12-001254TTS St. Lucie County School Board vs. Lurana Hillard Status: Closed Recommended Order on Wednesday, July 18, 2012.

Summary: School psychologist, whose DROP particpation had been extended for three additional school years, was not, by virtue of the approval of that extension, entitled to the renewal of her annual contract for the the last of these three additional school years.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ST. LUCIE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 12 - 1254

)

LURANA HILLARD, )

)

Respondent. )

)

RECOMMENDED ORDER

The instant case is before Stuart M. Lerner, a duly -

designated administrative law judge of the Division of

Administrative Hearings (DOAH) , who, pursuant to the request of

the parties, issues this Recommended Order based upon stipulated

facts in lieu of conduct ing a n evidentia ry hearing.

APPEARANCES

For Petitioner: Elizabeth Coke, Esquire

Richeson and Coke, P.A.

317 South 2nd Street

Post Office Box 4048

Fort Pierce, Florida 34950

For Respondent: Mark F. Kel ly, Esquire

Kelly and McKee, P.A.

1718 East 7th Avenue, Suite 301

Post Office Box 75638

Tampa, Florida 33675 - 0638

STATEMENT OF THE ISSUE

Whether Petitioner had a contractual obligati o n, which it

breached, to employ Respondent during the 2009 - 2010 school year,

and, if so, what damages should be awarded.

PRELIMINARY STATEMENT

Lurana Hillard was formerly employed by the St. Lucie County

School Board (School Board) as a Program Specialis t for School

Psychology and School Psychologist s . Following the termination

of her employment, she filed suit in St. Lucie County Circuit

Court alleging that the School Board had breached its employment

contract with her. The action was dismissed for fai lure to

exhaust administrative remedies. Ms. Hillard appealed to the

Fourth District Court of Appeal, which affirmed, issuing (on

January 12, 2012), the following opinion:

We affirm the circuit court's dismissal of

this action for failure to exhaust

adm inistrative remedie s, on the authority of

Sch. Bd. of Flagler Cnty. v. Hauser , 293 So.

2d 681 (Fla. 1974). Like the teacher in

Hauser , appellant claimed that she had a

continuing contract of employment in the

school district, while the appellee school

boa rd claimed that she was retained on an

annual contract, to which she was not

reappointed. Also similar to Hauser ,

appellant sought declaratory relief in the

circuit court on the basis of her claim to a

continuing contract. In Hauser , our supreme

court he ld that, under these circumstances,

the teacher was required to exhaust

administrative remedies by seeking a hearing

under the Administrative Procedures Act. 293

So. 2d at 683. We are bound by this

precedent. However, as in Hauser , o ur

affirmance is wit hout prejudice to appellant

seeking the administrative hearing to which

she was entitled.

The appellate court's mandate issued on January 27, 2012.

On or about February 7, 2012, Ms. Hillard filed with the

School Board a Petition for Administrative Hearing (Petition),

which read as follows:

Petitioner, LURANA C. HILLARD, pursuant to

§ 120.569, Fla. Stat., Rule 28 - 106.201, Fla.

Admin. Code, and the attached Order of the

District Court of Appeal, Fourth District,

State of Florida, petitions the School Board

of St. Lucie County, Florida (hereinafter

"School Board"), for an administrative

hearing. In support of this Petition, the

School Board is shown.

1. The Petition affects the School Board of

St. Lucie County, Florida, whose address is

4204 Okeechobee Roa d, Ft. Pierce, Florida.

2. The Petitioner's address is . . .; and

whose telephone number is . . . Contact

information for the Petitioner's

representative is shown in the signature

block below. Petitioner's substantial

interests are affected in that she believes

that, by virtue of the facts alleged below,

she was entitled to employment as a contract

educator through the 2009 - 2010 school year,

and that the determination by the School

Board's administration that her employment

should end at the conclusion of the 2008 - 2009

school year is contrary to the applicable

Florida statutes. Petitioner contends that

she is entitled to the monetary value of the

salary and benefits she would have earned

during the 2009 - 2010 school year, along with

retirement contributi ons and any other

applicable benefits, less interim earnings.

3. Petitioner's representative received a

copy of the Order of the Court of Appeal [] on

January 13, 2012, and received the Mandate on

January 30, 2012.

4. Petitioner was employ[ed] by the Sc hool

Board as a Program Specialist for School

Psychology and School Psychologist [s] . She

was a participant in the Florida Retirement

System (FRS) and its "Deferred Retirement

Option Program" (hereinafter "DROP").

5. Petitioner was given prior written

co nfirmation of her employment with the

School Board for the 2009 - 2010 school year in

School Board document s dated January 12 and

January 16, 2007, copies of which are

attached as Exhibits A and B. Each document

is signed by an agent of the School Board and

was transmitted to FRS pursuant to

§ 121.091(13), Fla. Stat. The FRS confirmed

Petitioner's employment and DROP

participation through the end of the 2009 -

2010 school year in a document dated

January 17, 2007, a true copy of which is

attached as Exhibi t C. Petitioner executed a

binding letter of resignation from the School

Board effective June 30, 2010, pursuant to

the statute.

6. In March 2009, Petitioner was notified by

the School District administrators that her

employment with the School Board wo uld end at

the conclusion [of] the 2008 - 2009 school

year, despite the agreements and

documentation described in paragraph 5,

above. The Superintendent of Schools,

Michael J. Lannon, asserted that he is

authorized by § 121.091(13), Fla. Stat. to

summarily terminate the employment of the

Petitioner, notwithstanding the prior written

confirmation of her continued employment for

the 2009 - 2010 school year.

