STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HORACE A. JONES, )

)

Petitioner, )

)

vs. ) Case No. 97-3763

) ESCAMBIA COUNTY SCHOOL BOARD, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on April 1-2, 1998, in Pensacola, Florida, before the Division of Administrative Hearings, by its designated Administrative Law Judge, Suzanne F. Hood.

APPEARANCES

For Petitioner: James A. Hightower, Jr., Esquire

Kerrigan, Estess, Rankin, McLeod & Hightower

63 South Royal Street, Suite 1109 Mobile, Alabama 36601-0009

For Respondent: Louis F. Ray, Jr. Esquire

School Board Attorney Post Office Box 591

Pensacola, Florida 32593-0591 STATEMENT OF THE ISSUE

The issues are whether Respondent had good cause to reject the Escambia County School Superintendent's nomination of Petitioner to be principal of Woodham High School, and, if not, what relief should be granted to Petitioner.

PRELIMINARY STATEMENT

On June 24, 1997, Respondent Escambia County School Board (Respondent) voted in an open meeting to reject the Escambia County School Superintendent's (Superintendent) nomination of Petitioner Horace A. Jones (Petitioner) to be Principal of Woodham High School. On or about July 8, 1997, Petitioner made a request for a formal administrative hearing before the Division of Administrative Hearings (DOAH) to challenge this decision.

At its July 22, 1997, meeting, Respondent authorized the entry of a written order memorializing its decision to reject Petitioner's nomination. Respondent also voted to grant Petitioner's request for a formal hearing.

Respondent referred this case to DOAH on August 12, 1997.

The referral included a copy of Respondent's written order dated July 31, 1997.

DOAH issued an Initial Order on August 18, 1997. The parties filed a Joint Response to Initial Order on August 27, 1997.

Administrative Law Judge P. Michael Ruff issued a Notice Of Hearing on October 21, 1997. This notice scheduled the formal hearing for January 7, 1998.

On September 8, 1997, Petitioner filed several pleadings with DOAH. These pleadings included a written Petition containing a demand for back pay, attorney's fees, and costs.

Respondent filed School Board's Motion to Strike Petitioner's Demand for Back Pay, Attorney's Fees and Costs Due to Lack of Subject Matter Jurisdiction on October 10, 1997.

Petitioner filed four motions to compel on October 27, 1997.

These motions included the following: (1) Motion to Compel Answers to Interrogatories (First Set) to School Board Member Vanette Webb; (2) Motion to Compel Answers to Interrogatories (First Set) to School Board Member Jim Bailey; (3) Motion to Compel Responses to Request to Produce; and (4) Motion to Compel Answers to Interrogatories and to Compel Responses to Request to Admit.

On October 30, 1997, Respondent filed a request for the Administrative Law Judge to rule on the School Board's Motion to Strike. As of that date, Petitioner had not filed a response to the motion to strike.

On November 17, 1997, Petitioner filed a Supplemental Motion to Continue Hearing. Attached to the motion was a copy of Petitioner's Motion to Continue Hearing dated November 12, 1997.

On December 8, 1997, Judge Ruff issued an order relative to Respondent's motion to strike. This order required Petitioner to show cause why DOAH had subject matter jurisdiction of the dispute at issue. Judge Ruff also entered an order granting a continuance and requiring the parties to advise him of dates they would be available for hearing.

On December 22, 1997, Petitioner filed Petitioner's Response to Show Cause Order of December 8, 1997. Petitioner asserted that DOAH had jurisdiction to hear this case, i.e. to determine whether Respondent had good cause to reject Petitioner's nomination, and if not, to award Petitioner back wages representing the difference in salary, if any, between the amount Petitioner would have been paid if Respondent had approved his nomination and the amount he has been paid in his current position. Petitioner conceded that his claim for attorney's fees and costs as to the back wage issue was without merit.

The Parties filed a Joint Response to Order Concerning Rescheduling on December 22, 1997. That same day, Petitioner filed Petitioner's Supplemental Response to Order Concerning Rescheduling and Renewed Motion to Compel Discovery.

On January 22, 1998, Judge Ruff entered an order determining that DOAH has jurisdiction in this case, requiring responses to all outstanding discovery requests, and rescheduling the hearing for March 19, 1998.

