Von Stephens v. School Bd. of Sarasota County

• Decision Date: 29 October 1976
• Docket Number: No. 75--1732,75--1732
• Citation: 338 So.2d 890
• Parties: Ozell VON STEPHENS, Appellant, v. The SCHOOL BOARD OF SARASOTA COUNTY, Florida, and Gene M. Pillot, as Superintendent of Schools for Sarasota County, Florida, Appellees.
• Court: Florida District Court of Appeals

Page 890

338 So.2d 890

Ozell VON STEPHENS, Appellant, v. The SCHOOL BOARD OF SARASOTA COUNTY, Florida, and Gene M. Pillot, as Superintendent of Schools for Sarasota County, Florida, Appellees.

No. 75--1732.

District Court of Appeal of Florida, Second District.

Oct. 29, 1976.

Stanley E. Marable, Law Offices of Frank & Meyer, Tampa, for appellant.

C. Allen Watts, of Fogle & Watts, DeLand, for appellees.

BOARDMAN, Acting Chief Judge.

Appellant/plaintiff, Ozell Von Stephens, timely appeals the dismissal with prejudice of his amended complaint against appellees/defendants, School Board of Sarasota County (Board) and the Superintendent of Schools for Sarasota County (Superintendent).

Appellant is employed by the Board as principal of Exceptional Child Education. During February, 1974, the position of principal of Tuttle Elementary School, another school in the Sarasota County public school system, became vacant; and appellant, among others, submitted his application for appointment. A screening committee appointed by the Board selected appellant for the vacancy, and the Superintendent recommended him to the Board for the position. On April 6, 1974, the Board rejected the Superintendent's recommendation. The Sarasota County Teacher's Association requested that a hearing be held to determine whether good cause existed for the rejection. On April 23, the Board agreed to said request for a hearing under the supervision of an impartial hearing examiner. At a subsequent meeting the Board rescinded by resolution its decision of April 23 stating therein, among other things, that appellant had been accorded all his legal rights and reaffirmed its rejection of the recommendation. The day following the filing of this action in the Circuit Court of Sarasota County, on June 20, 1974, the Superintendent withdrew his recommendation of appellant and advised the Board that a more qualified individual, who was not among the original applicants, had applied for the position. The trial judge dismissed appellant's amended complaint finding that the complaint failed to state a cause of action and that the circuit court lacked subject matter jurisdiction. We reverse.

We agree with appellant's contentions that the circuit court does have subject matter jurisdiction over the controversy, that good cause must be shown for the rejection of the recommendation, and that he does have a property right in the appointment.

Appellant's amended complaint alleged that the circuit court had jurisdiction to determine the legality of the Board's rejectin of the recommendation and the Superintendent's withdrawal of the recommendation. The appropriate forum for review of an agency action is determined by the nature and character of that action unless the statute which created the agency and defined the scope of its authority prescribes a specific procedure for review. ¹ Teston v. City of Tampa, Fla.1962, 143 So.2d 473. The Florida Administrative Procedure Act mandates that review of an agency's quasi-judicial order is by writ of certiorari to the district court of appeal. Fla.Stat. § 120.31(1) (1973). Relief from an order which is not quasi-judicial is by original judicial proceedings in the circuit court. ² Teston v. City of Tampa, supra; Deen v. Tampa Port Authority, Fla.App.2d 1967, 201 So.2d 755, citing J. Hall & R. Canada, Florida Civil Practice After Trial, ch. 22 (1966).

The threshold question in the case before us is whether the actions of the Board and Superintendent are quasi-judicial. Generally, a quasi-judicial order is characterized by notice and a hearing pursuant to statutory requirements. West FlaGler Amusement Co., Inc. v. State Racing Commission, 1935, 122 Fla. 222, 165 So. 64; 1 Fla.Jur., Administrative Law § 65 (1958), Supp.1976). This court has previously held that an agency decision is not quasi-judicial if it is predicated on an unilateral hearing without notice, an opportunity to cross-examine, a formal finding of fact, or an entry of a formal order stating its findings, and where the only evidence of any factual findings was in a letter stating a conclusion. Charbonier v. Wynne, Fla.App.2d 1973, 282 So.2d 171. Under the circumstances presented here, neither the Board's rejection nor the Superintendent's withdrawal can be characterized as quasi-judicial. See Teston v. City of Tampa, supra; Solomon v. Sanitarians' Registration Board, Fla.1963, 155 So.2d 353.

