subsequently suspending him and then subsequently recommending his terminations on the we had no basis for that on november seventh of two thousand and two when he took those actions we submit that the reason that he did it based on the testimony the then board president was that mr qualls was going to be a scapegoat for an issue that had arisen between two high school students mr quote mr cook's decision to terminate was not  in dispute and the fact that a nineteen year old student had sex with a fourteen year old student and a bathroom adjacent to a part of the cafeteria is that correct correct you're going to have to tell you as the father of a fourteen year old girl as a parent of two students in high school i think target was the inference that they're going to be parents concerned about that fact and that by itself suggests that the school district needed to take some kind of action and it did your honor in fact one of the things that happened was that when the deputies found out about it there's no issue that mr cole said not know about anything going on with these students before the actual issue came out there were other teachers who knew that the students had been dating there were other counselors who had been aware of the relationship before mr bell but it all landed on mr qualls presumably because he was t cafeteria however as mr coles testified in the prior instance where he was working at the school district the principal of the high school what's responsible for the high school students this isn't a case where the high school prince or the principal of the cafeteria had prior knowledge of some something that was going on and did nothing about it you know once the incident came to light there was some question whether it was true whether it was not true the council at first found out and so there was no no indication that at that point mr qualls had any idea any prior notice of the incident involving the students and that's mr cook's testimony notwithstanding that he takes mr cost out of his position and he claims  was to preserve than an intent the integrity of an investigation but at that point mr cooke already knew that the investigation was over a couple of days before mr qualls was even interviewed they had taken they had met the po president a board member mr qualls and the investigator and had decided that mr cook mr qualls hack means that he was going to be the the way that they're going to deflect responsibility or liability away from the school district the report that they want an associates report it looked like had been done they're not finalized or that the investigation had been done and that mr kopp was relying at least in part on that information plus there was a a letter i guess he had been involved at every step of the over the way he had written to the board and told them it's an independent investigation i have nothing to do with that but his testimony reflected that he was gathering information that he was giving it to me and that they had people had told him that there's this was a problem and there was a problem at the cafeteria that turned out to be false claims that several people who talked to mr calls about these kids having a relationship before that turned out to be  false if you keep telling you that turns out you can't escape the fact that it turned out to be false demonstrated this actually your client was reinstated to this position really think the problem your honor is what didn't work about the process refuse removed from his position publicly got to tell you i look at the big picture here there's an incident which it seems to me screams out for investigation and some reason for concern now you can argue the wrong person is made the subject of the investigation but if he's in fact the principal of the of the school where the  cafeteria is located and there does seem to be some acknowledgement they've heard rumors before about the nineteen year old then and it seems to me there's at least some reason to think ok we need to look more closely at this at the date you cite in november he's he's put administrative leave with pay so he's not in fact deprived of some some piece of property two months later he is put on i guess suspension or whatever on the terminology at that time he is going to lose his pay but for the posting of a bond which he problem with the biased at the first stage is completely resolved by an unbiased post operation hearing you have other complaints perhaps about the post operation hearing i'm not sure that properly before for whatever those complaints are doesn't just tell me the process is infected from the getting doesn't speak of it does does walker say what we're well we're contending he would says if it does then doesn't work or say an unbiased post depravation herring here's the problem from the that's a separate complaint if you're saying ok welker extinguishes all of those complaints about bias in november and so forth that's fine we'll talk about the separate issue but if you're not prepared to say that first part i'm still waiting to find out why the main thrust of your case isn't is not the window you know this from my perspective your honor what i'm looking at this case is that there's a problem all along and it's not completely extinguished even with the arbitration that went just for the ring that this was not done for a governmental purpose and also wasn't accomplished me i gotta say i got a sense of this from both sides that we have here is an ongoing feud between mr calls mr cook i don't know how that becomes a  had to pay in order to get his pay here to post the cash for us that's the second time that's in january when the first was and then straight leave with pay the second suspension without pay but for his posting a part and there is money out of his pocket there mineral county school district november seventh two thousand and two it was apparently an exhibit to a deposition well so they ever introduced in a hearing introduced to the earring or after you know after we came back after the federal lawsuit was filed miller county school district produce a lot of documentation that was apparently part of when i first got involved in the case i asked for the dollar report it please the court my name is brant cole but i've represented monroe county school district it is the district position that this particular case is one which was proper least disposed of by the district court through summary judgment because in what happened was that in november seventh he was suspended with pay pending the outcome of this investigation and november seventh there was an investigation ongoing into some very serious charges that resulted in a  that were in essence criminal in nature and that a nineteen year old boy had sexual relations with an under age female student on