Wahlquist v. School Bd. of Liberty County, AE-241

• Court: Florida District Court of Appeals
• Writing for the Court: PER CURIAM; MILLS; MILLS
• Citation: Wahlquist v. School Bd. of Liberty County, 423 So.2d 471 (Fla. App. 1982)
• Decision Date: 10 December 1982
• Docket Number: No. AE-241,AE-241
• Parties: 8 Ed. Law Rep. 537 Farrell WAHLQUIST, Appellant, v. The SCHOOL BOARD OF LIBERTY COUNTY, Florida, a public body corporate, Appellee.

Page 471

423 So.2d 471

8 Ed. Law Rep. 537

Farrell WAHLQUIST, Appellant, v. The SCHOOL BOARD OF LIBERTY COUNTY, Florida, a public body corporate, Appellee.

No. AE-241.

District Court of Appeal of Florida First District.

Dec. 10, 1982.

Rehearing Denied Jan. 4, 1983.

John D. Carlson of Woods, Johnston & Carlson, Tallahassee, for appellant.

Clinton E. Foster and Richard D. Ogburn of Law Offices of Clinton E. Foster, P.A., Panama City, for appellee.

PER CURIAM.

Wahlquist appeals from an order of the Liberty County School Board (hereafter "Board") denying a request for a hearing concerning his transfer from a supervisory to a teaching position, and ruling that Wahlquist, because of his prior resignation from the Liberty County system to accept a position with the Panhandle Area Educational Cooperative (hereafter "Cooperative"), was not entitled to continuing contract status. We find error in the Board's denial of a hearing with respect to his transfer from a supervisory to a teaching position, and we further find error in the Board's determination that Wahlquist is not entitled to continuing contract status.

Wahlquist was a school teacher on continuing contract with the Board. In January, 1977, he resigned this position in order to accept a position as Educational Consultant with the Cooperative, which had its headquarters in Washington County. He thereafter resigned his position with the Cooperative, effective July 31, 1979, and was reemployed by the Liberty County school system as Director of Instruction, effective August 1, 1979. He then entered into a written contract with the Board dated July 1, 1980, providing for his employment as a supervisor in the Liberty County system for the period July 1, 1980 through June 30, 1981. His contract with the Board provided, among other things, that he could be transferred to a similar position at any other school in the district "provided that the duties shall be similar to the duties originally assigned."

In January, 1981, Wahlquist was notified by letter from the Liberty County Superintendent of Schools that he was being transferred to a teaching position in the county. A month later Wahlquist wrote a letter to the Superintendent and the Board, pointing out that the transfer to a teaching position was contrary to his contract. He also proposed a settlement, suggesting that the Board should "[G]rant me back my continuing contract as a classroom teacher," in return for which he would withdraw his contest to the transfer. The Board's response was by letter from the Superintendent dated April 3, 1981, informing Wahlquist that he would not be nominated for employment in the Liberty County school system for the 1981-82 school year.

On April 22, 1981, Wahlquist filed a two count petition for administrative hearing and affirmative relief. Count I requested a 120.57(1) hearing concerning the transfer, and Count II sought a declaratory statement under Section 120.565 (Florida Statutes), concerning Wahlquist's right to be reemployed by the Board under the automatic reinstatement provisions of Section 231.36(9), Florida Statutes (1979). ¹ Count II also requested relief pursuant to Section 120.56(1), Florida Statutes (1979), and requested an administrative hearing pursuant to Section 120.57.

The Board, at its May, 1981 regular meeting, voted to deny Wahlquist's request for a hearing under Count I, and further determined that Wahlquist should be denied an administrative hearing concerning the Board's failure to reemploy him for the 1981-82 school year. The Board decided, however, that he was entitled to a declaratory statement with respect to his contention that he was entitled to continuing contract rights.

