of Ricky Lynn Sapp and Charles McCurley. Respondent's Exhibits 1, 2, and 4 were admitted in evidence.
The transcript of the formal hearing was filed on February 8, 1988. Respondent's Proposed Recommended Order (which was incorrectly styled as Petitioner's Proposed Recommended Order) was filed on February 12, 1988. Petitioner's Proposed Recommended Order was filed on February 19, 1988. All proposed findings of fact and conclusions of law have been considered. A ruling on each proposed finding of fact is made in the Appendix attached hereto and made a part of this Recommended Order.
The Petitioner has been employed by the Escambia County School Board as an annual contract school teacher for the last three years, from the 1984-85 school year, through and including the 1986-87 school year.
On December 12, 1986, the Department of Education notified the Petitioner of a pending investigation concerning his Florida Teaching Certificate. The investigation was based on a complaint made in connection with the Petitioner's November 5, 1986, arrest for a lewd and lascivious assault on a child.
On January 20, 1987, the Respondent [the Superintendent] charged the petitioner with "misconduct in office and immorality," and notified him that he would recommend that the Petitioner be suspended without pay. The charge of misconduct in office and immorality was also related to the Petitioner's arrest for lewd and lascivious assault on a child.
The School Board met in regular session on January 27, 1987, and voted to reject the [Superintendent's] recommendation to suspend the petitioner without pay pending the outcome of the charges filed against him. During the meeting, one of the School Board members indicated that he had a problem suspending a teacher on the word of one student when there were no witnesses to the alleged incident.
In April, 1987, the Petitioner received the standard nonrenewal letter that is sent to all annual contract teachers employed by the Escambia County School Board.
On August 12, 1987, the Petitioner was tried by a jury in Escambia County on the criminal charge of lewd and lascivious assault. At the close of the trial, the jury found the Petitioner not guilty of the offense, and the circuit court subsequently rendered an order adjudicating the Petitioner not guilty and discharging him for each of the offenses charged in the information.
Approximately one week after the not guilty verdict, the Department of Education advised the Petitioner that a new complaint had been filed alleging that the Petitioner had failed to disclose prior arrests on his application for a teaching certificate.
Both before and after the jury verdict, the Petitioner made regular inquiries at the School Administration office to determine whether his annual contract would be renewed for the 1987-88 school year.
FINDINGS OF FACT
Petitioner was first employed by the Escambia County School Board for the 1984-85 school year in the compensatory education program at Bellview Middle School and later that school year he took the place of an eighth grade math teacher who was out on maternity leave.
Sapp holds a Florida Teaching Certificate in elementary education and is not certified to teach in middle school. He has a bachelors degree. Sapp
was asked by the School Board to take the courses necessary to become certified in middle school math, but did not do so because he was working at another job at the time.
Petitioner was hired on annual contract by the principal of Bellview Middle School to teach seventh grade math during the 1985-86 school year and to teach sixth grade for the 1986-87 school year.
For the most part, Sapp received excellent performance evaluations from the Bellview principal.
In September, 1986, a mother of a Bellview Middle School student complained to the principal regarding what she believed to be unacceptable contact between Sapp and her son. The principal told Sapp to stay away from the student, but the parent's complaints continued. The student had been in Sapp's seventh grade math class the prior school year.
On November 7, 1986, Sapp was arrested for lewd and lascivious assault on that student. As a result of these charges the Superintendent of the Escambia County School District recommended to the School Board that Sapp be suspended without pay. The School Board voted to disapprove the Superintendent's recommendation. Instead, Sapp was reassigned to administrative duties at the Hall Center.
In the fall of 1986, Sapp was also notified by the Department of Education, Professional Practices Services (PPS), that an investigation of the allegations involved in the criminal charge had been instituted.
On April 1, 1987, Sapp received the standard memo from the School Board, signed by the Bellview principal, indicating that his annual contract was going to expire at the end of the 1986-87 school year. The memo also indicated that the school district would move as rapidly as possible on the reappointment of the annual contract teachers recommended to the Superintendent for reappointment for the 1987-88 school year, but "personnel assignments resulting from the closing of the Beggs Center and the redistricting of all middle school boundaries greatly obscures the timeline for such reappointments."
