STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VERTRESE GALLON CORNELIUS, )

)

Petitioner, )

)

vs. ) CASE NO. 79-1790

)

DUVAL COUNTY SCHOOL BOARD, )

)

Respondent. )

)

RECOMMENDED ORDER

This case is here presented under the provisions of Subsection 120.57(1), Florida Statutes. Although the case is being considered in accordance with that provision of law, the parties waived a de novo hearing and in lieu of such hearing offered the case for review based upon a certain stipulation of facts together with memoranda in argument. A verbatim account of the stipulation will he offered in the Findings of Fact portion of this Recommended Order.

APPEARANCES

For Petitioner: Patricia A. Renovitch, Esquire

General Counsel FEA/United

208 West Pensacola Street Tallahassee, Florida 32304

For Respondent: Thomas E. Crowder, Esquire

1300 City Hall

Jacksonville, Florida 32202 ISSUE

The principal issue presented in this case concerns the question of whether the Petitioner, Vertrese Gallon Cornelius, is entitled to tenure with the Duval County School Board as a teacher in that system. This inquiry carries with it an examination of the issues concerned with the requirements for tenure in the Duval County Teacher Tenure Act; the definition of "probationary period", including the number of consecutive years and the number of attendance days required in those years; and the effect, if any, of leaves of absences in those years.

FINDINGS OF FACT

1. As indicated, this case has been presented upon a facts stipulation between the representatives of the parties and the agreement for submission of certain evidential items in aid of the fact stipulation. The exact terms and details of the facts stipulated are as follows:

   STIPULATION

   
   

   On September 11, 1979 attorneys for the parties herein conferred, in compliance with the Order of August 31, 1979, and stipulate as follows:

   
   

   1. The issues concerned are the require ments for tenure under the Duval County Teacher Tenure Act; the definition of the probationary period, including the number of consecutive years and the number of days required in such years; and the effect of leaves of absences on said years.

   2. The attorneys further stipulate that the following documents, if available, will provide as the factual basis of the legal argument;

      1. Approved leaves of absences;

      2. Work record of the Petitioner;

      3. Attendance record of the Petitioner; and

      4. Transcript of courses completed.

   3. The attorneys agree that the issues in this case can be settled by submission of memoranda of law and that no evidentiary hearing is necessary to decide the factual issues.

   4. The documents stipulated to will be submitted by September 26, 1979 and briefs will be submitted by October 11, 1979.

   5. Resolution of these issues will resolve the question of coverage under the Duval County Teach Tenure Act.

      
      

      SO STIPULATED this 11th day of September, 1979.

      
      

2. In keeping with the terms and conditions of the stipulation, certain exhibits have been submitted and have been marked and received as joint exhibits. The first of those joint exhibits is the Composite No. 1 which includes excerpts of the Petitioner's Employee Status Record; request for maternity leave; request for reinstatement following the maternity leave, and correspondence by the physicians who treated the Petitioner during her maternity leaves of absence. The Joint Exhibit No. 2 is a document which is a compilation of Petitioner's work history with the Duval County School System, which shows the number of days taught; the school at which the Petitioner was employed; the subject taught; the contract status and salary of the Petitioner. The Joint Exhibit No. 3 submitted by the parties, is a transcript of the record that the Petitioner achieved in her course work at the University of North Florida.

   
   

3. Pertinent entries on the attendance document show the following:

   
   

   DAYS ON

   SCHOOL YEAR	DAYS TAUGHT	MATERNITY LEAVE
   1969-70	179
   1970-71	161	53
   1971-72	143
   1972-73	196
   1973-74	194
   1974-75	149	47

   1975-76 and

   Summer of 1976 196

   1976-77 and

   Summer of 1977 196

   1977-78 188

   1978-79 154 42

   
   

4. Another factual element which must be examined to resolve the dispute, concerns the number of hours college work the Petitioner had successfully completed during the pendency of her employment with the Duval County School Board. The Joint Exhibit No. 3 proves that during the June term of 1973 the Petitioner completed five (5) quarter hours and during the September term of 1974 the Petitioner completed ten (10) quarter hours of instruction at the University of North Florida, which classroom work constituted college credit. The fifteen (15) quarter hours are equivalent to nine (9) semester hours.

   
   

5. Finally, at the time the Petitioner was teaching in the Duval County School System and enrolled for course work at the University of North Florida, she was the holder of a valid teaching certificate issued by the State of Florida, Department of Education.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties in this action.

   
   

7. In determining the Petitioner's entitlement to tenure with the Duval County School Board, the base document which controls that question is Chapter 21197, Laws of Florida, Acts of 1941, which is the Duval County Teacher Tenure Act. To receive tenure under the terms and conditions of the Act, a series of requirements must be met and those requirements are:

   
   

   1. Possession of a regular teaching certif icate;

   2. Completion of three (3) consecutive years of service;

   3. Completion of six (6) semester hours of college work during the three (3) con secutive years; and

   4. Reappointment to a fourth consecutive year.

   
   

8. If the aforementioned requirements are accomplished, then the candidate for tenure is automatically entitled to that tenure.

