Judges: WILLIAM R. CAVE
Agency: County School Boards
Latest Update: Aug. 27, 1987
Summary: Board failed to show good cause for rejecting suptia nominee therefore bd must appoint and contract with petitioner.
87-2536STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
JEFF ZURAFF, )
)
Petitioner, )
)
vs. ) CASE NO. 87-2536
) SCHOOL BOARD OF UNION COUNTY, ) FLORIDA, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William R. Cave, held a formal hearing in this case on July 31, 1987, in Lake Butler, Florida. The issue for determination is whether the Respondent had good cause to reject the recommendation of the Superintendent of Schools that the Petitioner be reappointed for employment during the 1987-88 school year.
APPEARANCES
For Petitioner: Ronald G. Meyer, Esquire
Meyer, Brooks and Cooper, P.A. 911 East Park Avenue
Post Office Box 1547 Tallahassee, Florida 32302
For Respondent: Bobby Lex Kirby, Esquire
Route 2, Box 219
Lake Butler, Florida 32054 BACKGROUND
This proceeding arose with the filing of a Petition for Formal Hearing by Jeffrey Zuraff on May 20, 1987. The Petition alleges that the Superintendent of Schools for Union County, James H. Cason, III, submitted the Petitioner's name for reappointment as a member of the instructional staff for the 1987-88 school year and that at a meeting conducted on or about April 27, 1987, the Respondent rejected the nomination for unspecified reasons.
The Petitioner asserts that pursuant to Section 230.23(5)(a), Florida Statutes, the School Board may only reject the nomination of persons recommended by the Superintendent for "good cause." The Petitioner alleges that no such "good cause" was stated by the Respondent at the time it rejected the nomination of the Superintendent and the Petitioner asserts that no legally sufficient "good cause" exists.
Therefore, the Petitioner seeks a determination that he is entitled to be awarded an annual contract of employment by the Respondent for the 1987-88 school year and to be made whole for any loss of wages occurring as a result of the actions alleged.
In support of its position, the Respondent presented the testimony of the Superintendent of Schools, James H. Cason, III, and each of the individual School Board members, to-wit: Ms. Regina Parrish, Mr. Steve Saunders, Mr.
Morris Dobbs, Mr. W. S. Howard, Jr. and Ms. Betty Emerick. Respondent's exhibit
1 was received into evidence.
The Petitioner adduced additional testimony from the Superintendent of Schools, James H. Cason, III, but otherwise did not call any additional witnesses. Petitioner's exhibits 1 through 3 were received into evidence
At the close of the Respondent's evidentiary presentation, the Petitioner moved for summary judgment based upon failure of the evidence to establish legally sufficient "good cause" for the Respondent to have rejected the nomination of the Superintendent that the Petitioner be reappointed. The Hearing Officer took such motion under advisement. Having reviewed the record in this case and the legal arguments presented, the motion is DENIED.
The parties submitted post-hearing Proposed Findings of Fact and Conclusions of Law. A ruling on each proposed finding of fact has been made as reflected in the Appendix to this Recommended Order.
FINDINGS OF FACT
Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:
During the 1986-87 school year the Petitioner was employed by the Respondent as a Compensatory Education Teacher at Lake Butler Middle School. Additionally, he served as Assistant Football Coach and Junior Varsity Baseball Coach.
The Petitioner is over the age of eighteen years.
During the 1986-87 school year the Petitioner possessed a temporary teaching certificate issued by the Florida Department of Education (Certificate Number 562142) disclosing "Highest Acceptable Level of Training - Bachelor's Degree."
The Petitioner also possesses a permanent teaching certificate with a validity period of July 1, 1987, through June 30, 1992.
Superintendent of Schools, James H. Cason, III, met with M. H. Boyd, Principal, Lake Butler Middle School and Petitioner's principal, prior to formulating his decision to recommend Petitioner to Respondent for additional year of employment. Boyd advised Superintendent Cason that she was not entirely satisfied with Petitioner's performance but that she could "live with" Petitioner's reappointment for the 1987-88 school year.
Superintendent Cason also conferred with the head coach, James F. Niblack, Petitioner's supervisor for the athletic duties performed by Petitioner, prior to formulating a recommendation to Respondent concerning
Petitioner's reappointment for the 1987-88 school year. Coach Niblack recommended Petitioner's reappointment for the 1987-88 school year.
Superintendent Cason made a timely written nomination that Petitioner be reappointed by the Respondent in an instructional position for the 1987-88 school year.
On April 27, 1987, Respondent conducted a meeting for the purpose, inter alia, of acting upon the recommendation of Superintendent Cason for personnel appointments.
The Respondent voted unanimously to reject the recommendation of Superintendent Cason that Petitioner be reappointed to an instructional position for the 1987-88 school year.
No reason for the rejection of the nomination of the Petitioner by the Respondent was verbally stated at the April 27, 1987, meeting nor spread upon the minutes of such meeting.
During the hearing, and after conferring with the members of the board, counsel for Respondent stipulated that Petitioner met the statutory requirement to be eligible for appointment to a position with Respondent in that he is of good moral character, is over the age of eighteen (18) years and holds a certificate issued under the rules of the State Board of Education.
School Board member, W. S. Howard, Jr., a cousin of Boyd, requested that Boyd prepare an evaluation of Petitioner. The record is not clear as to whether the evaluation was made before or after the Superintendent conferred with Boyd on Petitioner's reappointment.
Petitioner was evaluated "satisfactory" in ten (10) of the eighteen
(18) areas measured on the evaluation instrument that was utilized, "unsatisfactory" on two (2), "not applicable" was marked on two (2) criteria and four (4) were left unmarked by the evaluator.
