           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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