STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THOMAS E. DEEN, )

)

Petitioner, )

)

vs. ) CASE NO. 85-1342

) THE SCHOOL BOARD OF HERNANDO ) COUNTY, FLORIDA, )

a public body corporate, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, W. Matthew Stevenson, held a formal hearing in this case on September 16, 1985, in Brooksville, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: John D. Carlson

1030 E. Lafayette Street No. 112

Tallahassee, Florida 32301

For Respondent: Joseph E. Johnston, Jr., Esq.

29 South Brooksville Avenue Brooksville, Florida 33512

The primary issues for determination of the final hearing were: (1) whether the Petitioner holds a valid continuing contract in the administrative position of principal in the Hernando County School system; and (2) whether the Petitioner is entitled to be paid as a principal according to the salary schedule promulgated by the Hernando County School Board for the 1982-83, 1983-84, 1984-85 and 1985-86 academic years.

PROCEDURAL BACKGROUND

By letter dated April 15, 1985, the Petitioner, Thomas E. Deen, requested an administrative hearing and filed his Petition for Administrative Hearing and Affirmative Relief with Superintendent James K. Austin, Secretary and Executive Officer of the School Board of Hernando County.

Thereafter by letter dated April 23, 1985, the School Board of Hernando County requested that a Hearing Officer from the Division of Administrative Hearings be assigned pursuant to Section 120.57(1), Florida Statutes. This cause came on for final hearing on September 16, 1985.

At the final hearing, the Petitioner, Thomas E. Deen, testified in his own behalf and called the following witnesses: James K. Austin, Superintendent; John Porter, Assistant Superintendent; Beverly Traub, Executive Administrative Assistant to the Superintendent; Edward Poore, Assistant Superintendent; and Lorenzo Hamilton, Assistant Principal, Hernando County High School. Petitioner's Exhibits 1 through 14 were offered and duly admitted into the record. At the conclusions of Petitioner's case, the Respondent recalled Superintendent James K. Austin.

The parties have submitted posthearing Proposed Findings of Fact. A ruling has been made on each proposed finding of fact in the Appendix to this Recommended Order.

FINDINGS OF FACT

Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following findings of fact:

1. The Petitioner, Thomas E. Deen, is an employee of Respondent, School Board of Hernando County, Florida. The School Board is an agency of the State of Florida and is charged with responsibility for the operation of the Hernando County public schools.

   
   

2. The Petitioner was initially employed by Respondent as an assistant principal for the 1961-62 academic year. He was thereafter employed under successive annual contracts of employment for the academic years 1962-63 and 1963-64. The Petitioner was thereafter granted a continuing contract as assistant principal for that period commencing with the 1964-65 academic year.

   
   

3. In 1972, Petitioner was promoted to the position of principal. The Petitioner thereafter served in the position of principal for the 1972-73, 1973-74, 1974-75, 1975-76 and 1976-77 academic years. In the 1976-77 through 1981-82 academic years. Petitioner was assigned to various administrative positions, including Title I Resource Specialist and Adult Education Coordinator. At all times during this period, he was paid at least the administrative base salary in accordance with the salary schedule annually adopted by the School Board.

   
   

4. For the 1982-83 academic year, the Petitioner was assigned to the position of adult school director at the Alternative Adult Education Day and Trade School. This school involved day high school students, adult students, a trade school and an alternative program. This school is located in a separate facility. The Petitioner replaced an individual by the name of Lorenzo Hamilton. Mr. Hamilton held the administrative title of principal while he served in that position and was paid as a principal. The duties performed by Mr. Hamilton and Petitioner were identical in all respects.

   
   

5. Both Mr. Hamilton and the Petitioner performed many of the duties required of principals by the School Board's job description for the position of principal, including: 1) evaluation of teachers; 2) supervision of teachers; 3) discipline of students; 4) evaluation of students; and, 5) signing numerous documents as principal. However, several duties required of principals were not performed by Mr. Hamilton, or Petitioner. Those duties included: 1) recommending to the superintendent changes and improvements to the school plant, physical equipment and grounds; 2) recommending to the superintendent changes in existing personnel and the hiring of personnel; 3) recommending to the Superintendent major changes in the curriculum of the school; 4) keeping property records on equipment and textbooks and maintaining internal accounts; 5) recommending to the School Board any rentals of the buildings and 6) submitting purchase orders and estimated needs for office supplies, classroom supplies and custodial supplies. Many of the functions of principals which were not performed by Petitioner or Mr. Hamilton were the responsibility of Mr. Goss. Mr. Goss was considered Petitioner's and Mr. Hamilton's supervisor and was employed as a community school coordinator. Generally, principals report directly to the superintendent in the school system's chain of command; Petitioner did not report directly to the superintendent.

