STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

POLK COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 90-7246

)

FERRIS A. FRENCH, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a formal hearing in the above- styled case on January 24, 1991, at Bartow, Florida.

APPEARANCES

For Petitioner: Donald H. Wilson, Esquire

Post Office Box 1758 Bartow, FL 33838-1758

For Respondent: John D. Carlson, Esquire

1709-D Mahan Drive Tallahassee, FL 32308

STATEMENT OF THE ISSUES

Whether Respondent's performance as Principal at Lake Vista Elementary School was less than satisfactory so as to warrant his transfer to Kathleen Junior High School as Assistant Principal.

PRELIMINARY STATEMENT

As a result of information received by Polk County School Board administrative personnel, including the Superintendent, to the effect that Respondent was involved in an extramarital affair with a secretary Respondent hired to work at the Lena Vista Elementary School, Respondent was transferred to the Kathleen Junior High School in the 1989-90 school year as Assistant Principal with no reduction in pay. Respondent requested written reasons for his transfer and an administrative hearing. He received no specific charges, only a general statement to the effect that his private affairs had involved the work place to such an extent that he was perceived to have lost credibility and effectiveness at the school; and that, since no reduction in pay was involved in his transfer, he was not entitled to a Chapter 120, Florida Statutes, hearing.

This Final Order was appealed to the Second District Court of Appeal. In French

1. School Board of Polk County, 15 FLW D-2697 (Fla. 2nd DCA 1990), the Court reversed the order of the School Board and directed Respondent be awarded a "full fledged administrative hearing under Section 120.57(1)."

   By letter dated November 12, 1990, the School Board of Polk County, by and through its attorney, forwarded a copy of this opinion to the Division of Administrative Hearings asking the letter be accepted as a request for the hearing ordered by the court. The case was assigned to the undersigned who requested the School Board to allege a basis for their action in transferring Respondent so the issues could be framed in a Notice of Hearing. Formal charges were never received; however, by letter dated December 19, 1990, addressed to Respondent's attorney, the reason for Respondent's transfer to Kathleen Junior High School was given as:

   
   

   The superintendent determined that Mr. French's competency and adequacy of his work performance was less than satisfactory as a result of Mr.

   French's conduct which created the impression among his supervisors and the stafff at has school that he was having an extramarital affair with a member of the staff. Such con-

   duct undermined his effectiveness as a principal, damaged the moral [sic] among the faculty and staff at the school, and created fear of repri- sal on certain members of the faculty and staff.

   
   

   The case proceeded to hearing on those issues. At the hearing, Petitioner called ten witnesses, including Respondent; Respondent called three witnesses, including himself; and 17 exhibits were offered into evidence. Ruling on objection to the admissibility of Exhibit 1 into evidence was reserved at the hearing. That objection, on grounds of relevancy, is now sustained. All other exhibits were admitted into evidence. Proposed findings have been submitted by the parties. Treatment accorded those proposed findings is contained in the Appendix attached hereto and made a part hereof.

   
   

   FINDINGS OF FACT

   
   

   1. At all times relevant hereto, Ferris A. French (French or Respondent), was employed by the Polk County School Board as a Principal under a multi-year contract. He has been certified as a Principal.

      
      

   2. Multi-year contracts for administrative personnel first came into being in 1985. At that time, French was employed as Principal of Lake Alfred Elementary School through the school year 1984-85.

      
      

   3. For the school year 1985-86, Respondent was transferred to Principal of Lena Vista Elementary School, and he was given a multi-year (three years) contract for the school years 1985-86, 1986-87 and 1987-88. (Exhibit 2)

      
      

   4. During his last year at Lake Alfred Elementary, one of the teachers at the school complained to the Superintendent that Respondent had made unwanted sexual advances. Respondent was directed to report to the Superintendent's office to face the complaining teacher. Respondent adamantly denied the accusations, and requested an investigation by the Professional Practices Council. No further action was taken in this matter.

      
      

   5. Shortly thereafter, an opening appeared for Principal at Lena Vista Elementary School, and Respondent requested a transfer to Lena Vista because it was a larger school. In accordance with this request, Respondent was transferred to Lena Vista.

   6. Upon completion of the three-year, multi-year contract for the school year 1987-88, Respondent was recommended for a three year renewal of his multi- year contract to commence the school year 1988-89 (Exhibit 3). Due to administrative oversight this contract was not issued until October 31, 1989 (Exhibit 15).

      
      

   7. During the 1986-87 school year, Susan Kelly was hired as a part-time teacher's aide and part-time secretary at Lena Vista by Respondent. During the school year 1987-88, Lena Vista was authorized another full time secretary, and Susan Kelly was employed in this position.

      
      

   8. It became apparent that Respondent and Kelly were often gone from the school about the same time during the lunch period, and rumors of a romantic liaison between French and Kelly became rife.

      
      

   9. The superintendent's office received one or more anonymous telephone call alleging improper conduct on the part of Respondent and Kelly.

      
      

   10. Around the same time Respondent was having marital difficulties and separated from his wife. He then filed for divorce. Kelly also dissolved her marriage through divorce.

       
       

   11. At the direction of the superintendent, William Boykin, Deputy Superintendent, met with the Respondent to discuss the allegations of impropriety made in the anonymous calls, and Respondent denied the truth of the allegations.

       
       

   12. On another occasion, Bill Moore, an Area Superintendent in charge of the area which included Lena Vista, discussed the rumors with Respondent, who again denied any improprieties.

