STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM H. GANDY, )

)

Petitioner, )

)

vs. ) CASE NO. 83-1575

)

SCHOOL BOARD OF SANTA ROSA )

COUNTY, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Gulf Breeze, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Robert T. Benton, II, on August 9, 1983. The Division of Administrative Hearings received a transcript of proceedings on August 29, 1983.

APPEARANCES

For Petitioner: Philip J. Padovano, Esquire

1020 East Lafayette Street Tallahassee, Florida 32302

For Respondent: Paul R. Green, Esquire

Post Office Box 605 Milton, Florida 32570

In his request for formal hearing, petitioner alleged that, on "August 10, 1982 . . . he was terminated from his supplementary position as an assistant football coach [at Jay High School] . . . in retalia[t]ion for a statement [he] made concerning the arrest of [the principal's] son . . . in violation of his rights under the First Amendment to the United States Constitution"; and also raised the issue whether his transfer "from the Jay High School to the Gulf Breeze Middle School on April 27, 1983, constitutes a violation of [his] rights under the laws of the State of Florida, the Rules of the Department of Education, or the contract in existence between the Santa Rosa Professional Educators and the Santa Rosa County School Board."

Petitioner filed petitioner's memorandum, containing certain proposed fact findings in the statement of the case; and respondent's view of the facts can be gleaned from respondent's written final argument and memorandum of law. These informal proposed findings of fact have been adopted, in substance, except where they have been unsupported by the weight of the evidence, immaterial, cumulative or subordinate.

FINDINGS OF FACT

1. William Haynes Gandy, for 17 years a school teacher and coach, began his most recent stretch of employment with the Santa Rosa County School Board in

   the fall of 1978 at Jay High School. He coached football and taught girls' physical education and math courses during the 1978-1979 school year, even though he held a teacher's certificate in physical education only, at all pertinent times.

   
   

2. Coaching assignments entail a certain amount of prestige and entitle their recipients to a salary supplement. In Santa Rosa County, school principals make coaching assignments in their unfettered discretion.

   
   

   LETTER NO FACTOR

   
   

3. On July 1, 1979, Mary Cecelia Diamond Findley, assistant principal of Jay High School during the preceding school year, became principal. During Dr. Findley's first year as principal, Mr. Gandy taught math and science courses. In the fall of the year, a student asked petitioner to write a letter on her behalf, because she had been accused of a burglary. Dr. Findley's son had also been charged with this crime. On November 30, 1979, Mr. Gandy addressed the following letter "To Whom it May Concern" and gave it to the student's parents:

   
   

   I, W. H. Gandy, being employed by Santa Rosa County School Board as an in- structor at Jay High School do hereby give the following statement in behalf of Karen Cooley.

   
   

   I have known this student for several years. She was in my class last year and was an excellent student. I found her to be very cooperative, initiative [sic] and enthusiastic young student.

   
   

   Her capabilities and talents are unlimited if she applied herself.

   
   

   I know of no past conflicts or involvements in our community or school which would reflect on her character.

   
   

   In working directly with young people for the past 15 years, I have found that most all students need help at one

   time or another. Of course, their needs vary, from personal, emotional problems, school discipline problems, to problems with the laws of our society and state.

   
   

   I feel Karen realized what she did was wrong and now must face the consequences. She has already been subjected to the scrutiny of her classmates at school, to the embarrassment of hurting her parents and family, and to the fact that she took part in crime and now has a record which will remain with her the rest of her life.

   Karen cannot undo the wrong she has done, but certainly since this is her First Offense, and she has the ability and desire to mature into a useful citizen in our

   community, she should be given this opportunity.

   I hope and pray that she will be given some kind of a probation period and given the opportunity to finish school and start a meaningful life of her own.

   
   

   Petitioner's Exhibit No. 1

   
   

   He told no one other than the Cooleys and Karen's attorney about the letter, at the time. Dr. Findley did not learn of the letter until this year. Dr.

   Findley's decision not to reappoint Mr. Gandy as assistant football coach, more than two and a half years after the letter was written, took place after discussions with the head football coach and had nothing to do with the letter or any other exercise by petitioner of his first amendment rights.

   
   

   TRANSFER

   
   

4. Beginning with the 1979-1980 school term, Mr. Gandy has been on continuing contract as a teacher for respondent. On Dr. Findley's recommendation, at the close of the 1982-1983 school year, and that of Bennett

   C. Russell, respondent's superintendent, respondent transferred Mr. Gandy to the Gulf Breeze Middle School. Originally he was to teach health classes there, but he was assigned physical education classes after his request for formal hearing was filed.

