STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PINELLAS COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 98-3791

)

SHARON LAMBETH, )

)

Respondent. )

)

RECOMMENDED ORDER

On December 2 through 4, 1998, a formal administrative hearing was held in this case in Clearwater, Florida, before

J. Lawrence Johnston, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Oscar Blasingame, Esquire

Orange Park Center

696 First Avenue, North, Suite 400 St. Petersburg, Florida 33701

For Respondent: Louis Kwall, Esquire

Kwall, Showers & Coleman, P.A.

133 North Ft. Harrison Avenue Clearwater, Florida 33755

STATEMENT OF THE ISSUE

The issue in this case is whether the Respondent, Sharon Lambeth, should be reprimanded and reassigned from her position as Countryside High School principal to a position as a supervisor with the school system's Title I office, at the same rate of pay.

PRELIMINARY STATEMENT

By letter dated July 2, 1998, the Pinellas County School Superintendent, J. Howard Hinesley, reprimanded the Respondent for alleged misconduct and poor judgment during the summer of 1997, removed her from her position as Countryside High School principal, and indicated his intention to reassign her to another position. By letter dated July 8, 1998, the Superintendent notified the Respondent that she was being assigned as a supervisor with the school system's Title I office.

By letter dated July 8, 1998, the Respondent's counsel requested "a Due Process and Name Clearing hearing along with a Florida Statutes Section 120.7 [sic] hearing to contest the contents of [the Superintendent's] letter to Mrs. Lambeth dated July 2, 1998."

According to the minutes of the School Board meeting on August 25, 1998, the Superintendent's "recommendation" was considered at a School Board meeting on July 28, 1998, but did not "pass." At the School Board meeting on August 25, 1998, the matter was again considered. At first the School Board discussed deleting the matter from the agenda since it was unchanged from July 2, 1998, and did not "pass" during the Board's July 28 meeting; instead, the Board voted 4-3 "to grant the request for due process and name clearing hearing filed by Attorney Kwall on behalf of his client, Sharon Lambeth."

On September 1, 1998, the School Board referred the matter

to the Division of Administrative Hearings (DOAH), and it was scheduled for final hearing on December 2 through 4, 1998, notwithstanding the Respondent's request that it be held in abeyance until disposition of any related Education Practices Commission (EPC) proceedings.

The Respondent filed a Motion to Abate and a Motion to File an Amended Petition for a Name Clearing, Due Process and Florida Statute 120.57 Hearing on October 13, 1998. On October 14, 1998, the School Board filed a Motion to Correct Statement of Issues in the Notice of Final Hearing. In the latter motion, the School Board sought to limit the proceeding to a "name clearing, due process hearing"; by the Respondent's motion to amend the petition, the Respondent wished to not only provide greater detail but also to more clearly request a Section 120.57 proceeding, as well as a "name clearing, due process hearing."

An Order on Pending Motions was entered on October 28, 1998.

It granted the Respondent's Motion to File an Amended Petition for a Name Clearing, Due Process and Florida Statute 120.57 Hearing, denied the Respondent's Motion to Abate, and denied the School Board's Motion to Correct Statement of Issues in the Notice of Final Hearing. The Order on Pending Motions was entered without reference to the decision in Sickon v. School Bd. of Alachua County, 719 So. 2d 360 (Fla. 1st DCA 1998), which was issued on October 21, 1998, but was not final until after entry of the Order on Pending Motions.

On November 20, 1998, the parties filed a Pre-Hearing Stipulation, as required by the Prehearing Order entered in the case. On November 23, 1998, the School Board filed a Motion to Dismiss based in part on the Sickon decision.

At final hearing on December 2, 1998, ruling was reserved on the School Board's Motion to Dismiss because it required the consideration of evidence to be presented during the hearing.

The School Board then called eleven witnesses, read parts of the Respondent's deposition testimony into the record, and had Petitioner's Exhibits 1 through 9 admitted in evidence. (Ruling was reserved on the Respondent's objection to Petitioner's Exhibit 3, but the objection is now overruled.) The Respondent re-called the School Board's investigator as an adverse party witness, called eleven other witnesses, and read parts of the deposition testimony of another witness into the record before testifying in her own behalf; she also had Respondent's Exhibits

1 through 21 admitted in evidence. The School Board then called two rebuttal witnesses (including the witness whose deposition testimony was read in the Respondent's case-in-chief.)

After presentation of the evidence, the School Board ordered a transcript of the final hearing, the parties asked for and were given until January 29, 1999, in which to file proposed recommended orders. However, on January 21, 1999, the parties filed a Joint Request for an Extension of Time until March 1, 1999, to file their proposed recommended orders because they

"believe[d] that they [were] near an agreed settlement." On February 25, 1999, the parties asked for an additional extension until March 8, 1999, to give them more time to settle and present a settlement to the School Board.

