STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES H. CASON, III, )

)

Petitioner, )

)

vs. ) CASE NO. 92-3395

) SCHOOL BOARD OF UNION COUNTY, )

)

Respondent. )

)

RECOMMENDED ORDER

Notice was provided and on June 29, 1992, a formal hearing was held in this case in accordance with Section 120.57(1), Florida Statutes. The hearing location was the School Board Administration Building, 55 Southwest 6th Street, Lake Butler, Florida. Charles C. Adams was the Hearing Officer.

APPEARANCES

For Petitioner: John D. Carlson, Esquire

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

Tallahassee, Florida 32308

For Respondent: Ronald G. Meyer, Esquire

Meyer and Brooks, P.A.

2522 Blair Stone Pines Drive Post Office Box 1547 Tallahassee, Florida 32302

STATEMENT OF ISSUES

This case addresses the issues of whether the school board had good cause for rejecting the nominations of persons to fill administrative employment positions in the school system. Petitioner as superintendent had recommended the appointments. In particular, the superintendent asked the school board to employ the nominees for a period of three years. The school board rejected that recommendation in favor of a one year appointment because it did not wish to obligate itself to a three year contract period believing that such an arrangement would be imprudent given what it believed to be a troubled economic climate for the school system. It also did not wish to obligate a future superintendent to work with the nominees for three years being convinced that the present superintendent who made the nominations would not seek reelection.

Additionally, this case concerns itself with the appropriate outcome beyond this point should good cause be shown for rejecting the nominations. See Section 230.23(5)(a), Florida Statutes.

PRELIMINARY STATEMENT

Following the May 21, 1992 decision by the school board to reject the nominations of the administrative personnel for a three year contract, on June 8, 1992, the superintendent petitioned for an administrative hearing. The school board requested the Division of Administrative Hearings to assign a Hearing Officer to conduct the hearing as a formal hearing to resolve factual disputes between the parties. The present Hearing Officer was assigned.

The hearing was scheduled for June 25, 1992, to be held over to the next day if needed. A motion was made to amend the hearing date to June 29, 1992, and that motion was granted.

The school board moved to dismiss the superintendent's petition. That motion was considered at the final hearing as reflected in the transcript of proceedings and denied. The companion motion to leave the record open to receive additional deposition evidence as made by the school board was deemed unnecessary by its sponsor, the school board's counsel having been satisfied that the hearing record sufficiently addressed the topic for which the deposition would have been taken.

The superintendent testified in his own behalf and presented the testimony of David Thomas Dose and Billy Ray Foister. Petitioner offered eleven exhibits. All were received with the exception of Exhibit No. 8 which was denied admission. It is proffered with this record. Respondent presented the testimony of the school board members Steve A. Saunders, Betty Emerick, W. S. Howard, Jr., Morris Dobbs and Regina Parrish. Two joint exhibits were admitted.

By agreement of the parties and the Hearing Officer, proposed recommended orders were filed on July 10, 1992. The fact finding in those proposals is addressed in an appendix to this recommended order.

FINDINGS OF FACT

1. On May 12, 1992, Petitioner, superintendent for the Union County Public School System nominated twelve employees for consideration for reemployment by the Respondent, School Board of Union County. Those nominees were and would be administrative employees. They were nominated for positions falling into two broad categories. The first category was that of professional administrative assistant to the superintendent in the positions of Deputy Superintendent, Assistant Superintendent for Finance, Assistant Superintendent for Instruction, Assistant Superintendent for Operations, Director of Student Services, Supervisor of Instruction and Director of Maintenance and Construction. The second category was that of Principals and Assistant Principals including the nomination of three principals and two assistant principals.

   
   

2. Unlike the circumstance in previous years the superintendent recommended that the administrative employees be given a three year contract which would be subject to annual review and renewal as addressed in Section 231.36(1)(b), Florida Statutes. The contrast is that the superintendent has traditionally nominated administrative employees for annual contracts. The sole exception to his practice during the 24 years of service as superintendent in the previous 28 years was provision of a three year contract for Billy Foister in 1975 as a principal. In the history of the school system described at the final hearing there was only one other occasion in which three year contracts were provided to administrative personnel. This was in 1978 under the

   administration of Superintendent McGill when Mr. Foister and a Ms. Riherd received three year contracts.