During the summer of 1987, Sapp talked to Dr. Roger Mott, the Assistant Superintendent for Personnel Services of the school district, and others in his office regarding appointment to an annual contract for the 1987-88 school year. Sapp claims he was told by Mott that he would not be rehired until after his criminal trial. Mott denies telling this to Sapp. Because Sapp's testimony was very confused and contradictory regarding these alleged statements by Mott, Sapp's version is given little weight. Instead, it is found that Mott did not tell Sapp that he would be rehired after the criminal trial.
During the discussions between Sapp and Mott in the summer of 1987, Mott did tell Sapp that he was free to interview with any principals in the district for open annual contract positions, however those principals who inquired would be told that there was a Professional Practices Services investigation.
Sapp expressed interest only in employment at Bellview. During 1987 the middle schools of Escambia County were redistricted. As a result of redistricting, Bellview Middle School anticipated losing approximately 300 students and 10 teaching positions for the 1987-88 school year.
After the jury found him not guilty on August 12, 1987, Sapp again inquired regarding employment. According to Charles McCurley, principal of Bellview Middle School, there were no positions available at Bellview.
By letter dated August 21, 1987, Sapp was advised that the Professional Practices Services was investigating two complaints. The first related to the charge of lewd and lascivious assault on a child. The second complaint was that Sapp had received his teaching certificate by fraudulent means because he failed to disclose two criminal convictions on his applications.
Mott became aware of the PPS investigation and he discovered that Sapp had apparently falsified the applications for his teaching certificate and the applications for employment with the Escambia County School District.
Mott then informed Sapp that the chances of reemployment were not good and that he could not be considered for employment until the PPS investigation was complete.
Mott also testified that Sapp was not reemployed because of the information that formed the basis of the second PPS investigation.
While this is not the place to determine whether or not Sapp falsified these applications, it is necessary to determine what facts the Respondent acted on in not renewing Sapp's annual contract. Sapp's applications to both the school district and the state showed that he answered "no" when asked if he had ever been convicted of a felony or first degree misdemeanor or other criminal offense other than a minor traffic violation. Sapp has, in fact, been convicted of at least two such violations which were not disclosed.
Sapp approached Robert Husbands, Executive Director of the Escambia Education Association, for assistance in getting employment. Husbands talked to Mott. Mott informed him that Sapp could not be rehired until the PPS investigation was resolved.
Husbands found that there were seven teaching positions in the whole county which were vacant at the beginning of the 1987-88 school year. Two of those positions were located some distance from Pensacola. Only one of those positions was known to have been filled by an annual contract teacher.
There were 37 annual contract teachers in the school district who were not renewed for the 1987-88 school year. Eight others who were not renewed at the beginning of the school year were rehired during the year.
Because of redistricting, Bellview had only one opening for an annual contract teacher after it placed its continuing contract teachers. That one opening was for reading and was filled by a reading teacher with a masters degree. Sapp was not qualified for that position.
After the 1987-88 school year had begun, Bellview experienced increased enrollment and a resulting increase in teaching positions. Those positions were filled by teachers who were teaching in their field of certification and who were at least as qualified as Sapp.
It was very important that Bellview have teachers working in their area of certification because the school was to be audited for accreditation in the 1987-88 school year.
Sapp's former position at Bellview was filled by a continuing contract teacher who had previously taught seventh grade and who was certified to teach in both middle and elementary school. The teacher who took over Sapp's class in the 1986-87 school year was not rehired.
During the first week of the 1987-88 school year, Sapp sought employment at Bellview and the principal correctly told him there were no jobs. Later, in October, 1987, a position opened up at Bellview and a continuing contract teacher with a masters degree in reading and 18 years of experience was transferred in at her request.
Sapp believes he was not renewed as retaliation for the School Board's rejection of the Superintendent's recommendation for suspension on January 27, 1987. This allegation is based only on Sapp's personal feeling and no evidence was presented to substantiate his belief.
Sapp also believes he was not renewed because of the arrest itself. Again, no evidence was presented to substantiate his belief.
By letter of September 18, 1987, the School District, through counsel, advised Sapp's attorney that Sapp would not be considered for reemployment until the PPS investigation was concluded and the District was advised of the results.
The PPS has not filed any complaint against Sapp based on either of its investigations.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of these proceedings. Section 120.57(1), Florida Statutes.