7. The Petitioner believes that the

documentation in paragraph 5, above, created

an express or implied c ontract and a

reasonable expectation of continued

employment thro ugh the 2009 - 2010 school year,

rights [that] are consistent with the

provisions of § 121.091(13). Moreover, the

provisions of § 121.091(13) relied on by the

Superintendent do not supplant th e

contractual protections enjoyed by the

Petitioner under § 1012.33(8), which appears

to make annual contracts for the term -

eligible teachers permissible but not

mandatory.

8. The Petitioner has been damaged in the

form of lost salary and benefits for th e

2009 - 2010 school year and reasonably relied

on the School Board's promise of continued

employment to her detriment.

The School Board referred the Petition to DOAH on April 11, 2012.

On May 22, 2012, the School Board filed a Motion for Summary

Recommend ation, arguing that the material facts in the instant

case "are undisputed and the application of the law to those

facts support a Su mmary Recommendation to the School Board that

Respondent was employed under an annual contract which expired,

and therefore , no damages are due. " Ms. Hillard timely filed a

Memorandum in Opposition to Petitioner's Motion for Summary

Recommendation. A hearing on the Motion for Summary

Recommen dation was held on May 31, 2012, during which the parties

jointly requested the unde rsigned to cancel the final hearing

scheduled in this case and issue a recommended order based on

stipulated facts and legal arguments presented by the parties .

By Order issued June 1, 2012, the undersigned granted the

request; cancelled the final hearing in this case scheduled for

June 8, 2012; ordered the parties to file their stipulation of

facts and proposed recommended orders no later than June 8, 2012,

and June 20, 2012, respectively; and advised the parties that

o ral argument on the legal issues pre sented in this case w ould be

held by telephone conference call on June 27, 2012, starting at

10:30 a.m.

T he parties timely filed their Joint Stipulation of Facts on

June 8, 2012, and their Proposed Recommended Orders on June 20,

2012. Oral argument was heard on June 27, 2012, as scheduled

FINDINGS OF FACT

1. The following is a verbatim recital of the Joint

Stipulation of Facts filed by the parties on June 8, 2012:

1. Lurana Hillard (Respondent ) was employed

by the St. Lucie County School District

(Peti tioner) as a Program Specialist for

School Psychology and School Psychologists

beginning in the 2005/2006 school year.

2. Respondent was a participant in the

Florida Retirement System ("FRS") and its

Deferred Retirement O ption Program

(herein after "DROP" ).

3. Respondent's initial 60 - month period of

DROP was from July 1, 2002 through June 30,

2007.

4. In January 2007, Respondent signed a

document requesting to extend her

participation in DROP beyond the initial 60 -

month period. A true and correct copy of the

Form is attached as Exhibit B. [ 1 / ]

5. Barbara Casteen is the Director of

Student Services and Respondent's supervisor.

6. On January 12, 2007, Barbara Casteen sent

Steve Valencia, Director of FTE/Position

Control, an email with a copy to Respond ent

regarding DROP extension. A true and correct

copy of that email is attached as Exhibit

A. [ 2 / ]

7. On January 16, 2007, DROP Extension forms

[sic] prescribed by the Florida Retirement

System were executed by Respondent and Steve

Valencia. A true and correct copy of the

Form is attached as Exhibit B.

8. Mr. Valencia had the authority, as the

Superin ten dent's designee, to execute the

form advising that that the School Board

stipulates that the Respondent was eligible

to participate in DROP beyond the initial 60 -

months.

9. On January 23, 2007, at a regularly

scheduled School Board meeting , the Board

approved the Personnel Agenda which included

DROP extension for Respondent. [ 3 / ] Attached

is a true and correct copy of the Personnel

Agenda for the Janua ry 23, 2007 meeting and

minutes from the same. [ 4 / ] The Board has

taken no subsequent formal action regarding

Respondent's DROP status.

10. On May 26, 2009, Barbara Casteen sent

Respondent a letter advising that she would

not recommend her for reappointm ent for the

2009 - 2010 school year. A true and correct

copy of this letter is attached as Exhibit C.

11. On June 30, 2009, Respondent signed a

Notification of Separation from Employment

Form. A true and correct copy of that Form

is attached as Exhibit D .

12. On July 29, 2009, the School Board

approved Respondent's retirement. A true and

correct copy of a letter from Shelby Baker,

Personnel Records Specialist and Employer

Notification of Employment Termination are

attached as Exhibit E.

13. Respondent initially submitted a letter

of resignation pursuant to the DROP statu t e

dated June 30, 2007.

14. Based on request to extend DROP,

Respondent submitted another letter of

resignation dated June 30, 2010 pursuant to

the DROP statute.

15. Respondent rece ived from FRS a Revised

Notification of DROP Extension Benefits which

is attached as Exhibit F.

16. Attached is a true and correct copy of

the FRS DROP Termination Notification as

Exhibit G.

17. Apart from the documents referred to

herein, Respondent w as issued no documents by

the St. Lucie County School Board reflecting

her employment status during the period of

her DROP extension.

2. The body of the January 12, 2007, email from Ms. Casteen

to Mr. Valencia attached to the parties' Joint Stipulation o f

Facts as Exhibit A (1/12/07 Email) read as follows:

I am approving the DROP extension for Lurana

Hillard for 3 years from 7/1/07 to 6/30/10.

If you need any further information, please

feel free to contact me.

