Sickon v. School Bd. of Alachua County, Fla.

• Decision Date: 21 October 1998
• Docket Number: No. 97-2573,97-2573
• Citation: 719 So.2d 360
• Parties: 130 Ed. Law Rep. 944, 23 Fla. L. Weekly D2404 Mary Ann SICKON, Appellant, v. The SCHOOL BOARD OF ALACHUA COUNTY, FLORIDA, Appellee.
• Court: Florida District Court of Appeals

Page 360

719 So.2d 360

130 Ed. Law Rep. 944, 23 Fla. L. Weekly D2404

Mary Ann SICKON, Appellant, v. The SCHOOL BOARD OF ALACHUA COUNTY, FLORIDA, Appellee.

No. 97-2573.

District Court of Appeal of Florida First District.

Oct. 21, 1998.

Paul A. Donnelly and Laura A. Gross of the Law Offices of Donnelly & Gross, P.A., Gainesville, for Appellant.

James F. Lang of Chandler, Lang & Haswell, P.A., Gainesville, and Thomas L. Wittmer of the School Board of Alachua County, Gainesville, for Appellee.

BENTON, Judge.

This is an appeal from a final order of the Alachua County School Board (School Board) denying the petition of Mary Ann Sickon for a formal hearing before a hearing officer of the Division of Administrative Hearings. A school teacher, she contends that she is entitled to a hearing under the Administrative Procedure Act to contest the Gainesville High School principal's decision not to name her band director for the 1997-98 academic year. The principal named her assistant band director instead. We reject her contention that her substantial interests were determined when she was "reassigned" as assistant band director.

We also reject the contention that she is entitled to an administrative hearing as an opportunity to refute "public false stigmatizing statements" that she alleges letters written to the School Board contained. According to the petition, the School Board treated these letters as public records and the principal relied on some of them in making a written performance appraisal which has now been rescinded.

Ms. Sickon has worked for the School Board as a teacher at Gainesville High School since 1982 and, since 1989, has done so under a professional services contract. Each year from 1982-83 through 1994-95, she was assigned "supplemented duties" as assistant band director, duties she also performed in the fall of 1995. In January of 1996 she became band director for the remainder of the school year. She was subsequently assigned "supplemented duties" as band director for the 1996-97 school year. ¹

When the principal notified Ms. Sickon that she would be assigned not as band director, but as assistant band director, for the 1997-98 school year, her status as band director for the remainder of the 1996-97 school year remained unchanged. Both assignments were independent of any professional services contract.

Also in February of 1997, the principal gave Ms. Sickon a written performance appraisal that allegedly relied on accusations of misconduct. Disputing the allegations and disagreeing with the evaluation, Ms. Sickon successfully grieved the performance appraisal, pursuing the grievance process provided by the collective bargaining agreement between the teachers' union and the School Board.

In April of 1997, Ms. Sickon filed with the School Board the petition (anachronistically denominating an administrative law judge as a hearing officer of the Division of Administrative Hearings) with which the present proceeding began. The school board denied her request for a formal administrative hearing, on grounds that she had no property interest in her supplemental appointment as band director beyond the 1996-97 school year, nor any other cognizable substantial interest that had been affected.

In examining de novo whether her petition is legally sufficient, we are not bound by prior legal conclusions, whether pleaded by Ms. Sickon or reached by the School Board. The petition of Mary Ann Sickon for a formal hearing before a hearing officer of the Division of Administrative Hearings alleges that the "reassignment" occurred

(1) without approval of the School Board; (2) for a punitive reason; (3) in an unprofessional manner; (4) without being advised of the reason therefor; (5) based upon complaints which had been registered against her which were not discussed with and provided to her as early as feasible and before any related item was placed in her personnel file, and which were used against Sickon in her performance evaluation; (6) without being given first consideration for the teaching assignment of band director for 1997-98; and ( ) at the same time the School Board made public false stigmatizing statements without providing Sickon not[i]ce and opportunity for a public name-clearing hearing. These actions violate Sickon's rights under the collective bargaining agreement, Florida Administrative Code, and United States Constitution.

We take as true only the well-pleaded factual allegations of the petition. ² See Sterman v Florida State Univ. Bd. of Regents, 414 So.2d 1102, 1103 (Fla. 1st DCA 1982) ("Since it was dismissed without a hearing, the facts as they are alleged in the petition are presumed to be true.").