       
       

   13. Following their respective divorces, French and Kelly started dating. Because of the rumors, Kelly began looking for another job, and during the school year 1988-89 she left her position at Lena Vista and became employed in the private sector. This occurred shortly after Moore had discussed the problem with Respondent.

       
       

   14. Following Kelly's departure from Lena Vista, the rumors abated. Respondent and Kelly were subsequently married.

       
       

   15. None of the six witnesses testifying in these proceedings, who were at Lena Vista school while the rumors regarding Respondent and Kelly were rife, were ever questioned by personnel from the superintendent's office until shortly before this hearing. This would indicate little credence was given to the anonymous calls.

       
       

   16. During the school years 1986-87, 1987-88 and 1988-89, French received no evaluation less than meeting performance expectations, and on several sections in the evaluation he was rated as meeting above performance expectations.

       
       

   17. In June 1989, nearly a year after Kelly became employed elsewhere, Respondent was advised by Moore that he was being involuntarily transferred to another school with no change in his pay status during his multi-year contract.

   18. Respondent's letter dated June 8, 1989 (Exhibit 11) to the Superintendent requested he be advised to which position he was being transferred, where was the school located, what infractions by him warranted disciplinary action and when would he be given a hearing to challenge this decision.

       
       

   19. This letter was responded to by the School Board Attorney who advised Respondent that his private activities had invaded the workplace "to such an extent that you were perceived to have lost credibility and effectiveness as a leader of your assigned school"; that he was being appointed as Assistant Principal of Administration at Kathleen Junior High School commencing with the opening of the 1989-90 school year; that this was not intended to be a charge of misconduct nor a disciplinary action; and that, since there was no change in his salary, he was not entitled to a due process hearing to challenge this transfer.

       
       

   20. French subsequently requested a formal hearing which was denied by Petitioner. It was from this Final Order that French appealed to the Second District Court of Appeal, who ordered that French be granted a formal hearing to consider, intra alia, the length of French's Principal contract, his rate of pay for the duration of that contract, whether his demotion to Assistant Principal is merit based as required by School Board rules, and whether the transfer is consistent with the terms of French's multi-year contract as Principal.

       
       

   21. Donald Cox, Assistant Superintendent for Personnel, testified that Section 6Gx53-3.012 D of the School Board's Policy Manual had consistently been interpreted by the School Board to require for demotional transfers that the employee be subject to a change in job title and a reduction in pay. This section provides:

       
       

       D. Demotional Transfer: The reassignment of an employee to a position on a lower level of supervisory or administrative authority or rank, or from a position of supervisor

       or administrative rank to a position which has no supervisory or administrative authority.

       1. As a result of such demotion, the employee will ordinarily be subject to a change in job title or a reduc- tion in the rate of remuneration (or both).

       2. The School Board may demote an employee represented by the Association if the competency or adequacy of the work per- formance of the employee has, after evaluation, been rated as less than satisfactory by the Superintendent or any designee who has been properly certified and authorized to make such evaluations and ratings.

       3. The District Performance Management Program shall be used for the proper procedure in dealing with this section.

       
       

   22. To achieve the interpretation of the above-cited rule testified to by Cox, it is necessary to change the disjunctive "or" to the conjunctive "and" in Section D.1. and delete the parenthetical "or both".

   23. Respondent presented evidence, Exhibits 16 and 17, showing the additional cost to him resulting from the transfer from Lena Vista to Kathleen. Respondent also requested he be awarded attorney's fees for costs involving the filings of motions to compel discovery.

       
       

       CONCLUSIONS OF LAW

       
       

   24. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

       
       

   25. Section 231.0861, Florida Statutes (1989), provides in pertinent part:

       
       

       2. By July 1, 1986, each district school board shall adopt and implement an objective- based process for the screening, selecting, and appointment of assistant principal and principals in the public schools of this state which meet the criteria approved by

       the Florida Council on Educational Management.

       
       

   26. Pursuant to this authority, the Polk County School Board Policy Manual has been promulgated. Under Rule 6Gx53- 3.012, Transfer is defined as a recommendation of the superintendent to the School Board for the employee to move from one position to another within the school district. Subsection I thereof provides:

       
       

       1. Administrators:

          1. Definitions: Once appointed to an administrative position a move to another position shall constitute one of the following:

             1. Lateral Transfer of an adminis- trator shall be defined as a recommendation of the superinten- dent of the school board of an employee to move from one position to another within the same pay grade of the approved School

                Board salary schedule. (3.4l5)

             2. Promotional Transfer of an administrator shall be defined as an increase in pay grade according to the approved School Board salary schedule.

             3. Demotional Transfer of an admin- istrator shall be defined as a reduction in pay grade according to the approved School Board salary schedule.

          2. School Based Administrators:

             1. Application: Any schoo1-based administrator may apply for a transfer out of a specific work location to another work location.

             2-5. [Not applicable to these proceedings.

          3. Involuntary Transfers:

             1. Notice: Notice of transfer which has not been requested by the employee being transferred shall be

                given to that employee at the earliest possible date, but in no wise less than fifteen work days prior to the effective date of the transfer.

             2. Written Explanation/Conference: The employee given such notice may request a written explanation of the reasons for such transfer or a conference with the Superintendent or his authorized

                designee (or both) to discuss the trans- fer.

                1. The employee shall be given such written explanation or granted such a conference (or both) no later than five working days after the request is received by the office of the Superintendent or his authorized designee.

                2. The employee shall have the right to be accompanied and assisted by a representative of his/her choice at any such conference.