3. The " Form " attached to the parties' Jo int Stipulation of

Facts as Exhibit B is a co mpleted Department of Management

Services, Division of Retirement (Division) form -- F orm DP - EXT

( 05/05 ) (DROP Extension Form) -- signed in January 2007, by

Ms. Hillard and by Mr. Valencia , as the Superintenden t's

"designee". 5 / On this completed and signed DROP Extension Form

(Executed Extension Form or Form) , Ms. Hillard indicated that her

"DROP begin date" was July 1, 2002; that her "DROP termination

and resi gnation date" was June 30, 2007 ; and that she was

" requesting to extend [her] DROP participation through 6/30 / 10

with the approval of [her] employer." The "Employer

Certification" section of the Form contained the following

statement made to the Division by Mr. Valencia, a s the

Superintendent's designee :

This is to certify that the St. Lucie County

School Board (agency name) has rescinded the

resignation of the above named member whose

position meets the definition of an

instructional position. The agency has

approved a new termination date

of 6 / 30 / 10 . This agency stipulates that this

member is eligible to participate in the DROP

beyond 60 months and the member will continue

working in a regularly established position

as a School Psychologist . [ 6 / ]

CONCLUSIONS OF LAW

4. DOAH has jurisdiction over the su bject matter of this

proceeding and of the parties hereto pursuant to chapter 120,

Florida Statutes. 7 /

5. Dist rict school boards (such as the School Board ) are

creatures, not of statute, but of the Florida C onstitution,

specifically article IX, s ection 4, thereof. See McCalister v.

Sch. Bd. of Bay Cnty. , 971 So. 2d 1020, 1023 (Fla. 1st DCA

2008)("Article IX, section 4(b) of the constitution creates

[district] school boards . . . .'"); and Dunbar Electric Supply

v. Sch. Bd. of Dade Cnty. , 690 So. 2d 1339, 1340 (Fla. 3d DCA

1997)("School boards are constitutional entities created by

Article IX, Section 4 of the Florida Constitution. School boards

do not fall within the executive branch of the state

government.").

6. "In accordance wit h the provisions of s. 4(b) of [a] rt.

IX of the State Constitution, district school boards [have the

authority to] operate, control, and supervise all free public

schools in their respective districts and may exercise any power

except as expressly prohibited by the State Consti tution or

general law." § 1001.32(2). Such authority extends to personnel

matters and includes the power to hire, suspend, and dismiss

employees. § 1001.42 (5).

7. " Any person employed as a [school psychologist or other]

member of the instructional staf f in any district school

system [ 8 / ] . . . [must] receive a written contract . "

§ 1012.33(1)(a). The employment contract must be provided by the

employing district school board itself . See McCalister , 971 So.

2d at 1026 (citing with approval , Sch . B d . of Leon Cnty. v.

Goodson , 335 So. 2d 308, 310 (Fla. 1st DCA 1976))("'Under the

statutory scheme devised by the legislature, the exclusive

contracting agent for a District School System is the School

Board.' "); and § 1012.22(1)(d) ("The district school board shall

provide written contracts for all regular members of the

instructional staff."). "While the superintendent is endowed

with the authority to nominate an employee for a certain

position, . . . it is the [district] school board [alone] that

retains the contracting authority for the school districts. "

McCalister , 971 So. 2d at 1027; see also Witgenstein v. Sch. Bd.

of Leon Cnty ., 347 So. 2d 1069, 1073 (Fla. 1st DCA 1977)("[T]he

ultimate responsibility for the decision to employ or not to

employ a teache r rests with the District School Board, not with

the superintendent."); Hart v. Sch. Bd. of Wakulla Cnty. , 340 So.

2d 121, 122 (Fla. 1st DCA 1976)("[A] teacher's contract is with

the School Board, not with the principal or superintendent.");

and § 1012.27( 1)(b) ("The district school superintendent . . .

shall perform the following: . . . nominate in writing persons

to fill such positions [needed to be filled] . "). A d istrict

school board can not be bound by an alleged employment contract it

has not expressl y approved. See Goodson , 335 So. 2d at 310 - 311

("Neither a superintendent nor a principal, acting individually

or collectively, may enter into a contractual agreement with a

teacher without the express approval of the School Board. . . .

In the absence o f a showing that the School Board approved the

agreement in question, there can be no finding that the agreement

had a binding effect upon the Board.").

8. At all times material to the instant case, district

school boards were "statutorily authorized [by section 1012.33]

to utilize one of three types of written contracts to employ [an

instructional staff member][:] . . . a continuing contract, a

professional service contract, or an annual contract." Lee Cnty.

Sch. Bd. v. Silveus , Case No. 04 - 4096, 2005 F la. Div. Adm. Hear.

LEXIS 904 *17 (Fla. DOAH Mar. 16, 2005), adopted in pertinent

part , Case No. 05 - 0003 (Lee Cnty. Sch. Bd. June 14, 2005).

"Continuing and professional service contracts include the right

to continuing employment [from year to year] , but annual

contracts [which are subject to optional renewal each year] do

not." Id . at *18; see also Orange Cnty. Sch. Bd. v. Rachman , 87

So. 3d 48, 49 n.1 (Fla. 5th DCA 2012)("Whereas an annual contract

must be renewed every year, a professional service con tract is a

continuous contract which renews automatically, and can only be

terminated for just cause pursuant to section 1012.33, Florida

Statutes, or based upon uncorrected performance deficiencies

pursuant to section 1012.34, Florida Statutes."); Buckner v. Sch.

Bd. of Glades Cnty. , 718 So. 2d 862, 866 (Fla. 2d DCA

1998)("[I]instructional staff employed under annual probationary

contracts have no right to future employment after their annual

contract expires."); Palm Beach Cnty. Sch. Bd. v. Stuglik , Case

No. 10 - 1526, 2010 Fla. Div. Adm. Hear. LEXIS 69 *19 (Fla. DOAH

Aug. 2, 2010; Palm Bch Cnty. Sch. Bd. Oct. 19, 2010)("An annual

contract teacher employed by a district school board has no right

to continued employment beyond the term of the contract.");

Ach tchi v. Wakulla Cnty. Sch. Bd. , Case No. 88 - 2808, 1988 Fla.