   
   

5. Respondent had taught some classes out of his field every year he was at Jay High School. Before the letter on behalf of Ms. Cooley was ever written, and, according to petitioner, before there were any ill feelings between Dr. Findley and himself, he was assigned exclusively math and science courses for the 1979-1980 school year. In 1980-1981, and again the following school year, Mr. Gandy taught a single physical education class and several math classes. He taught math courses exclusively during the 1982-1983 school year.

   
   

6. By the spring of 1983, there were five teachers at Jay High School who had taught there shorter periods than the five years petitioner had taught at Jay High School. Of these, Oliver Boone, the band director, and Deborah Walther, who was certified in art and science, were retained. Desiree Jamar, who was certified in art, was transferred; and the two other junior teachers did not have their annual contracts renewed. One of these two, Deborah Gomillion, who is certified to teach exceptional education classes, was subsequently rehired to head the exceptional education program at Jay High School. Five of the 32 teachers at Jay High School for the 1982-1983 school year were certified in physical education, but, unlike respondent, some of them were certified to teach other subjects, as well. Respondent transferred another coach from Jay High School who was certified in social studies as well as physical education. There was only one teacher certified in mathematics for the 1982-1983 school year. Respondent hired a second certified mathematics teacher for 1983-1984 who was to teach five mathematics courses and coach football at Jay High School. On July 28, 1983, respondent hired a teacher certified in physical education to teach at Pace High School.

   
   

7. Dr. Findley and Mr. Gandy had their differences. She believed him guilty of certain improprieties never formally established. He resented a

   notice of non-renewal Dr. Findley, under the erroneous impression that Mr. Gandy had not yet been awarded a continuing contract, sent in response to instructions so to notify all annual contract teachers who taught compensatory classes like the math classes he was teaching at the time. The low esteem in which Dr.

   Findley held petitioner was a factor in her recommending that he be transferred. The superintendent was aware of the friction, but he made his decision "because we were cutting back personnel at Jay High School and we had a position available at Gulf Breeze Middle School." (T. 129) Respondent's superintendent did not accept her recommendation that petitioner be transferred just to keep the peace. Dr. Findley herself was transferred from Jay High School for the 1983-1984 school year.

   
   

8. The continuing contract of employment between the parties does not grant petitioner the right to teach in a particular school. Joint Exhibit No.

1. The master contract in effect between Santa Rosa County School Board and the Santa Rosa Professional Educators provides:

   
   

   Involuntary transfer of teachers shall be made by the Superintendent and Board based upon: l) Santa Rosa County School District needs as determined by the Superintendent and the Board; 2) certification; 3) length of service in

   Santa Rosa County; and, 4) any other data.

   
   

   1. Petitioner's Exhibit No. 6, p. 8. Article IV of the same agreement establishes in detail a grievance procedure, but does not make it mandatory or exclusive.

      
      

      CONCLUSIONS OF LAW

      
      

   2. A coach, including one who, like petitioner, is tenured as a teacher, only has rights in his coaching supplement comparable to the rights a teacher on annual contract has in his teacher's salary. Petitioner has no contractual or other legal right to reappointment as assistant football coach. State v. Smith,

      142 So.2d 767 (Fla. 1st DCA 1966). Even so, respondent and its principals, to whom the appointment power is delegated, are forbidden to deny reappointment to petitioner or any other coach on account of expression protected by the First Amendment. Mt. Healthy City Board of Education v. Doyle, 429 U.S. 274 (1977); Pickering v. Board of Education, 391 U.S. 563 (1968) . Like the Ohio school teacher in the Mt. Healthy case, petitioner, "[e]ven though he could have been discharged [as coach] for no reason whatever . . . may nonetheless establish a claim to reinstatement if the decision not to rehire him [as coach] was made by reason of his exercise of constitutionally protected First Amendment freedoms. Perry v. Sinderman, 408 U.S. 593 (1972) 429 U.S. at 283-284. Petitioner sought to establish such a claim here.

