STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRED D. GREENE, )

)

Petitioner, )

)

vs. ) CASE NO. 85-0706

)

THE SCHOOL BOARD OF ) HAMILTON COUNTY, FLORIDA, )

)

Respondent. )

)

RECOMMENDED ORDER

Consistent with the Notice of Hearing furnished to the parties by the undersigned, a hearing was held in this case before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings in Jasper, Florida, on September 3, 1985. The issue for consideration in this case was whether the Petitioner was entitled to be assigned duties and was assigned duties consistent with the terms and conditions of his contract with the Hamilton County, Florida School Board upon leaving the position of Superintendent of Schools.

APPEARANCES

For the Petitioner: John D. Carlson, Esq.

Gatlin, Woods, Carlson & Girtman 1030 East Lafayette Street

Suite 112

Tallahassee, Florida 32301

For the Respondent: Paul Hendrick, Esq.

111 South Central Avenue, Suite I Jasper, Florida 32052

BACKGROUND INFORMATION

On January 31, 1985, the Petitioner, Fred D. Greene, filed a Petition before the School Board of Hamilton County, Florida requesting, inter alia, that he be given a position as principal in the Hamilton County school system and that he be paid a

salary as an instructional director as opposed to the salary currently paid as an instructor. The Petition was forwarded by letter of counsel on February 7, 1985, to the Superintendent of Schools for Hamilton County along with a request for an administrative hearing by an independent hearing officer under the provisions of Section 120.57(1), Florida Statutes.

Thereafter, on March 4, 1985, Owen Hinton, Jr., Superintendent of Hamilton County schools, forwarded the file to the Division of Administrative Hearings for the appointment of a hearing officer and on March 27, 1985, the undersigned dispatched a Notice of Hearing to both parties setting the original hearing date on July 9 and 10, 1985. Thereafter, several continuances were granted and the hearing was held on September 3, 1985, in Jasper in the offices of the Hamilton County School Board without objection by Petitioner as to the location of the hearing. At the hearing, Petitioner presented the testimony of Owen Hinton, Jr., Superintendent of Schools Margaret Scaff, Director of Vocational, Technical and Adult Education (VTAE), for the Hamilton County schools Harry J. Pennington, Principal of North Hamilton Elementary School (NHE), in Jennings Mattie S. Fouraker, office manager for the school board James B. Coe, administrative assistant for programs and personnel for the school board and, by deposition, that of Grace McDonald, Director of Food Services and Director of Health for the school board. Petitioner also introduced Petitioner's Exhibits 1 through 21.

Respondent also called Mr. Coe, Ms. Fouraker, and Mr.

Hinton, all of whom testified for Petitioner, and also presented the testimony of Harold H. Vickers, Jr., administrative assistant for finance and planning for the school board, and introduced Respondent's Exhibits A through E.

In the preparation of this Recommended Order, the Proposed Findings of Fact submitted by each party have been thoroughly considered. A ruling on each proposed finding of fact has been made in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Petitioner, Fred D. Greene, began service with the Hamilton County School Board as a teacher in August, 1965. He was employed on annual contract for three school years until he was granted a continuing contract by the school board on July 23, 1968, as a teacher pursuant to Section 231.36, Florida Statutes.

2. After the execution of the continuing contract, Petitioner was assigned as coordinator of vocational education during the 1969-1970 school term but in addition to those duties, continued to teach five classes. As Petitioner was assigned additional duties by the Superintendent, his teaching duties were reduced.

   
   

3. Starting in 1970 and continuing through 1973, though the continuing contract as a teacher had not been rescinded, Petitioner and the school board entered into annual contracts of employment in which Petitioner was assigned as Director of Vocational Education. On June 5, 1973, the parties entered into a second continuing contract which described Petitioner's duties as "Director of Vocational, Technical and Adult Education." At no time did Petitioner ever hold a contract as "principal" nor was he ever paid as such. His current Florida Teacher's Certificate shows him certified in, among other things, secondary administration and supervision.

   
   

4. Both this contract and the 1968 continuing contract contained a provision that the school board was authorized, upon recommendation of the superintendent of schools, to transfer and assign the Petitioner to a "similar position in any other school" in the district, provided that "the duties shall be similar to the duties originally assigned and the salary shall be as heretofore set forth."