Div. Adm. Hear. LEXIS 4536 *14 (Fla. DOAH Dec. 23, 1988; Wakulla

Cnty. Sch. Bd. Mar. 20, 1989)("[A] professional service contract

is equivalent to a continuing contract, insofar as conferring

tenu re, absent charges of unsatisfactory performance [or other

cause].") ; and Educ. Practices Comm'n v. Dixon , Case No. 82 - 408,

1984 Fla. Div. Adm. Hear. LEXIS 4641 *12 (Fla. DOAH June 20,

1984)(Recommended Order)("Th[e] School Board has the clear option

of re newing or not renewing Respondent's annual contract as it

sees fit."). Continuing contract and professional services

contract employees recommended for dismissal or non - renewal at

the end of the school year are entitled to an administrative

hearing prior to the termination of their employment, whereas

annual contract employees not nominated for contract renewal have

no comparable administrative hearing right. See Williams v. B d .

of Pub. Instruction of Dade Cnty. , 311 So. 2d 812, 814 (Fla. 3d

DCA 1975)("A teacher under continuing contract is given the right

to notice and a hearing prior to dismissal; but where the School

Board determines not to renew the contract of a teacher on

probationary status (annual contract), the right to a hearing is

not granted, u nless the teacher is either dismissed during the

school year or suspended."). 9 /

9. "A continuing contract applies only to instructional

staff [who] attain[ed] their contract status before July 1984."

Dietz v. Lee Cnty. Sch. Bd. , 647 So. 2d 217, 218 (Fl a. 2d DCA

1994)( Blue, J., specially concurring). "[C]ontinuing contracts

were replaced by professional service contracts after July 1,

1984." 10 / See D'Allessandro v. Dailey , Case No 96 - 0936, 1996 Fla.

Div. Adm. Hear. LEXIS 3256 *129 (Fla. DOAH June 28, 19 96; Lee

Cnty. Sch. Bd. Sept. 18, 1996) . Since September 9, 1984, Florida

Administrative Code Rule 6A - 1.064(1) has provided as follows with

respect to the "forms" to be used by district school boards when

issuing professional service contracts, as well as annual

contracts :

Forms of contract for annual contracts and

for professional service contracts entered

into by school boards and instructional and

professional administrative personnel as

provided by law shall be prescribed by the

State Board of Educati on. Contents of

contract forms shall comply with all

pertinent provisions of law and State Board

Rules. No contract form shall indicate, or

be altered to show, any uncertainty with

reference to the amount of salary for the

contract period of service, or the duration

of the period of service, except as the rank,

contract status, and qualifications of the

teacher may change, or pursuant to a duly

adopted collective bargaining agreement, or

where membership in a school or program is so

unstable that it might be necessary to

discontinue classes because of lack of

pupils, in which latter case the contract may

be stated to be effective at the option of

the board conditional on a minimum number of

pupils. Any clause inserted in a contract

form purporting to prov ide that the contract

salary will be paid only if funds are

available shall be null and void.

10. Whether employed under a continuing contract, a

professional service contract, or an annual contract ,

instructional staff members in regularly established p ositions

are required to participate in the Florida Retirement System ( see

Fla. Admin. Code R. 60S - 1.004(1)(a)), a feature of which is the

Deferred Retirement Option Program (DROP) described in section

121.091 (13). At all times material to the instant cas e, section

121.09 1 ( 13) provided, in pertinent part, as follows:

DEFERRED RETIREMENT OPTION PROGRAM. -- In

general, and subject to the provisions of

this section, the Deferred Retirement Option

Program, hereinafter referred to as the DROP,

is a program under which an eligible member

of the Florida Retirement System may elect to

participate, deferring receipt of retirement

benefits while continuing employment with his

or her Florida Retirement System employer.

The deferred monthly benefits shall accrue in

the System Trust Fund on behalf of the

participant, plus interest compounded

monthly, for the specified period of the DROP

participation, as provided in paragraph (c).

Upon termination of employment, the

participant shall receive the total DROP

benefits and begin to receive the previously

determined normal retirement benefits.

Participation in the DROP does not guarantee

employment for the specified period of DROP.

Participation in the DROP by an eligible

member beyond the initial 60 - month period as

authori zed in this subsection shall be on an

annual contractual basis for all

participants.

* * *

(a) Eligibility of member to participate in

the DROP. -- All active Florida Retirement

System members in a regularly established

position, . . . are eligible to elect

participation in the DROP provided that:

* * *

2. . . . . The member shall advise his or

her employer and the division in writing of

the date on which the DROP shall begin. . . .

3. The employer of a member electing to

participate in the DROP . . . shall

acknowledge in writing to the division the

date the member's participation in the DROP

begins and the date the member's employment

and DROP participation will terminate.

(b) Participation in t he DROP.

1. An eligible member may elect to

participate in the DROP for a period not to

exceed a maximum of 60 calendar months or,

with respect to members . . . who are

instructional personnel as defined in s.

1012.01(2)(a) - (d) in grades K - 12 and who ha ve

received authorization by the district school

superintendent to participate in the DROP

beyond 60 calendar months, [ 11 / ] 96 calendar

months immediately following the date on

which the member first reaches his or her

normal retirement date or the date to w hich

he or she is eligible to defer his or her

election to participate as provided in

subparagraph (a)2. [ 12 / ] However, a member who

has reached normal retirement date prior to

the effective date of the DROP shall be

eligible to participate in the DROP for a

period of time not to exceed 60 calendar

months or, with respect to members . . . who

are instructional personnel as defined in s.