On February 23, 1999, the Respondent gave notice of her decision "not to pursue the issue involved in the liberty interest of a name clearing hearing." However, the parties were unable to settle the other issues and filed their proposed recommended orders on March 8, 1999.

FINDINGS OF FACT

1. The Respondent, Sharon Lambeth, has been involved in the field of education for over 20 years. She moved to Volusia County in 1985 to begin her career in Florida. She began as assistant director of personnel but went through target selection and became an elementary school assistant principal, an elementary school principal, and then the principal of Volusia County's largest high school. She married and moved to Pinellas County in 1993 and was hired as an assistant principal at Gibbs High School for the 1993-94 school year. She was promoted to principal of Countryside High School for the 1994-95 school year. During her tenure in Pinellas County, Lambeth was a very effective principal and generally very well-liked (although, like almost all principals, she had her detractors as well as her supporters.) Lambeth's performance evaluations during her tenure in Pinellas County through May 8, 1998, have been excellent.

2. Lambeth's employment as principal of Countryside High School has been under successive annual contracts with the Pinellas County Schools. The contract for the 1997/98 school year provided, in pertinent part:

   1. . . . The Board may, upon recommendation of the Superintendent, transfer and assign the Employee to a similar position in any other location of the district, provided that the duties shall be similar to the duties originally assigned, and the salary shall be heretofore set forth.

      
      

      * * *

      5. The Board may suspend or remove the Employee for just cause. The Employee shall not be entitled to receive any salary from and after the date of such suspension or removal unless such suspension is revoked and in no event shall the Employee be entitled to any compensation subsequent to the cancellation of this contract.

      * * *

      11. Failure of either party to fulfill the obligations under this contract, and to carry out the lawful provisions, hereof, or as otherwise provided by law, shall constitute sufficient grounds for the termination of this contract by the other party, provided, however, no termination shall be effective without reasonable notice.

      On April 28, 1998, Lambeth again was appointed to a position for the 1998/99 school year, "subject to assignment and transfer." Lambeth accepted the appointment on May 8, 1998.

   2. There exist Pinellas Administrators Association Personnel Practices and Grievance Procedures. These documents were developed jointly by the Superintendent of Schools and the Executive Board of the Pinellas Administrators Association; they were approved by the School Board on July 14, 1976. The

      Personnel Practices provide in pertinent part:

      
      

      1. COMPLAINTS

         A. Complaints, oral or written, involving administrators or supervisors shall be investigated through line offices. A copy of such a complaint shall be immediately forwarded to the employee concerned so that he may respond. The employee shall be entitled to know the name of the person or group making the complaint.

         * * *

         1. TERMINATION

            1. Termination for Cause.

         Administrative and supervisory personnel may be terminated for cause on the same grounds as delineated in F.S. 231.36(6) at the discretion of the School Board. Termination shall include discharge, suspension without pay, demotion in salary or status, or any other action involving fault on the part of such administrator or supervisor.

         * * *

         C. Any administrator or supervisor terminated for cause subjected to a personnel action as defined above shall have the right to register his complaint through the Pinellas administrators' grievance procedures.

         
         

         However, the significance of these documents is not clear; nor is it clear that they are still are applicable at this time. They apparently are not duly promulgated School Board policy, and the School Board does not refer to them in the conduct of its employment relationships. They also are not part of Lambeth's employment contract. Even if generally applicable, it also was not clear whether they would apply to administrators who are not members of the Pinellas Administrators Association, and there was no evidence that Lambeth is a member.

   3. In August 1997, someone approached Countryside assistant

      principal, Kathleen Novak, to explain the circumstances of a 1997 graduate. The student was a few points short of the minimum grade required in certain core high school courses by either his college's admission requirements, the National Collegiate Athletic Association's (NCAA's) athletic scholarship requirements, or both.

   4. Novak went to her principal, Lambeth, to discuss the matter. Another assistant principal, Paula Flott, also participated in the discussion. The outcome of the discussion was that Lambeth asked Novak and Flott to try to contact "their" teachers (i.e., the teachers "assigned" to them for purposes of supervision and division of duties) to find out if there were any grades that could be raised enough through re-testing to meet the minimum requirements the student needed to meet.

