10-002791TTS Monroe County School Board vs. Mark Hooper Status: Closed Recommended Order on Wednesday, September 29, 2010.

Summary: Cause dismissed for lack of subject matter jurisdiction where issue involved a contract dispute between the parties, which is a matter for judicial rather than administrative or quasi-judicial consideration.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MONROE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 10 - 2791

)

MARK HOOPER , )

)

Respondent. )

________________________________)

RECOMMENDED ORDER OF DISMISSAL

Thi s matter came before Administrative Law Judge Edward T.

Bauer on the Joint Pre - Hearing Stipulation, filed by the parties

on September 23, 2010.

APPEARANCES

For Petitioner: Scott C. Black, Esquire

Venis and Bowling of the Florida

Keys, P.A.

81990 Overseas Highway, Third Floor

Islamorada, Florida 33036

For Respondent: Mark Herdman, Esquire

29605 U.S. Highway 19 North, Suite 110

Clearwater, Flo rida 33761

STATEMENT OF THE ISSUE

The dispute in this case arises out of Petitioner's

termination of Respondent's Employment with the Monroe County

School District.

PRELIMINARY STATEMENT

By letter dated May 7, 2010, Petitioner Monroe County

School Board notified Respondent that it had reviewed his file

and concluded that he had not satisfied the statutory

requirements for a professional service contract. The

corr espondence further informed Respondent that his "annual

contract is not being renewed f or the 2010 - 2011 school year. "

Subsequently, o n M ay 10, 2010, Leon Fowler, the President of

United Teachers of Monroe, advised Petitioner in writing that

Respondent was requesting a hearing with the Division of

Administrative Hearings to challenge Petitio ner's action.

On May 20, 2010, counsel for Petitioner forwarded

Respondent's request for an administrative hearing to the

Division of Administrative Hearings. This cause , while

initially assigned to Administrative Law Judge John G. Van

Laningham, was t r ansferred to the undersigned on June 30, 2010.

Upon review of the Joint Pre - Hearing Stipulation, filed by

the parties on September 23, 2010, the undersigned concluded

that the Division of Administrative Hearings lacked subject

matter jurisdiction to ad judic ate the dispute in this cause.

D uring a telephone conference on September 27, 2010, the

undersigned advised the parties that the final hearing was

cancelled and that a Recommended Order of Dismissal would

follow.

FINDINGS OF FACT

1. Having determ ined, for the reasons detailed below, that

the Division of Administrative Hearings lacks jurisdiction in

this cause, the undersigned declines to make findings of fact,

as such would be a nullity.

CONCLUSIONS OF LAW

2 . As noted above , the parties submit ted a Joint Pre -

Hearing Stipulation in this matter that detailed their

respective positions.

3. Petitioner acknowledges in the Pre - Hearing Stipulation

that Respondent was converted to Professional Service C ontract

(PSC) status in or around 2002. Howev er, Petitioner now

contends, some eight years after the fact, that Respondent did

not meet the requirements for a PSC when the parties originally

entered into the agreement . In particular, Petitioner asserts

that "Respondent was ineligible to obtain PSC a s he had not been

a member of the instructional staff for the required (3) years,"

and further, that it "can find no evidence of the required

recommendation by the Superintendent of Schools to the Board

authorizing the conversation from Annual Contract sta tus to

PSC." Due to these alleged deficiencies, Petitioner reasons

that:

[A]ny subsequent renewals of Respondent's

employment on an Annual Contract/PSC status

were statutorily invalid and void.

Similarly, the recommendation to convert

Respondent back to PSC instructional for the

2009 - 2010 school year was improper as the

initial requirements for PSC were not met.

Having failed to properly qualify and obtain

[a] PSC, Respondent's employment could only

be by way of annual contract. Ultimately,

Respondent received notice from the current

Superintendent, Dr. Burke, that he failed to

meet the requirements for [a] PSC and that

his annual contract would not be renewed for

the 2010 - 2011 school year.

4. Accordingly, t he crux of Petitioner's argument is th at

it was entitled, due to its own unilate ral mistakes of fact , 1 to

rescind the PSC Petitioner and Respondent entered into in 2002

and deem Respondent to have agreed to work under an annual

contract, which could be non - renewed at the pleasure of the

s uperi ntendent.

5. Respondent points out, in his section of the Pre -

Hearing Stipulation, what appears to be undisputed: he entered

into a PSC in 2002 and maintained uninterrupted PSC status

through the end of the 2009 - 2010 school year. However, contrary

to Petitio ner's argument , Respondent contends that he satisfi ed

the statutory requirements for a PSC, and as such, could only be

terminated by Petitioner with cause. Respondent further

asserts , quite sensibly, that even if he did not meet the

statutory requ irements of a PSC, Petitioner should be estopped

from replacing his PSC with an annual contract to which he never

assented.