1012.01(2)(a) - (d) in grades K - 12 and who have

received authorization by the district school

superintendent to participate i n the DROP

beyond 60 calendar months, 96 calendar months

immediately following the effective date of

the DROP, . . . .

2. Upon deciding to participate in the DROP,

the member shall submit, on forms required by

the division:

* * *

b. Selection of the DROP participation and

termination dates, which satisfy the

limitations stated in paragraph (a) and

subparagraph 1. Such termination date shall

be in a binding letter of resignation with

the employer, establishing a deferred

termi nation date. The member may change the

termination date within the limitations of

subparagraph 1., but only with the written

a pproval of his or her employer;

* * *

3. The DROP participant shall be a retiree

under the Florida Retirement System for all

purposes, except for paragraph (5)(f) and

subsection (9) and ss. 112.3173, 112.363,

121.053, and 121.122. However, participation

in the DROP does not alter the participant's

employment status and such employee shall not

be deemed retired from employment until his

or her deferred resignation is effective and

termination occurs as provided in s.

121.021(39). [ 13 / ]

* * *

(c) Benefits payable under the DROP. --

* * *

3. The effec tive date of DROP participation

and the effective date of retirement of a

DROP participant shall be the first day of

the month selected by the member to begin

participation in the DROP, provided such date

is properly established, with the written

confirmat ion of the employer, and the

approval of the division, on forms required

by the division.

4. Normal retirement benefits and interest

thereon shall continue to accrue in the DROP

until the established termination date of the

DROP, or until the participant terminates

employment or dies prior to such

date. . . . [ 14 / ]

5. At the conclusion of the participant's

DROP, the division shall distribute the

participant's total accumulated DROP

benefits, subje ct to the following

provisions:

a. The division shall r eceive verification

by the participant's employer or employers

that such participant has terminated

employment as provided in s. 121.021(39)(b).

11. The Division has been delegated the authority "to adopt

rules as are necessary for the effective and effi cient

administration of [the Florida Retirement ] [S]ystem. " § 121.031.

Among the rules the D ivision has adopted pursuant to this

authority are Florida Administrative Code Rule s 60S - 11.001

(provid i ng "definitions"), 60S - 11.004 (dealing with "[b]enefits"}

and 60S - 9.001 ( prescribing "[a]pporoved forms"). At all times

material to the instant case, these rules pro vided , in pertinent

part, as follows:

60S - 11.001 Definitions

* * *

(8) DROP END DATE Î means the date DROP

participati on ceases and shall be the date

termination of all employment occurs as

defined in subsection 60S - 6.001(63),

F.A.C. . . . The DROP end date shall be

effective as of the date of the participant' s

designated deferred resignation, as stated on

Form DP - ELE, or earlier if the participant

terminates prior to the designated

resignation date. The participant may cease

participation in DROP prior to the designated

resignation date only by satisfying the

definition of termination as provided in

subsection 60S - 6.00 1(63), F.A.C.

* * *

(63) TERMINATION Î Termination occurs when a

member of the Florida Retirement System . . .

ceases all employment relationships with all

covered employers, provided that the member

shall not be reemployed by any such employer

within the next calendar month. . . .

60S - 11.004 Benefits

* * *

(5) Employment During DROP Participation.

(a) A DROP participant is considered a

retiree as defined in subsection 60S -

6.001(53), F.A.C. Howe ver, participation in

DROP does not alter the participant's

employment status. Terms and conditions of

employment, including, but not limited to,

salary, insurance coverage, leave accrual,

and seniority status, do not change as a

result of DROP participat ion. However,

employment is not guaranteed during the DROP

participation period.

(b) Employment continues during

participation in DROP through the date the

member preselected to stop participation in

DROP . . . .

60S - 9.001 Approved Forms

The followin g is a list of the forms utilized

by the Division of Retirement in its dealings

with the public, which are hereby

incorporated by reference into these

rules. . . .

* * *

(3) Bureau of Benefit Payments.

* * *

(rr) DP - EXT (5/05) Deferred Retirement

Option Program (DROP) for Specified K - 12

Instructional Personnel Î a one - page form.

12. Form DP - EXT ( 0 5/05) , which was incorporated by

reference in rule 60S - 9.001 , read as follows :

Florida Retirement Sys tem Pension Plan

Extension of Deferred Retirement Option

Program (DROP)

For Specified K - 12 Instructional Personnel

P O Box 9000

Tallahassee FL 32315 - 9000

850 488 - 6491 Toll Free 888 738 - 2252

Member Name _____ Member SSN ________

Posi tion Title _____ Birthdate ________

Home Phone _____ Work Phone ________

Home Mailing Address Present FRS Employer(s)

____________________ ____________________

Section 121.091(13), F.S., allows individuals

who are employed in a K - 12 instructional

position as de fined in s. 1012(2)(a) - (d),

F.S., with a district school board, Florida

School for the Deaf and Blind or a

developmental research school to participate

in DROP beyond 60 months (up to a total of 96

months). Any participant who is eligible to

participate f or more than 60 months must

receive authorization from the employer and

be e mployed on an annual contractual basis

for each year of participation, after the

initial 60 - month period . The individual must

be employed in an eligible position at the

end of his /her initial DROP period in order

to be considered eligible for DROP extension

and must remain in an eligible position

during the period of extension.

The dates of my DROP participation for my

initial 60 - month participation period are:

DROP begin da te: _______ DROP termination

and resignation date: _______

I am requesting to extend my DROP

participation through ______ with the

approval of my employer.

Member Signature: (sign in the presence of a

Notary) ________________

Notary : State of Florid a, County of

_________ The above named person has sworn

to and subscribed before me this __ day of

______ 20__ and is personally known __ or

produced _______ as identification.