6. The Petitioner therafter served as community school director for the 1982-83 school year and the 1983-84 school year. For the 1984-85 school year the Petitioner held the administrative title of principal/community school coordinator.

   
   

7. After Petitioner relieved Mr. Lorenzo Hamilton, the title of the administrative position was re-evaluated and it was determined that the position should be a director's position and not a principal's position. In addition, it was determined that the position did not call for a principal's salary.

   
   

8. While employed in the position of community school director for the 1982-83 school year, the Petitioner received the administrative base pay of a community school director, a five (5%) per cent enrollment supplement and a three (3%) per cent alternative school supplement. The two (2) supplements which the Petitioner received were also received by Mr. Hamilton when he served in the position during the 1981-82 school year. Further, the School Board of Hernando County supervisory and administrative salary schedule for the 1982-83 school year, admitted into evidence as Petitioner's Exhibit 4 reflects that those two (2) supplements were paid to principals but were not paid to community school directors.

   
   

9. For the 1983-84 school year, the Petitioner was paid the administrative base of a director, however, he continue to receive enrollment and position supplements which were reserved for principals according to the school board's supervisory and administrative salary schedule for the year 1983-84.

   
   

10. For the 1984-85 school year the Petitioner was paid 100% of the administrative base. However, the Petitioner did not receive an enrollment supplement nor a position supplement. According to the school board's supervisory and administrative salary schedule for the school year 1984-85, persons occupying the position of principal were entitled to an enrollment supplement and a position supplement.

    
    

11. For the 1984-85 school year, the Petitioner's title was changed from community school director to principal. The primary reason for the change in title was to implement the district school board's policy requiring that the person at the school level in charge of the Beginning Teacher Program be titled "principal." The Petitioner was in charge of the Beginning Teacher Program at the Alternative School. The Beginning Teacher Program began in the State of Florida on July 1, 1982. The Petitioner was involved with the Beginning Teacher

    Program since its inception, but did not have any beginning teachers in 1982-83. The Petitioner did have beginning teachers in his school during the 1983-84 and 1984-85 school years.

    
    

12. The Petitioner protested his rate of pay for the 1982-

    83 school year to Superintendent Austin. Initially, Petitioner's contract reflected that he would be paid 90% of administrative base with no supplements. After a heated discussion with Mr. Austin, Petitioner's salary was adjusted to include a 5% supplement for the number of students and a 3% supplement for the type of school; Petitioner's administrative base salary was unchanged.

    
    

13. During the 1984-85 school year the Petitioner did not report directly to Mr. Austin, the superintendent of schools. Based on the school board's chain of command, a principal will report directly to the office of the superintendent while assistant principals do not report directly to the superintendent.

    
    

14. Mr. Austin, the superintendent of schools of Hernando County has never recommended to the school board that a person receive a continuing contract as a principal. Mr. Austin has recommended that certain individuals receive a continuing contract as assistant principal and has made a recommendation that an individual receive a continuing contract in the position of administrator.

    
    

15. The school board's supervisory and administrative salary schedule for the 1982-83 school year provided that assistant principals would be paid 100% of the administrative base, or $26,575. Petitioner held a valid continuing contract as an assistant principal during the 1982-83 school year, but was paid an administrative base of $23,917.50.

    
    

16. The school board's supervisory and administrative salary schedule for the 1983-84 school year provided that assistant principals would be paid 100% of the administrative base, or $28,967. Petitioner held a valid continuing contract as an assistant principal during the 1983-84 school year, but was paid an administrative base of $26,070.

    
    

17. The School Board's supervisory and administrative salary schedule for the 1984-85 school year provided that assistant principals would be paid 100% of the administrative base, or $31,800. Petitioner was paid in accordance with the School Board's salary schedule for the 1984-85 school year. The

    1984-85 salary schedule provided that assistant principals and "principal of adult day high school and trade school/community school directors" would receive the same salary, i.e. 100% of administrative base.

    
    

18. Petitioner is presently employed, for the 1985-86 school year, in the position of principal of adult day high school and trade school/community school director. Petitioner is currently being paid in accordance with the salary scheduled established by the School Board for the category "principal of adult day high school and trade school/community school director."