   5. Before contacting the teachers, Novak first had occasion to confer with yet another assistant principal, Henry Moore. Moore helped Novak review the student's report cards and identified two grades he thought could be raised enough to give the student the minimum grade required. One was a "mid-point" grade in a history class the student took during his junior year (1995-96). Under School Board Policy 6Gx52-8.24(2)(g): "At the mid-point of each grade level, i.e., 3.5, 2.5, 1.5, .5, it will be the option of the teacher, subject to review by the principal, as to whether the higher or lower grade will be given." Moore also identified a psychology grade from the student's senior year

      (1996-97) which was borderline.

      
      

   6. It is not clear from the evidence whether Moore thought it was necessary to contact the history teacher, David Ferguson, about the mid-point grade. Moore understood Countyside's unwritten policy to be that, if a student improved his or her grade during the grading period, a mid-point grade would be increased to the next higher whole number or letter grade unless the teacher went to the principal to justify deviating from the policy. There was some evidence to suggest that Moore thought Lambeth, as principal, could raise the mid-point grade without re-testing; but the evidence was not clear that Moore

      communicated this to Novak or Lambeth at the time. In any event, Moore testified to his assumption that Novak would next contact the teachers concerning re-evaluation of the two grades.

   7. The next day, Novak reported to Lambeth the results of her conversation with Moore. Lambeth decided that the student should re-take the final examinations in both classes. She testified that she instructed Novak to contact the teachers about the re-evaluations and re-testing. Novak denied receiving explicit instructions to contact the teachers at this point. It is found that Novak would not have disregarded a direct instruction to contact the teachers. It is more probable that Lambeth simply instructed Novak to proceed to take care of it and assumed that Novak would contact the teachers.

   8. Novak also saw Flott that day. Flott told Novak that

      Flott had not contacted any of "her" teachers yet. Novak told Flott not to worry about it, that Novak had "taken care of it." Flott assumed Novak meant Novak had contacted the teachers.

      Actually, Novak meant that, since the two grades Novak and Moore already had been identified were enough, there was no need for Flott to contact any of "her" teachers.

   9. At this time during the summer, the teachers were on vacation, and Novak researched files of past exams maintained by the school administration to document grades and reproduced the final exams for the grades she and Moore had identified. Novak then made arrangements for the student to retake the exams and notified Lambeth that the student had improved his grades enough to meet the student's college requirements.

   10. When Novak reported to Lambeth, the deadline for the student's college requirements was imminent. Lambeth assumed but did not ask whether Novak had contacted the teachers whose grades were involved. Lambeth did not ask to see any documentation of the teachers' assent to a grade change or any documentation of the retesting. Lambeth just told Novak to change the grades in the official records and notify the college and/or the NCAA. Novak responded that she did not know how to do this. Lambeth told her to get assistance from clerical personnel who knew how to change grades; Lambeth herself took care of notifying the college and/or the NCAA.

   11. To notify the college and/or the NCAA, Lambeth modified

       a form used by Countryside's athletic department to document that a student-athlete's grade had been properly re-evaluated so as to regain eligibility to participate in interscholastic athletics.

       The form utilized had a place for the signature of the teacher whose grade was being re-evaluated. In modifying the form for purposes of notifying the college and/or the NCAA, Lambeth deleted the provision for the teacher's signature. Lambeth signed the form as principal on August 15, 1997, and sent the notification to the college and/or the NCAA.

   12. Lambeth denied that she deleted the teacher signature provision in the form because she knew the teachers were unaware of the grade re-evaluations. Although the teachers were at school on August 15, 1997, preparing for the start of the 1997-98 school year, Lambeth said she dispensed with the teacher signature provision in order to expedite the notification.

   13. A few days after the start of the 1997-98 school year, the girl friend of the student whose grades were changed told Ferguson that the student had retaken Ferguson's final exam. Ferguson was busy and told the girl that they would discuss it later, which they did about a month later.

   14. For another month or more, Ferguson did nothing about it. Towards the end of October or early November 1997, Ferguson approached Lambeth to let her know what had happened and that students were talking about it. To his surprise, Lambeth told him she knew all about it, having been directly involved herself

       in the grade re-evaluation. Lambeth did not act as if she saw anything wrong with what was done; she even seemed proud of her participation. Ferguson, who did not think it was right for one of his assigned grades to be re-evaluated without his knowledge, was taken off-guard by Lambeth's response and decided not to say anything else about it at the time.

   15. In about December 1997, Ferguson found the time to spend several hours looking into the circumstances of the grade re-evaluations. He discovered that the grades were changed in the student's official transcript, but that the changes were not otherwise documented. The lack of documentation also seemed wrong to Ferguson.

