STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CORNELIUS B. FRANKLIN, )

)

Petitioner, )

)

vs. ) CASE NO. 89-2007

) THE SCHOOL BOARD OF SEMINOLE ) COUNTY, FLORIDA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above-styled matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Daniel M. Kilbride, on August 18, 1989 in Sanford, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: John D. Carlson, Esquire

Gatlin, Woods, Carlson and Cowdery 1709-D Mahan Drive

Tallahassee, Florida 32308

For Respondent: Ned N. Julian, Jr., Esquire

Stenstrom, McIntosh, Julian, Colbert, Whighain, and Sions, P.A.

200 West First Street, Suite 22 Sanford, Florida 32772-1330

STATEMENT OF THE ISSUES

Whether the employment of Petitioner, Cornelius B. Frankliln, was improperly terminated by Respondent, The School Board of Seminole County, in the summer of 1988.

PRELIMINARY STATEMENT

On March 13, 1989, Petitioner filed before the School Board of Seminole County a petition for administrative hearing and affirmative relief seeking reinstatement as a teacher or Assistant Principal II and other relief. On the same date, Petitioner filed with the School Board a motion for appointment of a hearing officer assigned by the Division of Administrative Hearings to hear and preside over the formal hearing in this matter. On April 13, 1989, Respondent agreed to accept the petition and filed its answer thereto and requested the assignment of a Hearing Officer from the Division to hear the case. Thereafter a hearing officer was assigned, and following the completion of discovery the formal hearing followed.

Petitioner offered the testimony of three witnesses, testified on his own behalf, and offered 20 exhibits in evidence. Respondent offered two witnesses and called Petitioner as an adverse witness, and presented 209 exhibits in evidence. The transcript of the proceedings was filed on September, 25, 1989. Respondent filed its Proposed Findings of Fact on October 6, 1989. Petitioner filed his proposed findings on October 20, 1989, after seeking and receiving an order granting an extension of time. Each parties' proposals are addressed in the Appendix attached hereto.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. Petitioner, C.B. Franklin, began service with the School Board of Seminole County in the position of teacher in the 1951-52 academic year. In 1955, Petitioner was awarded a continuing contract of employment by Respondent in the position of teacher. Said continuing contract was in effect at all times relevant hereto.

   
   

2. Petitioner was last employed by the School Board of Seminole County, Florida, as an Assistant Principal II at Sanford Middle School on an annual contract of employment, which terminated of June 10, 1989.

   
   

3. During his employment at Sanford Middle School as an assistant principal from 1980 through 1988, Petitioner received satisfactory annual evaluations.

   
   

4. In March, 1988, Owen McCarron, Assistant Superintendent, applied a "staffing formula" for each school in Seminole County. The staffing formula is not a school board rule but is a formula that the school board approves based upon student population to determine the number of teachers, secretaries, assistant principals, and others needed at each specific school. Mr. McCarron is responsible for the application of the formula. The application of the formula is not submitted to the school board for approval. Mr. McCarron made a mistake in the preparation of the staffing formula for 1988/89. The mistake made was that the number of assistant principals for Sanford Middle School would be reduced from two to one.

   
   

5. Having been informed of a reduction, Dan Pelham, Principal, Sanford Middle School, determined that he would have to choose among the Assistant Principal II's employed and decided not to recommend the continued employment of Petitioner.

   
   

6. Owen McCarron discovered the mistake and notified Dan Pelham, sometime in late March, 1989. However, Dan Pelham chose not to recommend the continued employment of Petitioner but rather to advertise the position as being vacant. When Mr. Pelham was notified the position was reinstated he considered it to be an "opportunity" to consider alternative persons for the position. Mr. Pelham's decision was based on Petitioner's performance as reflected by his annual evaluations and faculty input.

   
   

7. Mr. Pelham held a conference with Petitioner on April 8, 1988, and Petitioner was advised that his contract as an assistant principal at Sanford Middle School would not be renewed for the school year 1988-89, because the School Board had reduced the number of assistant principal positions at Sanford Middle School from two (2) positions to one (1).

8. Petitioner was offered a teaching position, under his continuing contract status, at Sanford Middle School as a peer counselor.

   
   

9. The Respondent did not act to approve the reduction in positions, nor was the Respondent notified that Petitioner was not being recommended for reemployment. The School Board does not have a rule to govern how the decision is to be made upon a reduction in staff.

   
   

10. At the time of the hearing and at all relevant times prior thereto, Petitioner held a valid Florida Department of Education certification in the teaching fields of health education, physical education and supervision and administration.

