STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DUVAL COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 75-1163

)

DEPARTMENT OF EDUCATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a public hearing was held before Delphene

1. Strickland, Hearing Officer, Department of Administration, Division of Administrative Hearings, in Tallahassee, Florida on October 17, 1975, at 9:30 a.m. in Room 103, Collins Building.

   
   

   APPEARANCES

   
   

   For Petitioner: FREDERICK J. SIMPSON, Esquire

   Counsel, Duval County School Board 1300 City Hall

   Jacksonville, Florida 32202

   
   

   For Respondent: GENE T. SELLERS, Esquire

   Counsel, State Board of Education

   400 Barnett Bank Building Tallahassee, Florida 32304

   
   

   ISSUE

   
   

   Whether the actions taken by the superintendent and staff of the Duval County School Board prior to December 1, 1974, were sufficient to achieve comparability pursuant to the provisions of Title I of the Elementary and Secondary Education Act of 1965, as amended.

   FINDINGS OF FACT

   
   

   1. Congress amended the Elementary and Secondary Education Act of 1965 by Public Law 91-230 instituting a project referred to as the Title I Program. The Respondent, Department of Education, has the responsibility of administering the Title I Program and dispensing federal funds to the various school districts throughout the State of Florida.

      
      

   2. Petitioner, Duval County School Board, is a large urban school district of some 112,000 students and 10,000 employees. There are 134 schools in the district of which 28 are designated as E.S.E.A. Title I Project Schools.

      
      

   3. The statute under consideration is 20 U.S.C.A. Sec. 241(e):

      
      

      "(a) A Local educational agency may receive a grant under this sub-chapter for any fiscal year only upon application therefore approved by the appropriate State educational agency, upon its determination (consistent with such basic criteria as the Commissioner may establish) . . .

      (3) That . . .(c) state and local funds be used in the District of such agencies to provide services in project areas which, taken as a whole, are at least comparable to services

      being provided in areas in such districts which are not receiving funds under this

      sub-chapter: . . . provided further, That each local educational agency receiving funds under this sub-chapter shall report on or before July 1, 1971 and on or before July 1 of each year thereafter with respect to its compliance with this clause; . . ."

      
      

   4. The regulation under consideration which was promulgated to implement the statute is Regulation Sec. 116.26, a part of which reads:

      
      

      "(a) A state educational agency shall not approve an application of a local educational agency for a grant under section 141(a) of the Act, or make payments of Title I funds under a previously approved

      application of such agency, unless that local

      educational agency has demonstrated, in accordance with paragraph (c) of this section, that services provided with State and local funds in title I project areas are at least comparable to the services being provided

      with State and local funds in school serving attendance areas not designated as Title I project areas. Such approval shall not be given unless the local educational agency also provides the assurances and the additional information required' by paragraph

      (e) of this section with respect to the maintenance of comparability. For the purpose of this section, State and local funds include those funds used in the determination of fiscal effort in accordance with Section 116.45."

      
      

      116.26(c) "If any school serving a Title I Project Area is determined not to be comparable under this paragraph, no further payments of Title I funds shall be made to the local educational agency until that agency has taken the action required by paragraph (k)(1) of this section to overcome such lack of comparability."

      
      

   5. Regulation Sec. 116.26(k)(1) in part reads:

      
      

      "that such local educational agency has allocated or reallocated sufficient additional resources to Title I Project Areas so as to come into compliance with such requirements and has filed a revised comparability report reflecting such compliance."

      
      

   6. Petitioner, Duval County School Board, has been the recipient of Title I funds on a year to year basis since 1965, but was deemed by the Respondent to be in violation of the federal requirements from December 1, 1974 through January 2, 1975 for the reason that Petitioner had not "achieved comparability" for that period of time. Funds withheld from Petitioner, in excess of

      $325,000 are involved in this hearing.

   7. The following sequence of events are pertinent:

      
      

      1. On or about July 1, 1974, the Duval County application for Fiscal Year 1974 was filed and approved based on the assurance that comparability existed in Duval County and would be maintained throughout the 1974-75 school year.

         
         

      2. On or about September 27, 1974, the Respondent advised local school districts that October 1, 1974 was the date for collecting the data on which the comparability report for Fiscal Year 1975 would be based.

         
         

      3. On October 7 and 8, 1974, and again on November 7 and 8, 1974, conferences and meetings were held with representatives of various school boards, including those of the Petitioner. The purpose of these meetings and conferences was to inform these school boards concerning the requirements of achieving and maintaining comparability.

         
         

      4. On November 20, 1974, in a memorandum from Woodrow

         J. Darden marked "URGENT" the Respondent advised all Superintendents, the Finance Officers and Title I Coordinators that the comparability reports were due on or before December 1, 1974. A part of said memorandum stated:

         
         

         "If the comparability report submitted by your district did not meet the measures to determine comparability as outlined in the Federal Regulations, administrative or Board action for the purpose of reallocating resources should be taken on or before December 1, 1974, to bring the schools into compliance."

         
         

         The date of December 1, 1974 is established by Regulation 116.26(b)(7).