On March 17, 1998, the parties advised Judge Ruff that they needed more than one day to present their witnesses at hearing. Subsequently, Judge Ruff entered a Re-Notice of Hearing dated March 20, 1998, rescheduling the formal hearing for April 1-2, 1998.

On March 20, 1998, Petitioner filed Petitioner's Motion for Summary Judgment. Said motion is hereby denied.

Before the hearing, the Division of Administrative Hearings transferred the case to Administrative Law Judge Suzanne F. Hood.

When the hearing commenced, the parties offered two exhibits as joint composite exhibits. The first includes the pleadings filed with DOAH together with all attachments thereto. The second is Petitioner's Request to Admit directed to Respondent and Respondent's response thereto, if any. These exhibits were accepted into evidence.

During the hearing, Respondent presented the testimony of six witnesses, including Petitioner. Respondent offered twelve exhibits which are accepted into evidence.1

Petitioner testified on his own behalf and presented the testimony of seven witnesses. Petitioner offered seven exhibits which are accepted into evidence.

The transcript of the proceeding was filed with DOAH on June 22, 1997.

On August 14, 1997, Respondent requested an extension of time in which to file a proposed recommended order. Petitioner did not object to this request. Accordingly, the undersigned issued an order dated August 20, 1998, directing the parties to file their proposed recommended orders on or before September 4, 1997.

Petitioner filed his proposed recommended order on September 1, 1998. Respondent filed its proposed findings of fact and conclusions of law on September 4, 1998.

FINDINGS OF FACT

1. Pensacola High School (PHS) is located in Pensacola, Escambia County, Florida. It is an inner city school of approximately 2000 students with a diverse population.

2. Petitioner was appointed principal at PHS for the 1994- 1995 school year by Dr. Bill Malloy, the former Superintendent of Escambia County Schools. Petitioner served in that capacity until Superintendent Malloy transferred him in March of 1996 to the position of Director of Student Transfers.

3. At all times material to this proceeding, Respondent had a policy requiring principals to report incidents of suspected child abuse immediately to the Department of Health and Rehabilitative Services (HRS)(currently the Department of Children and Families.) Another policy required principals to immediately report bomb threats to the district office and to proceed with the evacuation of the school property as instructed.

4. Before school began in the fall of 1995, Petitioner assigned Kevin Sanders to be the teacher in charge of the In School Suspension (ISS) class. Petitioner made this assignment because Mr. Sanders previously had developed and successfully operated a similar class at PHS. The school district approved the plan at PHS for an ISS unit as designed by Mr. Sanders.

5. Mr. Sanders also served as a weight training coach at PHS. He was not the only teacher/coach to run an ISS program for Respondent during the 1995-1996 school year. At least three

   other schools had coaches running their respective ISS programs in the fall of 1995.

6. There is no persuasive evidence that the assignment of a coach to be in charge of an ISS class was in direct contravention of the Superintendent's instructions. No one ever told Petitioner that the Superintendent did not want a coach-like person in charge of the ISS class.

7. Mr. Sanders wanted to work in the weight room at the stadium during the last period of the school day. Petitioner told Mr. Sanders that he could work in the weight room, provided he found someone to supervise his ISS class during that period. There is no credible evidence that Mr. Sanders had permission from Petitioner to take his ISS students to the stadium and leave them unattended in the bleachers.

8. On October 16, 1995, a fifteen-year-old female student skipped school. The police returned the female student to PHS. As a consequence of her actions, the female student was temporarily assigned to the ISS class taught by Mr. Sanders.

9. Normally, the female student attended a class for special students in the Exceptional Student Education (ESE) program. She functioned academically on a third or fourth grade level.

10. On October 17, 1995, Ms. Sanders took his ISS class to the stadium and told them to sit in the bleachers. He then went to the weight room leaving the class unsupervised.

11. The female student went into one of the restrooms in the stadium. She performed fellatio on a number of male students, primarily football players, in the presence of many other students.

12. In the fall of 1995, PHS had several deans who served the general student population. Richard Sousa was the dean of students for ESE participants. He also served as the crisis teacher for the total student population at PHS.

13. On October 18, 1995, Mr. Sousa saw a group of students outside the dean's office. When he investigated, Mr. Sousa found the female student sitting in a chair with her hands on her head.

14. After Mr. Sousa closed the door to the deans' office, the female student stated that other students were falsely accusing her of performing oral sex with some boys. Mr. Sousa then took the female student to an ESE self-contained classroom so that she would not be harassed.

