STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GENE A. STARR, )

)

Petitioner, )

)

vs. ) CASE NO. 88-4116

) SCHOOL BOARD OF HAMILTON ) COUNTY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written notice a formal hearing was held in this case before Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings, on March 8, 1989, in Jasper, Florida.

APPEARANCES

For Petitioner: Edwin B. Browning, Jr., Esquire

Post Office Drawer 652 Madison, Florida 32340

For Respondent: Donald Rudser, Esquire

Post Office Drawer 151 Jasper, Florida 32052

INTRODUCTION

The Superintendent of Hamilton County Schools recommended that the Respondent, the School Board of Hamilton County, enter into a professional services contract with the Petitioner, Gene A. Starr. This recommendation was withdrawn by the Superintendent after the Respondent failed to accept it. By letter dated May 31, 1988, the Respondent notified Mr. Starr that he was being reappointed to an instructional position for the 1988-1989 school year under an annual contract. Mr. Starr filed a Petition for Formal Hearing challenging the Respondent's actions. The Petition for Formal Hearing was filed with the Division of Administrative Hearings on August 24, 1988.

At the formal hearing the parties offered six exhibits. The exhibits were marked as Joint Exhibits and were accepted into evidence. Neither party called any witnesses.

Mr. Starr has filed a proposed recommended order containing proposed findings of fact. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order or the proposed finding of fact has been accepted or rejected in the Appendix which is attached hereto.

ISSUE

Whether the Superintendent of Hamilton County Schools recommended that the Respondent enter into a professional services contract with the Petitioner, Gene

1. Starr?

   
   

   FINDINGS OF FACT

   
   

   1. Gene A. Starr has been continuously employed by the School Board of Hamilton County as an agriculture teacher since the 1985-1986 school year.

      
      

   2. On March 18, 1988, the principal of Hamilton County High School recommended to the Superintendent of the Respondent that the Respondent enter into a professional service contract with Mr. Starr.

      
      

   3. At a meeting of the Respondent held on April 12, 1988, the Superintendent made recommendations to the Respondent concerning reappointment of a number of employees. The Superintendent specifically recommended that Mr. Starr receive a professional service contract.

      
      

   4. A motion was made and seconded by members of the Respondent to accept the recommendations of the Superintendent.

      
      

   5. The following events took place, as reported in the minutes of the Respondent's April 12, 1988, meeting:

      
      

      At the Board's request, Mr. Lauer [the Superintendent] appeared to discuss the recommendation of Gene Starr. The consensus of the Board was that the agriculture program has not progressed as per expectations, and that Mr.

      Starr's coaching duties conflict with his duties as an agriculture teacher. It was the opinion of some members that there should be more emphasis on crop production and harvesting and on supervision of home projects.

      
      

   6. Following the discussion of the Superintendent's recommendation concerning Mr. Starr, the Superintendent "asked for and was granted permission to withdraw his recommendation on & Mr. Starr and to resubmit another recommendation on him at a subsequent meeting." The Superintendent then "amended his recommendation to omit Mr. Starr" and the motion to accept the Superintendent's recommendations was amended to reflect this change. The Respondent then approved the Superintendent's recommendations, as amended.

      
      

   7. The Respondent did not consider whether there was "good cause" to reject the Superintendent's recommendation concerning Mr. Starr.

      
      

   8. At a May 10, 1988, meeting of the Respondent the Superintendent recommended that Mr. Starr be reappointed to an instructional position for the 1988-1989 school year and that Mr. Starr serve in the instructional position for a fourth year on annual contract instead of being granted a professional services contract. The recommendation was withdrawn on advice of counsel for the Respondent.

   9. At a May 23, 1988, meeting of the Respondent Mr. Starr and the Respondent agreed that Mr. Starr would agree to a fourth year on annual contract, "subject to and without prejudice to a formal hearing on his right to a professional services contract." Mr. Starr was informed of this action in a letter dated May 31, 1988.

      
      

   10. Mr. Starr filed a Petition for a Formal Hearing challenging the Respondent's action with regard to the Superintendent's recommendation to the Respondent that Mr. Starr receive a professional services contract. In the Petition, Mr. Starr specifically requested the following relief:

       
       

       1. That the matter be assigned to the State of Florida Division of Administrative hearings [sic] for the assignment of a hearing officer.

       2. That a formal hearing be held on this particular petition pursuant to Sec. 120.57(1), Fla. Stat. as to Petitioner's entitlement to employment under a professional services contract.

          
          

          CONCLUSIONS OF LAW

          
          

   11. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1987).

       
       

   12. Section 230.33(7), Florida Statutes, directs the superintendent of schools to select and submit nominations and recommendations concerning employment of school personnel to the school board.

       
       

   13. Section 230.23, Florida Statutes, sets out the powers and duties of school boards in Florida. Pertinent to this proceeding is a school board's authority with regard to the appointment of employees to a professional service contract. That authority is provided in Section 230.23(5)(a), Florida Statutes:

       
       

       1. PERSONNEL. -- Designate positions to be filled, prescribe qualifications for those positions, and provide for the appointment, compensation, promotion, suspension, and dismissal of employees as follows, subject to the requirements of chapter 231:

          1. Positions, qualifications, and appointments. -- Act upon written recommendations submitted by the superintendent for positions to be filled and for minimum qualifications for personnel for the various positions and act upon written nominations of persons to fill such positions. The school board may reject for good cause any employee nominated... [Emphasis added].