    
    

11. On or about June 9, 1989, one day prior to the expiration of Petitioner's contract as Assistant Principal II, the Petitioner met with Dan Pelham and John Reichert, Director of Personnel. At that time, Petitioner was again advised by Mr. Pelham that he had not changed his decision not to renew Petitioner as an assistant principal, even though he had been advised that the position had been restored. The Petitioner was advised that he could apply for the vacant Assistant Principal II position but he would have to submit an application and a resume. The Petitioner responded that Dan Pelham was well aware of his qualifications, and that a copy of his resume was on file. At that time, Mr. Pelham offered Petitioner the peer counselor position, but salary was not discussed. Petitioner was given copies of documents containing the job information for the position of peer counselor. The position had not previously existed and had not been advertised. Petitioner was reassured that he had employment with the School Board as a teacher under his continuing contract status. At the same meeting, Mr. Reichert advised Petitioner to accept the teaching position, and at the same time apply for the assistant principal vacancy at Sanford Middle School.

    
    

12. Petitioner applied for state retirement on June 27, 1988, and his retirement was accepted by the School Board of Seminole County thereafter, on July 13, 1988.

    
    

13. Prior to the time Petitioner submitted his application for retirement, he was verbally offered a teaching position under his continuing contract status for the 1988-89 school year at Sanford Middle School.

    
    

14. Petitioner is an experienced school administrator, holds a master's degree in [school] administration and supervision from Rollins College, in Winter Park, Florida. As a component of his master's degree requirement he had instruction in school law.

    
    

15. Petitioner was aware that his employment as an assistant principal was on the basis of an annual contract of employment and that the position was not entitled to continuing contract status.

    
    

16. Petitioner did not apply for the position of Assistant Principal II (secondary) at Sanford Middle School, after it was declared vacant and advertised (in the Spring of 1988), even though he was told that he would be considered for reappointment to the position if he did.

17. Petitioner was aware that if he accepted the offered position of peer counselor his pay would resume in the Fall of 1988, along with all of the other teachers, and that he would be paid at the top of the teaching salary scale on the basis of his thirty (30) plus years of service.

    
    

18. Petitioner did not respond, verbally or in writing, to the offered position of peer counselor subsequent to its offer and prior to his retirement.

    
    

19. Mr. L. David Pelham, the principal of Sanford Middle School, was not obligated to reappoint Petitioner to the position of assistant principal, after June 10, 1988. However, Petitioner was entiled to a performance assessment prior to that date.

    
    

20. Mr. Pelham recognized that Petitioner held continuing contract status and was entitled to be placed in a teaching position at Sanford Middle School for the 1988-89 school year and thereafter.

    
    

21. Petitioner never discussed his decision to retire with Mr. Reichert or Mr. Pelham. Neither person had any communications with Petitioner after the June 9, 1988 meeting.

    
    

22. Petitioner's annual contract of employment clearly put him on notice that neither he nor the school board owed the other any further contractual obligation after June 9, 1988 and that he had no expectancy of employment as an assistant principal after June 10, 1988.

    
    

    CONCLUSIONS OF LAW

    
    

23. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceedings, and the parties thereto, pursuant to Subsection 120.57(1), Florida Statutes.

    
    

24. Petitioner advocates a thesis that because he was not renewed as an assistant principal at Sanford Middle School under the circumstances articulated and then retired because he was upset over the way he was treated by Mr. Pelham, the principal; and that he should be awarded a teaching position with the school board until his current teaching certificate expires.

    
    

25. Upon the facts of the case and the law of Florida, the Petitioner's thesis is rejected and his requested relief denied. Petitioner argues that he was entitled to warning and an opportunity to correct any deficiencies in his performance prior to the non-renewal of his contract, relying on Section 231.29, Florida Statutes and Wilgenstein vs. School Board of Leon County, 347 So.2d 1069 (Fla. 1st DCA 1977) and others. His reliance overlooks an important factor. Petitioner's right to employment as a teacher for the school year 1988-1989 was not denied, although his termination as an assistant principal did not comport with the provisions of Section 231.29, Florida Statutes. However, the Petitioner waived his remedies under Section 231.36, Florida Statutes, when he retired.

    
    

26. Mr. Franklin's contract of employment as an assistant principal was an annual contract of employment. It set forth a clear term of employment, from August 12, 1987 to June 10, 1988. Mr. Franklin's contract clearly stated:

    
    

    It is expressly understood and agreed by and between the parties hereto that neither the employee nor the school board owes any

    further contractual obligation to the other after June 10, 1988, and that no expectancy of reemployment may be derived from the execution or performance of this agreement.

    
    

    It is clear that Mr. Franklin did not have a property interest in continued employment as an assistant principal at Sanford Middle School. It is also clear that Mr. Pelham advised Mr. Franklin on two separate occasions, April 8, 1988 and June 9, 1988, that he would not be reappointed to the position of assistant principal, but that he could reapply for the vacancy.

