vs. ) CASE NO. 82-1281
Respondent. )
Pursuant to notice, this cause came on for formal hearing before P. Michael Ruff, duly designated Hearing Officer of the Division of Administrative Hearings, on June 25, 1982, in Bonifay, Holmes County, Florida.
For Petitioner: Philip J. Padovano, Esquire
For Respondent: Bonnie K. Roberts, Esquire
This cause arose on a petition of Myron Hudson for a formal proceeding to contest the agency action by the Holmes County District School Board in rejecting the Petitioner's nomination for the position of Principal of the Ponce de Leon High School for the school year 1982-83. In support of this petition, the Petitioner presented two witnesses, one of which was the Petitioner himself, and two exhibits, both of which were admitted. The Respondent presented one witness and three exhibits, Exhibits A and B of which were admitted; Exhibit C was rejected as irrelevant.
The parties timely availed themselves of the right to file proposed findings of fact and conclusions of law and briefs. To the extent those proposed findings of fact and conclusions of law have not been adopted or otherwise incorporated herein, they are specifically rejected as irrelevant or not supported by the evidence in the record.
At issue thus is whether the School Board's rejection of the recommendation of April 19, 1982, by Superintendent Johnny Collins, that the Petitioner be placed in the above-mentioned principalship position is supported by "good cause."
Mr. Johnny Collins is the Superintendent of the Holmes County School District and has been at all times pertinent hereto. In April of 1981 Superintendent Collins first nominated the Petitioner, Myron Hudson, to be placed in the principalship at Ponce de Leon High School. The School Board rejected the nomination on July 20, 1981. One of the reasons for rejection of the initial nomination for the 1981-82 school year was the Petitioner's lack of a Rank II certificate, as well as an obligation felt by the Board to give the position to another person. The Petitioner took no legal action then, but the Superintendent, Mr. Collins, requested a hearing regarding rejection of his recommendation by the School Board, the School Board denied the request and the cause went to the First District Court of Appeal. The Board's denial of the Superintendent's request for hearing was affirmed per curiam in Collins v. The Holmes County District School Board, Case No. AH-169 (July 1, 1982). A temporary restraining order was issued by the Circuit Court in and for Holmes County restraining Superintendent Collins from interfering with Mr. Gerald Commander's exercise of his duties as Principal of Ponce de Leon High School, Mr. Commander being the School Board's choice for the position after it rejected the initial 1981 recommendation of Mr. Hudson for the job.
Along with the rejection of Mr. Hudson's initial recommendation for the principalship for the 1981-82 school year, two other School Board employees, Ms. Saunders and Ms. Carroll, were also rejected. Those matters ultimately came before the Division of Administrative Hearings for formal hearing and those petitioners obtained a favorable recommendation by the Hearing Officers presiding. The School Board adopted the Hearing Officers' recommendations that those two persons be hired in the positions for which Superintendent Collins had recommended them, this in spite of the presence of the restraining order related to all three cases. In any event, the Petitioner, Mr. Hudson, during the interim after his initial rejection, obtained a master's degree and a Rank III teaching certificate, which he possessed before the second recommendation which is the sole subject of thee instant proceeding.
In April 1982 Superintendent Collins again recommended Mr. Hudson for the position of principalship of Ponce de Leon High School. By letter the Board rejected the recommendation on April 21, 1982, advising the Petitioner as the reason for that action that:
"A. The Superintendent is under restraining order which prohibits him from interfering with Gerald Commander as Principal of Ponce
de Leon High School.
There is still pending litigation concerning the Superintendent's nomination of you and the Board's rejection of same for the 1981-82 school term.
The board has a continuing contract with Gerald Commander as a principal, and as such the board is obligated to place Mr. Commander in a principal's position within the Holmes County School System."
The Board, then acting upon its own motion, ordered the subject position filled by Mr. Gerald Commander, the former School Superintendent whom Mr. Collins had defeated in the election. The Petitioner, Myron Hudson, then
requested a formal administrative hearing contending that the Board did not have "good cause" to reject Superintendent Collins' nomination.