             * * *

          4. [Quoted in Finding 21, above.]

          
          

   27. Section 6Gx53-3.002 defines School Board Administrator to include Principals.

       
       

   28. Section 6Gx53.3.016 provides in pertinent part:

       
       

       School based administrative personnel shall have the following types of contracts:

       1. Multi-year contracts - shall be issued to school based administrative personnel as follows:

          1. Three year contracts: The superin- tendent shall recommend to the School Board a three-year contract for school- based administrative personnel after the third year in said position who receive total satisfactory or better

             in each category on the annual proce- dure for assessing the performance of administrative personnel in the school district.

             * * *

       2. Contract Termination - Where just and sufficient cause exists in accord with

          F.S. 231.36(1)(a), (4)(c), the Board may terminate this contract and discharge the Principal from employment, provided:

          1. That the Principal has received prior notice in writing from the Board of its intent and the alleged cause or causes for such discharge.

          2. Upon written request, a hearing before the Board or its authorized representa- tive shall be conducted with full regard to due process and shall take place prior to the Board taking official and legal action to discharge the Principal.

       
       

   29. The Petitioner's position that the Respondent's transfer from Lena Vista School to Kathleen Junior High School was a lateral transfer and not a demotional transfer was clearly addressed in French v. The School Board of Polk County, supra, adversely to the Petitioner's position, and need not be revisited here.

       
       

   30. Accordingly, Petitioner is left to justify its actions transferring Respondent from his position as Principal at Lena Vista to Assistant Principal at Kathleen Junior High School. Contrary to Petitioner's contentions, this demotional transfer was disciplinary in nature. Accordingly, Petitioner has the burden to prove the allegations justifying the disciplinary actions taken by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987). Those allegations as noted above are that Respondent's competency and adequacy of his work performance was less than satisfactory as a result of Mr. French'ss conduct which created the impression among his supervisors and members of the staff at his school that he was having an extramarital affair with a member of the staff; that such conduct undermined his effectiveness as a principal, damaged the morale among the faculty and staff at the school; and created fear of reprisal among certain members of the faculty and staff.

       
       

   31. Just cause for disciplinary actions against a member of the instructional staff or administrative staff is defined in Section 231.36(1)(a) and (4)(c) to include, but not be limited to, misconduct in office, incompetency, gross insubordination, willful neglect of duty, or conviction of a crime involving moral turpitude. Sherbourne v. School Board of Suwannee County,

       455 So.2d 1057 (Fla. 1st DCA 1984), involved the termination of employment of an unmarried classroom teacher on the grounds that she lacked good moral character by virtue of the admitted fact that she had stayed overnight on several occasions with a member of the opposite sex. The court stated at p. 1062:

       
       

       We are led to conclude from our examination of the authorities on the subject that in the absence of specific, valid, statutory directive, the appropriate standard to be applied is that private, off-campus conduct ostensibly involving a consensual sexual relationship between a teacher and an adult

       of the opposite sex cannot, in and of itself, provide "just cause" for a school board's rejection of a teacher nominated for employ- ment by the superintendent unless it is shown that such conduct affects the ability to teach.

   32. Not a scintilla of evidence was presented that Respondent was guilty of any misconduct in his relationship with Susan Kelly. The alleged diminution of his effectiveness in the school system resulted soley from rumors and gossip, regarding this relationship. No member of the faculty at Lena Vista at this time made a complaint to the superintendent or to a member of the superintendent's staff regarding Respondent's conduct.

       
       

   33. To find just cause for Respondent's demotional transfer, it is necessary that probative evidence be presented that Respondent is guilty of an offense involving moral turpitude or misconduct in office. Notoriety given to this "romantic liaison" and the possible loss of effectiveness such notoriety may engender cannot substitute for probative evidence that Respondent was guilty of personal conduct to which loss of effectiveness can be attributed. Here, nothing but rumor was presented. Regardless of the seriousness of the rumor and its true effect upon the effectiveness of the teacher in the school system, unsubstantiated rumors cannot form the basis for disciplinary action.

       
       

   34. To Petitioner's argument that this demotional transfer was not intended as disciplinary action, it is sufficient to say the Court of Appeal found this transfer to be punitive and directed Petitioner to provide Respondent with due process before such action be taken.

       
       

   35. Petitioner cites Baxter v. School Board of Polk County, DOAH Case No. 87-3650, March 22, 1988, which opinion was authored by this Hearing Officer, to support its position that a Principal may be transferred laterally to an Assistant Principal position without loss of pay. Baxter involved substantially different facts. First, Baxter was not on a multi-year contract, and her performance evaluations were such that she could not qualify for a multi-year contract. Baxter contested her transfer and was afforded a Section 120.57(1) hearing. Just cause for her transfer was presented at that hearing.

       
       

   36. In disciplinary proceedings, it is essential to separate findings and sentence. To reach a finding of guilty, the standard of proof is the same whether the intended punishment is dismissal or an oral reprimand. While the utopian concept contained in Gilbert and Sullivan's Pirates of Pennzance of "a system of justice all sublime, to make the punishment fit the crime" may be hoped for, our system of jurisprudence requires that the crime first be proved before punishment is administered.

       
       

   37. Although there is some dispute as to whether the clear and convincing evidence standard (Ferris, supra) is to be applied to school board disciplinary actions or the lessor standard of preponderance of the evidence, cf. Dileo v. School Board of Dade County, 15 FLW D 2781 (Fla. 3rd DCA 1990), the burden is on the school board to prove the allegations. Here, Petitioner has met neither burden of proof.