In Board of Public Instruction of Dade County v. McQuiston, Fla.App.3d 1970, 233 So.3d 168, the dismissal of an employee by the school board on the ground that he did not meet the qualifications specified for his position was held an executive action. We regard the decision by the Board in this case to be of the same nature as that in McQuiston. Furthermore, the Supreme Court of Florida has held that mandamus is the proper remedy to compel a school board to appoint the person nominated, and it is well established that mandamus will issue solely to enforce the performance of a clear ministerial duty or function. State ex rel. Kelly v. Golson, 1943, 153 Fla. 469, 14 So.2d 793; 21 Fla.Jur., Mandamus § 33 (1958, Supp.1976). We hold that the actions complained of in the instant case are not quasi-judicial and that appellant properly brought this action in the circuit court.

The Board contended that the Superintendent recommended appellant for a transfer not an appointment and, therefore, it is not necessary to show good cause to reject the recommendation. We hold that the Board must appoint appellant absent legally sufficient cause to reject the Superintendent's recommendation. The superintendent is directed to select and submit his nominations and recommendations for appointments and transfers to the school board. Fla.Stat. § 230.33(7)(b)(c)(d)(g) (1973). The school board is required to appoint those recommended or nominated unless good cause for rejection exists. Fla.Stat. § 230.23(5)(b)(c) (1973). Although the statute does not directly state that cause must be shown to reject a recommendation for transfer, it is elementary and particularly so in this case that to transfer personnel an appointment is necessitated, thereby activating the cause requirements in § 230.23(5)(b)(c), Fla.Stat. ³

In our judgment the basis for the separate treatment of transfers and appointments in the school code is not to differentiate between them by the applicability of good cause but is to distinguish situations in which the school board can and cannot act on its own initiative. Section 230.23(5)(b)(c) authorizes the school board to select and appoint personnel in specific circumstances but does not give the board authority to transfer employees on its own motion. See Fla. Stat. § 230.23(5)(f) (1973).

Appellee argued that if good cause is required, legal grounds for rejection include failure to meet such subjective standards as suitability to the community and acceptable personality. We cannot agree. ⁴ The responsibility of a school board has always been to appoint personnel recommended and nominated by the superintendent, not to select them. See State ex rel. Lawson v. Cherry, Fla.1950, 47 So.2d 768. Unless good cause is shown, that is failure of appellant to meet the criteria of Chapter 231, Fla.Stat., it is incumbent on the board to appoint and contract with the nominee. State ex rel. Kelley v. Golson, supra; State ex rel. Lawson v. Cherry, supra; Fla.Stat. § 230.23(5) (1973).

A nomination by the superintendent entitles the nominee to due process protections of his interest in the nomination. This 'legitimate claim of entitlement' was created by the terms of Fla.Stat. § 230.23(5) which, as we have explained above, mandates appointment by the Board absent good cause. Cf. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970). This 'claim' entitles the nominee to notice and a hearing where grounds for deprivation of the right of appointment would be shown and could be challenged for legal sufficiency. See Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974); Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). Appellant's interest is more than a mere subjective expectation in employment which would not be safeguarded by due process. Perry v. Sindermann, supra. Furthermore the Supreme Court of Florida specifically established a property right in a nominee by its holding in Board of Public Instruction for County of St. Lucie, Florida v. Connor, 1941, 148 Fla. 364, 4 So.2d 382, that at the time a nomination is made to the board an implied contract arises between the school district and the nominee. That nomination is final unless the board finds that the nominee is morally or professionally disqualified. State ex rel. Lawson v. Cherry, supra.

A superintendent of course exercises his discretion in selecting and nominating school personnel. The Superintendent exercised this discretionary duty by submitting appellant's name to the Board. It is clear to us that the interest of appellant was created and his right to due process vested at that time. Hence when the Board rejected the nomination appellant was entitled to a hearing to determine whether the Board acted according to the statutory requirement of good cause and was entitled to seek review of the action by the appropriate appellate procedure if necessary. To sanction the Superintendent's withdrawal of the nomination after appellant initiated legal proceedings would extinguish a nominee's right to due process safeguards of his interest and circumvent the statutory scheme provided by the legislature designed to afford due process. Under these somewhat peculiar facts, that is withdrawal of the nomination after the Board rejected it and refused to conduct a hearing and after appellant filed suit, the Superintendent could not withdraw his nomination without a showing of good cause for the...