15. Next, Mr. Sousa called the female student's mother and reported the facts as he understood them. The mother told Mr. Sousa that her daughter was not sexually active. Mr. Sousa asked the mother to pick up her daughter from school because the child was visibly upset.

16. Later that day, Mr. Sousa reported to Petitioner that he had heard a rumor about sexual activity occurring in the stadium, on the fifty-yard line, or on the practice field. Mr.

    Sousa told Petitioner that other students were teasing the female student who denied being involved in any sexual behavior.

17. After receiving this report, Petitioner directed Assistant Principal Leo Carvalis to contact Coach David Wilson, the head football coach. Petitioner instructed Coach Wilson and Mr. Sousa to investigate the rumor regarding the sexual activity.

18. Coach Wilson talked to the football team that afternoon. The team assured him that they knew nothing of any sexual incident in the stadium, the football field, or the practice field. Coach Wilson and Petitioner discussed the situation again later that day.

19. Petitioner told Coach Wilson to continue to listen to what was going on among the students, to ask questions, and to make his findings known. Petitioner gave other members of his staff and faculty the same instructions.

20. Petitioner wanted to determine whether there was any truth to the rumor about the sexual incident. He wanted to discipline any students involved, including football players. However, Petitioner did not want to accuse any student, including the alleged victim, of inappropriate behavior until he had more facts.

21. At the end of the day on October 18, 1995, Mr. Sousa did not believe that the sexual incident had occurred. He knew that special education students are often harassed, ostracized and picked on. Mr. Sousa thought the teasing would blow over and

    the female student could be returned to her regular classroom. Mr. Sousa expressed this opinion to Petitioner.

22. For the rest of the week, Mr. Sousa took lunch to the female student in the ESE self-contained classroom because other students teased and pointed fingers at her. Mr. Sousa had to walk to the bus with the female student for the same reason. Nevertheless, Mr. Sousa continued to believe the rumor was false. His disbelief was based in part on the female student's persistent denials. Additionally, it was not uncommon for a rumor such as the one at issue here to prove to be unfounded.

23. The next week, the female student requested that she be permitted to return to her regular ESE classes because she believed the teasing was over. Mr. Sousa granted the female student's request; however, after a couple of class periods, Mr. Sousa returned her to the self-contained classroom because even the special education students were saying things about her.

24. Amanda Williams and Naomi Ferguson were guidance counselors at PHS during the fall of 1995. On October 26, 1995, Ms. Ferguson indicated to PHS Assistant Principal Sarah Armstrong that Petitioner knew about the sexual incident involving some of the football players. According to Ms. Ferguson, Petitioner was trying to cover up the situation because the football team was doing well.

25. Later that day, Petitioner held a meeting in his office with Ms. Ferguson, Ms. Williams, Mr. Sousa, Ms. Armstrong, and

    Mr. Carvalis. During the meeting, Ms. Armstrong advised Petitioner that Ms. Williams had information from a male student (an informant) confirming the sexual incident but would not reveal her source because of confidentiality concerns.

26. Petitioner asked Ms. Williams to speak with him in private. During their private conversation Ms. Williams revealed that an informant had given her information about a second male student who was involved in the sexual incident at the stadium. Ms. Williams gave Petitioner the names of both students.

27. When he and Ms. Williams returned to the meeting, Petitioner stated, "I believe something must have happened. This is a credible witness." He also stated, "To hell with the football team. If these players can get away with this now, what will they think they can get away with in the future?" For the first time, Petitioner began to suspect that the sexual incident was factual and not an unfounded rumor.

28. Ms. Ferguson revealed additional information about the female student at the meeting on October 26, 1995. Ms. Ferguson stated that the female student's mother intended to send her daughter to live with an uncle in Tampa, Florida. The female student did not want to make this move. The female student told Ms. Ferguson that the uncle had sexually molested her in the past.

29. Ms. Armstrong stated that someone needed to call HRS to report the suspected sexual abuse by a family member. The group

    decided that HRS should also look into the allegations of sexual activity at the school. Petitioner instructed Ms. Ferguson to call HRS. He asked her to wait just long enough for someone to advise the female student's mother that an investigation was pending.