       
       

   38. Further, agencies must honor their own substantive rules until they are amended or abrogated. Gadsden State Bank v. Lewis, 348 So.2d 343 (Fla. 1st DCA 1977).

       
       

   39. Grounds for disciplinary action against principals are contained in Policy 6Gx53-3.016, above-quoted. These procedures must be followed regardless of the intended discipline. Whether the Board contemplates contract termination or a lessor penalty, the same procedures need to be followed. This is essentially what the court held in French v. School Board of Polk County, supra.

   40. From the foregoing, it is concluded the Petitioner has failed to prove, by a preponderance of the evidence, that Respondent is guilty of any offense for the commission of which disciplinary action may be taken against him.

       
       

   41. With respect to Respondent's motion for fees for failure of Petitioner to promptly respond to discovery, that motion is hereby denied. The expedited nature of this hearing did not allow time to request and obtain orders to compel and thereafter request sanctions for failure to comply with such orders.

       
       

   42. With respect to Respondent's claim for costs associated with his unwarranted and unauthorized transfer from Lena Vista to Kathleen, even if such damages are of a type that are compensable, this tribunal is without jurisdiction to award such damages absent specific legislation. No such statutory authority for awarding damages as here requested has been cited, and I am unaware of such authority.

RECOMMENDATION

It is recommended that a Final Order be entered finding no legal basis exists for Ferris French's demotion to Assistant Principal has been proved; and that Ferris French be reinstated as Principal of a Polk County School and issued a new multi-year contract beginning with the 1991-92 school year.

ENTERED this 27th day of February, 1991, in Tallahassee, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings The Desoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 27th day of February, 1991.

APPENDIX

Treatment Accorded Petitioner's Proposed Findings:

Petitioner's proposed findings of fact are generally accepted.

2. Last sentence rejected insofar as giving French specific instructions is concerned.

(first) 4(a). Rejected that they were often gone to lunch for 2 hours, 3 times per week.

(second) 4. Second sentence rejected as unsupported by credible evidence. (second) 4(e). First sentence rejected.

(4). Rejected.

5. Second sentence rejected as supported by no evidence. Ultimate sentence accepted only insofar as anonymous telephone calls were received.

1. Accepted, but no written evaluations as required by School Board policy were prepared.

2. First sentence rejected as incomplete. Balance accepted insofar as not inconsistent with H.O. #21 and 22.

3. Rejected insofar as this implies the duties of principal and assistant principal are similar.

13. Rejected as fact. Accepted as testimony of Cox. French's multi-year contract as principal would not be renewed upon its expiration absent this hearing.

Respondent's proposed findings are generally accepted.

COPIES FURNISHED:

Donald H. Wilson, Esquire Post Office Box 1758 Bartow, FL 33838-1758

John D. Carlson, Esquire 1709-D Mahan Drive Tallahassee, FL 32308

C. A. Boswell, Jr., Esquire Polk County School Board Post Office Box 391

Bartow, FL 33830

Dr. John A. Stewart Superintendent

Polk County School Board Post Office Box 391 Bartow, FL 33830

Honorable Betty Castor Commissioner of Education The Capitol

Tallahassee, FL 32399-0400

Sydney H. McKenzie General Counsel Department of Education The Capitol, PL-08

Tallahassee, FL 32399-0400

Jerry Moore, Administrator Professional Practices Services

352 Florida Education Center

325 W. Gaines Street Tallahassee, FL 32399-0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

=================================================================

AGENCY FINAL ORDER

================================================================= SCHOOL BOARD OF POLK COUNTY FLORIDA

THE SCHOOL BOARD OF POLK COUNTY,

Petitioner, DOAH CASE NO. 90-7246

vs.

FERRIS A. FRENCH,

Respondent.

/

FINAL ORDER

This matter came before the School Board of Polk County Florida at a public hearing held on June 25, 1991 at Bartow, Florida.

APPEARANCES

For Petitioner: Donald H. Wilson, Jr., Esquire

Post Office Box 1578 Bartow, Florida 33830

For Respondent: John D. Carlson, Esquire

1709-D Mahan Drive Tallahassee, Florida 32308

Proceedings in this matter commenced when the Respondent filed a Petition with the Petitioner submitted November 22, 1989 requesting an administrative bearing and other relief concerning the Respondent's transfer from his position as Principal of Lena Vista Elementary School to the position of Assistant Principal at Kathleen Junior High School. The Petitioner denied the Respondent's Petition and an appeal to the Second District Court of Appeal was pursued by the Respondent. An opinion was filed by the Second District Court of Appeal on October 12, 1990, which directed the Petitioner to conduct an administrative hearing on the various issues raised by the Respondent concerning his transfer. The instant hearing was held pursuant to the decision of the Court.

Prior to the hearing, the Respondent filed a Motion to Compel, for Imposition of Sanctions, and Attorney's Fees; a Motion in Limine and a Motion to Frame Issues and Burden of Proof. The Petitioner filed a written response to each of these Motions prior to the hearing.

At the hearing the Petitioner called ten witnesses and the Respondent presented three witnesses. Seventeen exhibits were offered into evidence. Ruling on objection to the admissibility of Exhibit I into evidence was reserved at the hearing. That objection, on grounds of relevancy, was sustained. All other exhibits were admitted into evidence.

The Hearing Officer's Recommended Order was issued February 27, 1991, and exceptions were filed by the Petitioner. The Respondent has filed a motion seeking adoption of the Hearing Officer's Recommended Order as the Final Order. The Petitioner has submitted a Proposed Final Order. Each member of this Board has reviewed the complete record of this case and has considered the parties' presentations at the hearing.

