STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VICKI GAINEY, )

)

Petitioner, )

)

vs. ) CASE NO. 78-1185

) SCHOOL BOARD OF LIBERTY COUNTY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on January 30, 1979. The parties were granted leave through March 30, 1979, to file briefs, which have been received and considered by me in preparation of this Recommended Order.

APPEARANCES

For Petitioner: Ronald G. Meyer, Esquire

Office of General Counsel FTP-NEA

213 South Adams Street Tallahassee, Florida 32301

For Respondent: James C. Conner, Jr., Esquire

325 John Knox Road, Suite 106 Building F

Tallahassee, Florida 32303 ISSUE

1. Was the Petitioner entitled to continuing contract status based on her employment with the School Board of Liberty County?

   
   

2. Is the Petitioner entitled to reinstatement pursuant to continuing contract and compensatory damages, including back pay?

Based on my observation of the witnesses and their demeanor while testifying, the arguments of counsel, the authorities cited and the other evidence of record, the following relevant facts are found.

FINDINGS OF FACT

1. The Petitioner was first employed by the Liberty County School Board as a classroom teacher for the school terms 1971-72, 1972-73 and 1973-74 as an English classroom teacher. For the school year 1974-75, the Petitioner was employed for a fourth year as a teacher by Respondent. In November of 1974, the Petitioner requested and was granted maternity leave through the end of the

   school year, i.e., June 6, 1975. It is undisputed that during the first three school years of the Petitioner's employment with Respondent, her employment was pursuant to an annual contract. However, what is in dispute, is Petitioner's claim that during her fourth year of employment with Respondent, such employment was pursuant to a continuing contract. According to Petitioner, the then principal at the school in which she was employed recommended that she be reappointed for her forth year of employment pursuant to a continuing contract as did the then superintendent of schools, Tom Fairchild. Thereafter, on May 4, 1974, the School Board met and voted favorably on the Superintendent' s recommendation. In this regard, the minutes of the May 4, 1974, meeting of the school Board do not disclose the contractual status approved by the Board, i.e., annual or continuing. 1/

   
   

2. During the summer of 1975, Petitioner advised her principal that she would not be returning for the 1975-76 school year. Accordingly, the principal employed another teacher to replace her. Shortly thereafter, Petitioner informed the principal that she had changed her mind and wanted to teach the 1975-76 school year. She was not, however, rehired, as the position had been filled.

   
   

3. During the summer months of 1975, Petitioner had several conversations with her then principal, Jerry Johnson. Initially, during her conversations with Principal Johnson, Petitioner related to him that she thought that she would be returning to her position for the 1975-76 school year. During the latter part of July, Principal Johnson explained to Petitioner the necessity for her to make a final decision with respect to her returning to her position, since he needed to hire a replacement if she was not returning. At that point, Petitioner remarked that, "I think I need to take another year's leave." Mr. Johnson remarked, "Well, we hate that you are not coming back, but if you feel that's best for the baby, I'm supportive of you." Within a few days, Petitioner called Mr. Johnson back and advised, "just pretend I didn't talk to you the other day. I want my job back." At that point, Mr. Johnson remarked, "Vicki, I wish you had told me. I have just hired somebody else." To this, Petitioner remarked, "Well, what do you mean you just hired so00body else. I am on a continuing contract, you know." Mr. Johnson remarked, "Well, I know, but you've got me in an awkward position. This boy has got Board connections." Petitioner remarked, "Well, it couldn't have been more than a verbal agreement. He couldn't have signed anything yet because you don't sign a contract this early in the year." 2/ Mr. Johnson remarked, "Well, that's true but everybody is going to be awfully upset. I can't tell him he doesn't have a job now, and I've told him he has one." Later, Mr. Johnson asked Petitioner to submit a letter of resignation to which Petitioner never responded. Prior to the beginning of the school year in either late August or early September of the 1975-76 school year, Petitioner visited the principal's office in Bristol and explained to him that while she did not want to force the issue, via a lawsuit in a small community, she would appreciate it if she was given the first teaching position that cane open in the school system. (TR 23, 24 and 25.)