    
    

27. At the school level, the principal may submit personnel recommendations to the superintendent, who presents them to the School Board. Section 231.085, Florida Statutes. It is only when a contract is terminated in violation of Sections 231.36, 760.10, 112.042 or 112.043, Florida Statutes, or relevant provisions of federal law, that an administrative tribunal or court may intervene. In this case, no such violations are alleged.

    
    

28. Mr. Franklin was entitled as a matter of law to employment for the 1988-89 school year, as a teacher, under his continuing contract of employment. Section 231.36(3), Florida Statutes. He was offered that employment, but he choose not to accept it. Instead, he chose to retire. The act of retirement constituted a surrender of his continuing contract, as a matter of fact. As stated by the Attorney General in 1966 Op. Att'y Gen. Fla. 066-4 (January 25, 1966): "If the teacher ... resigns voluntarily and the termination ... resulted solely because of his personal preference in the absence of any coercion, duress or undue influence, direct or indirect ... [the teacher's] resignation terminates the continuing contract."

    
    

29. Duress is defined as an illegal or wrongful act of one party which by the force of the act compels the obedience of another. Norris v. Stewart, 350 So.2d 31 (Fla. 1st DCA 1977). For it to be said that Mr. Franklin's resignation/retirement was the produce of duress, it must be demonstrated that Mr. Pelham or Mr. Reichert did something that was illegal or wrongful and that the force of that action so affected Mr. Franklin, that he was robbed of his free will; and, therefore, that his resignation/retirement was a decision compelled by duress rather than the product of a voluntary decision on his part. It cannot be said that anything Mr. Pelham or Mr. Reichert did was illegal. But it is further clear that the standard is one of reasonableness as applied to the reaction of the average person, not the supersensitive. Marcelo v. Dept. of Labor & Employment Security, 453 So.2d 927, 929 (Fla. 2nd DCA 1984) and Moore v. Florida Unemployment Appeals Commission, 498 So.2d 993 (Fla. 1st DCA 1987). The record is devoid of any fraud, coercion or duress on the part of Mr. Pelham. On two occasions, Mr. Pelham articulated the basis for his decisions with Mr. Franklin about his employment as an assistant principal and made a reasonable effort to provide Mr. Franklin employment with the school board, as a teacher, under his continuing contract of employment. It cannot be said that the force of that action so affected Petitioner that he was robbed of his free will, and, therefore, did not retire voluntarily.

    
    

30. Further, the School Board was the employer and not the principal. If the Petitioner was not satisfied with the method of termination as an assistant principal or with the offer of the position of "peer counselor" for the ensuing school year, he had the option of proceeding through the grievance procedure, or the School Board via the Superintendent, prior to the acceptance of his application for service retirement by the School Board on July 13, 1988. Cf. Hart vs. School Board of Wakulla County, 340 So.2d 121 (Fla. 1st DCA 1976).

31. The issue is not whether Petitioner's contract as an assistant principal should have been renewed, but his request for reinstatement as a teacher on the basis that his resignation/retirement was the product of duress. Mr. Pelham's decision only resulted in Mr. Franklin's not being renewed as an assistant principal. Mr. Franklin's decision and act of retirement (and rejection of the offered employment as a teacher), under his continuing contract status, is the cause of his being placed on retirement status. By doing so, he gave up his rights to continued employment under his continuing contract. Hart, supra.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the affirmative relief sought by the Petitioner should be

DENIED. It is further

RECOMMENDED that each party should bear their own costs and attorneys fees. DONE AND ENTERED this 31st day of October, 1989, in Tallahassee, Leon

County, Florida.

DANIEL M. KILBRIDE

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 31st day of October, 1989.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-2007

The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties.

Petitioner's Findings of Fact

Paragraphs 1 (1st three sentences), 2, 3, 4 (1st sentence), 5, 6, 7, 8, 10 (except the last 2 sentences) - Accepted in substance.

Paragraphs 4 (2d sentence), 9,12 - Rejected as against the weight of the evidence.

Paragraph 11 (except sentence 2)-Rejected as subservient.

Respondents Findings of Fact

Paragraph 1 through 26 - Accepted in substance.

COPIES FURNISHED:

Robert E. Hughes Superintendent of Schools

c/o Seminole County School Board 1211 Melonville Avenue

Sanford, Florida 32771

John D. Carlson, Esquire Gatlin, Woods, Carlson & Cowdery 1709-D Mahan Drive

Tallahassee, Florida 32308

Ned N. Julian, Jr., Esquire Stenstrom, McIntosh, Julian, Colbert, Whigham & Simmons, P.A. Post Office Box 1330

Sanford, Florida 32772-1330

Sydney H. McKenzie General Counsel Department of Education The Capitol, PL-08

Tallahassee, Florida 32399-0400

Docket for Case No: 89-002007

Orders for Case No: 89-002007