No question was raised concerning Mr. Hudson's qualifications to hold the position for which he was recommended. He is a ten-year classroom veteran who has held a continuing contract of employment as a teacher in the Holmes County School District since 1976. At 30 years of age, he is well above the minimum age required to hold a principalship and his academic qualifications meet or exceed the statutory requirements for a principal's position. Mr. Hudson earned an AA degree from the Chipola Junior College in 1970, a BSA degree from the University of Florida in 1973, and an MA degree from Troy State University in December of 1981. After obtaining his master's degree, the Petitioner applied for and was granted a Rank III teaching certificate by the Florida Board of Education. All these qualifications were earned prior to the principalship recommendation for the 1982-83 school year which has become the subject of this proceeding.
There is no dispute that the Petitioner meets the statutory qualifications for the position. There has been no evidence to indicate that he is possessed of other than a favorable moral character, and he enjoys an excellent reputation as a teacher. No reasons other than those quoted above were given in the official communication by the School Board to the Petitioner as reasons for the rejection of his nomination, nor were any other reasons relied upon by the Board at the hearing.
Recommendations for employment with the Holmes County District School Board are recommended to be filled, and are filled, on a year-to-year basis.
The recommendations are made by the Superintendent in April of each year for the positions which must be filled in the fall of the school year. Unrefuted testimony by witnesses for the Petitioner and Respondent establishes that the restraining order, as well as the "litigation" referred to in the written reasons for the Petitioner's rejection, was related to the issue raised by Superintendent Collins' first nomination of Petitioner Hudson, which occurred in April 1981. The restraining order and court proceedings do not relate to the subject matter of the current dispute which is the sole subject of this proceeding, that is, the April 1982 recommendation of Petitioner Hudson for the principalship for the 1982-83 school year.
There is no dispute that other cases involving Petitioners Saunders and Carroll (DOAH Cause Nos. 81-2013 and 81-2190) also were in4olved in and subject to the same restraining order entered by the Circuit Judge. Both of those cases have gone to recommended order by the Hearing Officers presiding, both petitioners received favorable recommendations, and the School Board adopted the recommended orders and hired the two petitioners without apparent concern for the restraining order. Both Petitioners Saunders and Carroll in those cases were named parties to the restraining order which the Board relied upon in part as "cause" in this proceeding.
Mr. Gerald Commander was hired by the School Board for the principalship of Ponce de Leon High School. Mr. Commander holds a continuing contract dating back to 1962, which is specifically a continuing contract as a principal. Mr. Commander did not, however, work continuously as a principal under that contract. When he was defeated by Mr. Collins in the 1980 election for the position of School Superintendent, he drafted a memorandum after the election and while he was still filling his unexpired term, recommending himself for an administrative position in the County School Board office. The Board accepted his recommendation and hired Mr. Commander in an administrative
position in the county office starting in January 1981 until the end of that school year. During that period of time, several principalships came open, but Mr. Commander did not express an interest in any of them. He did not seek a principalship position until July of 1981 when he sought the position at Ponce de Leon High School for which Petitioner Hudson had been recommended in April 1981. In July 1981 the Board rejected the recommendation for Petitioner Hudson.
Although it has been the Board's position in this proceeding that if the recommendation of Superintendent Collins had been accepted, that there would be no position in which to place Mr. Commander, it has been established by the evidence that, indeed, the Board had a vacant principalship in the School District after the Petitioner was rejected for the principalship, which it filled, although it did not place Mr. Commander in that position.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of these proceedings. Section 120.57(1), Florida Statutes (1979). The Petitioner has standing to bring this action, having acquired a property right as a result of the Superintendent's nomination. See Von Stephens v. The School Board of Sarasota County, 338 So.2d 890, 892 (Fla. 2d DCA 1976).
Section 230.23, Florida Statutes (Supp. 1980) establishes the powers and duties of the School Board. Subsection 230.23(5) authorized the Respondent to "prescribe qualifications" for positions and to reject nominations of the Superintendent for "good cause." Thus, a petitioner must meet, in addition to qualifications prescribed by law, those which are properly established by the School Board.
Sections 231.02 and 231.03, Florida Statutes (1979), considered together provide four criteria for a person seeking employment as a principal of the public school:
The applicant must be of good moral character;
Must hold an appropriate teaching certificate;
Must have had at least two years experience if the school has three or more teachers; and
Must be at least 23 years of age.
