Alan Seiden v. Frances J. Adams, ED. D, as Superintendent of the School District of Indian River County, Florida

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

July Term 2014

ALAN SEIDEN,

Appellant,

v.

FRANCES J. ADAMS, ED. D., as Superintendent of the SCHOOL

DISTRICT OF INDIAN RIVER COUNTY, FLORIDA,

Appellees.

No. 4D13-2250

[November 19, 2014]

Appeal from the School Board of Indian River County, Florida.

Thomas L. Johnson of Law Office of Thomas Johnson, P.A., Brandon,

and Peter M. King and William H. Jones of Canel, King & Jones, Chicago,

Illinois, for appellant.

Jason L. Odom of Gould, Cooksey, Fennell, P.A., Vero Beach, for

appellee.

GROSS, J.

Alan Seiden appeals a final administrative order of the School Board of

Indian River County terminating his employment as a teacher following a

hearing before the School Board. We write primarily to address Seiden’s

due process attack on the hearing and conclude that no constitutional

violation occurred.

The School Superintendent delivered Seiden a letter charging him with

misconduct constituting “just cause” for his termination. The facts

underlying the charge concerned Seiden’s response to the behavior of a

special needs student, which caused an escalation of the incident.

Seiden timely requested a hearing. The School Board elected to hold

the hearing itself pursuant to section 1012.33(6)(a)1., Florida Statutes

(2013),1 instead of referring it to an administrative law judge. Seiden filed

1Section 1012.33(6)(a)1. provides as follows:

a motion to disqualify the School Board arguing: (1) he was teaching “out-

of-field” and the School Board failed to notify parents or require him to

gain certification; and (2) the School Board failed to report Seiden upon

learning of the incident and therefore Seiden has a “well-grounded fear

that the School Board will be focused on their own interest, thereby

denying [him] the fair adjudicator to which he is entitled.” The School

Board denied Seiden’s motion for disqualification.

The School Board held a public hearing where the Superintendent,

represented by independent counsel, presented evidence supporting her

recommendation for Seiden’s termination. A different lawyer served as the

School Board’s attorney.

Seiden argues that comments made by School Board members fatally

infected the hearing. At the conclusion of the hearing, Board member

McCain stated that he did not feel qualified to conduct the hearing and

mentioned that this case was “extremely personal” as he had a special

needs child. He further mentioned that he wanted to recuse himself but

was unable to:

I just want to make a brief comment just because I think it

would be fair to Mr. Seiden. Mr. Seiden, much like you, I did

not want to be here today. When this came before the Board

some time ago, I made several comments that I thought this

should have . . . gone to a DOAH hearing. It shouldn’t have

Any member of the instructional staff . . . may be suspended or

dismissed at any time during the term of the contract for just cause

as provided in paragraph (1)(a). The district school board must

notify the employee in writing whenever charges are made against

the employee and may suspend such person without pay . . . . If the

employee wishes to contest the charges, the employee must, within

15 days after receipt of the written notice, submit a written request

for a hearing. Such hearing shall be conducted at the district school

board’s election in accordance with one of the following procedures:

1. A direct hearing conducted by the district board within

60 days after receipt of the written appeal. The hearing shall

be conducted in accordance with the provisions of ss.

120.569 and 120.57. A majority vote of the membership of

the district school board shall be required to sustain the

district school superintendent’s recommendation. The

determination of the district school board shall be final as to

the sufficiency or insufficiency of the grounds for termination

of employment . . . .

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been with us. The reason I said it back then was because I

am wholly and totally not qualified to do this. I believed that

then, I believe that now. I believe it should have gone to

somebody who does this for a living and who understands how

to weigh evidence. One of the reasons I felt that way and

always feel that way when it comes to, when there are issues

such as this, I have a . . . my first reaction . . . is to, I will

always bend over backwards to side for our classroom

teachers . . . However, it’s a little bit different in this case and

I’ll tell you why. Without getting too deep, I have a ten-year-

old daughter and that daughter’s a special needs child. This

is extremely personal to me. I would have loved to have

recused myself from this, but I can’t. I have to sit here and

make a vote. And again, I’m sorry it came to this and I wish

we all weren’t here.

Seiden also points out that Board member Disney, in questioning a

witness as to whether it was school policy to notify a parent of a problem

with his or her child, stated:

What I’m getting at is I have a child who’s had an EH IEP

(individual education plan) for twelve years. And my

expectation would be that if my child had a certain level of

disruption during the day, that that would provoke a call to

me so I would know . . . when my child got home what the day

was like.