   
   

5. From the time he was appointed director of VTAE until January, 1981, Petitioner served in that capacity. As director of VTAE, he considered his position as similar to that of a principal in that he reported directly to the Superintendent of Schools, he supervised the teachers who taught within his program (although he did not rate them) he was paid on the non- instructional salary schedule as is a principal he was responsible for the procurement of and administration of students including their promotion and graduation. Nonetheless, he was not classified as a principal, he served schools throughout the county, the teachers in the program were recruited from regular day teachers and additional personnel who taught only in the night program, and these teachers were rated by their day principal when appropriate. Consequently, his position as Director, VTAE, was not similar to that of a principal. At the time he left the job as Director, VTAE, to assume the office of Superintendent of Schools, he was paid a salary of $21,000.00 per year for a 12 month term and was on step 6 of the non-instructional salary schedule. He has never

   released the school board from the terms of the continuing contract.

   
   

6. In January, 1981, Petitioner took office as Superintendent of Schools. At that time the function of Director, VTAE, was assigned to Ms. Scaff who subsequently also occupied several other positions within the school board system including instructional coordinator, secondary curriculum coordinator, community education director, law education director, and management information systems director. Ms. Scaff did not assume all those functions at one time. The job was built up over a period of years and while the duties changed, the title of Director, VTAE, did not. Ms. Scaff was paid as an instructional director on the non-instructional salary schedule. As Director, VTAE, Ms. Scaff, and Mr. Greene before her, occupied one of the director positions reflected in the directory of the School Board. The School Board uses the same contract form for directors and principals and the director is evaluated by the Superintendent of Schools as is a principal, but there are few other similarities between the function of principal and Director.

   
   

7. Petitioner served as Superintendent of Schools from 1981 until November, 1984, when he was replaced as superintendent by Mr. Hinton. Several months before his term expired, in June, 1984, Petitioner recommended to the School Board that it appoint Ms. Scaff, who was at that time serving as, inter alia, Director, VTAE, to a two year contract in that position. This contract was approved by the School Board. Shortly after his defeat in the election, Petitioner allegedly told Mr. Hinton that he did not wish to displace anyone employed by the school system in order to enforce his return rights under the continuing contract he held. It was his position that he would accept a teaching position but at a salary level equivalent to that of an administrator until such time as an administrator's position within the system became open.

   
   

8. At a special meeting of the School Board called by Petitioner on the last day of his term as superintendent, Mr. Greene nominated himself for the position as principal at NHE. This nomination, however, was tabled by the School Board upon advice of counsel so that an advisory opinion on it could be requested from the Florida Commission on Ethics. At this point it should be noted that though the position as Principal at NHE became vacant prior to Petitioner leaving his position as superintendent, he did not apply during the period that

   the·advertisement was open. The only person to do so was Harry Pennington who was subsequently placed in that position.

   
   

9. When Mr. Hinton assumed the position of Superintendent of Schools, replacing Mr. Greene, he immediately assigned Petitioner to the position as teacher of business education.

   Mr. Greene accepted the assignment but requested that he be paid a salary equivalent to the 20th step on the salary schedule for the position of instructional director at a figure of $32,550.00 per year. The figure demanded by Petitioner was not paid, however. After conferring with the State Department of Education regarding the proposed salary for Petitioner, the School Board determined that since he held a continuing contract as a teacher, he would be employed at a salary based on the teacher position. He was given credit for four years of teaching service while serving as Superintendent of Schools which placed him at the 20 year service point. In addition, he was given credit for a master's degree and for teaching in his field of certification. His total salary, therefore, was set at

   $23,460.00 over a ten month term.

   
   

10. Petitioner was not satisfied, especially since Mr. Pennington, who was serving as principal of NHE was receiving

    $28,100.00 per year based on a 12 month employment contract. On May 27, 1985 the school board rejected Mr. Greene's nomination of himself as principal at NHE. The board's rejection of Mr.

    Greene was based on the recommendation of Mr. Hinton who felt that Petitioner was not qualified for the position in that he did not hold certification in administration and supervision at the elementary level his contract was not for the position of principal he had no experience as principal or assistant principal he did not apply for the position when it was advertised and because counsel advised that filling the position based on self nomination might violate Florida law. Mr.

    Pennington on the other hand, was fully certified in administration and supervision for all grade levels involved at NHE.

    
    

11. Other positions for which Respondent felt himself qualified came open during the 1984-1985 school year but he was not selected to fill any of them. Included in these were that of principal of Hamilton County High School and administrative assistant positions at both North Hamilton Elementary and South Hamilton Elementary.