   16. During the spring semester of the 1997-98 school year, Ferguson approached Jim Watters, the psychology teacher whose assigned grade was changed. By this time, Watters was at a different school, and Ferguson thought it would be logical for Watters to be the one to complain about the grade changes since Ferguson not only still was at Countryside but also had to deal with Lambeth in his capacity as Pinellas Classroom Teachers Association (PCTA) union representative. Watters told Ferguson that he did not want to complain because he was near retirement and did not want controversy at that point in his career. Subsequently, Ferguson sought the advice of the PCTA as to whether he would be opening himself to discipline if he did not report the incident to the school district administration. It

       was concluded that the incident should be reported.

       
       

   17. On April 23, 1998, Rik McNeill of the PCTA contacted Dr. Martha O'Howell, an administrator in the school district's Office of Professional Standards, to report the grade change incident; the next day, Jade Moore of the PCTA sent O'Howell a letter reporting the incident.

   18. On or about April 30, 1998, O'Howell's office began an investigation of the reported incident. On May 11, 1998, O'Howell interviewed Lambeth, Novak, and others at Countryside and took written statements from them. When O'Howell told Lambeth that teachers had complained, Lambeth wondered aloud why, since they had participated. Novak's statement, on the other hand, was that the teachers were not notified or involved because they were not at school at the time.

   19. On May 14, 1998, O'Howell re-interviewed Lambeth and Novak. In her re-interview of Lambeth, the principal maintained her understanding that Novak had discussed re-testing with the teachers whose grades were involved. During her re-interview of Novak, O'Howell asked Novak for the second time to produce the re-tests she administered, but Novak reiterated that she could

       not find the re-tests or any documentation that re-testing had in fact taken place. She got the impression that O'Howell questioned the truth of her assertion that re-tests actually had been administered and became defensive. Novak got the impression that it was very important for her to be able to produce the re-

       tests.

       
       

   20. On May 21, 1998, Novak submitted a supplement to her earlier written statement. In the supplement, Novak expressed confusion about Ferguson's complaint in light of her recollection that Ferguson had told her "emphatically last year that it wasn't his responsibility to give early exams or make up exams if they might extend beyond contract hours" and said: "That's administration's problem, not mine."

   21. Afraid of what might happen to her if she could not produce the re-tests (that it could end her career and jeopardize her retirement benefits), Novak panicked. She tried to again re- produce the examination questions, and she forged answers. She presented the forgeries to O'Howell on June 2, 1998. O'Howell quickly saw through Novak's inept forgeries for what they were, and Novak was in even more trouble than she thought she was in before the forgeries.

   22. On or about June 9, 1998, Lambeth asked for a meeting with the investigator and Area Supervisor Bill Williamson. Their assessment of the situation was that it was "serious"; they suggested that Lambeth consider what parents would think. But Lambeth also knew about Novak's forgeries and assumed that Novak had become the focus of the investigation, not her.

   23. Indeed, at a meeting on June 18, 1998, O'Howell informed Novak that her job was in jeopardy; O'Howell said she was prepared to recommend that the Superintendent terminate her

       employment. At that point, Novak retained an attorney, who asked to meet with the School Superintendent, J. Howard Hinesley, and the School Board's attorney, Wesley Bridges. The meeting took place on June 24, 1998.

   24. At the meeting on June 24, 1998, Novak and her attorney tried to explain to Hinesley and Bridges why Novak forged the re- tests. They also told Hinesley and Bridges that Novak thought Lambeth was trying to blame Novak for the incident but that Lambeth never told Novak to contact the teachers whose grades were involved. Hinesley took this and other information given by Novak at the meeting into consideration in evaluating the situation. Based on the discussion at this meeting, Hinesley decided to reprimand and demote Novak to an instructional position with no reduction in pay, instead of terminating her employment.

   25. On or about June 29, 1998, Area Supervisor Williamson told Lambeth that it was time to have a meeting to resolve the matter. Williamson again emphasized that it was "serious," this time communicating to Lambeth that she was also in jeopardy. The meeting was set for July 2, 1998. At this point, Lambeth hired an attorney.

   26. The meeting was attended by Lambeth, Hinesley, their attorneys, Williamson, and O'Howell. Lambeth was informed that she was being removed as principal at Countryside for her role in the grade change incident and would be transferred to another

       position. She was told that a letter to that effect had been mailed to her. She was required to hand over her office keys and was told to make arrangement to clean-out her office at 5 p.m.

       She was told that she would not be allowed to return to campus without campus police being present. Campus police escorted her to her car.

