Johnson v. School Bd. of Palm Beach County

• Decision Date: 02 September 1981
• Docket Number: No. YY-286,YY-286
• Citation: 403 So.2d 520
• Parties: Ernest J. JOHNSON, Appellant, v. SCHOOL BOARD OF PALM BEACH COUNTY, Florida, Appellee.
• Court: Florida District Court of Appeals

Page 520

403 So.2d 520

Ernest J. JOHNSON, Appellant, v. SCHOOL BOARD OF PALM BEACH COUNTY, Florida, Appellee.

No. YY-286.

District Court of Appeal of Florida, First District.

Sept. 2, 1981.

John J. Chamblee, Jr., Tampa, for appellant.

Richard L. Oftedal, West Palm Beach, for appellee.

OWEN, WILLIAM C., JR. (Retired), Associate Judge.

Appellant, a tenured classroom teacher, employed by appellee, School Board of Palm Beach County, seeks review of the final order of the State Board of Education upholding appellant's suspension and termination by appellee.

On December 18, 1978, appellant assaulted a male high school student during the course of a regular school day. On December 22, 1978, without the benefit of prior notice or a hearing, appellant received a letter from the Superintendent of Schools of Palm Beach County dated the same date advising that appellant was suspended without pay effective immediately. The letter set forth various grounds upon which the Superintendent had suspended appellant. It also advised appellant that the Superintendent would recommend to the School Board that it ratify the suspension without pay and that it terminate appellant's employment on January 17, 1979. Finally, the letter stated that the recommendations would be made at a meeting of the School Board to be held on January 17, 1979, the time and place being specifically designated.

On January 17, 1979, the School Board conducted a public meeting at which time the Superintendent presented his recommendation for the appellant's suspension without pay and for his termination. The School Board adopted the Superintendent's recommendation to suspend the appellant without pay retroactive to December 22, 1978. The record does not reflect whether appellant was permitted an opportunity to rebut the charges against him at the hearing conducted before the School Board on January 17, 1979, but for reasons hereafter discussed this factual void presents no hurdle.

On January 30, 1979, the Superintendent of Schools of Palm Beach County filed with the School Board a formal petition for termination of appellant's continuing contract of employment, a hearing on which was noticed for April 16, 1979. After the hearing, and in due course, the School Board issued its final order dismissing appellant on his contract of employment. Appellant's appeal to the State Board of Education resulted in an order (here under review) sustaining the dismissal order of the School Board. No challenge is made here to the order of dismissal, but only to the periods of suspension without pay.

Appellant's first point questions whether the Superintendent's suspension of appellant's pay on December 22, 1978, and the School Board's subsequent retroactive approval of the suspension violated appellant's due process rights and renders Sections 230.33(7)(h), ¹ 231.36(6), ² and 230.23(5)(g) ³ facially unconstitutional or unconstitutional as applied. Appellant's second point is whether the School Board's prospective suspension of appellant's pay up to the date of termination hearing violated state and federal constitutional due process guarantees. Able counsel for both parties have, both in briefs and in oral argument before the Court, materially aided the Court in resolving these issues.

Appellant's first point is resolved by us without the necessity of considering the constitutional issues.

The superintendent of a district school system has the responsibility for the day-to-day administration of the district schools as the executive officer of the district school board. ⁴ Whenever he has good reason to believe that a member of the instructional staff or other school employee has been guilty of conduct justifying suspension or dismissal as set forth in Section 231.36(6), Florida Statutes, the superintendent has the power and duty under the emergency provisions of Section 230.33(7)(h), Florida Statutes, to immediately suspend such member of the instructional staff or other school employee. However, we perceive that the legislature, in granting this power to the superintendent, intended it for use only in emergencies so that the suspended teacher (or other employee) may be immediately removed from his or her position pending school board action. The suspension is limited in duration to the period extending to and including the day of the next regular or special meeting of the school board, a provision which clearly contemplates that at such meeting it becomes the duty of the school board to take action on the matter. The notice of suspension served on the suspended teacher (or other employee) should include notification of the charges made against him as well as the date, time, and place of such next regular or special meeting of the school board. The power of the school board to suspend (by virtue of Section 230.23(5)(g), Florida Statutes) is exercised in the manner prescribed in Section 231.36(6), Florida Statutes. This latter statute, which expressly authorizes the school board to suspend any employee without pay, is the only statutory reference to the power to suspend without pay.