    
    

19. The Petitioner's agreement of employment with the School Board for each academic year in question consisted of a composite of documents evidencing the total understanding between the parties. Those documents included: (a) an "Intent- to-Return" form submitted by the employee indicating his intent to return to the Hernando County school system the following year; (b) a letter of appointment or re-appointment written by the superintendent and addressed to the District School Board of Hernando County; (c) a letter written by the superintendent addressed to the employee confirming that the appointment or reappointment was approved by the District School Board; (d) an Administrative Salary Statement, with salary and position filled in by the School Board and submitted to the employee for signature; and, (e) a general "Supervisory and Administrative Salary Schedule" applicable to all administrative employees in the school system.

    
    

    CONCLUSIONS OF LAW

    
    

20. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes (1983).

    
    

21. The burden is on the Petitioner, to establish by a preponderance of evidence, the existence of a continuing contract as principal between him and the Respondent, School Board of Hernando County (hereinafter referred to as School Board). This, he has failed to do.

    
    

22. Presently, there is no provision in the Florida Statutes for employment of a principal or a supervisor in a "continuing contract" status. Principals may be awarded a contract for an initial period not to exceed three years, subject to annual review and renewal. After the first three(3)

    years, the contract may be renewed for up to a three (3) year period, during which dismissal would require "just cause". See Section 231.36(1)(b), Florida Statutes (1983). However, during the time in question, Florida law did provide for continuing contracts for supervisors and principals. Specifically, Section 231.36(3)(h), Florida Statutes provided that:

    
    

    "(h) school boards are authorized to enter into continuing contracts with principals and supervisors who were employed as principals and supervisors on or before July 1, 1974, and who otherwise meet the requirements of paragraph (a). However, this authorization shall expire July 1, 1977. If a district school board elects not to exercise the authority in this paragraph no showing of just cause shall be required."

    
    

    Thus, for a short "window" period school boards were authorized to enter into continuing contracts with principals who were employed prior to July 1, 1974 and who met the requirements of law at that time. One of the requirements for earning. continuing contract status was that the principal must have been recommended by the superintendent for such continuing contract based on successful performance of duties and demonstration of professional competence. See Section 231.36(3)(a)(4), Florida Statutes (1976). The superintendent of schools in the case at bar did not recommend that the Petitioner be provided a continuing contract as a principal. Further, the school board never exercised its option to enter into a continuing contract with Petitioner for the position of principal. It is well established that the intention of parties to a contract must be determined from examination and consideration of the whole agreement and not from separate phrases or paragraphs. Deeb vs. Field, 311 So. 2d 736 (Fla. 3rd DCA 1975). Where ambiguity exists, an interpretation should be arrived at which is consistent with reason, probability and the practical aspect of the transaction between the parties. Biltmore Systems, Inc. vs. MaiKai, Inc., 413 So. 2d 458 (Fla. 4th DCA 1982). Upon consideration of the documents which formed the basis of Petitioner's contract with the School Board during the years in question, and the testimony concerning the practical aspects of the agreement between the School Board and Petitioner, the existence of a continuing contract as principal has not been shown.

23. Likewise, Petitioner's claim that he should be paid in accordance with the salary schedule promulgated for principals for the 1984-85 and 1985-86 school years, notwithstanding contract documents to the contrary, should be dismissed. Petitioner was hired for the years in question in the position of "principal of adult-day high school and trade school/community school director." The petitioner was thereafter paid in accordance with the salary schedule promulgated for that particular position. It is axiomatic that a contract should be construed according to its own clear and unambiguous terms and should not be re-written to relieve one or both of the parties of their responsibilities thereunder. The terms of Petitioner's contracts with the school board for the 1984-85 and 1985-86 academic years are clear and unambiguous.

    
    

24. Lastly, Petitioner's claim that he was underpaid for the 1982-83 and 1983-84 academic years is well founded, and indeed, conceded to by Respondent. Petitioner was underpaid

$2,657.50 for the 1982-83 school year and $2,897.00 for the 1983-84 school year. Petitioner's entitlement to the

administrative base pay provided for assistant principals during the 1982-83 and 1983-84 academic years is also clear and unambiguous.

RECOMMENDATIONS

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED THAT:

1. The School Board of Hernando County declare and determine that Petitioner does not hold a continuing contract of employment as a principal;

   
   

2. The School Board of Hernando County adjust the pay of Petitioner for the 1985-86 academic year to reflect past salary shortages totalling $5,554.50; and that

   
   

3. The School Board of Hernando County deny Petitioner's claim for compensatory damages, attorney's fees and costs.

DONE and ORDERED this 5th day of November, 1985 in Tallahassee, Leon County, Florida.

MATTHEW STEVENSON

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(9040 488-9675

FILED with the Clerk of the Division of Administrative Hearings this 5th day of November, 1985.