   27. On or about July 8, 1998, Lambeth received Hinesley's letter dated July 2, 1998. Besides reciting facts found through the investigation, the letter accused Lambeth of failing "to ensure that the teachers of the two courses involved had knowledge of or approved the final examination re-takes and the subsequent grade changes" and "to ensure that the re-takes were properly administered and graded and that the results were documented." The letter reprimanded Lambeth for "violation of School Board Policy 6Gx52-8.23, as well as the Code of Ethics and Principles of Professional Conduct for the Education Profession in Florida." (School Board Policy 6Gx52-8.23 sets the district's High School Credit and Student Performance Standards; section (6) of the rule provides that a student's mastery of performance standards "shall be determined by the teacher with the principal's approval.") The letter also stated that Lambeth's conduct "reflects a lack of sound professional judgment and seriously diminishes your effectiveness as a school leader." As a result, the letter stated, Lambeth was being removed her from her position as Countryside High School principal, was being

       placed on administrative leave, and would be reassigned to another position.

       
       

   28. By letter dated July 8, 1998, Hinesley notified Lambeth that she was being reassigned as a supervisor with the school system's Title I office. Lambeth's contract was not changed, and her pay was not reduced. Her new position is classified as Level

       4 in the School Board's personnel system, while high school principal is a Level 8 position. There are some similarities between the two positions, but there also are differences. Both positions require a master's degree, certification in administration and supervision, and five years of related professional experience; a program supervisor for Title I also requires an additional minimum of three years of teaching experience. Both positions involve working with teachers; but while a principal supervises 95 teachers (plus non-teacher personnel and 1500 to 2000 students) at a school site, a Title I program supervisor works with but does not supervise principals, assistant principals, and teachers at 18 different elementary schools. Both jobs involve budget planning, but the nature of the budgets are different; a Title I program supervisor reviews budgets for federal funds.

   29. There is no provision for re-evaluating a student's grades after graduation. There is a policy to allow a student who has passed all 24 courses required to graduate, but did not

       earn the minimum grade point average (GPA) required to receive a diploma, to "walk" at graduation , receive a "certificate of completion," and return to school in the summer and/or an additional year of high school to re-take classes to hopefully raise his or her GPA enough to receive a high school diploma.

       But there is no evidence that the student involved in this case did not receive a diploma when he graduated at the end of the 1996-97 school year. He was no longer a student and should not have been able to change his grades at that point.

   30. In circumstances when it would be permissible to re- evaluate a student's grades, it should only be done in consultation with the teacher who assigned the grade. Subject to the requirement that grading policies are followed, student grading is the province of the teacher's exercise of professional judgment, subject only to the principal's approval. The integrity of the grading system depends the teacher's exercise of professional judgment. Likewise, the "education contract" among the administration, teachers, students, and parents presumes and requires integrity in the grading process.

   31. School Board Policy 6Gx52-8.28(4)(g) is clear that, in the case of "mid-point" grades, it is the "option of the teacher, subject to review by the principal, as to whether the higher or lower grade will be given." Clearly, this policy gives the principal the ability to review the teacher's grade and argue forcefully that a different grade should be assigned. Some

       teachers would succumb to the principal's choice, either because of the force of the principal's arguments or because of fear of the possible consequences of disagreeing with their principal.

       The policy may even enable a principal to overrule the teacher. But it is a violation of policy for a principal to change a grade without following the mid-point grade policy.

       
       

   32. Because of the importance of integrity in the grading system, it is incumbent on the principal to take reasonable steps to ensure that teachers are involved in any grade re-evaluation. Clearly, a principal must delegate responsibilities to assistant principals when necessary and appropriate, and a principal should be entitled to rely on an assistant principal to follow the principal's instructions (whether expressed ad hoc or in policy). For that reason, Lambeth normally would have been entitled to expect an assistant principal to involve the teacher in any grade re-evaluation. But re-evaluation of a student who had graduated was not normal, and Lambeth should have made it clear to Novak that Novak was not to proceed with re-testing and grade re- evaluation without the teachers' participation. It is not clear from the evidence that Lambeth made reasonable efforts make this clear to Novak. By the same token, because the situation was not normal, Lambeth should have made some effort to ensure that Novak properly documented the re-take of the examinations and the grade change instead of relying entirely on Novak.

   33. There is no question but that Lambeth's effectiveness as a school leader diminished as a result of this grade change incident. As Lambeth pointed out at final hearing, most principals have their supporters and detractors, and predictably there were some teachers and parents who testified that the grade change incident did not reduce Lambeth's effectiveness as far as they were concerned. But most of these witnesses did not know all of the facts and circumstances of the case and spoke from their limited perspectives. Meanwhile, there were many witnesses who testified that Lambeth's effectiveness was seriously diminished in their view, and they were not all detractors of Lambeth; they included Hinesley, other Pinellas County school administrators, retired Pinellas County School Superintendent Scott Rose, administrators from other school districts, teachers at other schools, and parents. Some of these also did not know all of the facts and circumstances of the case and spoke from their limited perspectives; but some knew all or most of the facts and circumstances and spoke from broader perspectives.