On the first point, we agree with appellant's contention that the Superintendent's one sentence letter of January 6 informing Wahlquist that he had been transferred to a teaching position was not a "clear point of entry" to Chapter 120 proceedings. ² This court has recently reaffirmed the rule that actual notice of agency action which does not inform the affected party of his right to request a hearing, and the time limits for doing so, is inadequate to "trigger" the commencement of the administrative process. Sterman v. Florida State University Board of Regents, 414 So.2d 1102 (Fla. 1st DCA 1982). It should be noted that in Dickerson, Inc. v. Rose, 398 So.2d 922 (Fla. 1st DCA 1981), also relied upon by the Board, the notice to the affected party did state a time limit within which an administrative hearing could be requested. Appellant's petition for hearing and other relief was filed within 21 days after he received the Board's notice that he would not be employed for the next school year. The action of the Board at its May, 1981 regular meeting--later formalized by its order of June 6, 1981--finding that Wahlquist waived an administrative hearing concerning his transfer to a teaching position, was in error.

Appellant's attack upon the Board's order dealing with Count II of the petition contains an admixture of issues relating to appellant's right to a declaratory statement as to his continuing contract status, under Section 231.36(9), Florida Statutes (1979), and his entitlement to an administrative hearing for review of the Board's action in failing to rehire him for the school year 1981-82. Because of our resolution of the issues presented by the Board's ruling on Count II, we find it unnecessary to dwell at length upon procedural niceties. The Board concedes that it did not comply with the notice requirements of Section 120.565, Florida Statutes, but urges that the error was harmless. With respect to its noncompliance with Section 120.56, the Board correctly points out that its decision to terminate appellant's employment was not a rule, but an order, which is not subject to challenge under the provisions of Sections 120.54(1)(a), or 120.56. Where the issue on appeal is simply one of law, the agency's failure to comply with certain procedural requirements of the administrative procedures act may not rise to the level of material error which impairs the fairness of the proceedings or the correctness of the action. City of Pensacola v. Florida Public Employees Relations Commission, 358 So.2d 589 (Fla. 1st DCA 1978). We will therefore proceed with review on the merits.

We find error in the Board's conclusion that Wahlquist lost his continuing contract status with the Liberty County school system by resigning to take a position with the Cooperative. Although Section 231.36(3)(e) ³ provides that continuing contract status terminates when a person "resigns," that provision must be construed in the light of subsection (9), of Section 231.36, ⁴ which clearly contemplates resignation by a teacher on continuing contract in order to accept a position in a cooperative education program. Since the Board's order ruling upon Wahlquist's dismissal is grounded entirely upon the premise that Wahlquist's resignation precluded him from claiming the benefit of Section 231.36(9), the order is in error and must be reversed.

In view of our finding of error which requires reversal of the Board's order, we find it necessary to address the contention that the provisions of Section 231.36(9) apply only to a teacher who has accepted employment with a cooperative education program as a teacher. The Board contends that since Wahlquist's position with the Cooperative was as "educational consultant," he has no standing to assert the automatic reverter provision of subsection (9). We find no language in subsection (9) or in other provisions of the statutes which would indicate that subsection (9) is limited to continuing contract teachers who accept employment with cooperative education programs as teachers. This subsection is obviously designed (as the Board concedes) to encourage teachers to participate in cooperative education programs, and it does so by offering protection for the teachers' continuing contract status. The statute provides such protection in two ways: First, it allows an eligible teacher--that is, one who, "at the time of employment," is on a continuing contract in a school district which is participating in support of the particular cooperative education program ⁵--to be "immediately" placed on a continuing contract with the school board wherein the cooperative education program is produced. Second, it provides that if, at the time of reappointment of personnel, during the first three years, that teacher is not recommended "for continued employment in the cooperative education program," that teacher "shall automatically revert to continuing contract status in the district of immediate prior employment." Section 231.36(9). The use of the unqualified term "employment" in the foregoing manner must be construed to mean employment both in a teaching, administrative, or supervisory capacity. To construe the statute otherwise would require us to add qualifying language when no basis for the qualification has been made to appear. Furthermore, our reading of subsection (9) is consistent with subsection (3)(f), of Section 231.36, which provides, in part: "Continuing contract status earned by any member of the instructional staff prior to assuming a position as supervisor or principal shall be retained in the position in which it was attained....".

As we have stated, Wahlquist's resignation from his teaching position with the Board did not preclude his subsequent claim, under Section...