   
   

4. The Petitioner testified that she was ready, willing and able to work during the 1975-76 school year. Petitioner received a call from Mr. Johnson during October of 1975 wherein he inquired if she was ready to return to work. Petitioner responded that she was ready and had been since the summer. Mr. Johnson indicated that he had a teaching position opening up; however, that position never materialized inasmuch as the teacher who was supposed to have resigned, Carolyn Larkins, needed an additional year of employment for retirement purposes. Petitioner was not assigned to a position at any time during the 1975-76 school year. Toward the end of the 1975-76 school year,

   Petitioner again informed her principal of her continuing request to be assigned. When no assignment was given her at the beginning of the 1975-76 school year, the Petitioner, out of economic necessity, accompanied her husband to Maine where he had obtained employment. Petitioner made it plain to her principal that she still sought employment with the Board and would return to Florida if and when an assignment was offered her. Finally, in November, 1976, approximately two months after the Petitioner left Florida, her principal assigned her to a teaching position and she returned and resumed teaching in the school system. Petitioner was given an annual contract for the 1976-77 school year and inquired why she was being asked to sign an annual contract. Her principal advised her that it was "customary" to do so. The Petitioner remained on the assignment the remainder of the 1976-77 school year. At the end of the 1976-77 school year, the present Superintendent of Schools, Laquita Shuler, recommended and the Respondent School Board approved, the Petitioner's continued employment. The Petitioner taught the entire 1977-78 school year. During the 1977-78 school year, Petitioner was again tendered an annual contract for execution which she refused to sign. Petitioner, before the School Board meeting in December, 1977, contended that she had a continuing contract and the Board took no action on her contention. At the end of the 1977-78 school year, Petitioner was not recommended for continued employment by the Superintendent.

   This was so, despite the favorable recommendation of her principal. Petitioner, at all times subsequent to the end of the 1977-78 school year, has been refused further employment by the Respondent.

   
   

5. The Petitioner has made efforts to obtain employment during the interim; however, her interim earnings have been minimal. Since her separation from the Liberty County School Board, the Petitioner has been ready, willing and able to work.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

7. The parties were duly noticed pursuant to the notice pro visions of Chapter 120, Florida Statutes.

   
   

8. The authority of the Respondent is derived from Chapter 231, Florida Statutes.

   
   

9. Florida Statutes 231.36 (3)(a) set forth the requirements for a person to attain a continuing contract. The four criteria are as follows:

   
   

   1. The employee must possess a valid teaching certificate, F.S. 231.36(3)(a).

   2. The employee must have completed three years of continuous service in the district. (Chapter 231.36(3)(a)(2).)

   3. The employee must be reappointed to a fourth year of service. (Chapter 231.36(3)(a)(3), F.S.)

   4. The employee must be recommended by the Superintendent for continuing

      contract. (Chapter 231.36(3)(a)(4), F.S.)

10. The Petitioner, at the time of the hearing held a valid Rank II teaching certificate. At all tires relevant to these proceedings, the Petitioner held at least a Rank III certificate. As discussed above, the Petitioner was employed continuously for three years pursuant to annual contracts in the Respondent School District prior to being appointed to the fourth year of service. It is undisputed that the Petitioner was reappointed for the fourth year of employment. In this instance, the fourth year was the 1974-75 school year. Petitioner was recommended for a fourth year of employment and the School Board acted favorably upon the recommendation. (Petitioner's Exhibit No. 1.)

    
    

11. Finally, the Petitioner established that she was recommended for and appointed to a continuing contract for the 1974-75 school year, her fourth year of employment. Additional corroboration of her claim that she was awarded continuing contract rather than annual contract for the 1974-75 school year is found in Petitioner's Exhibit No. 7. It is a letter in which the Petitioner's principal confirmed Petitioner's assertion that she indeed possessed continuing contract status. In view thereof, and in the absence of the Respondent's failure to controvert the Petitioner's testimony that she had been appointed to continuing contract beginning in the 1974-75 -school year, the Petitioner was statutorily guaranteed continuing employment.