___________________ _________________________

Signature of Notary Public - Stat e of Florida

___________________ ______________________

Print, Type or Stamp Commissioned Name of

Notary Public

Employer Certification:

This is to certify that the _________ (agency

name) has rescinded the resignation of the

above named member whose pos ition meets the

definition of an instructional position. The

agency has approved a new termination date

of __/___/__ . This agency stipulates that

this member is eligible to participate in the

DROP beyond 60 months and the member will

continue working in a regularly established

position as a _________________.

Superintendent or Designee

Signature __________ Agency Number ________

Agency Phone _______ SUNCOM______ Date _____

As noted above, the Executed Extension Form was a completed Form

DP - EXT ( 0 5/05) signed by Ms. Hillard and Mr. Valencia .

13. In the instant case, through her Petition, Ms. Hillard

is claiming that "she was entitled to employment as a contract

educator through the 2009 - 2010 school year, and that the

determination by the School Board' s administration that her

employment should end at the conclusion of the 2008 - 2009 school

year [was] contrary to the applicable Florida statutes." The

underlying premise of this claim is that she had a contract of a

continuing nature until June 30, 2010, her extended DROP

termination date , not an expired annual contract, at the time her

employment was terminated . According to Ms . Hillard, the 1/12/07

Email and the Executed Extension Form created such a contract and

thus obligat ed the School Board to conti nue to employ her until

the last day of the 2009 - 2010 school year , June 30, 2010 .

14. Ms. Hillard bears the burden of es tablishing th at she

had such a contract with the School Board and is thus entitle d to

the relief she is seeking herein -- "the monetary value of the

salary and benefits she would have earned during the 2009 - 2010

school year, along with retirement contributions and any other

applicable benefits, less interim earnings." See Graham v.

Estuary Props., Inc. , 399 So. 2d 1374, 1379 (Fla. 1981)( "[ It is]

the established rule of administrative law that one seeking

relief carries the burden of proof."); Knowles v. C. I. T. Corp. ,

346 So. 2d 1042, 1043 (Fla. 1st DCA 1977)(" It is elementary that

in order to recover on a claim for breach of contract th e burden

is upon the claimant to prove by a preponderance of the evidence

the existence of a contract, a breach thereof and damages flowing

from the breach. "); and Deen v. Sch. Bd. of Hernando Cnty. , Case

No. 85 - 1342, 1985 Fla. Div. Adm. Hear. LEXIS 4927 * 11 (Fla. DOAH

Nov. 5, 1985; Hernando Cnty. Sch. Bd. Dec. 17, 1985) ("The burden

is on the Petitioner, to establish by a preponderance of

evidence, the existence of a continuing contract as principal

between him and the Respondent, School Board of Hernando

C ount y ." ).

15. "[T] o have a contract, there must be reciprocal assent

to certain and definite propositions. " Truly Nolen, Inc. v.

Atlas Moving & Storage Warehouses, Inc. , 125 So. 2d 903, 905

(Fla. 3d DCA 1961) ; see also State v. Family Bank of Hallandal e ,

623 So. 2d 474, 479 - 480 (Fla. 1993)("In order to form a binding

contract there must be a common or mutual intention of the

parties. Mutual assent is an absolute condition precedent to the

formation of a contract. Absent mutual assent, neither the

cont ract nor any of its provisions come into existence. . . .

Without a meeting of the minds on . . . an essential element

there can be no enforceable contract.") ; and Suggs v. Defranco's,

Inc. , 626 So. 2d 1100, 1100 - 1101 (Fla. 1st DCA 1993)("To be

enforceabl e, an agreement must be sufficiently specific, and

reflect assent by the parties to all essential terms. Where

essential terms of an agreement remain open, subject to future

negotiation, there can be no enforceable contract.")(citation

omitted). M ore tha n a unilateral statement made by one of the

alleged contracting parties , unsupported by mutually - agreed on

consideration, is required. See Quaker Oats Co. v. Jewell , 818

So. 2d 574, 578 (Fla. 5th DCA 2002)("[P]olicy statements

contained in employment manu als do not give rise to enforceable

contract rights in Florida."); Linafelt v. Bev, Inc. , 662 So. 2d

986, 989 (Fla. 1st DCA 1995)("Although Linafelt maintains Beverly

Enterprises' policies and procedures amounted to an employment

contract with him, unilate ral policy statements cannot, without

more, give rise to an enforceable contract."); and McConnell v.

Eastern Air Lines, Inc. , 499 So. 2d 68, 69 (Fla. 3d DCA

1986)("[U]nilateral policy statements cannot, without more, give

rise to enforceable contract righ ts.") ; see also Chase Fed. Sav.

& Loan Ass'n v. Schreiber , 479 So. 2d 90, 101 (Fla.

1985)("[C]onsideration is required to support contractual

undertakings of any kind whether characterized as contracts,

covenants, promises, agreements, or the like."). Mor eover, i t is

not enough that the party asserting the existence of a contract

subjectively believes that the alleged deal was struck . An

objective manifestation of the purported agreement is required .

