SHEILA LEWIS v. THE BROWARD COUNTY SCHOOL BOARD

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT

SHEILA LEWIS,
Appellant,

v.

THE BROWARD COUNTY SCHOOL BOARD,
Appellee.

No. 4D19-2768

[June 17, 2020]

Appeal from the School Board of Broward County, Florida.

Melissa C. Mihok of CPLS, P.A., Orlando, for appellant.

Douglas G. Griffin of Office of the General Counsel, Fort Lauderdale,
for appellee.

MAY, J.

We explore the statutory world of teaching contracts in this appeal from
the Broward County School Board’s decision not to renew an employee’s
teaching contract for the 2019–20 school year. The employee argues she
was entitled to an administrative hearing and automatic renewal of her
professional services contract when she was reassigned from her position
as assistant principal. We disagree and affirm.

The employee taught under a professional services contract executed
in 2007 (“PSC”). She was then promoted to assistant principal for the
2017–18 school year. When she became part of the school’s
administration, she executed an annual contract.

At the end of the 2017–18 school year, the Board did not renew her
annual contract as assistant principal. The Board “reassigned [her] to the
position of teacher for the 2018–19 school year.” She was offered another
annual contract, but never executed it. She worked as a teacher for that
year.

At the end of the 2018–19 school year, the Board notified the employee
it would not renew her annual contract. The notice advised her that she
was considered “either a probationary or annual contract teacher.” The
employee then requested an administrative hearing with the Board. She
argued her 2007 PSC should have been reinstated upon her reassignment
to teaching. And, the PSC required a showing of just cause for the non-
renewal of her contract.

The Board dismissed her request with prejudice, finding the employee
qualified as a teacher under an annual contract during the 2018–19 school
year, and she was not entitled to a hearing under due process or the
Administrative Procedures Act. The employee now appeals.

The employee argues the Board erred in dismissing her request for an
administrative hearing with prejudice because she taught under her
original PSC, and not under an annual contract. She suggests the Board
did not have the authority to terminate her PSC; therefore, she was entitled
to an administrative review.

The Board responds the employee’s PSC terminated when she signed
an annual contract to work as an assistant principal. When she was
reassigned as a teacher for the 2018–19 school year, it was under an
annual contract. Because her challenge is to an annual contract, which
terminates by its own terms, she is not entitled to an administrative
hearing.

We have de novo review of the Board’s decision. Parlato v. Secret Oaks
Owners Ass’n, 793 So. 2d 1158, 1162 (Fla. 1st DCA 2001).

Florida’s statutory scheme provides for three types of education
contracts: (1) a continuing contract; (2) a professional services contract;
and (3) an annual contract. Broward Teachers Union, Local 1975 v. Sch.
Bd. of Broward Cty., 199 So. 3d 997, 999 (Fla. 4th DCA 2016).

A PSC requires “‘a professional certificate covering the classification,
level, and area for which the applicant is deemed qualified . . . .’” Id.
(quoting § 1012.56(1)(a), Fla. Stat. (2014)). PSCs “shall” be renewed each
year, unless:

(a) The district school superintendent, after receiving the
recommendations required by [section] 1012.34, charges the
employee with unsatisfactory performance and notifies the
employee of performance deficiencies as required by [section]
1012.34; or

2
 (b) The employee receives two consecutive annual
performance evaluation ratings of unsatisfactory under
[section] 1012.34, two annual performance evaluation ratings
of unsatisfactory within a 3-year period under [section]
1012.34, or three consecutive annual performance evaluation
ratings of needs improvement or a combination of needs
improvement and unsatisfactory under [section] 1012.34.

§ 1012.33(3), Florida Statutes (2016).

An annual contract is an employment contract for a period of no longer
than one school year. The school board may choose to award or not award
an annual contract without cause. § 1012.335(1)(a), Fla. Stat. (2016). As
of 2011, continuing contracts are no longer offered.