the premises of the school that mr qualls was charged with administering qualls takes the position in this case that it wasn't my my in essence if you believe his argument it's because he wasn't the principal of the high school these were high school students on his campus but it wasn't my job and that was somebody else's job he also takes the position that during that period of time he had no knowledge pre knowledge that there was any concern regarding this particular nineteen year old student he argues in essence that the november seven suspension was unwarranted because there was no proof of any wrongdoing by mr qualls and counsel is already cited to the fact that or what she claims is fact that mr cook is acknowledge that there was no wrongdoing what mr cook actually said was there was nothing that i could proceed with at that point however the evidence was pointing in that direction by november seventh and what that evidence consisted of was statements by principal the high school principal mr baker and another individual who had knowledge of mr burbank the nineteen year old both of them have statements which mr qualls now denies but the first one was by another teacher who to this incident occurring in the lunchroom he doesn't remember the use of the word predator specifically but he does in fact recall and acknowledge that mr caprio expressed to him concern about a nineteen year old man in contact with younger female students was even exaggerating is it not the responsibility of the person in charge of that facility to make sure that there is no problem not just assume that there will be no problem and that was a concern i think in this case as well for mr cook when all this evidence is presented to him and also the theory the investigator mr scott who's report was relied on by mr cooke of making some of the decisions in this case you missed the point that the wasn't truly independent because it was stage managed as it were by mr cooke certainly i have a couple of problems with that conclusion and that was a conclusion the hearing officer reached and one that instructional seminars or meetings with the school district in which they went over what sexual harassment was only one place in the school and that that was somehow not a independent third party when they showed up on the scene to do this investigation the second part of it was that mr cooke apparently had contact with mr scott throughout the investigation and there was contact there was assistance given to mr scott by mr cooke in arranging for interviews he did not at actually participate in the interviews he made arrangements for persons that mr scott was interested in meeting with and talking to come in and do that the investigation consisted of these interviews being tape recorded so that there was no question as to what the questions were the answers given to the questions there was a procedure in place which basically was an attempt to be a fact finder and the conclusions at the end of the day that were drawn and i didn't get to mr baker yet but i'll use that as an example now the hearing officer specifically found that mr hall seemed to be somewhat credible but that mr baker for example was and had been mistaken ne ne does 't jump of logic that you just can't go to in these kinds of cases he ignores for example the fact that mr qualls have every reason to fabricate information at that point i may be of last year we're talking now about the the hearing officer at the post deprivation hearing right here in effect challenging the conclusions that he reached i am not challenging that we did not challenge them officially and they've got to stand as they are what i'm suggesting is that this gives an example of why mr scott the the hearing officers findings you find that he believes that qualls was mistaken about what mr baker referred to and this is a he ingredient artsy component of why  qualls was suspended for or for falsifying statements in mr cook's view just spiked with the hearing officer ultimately determined about this this set of circumstances the facts were that mr baker supposedly called when in october sixteenth or seventeenth and said the the sheriff's office wants to meet with you to talk about an incident that occurred on your campus where nineteen year old is accused of having sex with a fourteen year old and at that point  according to mr baker mr qualls response was that couldn't happen i was supervising him there's no way that happened i heard about it two weeks ago and it just didn't happen now later on the twenty first of october when mr cook asked qualls to give him an explanation as to those that statement and the rumors he referred to in the statements it's now suddenly that mr burbank came to him with some letters or about some letters or comments that were going around and he wanted to know what to do about it now that the problem is surface then the issue has become focused on the fact that there was this an illicit activity going on on his campus it now changes now mr baker statement is never challenged specifically it's put off as being some kind of misunderstanding between the two but mr cooke had that information that was what mr scott elicited during the interviews that's the information he has at that point that what i'm trying to suggest is that mr cook looking at everything he had in front of  statutes to do what he did and issuing the suspension order pending the outcome of that investigation on november seventh but you're saying you may well be right but the summary judgment isn't the time to decide whose story is correct i am not  gesting it was the issue that has been raised here is that mr cook at this animosity that that somehow affected the investigation that mr scott conducted and therefore there was no proper investigation i'm merely pointing out some things that go the other side of that and i'm not suggesting that we go beyond the investigation or the findings of the hearing officer because we did not challenge those we did not appeal those the school district accepted those findings and i'm here to accept them today so let me then they decided that they were going to suspend him without pay and then terminate him and so at that point burbank is long opportunity it seems to me that if that point the school district didn't have any concern about the safety of the students didn't have any concern about the administration of the school why didn't they produce seemed to give him notice and say these are the charges let's have a hearing if you want one and the conclusion is that whatever came out of it then would be the time to have terminate the pay there was no real crisis at the point that the school district decided to could cut some other process have been followed certainly that scenario  more or less followed that you just outlined