   
   

3. The recommendation for a three year contract for the administrative employees was unexpected. After discussion at its regular meeting of May 12, 1992 the school board tabled the nominations and requested its legal counsel to research the definition of "good cause" for rejecting the nominations found within Section 230.23(5)(a), Florida Statutes, before deciding its response to the nominations made by the superintendent.

   
   

4. On May 21, 1992, a special meeting was held by the school board at which time it rejected the nominations for appointment made by the superintendent. The reasons for rejecting the nominations concern the unanimous belief by the school board members that the decision to obligate school funds for an expanded period related to the administrative employees was an inappropriate choice in difficult economic times. Moreover, the school board was of the unanimous opinion that it would be an unwise decision in a circumstance in which the school board believed that the superintendent would not seek reelection in 1992 and the three year contract would unduly hinder the next school superintendent in choosing administrative employees to serve his or her administration.

   
   

5. In making its decision to reject the nominations the school board took no issue with the moral and professional standing of the nominees. Each nominee was offered as a candidate for the same duty functions as those nominees had previously performed in the school year 1991-92. In essence those functions would not change in the school years 1992-93, 1993-94 and 1994-95 under the nominations made by the superintendent. The school board was prepared to offer contracts to the nominees for the up coming school year 1992-93.

   
   

6. As David Thomas Dose, the Director of Finance for the school system described, the school board has been able to meet the salary schedule for its employees in the school year 1991-92. Likewise, he believes that the school board will be able to meet the salary schedule for the school year 1992-93. That salary schedule for 1992-93 has been passed by the board. Dose does not believe that the budget which he has prepared for the school year 1992-93 is in any jeopardy concerning the ability to honor the obligations set out in that

   budget. However, the budget for the school year 1992-93 does not contain salary increases based upon a decision made by the school board on May 12, 1992. That decision was recommended by the superintendent on information provided by the Director of Finance.

   
   

7. It is not to be unexpected that the Director of Finance had not met with the school board concerning the upcoming 1992-93 budget before it voted on the nominations. The budget was not due until mid-July, 1992. The Director of Finance would have made information available to the school board about the budget for 1992-93 had the school board requested such information in aid of its determination on the three year contract proposal by the superintendent for the administrative personnel described here.

   
   

8. The school board did not seek the assistance of the director of finance in any manner in determining that it would be inappropriate to offer three year contracts for the administrative personnel given the uncertain economic environment. Nonetheless, the school board had reason to be concerned about the fiscal propriety of three year contracts for the administrative personnel. As the school board's chief negotiator on their collective bargaining team describes it, financial circumstances for the school board were "tight" coming

   into the school year 1992-93 and the financial situation for the school year 1993-94 was described as "not good", referring to the economic climate for the school system in Union County. Even the superintendent acknowledges that there is a "tightening up process". In particular the school year 1991-92 saw three state cutbacks in revenues resulting in a reduction of the budget for the Union County School System and the superintendent was and is aware of that fact.

   
   

9. In view of the economic problems some employees who worked for the school system in 1991-92 were not reappointed for the school year 1992-93.

   
   

10. The school board had in February, 1992 of the school year 1991-92 voted an annualized raise of 5% for non-instructional personnel. That raise was not retroactive such that the non-instructional personnel would have received the benefit of a 5% raise for the full school year 1991-92; however, the raise carries forward at a 5% rate for the upcoming school year 1992-93.

    
    

11. The school board also appointed 15 teachers to professional service contracts in May, 1992, which is tantamount to a tenured or lifetime contractual arrangement.

    
    

12. The school board had a $400,000 working surplus at the time the Director of Finance completed the draft budget for the upcoming school year 1992-93.