To the extent that the hearing officer's proposed ~findings of fact are contained the findings of fact which follow, said findings are accepting. To the extent that recommended findings are not contained herein, they are hereby specifically rejected as not being based on competent substantial evidence. In reaching its conclusions, the Board has relied upon and has included in these findings a number of findings that are supported by competent substantial evidence contained in the record but were not contained in the Recommended Order. Conclusions or observations the hearing officer included in his findings of fact, are specifically rejected as being inappropriately placed in the findings.

FINDINGS OF FACT

(References to the transcript of the hearing held January 24, 1991 will be designated herein by the letter "R" followed by the appropriate page number.)

1. Ferris French has been employed by The Polk County School Board since 1970. (R.32) He was appointed as Principal of the Lake Alfred Elementary School in August, 1979. (R.32)

   
   

2. During the 1984-85 school year, a female member of the faculty at Lake Alfred Elementary School complained directly to Superintendent John Stewart regarding sexual advances made towards her by French. (R.32) The faculty member made these allegations in the presence of Stewart and French, and French denied them. (R.137-138) For a number of reasons. French and the Superintendent agreed French would be transferred to the position of Principal of Lena Vista Elementary School. (R.138)

   
   

3. While French was Principal at Lake Alfred Elementary School, he hired Susan Kelley as a teacher's aide. (R.19) After his transfer to Lena Vista Elementary School, French hired Kelley to work at that school. (R.19) Kelley was initially hired as a part-time aide and part-time secretary, and French later recommended Kelley's appointment as a full-time secretary at Lena Vista Elementary. (R.20) Despite the fact that two other secretary's at Lena Vista Elementary had worked there for many years, Susan Kelley began functioning as French's personal secretary. The other two secretaries were moved out of the main office and back into a room which had previously served as a clinic. Kelley was given a desk immediately adjacent to French's office. (R.87,97)

4. Following his appointment of Kelley as a full-time secretary, French engaged in an on-going course of conduct which resulted in wide spread speculation throughout the school and the community that French and Kelley were romantically involved, despite the fact they were both married at the time. Such conduct by French included:

   
   

   1. Frequently and for lengthy periods of time French and Kelley would both be away from campus during the middle of the school day. Although they would not leave together, they would each leave campus within a few minutes of one another and be gone for as long as two hours, returning within a few minutes of one another. This happened often and was widely observed by faculty and staff at the school. (R.80,81,87,88,99 and 113)

      
      

   2. French permitted Kelley to be away from the campus during the middle of the day for periods well in excess of the thirty minutes during which the other secretaries were permitted to leave campus. (R.99)

      
      

   3. Kelley was permitted and even asked to go on field trips and do shopping away from campus and given other such opportunities which were not extended to the other secretaries in the office. (R.98,114)

      
      

   4. A faculty member observed French and Kelley together riding in a car at night in the parking lot of a local shopping center. (R.80)

      
      

   5. French and Kelley were involved in an automobile accident on Interstate 4 on a Saturday morning. French testified that they were on their way to Tampa to have lunch. (R.l9l-192)

      
      

   6. Polaroid photographs were observed by staff and faculty members of both French and Kelley's cars parked at French's house during the day. (R.89-90)

      
      

   7. Susan Kelley's children, who were pupils at Lena Vista Elementary School, brought to School pictures of Susan Kelley and Ferris French on vacation together. (R.108)

   
   

5. Such conduct by French resulted in wide spread speculation among the School, the community and the school system. The morale among the faculty and staff at Lena Vista Elementary School was seriously and adversely affected. (R.

   91 ,91, 101 , 109 and 115) The nature and extent of the speculation and its adverse affects, included

   
   

   1. Speculation and rumors concerning the relationship between French and Kelley became an overwhelming subject of conversation among the faculty and staff at the School. Faculty and staff members would jokingly time the intervals at which Kelley and French would leave the School and return, and the period of time during which they were gone. (R. 82,91,100, 106)

      
      

   2. Faculty and staff members who wished to avoid the speculation were forced to withdraw from social interaction with other members because speculation was so wide spread. (R.101,115)

      
      

   3. The Lena Vista community is fairly compact and tightly knit so that speculation concerning the relationship between French and Kelley was widely discussed in public. Faculty and staff members were questioned about the

      relationship at little league ball games, while shopping, and even at church. One staff member even testified that she dreaded going to the grocery store because of the many questions which would be asked. (R.83, 100,106)

      
      

   4. French's and Ke1ley's relationship was the subject of conversation at county wide meetings of both physical education teachers and secretarial staff, and by school board maintenance personnel. (R.83,92, 100)

      
      

   5. The special relationship that appeared to exist between French and Kelley also created operational problems at Lena Vista Elementary. French's and Kelley's absence for extended periods of time put additional responsibilities and burdens on the faculty and staff. (R. 113-114, 120) One faculty member testified that when Susan Kelley had given her the wrong instructions concerning a head lice form which resulted in a confrontation with a parent, the faculty member perceived that French failed to acknowledge Kelley's error and did not properly support the faculty member. (R.1 07)

      
      

   6. Numerous faculty members discussed and threatened to transfer from the School because of the poor morale. (R.92, 118)

      
      

   7. Parents complained to faculty members about the apparently inappropriate relationship which existed between French and Kelley. (R.90-91)

   
   

6. Indications of French's conduct and the adverse affect it was having on the School and community were reported to Superintendent Stewart from a number of sources. (R.140) He received personal visits to his office by both members of the faculty and staff at Lena Vista Elementary School complaining about French's conduct and the affect it was having on the morale at the School. (R. 141-142) Theo Saliba, the School Board's Director of Physical Education, reported to the Superintendent discussions he had heard from other faculty members at the School concerning Mr. French's activities and their affect on the School. (R.92, 141) The Superintendent received telephone calls from members of the faculty and staff complaining about Mr. French's conduct, and principals at other schools reported to him their concerns concerning the speculation they had heard.