   34. Some witnesses expressed the idea that the reduction in effectiveness would not be insurmountable or permanent if Lambeth would admit her error, ask for forgiveness, and promise not to do it again. Unfortunately, Lambeth did not admit error until her testimony at the end of her case-in-chief. While she complained that she was not given the opportunity to do so before the meeting on July 2, 1998, she missed innumerable opportunities

       since; indeed, much of her case seemed aimed at proving that she had done nothing wrong. The authenticity of her eleventh-hour repentance is suspect.

   35. At the same time, while Lambeth's effectiveness certainly was diminished by the incident (and her refusal to admit her error, ask for forgiveness, and promise not to do it again), it is not clear just how seriously her effectiveness has been diminished. There were mitigating factors. First, Lambeth has an excellent record as an effective administrator. Second, while her efforts were misguided, her motive was to help a student gain educational benefits. The student was African- American and, while the Petitioner criticized Lambeth for testifying in deposition that the student's minority status was a factor in her efforts to help, the School Board in fact has a policy of emphasizing the delivery of educational benefits to minority students. Also, after what she has been through, it seems unlikely that Lambeth would be foolish enough to repeat this or any similar grade change blunder in the future.

   36. A reprimand and reassignment to Title I program supervisor certainly is a setback for Lambeth's career as a school principal. But, contrary to Lambeth's concern and contention in this case, it is found that such an action does not necessarily mean the end of Lambeth's career as a school principal in this or any other school district. Certainly, if Lambeth's offense is as minor as she contends it was, she may

       well be able to convince a school superintendent other than Hinesley to assign her as a school principal. It certainly seemed that retired School Superintendent Rose would have been open to the idea; there is no reason to be certain that others may not also consider Lambeth for a principal position. If Hinesley's position as Pinellas School Superintendent is as tenuous as Lambeth's evidence attempted to suggest (i.e., that he may be just one School Board vote from being the former Pinellas School Superintendent), the chances are that it may not be long before Lambeth could apply to a subsequent Pinellas School Superintendent for such a position. It even seems possible (although perhaps not likely) that Hinesley himself might

       reconsider and reassign Lambeth as a principal at some point in the future.

   37. Lambeth also contended that other School Board employees have been treated more leniently for worse offenses. But the evidence did not prove selective enforcement against Lambeth. The other situations either were too dissimilar to compare, or Lambeth's treatment was not clearly excessively harsh by comparison.

   38. Lambeth first points to the treatment of Novak. While it is true that Novak forged the re-tests, she was Lambeth's subordinate and subject to Lambeth's direction, and her treatment (reassignment to a completely nonsupervisory position) was somewhat harsher than Lambeth's.

   39. Lambeth also points to Ferguson, who Lambeth contends went unpunished after alleged violation of School Board Policy 6Gx52-6.22 by posting a copy of a portion of the School Board's investigative report on Lambeth and Novak on the bulletin board in the teacher's lounge. But Policy 6Gx52-6.22 provides:

       Employees shall not use the classroom, nor any other part of school facilities, as a platform for making disparaging remarks against students, parents, teachers and/or administrators. Conduct contrary to this policy may constitute grounds for disciplinary action.

       
       

       In addition, it is not clear that posting information about an investigation that was of genuine concern to the teachers is the same thing as using the bulletin board "as a platform for making

       disparaging remarks." Nonetheless, Lambeth's replacement as Countryside's principal considered the posting to be bad for morale and asked Ferguson to remove it. Initially, Ferguson refused to remove it; eventually, he removed it at the request of and as a favor to Jade Moore of the PCTA. (The evidence was that Hinesley was not aware of the posting.)

   40. Lambeth's other evidence on this point consisted of letters of reprimand to a principal and an assistant principal for not following proper procedures and immediately notifying the proper authorities of allegations of sexual abuse. It is not clear that these offenses are so similar to Lambeth's as to have required the School Board in fairness to also remove and reassign them.

       CONCLUSIONS OF LAW

       
       

   41. Lambeth has decided "not to pursue the issue involved in the liberty interest of a name clearing hearing." Instead, she seeks reinstatement to her position as principal of Countryside High School on what seem to be essentially two grounds. First, Lambeth alleges that her due process rights were violated; second, she asserts that reprimand and transfer to the position of Title I program supervisor exceeded the appropriate punishment for any wrongdoing on her part (in part allegedly in comparison to punishment meted out to others.) The threshhold question is whether Lambeth has a right to an administrative hearing on the merits of the grounds she asserts.