      
      

      INITIAL DETERMINATION BY EXECUTIVE BRANCH

      
      

   3. Faced with petitioner's claim that Dr. Findley had not reappointed him on account of protected expression, and in light of a dispute as to the material facts, respondent properly caused a formal administrative hearing to be convened. Section 120.57(1), Florida Statutes (1981). As was its prerogative, it referred the matter to the Division of Administrative Hearings, pursuant to Section 120.57(1)(b)3., Florida Statutes (1981)

   4. Although it has been said that an "administrative hearing officer lacks jurisdiction to consider constitutional issues," Gulf Pine Memorial Park

      v. Oaklawn Memorial, 361 So.2d 695, 699 (Fla. 1978) this statement and others like it should be read in context for the proposition that no hearing officer has authority to declare unconstitutional a statute or an existing rule. There is no challenge to any statute or rule in the present case. Petitioner has alleged a legally recognized, substantial interest in agency action, allegedly taken in retaliation for protected expression. Respondent is obliged to act one way or another on his claim. No less than the policeman who is also a decision maker in the executive branch and must decide constitutional questions of, inter alia, search and seizure, the respondent school board and, derivatively, the hearing officer, must evaluate petitioner's claim, notwithstanding its constitutional predicate.

      
      

   5. The courts are available for final disposition of petitioner's constitutional claim, if need be. Their consideration can only be enhanced by the making of a complete record of the pertinent facts. Key Haven Associated Enterprises, Inc. v. Board of Trustees of the Internal Improvement Trust Fund,

      427 So.2d 153 (Fla. 1982)(reh. den. 1983). Rice v. Department of Health and Rehabilitative Services, 386 So.2d 844 (Fla. 1st DCA 1980).

      
      

      FAILURE OF PROOF

      
      

   6. Petitioner alleged that Dr. Findley's failure to reappoint him as a coach and the concomitant loss of salary supplement and prestige were attributable to the letter he wrote on behalf of Karen Cooley. The proof wholly failed to support this allegation. There was no allegation that any speech or other protected expression, aside from the letter, entered into the decision. Petitioner did not allege that his transfer to Gulf Breeze Middle School was attributable to any exercise of First Amendment rights, nor would the proof have borne out such an allegation.

      
      

      TRANSFER

      
      

   7. Petitioner alleges that his transfer abrogates contractual rights he enjoys under the master contract, Petitioner's Exhibit No. 6, as well as provisions of state statutes and rules of the State Board of Education found in Chapter 6B-4, Florida Administrative Code. This case is distinguishable from Blanchette v. School Board of Leon County, 378 So.2d 68 (Fla. 1st DCA 1979) because the collective bargaining agreement involved here, while establishing a grievance procedure, does not make grievance procedures an exclusive remedy, as was the case in Blanchette. But the present case may or may not be distinguishable on this point from the recent decision in Mary B. Martin v. School Board of Gadsden County, No. AH-190 (Fla. 1st DCA; May 17, 1983), where the court declined to hold "that Administrative Procedures [sic] Act formal hearing are, as a matter of law, a part of a school system's personnel procedures." At p. 2. The Martin majority took issue with the dissent's characterization of its opinion as one which "in sweeping language accepted the school board's argument that its personnel decisions are immune from the Administrative Procedure Act (APA)," at p. 3, but the dissent's claim that the decision stands for the proposition that a school "board's determination to transfer a teacher on continuing contract to another school within the district is not one affecting her substantial interests," at p. 3, went unchallenged. If the substantial interests of the teacher in the Martin case were not affected by her transfer, the petitioner here also lacks the substantiality of interest required to invoke the Administrative Procedure Act. The distance between a

      house respondent owns and the Gulf Breeze Middle School does not make this case distinguishable from the Martin case in any meaningful way.

      
      

   8. Petitioner also argues for a sort of "pendent jurisdiction" on the transfer question, since it has been coupled with the First Amendment claim: The "argument . . . that a teacher may not . . . be entitled to an APA hearing in a transfer case, is moot inasmuch as the School Board has, in fact, already granted Petitioner a formal hearing." Petitioner's Memorandum at 10. This argument must be rejected on the authority of Agrico Chemical Co. v. Department of Environmental Regulation, 406 So.2d 478 (Fla. 2d DCA 1978) pet. reh. den. sub nom. Freeport Sulphur Co. v. Agrico Chemical Co., 415 So.2d 1359 and Sulphur Terminals Co. v. Agrico Chemical Co., 415 So.2d 1361 (Fla. 1982), where the court held that referral of a petition for hearing to the Division of

Administrative Hearings did not relieve the parties of their burden to establish that they were entitled to a formal hearing, independently of the referral. 406 So.2d 480, 481 n.3.

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED:

That respondent dismiss petitioner's request for hearing, without prejudice to his filing a grievance as regards his transfer.

DONE and ENTERED this 27th day of September, 1983, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 27th day of September, 1983.

COPIES FURNISHED:

Philip J. Padovano, Esquire 1020 East Lafayette Street Tallahassee, Florida 32302

Paul R. Green, Esquire Post Office Box 605 Milton, Florida 32570

Docket for Case No: 83-001575

Orders for Case No: 83-001575