STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
WARREN L. SPURLIN, )
)
Petitioner, )
)
vs. ) CASE NO. 86-1400
) SCHOOL BOARD OF SARASOTA COUNTY, )
)
Respondent. )
)
RECOMMENDED ORDER
A final hearing was held in this case on September 3 through 5, 1986 in Sarasota, Florida, before Donald D. Conn, a duly designated Hearing Officer of the Division of Administrative Hearings. The parties were represented as follows:
Petitioner: John R. Blue, Esquire
Carol A. Masio, Esquire Charles J. Pratt, Esquire 920 Manatee Avenue, West Bradenton, Florida 33506
Respondent: Daniel H. Kunkel, Esquire
290 Cocoanut Avenue Sarasota, Florida 33577
At the hearing, Warren L. Spurlin (Petitioner) testified on his own behalf and called two additional witnesses, and the School Board of Sarasota County (Respondent) called nine witnesses. Twenty exhibits were introduced on behalf of Petitioner, and ten on behalf of Respondent; Respondent's exhibit number 14A was rejected. A transcript of the hearing was filed on October 30, 1986 and the parties were allowed to submit proposed findings of fact, conclusions of law and memoranda by November 14, 1986. A ruling on timely filed proposed findings of fact is included in the Appendix to this Recommended Order.
ISSUE
The issue in this case is whether Respondent had good cause, pursuant to Section 230.23(5)(a), Florida Statutes, to reject the Superintendent's recommendation that Petitioner's employment be continued from June 30, 1986 to June 30, 1987.
FINDINGS OF FACT
Petitioner was employed by Respondent as Deputy Superintendent from
1980 to June 30, 1986, and prior to this, he was employed by Respondent as Director of Secondary Education from 1978 to 1980. From August 1, 1985 until December 1, 1985, Petitioner also served as Interim Superintendent while the position of Superintendent was vacant and Respondent was in the process of selecting a new Superintendent.
The educational background of Petitioner includes a Bachelor of Science Degree from the University of Miami, Master of Public Education from the University of Michigan, Education Specialist Degree from Michigan State University, and a Doctorate in Administration from Wayne University. He also served two terms as a member of a school board in Michigan in the early 1960's.
The position of Deputy Superintendent has line authority over Elementary Schools, Secondary Schools, Personnel, Finance, Purchasing, Transportation, Data Processing, Facilities and Maintenance. Instructional matters are not handled by the Deputy Superintendent. The position of Deputy is second only to the Superintendent in the administrative organization of the school district, and the Deputy routinely fills in for the Superintendent in his absence. When former Superintendent James H. Fox resigned effective July 30, 1985, Petitioner was appointed on June 18, 1985 to become Interim Superintendent, effective August 1, 1985, until a new Superintendent was selected. According to School Board member Susan Richardson, who was chairperson of the Board at the time, it was a routine matter for Petitioner, as Deputy, to become Interim Superintendent.
The current Superintendent, Charles Fowler, assumed his position on December 1, 1985, at which time Petitioner resumed his duties as Deputy Superintendent. Petitioner had applied to be Superintendent when Fox resigned, but was not a finalist for the position. Fowler had not been previously employed by Respondent.
In addition to his other duties as Deputy Superintendent, Petitioner was also the chief negotiator for the School District in collective bargaining matters from February to June, 1985. Negotiations continued after Petitioner became Interim Superintendent, and were concluded in October, 1985 with contract approval. After he became Interim Superintendent, Petitioner was replaced as chief negotiator by Walter Pierce, Director of Personnel, but continued as a lead member of the negotiating team with Pierce, and Bruce Monson, Director of Finance, each of whom gave presentations and responded to questions during executive sessions which were called by Respondent to consider contract proposals.
On January 14, 1986, Superintendent Fowler recommended a salary increase for Petitioner, effective December 1, 1985, the date Fowler assumed his position. This increase was for the remainder of Petitioner's employment contract, which was to expire on June 30, 1986. Salary increases and contract renewal for all administrative staff, except Petitioner and one other top-level manager, had previously been approved by Respondent. However Respondent's action on Petitioner's salary increase and contract renewal was delayed so that the new Superintendent could address them. Fowler also recommended that Petitioner's contract be extended until June 30, 1987 at the increased salary level. This recommendation was presented to Respondent on several occasions between January and March, 1986, but each time Respondent deferred action. Finally, on March 18, 1986 Superintendent Fowler's recommendation and an employment contract continuing Petitioner's employment as Deputy Superintendent were submitted to, and rejected by Respondent. In making his recommendation to retain Petitioner, Fowler was aware of the fact that after he, as
Superintendent, recommended Petitioner for continued employment, his recommendation could only be rejected by Respondent for good cause. Further, Fowler had been informed by School Board member Richardson in early December, 1985 that she had serious concerns about whether Petitioner should remain as Deputy Superintendent. Nevertheless, Fowler did recommend Petitioner's continued employment.
Petitioner timely filed a Petition for Formal Hearing following Respondent's rejection, by a three to two vote, of the Superintendent's recommendation on March 18, 1986, and contends that good cause has not been established for such rejection.
