STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JERRY KAPUSTKA, )

)

Petitioner, )

)

vs. ) CASE NO. 77-1587

) SCHOOL BOARD OF HARDEE COUNTY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, C. Steven Pfeiffer, held a public hearing in this case on November 7, 1977, at Wauchula, Florida.

The following appearances were entered: John J. Chamblee, Jr., Tampa, Florida, for the Petitioner, Jerry Kapusta; and John W. Burton, Wauchula, Florida, for the Respondent, School Board of Hardee County.

The Petitioner, Jerry Kapusta, requested that the School Board of Hardee County schedule a hearing to determine whether good cause existed for its rejection of the superintendent's recommendation that the Petitioner be appointed to the position of Dean of Students of Hardee High School. By letter dated September 6, 1977, the School Board, through its attorney, requested that a hearing officer from the Division of Administrative Hearings be assigned to conduct the hearing. The hearing was originally scheduled by notice dated September 13, 1977, to be conducted on December 14, 1977. Petitioner requested that the hearing be scheduled on an earlier date, and the Respondent indicated through a telephone conversation that it agreed with this request. An amended notice of hearing entered on October 6, 1977, rescheduling the hearing to be conducted on November 7.

The School Board called the following witnesses: John Terrell, the Superintendent of Public Instruction of Hardee County; Nell Barlow, a member of the School Board; Opal Knight, a member of the School Board; and Ronnie Gilliard, a member of the School Board. The Petitioner called the following witnesses: Wayne Jernigan, a member of the School Board; Joseph F. Smith, a member of the School Board; H. C. Patterson, the Principal of Hardee High School; John Maddox, the Assistant Superintendent of Schools; and the Petitioner. Hearing Officer's exhibits 1 through 4, and joint exhibits 1 through 9 were offered into evidence and were received.

FINDINGS OF FACT

1. Prior to the commencement of the 1977-78 school year, the position of Assistant Principal at Hardee High School became vacant. The vacancy was properly advertised, and very little interest was shown in the position. The Petitioner, Jerry Kapusta, was at that time employed at Hardee High School as a Physical Education teacher, Head Football Coach, and Head Track Coach. Kapusta

   applied for the vacant position. The Principal of Hardee High School recommended that Kapusta be hired as Assistant Principal. Acting in part on the basis of the Principal's recommendation, and in part upon his own independent examination of Kapusta's qualifications, the Superintendent of Public Instruction recommended to the School Board that Kapusta be hired as Assistant Principal at Hardee High School. A motion to approve the Superintendent's recommendation was defeated at a School Board meeting by a vote of 2 to 2. One member of the Commission was absent. Subsequently, the Superintendent made a decision to replace the position of Assistant Principal with the position of Dean of Students. The Superin tendent recommended that Kapusta be hired for this position. At a School Board meeting conducted approximately two weeks following the earlier meeting, the Board rejected the recommendation by a vote of 3 to 2.

   
   

2. Members of the School Board who voted against the recommendation testified that they did so primarily because Kapusta was not properly certified by the State Board of Education in the fields of supervision and administration. School Board member Barlow testified that she voted against the recommendation because Kapusta was not certified, because she felt he was doing a good job as football coach, and that he should stay in that position, and because she felt that Kapusta's lack of certification would hinder the Board's efforts to get the schools accredited by the Southern Association of Colleges and Schools. School Board member Knight testified that she voted against the recommendation because of Kapusta's lack of certification, and because he was doing a good job as football coach. School Board member Gilliard testified that he voted against the recommendation due to the lack of certification and because be wanted Kapusta to remain as football coach.

   
   

3. Sometime during May, 1969, the School Board adopted policies which were included in the Board's policy book. The qualifications for the position of Assistant Principal were among the policies adopted. One of the qualifications was as follows:

   
   

   Candidates for assistant principalships. . . must hold a rank II or higher certificate covering administration and supervision at the level for which the applicant is to be employed or covered by a special permit.

   
   

   Similar qualifications were adopted for other administrative positions. This policy was readopted by the School Board each time that it readopted its policy manual. Since the policy was adopted the School Board has consistently ignored it. Joint exhibits 6 and 7 list persons who were hired by the Board to fill administrative positions since the policy was originally adopted. The overwhelming majority of persons hired for administrative positions since the policy was adopted were not properly certified according to the policy.

   
   

4. Certification of administrative personnel as administrative personnel is not among the requirements for accreditation set out In the Southern Association of Colleges and Schools' "Standards of the Commission on Secondary Schools."