       
       

   14. In this case, the evidence established that the Superintendent of Hamilton County Schools, consistent with the directions of Section 230.33(7),

       Florida Statutes, recommended that Mr. Starr be employed pursuant to a professional services contract at a meeting of the Respondent conducted on April 12, 1988. A motion was made and seconded to accept the recommendation of the Superintendent. Following a discussion of the recommendation concerning Mr.

       Starr, the Superintendent withdrew the recommendation when members of the Respondent expressed reservations about the recommendation. Although the Respondent did not "vote" on the motion, the practical effect of the Respondent's action was to reject the recommendation. This action and the action of the Superintendent in withdrawing his recommendation of Mr. Starr were contrary the requirements of Section 230.23(5)(a), Florida Statutes.

       
       

   15. In interpreting Section 230.23(5)(a), Florida Statutes, the courts have held that school boards have the right to reject personnel recommendations from a superintendent only upon a showing of "good cause." See Jones v. Board of Public Instruction of Charlotte County, 67 So.2d 320 (Fla. 1953); Spurlin v. School Board of Sarasota County, 520 So.2d 294 (Fla. 2d DCA 1988); and Gainey v. School Board of Liberty County, 387 So.2d 1023 (Fla. 1st DCA 1980). Closer on point to the facts in this case, the court in Von Stephens v. School Board of Sarasota County, 338 So.2d 890 (Fla. 2d DCA 1976), stated the following:

       
       

       A superintendent of course exercises his discretion in selecting and nominating school personnel. The Superintendent exercised this discretionary duty by submitting appellant's name to the Board. It is clear to us that the interest of appellant was created and his right to due process vested at that time. Hence when the Board rejected the nomination appellant was entitled to a hearing to determine whether the Board acted according to the statutory requirement of good cause and was entitled to seek review of the action by the appropriate appellate procedure if necessary. To

       sanction the Superintendent's withdrawal of the nomination after appellant initiated legal proceedings would extinguish a nominee's right to due process safeguards of his interest and circumvent the statutory scheme provided by the legislature designated to afford due process. Under these somewhat peculiar facts, that is withdrawal of the nomination after the Board rejected it and refused to conduct a hearing and after appellant filed suit, the Superintendent could not withdraw his nomination without a showing a good cause for the reasons explained above.

       Moreover because the requirements of due process attach to a nominee's interest in his appointment upon nomination by the superintendent it reasonably follows that good cause must be shown for withdrawal of that nomination. The

       school code does not provide for withdrawal of a superintendent's nomination once submitted to the school board. However until the board appoints the nominee the nominee does not have an irrevocable right to the nomination, and the nomination may be withdrawn for good cause. [Emphasis added].

       
       

   16. Based upon the court's decision in Von Stephens, once the Superintendent of Hamilton County Schools made his recommendation concerning Mr. Starr to the Respondent on April 12, 1988, a property right was established in Mr. Starr; "an implied contract arises between the school board and the nominee." Because of the due process rights which attached to Mr. Starr's interest in his appointment, once the recommendation was made it could be withdrawn only upon a showing of good cause for the withdrawal. No such showing was made in this case. The withdrawal of the recommendation was, therefore, improper.

       
       

   17. In Von Stephens, the court remanded the case to the circuit court for the conduct of a hearing to determine "whether the Superintendent had good cause to withdraw his recommendation of appellant." The court noted that, if it was found that withdrawal of the recommendation was not supported by good cause, "the circuit court must then direct the Board to conduct a hearing to determine if there is good cause to reject the Superintendent's recommendation of appellant." There is no dispute in this case that the Superintendent did not have good cause to withdraw his recommendation. There was, however, no determination by the Respondent as to whether good cause existed to reject the recommendation. That issue was not, therefore, properly before this Hearing Officer for consideration.

       
       

   18. Mr. Starr argued that the Respondent should have proceeded to present evidence to show good cause for not accepting the Superintendent's recommendation at the formal hearing and that Mr. Starr is entitled to a professional service contract because of the failure of the Respondent to prove good cause. Formal administrative hearings conducted pursuant to Section 120.57(1), Florida Statutes, such as the one conducted in this case, "apply in all proceedings in which the substantial interests of a party are determined by the agency ..." The only determination which has been made by an agency [the Respondent] in this case is the Respondent's determination that the Superintendent effectively withdrew his recommendation that Mr. Starr be awarded a professional service contract. This is the only determination subject to review in this proceeding.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the recommendation of the Superintendent of Hamilton

County Schools be accepted by the School Board of Hamilton County unless the

School Board of Hamilton County concludes that there is good cause for rejecting the recommendation.

DONE and ENTERED this 18th day of April, 1989, in Tallahassee, Florida.

LARRY J. SARTIN

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 18th day of April, 1989.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-4116

The Petitioner has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted.

The Petitioner's Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection

1 1.

2 3-9.

3 10.

4-8 Statement of events which occurred at the formal hearing and some of the arguments advanced by the parties at the formal hearing.

COPIES FURNISHED:

Edwin B. Browning, Jr., Esquire Post Office Drawer 652

Madison, Florida 32340

Donald K. Rudser, Esquire Post Office Drawer 151 Jasper, Florida 32052

Owen Hinton, Superintendent Hamilton County School Board Post Office Box 1059

Jasper, Florida 32052

Honorable Betty Castor Commissioner of Education The Capitol

Tallahassee, Florida 32399-0400

Docket for Case No: 88-004116

Orders for Case No: 88-004116