See Gendzier v. Bielecki , 97 So. 2d 604, 608 (Fla. 195 7) ("The

rule is probably best expressed by the late Justice Holmes in

'The Path of the Law,' 10 Harvard Law Review 457, where it was

stated in part that , 'The making of a contract depends not on the

agreement of two minds in one intention, but on the agree ment of

two sets of external signs - not on the parties having meant the

same thing but on their having said the same thing.'");

Clearwater v. Bekker , 526 So. 2d 96 1, 964 - 965 (Fla. 2d DCA

1988)(" Mere expectations by the appellees [based on a memorandum

iss ued by the city manager unilaterally extending to them sick

leave conversion benefits] are insufficient to create a binding

contract requiring the city to provide this sick leave

[conversion] benefit to the appellees on a continuing basis for

any definite period of time."); Bryant v. Shands Teaching Hosp . &

Clinics, Inc ., 479 So. 2d 165, 168 (Fla. 1st DCA 1985)("[T]he

circuit court was entitled to find, as it implicitly did, that

appellants' assertions that the alleged personnel policies were

part of their contract of employment with the new Shands were

mere unilateral expectations, rather than the explicit mutual

promises necessary to create a binding contractual term. ") ; and

Berrian v. Nat'l R.R. Passenger Corp. , 429 So. 2d 1381, 1383

(Fla. 2d DCA 1983)("O nly if there were a contract for a

particular term would Berrian's employment not be terminable at

will. He has not alleged that the parties had a mutual

understanding, whether written or oral, formal or informal, that

his employment would be continued fo r any particular term. In

the final analysis, the complaint alleges, at best, a unilateral

expectation on the part of Berrian which is insufficient to

create a property right .").

16. An examination of the two documents upon which

Ms. Hillard relies in support of her claim that she had an

employment contract with the School Board that expired June 30,

2010 -- the 1/12/07 Email and the Executed Extension Form -- reveals

that neither document constitutes an objective manifestation of

mutual assent on the p art of Ms. Hillard and the School Board to

Ms. Hillard's continuing employment with the School Board through

the 2009 - 2010 school year.

17. The 1/12/07 Email is merely informational

correspondence from one School Board employee (Ms. Casteen, the

School Board's Director of Student Services and Respondent's

supervisor) to another School Board employee (Mr. Valencia, the

School Board's Director of FTE/Position Control) concerning the

former's "approving the DROP extension for [Ms.] Hillard for 3

years from 7/01/07 to 6/30/10." See Wood v. Pasco Cnty. , Case

No. 8:09 - cv - 6 - T - 30MAP, 2009 U.S. Dist. LEXIS 62050 *7 (M.D. Fla.

July 8, 2009)("'Plaintiffs seem to rely on an 'Interoffice

Memorandum,' attached as Exhibit A to the complaint to assert

that it is a contr act and/or license from Defendant to

Plaintiffs. The Interoffice Memorandum is clearly not a contract

between the parties, but rather an administrative document that

formally communicates whether Defendant should approve

Plaintiffs' variance request and p reliminary site plan for the

motorcycle track. ").

18. The Executed Extension Form is a completed DROP

Extension Form through which Ms. Hillard "request[ed] to extend

[her] DROP participation through 6/30/10 with the approval of her

employer." It includes an "Employer Certification" section

completed by Mr. Valencia as the Superintendent's designee,

wherein he unilaterally certified to the Division that the

"agency" had approved an extension of Ms. Hillard's "DROP

participation through 6/30/10" and that th e "agency stipulate[d]

that [Ms. Hillard was] eligible to participate in the DROP beyond

60 months and she [would] continue working [for an unspecified

period of time] in a regularly established position as a School

Psychologist . " Like the 1/12/07 Email, the Executed Extension

Form is devoid of any expression of mutual agreement between

Ms. Hillard and the School Board (the entity possessing the

exclusive "contracting authority for the school district") t hat

Ms. Hillard would be entitled to continuing e mployment with the

School Board until June 30, 2010, her newly approv ed " DROP

termination and resignation date." See Guerrero v. Brickman

Grp., LLC , Case No. 05 - CV - 00357, 2007 U.S. Dist. LEXIS 60605 ** 8 -

9 (W.D. Mich. Aug. 17, 2007)("Plaintiffs contend tha t their

breach of contract claim is predicated upon terms in the federal

application for alien certification, known as ETA for m 750 ('ETA -

750' ) . . . .

ETA - 750 . . . is a form submitted by employers to the federal

government, and not a contract in the tr aditional sense between

and employer and employee. ").

19. In any event, a ny such mutual ag reement , had it

existed, would have been invalid and unenforceable as contrary to

section 121.091(13), which (as noted above) provided , in

pertinent part, that:

Par ticipation in the DROP does not guarantee

employment for the specified period of DROP.

Participation in the DROP by an eligible

member beyond the initial 60 - month period as

authorized in this subsection shall be on an

annual contractual basis for all

part icipants.

See Wechsler v. Novak , 26 So. 2d 884, 887 (Fla. 1946)("The

general right to contract is subject to the limitation that the

agreement must not violate . . . state statutes . . . . "); and

Bond v. Koscot Interplanetary, Inc. , 246 So. 2d 631, 634 (F la.

4th DCA 1971)("[A]n agreement which violates a statute . . . is

illegal, void and unenforceable as between the parties.").

Beyond her "initial 60 - month [DROP] participation period,"

Ms. Hillard could have lawfully been employed, pursuant to

sectio n 121.091(13), only "on an annual contractual basis" (as

the Executed Extension Form itself clearly indicated).

20. The approval of Ms. Hillard's request "to extend [her]

DROP participation through 6/30/10" allowed , but did not

obligate, the School Boar d to employ Ms. Hillard an additional 36

months (or three school years) , from July 1, 2007, until June 30,

2010 (a period consisting of the 2007 - 2008, 2008 - 2009, and 2009 -

2010 school years) . A ny such employment was statutorily required

to be "on an annual contractual basis" for each of the three

additional school year s of employment , with no guarantee that

Ms. Hillard's annual contract would be renewed from one year to

the next , renewal being the prerogative of school district

officials . See Buckner , 718 So. 2d at 866; and Davis v. Sch. Bd.

of Gadsen Cnty. , 646 So. 2d 766, 768 (Fla. 1st DCA 1994)("School

boards and school superintendents have well - recognized

prerogatives in hiring and firing school personnel who are on

annual contracts, and in declining t o renew such contracts.").