Pursuant to Section 230.33(7)(a), Florida Statutes (1979), the Superintendent of Schools of a local district has both the right and the obligation to recommend to the School Board qualified persons to serve as teachers and principals.
It is clear, reading these statutes in pari materia, that the function of a school board is not to select employees to fill teaching positions and principalships. It is rather the school board's function, and a limited one, to reject those nominees recommended by the superintendent who fail to meet the legal requirements of the position applied for. School boards are required under the above authority to accept a superintendent's nominations for employment positions unless "good cause" exists to reject a prospective employee.
There is no question that the evidence in this cause establishes that Petitioner Hudson meets the above four legal criteria for employment as a principal of a public school. See Saunders v. Holmes County School Board, supra.
Holmes County School Board Policy Section 6GX-30-2.31 provides in pertinent part:
Qualifications:
Candidates for principalships shall possess the minimum state requirements provided
under State Board Regulations and must possess a Rank II or higher certificate covering administration and supervision at the level for which application is being made.
F.S. 230.23(5); 230.33(7)(c)
Selection and Appointment Procedures:
The School Board shall appoint principals upon recommendation of the Superintendent.
F.S. 230.33(7)(c); 230.23(5)
2.3121 Contractual Provisions:
Principals shall be issued written contracts
in accordance with Florida Law. F.S. 231.36(1).
The Petitioner meets the above qualifications prescribed by the Respondent Board and which are in full accord with the Florida Statutes cited.
The Superintendent's nomination herein itself creates an employment expectancy in the prospective contract of employment which cannot be arbitrarily divested. The court noted in Von Stephens v. The School Board of Sarasota County, supra, that:
". . .A nomination by the superintendent entitles the nominee to due process protection of his interest in the nomination. . .[his] interest is more than a mere subjective expectation in employment which would not be safeguarded by due process. . .At the time a nomination is made to the board, an implied contract arises between the school district and the nominee. . ." Id. at 894, 895.
The question of the definition of "good cause" which justifies the rejection of a superintendent's nomination was also addressed in the Von Stephens opinion. The Court there made it clear that the only circumstance constituting "good cause" is the failure of the nominee to meet the statutory requirements delineated above, in stating:
". . .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. (Emphasis supplied.) 1/
The conclusion that "good cause" is limited to the question of disqualification of a nominee under the statutory scheme is supported by two local decisions of the Holmes County School Board, as well as the Von Stephens case. In Saunders v. Holmes County District School Board, 3 FALR 2484 (1981), the Holmes County Board originally had rejected Superintendent Collins' nomination of an elementary school principal because she was "uncooperative" and "discourteous." That nominee requested an administrative hearing and obtained a favorable recommendation from the presiding Hearing Officer of the Division of Administrative Hearings, which advised the Board that it should accept the Superintendent's recommendation unless the nominee was not qualified for moral or professional reasons. That Recommended Order was approved and adopted by the Board and the Petitioner therein was hired in the recommended position.
In Carroll v. Holmes County District School Board, (DOAH Case No. 81- 2190, January 11, 1982), a like situation was involved and a like result was reached. That case held, upon authority of the Von Stephens opinion, that "good cause" is indeed limited to the statutory grounds for disqualification and the Board approved that order as well.
The Court, in Von Stephens, went so far as to hold that a superintendent's "nomination is final unless the Board finds that the nominee is morally or professionally disqualified." Id. at 895. None of the witnesses in this case disputed that Mr. Hudson's professional qualifications are thoroughly adequate nor did any of them suggest that he was not of good moral character.
In addition to the above authority, the School Board's own policy, quoted above, provides in mandatory terms that the School Board must accept the Superintendent's nomination, wherein it is stated at Section 2.312 . . ."the School Board shall appoint principals upon the recommendation of the Superintendent." (Emphasis supplied.)
Although the School Board maintained, and notified the Petitioner, that a basis for its rejection of the Superintendent's recommendation of his employment was the issue of the pending litigation between the parties, this position is untenable for a number of reasons.