    
    

13. Some adjustment to the benefit of the school board concerning fiscal policy occurred as a result of a mistake in the FTE count in the school year 1991-92 which will make more money available for the same number of students for the school year 1992-93. The Financial Director also made mention of the 6% increase in projected revenues for the state by the Estimating Conference in its most recent projection.

    
    

14. The financial situation in the school years 1993-94 and 1994-95 is less clear than for the school year 1992-93. The revenue estimate for the school year 1993-94 will not be made until January, 1993, ergo the revenue estimate for the school year 1994-95 will not be made until January, 1994.

    
    

15. The school board members and the Director of Finance are aware that other school systems throughout Florida have been less fortunate than Union County concerning fiscal matters and this influenced the school board in its thinking when rejecting the three year contract proposals by the superintendent.

    
    

16. On balance there is sufficient certainty in the school year 1992-93 to support a contract with the 12 administrative employees in question. That certainty is lacking in the school years 1993-94 and 1994-95 concerning the fiscal position for the school system. Concerning the latter two years, although the school board has the right to transfer the administrative employees in the second and third year of the recommended contract period, the contract is subject to annual review and renewal based upon satisfactory performance by those employees, there is a commitment to reduce the budget without dismissing employees and there is the ability to abolish positions should the need arise, it is not unreasonable for the school board to avoid those complications by contracting on an annual basis with the administrative employees. This avoids the awkwardness in operating the school system in an potentially less favorable economic climate in the school years 1993-94 and 1994-95 where it might become necessary to affect employee transfers associated with administrative personnel in to other positions to honor the contracts with those administrative employee, other budget adjustments or the abolition of employment positions that were

    filled. This is as contrasted with the flexibility to make decisions going into the school years 1993-94 and 1994-95 concerning the appointment of administrative personnel. Such an arrangement for annual contract with administrative employees is in keeping with the traditions by the school system to contract with administrative employees on an annual basis, a system which the present superintendent has found acceptable until this occasion.

    
    

17. The twelve administrative personnel are the close advisors to the superintendent in directing his or her administration. Consequently, there must be a comfortable working relationship with these persons. The present superintendent had recognized this necessity when he took office from former Superintendent McGill and requested the resignations of similar administrative personnel to allow him to put in place his own management team. Nonetheless the present superintendent is attempting to bind a possible successor to the present superintendent's choice in administrative personnel. This is done in a setting in which as many as seven candidates have sought the superintendent's position in the upcoming election for the year 1992. In that election the new superintendent comes into office in November, 1992.

    
    

18. The present superintendent, concerning his own intentions to seek reelection has been at least elusive if not evasive in a setting in which his position on reelection is crucial to resolving the issue of the propriety of his three year recommendation for the contract term. He has led the board to believe that he is not seeking reelection. On occasion he has even told one board member that he would not seek reelection. In discussion at the May 12, 1992 school board meeting the present superintendent referred to the possibility of a new superintendent but did not discuss his candidacy. At that time he should have made clear that he intended to run for reelection if he expected to have his recommendation for a three year contract for administrative employees to have legitimacy. When asked the question at hearing whether he had made the decision to run or not the present superintendent responded: "You'll know on July 17."

    
    

19. While it is true that a majority of board members are leaving their positions this year, they have the right to be concerned about the preservation of needed flexibility on the part of an incoming superintendent to choose his or her close administrative personnel, those positions at issue here. The present superintendent's equivocation concerning his intentions to run for reelection does not serve the legitimate interests of the school system on this subject. Nor does this unwillingness to confirm his position to seek reelection or decline that opportunity offer rationale support for his decision to break with his long standing policy to recommend annual contracts for administrative personnel.