Ms. Hillard's substantial interests therefore were not affected

by her non - reappointment for the 2009 - 2010 school year , and she

thus suffered no administratively compensable damages as a result

of such non - reappointment . See To th v. S. Fla. Water Mgmt.

Dist. , 895 So. 2d 482, 483 (Fla. 4th DCA 2005)( citing with

approval , Fertally v. Miami - Dade C mty . Coll. , 651 So. 2d 1283

(Fla. 3d DCA 1995))("[In Fertally] it was held that the

petitioner, whose annual contract had not been renewe d, could be

dismissed without cause and was therefore without a substantial

interest. "); and Bernard v. Paul , Case No. 03 - 3167, 2004 Fla.

Div. Adm. Hear. LEXIS 1677 *13 ( Fla. DOAH June 9, 2004; Sch. Bd.

of Escambia Cnty. July 7, 2004)("[T]he contract perio d ended

under the contract's terms. Thus, Mr. Bernard could not really

show that he had a substantial interest in his employment as the

district's risk manager that was adversely affected by the non -

renewal of his contract because his substantial interest in that

employment ended when the contract ended, under the above -

referenced facts and legal authority.").

21. In view of the foregoing, the School Board should

reject Ms. Hillard's contention that " she was entitled to

employment as a contract educator through the 2009 - 2010 school

year, and that the determination by the School Board's

administration that her employment should end at the conclusion

of the 2008 - 2009 school year [was] contrary to the applicable

Florida statutes, " and it should, accordingly , decline to award

her the relief she is seeking.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the School Board of St. Lucie County

issue a Final Order declining to award Ms. Hillard the relief

requ ested in her Petition.

DONE AND ENTER ED thi s 18th day of July , 2012 , in

Tallahassee, Leon County, Florida.

S

STUART M. LERNER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalach ee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 18th day of July , 2012 .

ENDNOTE S

1 / A copy of this document was also attached to the Petitio n as

Exhibit B.

2 / A copy of this document was also attached to the Petition as

Exhibit A.

3 / The School Board's approval of "DROP extension for [Ms.

Hillard]" was a legally meaningless act since, as will be

explained later, the Superintendent, not th e School Board, was

vested with the statutory authority to grant such an extension.

4 / The parties inadvertently failed to append this "Personnel

Agenda" to their Joint Stipulation of Facts ; however, they

subsequently, on June 28, 2012, provided the doc ument to the

undersigned.

5 / Ms Hillard signed one section of the Form (on January 8,

2007), and Mr. Valencia later (on January 16, 2007) signed

another section of the Form (the "Employer Certification"

section).

6 / The underlined language represents what Mr. Valencia wrote on

the blank spaces of the "Employer Certification" section to add

to what was already printed on the form.

7 / Unless otherwise noted, all references in this Recommended

Order to Florida Statutes are to that version of Florida St atutes

in effect at the time of the occurrence of the particular event

or action being discussed.

8 / School psychologists are "instructional personnel," as that

term is used in chapter 1012. See § 1012.01(2)(b).

9 / An annual contract employee may be d ismissed during the school

year in which the contract is in effect only for "just cause."

§ 1012.33(1)(a) and 6(a).

10 / Pursuant to chapter 2011 - 1, Laws of Florida, "as of July 1,

2011, a district school board can no longer issue professional

service co ntracts. " Rachman , 87 So. 3d at 49 n.1.

11 / While it was the district school superintendent who, under

section 121.091(13)(b)1., had to authorize "participat[ion] in

the DROP beyond 60 calendar months," the district school board

possessed the exclusive " contracting aut hority for the school

district[]." McCalister , 971 So. 2d at 1027 . That "contracting

authority," it is significant to note, was limited (by the

introductory paragraph of section 121.091(13)) to providing

instructional personnel, following " the initial 60 - month [DROP]

period ," with no more than an annual contract (which, upon its

expiration, the district school board was under no obligation to

renew).

12 / This 96 - month period was referred to elsewhere in the stat ut e

as the "96 - month maxim um participation period."

§ 121.091(13)(a)2. and 6.

13 / See also § 121.091(9)(b), which provided, in pertinent part,

that " a DROP participant shall continue employment and receive a

salary during the period of participation in the Deferred

Retirement Op tion Program, as provided in subsection (13). " By

operation of section 121.091(9)(b) and (13)(b)3., Ms. Hillard

remained employed and was not "deemed retired from employment"

during the period of her DROP participation. Section 1012.33(8),

upon which she relied in her Petition, therefore, had no

application to her situation, since it dealt only with "retired"

FRS members "interrupt[ing] retirement" to "be reemployed."

14 / The statute thus clearly contemplated that a DROP

participant's employment could be terminated prior to the

"termination date of the DROP" established in the participant's

"binding letter of resignation" (which simply fixed the date

b eyond which the participant's employment and participation in

DROP could not continue).

COPIES FURNISHED:

Elizabeth Coke, Esquire

R icheson and Coke, P.A.

317 South 2nd Street

Post Office Box 4048

Fort Pierce, Florida 34950

Mark F. Kelly, Esquire

Kelly and McKee, P.A.

1718 East 7th Avenue, Suite 301

Post Office Box 75638

Tampa, Florida 33675 - 0638

Michael Lannon

St. Lucie County Pub lic Schools

Superintendent of School s

4204 Okeechobee Road

Fort Pierce, Florida 34947

Charles M. Deal, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Gerard Robinson, Commi ssioner

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Rec ommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.