    
    

12. When Mr. Hinton took over as Superintendent of Schools, as a part of his management program and in an effort to

    correct what appeared to be a problem regarding the late payment of School Board obligations which existed when he took over, he recommended certain personnel changes including the creation of an office manager position. Mattie Fouraker, formerly the business education instructor at Hamilton High School, was appointed office manager to the School Board at a salary approximately equivalent to that she received as a teacher. It is to her vacant job as teacher of business education that Mr.

    Greene was assigned. Petitioner contends Ms. Fouraker was appointed to the position before it was ever officially created and approved by the School Board. Be that as it may, however, it becomes clear that the Superintendent of Schools intended that a problem be solved and to do so, created a position designed to correct it. He appointed Ms. Fouraker to the job on a temporary basis and as soon as the School Board met at the next scheduled meeting in December, 1984, it approved the position and confirmed Ms. Fouraker's assignment to it. This formal board action, however, served to increase her pay from that of a teacher at $23,460.00 per year to that of an administrative position at $29,700.00 per year and her position was changed from that of a 10 month to a 12 month employment, along with the benefits accruing thereto.

    
    

13. Petitioner's salary as business education instructor was developed through a tailored formula developed with an intent to,-in the opinion of Mr. Hinton, put Mr. Greene in approximately the same position for the four years he was Superintendent of Schools. As was stated previously, Mr. Greene was given credit for his 16 years in the classroom plus his years of superintendent for a total of 20 years experience credit. Added to that was credit for a Master's degree and credit for teaching in his field of certification. When the

    $23,460.00 salary that was arrived at for this was compared to what it was anticipated he would have earned had he stayed as Director of VTAE, it was seen that had he remained in his position on the same salary schedule, he would have presumably earned $2,362.50 per month ($23,625.00 per 10 month school year) as an instructional director, Step 6. This is approximately

    $155.00 more over the school year. Had Petitioner been paid at the salary of an instructional support position, Step 6, the monthly salary would be slightly lower. It should be noted, however, that due to schedule changes during the period, this might not be a valid comparison.

    
    

14. Positions within the school system are assigned by the Superintendent of schools on the nature of the position. Non- instructional personnel are assigned categories on the salary

    schedule based on an assessment of their qualifications and value to the system. Teachers, on the other hand, who are generally serving under contracts, are placed on the salary schedule consistent with the number of years experience they have plus certain other additions. It was Mr. Hinton's position that Mr. Greene should be paid as a teacher since he was serving as a teacher and once that decision was made, Mr. Greene was paid the highest amount that a person with his certificate and his experience and qualification could earn in that position.

    
    

15. When the Florida Commission on Ethics issued its opinion on the question certified to it regarding Petitioner's recommending himself for the position of Principal of NHE, the opinion indicated the Commission could not conceive of how the Petitioner's actions in recommending himself for a position could not have constituted a misuse of public position. In other words, while not saying that it was, the Commission concluded that it probably was a violation.

    
    

16. Thereafter, the School Board requested an Attorney General's opinion on whether a school superintendent may nominate himself for appointment of a principal. The opinion was not received as of the date of the hearing.

    
    

17. Turning again to the issue of the function of Director of VTAE, the School Board contends that the function of Director has steadily expanded in scope. For example, Mr. Hinton

    urges that the work that Mr. Greene was doing as Director, VTAE prior to being elected superintendent now constitutes only 10 to 20% of the currently described duties of the position. The additional functions that Ms. Scaff performs, as described above, he contends, constitute more by far than that which Petitioner did when he held the job.

    
    

18. In support of that position, Mr. Hinton refers to the organization and management study conducted in 1983 at the request of Petitioner when he was Superintendent of Schools. Among the pertinent recommendations of that study was the restructuring of the organization within the school district level. The position of Director, VTAE was not one of the three Director and five coordinator positions recommended by the study.

    
    

19. Ms. Scaff indicates that when Petitioner was defeated in his bid for re-election as superintendent of schools, she indicated her willingness to step down from the position of Director, VTAE and return to classroom teaching. She does not

    consider the return to a position of teaching as a demotion nor does Ms. Fouraker. It should be noted, however, that both individuals received substantial increases in salary by virtue of their position changes under the Hinton administration. For example, Ms. Fouraker's promotion to the position of office manager carried a pay increase from $23,460.00 to $29,700.00 per year. Ms. Scaff now earns the same.