30. There is no persuasive evidence that Petitioner ever intended to cover up the sexual incident. Likewise, he did not unreasonably delay his staff from reporting their suspicions to HRS. On October 26, 1995, Petitioner mistakenly understood that cases of suspected child abuse had to be reported to HRS within

    24 hours instead of immediately. The last instructions he gave in the meeting on October 26, 1995, was to remind Ms. Ferguson to call HRS. She made that call on October 27, 1995.

31. The female student was isolated from the general student population in the self-contained ESE classroom at PHS. Therefore, Mr. Sousa recommended at the meeting on October 26, 1995, that the school conduct an Individual Education Plan (IEP) meeting to review the female student's placement. He believed that the female student should be transferred to another school so that she could attend classes with the general population.

32. After receiving Petitioner's authorization, Mr. Sousa contacted the Exceptional Student Education (ESE) district staff to arrange for an IEP meeting. Mr. Sousa also called the female student's mother on October 27, 1995, to advise her of his recommendation.

33. On October 27, 1995, Petitioner talked to the male student who, according to Ms. Williams' informant, participated in the sexual incident at the stadium. The male student confirmed that the sexual incident occurred in the stadium. However, there is no evidence that the student admitted his personal involvement in the sexual activity to Petitioner at that time. The police investigation later revealed that the male student was one of the students who had participated in the sexual incident.

34. At the IEP meeting on October 31, 1995, the entire IEP team, including ESE teachers from PHS and Woodham High School (WHS), ESE district staff, and the female student and her mother, discussed the reasons for changing the student's placement to WHS. Everyone on the IEP team, except the female student, believed that she should be transferred to a new school environment with peers who did not know her. The female student begged her mother not to permit the transfer. However, the parent agreed that the transfer was in her daughter's best interest and offered to provide transportation.

35. On November 1, 1995 or November 2, 1995, the female student was supposed to enroll at WHS. Instead, she returned to PHS. Mr. Sousa called the mother to pick up her daughter and take her to WHS.

36. On November 3, 1995, Mr. Sousa called the female student's mother. She stated that everything was all right with her daughter at WHS.

37. On Monday, November 6, 1995, the female student's mother called Mr. Sousa because her daughter had run away from home. The mother wanted Mr. Sousa to be on the lookout for her daughter. During the conversation, the mother stated for the first time that the rumors about the sexual incident might be true because, despite her daughter's denials, it had been confirmed by one of her daughter's friends.

38. Mr. Sousa informed Petitioner about the suspicions of the female student's mother. Petitioner then directed Coach Wilson to talk with the football team again. No one on the team would admit their involvement in the sexual incident. Petitioner also told the deans and the assistant principals to see if they could determine what had happened and who was involved. The efforts of the faculty and staff to verify the rumors were unsuccessful.

39. On November 9, 1995, Petitioner received a letter from Ms. Ferguson suggesting that he was responsible for trying to cover up the sexual incident. He also received a call from Special Assistant to the School Superintendent Jerry Watson, stating that he had heard "bad things" were going on at PHS.

40. Petitioner called a meeting with the appropriate PHS staff to discuss information about the alleged sexual incident.

    They reviewed information furnished by the male students and the female student's mother.

41. During this meeting, Petitioner expressed his concern that someone in the group was acting unprofessionally by leaking confidential information about students to persons outside of PHS. Petitioner advised the group that he would try to transfer anyone who breached the students' confidentially. Petitioner did not make these comments to threaten or intimidate his staff and faculty or to cover up the sexual episode.

42. After the meeting on November 9, 1995, Petitioner took Ms. Ferguson's letter to the district office where he met with Sherman Robinson, Deputy School Superintendent. Petitioner told Mr. Robinson about the facts leading up to the receipt of the letter. Mr. Robinson told Petitioner to contact Joe Hammons, the Superintendent's attorney, for advice as to the appropriate action. Petitioner then made an appointment with Mr. Hammons for Monday, November 13, 1995, because Friday, November 10, 1995, was a holiday.

43. On November 13, 1995, Mr. Hammons met with Petitioner. At this meeting, Petitioner told Mr. Hammons what he knew concerning the sexual incident. Mr. Hammons then scheduled a meeting for November 14, 1995, with Petitioner, Mr. Robinson, and two members from the school district's risk management department.

44. At the meeting on November 14, 1995, the group determined that information available from the male students and the female student's mother, justified contacting the Pensacola Police Department. Upon leaving that meeting, Petitioner contacted Sergeant Potts at the police department.