    
    

12. Subsection 231.36(3)(e), Florida Statutes, provides in pertinent part as follows:

    
    

    "Each person to whom a continuing contract has been issued as provided herein shall be entitled to continue in [her] position or in a similar position in a district at the salary schedule authorized by the School Board without the necessity for annual appointment or reappointment until such person resigns, or [her] contractual status is changed "

    
    

13. An examination of the procedures relating to the termination of a continuing contract discloses that none of them were employed to the instant Petitioner's employment relationship. Thus, there was no discontinuation of the position and, although she requested an additional year of leave, she did not resign. In this regard, the Petitioner's testimony is unrefuted that she never evidenced a desire to resign. Furthermore, the school Board never took any action on any putative resignation. That being so, it cannot be concluded that the Petitioner resigned. In Hart v. school Board of Wakulla County, 340 So.2d (1st DCA 1976), the Court stated, "A teacher, having tendered a written resignation to his principal or superintendent, may regard it as ineffective or at least voidable until it is accepted by the Board with which [her] contract exists". The evidence herein does not support the allegations by Respondent that the Petitioner resigned. The Petitioner's contractual status did not change inasmuch as she never signed a fourth-year waiver as contemplated by Florida Statutes 231.36 (3)(c), nor did the Superintendent give any reasons for holding the Petitioner on a fourth annual contract as specified in Florida Statutes 231.36(4). This being the status of this case, the undersigned concludes that the Petitioner, having fulfilled the statutory qualifications entitling her to the issuance of a continuing contract, is thereby entitled to be paid the salary for the position for which her contract had been issued. See Burns v. School Board of Palm Beach County, 283 So.2d 873 (4th DCA 1973).

14. Accordingly, I shall recommend that the Petitioner is entitled to reinstatement pursuant to continuing contract and back pay in an amount sufficient to make her whole for earnings she would have earned pursuant to contract, less interim earnings, plus interest.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is hereby,

RECOMMENDED:

That the Respondent, School Board of Liberty County, make the Petitioner whole for wages including her loss of pay during the 1975-76 school year, her pay from the start of the 1976-77 school year through November 16, 1976, when she was reassigned to her teaching position, her pay from the start of the 1978-

79 school year through the date of her reinstatement, as well as the expenses incurred by the Petitioner as a direct and approximate result of the Respondent's actions.

RECOMMENDED this 30th day of April, 1979, in Tallahassee, Florida.

JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

ENDNOTES

1/ As stated, the Petitioner contends that her fourth year of employment with the Respondent was pursuant to a continuing contract of employment. In this regard, the Petitioner's testimony is unrefuted and is further corroborated by Petitioner's Exhibit No. 7. (See Petitioner's Exhibits 1 and 7.)

2/ In this regard, testimony elicited during the course of the hearing reveals that the usual procedure for the signing of contracts was that contracts were not prepared, tendered and executed by the parties for the school year until approximately three or four months following the beginning of the school year.

COPIES FURNISHED:

Donald G. Meyer, Esquire Office of General Counsel FTP-NEA

213 South Adams Street Tallahassee, Florida 32301

James C. Conner, Jr., Esquire

325 John Knox Road Suite 106, Building F

Tallahassee, Florida 32303

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA BEFORE THE SCHOOL BOARD OF

LIBERTY COUNTY, FLORIDA

VICKI GAINEY,

Petitioner,

vs. CASE NO. 78-1185

SCHOOL BOARD OF LIBERTY

Respondent.

/

ORDER

This cause came before the School Board of Liberty County, Florida on the seventh day of July, 1979, for the purpose of considering the Recommended Order of the Hearing Officer from the State of Florida Division of Administrative Hearings. The Petitioner and Respondent were present and were represented by counsel. Additionally, independent counsel was appointed by the School Board of Liberty County, Florida to advise the Board of its rights and obligations under the Administrative Procedures Act.

After making a review of the complete record and hearing comments from counsel, and after a proper motion and second to the motion, the School Board of Liberty County voted by a majority to find that the findings of fact by the Hearing Officer were not based on competent substantial evidence; were clearly erroneous; and further found that the Hearing Officer misconceived the legal effect of the evidence. In addition, the School Board finds that it has special insight into the facts of this case and that policy considerations are involved for which the agency has special responsibility.

Specifically, the School Board finds that the Hearing Officer erred as follows:

1. The Hearing Officer failed to consider that even if the Petitioner was found to have a continuing contract, she would be estopped from claiming such because of her actions during the summer of 1975 and subsequent years and by the fact that she has waived any rights she might otherwise have had by abandoning her teaching position by removing herself from the State of Florida and by other actions subsequent to the school years 1973-74.

