Alberto Fernandez v. The School Board of Miami-Dade County, Florida
Opinion
*1326
Again today we face the question whether the speech of two public employees of the Miami-Dade County School District is protected by the First Amendment. Whether they spoke as private citizens or public employees and about matters of public concern makes all the difference. Sometimes, answering these questions is difficult, particularly as we remember that "citizens do not surrender their First Amendment rights by accepting public employment."
Lane v. Franks
, --- U.S. ----,
Dr. Alberto Fernandez and Henny Cristobol (occasionally referred to as "the Administrators") served as the principal and the assistant principal of Neva King Cooper Educational Center, a public school that specialized in educating students with severe physical and intellectual disabilities. Determined to improve the school's instructional quality, Fernandez and Cristobol resolved to convert Neva King into a charter school. They directed staff members to research charter conversion. They held a faculty meeting, where they attempted to mobilize the faculty's support for their initiative. Moreover, with Cristobol's assistance, Fernandez urged Neva King's Educational Excellence School Advisory Council ("the School Advisory Council") to pursue charter conversion. After the School Advisory Council agreed to hold a vote on whether to convert Neva King, Fernandez and Cristobol began arranging the ballot process.
Upon discovering their efforts, the Miami-Dade County School Board launched an investigation and disciplined both of them. Fernandez and Cristobol sued in federal court, alleging that the School Board's response to their conversion efforts abridged their freedom of speech and association in violation of the First Amendment. The district court concluded that their speech was not constitutionally protected because it was uttered pursuant to and as part of their "official duties" as public employees, and, therefore, granted summary judgment to the School Board.
We hold that
D'Angelo v. School Board of Polk County
,
*1327 I.
A.
In the summer of 2011, the principal and assistant principal of Neva King became interested in converting their school into a charter school under Florida law. The principal, Dr. Fernandez, explained that a conversion to a charter school would yield "better programs and services to our students," it would increase funding from the state and federal government, and "perhaps get the private sector involved" in the affairs of the school. Accordingly, Fernandez directed staff members, including Cristobol, to learn more about charter conversion. The Administrators devoted substantial time and effort to their pursuit, conducting research, drafting budget proposals, and currying support among community members.
On February 2, 2012, Fernandez addressed a meeting of Neva King's Educational Excellence School Advisory Council-a body consisting of interested community members, including parents, teachers, students, administrators, support staff, and business leaders, and devoted to improving the school's educational performance.
See
The conversion attempt quickly unraveled. On April 4, 2012, the School Advisory Council sent another letter to Fernandez, this time notifying him that "[e]ffective immediately, we are rescinding our request to apply for possible conversion to charter status." And on April 20, 2012, the School Board informed Fernandez and Cristobol that they were under investigation by the School District's Civilian Investigative Unit based on allegations that they had exploited their official positions to influence the vote, and that they had inappropriately devoted school time and resources to these efforts. The School Board placed them on alternative assignments during the pendency of the investigations, and warned them that they were forbidden to "contact, visit, or engage in any type of communication with staff, parents, or community members from" the school or to "contact or engage in any type of communications with the subject of, or witness[es]" to the investigations. Fernandez and Cristobol's reassignments consisted of tedious tasks for which they were overqualified.
Not surprisingly, the investigations revealed that the Administrators had met regularly with faculty and staff during school hours to discuss charter conversion. The investigative reports, released on June 22 and July 13, 2012, found probable cause to believe that Fernandez and Cristobol violated School Board policies relating to ethical standards, staff interactions, internet use and safety, and staff email use. The reports also included several statements from School District officials representing that, in attempting to convert Neva King to a charter school, the Administrators *1328 exceeded their official duties. The School Board reviewed the probable cause findings and informed Fernandez and Cristobol that they were subject to discipline.
B.
During the course of the investigations, Fernandez and Cristobol initiated an administrative proceeding against the School Board with the Florida Department of Administrative Hearings under Florida Statutes Section 1002.33(4)(a)(1). They claimed that the reassignments and "gag orders"-the prohibitions on interacting with potential witnesses during the investigations-amounted to unlawful reprisal.
See
The Florida Department of Education adopted the administrative law judge's recommendation in a final order dated November 6, 2014. The Department awarded Fernandez out-of-pocket expenses and lost employment bonuses totaling $10,590. However, the Administrators were not reinstated to their former positions. Thereafter, Fernandez accepted a new position within the School District as Exceptional Education principal assigned to the Special Education Outreach program at Ruth Owens Kruze Educational Center. Cristobol voluntarily left the School District to become the principal of Villa Lyan Academy, a charter school.