On the one hand, it is obvious from the face of the School Board's letter of rejection of April 21, 1982, that the "pending litigation" only involved Superintendent Collins' nomination of the Petitioner for the 1981-82 school term, which is not involved herein. It has been firmly established that positions of this nature are customarily filled on a year-to-year basis and that nominations only concern one school term in the future of the normal nomination period which is in the month of April preceding the given school term for which the nomination is made. No evidence has been adduced which will establish that there is any litigation pending which could interfere with Superintendent Collins' nomination of Mr. Hudson for the 1982-83 school year. On the other hand, it appears that any right the school may have had to rely upon the question of court litigation as a basis for rejection of the nomination was waived by the actions voluntarily taken by the Board itself in the Saunders and Carroll cases, supra. Petitioners Saunders and Carroll in those cases were both named parties to the litigation raised herein as a basis for rejection of
Hudson's nomination. By its adoption of the Recommended Orders in both of those petitioners' administrative cases, the Board obviously took a position that the civil litigation involving those two petitioners, in which the Petitioner herein, Mr. Hudson, was also a named party, posed no obstacle to the Board's approval of the Recommended Orders and the resultant hiring of those petitioners. The legal issues in those two petitions were identical to that herein and all three petitioners were parties to the same civil case, which is only now asserted by the Board as an obstacle to the hiring of Mr. Hudson.
The Board maintains also that acceptance of the nomination of the Petitioner would displace Mr. Commander, who has a continuing contract as a principal. That contention, however, cannot support and serve as a basis for a finding of "good cause" for the rejection of Petitioner Hudson's nomination.
The School Board's obligation to accept a superintendent's nomination is unrelated to problems with other of its personnel which may be engendered in the process. The potential for any liability which the Board may have concerning its continuing contract with Mr. Commander is a matter legally concerning only Mr. Commander and the Board and has no relevance to the question of the Board's duty to accept the nomination of Petitioner Hudson if he meets, as he does, the statutory criteria enumerated above.
It should be noted, however, that it was not established that Mr. Commander has any right to insist upon a particular principalship under his 1962 continuing contract agreement, in view of the fact that he voluntarily placed himself available for and accepted employment in an administrative position in the county administrative office from January 1981 to July 1981 and even if it be deemed that his acceptance of employment in other than a principalship position did not abrogate his continuing contract as a principal and his right to a principalship position, it was not shown that he has any right to be a principal in any particular school in the face of a contrary recommendation by the Superintendent. In this regard, the evidence establishes that the Board filled another vacant principalship in the county with a third person after rejection of Petitioner Hudson's nomination, a position which Mr. Commander did not seek for himself, nor was offered by the Board.
In summary, it has been established by the evidence in the record that Superintendent Collins' recommendation of Petitioner Hudson for the principalship of Ponce de Leon High School should have been accepted by the School Board. The Petitioner's legal right to that position vested upon a recommendation of the Superintendent and he cannot be divested of that right in the absence of a showing that he was not morally or professionally qualified or that he does not meet the above statutory criteria. The Petitioner has established that he meets all pertinent legal criteria and that showing was not refuted. Thus, the bases asserted by the Board in support of its decision to reject the nomination of the Petitioner do not constitute "good cause" under applicable law.
Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence record, the candor and demeanor of the witnesses and the pleadings and arguments of counsel, it is, therefore,
RECOMMENDED that the School Board of Holmes County accept the recommendation of the Superintendent of Schools of that county to place Myron Hudson in the position of Principal of Ponce de Leon High School.
DONE AND ENTERED this 13th day of August, 1982, at Tallahassee, Florida.
P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building
Filed with the Clerk of the Division of Administrative Hearings this 13th day of August, 1982.
1/ Other Florida decisions in accord with the principle that "good cause" means failure to meet the legal qualifications are: State ex rel. Kelly v. Golsom, 14 So.2d 793 (1943), State ex rel. Lawson v. Cherry, 47 So.2d 768 (Fla. 1950) and Sinclair v. School Board of Baker County, 354 So.2d 916 (Fla. 1st DCA 1978).
Philip J. Padovano, Esquire 1020 East Lafayette, Suite 201 Post Office Box 873 Tallahassee, Florida 32302
Bonnie K. Roberts, Esquire Post Office Box 667 Bonifay, Florida 32425