An annual contract teacher has no expectation of continued employment and no property interest in continued employment. However, the school district may not refuse to renew an annual contract for a constitutionally impermissible reason. Givhan v. Western Line Consolidated School District, 439 U.S. 410, 99 S.Ct. 693 (1979); Mt. Healthy City School District Board of Education v. Doyle,
429 U.S. 274, 97 S.Ct. 568 (1977); Allen v. Autauga County Board of Education, 685 F.2d 1302 (11th Cir. 1982).
In determining whether the Respondent unconstitutionally failed to renew Sapp, Sapp has the initial burden of demonstrating that his conduct was constitutionally protected and that this conduct was the substantial or motivating factor in Respondent's decision not to rehire him. Only after Sapp has met his burden does the burden shift to the School Board to prove that the decision to nonrenew would have been reached even in the absence of the protected conduct. Mt. Healthy, supra; Allen, supra. The standard of proof is defined by those courts to be by a preponderance of the evidence.
In the present case, Sapp alleged that he was nonrenewed for three reasons:
Because he had been arrested for the criminal offense of lewd and lascivious assault on a child;
Because the Superintendent was retaliating
for the School Board's rejection of his recommendation to suspend Sapp without pay.
Because Sapp had been the subject of a formal accusation resulting in an investigation by the PPS.
Sapp did not prove, by a preponderance of the evidence, that he was nonrenewed because he had been arrested or because the Superintendent was retaliating for the School Board's rejection of his recommendation. He also failed to prove that his conduct was constitutionally protected. While most of the cases involving nonrenewal of annual contracts arise in the context of conduct protected by the First Amendment of the U.S. Constitution, Sapp was able to point to one case which did not relate on its face to First Amendment rights. In Stoddard v. School District No. 1, Lincoln County, Wyoming, 590 F.2d 829 (10th Cir. 1979), the Court concluded that the school district could not decline to reappoint a teacher on annual contract because of her "physical size, lack of church attendance, the location of the house trailer in which she lived, and the conduct of her personal life." The Court generally said that such reasons were constitutionally impermissible, however, it never specified which constitutional provisions were violated.
Stoddard does not expand the reasons which are constitutionally impermissible in Florida. As applied in Florida and its federal circuit, constitutionally impermissible reasons for nonrenewal are limited to race or religion or the exercise of first amendment rights. Pred v. Board of Public Instruction, 415 F.2d 851 (5th Cir. 1969); Thaw v. Board of Public Instruction of Dade County, Florida, 432 F.2d 98 (5th Cir. 1970).
In the present case, Sapp did prove that one consideration in the mind of Dr. Mott was that Sapp was under investigation by the PPS for allegations of lewd and lascivious assault on a child and falsification of applications for certification. Mott also had reason to believe that Sapp had falsified his application for employment. The conduct which is being investigated is not constitutionally protected as specified in Pred and Thaw.
Even if the conduct were constitutionally protected, Sapp did not prove that it was a substantial or motivating factor in the decision not to rehire him. Sapp did not point to one position for which a principal recommended him for employment on annual contract. This is not a case where a principal wanted to employ Sapp, but Dr. Mott or the Superintendent failed to agree to the recommendation. Instead, Sapp only showed that he sought employment at his old school and that the principal at Bellview had no jobs available.
Further, there has been no case cited to support a proposition that Respondent could not refuse to rehire Sapp once it became aware of the possible falsification of his application. This is not constitutionally protected conduct. The Respondent is not required to prove that Sapp did falsify his applications for certification and for employment in order to consider that information when filling positions with annual contract teachers.
It is concluded that Sapp is not entitled to relief from the nonrenewal of his annual contract.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner, Ricky Lynn Sapp, be DENIED relief from the
nonrenewal of his annual contract and that his request for relief be DISMISSED. DONE and ENTERED this 8th day of March, 1988, in Tallahassee, Florida.
DIANE K. KIESLING
Filed with the Clerk of the Division of Administrative Hearings this 8th day of March, 1988.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-5059
The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case.
Specific Rulings on Proposed Finding's of Fact Submitted by Petitioner, Ricky Lynn Sapp
Specific Rulings on Proposed Findings of Fact Submitted by Respondent, School Board of Escambia County
G. James Roark, III, Esquire
Philip J. Padovano, Esquire Post Office Box 873 Tallahassee, Florida 32302
