STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ESCAMBIA COUNTY SCHOOL BOARD, )

)

)

Petitioner, )

)

vs. ) CASE NO. 95-5897

)

RICKY SAPP, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for formal hearing before Diane Cleavinger a duly-designated Hearing Officer of the Division of Administrative Hearings, on April 11, 1996, in Pensacola Florida.

APPEARANCES

For Petitioner: Joseph L. Hammons, Esquire

Hammons and Whittaker, P.A.

17 West Cervantes Street Pensacola, Florida 32501

For Respondent: Ronald G. Meyer, Esquire

Meyer and Brooks, P. A. Post Office Box 1547 Tallahassee, Florida 32302

STATEMENT OF THE ISSUES

The issues to be resolved in this proceeding are as follows:

Whether Respondent had an instructional employment contract that required cause for termination.

Alternatively, if Respondent had a contract requiring cause for termination, whether there is cause for termination of that contract within the meaning of Section 231.36, Florida Statues, and Rule 6B-1.001 and 6B-1.006, Florida Administrative Code.

PRELIMINARY STATEMENT

By letter dated October 6, 1995, the Superintendent for Escambia County Schools, notified Respondent, Ricky Sapp, that he would not be recommended for an annual instructional contract for the 1995-1996 school year or alternatively was terminating Respondent's employment with the Escambia County School Board for misconduct. Specifically the Petitioner alleges that it was able to terminate the employment of Respondent on October 16, 1995, because the Superintendent withdrew the formal recommendation for employment of the

Respondent before the School Board had an opportunity to act upon it, notwithstanding that the Respondent had been working as an instructor for the Petitioner from the beginning of the 1995-1996 school year until October 16, 1996 and therefore, no cause was required to terminate Respondent's employment. Alternatively, the Petitioner alleges that the Respondent engaged in misconduct in office, within the meaning of Section 231.36, Florida Statutes, by corresponding with S.C., a student formerly under his instruction, and maintaining an inappropriate relationship with another student, T.R., which included providing the student with cigarettes and/or prescription medication without the consent of the student's custodian, supplying the student with alcohol, spending time with the student after school hours without the student's custodian's permission, and allowing the student to be present in the Respondent's mobile home without the student's custodian's permission.

At the final hearing, the Petitioner presented the testimony of S.C., Douglas R. Garber and, Respondent. The Petitioner offered eight exhibits into evidence. The Respondent testified in his own behalf and presented the testimony of Jean Rochelle. Respondent also offered two exhibits into evidence.

After the hearing, the parties' submitted proposed recommended orders on June 3, 1996 and June 4, 1996, respectively. The parties proposed findings of fact have been considered and utilized in the preparation of this recommended order. Specific rulings on the parties' proposed findings of fact are contained in the appendix to this recommended order.

FINDINGS OF FACT

1. Petitioner, the Escambia County School Board (Board), is a unit of local government charged with the operation of the public school system in Escambia County, Florida, including the employment of teachers under certain contract conditions. Contracts and terms of service for regular members of the instructional staff are required to be in writing. See Section 230.23(5)(d), Florida Statutes. The Escambia County School Board also provides instructional services to juveniles under detention at the Juvenile Justice Center.

   
   

2. Respondent was employed by the Board as a teacher during the 1994-1995 school year. During the 1994-1995 school year, Respondent was assigned to teach at the Juvenile Detention Center in Pensacola, Florida.

   
   

3. Student S.C. met Respondent at the Pensacola Detention Center of the Juvenile Justice Center while he was an instructor at the Center. After she left the Pensacola Detention Center, she moved to North Carolina to live with her step-mother and father. While there, she wrote to Respondent; and sometime in early September she allegedly received correspondence from Respondent, including one letter dated September 5, 1995.

   
   

4. The letter S.C. sent and the letter of September 5, 1995, do not appear to be discussing the same things. Respondent turned the letter S.C. wrote him over to his supervisor at school when he received it.

   
   

5. Respondent denies writing or sending the letter of September 5, 1995 addressed to S.C.

   
   

6. The September 5 letter's envelope had a return address which belonged to Respondent, and was signed "Ri" or "Rc". However, S.C. was unable to testify as to whom the letter actually came from. She did not recognize the handwriting as that of Respondent.

