[[Summary: A school board may not amend a superintendent's
recommendation as to the duration of a contract proposed to be
awarded a nominee for a position within the school district, but
can only accept or reject the superintendent's recommendation.
The Superintendent of schools who appealed from action of school
board employing administrative employee of school district for a
two-year period instead of one-year period recommended by
superintendent was entitled to legal counsel appointed by the
board to represent him in the dispute.]]
Fred D. GREENE, as Superintendent of Schools of Hamilton County,
Appellant
Nos. AT-108, AT-109.
Superintendent appealed from action of county school board
employing an administrative employee for a two-year period
instead of the one year period recommended by superintendent.
The District Court of Appeal, Thompson, J., held that: (1) a
school board may not amend a superintendent's recommendation as
to duration of a contract proposed to be awarded to a nominee for
a position with the school district, but can only accept or
reject the superintendent's recommendation and nomination as
tendered, and (2) superintendent was entitled to an attorney
appointed by school board to represent him in the dispute.
Reversed and remanded.
THOMPSON, Judge.
Fred D. Greene, Superintendent of Schools of Hamilton
County, appeals from final agency action of the School Board of
Hamilton County (Board) employing Coe, an administrative employee
of the school district, for a two-year period instead of the one-year period recommended by Greene. He contends that the Board
exceeded its authority and was without power to grant Coe a two-year contract in the face of Greene's recommendation that Coe be
given a one-year contract, and that the Board should simply have
accepted or rejected Greene's recommendation as to Coe's
reemployment. We agree and reverse.
[1] In 1980 Coe was awarded a three-year contract to serve
as the Hamilton County School District's Administrative Assistant
for Programs and Personnel. It is argued that the awarding of
this three-year contract was illegal since Coe is neither a
principal nor a supervisor and thus was not eligible for a three-year contract under 231.(1)(b), Fla.Stat. (Supp.1982), or,
alternatively, that the three-year contract was illegal because
Coe's position is non-instructional and Rule 4,02, Rules of the
School Board of Hamilton County, provides that non-instructional
personnel must be reappointed annually. However, we need not
decide these questions because we conclude that a school board
may not amend a superintendent's recommendation as to the
duration of a contract proposed to be awarded to a nominee for a
position with a school district, but can only accept or reject
the superintendent's recommendation and nomination as tendered.
By statute, the school board is the policy-making body for
the school district, while the superintendent is the chief
executive officer of the school board and the chief administrator
within the school district. 230.03, .22, .23, .31, .33,
Fla.Stat. (1982); 230.321, Fla.Stat. (Supp. 1982). Under
these statutes, it has been repeatedly held that with regard to
employment of school district personnel, it is the
superintendent's duty to select and nominate personnel, while it
is the school board's duty to appoint and contract with employees
nominated by the superintendent, unless upon a finding of good
cause, the board chooses to reject such nominations. See, e.g.,
State ex rel Lawson v. Cherry, 47 So.2d 765 (Fla.1950); Von
Stephens v. School Board of Sarasota County, So.2d 890 (Fla. 2d
DCA 1976), and cases cited therein.
In this case, the Board asserts that it has fulfilled its
statutory duties, in that it did in fact accept the
superintendent's nomination of Coe, and simply rejected the
superintendent's recommendation that Coe receive only a one-year
contract. The Board further argues that while it is obliged to
show good cause for rejecting a nomination, it need not show good
cause for rejecting a recommendation. We cannot accept the
proposition that a nomination may be distinguished from a
recommendation, at least where the recommendation concerns the
duration of employment. We perceive that the allocation of
responsibilities with respect to school district personnel
matters outlined above, i.e., selection by the superintendent and
appointment by the Board, was intended not only to remove
political considerations from the process of selecting those
persons responsible for the education of children, but also to
insure that the superintendent will have sufficient control and
authority over the employees of the school district to permit him
to carry out the responsibilities of managing the system. An
executive or administrator who cannot control his employees
cannot function. An essential element of control of employees is
the ability to replace them or transfer them within the system
when necessary. We can envision any number of reasons why a
school superintendent might wish to employ or reemploy a given
individual in a particular position, yet might not wish to be
bound, for a lengthy period of time, to retain the individual in
the particular position for which he was hired, or at all.
Furthermore, we, like the court in Von Stephens, see little basis
for distinguishing the terms "recommendations" and "nominations"
because of the imprecise manner in which these terms are used in
the school code. Von Stephens, 338 So.2d 890, 893 n. 3. For
these reasons, and because we can find no authority expressly
permitting school boards to amend the recommendations of the
superintendent, we find that the Board's action was ultra vires
and must be reversed.
[2] We also agree with Superintendent Greene's contention
that the Board should have appointed legal counsel to represent
him in his dispute with the Board. In the case of Shuler v.
School Board of Liberty County, 366 So.2d 1184, 1185 (Fla. 1st
DCA 1978), cert. dismissed, So.2d 368 1373 (Fla. 1979), this
court held:
Reversed and remanded for proceedings consistent with this
opinion.
MILLS and WIGGINTON, JJ., concur.
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DISCLAIMER
V.
SCHOOL BOARD OF HAMILTON COUNTY. Florida, Appellee.
District Court of Appeal of Florida.
First District.
January 17, 1984
Tallahassee, for appellant.
Paul Hendrick, Jasper, and Ronald C. LaFace of Roberts, Baggett,
LaFace, Richard and Wiser, Tallahassee, for appellee.
issue develops between a superintendent and
a school board, as to the respective powers
and responsibilities of each, of such magnitude
as to reasonably require competent legal advice,
each is entitled to independent representation
by competent legal counsel at public expense....
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