45. The deans at PHS generally handled all disciplinary problems until they determined that a crime had been or might have been committed. At that point, the staff involved the school resource officer. In this case Petitioner relied on his staff to investigate the rumors of the sexual incident and did not involve the school resource officer. Until November 1995, Petitioner was not aware that, if the rumors of the sexual incident proved true, a crime had been committed.

46. Shortly thereafter, Dusty Cutler of the Pensacola Police Department was assigned to investigate the sexual incident at PHS. On November 15, 1995, Officer Cutler talked to the female student who continued to deny all allegations. The female student did not admit to being involved in the sexual incident for several weeks after Officer Cutler began her investigation. Pursuant to Petitioner's suggestion, Officer Cutler also talked to the male student identified by Ms. Williams' informant as one of the participants in the sexual incident.

47. The female student's mother told Officer Cutler that she did not want a police investigation. The mother became upset with the way Officer Cutler was talking to her.

48. Petitioner complained to Lieutenant Knowles of the Pensacola Police Department about Officer Cutler's "abusive" behavior to the mother of the female student. From that time forward, Officer Cutler never spoke to Petitioner even though she spent six months investigating the sexual incident on a daily basis. There is no persuasive evidence that Petitioner interfered with Officer Cutler's investigation or failed to cooperate with her in any way.

49. Officer Cutler reported the sexual incident to HRS. The agency gave her the same response they had given Ms. Ferguson, i.e., HRS would not investigate or follow the case because the sexual activity was not a rape and a family member was not involved.

50. After Officer Cutler was assigned to the case, Petitioner was instructed by the school district to do nothing further until the police investigation was concluded. The Grand Jury released its Amended Report on Pensacola High School on April 15, 1996. The report indicted several male students involved in the sexual incident. Petitioner did not have an opportunity to discipline the students because he was not working at PHS at that time.

51. In the spring of 1996, a number of middle school and high schools in the Pensacola area received bomb threats over the telephone. PHS received bomb threats on at least three occasions. The school evacuated to the adjoining football

    stadium on one occasion, to the fairgrounds on another occasion, and to Pensacola Junior College on a third occasion.

52. On March 29, 1996, about 7:00 a.m., a school secretary, received a bomb threat call at PHS. Mr. Sousa received a second bomb threat call at PHS around 7:15 or 7:30. On both occasions the caller's voice was a raspy, young man's voice.

53. The school secretary and Mr. Sousa recognized the voice of the caller as a young man in one of the self-contained classrooms. The student had created problems in the past. Each time he behaved improperly, the student would use his raspy voice.

54. Mr. Sousa reported the first bomb threat to Mr. Carvalis. Mr. Carvalis called Petitioner at his home. Petitioner was not at school because he was not feeling well because he had been at the emergency room much of the night before.

55. Petitioner instructed Mr. Carvalis to initiate a search. The search included a sweep of the stadium in case the school had to evacuate to that area. Petitioner advised Mr. Carvalis that he was on his way to the school.

56. When Petitioner arrived at PHS, Mr. Carvalis informed him of the second threatening call. The staff again assured Petitioner that they knew the caller's identity, and that both calls had been made by the same student.

57. The student was not at school. Therefore, Petitioner directed Mr. Sousa and the resource officer, Max Cramer, to go to the student's home and request the student's parent to bring the student to school. In the meantime, a third call was received from the same caller.

58. Next, Petitioner phoned Deputy Superintendent Sherman Robinson. Petitioner explained to Mr. Robinson about the bomb threat and the school's discovery of the identity of the caller. Jones believed from his discussion with Mr. Robinson that his handling of the situation and his decision not to evacuate the school had the tacit approval, if not the explicit permission, of the district office. Petitioner believed Mr. Robinson concurred in his decision not to evacuate.

59. The student with the raspy voice and his parent subsequently arrived at the school. After questioning the student, Petitioner believed the student was the caller. Petitioner decided to continue the search of the school without evacuating it.

60. Petitioner directed Mr. Carvalis and the maintenance men to divide into teams and sweep the campus using the techniques taught by a handler of a bomb sniffing dog after previous threats.

61. On one occasion a bomb sniffing dog and his handler came to PHS from Eglin Air Force Base in Ft. Walton. The PHS campus was so large that the dog got tired and refused to work

    about half way through the search. On that occasion, the search continued in the same manner employed by Petitioner on March 29, 1996.