   42. In Sickon v. School Bd. of Alachua County, 719 So. 2d

       
       

       360 (Fla. 1st DCA 1998), a teacher with supplemental duties as band director was denied an administrative hearing when reassigned as assistant band director. The court held that, in order to have a right to an administrative hearing under Chapter 120, Florida Statutes (1997), substantial interests within the meaning of Sections 120.52(12), 120.569, and 120.57(1), Florida Statutes (1997), must be affected or determined. Sickon essentially held that the administrative procedures contained in Chapter 120 are insufficient in themselves to create such substantial interests; rather, Sickon held, there must be a "legally recognized interest"--i.e., an injury "under the protection of" pertinent substantive law. Finding none among the allegations in the petition in that case (allegations of rights under a collective bargaining agreement, rights under a Florida Administrative Code rule, and federal constitutional rights to a name-clearing hearing), Sickon upheld the denial of an administrative hearing.

   43. Since Lambeth has decided "not to pursue the issue involved in the liberty interest of a name clearing hearing," there is no need to decide whether those federal constitutional rights to procedural due process would entitle her to an administrative hearing under Sickon. (In Sickon, it was not alleged that the School Board made false accusations against the petitioning teacher; rather, it was alleged only that the School

       Board published letters it received, but without endorsing them. Also, it was not alleged in Sickon that the letters were published "in the course of the termination of employment," as required under the federal case law. At issue in this case would have been whether the School Board made false accusations against

       Lambeth, and whether her reprimand and reassignment should "be regarded essentially as a loss of employment" under Sickon.)

   44. Unlike in Sickon, Lambeth cited no administrative rule creating substantial interests that would give rise to a right to an administrative hearing. Presumably, Lambeth did not cite Florida Administrative Code Rule 6B-4.005 because of its similarity to Florida Administrative Code Rule 6B-4.006 cited in Sickon, which held the rule insufficient to create substantial interests that would give rise to a right to an administrative hearing.

   45. Lambeth also cited no statute creating substantial interests affected or determined by a reprimand and reassignment to another position at the same pay that would give rise to a right to an administrative hearing. The pertinent statute creates a right to a hearing only upon suspension or dismissal. See Section 231.36(6)(a), Florida Statutes (1997). It does not appear that Lambeth is arguing that her reprimand and reassignment to Title I program supervisor constitutes a suspension or dismissal for purposes of the statute. If so, the argument would be rejected, and it would be concluded that her reprimand and reassignment does not constitute a suspension or dismissal.

   46. While dropping her request for a federal due process name-clearing hearing, Lambeth seems to argue that substantial interests affected or determined by the reprimand and

       reassignment are created by other requirements of federal constitutional due process. She claims a constitutional due process right to a more formal, written notification of the charges against her, and an opportunity to respond, prior to July 2, 1998. (In part, she argues that such notice and opportunity to be heard are required by the Pinellas

       Administrators Association Personnel Practices; but, as found, it was not proven that they are applicable.) It is doubtful that Lambeth has any such federal constitutional due process rights.

       As stated in Stephens v. Geoghegan, 702 So. 2d 517, 526 (Fla. 2d DCA 1997):

       In 1985, the United States Supreme Court discussed an employee's procedural due process rights [footnote omitted] in the context of a discharge. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 105 S.Ct.

       1487, 84 L.Ed.2d 494 (1985). It noted that an employee who is threatened with the loss of a job in which he has a property right [footnote omitted] is entitled to procedural due process, and further discussed what was necessary to preserve this right before termination. (Emphasis added.)

       In this case, Lambeth was not threatened with the loss of a job.

       
       

   47. Even if Lambeth had been threatened with the loss of a job, it also was stated in Stephens v. Geoghegan,

       The Loudermill Court observed that an elaborate pretermination hearing is not required. It held that, before discharge, the employee must have notice of the charges against him. He must be given an explanation of the employer's evidence and an opportunity to present reasons, either in person or in writing, why the proposed action should not be taken. 470 U.S. at 546, 105 S.Ct. at

       1495, 84 L.Ed.2d at 506. The Court's holding rested in part on the fact that the pertinent state law provided an employee with a full post- termination hearing.

       
       

       Id. It is concluded that federal due process would not require more than the July 2, 1998, letter and subsequent proceedings before the School Board, which would have served the purpose of her constitutionally required pretermination hearing.