7. More importantly, the Petitioner attempted to have the handwriting analyzed to determine whether the Respondent wrote the letter. The handwriting analysis determined that "the evidence falls short of that necessary to support a conclusive opinion" that Respondent wrote the September 5, 1995 letter.

   
   

8. The Respondent also has been accused of sending other letters to people, including a threatening letter to the President of the United States, which he denied having done. All these letters came from a Rick Sapp in Pensacola but were not from the Respondent.

   
   

9. So, too, during the pendency of these proceedings, an accusation was made that the Respondent had sent a letter to another student at the detention center. The Respondent did not send such a letter.

   
   

10. The letter alleged to have been sent by the Respondent other than being signed "Rick" cannot be established to have been from the Respondent since it omits his phone number, address, and has a different return address and name on the envelope and was mailed from Panama City.

    
    

11. Student S.C. ran away from North Carolina sometime in September 1995. She was subsequently detained at the Panama City Detention Center.

    
    

12. S.C. testified that Respondent called her on the telephone, gaining access by identifying himself as a counsellor.

    
    

13. Respondent allegedly told her that he was in love with her and wanted her to call him. Respondent allegedly gave her his telephone number. However, when she reported the call to the staff, other than transferring a "call from a counsellor," she did not say the call was from Respondent but someone sounding like Respondent.

    
    

14. S.C. provided a telephone number to the detention worker who called it and asked to speak to Respondent. The party answering the phone said that Respondent was not there and identified himself as Respondent's roommate.

    
    

15. S.C. testified she recognized the voice as that of Respondent which recognition is not credible.

    
    

16. The Panama City Detention Center maintains a log of phone calls and activities occurring at the facility. The log indicates that on November 19, 1995, the controller received a call for S.C. The controller reported the caller identified himself as the counsellor for S.C.

    
    

17. After receiving the call, student S.C. reported to the supervisor that the caller was not her counsellor, but was someone sounding like Respondent.

    S.C. reported Respondent had left a telephone number which in fact is one of Respondent's telephone numbers.

    
    

18. Gene Rochelle called that number on the speaker phone asking for Respondent. The party answering the phone stated he was Respondent's roommate and that Respondent was not at home. Student S.C.'s report and the subsequent telephone call to the same number were noted in the log of the Juvenile Justice Center.

    
    

19. S.C. also claimed to have received a letter from Respondent which she turned in to the Panama City Detention Center. The letter, although signed

    "Rick," has a return address showing the name "Hess" and the address, 1723 17th Avenue, Pensacola, Florida 32501 (not Respondent's) and appears to have been postmarked in Panama City, Florida. The letter also appears to have different handwriting than the September 5, 1996 letter.

    
    

20. Although the letter asks S.C. to call or write, it omits the Respondent's telephone number or address and suggests only that a call be made to 411 in Pensacola to find it.

    
    

21. Respondent denies calling or writing S.C. while she was at the Panama City Detention Center and was surprised that she had been there.

    
    

22. On the whole, while it may be true that a number of letters were sent, the evidence falls short of disclosing that Respondent sent any of the letters, including the letter of September 5, 1995. The evidence regarding any of these contacts is at best inconclusive. Therefore the charges against Respondent involving S.C. should be dismissed.

    
    

23. The District also alleges Respondent maintained an inappropriate relationship with a male student from the detention center, T.R. The original allegations were made by the older brother and lawful custodian of T.R., Michael Jarrell.

    
    

24. Although the guardian of the student, T.R., did make an initial statement to Dr. Garber of the School Board accusing the Respondent of wrongdoing, shortly thereafter, upon learning the identity of the person earlier believed to have been the Respondent, T.R.'s guardian, Michael Jarrell, made a second statement clarifying that the person who was identified as Respondent was not the man who had been improperly interacting with his minor brother.

    
    

25. Given these facts, the Petitioner has failed to produce any substantial evidence to demonstrate that Respondent engaged in an inappropriate relationship with T.R. Therefore the charge of misconduct as it relates to T.R. should be dismissed.

    
    

26. Prior to the beginning of the new school year Respondent's 1994-1995 employment contract had expired.

    
    

27. On August 14, 1995, William McArthur, Director of Human Resources for the Escambia County School District, signed, at the direction of Superintendent

    W. L. Maloy, an "Instructional/Administrative Appointment Request" form appointing Respondent to the position of teacher for the 1995-1996 school year. The practice of the Superintendent's office is to fill out the appointment request form on people whom the Superintendent intends to recommend for an annual contract to the Board.