   
   

9. An examination of the facts in this case reveals that the Petitioner is the holder of a regular teaching certificate issued by the State of Florida, Department of Education, and was the holder of such certificate at all times relevant to this case.

   
   

10. The next requirement is the necessity for completion of three (3) consecutive years of service. The term "year of service" is defined in Subsection 228.041(21), Florida Statutes, which states:

    
    

    (21) YEAR OF SERVICE.--The minimum time which may be recognized in administering the state program of education, not including retirement, as a year of service by a school

    employee shall be full-time actual service, and beginning July, 1963, such service shall also include sick leave and holidays for which compensation was received but excluding all other types of leave and holidays for a total of more than one-half of the number of days required for the normal contractual period of service for this position held, which shall be

    196 days or longer, or the minimum required for the district to participate in the minimum foundation program in the year service was rendered, or the equivalent for service performed on a daily or hourly basis; provided further that absence from duty after the date of beginning service shall be covered by leave duly authorized and granted; provided further that the school board shall have authority to establish a different minimum for local district school purposes.

    
    

11. Under the language of Subsection 228.041(21), Florida Statutes, the local school board has the authority to establish a different number of days necessary to complete a year of service. In keeping with that opportunity, in the school year 1977-78, the Duval County School Board established 180 days as the necessary period to achieve a year of service. This conclusion is reached after reading a copy of the agreement between Duval Teachers United and Duval County School Board, which copy was attached to the memorandum of law in support of the Respondent's position. That copy is made Respondent's Exhibit No. 1 admitted into evidence. In particular, on page 23 of that agreement in the provision dealing with teacher tenure, the 180 day requirement for a year of service is established for the years 1977-78 and 1978-79. Consequently, if the years 1977-78 and 1978-79 are to be utilized in establishing the probationary requirement of completion of three consecutive years of service, in those subject years there must be 180 days of service within that service year. (On the facts of this case, the 1978-79 year would not be of concern in examining the requirement for the completion of three consecutive years of service, because 1978-79 is the last reported year of service by Petitioner and it could only serve to fulfill the fourth requirement of the probationary term, which requirement deals with the necessity for reappointment to a fourth consecutive year after the completion of three consecutive years of service.)

    
    

12. Turning to an examination of the requirement for the number of days necessary to establish a year of service in all academic years other than 1977- 78, the stipulation of fact and joint exhibits and Respondent's Exhibit No. 1 do not indicate whether there was a separate contractual provision which established a different minimum number of days to comply with the requirement for a year of service found in Subsection 228.041(21), Florida Statutes. Therefore, it can only be assumed that the statutory provision would apply and that sets a requirement of service in excess of one-half the number of days in the contract period of service which is normally 196 days, making it necessary for the Petitioner to have 99 service days in each of the years to be counted in the required three consecutive years of service, other than the year 1977-78. See, also, Subsection 228.041(17), Florida Statutes.

    
    

13. The requirement of three consecutive years of service must be considered in conjunction with the third requirement for completing the probationary term, which third requirement establishes the necessity for the

completion of six semester hours of college credit during the three consecutive years of service. In turn, requirement four calls for the reappointment as a teacher in a fourth consecutive year beyond the three consecutive years of service. When the latter three requirements for fulfilling the probationary term are considered in pari materia, and in view of the facts of related years taught and days taught, the Petitioner is entitled to tenure. This conclusion of law is reached because in the year 1974-75 the Petitioner taught 149 days; in the year 1975-76 the Petitioner taught 196 days; and in the year 1976-77 the Petitioner taught 196 days, each of these years exceeding the 99-day minimum requirement for days service within the year of service required by Subsection 228.041(28), Florida Statutes. In addition, the Petitioner in the September term, 1974, earned ten (10) quarter hours which is equivalent to six (6) semester hours of college credit at the University of North Florida. Finally, in 1977-73 the Petitioner was reappointed as a teacher and at that point under the facts as presented in this case, she was entitled to tenure in keeping with the provisions of Chapter 21197, Laws of Florida, Acts of 1941, which is the Duval County Teacher Tenure Act. Having demonstrated her entitlement to tenure effective the academic year 1977-78, the Petitioner has earned that status from the commencement of that academic year and is entitled to full benefits, to include back pay.

RECOMMENDATION

It is recommended that the Respondent, Duval County School Board, allow the Petitioners claim for tenure effective the beginning of the academic year 1977- 78, with full benefits, including back pay.

DONE AND ENTERED this 30th day of October, 1979, in Tallahassee, Florida.

CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Patricia A. Renovitch, Esquire General Counsel

FEA/United

208 West Pensacola Street Tallahassee, Florida 32304

Thomas E. Crowder, Esquire Assistant City Attorney 1300 City Hall

Jacksonville, Florida 32202

Docket for Case No: 79-001790

Orders for Case No: 79-001790