Davis v. School Bd. of Gadsden County, 93-107

• Decision Date: 07 November 1994
• Docket Number: No. 93-107,93-107
• Citation: 646 So.2d 766
• Parties: 96 Ed. Law Rep. 868, 19 Fla. L. Weekly D2365 Charlie C. DAVIS, Appellant, v. The SCHOOL BOARD OF GADSDEN COUNTY, Appellee.
• Court: Florida District Court of Appeals

Page 766

646 So.2d 766

96 Ed. Law Rep. 868, 19 Fla. L. Weekly D2365

Charlie C. DAVIS, Appellant, v. The SCHOOL BOARD OF GADSDEN COUNTY, Appellee.

No. 93-107.

District Court of Appeal of Florida First District.

Nov. 7, 1994.

David Brooks Kundin, of Dobson & Kundin, Tallahassee, for appellant.

Deborah J. Stephens, of Ausley, McMullen, McGehee, Carothers & Proctor, Tallahassee, for appellee.

BENTON, Judge.

Charlie C. Davis, until recently a school custodian, appeals a final order of the School Board of Gadsden County, which awarded him back wages, but refused him reinstatement and denied his request for attorney's fees and costs. We affirm the School Board's order insofar as it determined that, because Mr. Davis was falsely accused, he was wrongly deprived of the opportunity to finish out the term of his 1991-1992 contract. In light of the Board's finding that it would have renewed his contract, but for the charges of which he was exonerated, we reverse the portion of the order denying relief for the non-renewal, ¹ even though "Florida law does not create a protected property interest for employees in ... non-tenured, non-certified, non-instructional year to year position[s] subject to an annual notice of appointment." Sullivan v. School Bd. of Pinellas County, 773 F.2d 1182, 1186 (11th Cir.1985). While school boards have authority to pay fees and costs incurred by employees in circumstances like these, we do not find that the Board abused its discretion in denying the request here.

False Charges

After a group of school girls accused appellant of speaking to them inappropriately, Robert Bryant, Superintendent of Schools for Gadsden County, recommended Mr. Davis' dismissal. Factfinding took place in a formal administrative proceeding conducted in accordance with the Administrative Procedure Act, sections 120.50 et seq., Florida Statutes. As the "agency head," the school board had the option to conduct the hearing itself. Instead, it elected to request a hearing officer from the Division of Administrative Hearings, in accordance with section 120.57(1)(b)3., Florida Statutes. Section 120.57(1), Florida Statutes, applied, since material facts were in dispute: Mr. Davis consistently denied the allegations.

In due course, the hearing officer entered a recommended order, crediting Mr. Davis' account and rejecting the students' accounts as unworthy of belief. ² The recommended order found

[I]f these false allegations had never been made or had not been relied on by Bryant, Davis would have had his annual contract renewed, just like he had for the previous eighteen years. ³

The School Board's lawyer took no exception to any fact found by the hearing officer, and the School Board entered a final order explicitly accepting the recommended order's fact findings.

School boards and school superintendents have well-recognized prerogatives in hiring and firing school personnel who are on annual contracts, and in declining to renew such contracts. Section 231.36(3)(e), Florida Statutes, has been said to place "a decision to renew contracts for nontenured teachers ... exclusively within the discretion of the school board," School Board of Seminole County v. Morgan, 582 So.2d 787, 788 (Fla. 5th DCA 1991), assuming certain preliminary recommendations by the superintendent. ⁴ Our sister courts have concluded that a school board has no authority to agree "to transfer the ultimate responsibility for reappointment of nontenured teachers to an arbitrator." Lake County Educ. Ass'n v. School Bd. of Lake County, 360 So.2d 1280, 1284 (Fla. 2d DCA) cert. denied, 366 So.2d 882 (Fla.1978). Accord School Bd. of Seminole County v. Cornelison, 406 So.2d 484, 486-87 (Fla. 5th DCA 1981).

Appropriate Relief

But these prerogatives must be exercised in keeping with the Administrative Procedure Act of 1974, sections 120.50 et seq., Florida Statutes (1993) [APA], which governs school boards and other state agencies alike. Mitchell v. Leon County School Bd., 591 So.2d 1032 (Fla. 1st DCA 1991); Witgenstein v. School Bd. of Leon County, 347 So.2d 1069 (Fla. 1st DCA 1977). While preserving the school board's "ultimate responsibility for reappointment," Lake County Education Ass'n v. School Board of Lake County, 360 So.2d 1280, 1284 (Fla. 2d DCA) cert. denied, 366 So.2d 882 (Fla.1978), the APA also requires school boards to act in keeping with facts found in administrative proceedings.