   (R.139-142)

   
   

7. As a result of this information the Superintendent directed the Deputy Superintendent William Boykin on one occasion (R. 122) and Area Superintendent Bill Moore on two other occasions to discuss this matter with Mr. French. (R.126) In each instance, Mr. French adamantly denied that he had any relationship with Susan Kelley.

   
   

8. In September, 1988, Susan Kelley resigned from the school system for a job in the private sector. During the following months both Kelley and French were separated from their spouses, and French admitted that his and Kelley's relationship became romantic. (R.20,28,29) Kelley filed for divorce in November, 1988 and French filed for divorce in February, 1989. (R.22) They were subsequently married. (R. 19)

   
   

9. Following French's separation and the filing of divorce proceedings, he no longer endeavored to keep his and Kelley's relationship a secret. (R.29) Thereafter, they would go out to dinner together, have dates and otherwise been seen in public. (R.129, 130)

10. Superintendent John Stewart testified that once French's and Kelley's relationship became public, and what was once previously speculation had now been confirmed, that he evaluated Mr. French's performance as unsatisfactory and concluded that his effectiveness had greatly been reduced. (R.142, 149) This conclusion was confirmed by other administrators. (R.132) Based on this conclusion, the Superintendent transferred Mr. French to the position as Assistant Principal at Kathleen Junior High School, without any reduction or change in his compensation or contract status. The Superintendent considered the transfer lateral upon reliance of prior decisions concerning the Superintendent's authority to transfer principals, so long as their salary was not affected. (R. 143)

    
    

11. During the school years 1986-87, 1987-88 and 1988-89, French received no evaluation less than meeting performance expectations, and on several sections in the evaluation he was rated as meeting above performance expectations.

    
    

12. Respondent's letter dated June 8, 1989 (Exhibit 11) to the Superintendent requested he be advised to which position he was being transferred, where was the school located, what infractions by him warranted disciplinary action and when would he be given a hearing to challenge this decision.

    
    

13. This letter was responded to by the School Board Attorney who advised Respondent that his private activities had invaded the work place "to such an extent that you were perceived to have lost credibility and effectiveness as a leader of your assigned school"; that he was being appointed as Assistant Principal of Administration at Kathleen Junior High School commencing with the opening of the 1989-90 school year; that this was not intended to be a charge of misconduct nor a disciplinary action; and that, since there was no change in his salary, he-was not entitled to a due process hearing to challenge this transfer.

    
    

14. French subsequently requested a formal hearing which was denied by Petitioner. It was from this Final Order that French appealed to the Second District Court of Appeal, who ordered that French be granted a formal hearing to consider, inter alia, the length of French's Principal contract, his rate of pay for the duration of that contract, whether his demotion to Assistant Principal is merit based as required by School Board rules, and whether the transfer is consistent with the terms of French's multi-year contract as Principal.

    
    

15. The School Board policy concerning transfers for administrators, Rule 6Gx53-3. 102, Subpart I.A., defines a "lateral transfer" as a reassignment from one position to another within the same pay grade, while "demotional transfer" is defined as a move which results in a reduction in pay grade. (Ex.#4) Assistant Superintendent for Personnel Don Cox was personally involved in the development and adoption of this Rule. (R.40) The Rule has been consistently interpreted as defining a lateral transfer as one in which the salary remains the same. (R.40-42) Subpart D of the Rule explains "operationally" how a demotional transfer is accomplished. (R.43) It has been the consistent interpretation of this Rule that Subpart D concerning demotional transfers only comes into effect when a pay reduction results from the transfer. (R.42-43) This interpretation has been consistently followed and is recognized by other agencies. (R.44-47)

16. The School Board's contract for administrative personnel, which includes the contract which Mr. French holds with the School Board, specifically authorizes the Board and Superintendent to transfer and reassign employees. (Ex.#2) In Paragraph 2 of that contract, it is provided:

    "The Board may upon recommendation of the Superintendent, transfer and assign the employee to a similar position in any other school of the district, provided that the duties shall be similar to the duties originally assigned, and the salary shall be as heretofore set forth." (Ex.#2)

    This contract and the language which specifically authorizes reassignments, so long as the salary is not changed, was adopted in conjunction with the Board rule on transfers and was intended to be consistent with that Board rule. This interpretation has been consistently followed by the School Board. (R.48-51)

    
    

17. Regarding Mr. French's multi-year contract, the School Board rule permitting multi- year contracts for principals was adopted during the 1984-85 school year, to become effective beginning with the 1985-86 school year. (R.33) Mr. French was among that first group of principals in Polk County to receive a multi-year contract commencing with the 1985-86 school year. (R.35,161,Ex.#2) The first multi-year was for 3 years: 1985-86, 1986-87 and 1987-88. (R.34-35) Mr. French was recommended for and received a second three year contract commencing with the 1988-89 school year and continuing through the 1989-90 and 1990-91 school year. (R.35,37,Ex.#3) There has been no action by the School Board or the Superintendent to do anything which would affect or change Mr. French's contract status with the School Board. (R.37-38) His annual compensation was slightly greater as an assistant principal at a junior high school, since junior high schools run a few days longer for administrators than do elementary schools. (R.37)