    
    

28. The form is placed in the teacher's personnel file and then the Superintendent formally recommends the employment of that person to the School Board by submitting the request form to the Board. The recommendation is required by statute to be in written form. See Section 230.23, Florida Statutes.

    
    

29. The Superintendent of Escambia County Schools, among other things, is authorized by statute to recommend to the School Board those employees he determines should receive instructional contracts. See Section 230.33(7), Florida Statutes. The School Board, once recommendation is made by the Superintendent for employment of an instructor pursuant to contract, must act on

    that recommendation rejecting the Superintendent's recommendations only for good cause. Section 230.23(5), Florida Statutes. The Superintendent never submitted the request form nor recommended Respondent for employment to the School Board.

    
    

30. The Superintendent of Escambia County Schools directed William McArthur, Director of Human Resources, to contact Respondent and tell him to return to work as an instructor at the Juvenile Detention Center in Pensacola, Florida. Mr. McArthur contacted Respondent who then reported to the Juvenile Detention Center for instructional duties around August 14, 1995. Since the Superintendent had not recommended Respondent to the Board, the Board never approved a written annual contract for Respondent. Therefore, Respondent could only be working under an oral or implied contract on a day to day basis with no specified term of employment.

    
    

31. Approximately one month after Respondent went to work at the Juvenile Detention Center, Dr. Garber, Assistant Superintendent for Human Resources, was notified by a representative of the State Attorney's Office at the Juvenile Detention Center of a complaint regarding Respondent from a parent relative to his alleged communications with S.C., a female juvenile that had been detained at the center.

    
    

32. The representative of the Office of the State Attorney at the Detention Center expressed concern about letters Respondent had allegedly sent to S.C. and wanted him removed from that Detention Center.

    
    

33. The School District subsequently received copies of the letters Respondent was alleged to have written to the female student formerly under his instruction at the detention center.

    
    

34. Because of the complaint and letters, Respondent was placed on administrative leave with pay while the District investigated the allegations.

    
    

35. At the conclusion of the investigation the Respondent was notified by letter dated October 16, 1995, that the Superintendent would not recommend to the Board the award of an annual instructional contract.

    
    

36. On October 16, 1995, Respondent was presented with a letter notifying him that he would not be recommended for any further employment with the school district. The October 16, 1995, letter was the first written notification that his employment would terminate.

    
    

37. Respondent stopped working for the School Board on October 16, 1995.

    
    

    CONCLUSIONS OF LAW

    
    

38. The Division of Administrative Hearings has jurisdiction over this subject matter and the parties to this action pursuant to Section 120.57(1), Florida Statutes.

    
    

39. The Petitioner bears the burden of proof in this proceeding. The allegations of the administrative complaint must be proven by a preponderance of the evidence.

    
    

40. Misconduct within the meaning of Section 231.36, Florida Statute is defined in the Code of Ethics of the Education Profession, Rule 6B-1.001 and Rule 6B-1.006, Florida Administrative Code. Rule 6B-1.001, Florida Administrative Code requires the instructor to strive to achieve and sustain the

    highest degree of ethical conduct. Rule 6B-1.006(3)(a), Florida Administrative Code, states the obligation to the student of an instructor is to make reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental and/or physical health and/or safety. This rule further provides the instructor shall not exploit a relationship with a student for personal gain or advantage.

    
    

41. In this case Respondent has failed to demonstrate misconduct by Respondent in regards to either S.C. or T.R. Therefore, the charges relating to

    S.C. and T.R. should be dismissed.

    
    

42. On the other hand, the facts demonstrate that Respondent was directed to report for work at the Juvenile Justice Center around about August 14, 1995. Around that time, appropriate school officials completed a form entitled "Instruction/Administrative Appointment Request." This document, if submitted to the Board by the Superintendent, would constitute the Superintendent's recommendation for the award of an annual contract to Respondent. However, within one month after Respondent was directed to report for work, complaints were received regarding inappropriate relationships with students and an investigation by the District commenced. As a consequence, the Superintendent did not send to the Escambia County School Board a written recommendation for the award of an annual instructional contract to Respondent. By letter of October 16, 1995, Respondent was notified by the Superintendent that he would not be recommended to the Board for an annual instructional contract.