The order under review concludes that any legally recognized interests created by the 1996-99 collective bargaining agreement provisions that address supplemented duties or supplemental positions should be vindicated in keeping with the provisions of the collective bargaining agreement and are not proper subjects for a hearing under the Administrative Procedure Act. The order also specifically rejects the contention that Ms. Sickon was entitled to a name-clearing hearing. We agree with the School Board's legal conclusions and affirm.

Substantial Interests

The petition adequately alleges an immediate effect on Ms. Sickon's ability to remain band director. She would therefore be entitled to a hearing under the Administrative Procedure Act if non-renewal of her "supplemented duties" as band director affected or determined "substantial interests" within the meaning of sections 120.52(12), 120.569, and 120.57(1), Florida Statutes (1997). Whether she has any legally recognized interest in remaining band director is a question of substantive law.

It is not enough to look only to the Administrative Procedure Act. See U.S. Sprint Communications Co. v. Nichols, 534 So.2d 698, 699 (Fla.1988) (affirming denial of hearing sought under section 120.57(1) on grounds the agency action at issue did not "represent a new Commission action affecting appellant's substantive rights"); ASI, Inc. v. Florida Public Serv. Comm'n, 334 So.2d 594, 596 (Fla.1976) (rejecting proposition that "procedural requirements established by the administrative procedure act" confer "substantial interests" in affirming denial of hearing sought under section 120.57(1) by a person without "a legally recognized interest").

The allegations of the petition must be examined to determine whether the facts alleged amount to an injury "under the protection of" pertinent substantive law. ³ Agrico Chemical Co. v. Department of Envt'l Regulation, 406 So.2d 478, 482 (Fla. 2d DCA 1981). On appeal, Ms. Sickon has abandoned any contention that her professional services contract conferred rights affected by her assignment as assistant band director in 1997-98. She places no reliance on any school board rule. Cf. French v. School Bd. of Polk County, 568 So.2d 497 (Fla. 2d DCA 1990). But she does contend that she has substantial interests based on rights she has under the collective bargaining agreement between the teachers' union and the School Board, under the provisions of the Florida Administrative Code, and under the United States Constitution.

Collective Bargaining Agreement

The collective bargaining agreement confers rights that the petition alleges were violated. Article VI, section 7 provides, in pertinent part "as early as feasible after the complaint has been registered, the principal will discuss the complaint with the teacher." Article XII, section 1(c) states that "[r]eassignments will not be made for punitive reasons." Article XII, section 1(d) provides that "[r]eassignments will be handled in a professional manner." Article XVII, section 13(e) provides "[qualified] applicants from a given school faculty will receive first consideration for a supplemental positions available at the school."

With exceptions not pertinent here, ⁴ Article VII of the collective bargaining agreement provides a comprehensive grievance process for vindication of rights conferred by the agreement. Ms. Sickon employed the grievance process in her successful challenge to the performance appraisal she received simultaneously with the news that she was to be assigned the assistant band director's supplemental position in 1997-98. But she did not grieve the assignment itself, although she now alleges that the assignment violated rights under the collective bargaining agreement.

In Blanchette v. School Board of Leon County, 378 So.2d 68, 69 (Fla. 1st DCA 1979), we enforced a provision in a collective bargaining agreement requiring arbitration of disputes "arising out of the collective bargaining agreement."

When parties through their bargaining representatives have contracted to arbitrate grievable disputes arising out of the collective bargaining agreement, grievable disputes must be resolved in that matter, if possible, rather than through APA procedures whose object is a final order expressing the decision of the employer-agency and determining a party's substantial interest.

See also Kantor v. School Bd. of Monroe County, 648 So.2d 1266, 1267 (Fla. 3d DCA 1995) ("To the extent that appellant contends there was a violation of a provision of the collective bargaining agreement, appellant was obliged to resort to the grievance procedures specified therein.").

Redress for violations of rights arising under the collective bargaining agreement must be pursued in the manner contemplated by the collective bargaining agreement. See City of Miami v. Fraternal Order of Police, 378 So.2d 20, 23 (Fla. 3d DCA 1979) ("No principle is more firmly established than the requirement that, before resorting to the courts, one must pursue and exhaust any extrajudicial or administrative remedy which may provide the relief sought."). The collective bargaining agreement in Blanchette made arbitration mandatory, while the collective bargaining agreement here does not...