Prior to 2011, school boards were statutorily required to provide
teachers with PSCs. Broward Teachers Union, Local 1975, 199 So. 3d at
999 (citing § 1012.33(3)(a), Fla. Stat. (2010)). In 2011, however, the
legislature removed that requirement and amended the law as follows:

Beginning July 1, 2011, each individual newly hired as
instructional personnel by the district school board shall be
awarded a probationary contract. Upon successful
completion of the probationary contract, the district school
board may award an annual contract pursuant to paragraph
(c).

§ 1012.335(2)(a), Fla. Stat. (emphasis added).

Under the new statutory scheme, “teachers hired on or after July 1,
2011, were given annual contracts which may or may not be renewed the
following school year.” Broward Teachers Union, Local 1975, 199 So. 3d
at 999. “[S]chool boards [were] no longer authorized to issue professional
service contracts. [T]he only contracts school boards are authorized to
issue . . . are probationary contracts for new hires and annual contracts
for all others.” Id. (quoting Gabriele v. Sch. Bd. of Manatee Cty., 114 So.
3d 477, 479 n.1 (Fla. 2d DCA 2013)) (first alteration in original).

The legislative change did not affect individuals with a PSC predating
July 1, 2011. Those individuals were still statutorily entitled to renewal of
their PSC unless their performance was unsatisfactory. § 1012.33(3)(a),
(b), Fla. Stat.; Gabriele, 114 So. 3d at 481.

The employee acknowledges the Board can no longer offer a PSC to a

3
new hire, but argues her 2007 PSC did not terminate when she entered
the annual contract to become assistant principal. Her argument is flawed
because she fails to consider section 1012.22(1)(c)(4)(a), Florida Statutes.
It provides:

The district school board shall adopt a salary schedule or
salary schedules to be used as the basis for paying all school
employees hired before July 1, 2014 . . . . Instructional
personnel on continuing contract or professional service
contract may opt into the performance salary schedule if the
employee relinquishes such contract and agrees to be
employed on an annual contract under s[ection] 1012.335.
Such an employee . . . may not return to continuing contract
or professional service contract status.

Id. (emphasis added).

“[A] teacher employed under an annual contract has no right to
reemployment.” Gabriele, 114 So. 3d at 479; accord Broward Teachers
Union, Local 1975, 199 So. 3d at 1002. When the employee entered into
her annual contract to become assistant principal, she relinquished her
right to the prior PSC. See Bornstein v. Marcus, 275 So. 3d 636, 639 (Fla.
4th DCA 2019) (“A novation is a mutual agreement by the parties
concerned for the discharge of a valid existing obligation by the
substitution of a new valid obligation.”) (quoting Miami Nat’l Bank v.
Forecast Constr. Corp., 366 So. 2d 1202, 1204 (Fla. 3d DCA 1979)). Unlike
a PSC, an annual contract does not guarantee tenure. See Gabriele, 114
So. 3d at 479 (“Annual contracts expire at the end of the school year.”).

PSCs entered into before July 1, 2011 are entitled to renewal unless
the employee’s performance is dissatisfactory or the employee enters into
an annual contract. See Forsythe v. Longboat Key Beach Erosion Control
Dist., 604 So. 2d 452, 455 (Fla. 1992). Section 1012.22(1)(c)(4)(a) expressly
prohibits the return to a prior PSC.

Here, the employee worked under a PSC until she executed an annual
contract to become assistant principal for the 2017–18 school year. When
she did so, her PSC terminated by its own annual term. When the Board
reassigned her to teaching the next year, section 1012.22(1)(c)(4)(a)
prohibited her from returning to her PSC.

The employee could have taught the 2018–19 school year only under
an annual or probationary contract. Neither contract entitled her to an
administrative hearing. See Jones v. Miami-Dade Cty., Public Sch., 816 So.

4
2d 824, 826 (Fla. 3d DCA 2002) (holding where there was “no entitlement
to continued employment beyond the completion of the individual contract
year . . . there was no entitlement to a hearing under the due process cases
. . . or the under the Florida Administrative Procedure Act.”). We therefore
affirm.

Affirmed.

WARNER and CONNER, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

5