Lastly, Board member Pegler also admitted that she had “personal

experience with ESE.”

Many of Seiden’s complaints about the way the School Board

conducted the hearing appear to fall under a constitutional due process

attack. Certainly, the hearing was not conducted in the same way as a

judicial proceeding. However, the legislature provided that the School

Board could choose to conduct the hearing and the law does not hold an

administrative proceeding conducted by elected officials to the same

standards as one held in a court of law.

“‘Under Florida law, a school board’s decision to terminate an employee

is one affecting the employee’s substantial interests; therefore, the

employee is entitled to a formal hearing under section 120.57(1) if material

issues of fact are in dispute.’” Tieger v. Sch. Bd. of Palm Beach Cnty., 717

So. 2d 172, 173 (Fla. 4th DCA 1998) (quoting Sublett v. Dist. Sch. Bd. of

Sumter Cnty., 617 So. 2d 374, 377 (Fla. 5th DCA 1993)). In Florida, “[t]he

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School Board is an agency for purposes of Florida’s Administrative Act,

chapter 120, Florida Statutes,” Schimenti v. Sch. Bd. of Hernando Cnty., 73

So. 3d 831, 833 (Fla. 5th DCA 2011) (citing Witgenstein v. Sch. Bd., 347

So. 2d 1069, 1071 (Fla. 1st DCA 1977)), and can choose to conduct the

hearing itself or refer the case to the Department of Administrative

Hearings to appoint a hearing officer. See § 1012.33(6)(a)1.-2., Fla. Stat.

(2013).

In this case, the School Board decided to conduct the hearing itself and

thus was empowered “to prescribe rules and regulations for its

administration, as well as to exercise quasi-judicial functions.” Cherry

Commc’ns, Inc. v. Deason, 652 So. 2d 803, 804 (Fla. 1995) (footnote

omitted). Although the School Board was sitting in its quasi-judicial

capacity by acting as the hearing officer, this “does not make the body into

a judicial body.” Canney v. Bd. of Pub. Instruction of Alachua Cnty., 278 So.

2d 260, 263 (Fla. 1973). Its hearings are “of an informal character,”

Krischer v. Sch. Bd. of Dade Cnty., 555 So. 2d 436, 437 (Fla. 3d DCA 1990)

(quoting Powell v. Bd. of Pub. Instr. of Levy Cnty., 229 So. 2d 308, 311 (Fla.

1st DCA 1969)), and are “not controlled by strict rules of evidence and

procedure.” Carillon Cmty. Residential v. Seminole Cnty., 45 So. 3d 7, 10

(Fla. 5th DCA 2010) (citation omitted); see also Sabates v. State of Fla.

Dep’t of Health, 104 So. 3d 1227, 1228-1229 (Fla. 4th DCA 2012).

In such instances, “[d]ue process is flexible and calls for such

procedural protections as the particular situation demands.” Schimenti,

73 So. 3d at 833 (citing Morrissey v. Brewer, 408 U.S. 471, 481 (1972)).

Generally, due process requirements are met in a quasi-judicial

proceeding “if the parties are provided notice of the hearing and an

opportunity to be heard.” Jennings v. Dade Cnty., 589 So. 2d 1337, 1340

(Fla. 3d DCA 1991). The proceeding must be “essentially fair.” Carillon

Cmty. Residential, 45 So. 3d at 10.

A due process violation is not triggered by the fact that the School Board

employed Seiden and the Superintendent investigated and evaluated his

conduct. In Koehler v. Florida Real Estate Commission, 390 So. 2d 711,

711 (Fla. 1980), the Florida Supreme Court applied the due process

analysis of Withrow v. Larkin, 421 U.S. 35 (1974), and held that a due

process violation does not arise in an administrative disciplinary

proceeding merely because an agency has “investigative and prosecutorial

functions as well as its final adjudicative function.” “Mere familiarity with

the facts of a case gained by an agency in the performance of its statutory

role does not” disqualify a Board member who later sits in judgment.

Hortonville Joint Sch. Dist. No. 1 v. Hortonville Educ. Ass’n, 426 U.S. 482,

493 (1976); Koehler, 390 So. 2d at 713. “Nor is a decisionmaker

disqualified simply because he has taken a position, even in public, on a

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policy issue related to the dispute, in the absence of a showing that he is

not ‘capable of judging a particular controversy fairly on the basis of its

own circumstances.’” Hortonville, 426 U.S. at 493 (quoting United States

v. Morgan, 313 U.S. 409, 421 (1941)).

