STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF SARASOTA )

COUNTY, FLORIDA, )

)

Petitioner, )

)

vs. ) CASE NO. 80-1243

)

CHARLES LATIMER, )

)

Respondent. )

)

RECOMMENDED ORDER

On June 10, 1980, Superintendent Gene Pillot recommended to the petitioner School Board of Sarasota County that respondent Charles Latimer, a tenured teacher, be terminated on the basis of incompetency. Respondent requested an administrative hearing before a Hearing Officer with the Division of Administrative Hearings, and the undersigned was duly designated to conduct the hearing. Pursuant to notice dated July 25, 1980, and amended as to the location of the hearing on August 13, 1980, the hearing was commenced on September 24, continued on September 25 and 26, 1980, and was thereafter continued until February 4, 1981.

On October 20, 1980, during the continuance period, the School Board of Sarasota County and Superintendent James H. Fox, Jr. entered into and executed a settlement agreement with respondent Charles Latimer and the Sarasota County Teachers Association. Among the terms of the Settlement Agreement, respondent Latimer agreed to voluntarily resign his continuing contract dated May 25, 1965. Respondent did voluntarily resign by letter dated October 20, 1980, and the petitioner School Board accepted respondent's resignation. It was further agreed that respondent would be employed by the School Board pursuant to an annual contract in a non-teaching position and respondent is now so employed.

The Settlement Agreement also contains language relating to the administrative hearing already in progress. It appears from such language that the parties signing the Agreement contemplated that the hearing would "continue hereafter to conclusion." The fifth paragraph of the Agreement provides that

"Latimer waives any right to reinstatement of his continuing contract

dated May 25, 1965, now existing or hereafter arising under Florida Law, and to reinstatement to any classroom

instructional position, and to any backpay that will or could result from any recommendation, conclusion or finding of the hearing officer, in DOAH Case No.

80-1243, or by order of any court of law, whether the hearing officer determines that he has, or has not, been shown to

be incompetent within the meaning of

Florida Statutes, Section 231.36(6). If Latimer is found to be competent,

the superintendent shall determine, in his sole discretion, whether to recommend that Latimer be returned to any teaching position."

The Agreement also contains provisions which purport to resolve a dispute between the School Board and the Sarasota County Teachers Association.

As noted above, the administrative hearing which commenced on September 24 through 26, 1980, was scheduled to continue on February 4, 1981. At the beginning of this session, respondent Latimer's counsel moved to immediately conclude the hearing, contending that, in light of the Settlement Agreement, there were no longer any material facts in dispute or issue since respondent Latimer had resigned from his continuing contract. The petitioner School Board opposed the motion to conclude the hearing on the grounds that failure to proceed could render the Settlement Agreement void, that resolving the issue of Latimer's incompetency is in the public interest and is necessary to apprise future administrators of the school system and that respondent's resignation has no impact upon the findings of fact, but only upon the conclusions of law or the ultimate recommendation. Counsel for the parties have filed with the undersigned memoranda of law In support of their respective positions.

The undersigned has fully considered the positions of the parties on this issue as well as the Settlement Agreement. It is concluded that the "Motion to Conclude the Hearing" should be GRANTED, there no longer being any issue to resolve between the parties. From the beginning, the issue for determination in this proceeding was whether respondent Latimer should be terminated from his continuing contract with the School Board on the grounds of incompetency. The ultimate fact or finding of competency or incompetency is only relevant in connection with the respondent's continuing contract. That contract having been terminated by respondent Latimer's resignation, there are no longer any issues of material fact for resolution between these parties. Section 120.57(1), Florida Statutes, does not contemplate hearings for the purpose of making factual findings or conclusions where there is no present dispute between the parties. Respondent having voluntarily resigned from his continuing contract with the School Board, and the School Board having accepted such resignation, neither party has a "substantial interest" being "determined by an agency as required in Florida Statutes, Section 120.57 proceedings. There is no longer any determination to be made in this proceeding. A Recommended Order entered by the Hearing Officer on the sole issue of respondent's competency or incompetency, unrelated to the continuation of a contract or other interests of either the respondent teacher or the School Board, could only be utilized for advisory purposes concerning future events which may or may not occur. Such is not the purpose of a proceeding conducted pursuant to Florida Statutes, Section 120.57, which is entitled "Decisions which affect substantial interests," nor is it the function of Hearing Officers with the Division of Administrative Hearings to render advisory opinions to an agency without a pending dispute between parties.

Inasmuch as the parties to the settlement Agreement did seem to contemplate that a Recommended Order on the issue of competency would be issued by the undersigned Hearing Officer, a procedure and act held herein not to be authorized or contemplated by the Administrative Procedure Act, the parties should be given the opportunity to mutually and voluntarily dissolve the Settlement Agreement with both parties in this proceeding returning to the status they occupied prior to the execution of said Agreement.

Therefore, is is RECOMMENDED that the respondent's motion to conclude the hearing be GRANTED, and that this proceeding be DISMISSED, without prejudice to petitioner and respondent to mutually and voluntarily dissolve the Settlement Agreement executed on October 20, 1980, within twenty (20) days from the date of this Recommended Order. Should the parties fail to mutually dissolve the Settlement Agreement within said twenty-day period, it is RECOMMENDED that this proceeding be dismissed with prejudice.

Respectfully submitted and entered this 18th day of March, 1981, in Tallahassee, Florida.

DIANE D. TREMOR

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 18th day of March, 1981.

COPIES FURNISHED:

Daniel Kunkel, Esquire Kreitzman and Mortensen 3830 Bee Ridge Road Sarasota, Florida 33583

C. Anthony Cleveland, Esquire General Counsel, FEA/United

208 West Pensacola Street Tallahassee, Florida 32304

Charles L. Latimer 3110 - 61st Street

Sarasota, Florida 33580

Honorable James H. Fox, Jr. Superintendent, School Board of

Sarasota County 2418 Hatton Street

Sarasota, Florida 33577

Docket for Case No: 80-001243

Orders for Case No: 80-001243