0n June 26, 1986 Superintendent Fowler wrote to Petitioner stating:
I want to say how much I appreciate the professional way in which you have handled an extremely difficult and pressure-filled
situation these past several months. I could not ask for a more cooperative person; many, in this circumstance, would not be so eager and willing to be of assistance. Right up
to these last days and the difficult budget decisions we are wrestling with, you have been forthright and cooperative. Your demeanor has made it so much easier on me and all those in the school system with whom you work. Thank you....Your support and kindness are much appreciated.
Respondent alleges that Petitioner "willfully or negligently withheld from the Board financial information required by the Board to make an informed decision regarding whether to enter into a multi-year salary agreement with the Sarasota Classified/Teachers Association" (SCTA). On September 20, 1985, Bruce Monson, Director of Finance, wrote Petitioner a memo in which he expressed his concern about the School District's increasing rate of expenditures, summarized grim economic forecasts for the world, and clearly stated he was not comfortable with a three-year negotiated salary contract. His recommendation was for the annual negotiation of salary increases, with a three-year agreement which only dealt with contract language and starting salaries. Monson wrote this memo at Petitioner's request after he had orally informed Petitioner of his concerns in August and early September, 1985. He copied Walter Pierce, Director of Personnel, on his memo, but not School Board members. Monson assumed that Petitioner would provide his memo to all School Board members, but Susan Richardson, Eugene Matthews, Mary Margaret McAdoo and Kay Glasser, Board Members, each testified they were not given a copy of the Monson memo until after the multi-year salary contract was approved. The remaining Board member, Dick Olson, had the Monson memo at the time the multi-year contract was approved. Petitioner did not provide Respondent with a copy of the Monson memo.
Negotiations had begun with the SCTA in February, 1985 with Petitioner as chief negotiator. Respondent had made it clear to the negotiating team that it wanted a three-year salary contract, if possible, and it was on that basis that negotiations proceeded. In prior years, Monson had informed Respondent about his concerns with multi-year contracts, but Respondent still directed that a multi-year contract be sought during negotiations in 1985. In early July, 1985 Pierce became chief negotiator and Petitioner, as Interim Superintendent, was simply a member of the negotiating team from that point forward. At the
time Monson wrote his memo, negotiations with the SCTA were virtually concluded and Pierce was chief negotiator. According to Board members Olson and McAdoo, negotiations were too far along on a multi-year contract to back out in late September, even if the Monson memo had been considered. Respondent gave final approval to the multi-year contract in the first week of October, 1985, having come to closure on virtually all issues in executive session held on September 24, 1985, four days after the Monson memo.
The evidence does not support the allegation that Petitioner willfully or negligently withheld the Monson memo from Respondent. It took Monson several weeks to reduce his concerns to writing, as Petitioner requested. Monson was a member of the negotiating team and attended executive sessions. He was therefore aware of the status of negotiations, and the fact that by late September it would have been virtually impossible for Respondent to back out of the multi-year contract its team had been negotiating with the SCTA all summer. It was reasonable for Petitioner to assume that if Monson was really concerned, he would have spoken up during executive sessions, or promptly reduced his concerns to writing. He did neither. In any event, Pierce was chief negotiator from July through contract approval in early October, 1985. He reported to Respondent in executive sessions, and did have the Monson memo prior to the final executive session on September 24, 1985. He said nothing. Pierce did ask Respondent's labor counsel to draft escape clauses which would allow Respondent to avoid paying negotiated salaries if financial problems developed. The escape clauses were viewed as precautions for Respondent's consideration. Neither Pierce, Monson or Petitioner advised Respondent to include an escape clause in the negotiated contract. It was reasonable for Petitioner, who was acting as Interim Superintendent at the time with many other duties, to rely on the chief negotiator to bring to Respondent's attention those matters which he felt were important and significant. Such reliance does not constitute a willful or negligent withholding of information.
It is further alleged that Petitioner willfully or negligently authorized improper payments under a contract between Respondent and MAI, a consulting firm, and that he improperly handled changes in the contract which deprived the Respondent of an opportunity to consider the changes and resulted in the improper expenditure of funds. This contract was entered into in December, 1982, while Fox was Superintendent and payments under the contract had been criticized by the Auditor General for two years. The contract was for professional services for improvements in the pupil transportation system, and payment to the consultant was to be from monies saved through implementation of the consultant's program. The Auditor General's criticism was that the method for determining payments under the contract was vague and indefinite. MAI sought payment of $90,000 for their services, but a negotiated settlement for
$30,000 was arrived at by Fox. Petitioner had no involvement in drafting this contract or presenting the settlement to the School Board; those matters were handled by former Superintendent Fox.
Respondent alleges that Petitioner willfully or negligently failed to inform the Board that certain Capital Outlay Projections were inadequate and incorrect, thereby falsely leading Respondent to believe that future expenditures would be less than should reasonably have been anticipated. Additionally, it is alleged that certain long range planning projections were inaccurate and were not based on reliable census and cost projections, and that Petitioner knew or should have known about these inaccuracies but failed to inform the Respondent. One of the first things that Superintendent Fowler did after becoming Superintendent was to try to get a clear understanding of capital outlay needs of the District. He reviewed a document entitled, "1985-91 Capital
Outlay Needs" and prepared a memo to Respondent on February 12, 1986 which expressed his concern that capital outlay needs of the District had been seriously underestimated. He recommended employing a consultant to verify his enrollment projections and develop an integrated facility planning approach. As Deputy Superintendent responsible for the Facilities Department, Petitioner supervised the preparation of capital outlay projections and their presentation to Respondent. However, the committee which actually developed these projections had been appointed by former Superintendent Fox, who also took an active role in the development and presentation of these projections. According to Charles E. Collins, capital projects administrator, Fox directed the capital outlay needs projects and gave specific instructions about what he wanted.