62. During the search on March 29, 1996, seven different groups looked for anything that was out of place. All of the deans had assigned areas where they searched trash bins, open lockers, and open classrooms. Later in the school day, Mr. Carvalis reported that the entire campus, including the portables, had been swept and nothing found.

63. Petitioner does not dispute that he did not follow the Superintendent's policy regarding bomb threats on the day in question. Petitioner believed that he knew the identity of the caller. He also was concerned about the disruption that the bomb threats were causing to the academic programs at PHS. The students in the gifted program were preparing to take their advanced placement tests. The students in the International Baccalaureate program were studying for their exams. Additionally, March 29, 1996 was the last chance for some students to take the high school competency test before graduation.

64. Superintendent Malloy was particularly concerned that Petitioner failed to evacuate the school. The previous day he had reiterated his policy of evacuation to all principals. However, Petitioner did not attend the meeting; one of

    Petitioner's assistant principals attended that meeting in his absence.

65. On March 30, 1996, Superintendent Malloy placed Petitioner on administrative leave with pay, pending an investigation of his failure to evacuate PHS after a bomb threat. Superintendent Malloy subsequently assigned Petitioner to his current position as Director of Student Transfers.

66. On June 3, 1996, Superintendent Malloy issued a letter reprimanding Petitioner for the following reasons: (1) failing to ensure that the ISS class had appropriate supervision; (2) failing to follow up on information regarding sexual activity in the stadium in a timely manner; and (3) failing to evacuate the school after receiving a bomb threat.

67. In November of 1996, Jim May was elected Escambia County School Superintendent.

68. On or about June 10, 1997, the Commissioner of Education, Frank T. Brogan, filed an Administrative Complaint against Petitioner in Education Practices Commission (EPC) Case Number 956-1609-B. This complaint alleged that Petitioner failed in his responsibilities to ensure that all students under his charge were properly supervised. The complaint also alleged that Petitioner failed to evacuate the school after receiving a bomb threat.

69. On June 24, 1997, Superintendent May nominated Petitioner to be principal of WHS. At the time of the

    nomination, Superintendent May was aware of the relevant facts concerning the PHS sex incident and bomb threat incident.

    Additionally, he had been in contact with counsel for the Florida Department of Education regarding EPC Case Number 956-1609-B.

70. Respondent rejected Petitioner's nomination to be principal of WHS. On a 3 to 2 vote, Respondent found good cause to reject the nomination based on the following:

    Among the reasons articulated by the three Board Members who voted against the nomination were, in addition to the reasons presented by the other speakers, Mr. Jones' unsatisfactory past performance of his duties when he served as Principal of Pensacola High School (which events were the subject of a grand jury report and are the subject of an administrative complaint by the Commissioner of Education now pending before the Education Practice Commission proceeding, . . . his lack of subsequent training to improve his skills in the areas in which his poor performance resulted in his 1996 removal as Principal of Pensacola High School, and his apparent violation of certain of the principles of Professional Conduct for the Education Profession in Florida, in addition to gross insubordination and willful neglect of duty in connection with the Pensacola High School incidents. In sum the three Board Members who voted against the nomination felt that Mr. Jones is presently unqualified to be a Principal.

71. After Respondent rejected his nomination, Petitioner told Superintendent May that it was unfair to the students of WHS to make them wait for a principal. On July 22, 1997, Superintendent May nominated another person to be principal at WHS.

72. On or about November 6, 1997, the Florida Department of Education decided that it would withdraw its probable cause determination against Petitioner and enter into a Deferred Prosecution Agreement with him. The department requested the Education Practices Commission to close EPC Case

    Number 956-1609-B.

    
    

73. On or about March 9, 1998, Superintendent May advised the Florida Department of Education that Petitioner had performed his assigned duties and responsibilities in a professional manner during the period of January 10, 1997 and March 1, 1997. Petitioner had fully complied with all district and state rules and regulations.

74. On or about March 26, 1998, Education Commissioner Brogan determined that there was no probable cause to suspend or revoke Petitioner's teacher's certificate. Petitioner was released from his Deferred Prosecution Agreement with the department.

75. Petitioner holds the proper state certification for a high school principal. Except for the two incidents in question, Petitioner's performance at PHS was exemplary. Under his leadership, the school population was stable and well under control. Petitioner created an atmosphere at PHS where high quality performance on the part of a number of students was recognized, encouraged, and supported by the faculty and staff.