what happened was there how they told him could no more pay but they did but they also gave him the opportunity for a hearing and an opportunity under the statute to continue to receive his salary which is provided for chapter three i the the superintendent first of all is the one issuing that particular letter and under three one nine he has no power to terminate mr mr qualls the ability to recommend to the school board who is the ultimate determine our of that that he be terminated that's what he did in that letter he told mr qualls that i'm going to recommend to the school board that you be terminated pending the process that's in place under chapter three one i am going to read to place you on leave without pay him at that point secondly a lot of the delay because of money well he was he's out some money which is the district court found was i think that's the thrust of judge lester question nothing else seems to require we argued was that this particular individual was a principal in a school where a crime had been committed on his watch a very serious kind of crime one that required some action from the school district to try to ensure that the parents in that district could trust their school district they had to do something that was the view they had now whether they did it right or took the right course one could argue one can look back today and say it didn't but the district in the end did not fire him he was never terminated he never lost his position he lost his duties for a period of time but the district gave him the process and i'm way over time on what my colleague needs some time to let you know this is very private and i understand you might want  my name is david locky and i'm from elko nevada and representing steven cook who was the school superintendent as the court was able to ascertain from our briefs the issues are nearly identical the  primary difference at least raised in our briefs was the issue of qualified immunity which the district court never reached the statute at hand which is the three ninety one point zero one four d the school superintendent with wide discretion if this if the school superintendent believes that there is good cause to do so and thinks it's in the best interests of the school to play someone on administrative leave which he did so the statu further provides a basis for grounds for dismissal under three ninety one point three one two and there were a whole host of things that at least mr cook perceived  had done or failed to do that justified his dismissal it is not an unusual process with regard to school employees if a person is facing dismissal proceedings to be placed outside the school and til that hearing happens that hearing can happen very fast or it can take a while but the record is clear in this case that all of the hearing dates were mutually agreed upon between counsel so that the time that he was  relevant here at all that he was off after i want to make sure i understand what the thrust of your argument is are you are you raising a qualified immunity argument here or you back on the main issue no i just wanted to buy to inform this court that everything that mr cole that pertains to what i say we never got to the qualified immunity but i would suggest that if this court were to over overlay some requirements with regard to three ninety one zero one four there certainly would be qualified immunity to mr qualls in writing in the proper form and persistent or or consistent with the statute also informing him of all of his rights now there was considerable time between when he interviews whether he ever got a copy of happened i believe the evidence in this case does show that he did specifically well on september twenty fifth two thousand and two this mr caprio who the hearing officer later on discredited this testimony that mr caprio indicated that bishop was not appropriate to be around young girls in the cafeteria and that he was a predator inform principal hugh calls that placing burbank in the cafeteria is a problem he explained that burbank is hanging around special education girls and this girl who was sexually assaulted with a special education girl after school and calls also confronted with this information he said as if it couldn't happen it was on my watch he completely discounted the possibility that anything could have happened when in fact it did happen the essence had a hearing and mutually convenient dates mr qualls testimony is that he has no quibble with the manner in which the hearing was conducted and that  that mr calls was the site administrator and therefore everything fell on him but the transfer from mr qualls was just different to some extent slightly different the baked mr baker who's a principal of high school has responsibility for his students he was aware that the school had come in late from lunch at one point but did nothing he was aware that there had been a dating relationship and did nothing but it didn't that didn't matter it was the catheter so that was that aspect of it when they say that he just feeling that he was a sight and a stranger he had minister the cafeteria there didn't necessarily make him the supervisor of the high school students because the policy in practice had been that the high school principal takes responsibility for the high school students even when they're on the school cafeteria and that was shifted to mr coles and away from mr baker who also worked  seventh letter didn't tell him this is what you've done wrong this is the evidence against you and you have an opportunity to respond he was handed a letter and said get your keys are give me your keys and walk out mr crook says all my explain to him what was going on and i gave him  investigation came out that was incorrect he did not get an opportunity to address the board he asked for an opportunity to address the board but that was tonight and basically nobody responded to him you asked the question your honor did he have a copy of the report he got a copy of the charges but two process requires that the provide him with an explanation of the evidence given against him he was not provided with as he was just told these are the charges then go ahead and invoke your rights to a hearing under the statute claus asked for is an opportunity to speak to the board and that's in his letter of january fourth he doesn't do a blow by blow these are the pulse of the bell report which is the district court says he had an opportunity to address the concerns in the report that's not what he did you're suggesting the point should have gotten involved rather than let the statute go forward i think a brief preacher emanation or priest especially hearing not a hearing a board meeting would have been appropriate just that's what i mean might have been appropriate surely would have