Superintendent Fowler testified that the School District will have an actual need for six or seven new schools, although a need for only two new schools had been projected under Fox. During his tenure as Interim Superintendent, Petitioner did not report to Respondent that capital outlay needs and projections had been underestimated. He always considered the "Capital Outlay Needs" document to be a generalized planning forecast which was to some extent also a "political" document, and had not felt the need to raise this matter with Respondent. Nevertheless, Petitioner did know that said projections were inaccurate, but failed to alert Respondent to the greater need which actually existed during budget considerations, as Fowler did immediately upon becoming Superintendent. Fowler took appropriate and necessary action to apprise Respondent of this inadequacy, and the incorrect basis for these projections, in contrast with Petitioner who withheld this information simply because he did not feel it necessary to make such a report. Petitioner exercised poor judgement in this regard and thereby lead Respondent to believe that future expenditures and the need for new facilities would be less than could reasonably be anticipated.
Regarding the construction of North Port Elementary School, it is alleged that Petitioner caused Respondent to suffer an unnecessary and unjustified expense of $50,000 which was paid to the general contractor, even though deficiencies existed and the contractor was not entitled to this payment. According to Larry Derryberry, the architect who designed North Port Elementary School, a meeting took place on February 21, 1985 concerning $57,000 that was retained on this job by the District to insure that certain outstanding items and deficiencies noted by the Fire Marshall were corrected. The school had been accepted as substantially complete and was occupied in the Fall of 1984, approximately eight months prior to this meeting. The cost of the entire project was between four and five million dollars. Following the meeting, Petitioner authorized the payment of $50,000 to the general contractor from the retainage, contrary to the recommendation of Charles Collins, capital projects administrator, and Derryberry, the architect. Petitioner authorized this payment, after discussions with former Superintendent Fox, because the cost to correct all remaining items on the punch-list was only $7,000. In fact, all remaining items were corrected by the general contractor. The evidence does not show that Petitioner improperly or inadequately administered or supervised the North Port Elementary School construction contract, or that he authorized any unnecessary or unjustified expenses. Only minor deficiencies existed in February, 1985 amounting to approximately $7,000 and Petitioner acted reasonably in consulting with the Superintendent, and then authorizing release of excess retainage. This did not deprive Respondent of leverage needed to require the contractor to complete his contract obligation because, in fact, all remaining items on the punch-list were then completed.
Respondent alleges that Petitioner failed to adequately supervise and administer the Facilities Department in that he usurped the function of a review committee which had been formed to review the contract and relationship between
Respondent and Federal Construction Company. Respondent had asked former Superintendent Fox to form this committee, and Fox put Petitioner in charge of the formation and functioning of the committee. The committee only met two or three times, and then failed to meet again or make recommendations due to resignations and illness of committee members. Petitioner kept the Respondent fully informed of committee meetings, through minutes, and of the committee resignations. He solicited input from Respondent for new committee members.
When new members could not be found in a timely manner, Petitioner and other staff members completed an amendment to the Federal Construction Company contract, which was presented to Respondent and approved. This action does not evidence any wrongful usurpation of the role of the committee by Petitioner.
Cassius Scott was an employee of the Facilities Department who had been transferred out of the Department by Respondent and assigned directly to the Deputy Superintendent's office for supervision. After a period of time, Petitioner sought Respondent's approval to assign Scott back to the Facilities Department by placing this item on the consent agenda. Chairperson Richardson objected and it was pulled from the consent agenda; Board member Glasser confirmed that it was Respondent's intent that Scott remain under petitioner's supervision. It is alleged that Petitioner reassigned Scott back to the Facilities Department contrary to Respondent's instructions. In fact, Scott was physically moved back to the Facilities Department after Richardson pulled the consent item. Petitioner claims Scott continued to work with him on facilities matters, but admits he moved his office out of the Deputy Superintendent's office without specific approval of Respondent, or even informing Respondent of this move. Petitioner did act contrary to Respondent's explicit instructions in this regard, especially after Chairperson Richardson had pulled this item from the consent agenda.
When serving as Interim Superintendent, it is alleged that Petitioner knew that enrollment figures submitted to the Florida Department of Education had been misstated by double counting approximately 100 students, thereby leading the State and Respondent to overestimate revenues to which the School District was entitled. In early 1986 Superintendent Fowler discovered that the full time equivalency count (FTE) for the 1985-86 school year was overestimated by 100 FTE. This necessitated an immediate budget adjustment since revenues for the then-current school year had been overestimated. At the direction of Fowler, Petitioner took care of the preparation, presentation and approval of this amendment by Respondent. Even though this inflated FTE was prepared while Fox was Superintendent, Petitioner had not informed Respondent of this overestimate and its impact on revenues while he was Interim Superintendent. Fowler brought it to Respondent's attention on February 11, 1986. As a result of this overestimate of FTE, Respondent's revenues had been overestimated by approximately $250,000. However, there is no competent substantial evidence that Petitioner deliberately inflated this FTE, or that he specifically knew that enrollment projections were overstated and purposely withheld this information from Respondent. It appears that Petitioner simply had not checked the estimates against actual enrollments prior to December 1, 1985 when Fowler became Superintendent, and so had no knowledge of this problem while he was Interim Superintendent. Other than his overall responsibilities as Deputy and Interim Superintendent, the evidence does not establish that he had any specific role in the preparation and submission of FTE estimates.