The evaluation instrument utilized by the Respondent in evaluating the Petitioner's performance was not the instrument which should have been utilized during the 1986-87 school year although such instrument was utilized by the principal for other employees at the Petitioner's school.
The Respondent officially sponsors, maintains and funds the athletic programs in which the Petitioner rendered services during the 1986-87 school year. Such programs constitute an integral part of the overall educational program offered by the Respondent to children of Union County.
The Petitioner's service to the athletic program conducted by the Respondent was rated satisfactory or above.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding pursuant to Section 120.57(1), Florida Statutes.
Section 230.33(7)(a), Florida Statutes, directs the Superintendent of Schools to select and submit his nominations for reappointment of members of the instructional staff after conferring with the school principals.
Section 230.23(5)(a), Florida Statutes, requires the School Board to act on the Superintendent's nomination for reappointment, with the discretion to reject any employee nominated for good cause.
Section 231.02, Florida Statutes, states the qualifications that are necessary for a person to be eligible for appointment to positions with a school district, and in pertinent part provides:
To be eligible for appointment in any position in any district school system, a person shall be of good moral character; shall have attained the age of 18 years, if he is to be employed in an instructional capacity; and shall, when required by law, hold a certificate or license issued under rules of the State Board of Education ...
Absent legally sufficient "good cause" to reject the Superintendent's recommendation, a School Board must appoint and contract with a nominee whose name has been submitted for consideration. Von Stephens v. School Board of Sarasota County, 338 So.2d 890 (2d DCA Fla. 1976). The term "good cause" authorizing the rejection by the School Board of a nominee in accordance with Section 230.23(5)(a), Florida Statutes, is equated with a showing of failure to meet the criteria of Section 231.02, Florida Statutes. Sherburne v. School Board of Suwannee County, 455 So.2d 1057, 1061 (1st DCA Fla. 1984). It is the duty of the Superintendent to select and nominate personnel, while it is the School Board's duty to appoint and contract with employees nominated by the Superintendent, unless the Board finds good cause to reject the nomination. Von Stephens v. School Board of Sarasota County, 338 So.2d 890 (2d DCA Fla. 1976). Greene v. School Board of Hamilton County, 444 So.2d 500 (1st DCA Fla. 1984).
The burden of proof is upon the party asserting the affirmative of an issue before an administrative tribunal. Florida Department of Transportation v.
Company, Inc., 396 So.2d 778 (2d DCA Fla. 1981). Respondent has failed to meet its burden to show that Respondent's rejection of the nomination of Petitioner, Jeff Zuraff, for reappointment by the Superintendent of Schools was for "good cause."
RECOMMENDATION
Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore,
RECOMMENDED:
That Respondent, School Board of Union County, enter a Final Order GRANTING the Petitioner an annual contract for the 1987-88 school year and reimbursing Petitioner for any loss of wages due to his non-pay status which resulted from Respondent's rejection of his nomination.
RESPECTFULLY SUBMITTED AND ENTERED this 27th day of August, 1987, in Tallahassee, Florida.
WILLIAM R. CAVE
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 27th day of August, 1987.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2536
The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case.
Rulings on Proposed Findings of Fact Submitted by the Petitioner 1.-11. Adopted in Findings of Fact 1 through 11,
respectively.
12.-15. Adopted in Findings of Fact 13 through 16, respectively.
Rulings on Proposed Findings of Fact Submitted by the Respondent
Adopted in Finding of Fact 1.
Adopted in Finding of Fact 7.
Adopted in substance in Findings of Fact 5, 6 and 7.
Adopted in substance in Finding of Fact 1.
Adopted in Finding of Fact and 6.
The fact that Boyd had some reservations concerning Petitioner's abilities to teach the compensatory education class is adopted in Finding of Fact 5, the balance of paragraph 6 is rejected as not supported by substantial competent evidence in the record.
The fact that Niblack recommended Petitioner for reappointment is adopted in Finding of Fact 6, the balance of Paragraph 7 is rejected as not supported by substantial competent evidence in the record.
The fact that the Union County School Board voted not to rehire Petitioner is adopted in Finding of Fact 9, the balance of paragraph 8 is rejected as not supported
by substantial competent evidence in the record.
The fact that the reason for Respondent's vote to reject Petitioner's reappointment was not verbally stated or spread in the minutes is adopted in Finding of Fact 10, the balance of paragraph 9 is rejected as not being supported by substantial competent evidence in the record in that the testimony of the individual
School Board members lacked credibility.
Rejected as being presented as an argument and not as a Finding of Fact.
COPIES FURNISHED:
Ronald G. Meyer, Esquire Meyer, Brooks and Cooper, P.A. 911 East Park Avenue
Post Office Box 1547 Tallahassee, Florida 32302
Bobby Lex Kirby, Esquire Route 2, Box 219
Lake Butler, Florida 32054
James H. Cason, III, Superintendent
The School Board of Union Co.
55 Southwest Sixth Street Lake Butler, Florida 32054
Honorable Betty Castor Commissioner of Education The Capitol
Tallahassee, Florida 32399
Sydney McKenzie, General Counsel Department of Education
Knott Building Tallahassee, Florida 32399
Docket for Case No: 87-002536
Orders for Case No: 87-002536
| Issue Date |
Document |
Summary |
|
May 21, 1990 |
Agency Final Order
|
|
|
Aug. 27, 1987 |
Recommended Order
|
Board failed to show good cause for rejecting suptia nominee therefore bd must appoint and contract with petitioner.
|