    
    

20. Mr. Greene was at Step 6 on the non-instructional scale when he left the job of Director, VTAE. These scales were modified in the intervening years, and Ms. Fouraker traced Mr. Greene's position as Director, VTAE, to the new scale as if he had stayed in place. She placed him at Step 6 on the new scale at a salary of $28,350.00. Petitioner contends that he should be treated the same as Mr. Coe, Director of Personnel, who realized a large salary and step increase when the pay scales were changed. If this were done, and he was given an instructional director's position at step 20 on the non- instructional salary schedule, his salary would be $32,500.00.

    
    

21. Subtracting that $28,350.00 from the $32,550.00 he says he should be earning, Mr. Greene indicates that he lost approximately $4,958.87 for the period starting November 20, 1984, when he began teaching, to the end of the school year. He further contends that his salary loss is continuing at the rate of $757.50 per month and in addition, he is also being deprived of other benefits of employment such as paid annual leave, sick leave, enhanced retirement benefits, and other like perquisites attached to a 12 month contract. Mr. Greene further contends that since he was involved in litigation with the school board concerning Mr. Coe's contract prior to his leaving the position of Superintendent of Schools, the School Board should have known of his entitlements under the continuing contract since it was shown that it had been established for assignments and transfers.

    
    

    CONCLUSIONS OF LAW

    
    

22. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.

    
    

23. Under the provisions of Section 231.36(4)(a), Florida Statutes, an employee of a school board holding a continuing contract prior to July 1, 1984, shall be entitled to retain such contract and all rights arising therefrom unless the employee voluntarily relinquishes this continuing contract. There is no

    evidence that Petitioner herein at any time relinquished his contract.

    
    

24. Under the provisions of Section 231.36(3)(e) and (g), Florida Statutes: (e) any individual who has a continuing contract shall be entitled to continue in that position or a similar position at the salary schedule authorized by the School Board without the necessity for annual reappointment until such time as the position is discontinued, the person resigns, or his contract status is changed; and (g) anyone who had previously earned a continuing contract as a supervisor or principal shall be continued in that status until such time as, again, the position is discontinued, he resigns, or his contract status is changed by mutual agreement.

    
    

25. Here there is evidence that Mr. Hinton moved to discontinue or abolish the position of Director, VTAE, but no action was taken by the School Board on that recommendation. Further, it is clear that Mr. Greene never resigned or agreed to a change in his contract status. Therefore, on the basis of the above, it is clear that Mr. Greene has a valid continuing contract as Director, VTAE. The question then is what the position of Director, VTAE is, and what rights it bestows both as to position and salary upon Mr. Greene's return to the school system as other than superintendent.

    
    

26. If it can be shown that Mr. Greene's position as Director, VTAE was tantamount to or similar to that of a principal or division director within the school board organization, then it well may be that he is entitled to a principal's position or another director position within the organization. On the other hand if, as the School Board contends, the position Mr. Greene held as Director, VTAE was no more than a teacher's position, then in that case, it would appear he is properly assigned and is being properly paid.

    
    

27. In order to make a valid comparison, it is necessary to define the elements of both positions. Turning first to the position of Director, VTAE as it existed, the evidence shows without contradiction that at the time Mr. Greene occupied the position, he reported directly to the Superintendent of Schools he supervised the teachers who taught within his program, but did not rate them and they were not assigned to his direct control he was paid on the non-instructional salary schedule and he was responsible for the procurement of and administration of students within the program. In short, he was the head of the Vocational, Technical, Adult Education program in the Hamilton

    County schools. Respondent presented no evidence whatever to show that he was supervised by anyone within the school system other than the superintendent. If this is true, it would appear to place him at the second level of organization.

    
    

28. On the other hand, according to Respondent, Mr. Greene did not have his own facility he did not have an instructional staff directly under his supervision and control other than supervision to insure that the instructors had what they needed and he did not rate or assign the teachers who worked within the program. There was no evidence to establish whether he prepared and maintained his own budget or not.

    
    

29. On balance, then, it becomes clear that while the position held by Mr. Greene as Director, VTAE had neither the responsibility nor the complexity of that of a principal, nor can it be even classified as similar, it was substantially more complex than that of a classroom teacher and is not similar to a teacher position either. In short, Mr. Greene was an administrator similar to an administrative division head or coordinator within the school district headquarters, or, within the school setting, like a department head. His teacher certification relates to the areas of administrative supervision at the secondary level and Director of Vocational Education at the same level.

    
    

30. His qualifications, therefore, are greater than those of a classroom teacher.

    
    

31. Even though there is substantial evidence the position of Director, VTAE is structured differently today than when it was held by Mr. Greene, he currently possesses the credentials necessary to fill that position if it were open. Respondent has not produced any evidence to indicate he is not so qualified. When Ms. Scaff's contract expires in June, 1986, Mr. Greene could assume that position and be paid the salary for the incumbent when he performs this function. He is entitled to a comparative position.