Board members Richardson and Glasser testified that Petitioner did not provide Respondent with complete information of items before them, that he did not follow up on questions, and that he avoided responding to issues presented by Board members. However, this testimony was contradicted by testimony of
Board members McAdoo and Olson, and Superintendent Fowler also commended Petitioner's performance by recommending him for continued employment, and by letter dated June 26, 1986 (see Finding of Fact 8). No evidence was presented of any prior disciplinary action taken against Petitioner on this basis, or on any other basis. Therefore, the allegation that Petitioner was unable to respond to or follow up on questions, or that he avoided issues is not supported by competent substantial evidence.
When Petitioner was informed that he had not been selected as a finalist for the position of Superintendent, it is alleged that he called certain School Board members and behaved inappropriately, suggesting they change their decision to avoid adverse consequences. Board member Richardson testified that Petitioner called her after he learned he was not a finalist, and he was agitated, accusing her of turning the School Board against him. She testified that Petitioner offered her a way out to avoid serious trouble if she got the Board to put his name back on the list of finalists. Board member Matthews testified that Petitioner also called him and made derogatory remarks about the finalists. Board member Olson testified that Petitioner did not act inappropriately at any time concerning the selection of finalists. Petitioner admitted he did call Board members and was emotional at the time. He testified that the press was calling him for comment on not being selected, and his friends were also calling wanting to know what happened. His reaction to this situation was out of character. Based on the evidence presented, it is found that Petitioner did act inappropriately toward Board members Richardson and Matthews, when informed he was not a finalist for Superintendent, by threatening serious trouble if they did not reverse their decision and also making derogatory statements about the persons they had selected as finalists.
Respondent has further alleged that Petitioner wrongly and repeatedly subdivided purchase orders into smaller amounts to avoid competitive bidding and School Board approval of expenditures in excess of $4,000. Superintendent Fowler conducted a review of purchase orders issued while Petitioner was Deputy Superintendent. The purchase orders in question were issued while Fox was Superintendent; Petitioner did not sign any of the purchase orders, but purchasing is a function under the Deputy. Charles Collins, capital projects administrator, testified that Petitioner had no knowledge of the practice of subdividing purchase orders when it was occurring in 1984. After Collins brought it to Petitioner's attention, the practice stopped. There is no evidence that Petitioner wrongly or repeatedly subdivided purchase orders, as alleged.
In the Fall of 1984, an agreement was made with the SCTA to advance certain food service employees on the salary schedule, and it is alleged that Petitioner willfully or negligently failed to inform Respondent of this agreement, did not obtain Respondent's approval, and thereby committed Respondent to higher wages to affected employees. The effect of the agreement was to advance forty-three food service employees two steps, when Respondent had only authorized a one step advance. Petitioner testified that at the time of this agreement, former Superintendent Fox was handling these negotiations and he knew nothing of what was done, or why. Nevertheless, Petitioner did coauthor a memo with Fox to Respondent in October, 1984 which described the food service agreement. In response to that memo Respondent approved a one step advance. It appears likely that if forty-three employees under his supervision received a two step advance when he had jointly recommended a one step advance, which was then approved, Petitioner would have, or at least should have, known about it. He did not inform Respondent, and was therefore negligent in not informing them of this matter.
It is alleged that Petitioner willfully or negligently failed to properly supervise the management of the Food Services Department resulting in a substantial financial deficit in the Department. The testimony of Board members Richardson and Matthews in support of the allegation was vague and indefinite. According to Monson, the finance director, the Food Services Department has a
$200,000 negative cash balance, but it was not established by competent substantial evidence that this resulted in any way from Petitioner's willful or negligent failures. Board member Olson testified that the food service program has been a continuing problem, and he pointed out that local food service managers in individual schools have a great deal of authority and autonomy, and that the Department is not centrally managed. Respondent has not established that Petitioner willfully or negligently failed to properly supervise the Food Services Department.
The final allegation against Petitioner is that, while he served as Interim Superintendent, he presented to Respondent a series of facility improvement expenditure requests, but failed to advise Respondent that approval would cause a material deficit in budgeted capital outlay project funds. Respondent did not offer competent substantial evidence in support of this charge. In fact, virtually no direct evidence in support of this charge was offered.