Section 120.665, Florida Statutes (2013), sets the legal parameters for

the Board members’ participation in the hearing requested by an employee

pursuant to section 1012.33(6)(a). That section provides that an

individual “may be disqualified from serving in an agency proceeding for

bias, prejudice, or interest when any party to the agency proceeding shows

just cause by a suggestion filed within a reasonable period of time prior to

the agency proceeding.” § 120.665(1), Fla. Stat. (2013). As the First

District has recognized, the “standards for disqualifying an agency head

differ from the standards for disqualifying a judge” because “agency heads

have significantly different functions and duties than do judges.” Bay

Bank & Trust Co. v. Lewis, 634 So. 2d 672, 679 (Fla. 1st DCA 1994). Under

the statute, disqualification is required where “the facts alleged would

prompt a reasonably prudent person to fear that they will not obtain a fair

and impartial hearing.” Charlotte Cnty. v. IMC-Phosphates Co., 824 So. 2d

298, 300 (Fla. 1st DCA 2002). Put differently, the “test for disqualification

has been succinctly stated as being whether ‘a disinterested observer may

conclude that the (agency) has in some measure adjudged the facts as well

as the law of a particular case in advance of hearing it.’” Cinderella Career

& Finishing Sch., Inc. v. Fed. Trade Comm’n, 425 F.2d 583, 591 (D.C. Cir.

1970) (quoting Gilligan, Will & Co. v. SEC, 267 F.2d 461, 469 (2d Cir.

1959)). Given the “presumption of honesty and integrity in those serving

as adjudicators,” Koehler, 390 So. 2d at 713 (quoting Withrow, 421 U.S. at

47), the mere appearance of bias that might disqualify a judge will not

require disqualification of Board members acting in an adjudicative

capacity.

The grounds for recusal of the School Board urged in Seiden’s motion

to recuse did not allege the bias of any of the Board members. Seiden did

not move to recuse any Board members for what was said at the hearing,

so he failed to preserve the bias issue for appellate review. See Allen v.

State, 137 So. 3d 946, 958 (Fla. 2013).

Even were we to reach the section 120.665 recusal issue, we do not find

that type of egregious conduct identified by courts as requiring recusal;

there was no prejudgment, personal, or pecuniary bias. The grounds of

the motion for recusal, which derived from the employment relationship,

were not the extreme conflict of interest that would disable the agency from

evaluating the employee’s conduct. Similar to any agency’s familiarity with

matters within its purview, the Board members’ personal experience with

special needs children did not rise to the level that requires

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disqualification. Like many elected officials in a public forum, the Board

members were inclined to think out loud. School Board procedures did

not provide for secret deliberations like a jury in a court of law, and elected

officials can be expected to explain their votes to deflect political pushback.

Before the hearing, the Board did not issue a statement lauding the

Superintendent’s action, see Charlotte Cnty., 824 So. 2d at 300, nor did

the Board make a public statement which would lead a disinterested

observer to conclude that it had prejudged the facts at issue in the

adjudicatory proceeding. See Cinderella, 425 F.2d at 589-90; In re 1616

Second Ave. Restaurant, Inc. v. New York State Liquor Auth., 550 N.E.2d

910, 912 (N.Y. 1990). Nothing in the members’ statements belied a

personal bias against Seiden or a pecuniary interest whereby a Board

member stood to “gain or lose by a decision either way.” Wash. State Med.

Disciplinary Bd. v. Johnston, 663 P.2d 457, 474 (Wash. 1983) (quoting

Ritter v. Bd. of Comm’rs, 637 P.2d 940, 946 (Wash. 1981)).

Seiden also argues that the School Board was “demonstrably

unqualified” to handle his hearing. A thorough reading of the transcript

reveals that the hearing was somewhat disorganized and the Board

members were not well versed in the appropriate procedure. However, the

School Board was not required to strictly adhere to Florida rules of

evidence and procedure, and the legislature has specifically authorized a

hearing conducted before elected officials rather than judges with special

training. See §§ 120.569(2)(g), 120.57(1)(c), Fla. Stat. (2013). “The extent

of procedural due process afforded to a party in a quasi-judicial hearing is

not as great as that afforded to a party in a full judicial hearing.” Carillon

Cmty. Residential, 45 So. 3d at 10 (citation omitted). Although not a model

hearing, the hearing complied with due process in that it allowed Seiden a

fair chance at challenging the reasons for his termination.

We have considered the other matters raised on appeal and find no

reversible error.

Affirmed.

TAYLOR and GERBER, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

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