   48. Finally, Lambeth seems to argue that substantial interests affected or determined by her reassignment are created by contract. Other than the evidence which failed to establish the applicability of the Pinellas Administrators Association Personnel Practices, there was no evidence of any collective bargaining agreement covering Lambeth and her employment contract, and no occasion to decide whether rights acquired under a collective bargaining agreement would be sufficient to give Lambeth a right to an administrative hearing. Contrast Sickon, supra (where there was a collective bargaining agreement, and the court considered whether it was sufficient to create substantial interests and confer a right to an administrative hearing). But, as found, clause 2 of Lambeth's employment contract provides in pertinent part:

       1. . . . The Board may, upon recommendation of the Superintendent, transfer and assign the Employee to a similar position in any other location of the district, provided that the duties shall be similar to the duties originally assigned, and the salary shall be heretofore set forth.

          
          

          The question in this case is whether Lambeth's contract rights

          are sufficient to create substantial interests which rise to a right to an administrative hearing.

   49. Unlike Sickon, supra, other than the evidence which failed to establish the applicability of the Pinellas Administrators Association Grievance Procedures, there was no evidence of any grievance procedures for vindication of rights under Lambeth's employment contract. For that reason, there is no occasion to decide whether Lambeth was required to follow grievance procedures instead of administrative procedures under of Chapter 120.

   50. It is concluded that Lambeth's contract rights are sufficient to create substantial interests which give rise to a right to an administrative hearing. But the purpose of this hearing is to determine whether Lambeth's reassignment to Title I program supervisor, under the same contract and at the same pay, violated her contractual right to be transferred and assigned only "to a similar position."

   51. So long as Lambeth's reassignment did not violate her contract, there is no right to a hearing on the wisdom of the reassignment. In Martin v. School Bd. of Gadsden County, 432 So. 2d 588, 588-589 (Fla. 1st DCA 1983), the court observed:

       We are, in effect, asked to find that Administrative Procedures [sic] Act formal hearings are, as a matter of law, a part of a school system's personnel procedures. We will not do this. Personnel decisions are necessarily judgment calls involving a multitude of factors. If a superintendent in his or her discretion, supported by the

       School Board, decides that harmony between administration and faculty is best served by an intrasystem transfer, it is not this Court's job to second-guess them.

       
       

       See also Sickon, supra (citing Martin to emphasize that personnel decisions not affecting or determining substantial interests do not create a right to a Chapter 120 administrative hearing).

   52. Lambeth's contract rights are strikingly similar to the statutory rights under Section 231.361(3)(e), Florida Statutes (1981),

       which was in effect up to the time of the 1983 codification and provided in pertinent part:

       Each person to whom a continuing contract has been issued as provided herein shall be entitled to continue in his position or in a similar position in the district at the salary schedule authorized by the school board without the necessity for annual nomination or reappointment until such time as the position is discontinued, the person resigns, or his contractual status is changed as prescribed below. (Emphasis added.)

       In interpreting the term "similar position," as used in Section 231.361(3)(e), Florida Statutes (1981), the courts made clear that "similar" does not mean "identical." In Osburn v. School Board of Okaloosa County, 451 So. 2d 980, 981-982 (Fla. 1st DCA 1984), it was held that the position of kindergarten principal, while certainly not identical to, was similar to the position of junior high school assistant principal. More to the point, in Berkner v. School Board of Orange County, 373 So. 2d 54, 55 (Fla. 4th DCA 1979), the court upheld a hearing officer's finding that the position of elementary school principal, while not identical to, was similar to the position of school program coordinator.

   53. While the position of high school principal is not identical to the position of Title I program supervisor, the positions nonetheless are similar in several respects. It is concluded that Lambeth's reassignment (under the same contract and at the same pay) is permissible under her contract.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the School Board enter a final order dismissing the Amended Petition for a Name Clearing, Due Process and Florida Statute 120.57 Hearing and approving the reassignment of the Respondent, Sharon Lambeth, to Title I program supervisor under the same contract and at the same pay.

DONE AND ENTERED this 2nd day of April, 1999, in Tallahassee, Leon County, Florida.

J. LAWRENCE JOHNSTON 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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of April, 1999.

COPIES FURNISHED:

Oscar Blasingame, Esquire Orange Park Center

696 First Avenue, North, Suite 400 St. Petersburg, Florida 33701

Louis Kwall, Esquire

Kwall, Showers & Coleman, P.A.

133 North Ft. Harrison Avenue Clearwater, Florida 33755

Dr. J. Howard Hinesley, Superintendent Pinellas County School Board

301 4th Street, Southwest Largo, Florida 33770-2942

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: 98-003791

Orders for Case No: 98-003791