    Petitioner had an excellent relationship with students, teachers, and the PHS Advisory Council.

76. Petitioner genuinely cared for the health, safety and welfare of the students at PHS. He was concerned more about the feelings and self-esteem of the students than with winning academic and athletic competitions, and he did not make accusatory judgments about his students until he had the necessary facts and proof to support those accusations.

    CONCLUSIONS OF LAW

    
    

77. 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.

78. Section 230.23(5)(a), Florida Statutes, states as follows in pertinent part:

    230.23 Powers and duties of school board.-- The school board, acting as a board, shall exercise all powers and perform all duties listed below:

    * * *

    (5) PERSONNEL.--Designate positions to be filled, prescribe qualifications for those positions, and provide for the appointment, compensation, promotion, suspension, and dismissal of employees as follows, subject to the requirement of chapter 231:

    (a) Positions, qualifications, and

    appointments.--Act upon written recommendations submitted by the superintendent for positions to be filled and for minimum qualifications for personnel for the various positions and act upon written nominations of persons to fill such positions. The school board may reject for good cause any employee nominated. . . .

79. Petitioner has standing to bring this action. He acquired a property right to be the WHS principal by virtue of Superintendent May's initial nomination of him to that position. Von Stephens v. School Board of Sarasota County, 338 So. 2d 890, 894 (Fla. 2nd DCA 1976). Petitioner did not lose that standing because Superintendent May withdrew Petitioner's name from consideration and nominated another person to be become interim principal at WHS. See Von Stephens 338 So. 2d at 895. There has been no showing that Superintendent May had good cause to withdraw Petitioner's nomination. To the contrary, Superintendent May stands firm in his support of Petitioner's nomination.

80. Petitioner agreed with the Superintendent that WHS should not have to wait for a principal until all administrative and legal proceedings have been exhausted in this case. He did not agree that the Superintendent or Respondent had good cause to deprive him of his right to due process, which vested upon his initial nomination. Respondent's argument that this case is moot is without merit.

81. Respondent has the burden in this proceeding of proving by a preponderance of evidence that it has sufficient good cause to reject Petitioner's nomination to be WHS principal. Dileo v. School Board of Dade County, 569 So. 2d 883, 884 (Fla. 3rd DCA 1990). Respondent has not met this burden.

82. In determining whether good cause exist to reject a nomination, a school board may consider the published principles governing Florida's education profession as set forth in

    Rule 6B-1, Florida Administrative Code. Spurlin v. School Board of Sarasota County, 520 So. 2d 294, 297 (Fla. 2nd DCA 1988). In this case, there is no persuasive evidence that Petitioner violated that rule, set forth below in pertinent part:

    Rule 6B-1.006 Principles of Professional Conduct for the Education Profession in Florida.

    
    

    1. The following disciplinary rule shall constitute the Principles of Professional Conduct for the Education Profession in Florida.

       
       

    2. Violation of any of these principles shall subject the individual to revocation or suspension of the individual educator's certificate, or the other penalties as provided by law.

       
       

    3. Obligation to the student requires that the individual:

       
       

       (a)Shall 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.

       * * *

       (g) Shall not harass or discriminate against any student on the basis of race, color, religion, sex, age, national or ethnic origin, political beliefs, marital status, handicapping condition, sexual orientation, or social and family background and shall make reasonable effort to assure that each student is protected from harassment or discrimination.

       * * *

    4. Obligation to the public requires that the individual:

       * * *

       1. Shall not intentionally distort or misrepresent facts concerning an educational matter in direct or indirect public expression.

          * * *

    5. Obligation to the profession of education requires that the individual:

       * * *

       1. Shall not interfere with a colleague's exercise of political or civil rights and responsibilities.

          
          

       2. Shall not engage in harassment or discriminatory conduct which unreasonably interferes with an individual's performance of professional or work responsibilities or with the orderly processes of education or which creates a hostile, intimidating, abusive, offensive, or oppressive environment; and, further, shall make reasonable effort to assure that each individual is protected from such harassment or discrimination.

       * * *

       (f) Shall not use coercive means or promise special treatment to influence professional judgments of colleagues.

       * * *

       (n) Shall seek no reprisal against any individual who has reported any allegation of a violation of the Florida School Code or State Board of Education Rules as defined in Section 231.28(1), Florida Statutes.

       
       

       Rule 6B-1.006, Florida Administrative Code.