    
    

18. Exhibit #4 is a letter to Mr. French from Assistant Superintendent Don Cox indicating that Mr. French was on an annual contract. This letter was sent out in error; and upon discovery of the error, Mr. French was informed by Don Cox that the letter was incorrect and that he did, in fact, have a multi-year contract. (R.208-209)

    
    

19. Exhibit #15 is Mr. French's second three year contract which commenced with the 1988-89 school year. The contract is dated November 8, 1989. Mr. Cox explained that the decision was made not to prepare new written contracts for the group of principals whose multi- year contracts were renewed for 1988-89, which included Mr. French. Subsequently, Mr. French requested a written contract and Exhibit #15 was prepared. It is for this reason the November 8, 1989 date appears on the contract. Mr. French and all other principals who had were in the first group of principals to receive a multi-year contract in 1985-

86 had their multi- year contracts renewed for another three years commencing 1988-89. (R.208-210)

CONCLUSIONS OF LAW

The School Board has jurisdiction over the parties to and the subject matter of these proceedings.

The Respondent raises two fundamental issues with regard to his reassignment as a Principal at Lena Vista Elementary School to the position of Assistant Principal at Kathleen Junior High School. First, whether his transfer was lateral or demotional. Second, if it is determined that the transfer was a demotion, whether the Superintendent and School Board were acting within the

authority of the applicable Board rules in making this transfer. The Respondent also questions the period of time covered by his current multi-year contract with the School Board.

School Board Rule, 6Gx53-3.0l2, (Ex.#4) has a definitional section under Administrators which defines "lateral", "promotional" and "demotional" transfers based on whether the employee's salary is unchanged, increased or decreased.

Subpart D of that Rule then discusses "demotional transfer". It is the Respondent's position that this subsequent discussion of demotional transfer redefines such a transfer in a manner which is contrary to the definition appearing in Subpart A of the Rule.

Absent other facts, it might be possible to interpret the definitions in Subpart A and the discussion in Subpart D as being in conflict with regard to what constitutes a demotional transfer. However, the testimony at the hearing clearly established that the definition contained in Subpart A should be controlling.

On the face of the rule, it is logical and reasonable that the "definitions" section should define the terms. It is obvious that Subpart D concerning "demotional transfers" sets forth what must occur before a demotion, as previously defined, can take place. Such requirements include a determination that the competency or adequacy of an employee's performance is less than satisfactory before he can be demoted, i.e., transferred to a position with a lower of pay. Clearly, a reasonable interpretation of this rule would conclude that the definitional section defines a demotion and Subpart D sets forth what must occur before a demotion can take place. In the instant case, Mr. French did not incur a reduction in salary and, therefore, his transfer was "lateral."

This interpretation of the rule is supported by previous administrative rulings. In Mary L. Baxter vs. School Board of Polk County. Florida, DOAH Case No. 87-3650, March 22, 1988, the issue involved the principal of an elementary school in Polk County who was transferred to a position as an assistant principal, without any reduction in her compensation. The hearing officer concluded:

"...the actions of the Superintendent recommending and the School Board approving Petitioner's transfer to North Lakeland Elementary School as an Assistant Principal with the same salary she made at John Cox Elementary School is in accordance with Florida Statutes and the policy of the Polk County School System." (Id. at 12)

The interpretation of the School Board rule to permit lateral transfers where the salary is not reduced is consistent with the School Board's contract with its principals. The testimony established that the School Board policy and the principal's contract were developed and adopted in conjunction with one another, and it is certainly reasonable to conclude that such policy and contract were intended to be consistent. As quoted in Paragraph 11 in the Findings of Fact, the contract specifically authorized the Superintendent and the School Board to transfer an employee to another school into a similar position, so long as the salary is not affected. (The positions of principal and assistant principal are clearly similar. See Section 228.041(10)(b) Florida Statutes; and Baxter decision, page 10.) The rule interpretation urged by the Respondent would negate the specific provision of the contract.

It is also unrefuted in the testimony that the interpretation of the this Board rule concerning transfers, i.e. a demotional transfer involves a reduction in compensation, has been consistently followed by the School Board and other agencies since its adoption. It is well established that an agency's determination and interpretation with regard to the application of such agency's rules and policies will be accorded great deference, unless there is clear error or conflict. See, Miami Beach v. Miller, 122 So.2d 578 (Fla.3rd DCA 1960); and Cohen v. Sch. Bd. of Dade Cty., 450 So.2d 1238 (Fla.3rd DCA 1984).

Accordingly, in light of the specific language contained in the rule, prior interpretations of that rule, and the consistency with which the Board has followed that interpretation, the proper and reasonable interpretation of the rule is that Mr. French was subject to a lateral transfer when reassigned as an Assistant Principal at Kathleen Junior High School, since he incurred no reduction in his compensation.

Alternatively, even if Mr. French's transfer was a demotion under the School Board rules, the record amply supports the School Board's position that such a transfer was proper. Subpart D of the School Board Rule regarding transfers (Ex.#4) permits the demotion of an employee if, as a result of the Superintendent's evaluation of that employee, the Superintendent determines that the competency or adequacy of the employee's work performance is less than satisfactory.