    
    

43. The Superintendent is authorized by statute to recommend to the School Board those employees he determines should receive instructional contracts. Section 230.33(7), Florida Statutes. The Superintendent may also make temporary appointments to approved positions pending Board action and otherwise administer and operate the schools. Section 230.33(7), Florida Statutes

    
    

44. In Von Stephens v. School Board of Sarasota County, 338 So. 2d 890 (2nd DCA 1976), the Second District Court of Appeal specifically addressed when a property interest and right to due process is created pursuant to the Superintendent's recommendation to the Board relative to employment. The Court noted a nominee of the Superintendent for appointment to a position after submission to the Board is entitled to a property interest in the right to reappointment and due process to protect that interest. The Court recognized a property interest in reappointment because the Board's consideration of the Superintendent's recommendation is governed by statute. The Board cannot reject a recommendation except for grounds recognized by law as legal cause. Respondent, however, did not have his name submitted to the Board as a recommendation of the Superintendent. While the Superintendent presumably intended to make a recommendation after directing Respondent to report to the Juvenile Justice Center for instructional duties, it is also clear the Superintendent subsequently concluded he would not make a recommendation to the Board that Respondent receive an annual contract. Had the Superintendent formally submitted a recommendation to the Board, turning that recommendation over to the Board for Board action, the case would fall within the holding in Von Stephens.

    
    

45. In McDowell v. School Board of Suwannee County, 365 So. 2d 454 (1st DCA 1978) the Court clearly distinguished the rights of a nominee for a continuing instructional contract as opposed to an annual contract. The Court concluded one who was actually nominated by the Superintendent for a continuing contract did have a due process right as to the rejection of that nomination for cause. The Court distinguished, however, the rights of a nominee for only an

    annual contract. In the instant case, there is no nomination at all. Were there a nomination, it would only have been for an annual contract.

    
    

46. There is virtually no authority for the proposition the Superintendent, having initially determined to recommend Respondent for an annual contract to the Board, may not change his mind prior to submitting that recommendation. Neither is there any statutory authority that the Superintendent may be compelled to submit any individual's name to the Board for any kind of contract.

    
    

47. The only contract Respondent could possibly have had was a day to day contract terminable by either party at will which contract would violate the contract requirements of Chapter 230, Florida Statutes and therefore, outside the "zone of interest" or protections for teachers afforded in Chapter 231.36, Florida Statutes. Put simply, the only teaching contracts entitled to the protections afforded instructional personnel contracts in Section 231.36, Florida Statutes are those which comply with the contractual requirements established in Chapter 230, Florida Statutes. All other contracts are illegal and governed by common law. Because Respondent had no written annual contract of instruction or even a nomination to the Board, he had no legal right to employment nor reasonable expectation of continued employment.

RECOMMENDATION

Based upon the findings of fact and the conclusions of law, it is, RECOMMENDED:

That a Final Order be entered by the Petitioner, Escambia County School Board dismissing the charges of misconduct but upholding the termination of the Respondent, Ricky Sapp, on October 16, 1995 since he was not recommended for annual contact status and did not fall under the protections of Chapter 231, Florida Statutes.

DONE and ENTERED this 28th day of August, 1996, in Tallahassee, Leon County, Florida.

DIANE CLEAVINGER, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675 SunCom 278-9675

Filed with the Clerk of the Division of Administrative Hearings this 28th day of August, 1996.

APPENDIX

1. The facts contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 and

   12 of Petitioner's proposed findings of fact are adopted.

2. The facts contained in paragraphs 13 through 18 of Petitioner's proposed findings of fact are subordinate.

3. The facts contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 14, 15, 16 through 22, 27, 28 and 30 of Respondent's proposed findings of fact are adopted.

4. The facts contained in paragraphs 13, 23 through 26, 29 and 31 of Respondent's proposed findings of fact are subordinate.

COPIES FURNISHED:

Ronald G. Meyer, Esquire Meyer and Brooks, P.A. Post Office Box 1547

Tallahassee, Florida 32302

Joseph L. Hammons, Esquire Hammons and Whittaker, P.A.

17 Cervantes Street

Pensacola, Florida 32501-3125

William Maloy, Superintendent Escambia County School Board Post Office Box 1470 Pensacola, Florida 32597-1470

Frank T. Brogan, Commissioner Department of Education

The Capitol, Plaza Level 08 Tallahassee, Florida 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.

Docket for Case No: 95-005897

Orders for Case No: 95-005897