    
    

20. The present superintendent was no more compelling in his attempt to describe why the annual contract for administrative personnel had seemed advisable in the past but an unwise arrangement for the future. The present superintendent speaks of the need to treat the administrative personnel as professionals and to afford them job security and to remove them from the whims of political process. When questioned on the meaning of those reasons or explanations his responses were vague. He was unable to explain the inconsistency in having believed that the superintendent needed to have immediate control concerning the administrative personnel and use of an annual contract to maintain that power in carrying out his duties with the close assistance of the administrative personnel and the sudden commitment to a three year contract at a point in time when he might not be the superintendent by choice. When asked why he had not made this decision last year, why it was not

    important last year to have three year contracts for the administrative personnel he responded "maybe I should have, you know". Moreover, when asked the question had it only become more of a problem now that he might not be the superintendent, he stated "I don't have no idea". When asked why on the May 21, 1992, when the decision was being made about the three year contracts proposed that he did not advise the school board of a decision to remain as superintendent, the present superintendent acknowledged that he did not say anything on that occasion to allow the school board to know his position concerning his future involvement with the school system beyond the 1992 election.

    
    

21. The present superintendent alluded to his perceived motivation of the school board in rejecting his contract period for the administrative personnel. He called the motivation political, having nothing to do with the budget or fiscal concerns. On the other hand, the superintendent explained that he was interested in rectifying his approaches in the past by giving multi-year contracts to administrative personnel as he should have done years ago and that he finds it important to have continuity in the system through the administrative personnel in a setting in which the superintendent may change and as many as four board members may change in the upcoming election. When questioned about the influence of such an arrangement on an incoming superintendent, that is a three year contract for administrative personnel, the present superintendent responded that the new superintendent should have appointment powers for those administrative personnel and that all the new superintendent would have to do was wait two years and get all the appointment powers that the new superintendent might need. This points out that the present superintendent would set aside a workable and flexible approach to the appointment of administrative personnel to annual contracts which he had fostered to his benefit as the serving superintendent in favor of restrictions on the control exercised by an incoming superintendent, an unreasonable legacy of patronage beyond the present superintendent's tenure. It is the present superintendent who seeks to restrict and hinder the orderly process in managing close subordinates to the superintendent, not the outgoing school board which by vying for a one year contract for administrative personnel protects an incoming superintendent from being hamstrung by administrative appointments that will exist for much of his or her term, without tangible benefit to the present board beyond the time which it will serve.

    
    

22. Where the present superintendent testified about this belief that in the past administrative personnel were political pawns, he would now make them his political pawns by seeking to control the administrative appointments of an incoming superintendent for years following the election of that new superintendent.

    
    

23. The present superintendent makes mention that the three year contract proposal benefits the present administrative personnel. It would. It might help recruitment. It might redress complaints by administrative personnel that the board does not appreciate them when it denies the three year recommendation. Those concerns are overshadowed by the need of an incoming superintendent to be able to choose administrative personnel that he or she would be comfortable with and not be bound by the decision of the present superintendent to deviate from his prior course of annual contract recommendations.

    
    

24. Finally, the present superintendent says that if he does not have the authority and the power over his administrative employees to appoint them, then he can not control them. Nothing that he has said in his testimony nor revealed in this record leads to the conclusion that his control is any less effective in

    asking for a one year contract as opposed to a three year contract in a setting in which it is not clear whether he will seek reelection or be successful in that endeavor should he choose to stand for another term. If he runs and is successful he may on the next occasion of proposing a contract set out his preference for a three year contract beginning with the school year 1993-94. If he does not run or is unsuccessful in his candidacy it is no longer his responsibility nor right to decide the direction the school system shall follow. In the event that he is reelected the control which he may exert in the school year 1992-93 on an annual contract is no less effective than a three year contract for administrative personnel. Under the circumstances the board had good cause for rejecting a three year contract for administrative personnel as it might interfere with the authority and control exerted by an incoming superintendent in the school years 1993-94 and 1994-95.

    
    

    CONCLUSIONS OF LAW

    
    

25. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action in accordance with Section 120.57(1), Florida Statutes.

    
    

26. When a superintendent recommends persons for appointment through written nominations those appointments must be acted upon favorably unless good cause exists for the rejection. Such is the case for the twelve administrative personnel nominated here. Section 230.23(5)(a), Florida Statutes.