The primary allegation against Petitioner which caused Board members Matthews, Richardson and Glasser to vote against the Superintendent's recommendation was that Petitioner willfully or negligently withheld financial information required by Respondent to make an informed decision regarding the multi-year contract agreement with SCTA. (See Findings of Fact 9-11, above.) The other allegations contributed to their decision, but this allegation actually precipitated their action. Board members Matthews, Glasser and Richardson decided Petitioner should not be reemployed after they learned that Petitioner had received the Monson memo on September 20, 1985, but had not shared it with them. They testified that they would have viewed the multi-year contract materially differently if they had known about the Monson memo on September 20, 1985. The Respondent approved the multi-year salary schedule on September 24, 1985.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this cause. Section 120.57(1), Florida Statutes. The Respondent has the burden in this case to prove that it had "good cause" to reject the Superintendent's recommendation that Petitioner's employment as Deputy Superintendent be continued. Section 230.23(5)(a), Florida Statutes; Department of Transportation v. J. W. C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981); Von Stephens v. School Board of Sarasota County, 338 So.2d 890 (Fla. 2nd DCA 1976).
At the time the Superintendent submits his recommendation for employment to the School Board, an implied contract of employment arises between the employee being recommended and the School Board, and the Superintendent's recommendation is final unless the Board finds that the nominee is "morally or professionally disqualified." Von Stephens, supra at 895. The Court in Von Stephens went on to point out that an employee's failure to meet subjective standards, such as acceptability to the community and an acceptable personality, did not constitute legal grounds for rejection of the Superintendent's recommendation:
The responsibility of the school board has always been to appoint personnel recommended and nominated by the superintendent, not select them . . . . Unless good cause is shown
. . . . it is incumbent on the board to appoint and contract with the nominee. Von Stephens, supra at 894.
Of course, Respondent can reject the Superintendent's recommendation, but in doing so must establish that "good cause" exists by showing that Petitioner is "morally or professionally disqualified." No allegation has been made, or proof offered, that Petitioner is morally disqualified. The allegations involve Petitioner's performance as Deputy and Interim Superintendent, and the question, therefore, is whether Respondent has shown that Petitioner is "professionally disqualified."
The evidence establishes that Petitioner has been an eight year employee in the Sarasota County School District, having served for six years as Deputy Superintendent, and four months as Interim Superintendent. There is no evidence of any unsatisfactory evaluations, prior disciplinary action, or employee counselling involving Petitioner. Superintendent Fowler recommended him for continued employment, and even after this recommendation was rejected Petitioner continued to work with Fowler and carry out his responsibilities as Deputy in a "professional way." (See Finding of Fact 8)
As set forth above, it has been established that Petitioner exercised poor judgement by withholding information from Respondent regarding inaccuracies in capital outlay projections which had been presented to Respondent, and thereby led Respondent to believe that future expenditures for new facilities would be less than could reasonably be anticipated. It has also been shown that Petitioner acted contrary to Respondent's explicit instructions regarding Cassius Scott, an employee of the Facilities Department. The evidence also established that Petitioner acted inappropriately toward two Board members when informed he was not a finalist for the position of Superintendent, by threatening serious trouble if they did not reverse their decision and by making derogatory remarks about the finalists. Finally, it was shown that Petitioner knew, or should have known, about the unauthorized two step salary advance of forty-three food service employees under his supervision, and yet he failed to inform Respondent of this unauthorized advance. Thus, four of the fourteen allegations against Petitioner have been proven. Respondent's rejection of the Superintendent's recommendation can be upheld only if these four incidents establish "good cause" by showing that Petitioner is "professionally disqualified" to continue employment as Deputy Superintendent.
There are no clear statutory criteria or prior court rulings on facts that are precisely similar to those in this case defining what constitutes "good cause." Guidance may be gleaned, however, from the introductory language to Section 230.23(5), Florida Statutes, which specifically provides that employee appointment is "subject to the requirements of Chapter 231." Therefore, when Section 230.23(5)(a) imposes the "good cause" requirement for rejection of the Superintendent's recommendation, we can look to Section 231.36(6)(b) for guidance on the meaning of the "good cause" requirement. These two statutes should be read in pari materia. Section 231.36(6)(b) provides that district administrative staff may be disciplined if charges brought against them based on the following grounds are sustained: immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, drunkenness, or
conviction of a crime involving moral turpitude. The charges proven in this case do not constitute any of the grounds enumerated in Section 231.36(6)(b), above. The fact that Petitioner, on one occasion each, exercised poor judgement, acted contrary to Respondent's instructions, acted inappropriately toward two Board members, and failed to inform Respondent about unauthorized salary advances he knew or should have known of, does not constitute grounds for discipline under Section 231.36(6)(b).
Respondent offered no proof of the standards Petitioner was expected to meet, or how he breached those standards in these four instances. As the Court stated in Smith v. School Board of Leon County, 405 So.2d 183, 185-186 (Fla. 1st DCA 1981):
If the Board wishes to articulate policy which sets different standards of conduct for its administrative employees than for its instructional
personnel, it is not precluded from doing so as long as there is a record foundation in support of that policy . . . .
(T)he Board's abstract statutory interpretations, based merely on the conduct of appellant . . . . was not supported by such record foundation.
Having failed to establish what Respondent expected of the Deputy Superintendent, Respondent cannot jump to the conclusion that the four incidents proven in this case constitute "good cause" to reject the Superintendent's recommendation.
As clearly set forth in Green v. School Board of Hamilton County, 444 So.2d 500, 501 (Fla. 1st DCA 1984):
By statute, the school board is the policymaking body for the school district, while the superintendent is the chief executive officer of the school board and the chief administrator within the school
district. . . . Under these statutes, it has been repeatedly held that with regard to employment of school district personnel, it is the superintendent's duty to select and nominate personnel, while it is the school board's duty to appoint and contract with employees nominated by the superintendent, unless upon a finding of good cause, the
board chooses to reject such nominations.