Among the facts established in the present proceeding was that Davis' "annual contract had been renewed yearly for the preceding eighteen years," that he "had always received satisfactory job ratings," and that "[t]he clear fact is that Davis' contract would have been renewed [for the 1992-1993 school year] but for these wrongful allegations." The Board's order cannot be squared with these findings. ⁵

In this regard, the procedure recounted in Werthman v. School Board of Seminole County, Florida, 599 So.2d 220 (Fla. 5th DCA 1992) is instructive. The main focus of the Werthman decision was the lack of a basis for reversing the school board's denial of attorney's fees and costs. But the opinion also describes the manner in which the extent of relief on the merits was arrived at: The school board denied back pay for the 1991 summer session because it was not persuaded the employee would have worked that summer, but "the Board awarded Werthman back pay for the 1990 summer session after finding that he would have taught summer school during 1990 but for his [wrongful] suspension." At 221. The question was not whether Werthman had a property right or a right under his contract to summer employment. He did not. The determinative question was whether he would have been employed in fact.

Here Mr. Davis' contract did not require his reappointment for the 1992-1993 school year any more than it did for the 1991-1992 school year or any of the others in the chain stretching back to the initial hire. Just as Werthman had no right to summer employment, Mr. Davis had no proprietary or contractual right to renewal of his annual contract. But the Board (and the hearing officer) found, as a matter of fact, that Mr. Davis would have been reappointed, if he had not been named in the accusations which the Board now finds to be false. Unlike Waters v. School Board of Broward County, 401 So.2d 837 (Fla. 4th DCA 1981), this is a case where "there [was not only] an allegation [but also proof] that the Board did not have valid reasons for refusing to renew." 401 So.2d at 838. Unless the agency's final order accomplishes, as nearly as possible, the reappointment that would in fact have taken place, the final order falls short; the School Board's order failed fully to take into account fact findings in the recommended order, findings that it adopted in full.

The School Board's reliance on Chase v. Pinellas County School Board, 597 So.2d 419 (Fla. 2d DCA 1992) is misplaced. The school board that employed Chase properly "exercis[ed] its discretion to increase the hearing officer's recommended penalty," at 420, where the facts demonstrated misconduct. No penalty of any kind is authorized in the present case, even though the School Board's order effectively imposes one. As the reviewing court, we have an obligation, under section 120.68(13)(a), Florida Statutes (1993), to "provide whatever relief is appropriate," and to "[o]rder such ancillary relief as the court finds necessary to redress the effects of official action wrongfully taken or withheld." Sec. 120.68(13)(a)2., Fla.Stat. (1993).

Attorney's Fees

Section 448.08, Florida Statutes (1993) provides that a "court may award to the prevailing party in an action for unpaid wages costs of the action and a reasonable attorney's fee." (Emphasis supplied.) Proceedings like these have been held not to fall within the statutory category. Werthman v. School Board of Seminole County, 599 So.2d 220 (Fla. 5th DCA 1992). But cf. Doyal v. School Board of Liberty County, 415 So.2d 791 (Fla. 1st DCA 1982).

The School Board's final order found that appellant did not demonstrate entitlement to attorney's fees. While the School Board could lawfully have reimbursed appellant for the attorney's fees he incurred, Krueger v. School District of Hernando County, 544 So.2d 331 (Fla. 5th DCA 1989); Sulcer v. McFatter, 497 So.2d 1349 (Fla. 4th DCA 1986), we do not have authority to require it, and we do not disturb the School Board's refusal to make such an award.

In order to provide all relief to which the Board's findings established appellant's entitlement, however, we reverse and remand for further proceedings consistent with this opinion.

JORGENSON, Associate Judge, concurs.

BARFIELD, J., concurs and dissents with written opinion.

BARFIELD, Judge, concurring and dissenting.

I agree to affirm the denial of Mr. Davis's request for attorney fees and costs. In disagreeing with the majority on the other issue presented, I do not suggest that Mr. Davis not receive his back pay for the remainder of the 1991-92 annual contract. We need not address that question, because the Board agreed in its final order that Mr. Davis was to get his back pay, and no one has challenged that ruling on appeal.

What is at issue is Mr. Davis's contention that he is entitled to a contract renewal for the 1992-93 year because he had worked for the school board for eighteen years. The hearing officer found that the Board would have renewed Mr. Davis's annual contract had he not been accused of wrongdoing. The Board accepted this factual finding, and we do not disturb it on appeal. A review of the record, however, suggests that the Board's acceptance of this finding was probably an oversight, since there is no competent substantial evidence to support it. Nevertheless, we may assume that the Board likely would have renewed Mr. Davis's contract, if it had been placed in a position to do so.

The Board took exception to the hearing officer's conclusion of law that it had an...