   
   

5. The Petitioner, Jerry Kapusta, has adequately performed his duties as Physical Education Teacher, Head Football Coach, and Head Track Coach at Hardee High School. Kapusta is certified as a physical education teacher and health instructor for Kindergarten through twelfth grade, and for junior colleges. He is not certified as a supervisor or administrator. He would require

   approximately twenty-one (21) hours of additional course work in order to obtain such certification. It is Kapusta's intention to enroll in courses that would lead to his certification as an administrator. Kapusta is the most qualified person to have applied for the position of Dean of Students at Hardee High School. Other than his lack of certification, and the desire that he remain as Head Football Coach, no testimony was presented which would establish that Kapusta is other than qualified for the position.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the subject matter of this action, and over the parties. Section 120.57(1), Florida Statutes (1976 Supp.).

   
   

7. The duties and responsibilities of a School Superintendent are set out at Section 230.33, Florida Statutes (1976 Supp.). The Superintendent's duties include making nominations to the School Board of persons to be appointed or reappointed as supervisors and principals, and of all other persons to be appointed or reappointed to the instructional staff of the school system. Section 230.33(7)(c), (d). The powers and duties of the School Board are set out at Section 230.33, Florida Statutes (1976 Supp.). The School Board's powers include the power to act upon nominations made by the Superintendent of supervisors or principals and of all other members of the instructional staff. The School board may reject nominations only for good cause. Section 230.23(5)(c).

   
   

8. In Von Stephens v. School Board of Sarasota County, 338 So.2d 890 (2d DCA Fla. 1976), the School Board had acted to reject a nomination for a principalship made by the school superintendent. A declaratory judgment action was filed in Circuit Court by the nominee. The Circuit Court dismissed the complaint. The District Court reversed, and stated: (at p. 893)

   
   

   We hold that the Board must appoint appellant absent legally sufficient cause to reject the Superintendent's recommendation. The Superintendent is directed to select and submit his nominations and recommendations for appointments and transfers to the School Board. Fla.Stat. 230.33(7)(b), (c), (d), (g), (1973). The School Board is required to appoint those recommended or nominated unless good cause for rejection exists. Fla. Stat.

   230.23(5)(b)(1973).

   
   

   The Court went on to hold that good cause means a failure of the nominee to meet the statutory criteria for the position: (at p. 894)

   
   

   Appellee argued that if good cause is required, legal grounds for rejection include failure to meet such subjective standards as suitability to the community and acceptable personality. We cannot agree. The responsibility of a school board has always been to appoint personnel recommended and nominated by the Superintendent, not to select them. . . .Unless good cause is shown, that is failure of Appellant to meet the

   criteria of Chapter 231, Fla. Stat., it is incumbent on the Board to appoint and

   contract with the nominee. (citations omitted)

   
   

9. The only grounds offered at the hearing to justify rejection of Kapusta's nomination for the position of Dean of Students at Hardee High School were his lack of certification as an administrator or supervisor, and the desire to keep him in his position as Football Coach. Certainly a desire to keep an employee in some position other than that which he is seeking does not constitute good cause for preventing him from seeking promotion. Certification as an administrator or supervisor is not among the requirements for the position of Dean of Students set out in Chapter 231, Florida Statutes. It is not necessary to determine in the instant case whether the School Board could impose additional criteria. Although the School Board had adopted a policy to hire administrators and supervisors only if they were certified as such, the policy was honored more in its breach than in its enforcement. Under the circumstances of this case the "policy" was no policy at all. To permit the "policy" to serve as grounds for rejecting an employee when it has been overlooked as a qualification in the majority of instances would have the effect of permitting the School Board to apply the very sort of subjective criteria which the Court in Von Stephens found improper.

   
   

10. The School Board has failed to establish that good cause exists for rejecting the nomination of Jerry Kapusta for the position of Dean of Students of Hardee High School. The Board should act to appoint Kapusta to that position.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is, hereby,

RRECOMENDED:

That a final order be entered accepting the Superintendent's recommendation that the Petitioner/Appellant, Jerry Kapusta, be appointed to the position of Dean of Students of Hardee High School, and appointing him to that position.

RECOMMENDED this 12th day of December, 1977, in Tallahassee, Florida.

G. STEVEN PFEIFFER, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

John W. Burton, Esquire

Burton, Patarini & Collins, P.A. Post Office Box 420 and 605

Wauchula, Florida 33073

John J. Chamblee, Jr., Esquire

341 Plant Avenue Tampa, Florida 33606

Docket for Case No: 77-001587

Orders for Case No: 77-001587