. . . . We perceive that the allocation
of responsibilities with respect to school district personnel matters outlined above, i.e., selection by the superintendent and appointment by the Board, was intended not only to remove political considerations from the process of selecting those persons responsible for the education of children, but also to insure that the superintendent will have sufficient control and authority
over the employees of the school district to permit him to carry out the responsibilities of managing the system. An executive or administrator who cannot control his employees cannot function.
This is all the more true regarding the Superintendent's need to be able to select his Deputy who is, literally, his top assistant and representative.
In this case, Superintendent Fowler selected Petitioner to continue to serve as Deputy. This recommendation was made even though Fowler knew that certain members of the School Board were not supportive of Petitioner. The important point was that Fowler had confidence in Petitioner's ability as evidenced by the fact that he recommended him initially in January and finally in March, 1986, when Respondent rejected this recommendation. A school board can reject such a recommendation, but it must be prepared to articulate the standards expected of its administrative employees, show how a particular employee has breached those standards, and establish that such breach evidences that the employee is "morally or professionally disqualified." Respondent has not sustained this burden by competent substantial evidence, although four charges have been established. The facts of the case do not support rejection of the Superintendent's recommendation for "good cause."
Based upon the foregoing, it is recommended that Respondent issue a Final order approving the Superintendent's recommendation that Petitioner's employment as Deputy Superintendent be continued from July 1, 1986 to June 30, 1987, and that Petitioner be awarded back-pay to the date of his reemployment, at the rate of pay recommended by the Superintendent.
D0NE AND ENTERED this 4th day of December 1986 in Tallahassee, Florida.
DONALD D. CONN
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 4th day of December, 1986.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-1400
Rulings on Petitioner's Proposed Findings of Fact:
Adopted in Findings of Fact 1, 2.
Adopted in Findings of Fact 3, 4.
Adopted in part in Finding of Fact 18, but otherwise rejected as irrelevant.
Adopted in part in Finding of Fact 3, but otherwise
rejected as irrelevant.
Adopted in Finding of Fact 8.
Adopted in Finding of Fact 6.
Rejected as irrelevant and unnecessary.
Adopted in Findings of Fact 6,7.
9-10. Rejected as a characterization of testimony and not a proposed Finding of Fact.
Adopted and Rejected in part in Findings of Fact 9-11.
Adopted and Rejected in part in Finding of Fact 12.
Adopted and Rejected in part in Finding of Fact 13.
Adopted and Rejected in part in Finding of Fact 14.
Adopted and Rejected in part in Finding of Fact 15.
Adopted and Rejected in part in Finding of Fact 16.
Adopted and Rejected in part in Finding of Fact 17.
Adopted and Rejected in part in Finding of Fact 18.
Adopted and Rejected in part in Finding of Fact 19.
Adopted and Rejected in part in Finding of Fact 20.
Adopted and Rejected in part in Finding of Fact 21.
Adopted and Rejected in part in Finding of Fact 22.
Adopted in Finding of Fact 23.
Adopted and Rejected in part in Finding of Fact 24.
Rulings on Respondent's Proposed Findings of Fact:
Not a proposed Finding of Fact.
Rejected as unnecessary.
3-4. Adopted in Finding of Fact 6.
5. Adopted in Findings of Fact 4, 6.
6-7. Adopted and Rejected in part in Findings of Fact 6,8.
Rejected in Finding of Fact 6.
Adopted in Finding of Fact 6.
Rejected in Findings of Fact 6, 8.
Rejected as irrelevant.
Rejected as not based on competent substantial evidence.
Rejected as unnecessary.
14-19. Adopted and Rejected in part in Findings of Fact 9-11, and otherwise rejected as irrelevant and not
based on competent substantial evidence.
20-23. Adopted and Rejected in part in Finding of Fact 17.
24. Adopted and Rejected in part in Findings of Fact 9-11,17. 25-33 Adopted and Rejected in part in Finding of Fact 13,
and otherwise rejected as irrelevant and not based on competent substantial evidence.
34-38 Adopted in part in Finding of Fact 24, but otherwise rejected as not based on competent substantial evidence.
39-45. Adopted and Rejected in part in Finding of Fact 11, and otherwise rejected as irrelevant and not based on competent substantial evidence.
Rejected in Finding of Fact 10.
Adopted in part in Finding of Fact 24, but otherwise rejected as irrelevant.
Rejected as irrelevant. The issue is not whether the Monson memo was in error but whether Petitioner willfully or negligently failed to inform Respondent.
Adopted in Finding of Fact 9.
Rejected in Finding of Fact 11.
Adopted in part in Finding of Fact 24, but otherwise
rejected as irrelevant. What Respondent did or did not believe is not the issue.
Rejected in Finding of Fact 11.
Rejected as not based on competent substantial evidence. 54-58. Adopted and Rejected in part in Finding of Fact 12.
59-67. Adopted and Rejected in part in Finding of Fact 14, and otherwise rejected as irrelevant and not based on competent substantial evidence.
68. Adopted in Finding of Fact 3.
69-76. Adopted and Rejected in part in Finding of Fact 15, and otherwise rejected as irrelevant and not based on competent substantial evidence.