The Respondent has urged that the Superintendent's evaluation of the employee referred to in this rule is limited to the formal, written assessment procedure which is performed at least annually on all School Board employees. This position urged by the Respondent is clearly an attempt to layer additional requirements onto the existing rule which are not specifically contained.

The applicable statutory and regulatory scheme under which Florida's school systems operate is clearly intended to give the Superintendent broad discretion to carry out his or her duties with regard to the operation of the school system. See Section 230.33, Florida Statutes; and Baxter decision, page 11.

The record in this case establishes that the Superintendent after evaluation determined that Mr. French's performance had been such that his effectiveness was greatly reduced. The record is replete with numerous examples of the Respondent's conduct and the negative impact of such conduct on his position which supports the Superintendent's evaluation of his performance.

The rule in question does not require a written evaluation for the Superintendent to demote an employee, and nothing has been presented which would make such a requirement mandatory. Accordingly, if Mr. French was in fact demoted, the record and applicable authority clearly support the Superintendent's decision to make such a demotion in this case.

The last issue to be addressed is when does the Respondent's multi-year contract end. The record clearly establishes, and it is unrefuted, that the Respondent received his first three-year contract for the 1985-86 School Year, that he received the second three-year commencing with the 1988-89 School Year, and that the current contract will end at the conclusion of the 1990-91 School Year. It is also established that the letter sent to the Respondent stating that he held an annual contract (Ex.#14) was sent in error and that the Respondent was informed of that error. The Respondent's second multi-year contract (Ex.#15) was dated during the second year of that contract, since the contract was prepared at the specific request of the Respondent and such documentation is not

prepared in the ordinary course of business for other administrative employees who received their second multi-year contract beginning with the 1988-89 School Year. From these facts, there is no basis for concluding that Mr. French's current contract does not end at the conclusion of the 1990-91 school year.

FINAL ACTION

Each of the Respondent's pre-hearing motions are hereby denied. Mr.

French's transfer from the position as Principal at Lena Vista Elementary School to the position as Assistant Principal at Kathleen Junior High was a lateral transfer, and such transfer was done appropriately and consistently with all applicable rules and procedures. Alternatively, if it is deemed that the transfer was a demotion, the record clearly establishes that the demotion was appropriate in that it was based upon the Superintendent's evaluation that the employee's performance was less than satisfactory. Further, the Respondent's multi-year contract with the School Board will end at the conclusion of the

1990-91 School Year.

The School Board specifically rejects the Hearing Officer's recommendation; and in doing so, the Board is fully cognizant of the requirements of Section 120.57(1)(b)(10), Florida Statutes, and the case law interpreting that Statute. Accordingly, set forth below are the reasons the School Board is rejecting the Hearing Officer's recommendation.

First, the Hearing Officer has set an improper standard for the Superintendent's reassignment of a principal. The Hearing Officer would require the Superintendent to meet the same standard that would be required if he was seeking to terminate the Respondent. On page 11 of his Recommended Order, the Hearing Officer cites to Section 23l.36(1)(a) and (4)(c), Florida Statutes, which sets forth the "deadly sins" for which a member of the instructional or administrative staff may be terminated. The Hearing Officer would apply this same standard to the Superintendent for the reassignment of Mr. French. It should be noted that the Superintendent has not taken any action which would adversely affect Mr. French's salary or his contract status with the Board.

Rather, Mr. French has simply been reassigned to another administrative position. Even if this reassignment is deemed a demotion, the School Board policies specifically provide that an administrator may be demoted if the competency or adequacy of the administrator's performance has been determined to be less than satisfactory by the Superintendent, Rule 6Gx53-3.012(D)(2). The Hearing Officer's application of the standard required to terminate an employee is simply inapplicable in this case.

Second, the Hearing Officer apparently believed the Superintendent was attempting to prove that French was having an affair with his secretary, and cited the case of Sherbourne vs. School Board of Suwannee County, 455 So.2d. 1057 (Fla. 1st DCA 1984), in which that School Board was attempting to terminate a classroom teacher on allegations she lacked good moral character. In this case, the Superintendent has never alleged or attempted to prove an inappropriate relationship between French and his secretary. Rather, the allegations are simply that French engaged in a course of conduct that created the impression of an inappropriate relationship which resulted in a diminution in his effectiveness. This position of the Superintendent was specifically stated at the beginning of the hearing before the Hearing Officer (R.10). The Hearing Officer basing his recommendation on the Superintendent's failure to prove misconduct between French and Kelley is the second reason the Board rejects that Recommendation.

Third, in his Recommendation, the Hearing Officer directs the School Board to issue French a new multi-year contract beginning with the 1991-92 School Year. At no time during these proceedings has French ever sought as a remedy the issuance of a new multi-year contract. This question has simply never been an issue in these proceedings, and the Hearing Officer's recommendation that such a contract be issued is simply a gratuitous gesture which is entirely unsupported by the record in this case. The only issue raised by the Respondent was in what year did his current multi-year contract end. The record clearly established that his multi-year contract ended at the conclusion at the 1990-91 school year. The Hearing Officer simply had no basis for his recommendation that a new multi- year contract be issued beginning with the 1991-92 school year.

Throughout this Final Order, the Board has made numerous citations to the record, and it is such citations and the discussion contained herein upon which the School Board relies in rejecting the Hearing Officer's Recommendation and reaching the final action which is set forth in this Order.

ENTERED this 25 day of June , 1991, at Bartow, Florida.

THE SCHOOL BOARD OF POLK COUNTY, FLORIDA

Chariman

Docket for Case No: 90-007246

Orders for Case No: 90-007246