In May 2015, Fernandez and Cristobol sued the School Board in the United States District Court for the Southern District of Florida. They brought a single claim under
The School Board's central argument was that the Administrators' pursuit of charter conversion and their concomitant speech fell squarely within their official duties. As a consequence, they spoke not as private citizens, but rather as public employees, insulating their speech from the protection of the First Amendment. The district court agreed. In attempting to convert the public school, the Administrators spoke at their workplace, during working hours, and with the aid of school resources. Their speech was covered by their formal job descriptions. And insofar as some School District officials made various statements that Fernandez and Cristobol's conversion efforts were not part of their official responsibilities, the court found that evidence to be immaterial, since the status of their speech was a legal question for the court, not for School District officials, to decide. Because Fernandez and Cristobol plainly spoke in the course of their official duties, their speech did not enjoy First Amendment protection, *1329 and the School Board was entitled to summary judgment.
The Administrators filed this timely appeal in our Court.
II.
We review
de novo
a district court's grant of summary judgment, applying the same legal standards that governed the district court.
Feliciano v. City of Miami Beach
,
A.
To determine whether a public employee may invoke the safeguards of the First Amendment, we begin by asking whether the employee spoke as a public employee pursuant to his official duties or as a private citizen on matters of public concern.
Garcetti v. Ceballos
,
We addressed a nearly identical question in
D'Angelo v. School Board of Polk County
,
On appeal, we applied
Garcetti
and assessed whether D'Angelo sought charter conversion pursuant to his official duties as the principal of Kathleen High.
*1330
First, we looked to the Florida Statutes' description of charter conversion and observed that "[a]n application for a conversion charter school shall be made by the district school board,
the principal
, teachers, parents, and/or the school advisory council."
The factual matrix presented by D'Angelo is on all fours with this case. For starters, Dr. Fernandez's job description provided that he was responsible for "providing effective education leadership" by "developing and implementing plans that effectively utilize the personnel and material resources necessary to produce a quality instructional program." Similarly, Assistant Principal Cristobol's occupational summary listed among his official duties "[a]ssist[ing] the principal in planning and administering the instructional program and in conducting other activities necessary to provide quality instruction."
Moreover, both Florida law and Fernandez's statements fully support the determination that he and Cristobol advocated charter conversion pursuant to their official duties. Florida law establishes the process for effecting the conversion of a public school to a charter school. Among other things, it enumerates who may apply for charter conversion, expressly including the principal.
Moreover, Florida regulations likewise provide that, in order to initiate the ballot process for charter conversion, "[a] district school board, the principal, teachers, parents, and/or the school advisory council at an existing school ... may submit a request in writing to the school administrator to conduct a vote for conversion.... The administrator shall initiate the ballot process within sixty (60) days of the written request...." Fla. Admin. Rule 6A-6.0787. In order to conduct a vote on a charter conversion, an official request must be sent to the principal who, in turn, is responsible for initiating the ballot process. Here, it is undisputed that the Educational Excellence School Advisory Council sent Dr. Fernandez an official request to conduct a charter conversion vote. Fernandez then scheduled a vote. Under Florida law, Fernandez and Cristobol necessarily acted as "administrator[s]," and not as *1331 private citizens, when they received the School Advisory Council's official request and began arranging the vote.
We add that, during the state administrative hearing, the administrative law judge found that Fernandez and Cristobol's pursuit of charter conversion fell squarely within their official duties. Indeed, he concluded that the School Board's actions were "plainly at odds with" Florida regulations, which " obligate[d] " the principal to oversee the charter conversion ballot process. He observed that "no reasonable person would expect" those duties to be executed in a private capacity. The Florida Department of Education adopted that finding wholesale.
Further, Miami-Dade County Public Schools Policy 9150, entitled "Visitors Invited by Other Administrators," provides that "[s]upervisory or administrative staff who have invited professional visitors may elect to receive the visitors whom they have invited, as well as other visitors who may have a mutual interest or area of competency." At the February 2, 2012 faculty meeting, Fernandez and Cristobol, again in the exercise of their official duties, invited attorney Robin Gibson to speak about charter conversion. Thus, on top of Florida's statutory and regulatory regime, Miami-Dade School District policy suggests that the Administrators spoke as public officials acting pursuant to their official duties when they advocated charter conversion.
Also, just as in D'Angelo , Fernandez and Cristobol effectively conceded that they sought charter conversion pursuant to their official duties. Thus, for example, on February 2, 2012, Margaret Getchell, the School Advisory Council's Chairperson, sent a letter to Fernandez accepting his recommendation and requesting a conversion vote. The letter read this way: "On behalf of the Educational Excellence School Advisory Council, please accept this letter as an official request to conduct a vote to submit an application to convert Neva King Cooper Educational Center to a charter school ... " (emphasis added). When asked about the Advisory Council's "official request" at the state administrative hearing, Fernandez replied, "Yes. This is a letter that I drafted for Ms. Getchell after I recommended to the [Advisory Council] to consider conducting a vote to submit an application for conversion charter. And the [Advisory Council] voted unanimously in favor of it. And the next step was for me, as the principal , to receive the request in writing to conduct the vote, and this is such request" (emphasis added).