    
    

27. In rejecting these nominees, it is only the term of their contract that is in dispute. Their credentials and behavior and suitability for service under other objective standards of review concerning "good cause" do not enter into this decision. See Von Stephens v. School Board of Sarasota County, 338 So.2d 890 (Fla. 2nd DCA 1976) and Spurlin v. School Board of Sarasota County, 520 So.2d 294 (Fla. 2nd DCA 1988).

    
    

28. Section 231.36(1)(b), Florida Statutes, contemplates the possibility of a three year contract subject to "review and renewal" wherein it states:

    
    

    A supervisor or principal shall be properly certified and shall receive a written contract as specified in chapter 230. Such contract may be for an initial period not to exceed 3 years, subject to annual review and renewal. After the first 3 years, the contract may be renewed for a period not to exceed 3 years and shall contain provisions for dismissal during the term of the contract only for just cause, in addition to such other provisions as are prescribed by the school board.

    
    

    This provision identifies the possibility of a three year contract and for a three year contract at intervals beyond the initial three years. It does not obligate the superintendent and school board to offer three year contracts to its administrative employees. Realizing that the statute does not require a three year contract, the issues are framed by the dispute in which the superintendent desires a three year contract and the board prefers a one year contract for the administrative personnel.

    
    

29. This problem is spoken to in the decision of Greene v. the School Board of Hamilton County, 444 So.2d 500 (Fla. 1st DCA 1984). In that case the superintendent had recommended a one year contract for an administrative

    employee and the board decided to award a two year contract. In addressing the appeal taken by the superintendent to oppose that contract award the court stated at page 501:

    
    

    . . . we conclude that a school board may not amend a superintendent's recommendation as to the duration of a contract proposed to be awarded to a nominee for a position with a school district, but can only accept or reject the superintendent's recommendation and nomination as tendered.

    By statute, the school board is the policy-making for the school district, while the superintendent is the chief executive officer of the school board and the chief administrator within the school district . . . Under these statutes, it has been repeatedly held that with regard to employment of the school district personnel, it is the superintendent's duty to select and nominate personnel, while it is the school board's duty to appoint and contract with the employees nominated by the superintendent, unless upon a finding of good cause, the board chooses to reject such nominations. [citations omitted]

    
    

30. The court held that the board must not only show good cause for rejecting a nominee, that is to say that person, it must also show good cause for rejecting the recommendation as to the duration of employment. The court went on at page 501 to state:

    
    

    . . . We perceive that the allocation of responsibilities with respect to school district personnel matters as outlined above, i.e., selection by the superintendent and appointment by the Board, was intended not only to remove political considerations from the process of selecting those persons responsible for the education of children, but also to ensure that the superintendent will have sufficient control and authority over the employees of the school district to permit him to carry out responsibilities of managing the system. An executive or administrator who cannot control his employees cannot function. An essential element of control of employees is the ability to replace them or transfer them within the system when necessary. We can envision any number of reasons why a school superintendent might wish to employ or reemploy a given individual in an particular position, yet might not wish to be bound, for a lengthy period of time, to retain the individual and the particular position for which he was hired, or at all.

    
    

31. The court goes on to describe that it could find no authority which would expressly permit school boards to amend the recommendation of the superintendent in terms of the length of contract and found that the board's action in increasing the contract period was ultra vires and reversed that decision by the board to increase the employment term.

    
    

32. The court also held that the superintendent was entitled to retain legal counsel to represent him in a dispute such as was found in the Greene case

    and is found here and that the attorney employed to represent the superintendent was and would be here entitled to a reasonable fee for services rendered in that instance for an appeal. The reasoning set out in the opinion supports the entitlement to reasonable attorneys fees for administrative process and appeal. In addition to the entitlement to attorneys fees as set forth in the Green opinion, the school board has consented to such an arrangement.