    
    

32. Mr. Greene could have been reappointed to the position of Director, VTAE upon his departure from the position of Superintendent of Schools. Ms. Scaff indicated her willingness to step down at that time but Mr. Greene declined to accept her offer. Regardless of how honorable his motives were in doing so, his refusal constitutes a waiver of his right to immediate appointment and to claim back pay for the period he was assigned to a lesser job.

    
    

33. Respondent relies heavily on that provision of the School Board policy which provides for a superintendent, upon completion of his term, to be offered a continuing contract as a teacher and urges that this provision requires that Petitioner be hired as a teacher and precludes him from being hired in any other position. This argument is rejected insofar as it stands for the proposition that Petitioner cannot be hired at a higher rate.

    
    

34. Respondent had also made much in argument of the fact that Petitioner nominated himself for the position of principal at NHE prior to leaving office as Superintendent of Schools.

As was previously found, the Commission on Ethics clearly implied this was an improper course of conduct. The fact remains that Petitioner was not selected for the position. The decision not to appoint him as Principal of that school was appropriate.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore:

RECOMMENDED that Petitioner, Fred D. Greene, be assigned a non-principal supervisor/director position within the Hamilton County Schools as available that he be paid accordingly when performing in such a position but that he be denied adjustment for back pay and attorney's fees and costs.

RECOMMENDED this 29th day of October, 1985, in Tallahassee, Florida.

ARNOLD H POLLOCK

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 29th day of October, 1985.

COPIES FURNISHED:

John D. Carlson, Esquire Gatlin, Woods, Carlson

& Girtman

1030 East Lafayette, Suite 112

Tallahassee, FL 32301

Paul Hendrick, Esquire

111 South Central Avenue Suite 1

Jasper, FL 32052

Owen Hinton, Jr.

Superintendent

Hamilton County School Board

P. O. Box 1059 Jasper, FL 32052

Honorable Ralph D. Turlington Commissioner of Education

The Capitol Tallahassee, FL 32301

APPENDIX

Ruling by the Hearing Officer as to the Petitioner's Proposed Findings Of Fact:

Paragraphs

1. Accepted

2. Accepted

3. Accepted

4. Accepted

5. Accepted

6. Accepted

7. Accepted*

8. Accepted*

9. Accepted*

10. Accepted

11. Accepted except as to the veracity of the reported comment of the School Board member

12. Accepted

13. Accepted

14. Accepted

15. Accepted except as to comments of Ms. Scaff as to her being a principal and signing forms as such

16. Accepted except for Petitioner's comment that he would receive temporary certificate for Elementary Ed principal and would obtain certification in grades

    K-6 without much problem

17. Accepted

18. Accepted

19. Rejected as irrelevant

20. Irrelevant as a finding of fact should be conclusion of law

21. Accepted

22. Accepted except as to last sentence which is irrelevant

unnumbered between

1. and 23 Rejected

2. Rejected

Rulings by the Hearing Officer as to Respondent's Proposed Findings of Fact (Respondent failed to number paragraphs.) The unnumbered paragraphs are therefore treated in sequence and numbered herein for purposes of identification only.

Paragraphs

1. Accepted

2. Accepted

3. Accepted

4. Accepted

5. Accepted

6. Accepted

7. Accepted

8. Accepted

9. Accepted

10. Accepted

11. Accepted

12. Accepted as to substance

13. Accepted

14. Accepted

15. Accepted except that acceptance of the position was not meant to be acquiesed in permanent

    assignment

16. Accepted

17. Accepted

18. Accepted

19. Accepted

20. Accepted

21. Accepted as it relates to teacher salaries only

22. Accepted

23. Accepted

24. Accepted

25. Accepted

26. Accepted as to the request made. As of the hearing, the opinion had not been received. It was not offered into evidence and though attached to Respondent's Proposed Recommended Order, was not considered

27. Accepted

28. Accepted

29. Accepted except for the conclusion drawn in the last sentence which was not supported by evidence admitted.

30. Accepted

31. Accepted

32. Accepted

33. Rejected. Position was held by Ms. Scaff who performed the same duties performed by Petitioner when he was the encumbent, in addition to additional duties which he did not

*Petitioner's terms describing the personnel changes are not necessarily dispositive of the issue.

Docket for Case No: 85-000706

Orders for Case No: 85-000706