         
         

      5. On November 26 and 27, 1974, the Superintendent authorized a reallocation of instructional staff and authorized budgetary transfers to bring Petitioner up to the required level of comparability.

         
         

      6. On December 1, 1974, Petitioner filed its report.

         
         

      7. On December 17, 1974, the Director, Special Projects, received a copy from Department of Education of a MAILGRAM from Robert R. Wheeler, Acting Deputy Commissioner for

         School Systems, United States Office of Education to Honorable Ralph Turlington, stating:

         
         

         "this is to remind you that your agency is required under Title I of the Elementary and Secondary Education Act not to make any further payments as of December 1 to any local educational agency that has not as of that date complied with the comparability requirements in 45 CFR 116.26 and to notify each such agency not to obligate any Title

         I funds after that date. Compliance with this requirement is subject to Federal Audit. Your continued cooperation is appreciated."

         
         

      8. By a letter dated December 18, 1974, the Respondent notified Petitioner funds were being withheld for the period of December 1 through December 16, 1974.

         
         

      9. An audit was conducted by Petitioner following the withholding of funds of December 18, 1974, and this audit revealed that comparability had still not been achieved. A revised report dated December 27, 1974 indicated that additional personnel still were needed to meet comparability requirements. Pursuant thereto additional personnel reported to work on or about January 2, 1975.

         
         

      10. By a letter dated January 16, 1975, the Respondent rescinded the prior authorization that had permitted the resumption of the use of Title I funds as of December 16, 1974 and extended the period of withholding of Title I funds through January 1, 1975.

          
          

      11. Following the notification to Petitioner that the funds were being withheld, the Petitioner requested a hearing in order to appeal the withholding of the Title I funds for the period of December 1, 1974 through December 16, 1974. This request for a hearing was later amended to include the period of time from December 15, 1975 through January 1, 1975.

          
          

   8. Petitioner contends: That it complied with the requirements of the subject statute and regulation when it unconditionally committed itself on November 26, 1974 to the employment of necessary personnel by the establishment and budgeting of all necessary positions and direction that such positions be filled. Petitioner further contends that good faith

      on its part and substantial compliance is all that the statute and regulation require.

      
      

   9. Respondent contends: That the subject statute and regulation require that compliance with the comparability requirements is a continuing state of being and must be maintained throughout the year. Respondent further contends that the Federal statute and regulation require not only that the positions be budgeted and directions be given to employ but that the positions be actually filled and the personnel on the job on or before the filing of the report required by Regulation 116.26(b)(7).

      
      

   10. The Hearing Officer further finds:

       
       

       1. That both Petitioner and Respondent have demonstrated a dedication and concern for the schools within their respective jurisdictions;

          
          

       2. That both Petitioner and Respondent have been diligent in trying to act within the provisions of the subject statute and regulations;

          
          

       3. That the personnel of both the Petitioner and Respondent are familiar with the requirements of the statute and regulation but the federal requirements are subject to different interpretations by reasonable persons. There was no meeting of the minds of the parties from the federal, state and local governmental units as to the required method of compliance with the laws.

          
          

          CONCLUSIONS OF LAW

          
          

   11. The provisions of Title 20 Section 241(e)(3) require that the state and local funds be used to provide services in project areas which are at least comparable to services being provided in areas which are not receiving funds. The authorized reallocation of instructional staff and authorization of budgetary transfer together with directions to the staff to effectuate the authorization and the subsequent continuous endeavor to achieve comparability and its achievement is compliance with the foregoing statute.

       
       

   12. The requirements of the Regulation 116.26 must be read in conjunction with Title 20 Sec. 241(e)(3) but where an interpretation of the regulation implementing the statute is or may be in conflict with the act of Congress the statute must prevail.

   13. Petitioner by its Board action pursuant to the Department of Education memorandum dated November 20, 1974, complied with or substantially complied with Title 20 Section 241(e) and Regulation 116.26 during the period of time from December 1, 1974 through January 1, 1975. Such compliance is all that is necessary to receive Title I funds.

RECOMMENDED ORDER

Rescind the order of the Respondent directing the withholding of Title I funds for the period of time from December 1, 1974 through January 1, 1975.

DONE and ORDERED this 26th day of November, 1975.

DELPHENE C. STRICKLAND

Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Frederick J. Simpson, Esquire Counsel, Duval County School Board 1300 City Hall

Jacksonville, Florida 32202

Gene T. Sellers, Esquire

Counsel, State Board of Education

400 Barnett Bank Building Tallahassee, Florida 32304

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DEPARTMENT OF EDUCATION

DUVAL COUNTY SCHOOL BOARD,

Petitioner,

vs. CASE NO: 75-1163

DEPARTMENT OF EDUCATION,

Respondent.

/

ORDER

PURSUANT TO NOTICE, a public hearing was held before Delphene

C. Strickland, Hearing Officer, Department of Administration, Division of Administrative Hearings, in Tallahassee, Florida on October 17, 1975.