       
       

83. A school board may find good cause to reject a nomination by determining that the nominee has violated Section 231.28(1), Florida Statutes, which states as follows in pertinent part:

    1. Has proved to be incompetent to teach or to perform duties as an employee of the public school system or to teach in or to operate a private school;

    2. Has been guilty of gross immorality or an act involving moral turpitude;

    * * *

    1. Has been convicted of a misdemeanor, felony, or any other criminal charge, other than a minor traffic violation;

       
       

    2. Upon investigation, has been found guilty of personal conduct which seriously reduces that person's effectiveness as an employee of the school board;

    * * *

    (i) Has violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules; or

    
    

    (j) Has otherwise violated the provision of law, the penalty for which is the revocation of the teaching certificate.

    
    

    There is no credible evidence that Petitioner has committed any of these prohibited acts.

84. Section 231.36(4)(c), Florida Statutes, sets forth the following conduct which would justify the suspension or dismissal from employment of a principal under continuing contract:

    (1) immorality; (2) misconduct in office; (3) incompetency; (4) gross insubordination; (5) willful neglect of duty; (6) drunkenness; or (7) conviction of a crime involving moral turpitude. Petitioner is not guilty of any such behavior.

85. The term good cause is not limited to specific statutory or rule offenses which would result in a suspension or dismissal from employment or a license disciplinary proceeding. Spurlin, 520 So. 2d at 296-297. A school board may reject a nominee for reasons associated with his or her past performance of duties and his or her conduct. Spurlin, 520 So. 2d at 295. A

    school board must consider whether the nominee is morally or professionally qualified. Spurlin, 520 So. 2d at 297.

86. In this case, the greater weight of the evidence indicates that Petitioner is qualified by skill and training and properly certified to be principal of WHS. There is no credible evidence that Petitioner is morally or professionally disqualified from holding that position. His past performance and conduct in handling the October 1995 sexual incident in the stadium and the March 1996 bomb threat does not constitute good cause to reject his nomination.

87. Petitioner may have relied too heavily upon his staff to investigate the allegation of sexual misconduct in the stadium. He received less than accurate and complete information in response to his requests for information verifying the rumors concerning the sexual incident. However, Petitioner did not give Mr. Sander's permission to leave his class unattended.

    Petitioner did not attempt to cover up the sexual episode in the stadium for the benefit of the football team or for any other reason. He did not threaten or intimidate his faculty and staff to keep them from publicly disclosing the sexual incident.

    Petitioner did not unreasonably delay the reporting of the incident to HRS, Superintendent Malloy, or the Pensacola Police Department. He did not intentionally interfere with Officer Cutler's investigation.

88. Petitioner was genuinely concerned with protecting the confidentiality of students. He did not want to take any action based on rumor alone. In the meantime, Petitioner was aware of Mr. Sousa's efforts to protect the female student from being harassed by the other students.

89. Petitioner acknowledges that he did not handle the bomb threat incident according to Superintendent Malloy's instructions. He did, however, call Deputy Superintendent Robinson and received what he believed was the district's approval not to evacuate. Due to Petitioner's concern for the safety of the students, the school was thoroughly searched by teams of staff in accordance with their previous training.

RECOMMENDATION

Based upon the findings of fact and conclusions of law, it

is,

RECOMMENDED:

That Respondent enter a Final Order finding that there is no

good cause to reject Superintendent May's nomination of Petitioner to be principal at WHS, promoting him to that position, and awarding him any back pay to which he may be entitled.

DONE AND ENTERED this 15th day of October, 1998, in Tallahassee, Leon County, Florida.

SUZANNE F. HOOD

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 15th day of October, 1998.

ENDNOTE

1/ The transcript mistakenly indicates that School Board Exhibits 1 and 2 were marked for identification and admitted into evidence. These exhibits were marked for identification but never offered as evidence.

COPIES FURNISHED:

James A. Hightower, Jr., Esquire Post Office Box 9

Mobile, Alabama 36601-0009

Louis F. Ray, Jr., Esquire Post Office Box 591

Pensacola, Florida 32593-0591

Jim May, Superintendent Escambia County School Board Post Office Box 1470 Pensacola, Florida 32597-1470

Michael H. Olenick, General Counsel Department of Education

The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400

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 within

15 days from the date of 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: 97-003763

Orders for Case No: 97-003763