COPIES FURNISHED:

John D. Carlson, Esq.

1030 E. Lafayette Street - #112

Tallahassee, Florida 32301

Joseph E. Johnston, Jr., Esq.

29 South Brooksville Avenue Brooksville, Florida 33512

Hon. Ralph D. Turlington Commissioner of Education The Capitol

Tallahassee, Florida 32301

Judith Brechner, Esq. General Counsel Department of Education Knott Building

Tallahassee, Florida 32301

James K. Austin, Ed.D. Superintendent of Schools The School Board of Hernando County, Florida

919 U.S. Highway 41, North

Brooksville, Florida 33512-2997

APPENDIX

Pursuant to Section 120.59(2), Florida Statutes (1983) the following is submitted in response to Petitioner's and Respondent's Proposed Findings of Fact:

Petitioner's Proposed Findings of Fact:

Finding: Ruling:

1. Accepted; see paragraphs 1 & 2, R.O.

2. Accepted, see paragraph 1.

3. Partially accepted; see paragraphs 2,

   3 and 14, R.O. Petitioner's proposed

   finding that his contract "denoted "CC" indicating a continuing contract as a principal" is rejected as a conclusion of law. Petitioner's

   proposed finding that the "Superintendent and School Board acted on Petitioner's employment as though he held a continuing contract as a principal" is not supported by the evidence.

4. Accepted; see paragraph 3, R.O.

5. Partially accepted; see paragraphs

   1. & 5. Facts not included therein are rejected as irrelevant.

6. Partially accepted; see paragraphs 4 and 5 R.O. Facts not included therein are rejected as irrelevant, cumulative or immaterial.

7. Partially accepted; see paragraphs 4, 5, 6, 7 and 8, R.O. Facts not included therein are rejected as irrelevant, cumulative or immaterial.

8. Accepted; see paragraph 11, R.O.

9. Partially accepted; see paragraphs

   1. and 11, R.O. Facts not included therein are rejected as cumulative, irrelevant or immaterial.

10. Partially accepted; see paragraph

11. Facts not included therein are rejected as cumulative or immaterial.

1. Partially accepted; see paragraphs 8 and 15. Petitioner's proposed finding that "Under the 1982-83 Salary Schedule an individual holding a contract as

   . . . an assistant principal and performing the duties of a principal"

   would have been entitled to administrative base plus supplements is not supported

   by the evidence.

2. Partially accepted; see paragraphs 9 and 16. Petitioner's proposed

   finding that "under the 1983-84 salary schedule an individual holding a contract as . . . an assistant principal

   and performing the duties of a principal" would have been entitled to administrative base plus supplements

   is not supported by the evidence.

3. (No paragraph 13)

4. Partially accepted; see paragraph 17,

   R.O. Petitioner's proposed finding that he was entitled to supplements in the same manner as he had received in prior years is rejected as a conclusion of law. Petitioner's

   proposed finding that "Under the 1983-84 salary schedule an individual holding

   a contract as . . . an assistant principal and performing the duties

   of a principal" would have been entitled to administrative base plus supplements is not supported by the evidence.

5. Partially accepted; see paragraph 11 and 17, R.O. Facts not included therein are rejected as immaterial.

6. Rejected as not supported by the evidence. The testimony of Petitioner established that his retirement benefits would be based on the average of his 5 highest

   paid years. However, there was no evidence as to when Petitioner planned to retire, therefore, any effect on Petitioner's retirement benefit caused by underpayments during the years in question is speculative.

7. Rejected as immaterial.

Respondent's Proposed Findings of Fact:

Finding: Ruling:

1. Accepted; see paragraphs 1 & 2, R.O.

2. Accepted; see paragraph 14, R.O.

3. Accepted; see paragraph 3, R.O.

4. Accepted; see paragraph 15, R.O.

5. Rejected as not supported by the evidence.

6. Accepted; see paragraphs 8 and 9, R.O.

7. Partially accepted; see paragraphs 4 & 5. Respondent's proposed finding that Petitioner's duties were not commensurate with those assigned to principals is partially not supported

   by the evidence since it was established that many of Petitioner's duties were commensurate with those assigned to principals.

8. Accepted; see paragraphs

   15 and 16, R.O.

9. Rejected; see paragraphs

   15 and 16, R.O.

10. Partially rejected; Petitioner is currently, 1985-86 school year, being

paid the salary of an assistant principal, however, Petitioner seeks to have his salary for 1985-86 adjusted to that

of principal.

Docket for Case No: 85-001342

Orders for Case No: 85-001342