77-80. Adopted and Rejected in part in Finding of Fact 16.
Adopted and Rejected in part in Finding of Fact 18.
Rejected as not based on competent substantial evidence. 83-86. Adopted and Rejected in part in Finding of Fact 19,
and otherwise rejected as not based on competent substantial evidence.
87-92. Adopted and Rejected in part in Finding of Fact 20, and otherwise rejected as irrelevant and not based on competent substantial evidence.
93-95. Adopted and Rejected in part in Finding of Fact 21. 96-97. Adopted and Rejected in part in Finding of Fact 22.
98. Rejected in Finding of Fact 23.
99-101. Rejected in Finding of Fact 24 and otherwise as irrelevant. The Respondent did vote 3-2 to reject the Superintendent's recommendation.
102. Rejected as not based on competent substantial evidence.
COPIES FURNISHED:
John R. Blue, Esquire Carol A. Masio, Esquire Charles J. Pratt, Esquire Post Office Box 1866 Bradenton, Florida 33506
Daniel H. Kunkel, Esquire
290 Cocoanut Avenue Sarasota, Florida 33577
Honorable Ralph D. Turlington Commissioner of Education The Capitol
Tallahassee, Florida 32301
Charles W. Fowler Superintendent 2418 Hatton Street
Sarasota, Florida 33577
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AGENCY FINAL ORDER
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BEFORE THE SCHOOL BOARD OF SARASOTA COUNTY, FLORIDA
WARREN L. SPURLIN,
Petitioner,
DOAH CASE NO. 86-1400
THE SCHOOL BOARD OF SARASOTA COUNTY, FLORIDA,
Respondent.
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FINAL ORDER
After a formal hearing before the Honorable Donald D. Conn, the Hearing Officer submitted his Recommended Order to this Board. Petitioner and Respondent, through their respective counsel, each submitted exceptions to the Hearing Officer's Recommended Order (HORO), and at oral argument each asked the Board to change or reject certain portions of the HORO.
Findings of Fact.
Each member of this Board has reviewed the entire record in these proceedings, and we have considered the exceptions and arguments presented by each side. Even though persuasive arguments in support of rejecting many of the Hearing Officer's recommended findings of fact have been presented to us, we are without authority to change the Hearing Officer's recommended findings of fact where there is evidence to support them. We cannot say that the record contains no evidence in support of the findings challenged by the parties, and we decline to substitute our judgment for that of the Hearing Officer on factual determinations. Accordingly, the findings of fact set forth in the HORO are adopted, and are attached to and incorporated by reference into this Final Order.
Conclusions of Law.
The Petitioner's exceptions to the Hearing Officer's recommended conclusions of law, numbered one through four, relate exclusively to Petitioner's exceptions to the Hearing Officer's findings of fact. Having previously rejected the Petitioner's exceptions to the Hearing Officer's recommended findings of fact, we cannot and do not adopt Petitioner's exceptions one through four to the Hearing Officer's recommended conclusions of law.
Petitioner's exception number five to the Hearing Officer's recommended conclusions of law is rejected as unnecessary.
We view the Respondent's exceptions to the Hearing Officer's recommended conclusions of law more favorably. We are persuaded that the Hearing Officer's
conclusions interpreting Section 230.23(5) erroneously construe the law, for the reasons stated in Respondent's exceptions. Accordingly, we adopt as our own the reasoning stated by Respondent, and we reject the Hearing Officer's recommended conclusions of law and adopt the following.
School Boards select and employ their Superintendent directly. Sec. 230.321, Fla. Stat. (1985).
The selection and nomination of employees is a duty imposed by the Legislature on the Superintendent. Sec. 230.33(7), Fla. Stat.
The School Board may reject for good cause nominations made by the Superintendent. Sec. 230.23(5)(a), Fla. Stat.
In exercising the authority of Section 230.23(5), the Board must observe the requirements of Chapter 231. Chapter 231 imposes no requirements applicable to the instant case.
Good cause, within the meaning of Section 230.23(5)(a) cannot consist of purely subjective standards such as suitability of the nominee or his personality to the community. Nor can good cause be shown by a nominee's personal conduct occurring away from the job, unless the conduct adversely affects the ability of the nominee to perform in the position to which he has been nominated.
Good cause exists if a nominee is morally or professionally disqualified to hold the position to which he has been nominated.
When the Superintendent conditions a nomination by advising the Board that he is in no position to judge the performance of the nominee, the Board is entitled to examine the performance of the nominee to determine whether there is good cause to reject the nomination.
In considering whether there is good cause to reject a nomination, the Board is not required to disregard the performance of the nominee in his prior employment by the Board.
The failure, refusal or inability of a nominee to perform his professional duties in a responsible manner during the nominee's prior employment by the Board may be considered by the Board in determining whether the nominee is professionally disqualified for that position.
The Hearing Officer's recommended findings of fact, adopted herein, show that Petitioner was professionally disqualified to continue as Deputy Superintendent by reason of (a) his failure to inform the Board, while he previously served as Deputy Superintendent, that certain capital outlay projections were erroneous; (b) his failure, while serving as Interim Superintendent, to follow Board procedure and law regarding the assignment of Cassius Scott; (c) his threat, as Interim Superintendent, to cause trouble for Board members if the Board did not reverse its decision eliminating him from consideration for the position of Superintendent, and his derogatory remarks about the finalists selected by the Board; and (d) his negligent failure to inform the Board that a negotiated agreement for food service employees provided for a two-step advancement of certain employees on the salary schedule.