The principal's efforts did not end there; nor did his description of those efforts. On February 10, 2012, Fernandez sent a memorandum to Associate Superintendent Milagros R. Fornell responding to Fornell's warnings that Fernandez's conversion efforts threatened to violate the School Board's ethical standards. Fernandez replied that he had reviewed the standards and, "[a]ccording to Florida Statutes, the official duties of a principal can include an application for charter status." As principal, he was "by law allowed to make" every effort to convert Neva King to a charter school.
Indeed, in a section of their amended complaint entitled "The Principal's Role in a Charter School Conversion," the plaintiffs averred that Fernandez exercised his statutory authority under Florida law when he pursued charter conversion. Specifically, they alleged, after the School Advisory Council agreed to hold a vote, Fernandez was "vested exclusively " with the responsibility to initiate the balloting within sixty days of the Advisory Council's request; ensure that only eligible voters participated; appoint an arbitrator to tally *1332 the votes; and complete the vote at least thirty days before the charter application deadline. In fact, they claimed that the School Board "asserted itself to dominate the [charter conversion] process and usurp the authority granted by Florida law to the principal." Thus, in their own complaint, the Administrators characterized their receipt of the Advisory Council's request and their initiation of the ballot process as "The Principal's Role in a Charter School Conversion."
Finally, at Fernandez's deposition, the following exchange took place:
Q. Now, in your capacity as the principal, around the fall of 2011, you met with Mrs. Ramirez and Mr. Cristobol and you asked them to research what would be necessary to convert Neva King Cooper into a charter school; true?
[Fernandez]. I was the principal at Neva King Cooper, and at the time that I asked them to look into the feasibility or exploring the idea, yes.
Despite some equivocation, Fernandez was asked whether, in his capacity as principal, he met with Cristobol and directed him to research charter conversion; Fernandez acknowledged that he did. Likewise, when asked about attorney Gibson's visit, Fernandez was asked:
Q. [Gibson] couldn't come unless you allowed him to come on school grounds?
[Fernandez]. Of course.
Fernandez conceded that, in inviting and receiving Gibson at the February 2012 faculty meeting, he exercised his official authority pursuant to Miami-Dade County Public Schools Policy 9150 and Florida's statutory regime.
In short, the application of Florida law and the Administrators' statements in this case yields the same result as in
D'Angelo
. What's more, this result is wholly consistent with all of our
Pickering
caselaw, including
Abdur-Rahman v. Walker
,
B.
Fernandez and Cristobol advance several objections. None are persuasive. First, they claim that
Lane v. Franks
, --- U.S. ----,
But
Lane
was a wholly different case. There, Edward Lane spoke pursuant to an independent duty, binding all private citizens, to testify truthfully in judicial proceedings.
Moreover, since
Lane
was decided, our cases have continued to cite and give effect to
D'Angelo
's holding. Thus, for example,
Alves
presented the question whether a memorandum composed by university employees documenting their superior's poor leadership constituted public-employee speech beyond the protection of the First Amendment.
Alves and Moss instruct us that, while Lane explicated some of the boundaries of Garcetti and its progeny, it did not disrupt our pre- Lane precedent, let alone unclench D'Angelo 's grip on this case. Lane cannot save Fernandez and Cristobol from summary judgment.
The Administrators further urge that they did not speak pursuant to their official duties because charter conversion was not among their "ordinary" responsibilities. In
Garcetti
, the Supreme Court framed the relevant question as being whether the speech was uttered "pursuant to the employee's official duties."
To illustrate the point, in
Alves
, the Court explained that "[w]hile the memorandum does not bear the hallmarks of daily activity," it was drafted "in the course of performing-or, more accurately, in the course of
trying
to perform-their ordinary roles as coordinators, psychologists, committee members, and supervisors," and could not "reasonably be divorced from those responsibilities."
Fernandez and Cristobol also claim that the duty of exercising "leadership" over Neva King cannot be characterized as "ordinary" because the term "leadership" is too amorphous and too closely related to advocacy and other bedrock First Amendment activity. That argument is foreclosed by
D'Angelo
as well. We held that D'Angelo spoke pursuant to his official duties in part because he sought a charter conversion in order to improve the quality of education at Kathleen High, which was part of his official duties; indeed it was an obligation he described as his "number one duty."
D'Angelo
,
And in
Alves
, we defined the scope of the university employees' ordinary duties as fulfilling their "roles as coordinators, psychologists, committee members, and supervisors."
The long and short of it is that the principal and assistant principal of Neva King Cooper Educational Center spearheaded this charter school conversion pursuant to their official duties. They may not sue the School Board under the First Amendment. We affirm.
AFFIRMED
Reference
- Full Case Name
- Alberto FERNANDEZ, Henny Cristobol, Plaintiffs-Appellants, Patricia Ramirez, Plaintiff, v. the SCHOOL BOARD OF MIAMI-DADE COUNTY, FLORIDA, Defendant-Appellee.
- Cited By
- 12 cases
- Status
- Published