Considering these several statutes in pari materia, we conclude that while the superintendent may suspend in emergencies, the legislature intended to reserve to the school board the ability to suspend without pay. Furthermore, we find no legislative authority or intent that the school board, in taking action under Section 231.36(6), Florida Statutes, to suspend an employee without pay, may make such suspension without pay retroactive to the date of suspension by the superintendent. ⁵ Otherwise, the school board could by such action, in practical effect, grant to the superintendent the power which we now say he does not possess, i. e., the power to suspend without pay.

We conclude that when the superintendent notified appellant on December 22, 1978, of his suspension without pay effective immediately, the superintendent was within his authority under the emergency power granted by Section 230.33(7) (h), Florida Statutes, to suspend appellant, but was without authority to make such suspension without pay. When the school board met on January 17, 1979, it had before it charges against appellant sufficient under Section 231.36(6), Florida Statutes, to empower the school board to suspend appellant without pay, but such suspension without pay should have been prospective only and not applied retroactively to the time of the emergency suspension by the superintendent. Appellant is therefore entitled to receive his full pay from December 22, 1978, through January 17, 1979, plus all other monetary benefits attending his employment for that period.

Appellant's second point, concerning the School Board's prospective suspension of appellant's pay pending termination hearing, does require that we consider constitutional issues.

As noted earlier in this opinion, appellant does not challenge either his dismissal or the due process sufficiency of the termination hearing resulting in that dismissal. Rather, he says his suspension without pay from January 17, 1979, to the commencement of the termination hearing on April 16, 1979, was itself a deprivation of a "property interest" requiring constitutional due process safeguards.

Without question appellant, by virtue of his tenure, had a legitimate claim of entitlement to continued employment absent sufficient cause for his discharge, and therefore had a property interest in his continued employment of which he could not be deprived without procedural due process meeting constitutional standards. ⁶ But termination is one thing; mere temporary suspension or interruption of pay is quite another. The question of whether the latter rises to the level of a protected property right, and if so, the extent to which it requires protection, must be determined by a balancing of the competing interests.

This matter is discussed by Mr. Justice Powell in a concurring opinion in Arnett v. Kennedy, infra, wherein he states, at 416 U.S. 167, 94 S.Ct. at 1651:

"Having determined that the constitutional guarantee of procedural due process applies to ... discharge from public employment, the question arises whether an evidentiary hearing, including the right to present favorable witnesses and to confront and examine adverse witnesses, must be accorded before removal. The resolution of this issue depends on a balancing process in which the Government's interest in expeditious removal of an unsatisfactory employee is weighed against the interest of the affected employee in continued public employment. Goldberg v. Kelly, supra, at 263-266, 25 L.Ed.2d 287. As the Court stated in Cafeteria & Restaurant Workers v. McElroy, 367 U.S. 886, 895, 6 L.Ed.2d 1230, 81 S.Ct. 1743 (1961), 'consideration of what procedures due process may require under any given set of circumstances must begin with a determination of the precise nature of the government function involved as well as of the private interest that has been affected by governmental action.' "

Here the school board has an interest in eliminating, as soon as possible, the payment of wages to misbehaving or unproductive employees, and in avoiding the time, expense and unnecessary disruption of its other affairs caused by repetitive hearings were it to hold a presuspension hearing in addition to a termination hearing. Thus, the school board's interest in being able to act expeditiously in suspending an employee without pay is substantial. The employee's countervailing interest is the continuation of his pay pending an evidentiary hearing. Since the employee would be reinstated and awarded back pay if he prevails on the merits of his claim, his actual injury would consist of a temporary interruption of income during the interim. While this is no small loss, we decide, on balance (as did Mr. Justice Powell in Arnett v. Kennedy), that a prior evidentiary hearing is not required. ⁷ To say that before a tenured teacher may be...