6. If the parties were in agreement in this matter t hat

Respondent possessed a PSC, it is clear that the Division of

Admini strat ive Hearings would have subject matter jurisdiction

to adjudicate the lawfulness of the dismissal . See §

1012.33(6), Fla. Stat. (2010) (Providing that any member of an

instructional staff that is dismissed for cause during the term

of the contract may req uest a hearing to dispute the charges,

which shall be heard, at the district school board's election,

by either the Division of Administrative Hearings or in a direct

hearing conducted by the school board) ; § 120.569, Fla. Stat.

(2010); § 120.57, Fla. Stat . (2010).

7. The problem, however, is that the parties have taken

conflicting positions as to whether a PSC presently exists . As

discussed above, Petitioner asserts that the PSC conferred in

2002 was voidable , and as such, it was free to rescin d the PSC,

treat Respondent as an annual teacher, and decline to renew his

"annual contract" for the 2010 - 2011 school year despite the fact

that Respondent had never agreed to such a contract. On the

other hand, Resp ondent contends that he has properly he ld PSC

status since 2002, which requires Petitioner to demonstrate just

cause to terminate his employment.

8. Accordin gly, the instant case does not involve the

q uestion of whether an educator committed misconduct that would

allow the school board to t erminate his employment for cause (a

dispute over which the undersigned would have jurisdiction), but

rather, the distinct issue of whether Petitioner breached its

PSC with Respondent when it declared the contract void and

refused to continue performing it s obligations thereunder,

including the obligation to continue Respondent's employment

unless just cause for termination were shown to exist . While no

doubt inconvenient for the parties, it is well - settled that

contractual disputes are exclusively matters for judicial

consideration and cannot be litigated in this forum or an

administrative body . Worldwi de Research Services Corp. v.

Department of Financial Services , 2007 Fla. Div. Adm. Hear.

LEXIS 664 (DOAH December 6, 2007) (dismissing cause for lack of

jurisdiction where "Petitioner s eeks to have a contract dispute

. . . resolved in this forum. Be it an oral or written

contract, the resolution of contract disputes is the exclusive

jurisdiction of Article V courts"); Vincent J. Fasano, Inc., v.

School Bo ard of Palm Beach County, Fla. , 436 So. 2d 201, 202 - 203

(Fla. 4th DCA 1983) (holding that claim for "breach of contract

is ordinarily a matter for judicial rather than administrative

or quasi - judicial consideration"); Peck Plaza Condo. v. Division

of Fla. Land Sales and Condos. , 371 So. 2d 152, 153 - 154 (Fla.

1st DCA 1979) (holding Division of Administrative Hearings

lacked jurisdiction to adjudicate contract dispute;

"Jurisdiction to interpret . . . contracts is, under our system,

vested solely in the judic iary"); see also Fla. State University

v. Hatton , 672 So. 2d 576, 579 (Fla. 1st DCA 1996 ) (noting that

the Division of A dmini strative H earings is a quasi - judicial

forum and not a court of competent jurisdiction ).

9. For these reasons, the Division of Ad ministrative

Hearings lacks subject matter jurisdiction to resolve what is

plainly a contract dispute between the parties. Respondent is ,

of course, free to seek redress for wrongful termination or

breach of contract in the appropriate judicial forum.

R ECOMMENDATION

It is

RECOMMENDED that Petitioner dismiss Respondent's request

for an administrative hearing for lack of jurisdiction.

DONE AND ENTERED this 29 th day of September , 2010 , in

Tallahassee, Leon County, Florida.

S

___________________________________

EDWARD T. BAUER

Administrative Law Judge

Division of Administrative Hearings

The De Soto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 29 th day of September, 2010 .

ENDNOTE

1 T he undersigned notes that Petitioner's argument in this

regard appears to lack support in the law. See Limehouse v.

Smith , 797 So. 2 d 15, 17 (Fla. 4th DCA 2001) ("However, a

party's performance under a contract is not excused on the basis

of a unilateral mistake when the mistake is the result of the

party's own negligence and lack of foresight, or the other party

has relied upon his performance so that rescission would be

inequitable").

COPIES FURNISHED :

Dirk M. Smits

Monroe County School Board

umbo Road

Key West, Florida 33040

Leon Fowler, Esquire

1400 United Street No. 105

Key West, Florida 33040

Mark Herdman, Esquire

Herdman & Sakellarides, P.A.

29605 U.S. Highway 19, North, Suite 110

Clearwater, Florida 33761

Scott Clinton Black, Esquir e

Vernis and Bowling of the Florida Keys, P.A.

81990 Overseas Highway, Third Floor

Islamorada, Florida 33036

Dr. Eric J. Smith, Commissioner

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Deborah K. Kearney, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Randy Acevedo, Superintendent

Monroe County School District

umbo Road

Key West, Florida 33040 - 6684

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions

within 15 days from the date of this recommended order. Any

exceptions to this recommended order must be filed with the

agency that will issue the final orde r in this case.