APPEARANCES

For Petitioner: Frederick J. Simpson, Esquire

Counsel, Duval County School Board 1300 City Hall

Jacksonville, Florida 32202

For Respondent: Gene T. Sellers, Esquire

Counsel, Board of Education

400 Barnett Bank Building Tallahassee, Florida 32304

ISSUE

WHETHER THE ACTIONS TAKEN BY THE SUPERINTENDENT AND STAFF OF THE DUVAL COUNTY SCHOOL BOARD PRIOR TO DECEMBER 1, 1974, HERE SUFFICIENT TO ACHIEVE COMPARABILITY PURSUANT TO THE PROVISIONS OF TITLE I OF THE ELEMENTARY AND SECONDARY EDUCATION ACT OF 1965, AS AMENDED.

FINDINGS OF FACT

On the 26th day of November, 1975, Mrs. Delphene C. Strickland, Hearing Officer, released her formal findings regarding this hearing. The findings were reached by Mrs. Strickland after hearing oral presentations on October 17, 1975, by Counsel and witnesses for the Petitioner, and Counsel and witnesses for the Respondent.

In the order written by Mrs. Strickland, it was recommended that the Florida Commissioner of Education " . . . rescind the order of the Respondent directing the withholding of the Title I funds for the period of time from December 1, 1974, through January 1, 1975."

The transcripts of the hearing and the documents presented into evidence at the hearing are a matter of public record and were considered as background information by the Florida Commissioner of Education in arriving at a Final Order in this matter.

FEDERAL LEGAL REQUIREMENTS THAT MUST BE FOLLOWED IN CONCLUDING THIS TYPE OF HEARING PROCESS AT THE STATE LEVEL

Section 425.(a) of U.S. Public Law 93-380, signed into Law by the President of the United States on August 21, 1974, mandates that the following procedure be followed in concluding a hearing in which the applicant or recipient is aggrieved by the final action of the State education agency, and alleging a violation of State or Federal Law, rules, regulations or guidelines governing the applicable program.

Section 425.(a) of U.S. Public Law 93-380 mandates, and I quote in pertinent part:

" . . . the State education agency shall issue a written ruling, including reasons therefore. If it determines such action was contrary to Federal or State Law, or to the rules, regulations, and guidelines governing such applicable program, it shall rescind such final action."

In keeping with the above quoted Section of U.S. Public Law 93-380, acting as Commissioner of Education for the State of Florida, I hereby issue a ,ruling on this matter and include my reasons, therefore.

FINAL ORDER

I hereby rescind the action taken by the Florida Department of Education in withholding Title I, ESEA funds from the Duval County School District for, the period of time from December 1, 1974, through January 1, 1975.

REASONS

As Commissioner of Education for the State of Florida, I felt that it was my duty to read the Law, rules, regulations and guidelines as they were presented in the written and oral testimony before the Hearing Officer and to draw a conclusion from the facts before me.

The statutory language set forth in Public Law 91-230, Section 109(3) reads in pertinent part as follows:

"(c) State and local funds will be used in the district of such agency to provide services in protect areas which, taken as a whole, are at least comparable to services being provided in areas in such district which are not receiving funds under this title . . ."

Using the Statute as a guide, I analyzed the data included in the four (4) Duval County Comparability Reports submitted to the Department of Education during the period of time from December 1, 1974, through January 16, 1975. In each case, when the Title I project area schools, taken as a whole, were compared to the non-Title I schools, taken as a whole, the Title I project area schools had, on the average, a lower pupil-staff ratio, a higher average per pupil base salary expenditure for instructional personnel, and more funds per pupil for other instructional materials and supplies. Tabulated below are comparisons of the 1974-75 Comparability Reports for Duval County total countywide average for the Title I elementary schools with total countywide average for the non-Title I elementary schools:

Average Average Per Pupil Average Other

Pupil-Staff Base Salary Instructional Ratio Expenditure Expenditures

Title I Non Title I Non Title I Non

Original Comparability

The Duval County School District clearly met the statutory requirements during this period of time. Therefore, I concur with the Hearing Officer when she States " . . . The requirements of the Regulation 116.26 must be read in conjunction with Title 20, Section 241(e)(3), but where an interpretation of the regulation implementing the statute is or may be in conflict with the Act of Congress, the statute must prevail."

DONE AND ORDERED the 15th day of January, 1976.

RALPH D. TURLINGTON

Commissioner of Education State of Florida

Copies to:

Frederick J. Simpson, Esquire Counsel, Duval County School Board 1300 City Hall

Jacksonville, Florida 32202

Dr. John T. Gunning, Superintendent Duval County School District

1325 San Marco Boulevard Jacksonville, Florida 32207

Gene T. Sellers, Esquire

Counsel , State Board of Education

400 Barnett Bank Building Tallahassee, Florida 32304

Woodrow J. Darden, Director Division of Public Schools Florida Department of Education Knott Building

Tallahassee, Florida 32304

Ted J. Meredith, Comptroller Florida Department of Education Knott Building

Tallahassee, Florida 32304

Docket for Case No: 75-001163

Orders for Case No: 75-001163