   
   

2. There is no evidence in the record to support the finding that the Superintendent of Schools, John Fairchild recommended the Petitioner, Vicki Gainey, to continuing contract status. The Petitioner testified on direct that the Superintendent had recommended her for a continuing contract. On cross-

   examination, the Petitioner admits that her only indication came from the principal that she did not know of her own knowledge what action the Superintendent or the Board had taken, if any. The Superintendent's recommendation is essential for a teacher to be placed on continuing contract. 231.36(3)(a), Fla. Stat. (Supp. 1970). Findings of Fact may not be based on hearsay evidence. Franklin v. District School Board of Hendry County, 356 So.2d 931 (Fla. 2nd DCA 1978). Poirier v. Division of Health, State, Etc., 351 So.2d 50 (Fla. 1st DCA 1977).

   
   

3. There is no evidence in the record to support the finding that the School Board of Liberty County ever acted on a recommendation from the Superintendent, if a recommendation had been received. The minutes of the meeting at which the School Board of Liberty County hired the Petitioner for the 1974-75 school year do not reflect ether the contract status was annual or continuing.

   
   

4. The Hearing Examiner failed to consider that the Petitioner executed an annual contract for the remainder of the 1976-77 school year. The Hearing Examiner further failed to consider Paragraph 9 of said contract, a copy of said contract being attached as Exhibit "A". The Petitioner executed the contract freely and voluntarily and thus waived any rights she might have against the School Board of Liberty County.

   
   

5. The Hearing Examiner failed to consider Respondent's Exhibit #2, attached hereto as Exhibit "B", which is a request from the Petitioner dated October 27, 1976, for consideration for a job in Liberty County. The letter makes no mention of a continuing contract and is nothing further than an inquiry as to whether or not a teaching position was available, thus tending to show that Petitioner had abandoned any continuing contract rights she might have had.

   
   

6. The Hearing Examiner failed to consider the fact that by the Petitioner's actions of relinquishing her teaching position and moving from the State of Florida, that Petitioner waived or relinquished any right to a continuing contract and further is estopped to claim any right to a continuing contract. To hold otherwise would allow any teacher to terminate teaching without submitting a formal resignation and subsequently, some years later, request a position because they were on a continuing contract.

   
   

7. The Hearing Examiner failed to consider that the Petitioner was not terminated by the Board in the summer of 1975, but her only communication was with the principal. Petitioner did not report for work in the fall of 1975, and therefore, abandoned her right to a continuing contract. The Board is the only body qualified to accept a resignation and the Board did not do so in this matter. Hart v. School Board of Wakulla County, 340 So.2d 12)(Fla. 1st DCA 1976).

   
   

8. The Hearing Examiner failed to consider the fact that the Petitioner did not request a continuing contract from the Board until December, 1977, more than three years after the Petitioner last taught in the Liberty County school system. Petitioner therefore waived any rights she might have had to a continuing contract.

In accordance with the above findings of fact and conclusions of law, it is Ordered and Adjudged that

A. The Hearing Officer's Recommended Order is rejected in full as follows:

1. The Petitioner is not entitled to reinstatement pursuant to continuing contract and back pay in an amount sufficient to make her whole for earnings she would have earned pursuant to contract, less interim earnings, plus interest.

   
   

2. The Petitioner is not entitled to wages including her loss of pay during the 1975-76 school year; her pay from the start of the 1976-77 school year through November 16, 1976, when she was reassigned to her teaching position; and her pay from the start of the 1978-79 school year through the date of her reinstatement.

   
   

3. The Petitioner is not entitled to expenses incurred by the Petitioner as a direct and proximate result of the Respondent's actions.

DONE AND ORDERED this 17th day of August, 1979 in Bristol, Liberty County, Florida.

WILLIAM POTTER, as Chairman of the School Board of Liberty County, Florida.

LAQUITA "SKEET" SHULER

Superintendent of Schools

COPIES FURNISHED:

Ronald G. Meyer, Esquire Office of General Counsel FTP-NEA

213 South Adams Street Tallahassee, Florida 32301

James C. Conner, Jr., Esquire

325 John Knox Road, Suite 106 Building F

Tallahassee, Florida 32303

James C. Massie, Esquire LaCapra & Massie

Post Office Box 10137

Suite 712, Barnett Bank Building Tallahassee, Florida 32302

Docket for Case No: 78-001185

Orders for Case No: 78-001185