    
    

33. The Greene court points to the need for authority and control to be exercised by the superintendent. Here the authority and control properly discussed in addressing the contract period for the administrative employees is that to be exercised by an incoming superintendent, not the present superintendent who is in a neutral position concerning his authority and control given his unwillingness to clearly state his position on his future interest in the office. Moreover the present superintendent may exert the necessary authority and control, if reelected, with an administrative staff that has an annual contract, whereas the incoming superintendent would be unduly restricted by the present superintendent's choice that held over administrative employees for two additional years whom he or she as the new superintendent did not feel he or she could function with.

    
    

34. The most significant feature in a superintendent's authority and control in the setting envisioned by the laws which control the activities within a public school system found at Chapters 230 and 231, Florida Statutes, is the selection and employment term. The present superintendent would deny that opportunity to an incoming superintendent for motives that are at best unclear and potentially more objectionable.

    
    

35. The fiscal uncertainty for the school years 1993-94 and 1994-95 supports the good cause which has been shown by the board in limiting restrictions on an incoming superintendent in selection of administrative personnel.

    
    

36. In summary, the board had good cause to reject the present superintendent's recommendations to have a three year contract. Beyond this point the school board may not amend that period to a one year contract period. It is incumbent upon the present superintendent to offer a different proposal in the contract period.

RECOMMENDATION

Upon consideration, it is, RECOMMENDED:

That a Final Order be entered which rejects the superintendent's recommendation for a three year contract period for the twelve administrative employees while upholding their nomination and that the final order grant reasonable attorneys fees to the superintendent's counsel.

DONE and ENTERED this 22nd day of July, 1992, in Tallahassee, Florida.

CHARLES C. ADAMS, 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 22nd day of July, 1992.

APPENDIX TO RECOMMENDED ORDER

The following discussion is given concerning the proposed fact-finding of the parties.

Petitioner's Facts

Paragraphs 1-9 are subordinate to facts found.

Paragraph 10 is rejected in any suggestion that the budget circumstance favors three year contract for the nominees, similarly Paragraph 11 is rejected.

Paragraphs 12 and 13 are subordinate to facts found with the exception of the latter sentence of Paragraph 13 which is rejected.

Paragraph 14 is subordinate to facts found. Paragraphs 15 and 16 are rejected.

Paragraph 17 to the extent that it suggests unacceptable process in the decision to reject the three year contract period is rejected.

Paragraph 18 is accepted as discussed in the Conclusions of Law. Respondent's Facts

Paragraphs 1 through 18 are subordinate to facts found. Paragraph 19 is not necessary to the resolution of the dispute.

Paragraph 20 for purposes of this case is not accepted as the basis for rejecting the three year contract period.

Paragraphs 21 through 29 are subordinate to facts found.

COPIES FURNISHED:

John D. Carlson, Esquire

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

Tallahassee, FL 32308

Ronald G. Meyer, Esquire Meyer and Brooks, P.A.

2522 Blair Stone Pines Drive Post Office Box 1547 Tallahassee, FL 32302

Bobby Lex Kirby, Esquire Route 2 Box 219

Lake Butler, FL 32054

Regina Parrish, Chairperson Union County School Board

55 SW 6th Street

Lake Butler, FL 32054

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

================================================================= DISTRICT COURT ORDER

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

DISTRICT COURT OF APPEAL, FIRST DISTRICT

Tallahassee, Florida 32399-1850

Telephone (904) 488-6151

DATE: November 30, 1992

CASE NO. 92-3638

L. T. CASE NO. 92-3395

James H. Cason, III, as v. The School Board of Union Superintendent etc. County, Florida

/ Appellant(s), Appellee(s).

BY ORDER OF THE COURT

Appeal dismissed prusuant to Rule 9.350(b), Fla.R.App.P.

I HEREBY CERTIFY that the foregoing is a true copy of the original court order.

JON S. WHEELER, CLERK

by: Laurie Black

Depty Clerk

(SEAL)

Copies:

John D. Carlson Ronald G. Meyer Clerk

Docket for Case No: 92-003395

Orders for Case No: 92-003395