The Hearing Officer's conclusions that Section 230.23(5)(a) must be read in pari materia with Section 231.36(6)(b) is erroneous, and is rejected.
If the Legislature had intended that the conditions of Section 231.36(6)(b) should be the basis for defining the good cause referred to in Section 230.23(5)(a), it could have so provided. We conclude that the Legislature did not intend to so narrowly define the term good cause.
The Hearing Officer's conclusion that good cause for rejecting the Superintendent's nomination can be shown only by immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, drunkenness, or conviction of a crime involving moral turpitude, is erroneous, and is rejected for the reasons stated above.
The Hearing Officer's conclusion that Smith v. School Board of Leon County, 405 So.2d 183 185-186 (Fla. 1st DCA 1981), prohibits the Board form concluding that good cause has been shown in the instant case, erroneously construes the decision of the Court in that case, and is rejected. We conclude that the Smith decision means only that when a Board charges an employee in terms which are defined by regulation, the Board must abide by the regulatory definitions unless it first announces other definitions. Because Petitioner was not charged with violating specific statutory standards, the Respondent was not required to articulate standards, but is entitled to determine whether Petitioner's prior performance constitutes good cause.
The Hearing Officer's conclusion that the decision in Greene v. School Board of Hamilton County, 444 So.2d 500, 501 (Fla. 1st DCA 1984), weighs against Board rejection of the Superintendent's nomination in the instant case is erroneous and is rejected. We conclude that Greene stands for the proposition that a school board may not reject only a part of the superintendent's recommendation, but must accept or reject the recommendation in its entirety. The Board in Greene improperly interfered with the superintendent's prerogative by awarding a two year contract to a nominee for whom the superintendent recommended a one year contract. That court properly recognized the need for the superintendent to determine such matters so that the superintendent can fulfill his duty to control employees. Here, the Superintendent clearly advised the Board that he had no basis to evaluate Petitioner's qualification for the position, because the Superintendent himself had only recently been employed by the Board. Accordingly, we conclude that the rejection of the nomination here did not infringe on the Superintendent's ability to control the employee because Petitioner ceased to be an employee, and the admonition of the court in Greene has not been violated. By rejecting the nomination totally, rather than only partially, the Respondent complied with the decision in Greene.
The Hearing Officer's conclusion that the implied contract which arose between the Petitioner and the Board is subject to the termination requirements of Section 231.36(6)(b) is erroneous and is rejected. The implied contract is terminated when the Board finds good cause to reject the nomination.
The Hearing Officer's conclusion that Superintendent Fowler had confidence in Petitioner's ability is rejected. In rejecting this recommended conclusion of law, we recognize that it bears strong resemblance to a finding of fact. We nonetheless treat it as a conclusion of law, as did the Hearing Officer, since we believe we are without authority to reclassify the Hearing Officer's characterizations of fact and law. The nomination made by the Superintendent stated clearly that he was without a basis to evaluate Petitioner's prior performance.
The Hearing Officer's conclusion that the facts of the case do not support rejection of the Superintendent's recommendation for good cause is
rejected. We are of the opinion that the Hearing Officer erroneously and too narrowly interpreted the term "good cause" by concluding that it is defined exclusively by the terms of Section 231.36(6)(b). Given the proper definition of good cause, we conclude that the facts support rejection of the Superintendent's recommendation for good cause.
ORDER
Based upon the foregoing, the Hearing Officer's recommended order is not accepted, and the initial action of this Board of March 18, 1986, is affirmed.
DONE AND ENTERED by majority vote of the School Board of Sarasota County, Florida, this 2nd day of March, 1987.
David E. Olson, Chairman
NOTICE: Any person adversely affected by this Final Order may appeal this order to the District Court of Appeal, Second District of Florida, within thirty
(30) days from the date of the Order, pursuant to Section 120.68, Florida Statutes.
COPIES of this Order shall be transmitted by the Superintendent, as Secretary of the Board, to counsel for Petitioner and counsel for Respondent, and to Donald D. Conn, Hearing Officer.
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing has been furnished to: Carol
A. Masio, Esquire and Charles J. Pratt, Esquire, Post Office Box 1866, Bradenton, Florida 33506, Attorneys for Petitioner; Daniel H. Kunkel, Esquire,
290 Cocoanut Avenue, Sarasota, Florida 33577, Attorney for Respondent; and Donald D. Conn, Hearing Officer, Division of Administrative Hearings, The Oakland Building, 2009 Apalachee Parkway, Tallahassee, Florida 32301, by mail, this 4th day of March, 1987.
Charles W. Fowler Superintendent
The School Board of Sarasota County, Florida
Sarasota, Florida 33577
| Issue Date | Proceedings |
|---|---|
| Dec. 04, 1986 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Mar. 02, 1987 | Agency Final Order | |
| Dec. 04, 1986 | Recommended Order | Exercising poor judgement, acting contrary to instructions and inappropriately toward board members constitutes cause for discipline under 231.36(6)(b), FS |
