STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF LIBERTY COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 88-0315

)

LAMAR FORD, )

)

Respondent, )

and )

)

JERRY JOHNSON, Superintendent ) of the Liberty County Schools, )

)

Intervenor. )

)

RECOMMENDED ORDER

This matter came on for hearing in Bristol, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Diane Cleavinger, on March 31, 1988. The parties are represented by counsel:

APPEARANCES

For Petitioner: Kenneth Hosford, Esquire

210 Office Plaza Tallahassee, Florida 32301

For Respondent: Ronald G. Meyer, Esquire

Post Office Box 1547 Tallahassee, Florida 32302

For Intervenor: Howard Scheiner, Esquire

Post Office Box 1739 Tallahassee, Florida 32301

The issue addressed in this proceeding is whether the School Board had the authority under Chapter 230, Florida Statutes, to extend the small engine teaching class from 196 days to 250 days.

PRELIMINARY MATTERS

Petitioner, Lamar Ford, filed his petition for a formal administrative hearing on December 31, 1987. The petition was against the School Board of Liberty County and demanded that he be paid the monies due him for the period of work between duly 24, 1987 through August 14, 1987. On January 19, 1988, Jerry Johnson, Superintendent of the Liberty County Schools, filed a motion to Intervene in the original action between Lamar Ford and the School Board of Liberty County. The motion to intervene asserted that the School Board did not

have the power under Chapter 230 to extend the contract of Lamar Ford from 196 days to 250 days. Leave to intervene was granted on February 9, 1988.

At the hearing, counsel for the respective parties entered into several factual stipulations. The parties stipulated as follows:

1. The effect of the action of the School Board of Liberty County was to extend the small engine repair class from 196 days to 250 days, i.e., from 10 months to 12 months effective immediately.

   
   

2. The small engine repair class was previously taught by Lamar Ford who was under a continuing contract with the School Board.

   
   

3. Lamar Ford learned of the action of the School Board on duly 23, 1987.

   
   

4. Lamar Ford presented himself for work on July 24, 1987, but was not permitted to work by Jerry Johnson.

   
   

5. Mr. Johnson prohibited Lamar Ford from working for the period beginning July 24, 1987 and running through August 14, 1987.

   
   

6. At all times material herein, Lamar Ford was ready, willing and able to work.

The parties also stipulated to the entry into evidence of Joint Exhibits Nos. 1 and 2, consisting of the continuing contract of Lamar Ford and the official minutes of the School Board meeting of duly 23, 1987, respectively.

Petitioner did not call any witnesses in his own behalf in view of the stipulations entered into above. Respondent, School Board of Liberty County, called three School Board members as witnesses. Intervenor testified in his own behalf. The Division of Administrative Hearings received the transcript of proceedings on April 18, 1988, and the parties filed proposed Recommended Orders and/or memorandums of law on May 19, 1988. Petitioner's and Respondent's proposed findings of fact or the facts utilize in their statement of the case in their memorandums of law have been considered and utilized in preparation of this Recommended Order except where such proposals were not supported by the weight of the evidence or were immaterial, cumulative or subordinate. Specific rulings on the parties' proposed findings of fact are contained in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Petitioner, Lamar Ford, a/k/a Page L. Ford, teaches the small engine repair class in the Liberty County high schools. He is the only teacher for the small engine repair class in Liberty County. He has been employed by Liberty County under a continuously renewing contract between Petitioner and the Liberty County School Board since August 13, 1964. It was admitted by Superintendent Johnson that Mr. Ford is well qualified to teach the small engine repair class. In fact, other than the dispute over the School Board's authority, vis-a-vis the Superintendent's authority, Mr. Ford will continue to be the small engine repair teacher and has in fact continued in that position through the date of this hearing.

   
   

2. Sometime prior to duly 14, 1987, Mr. Johnson was approached by several School Board members regarding offering Mr. Ford's class in the summer months, thereby extending the position from a 10-month period to a 12-month period.

   Several of the board members wanted the small engine repair class to run through the summertime so that the children who wanted to take the course would have enough time to enroll and learn a good trade. It was felt by the School Board members that the children of the county having an opportunity to learn a trade in high school was important since many of Liberty County's school children would not go on to college or vocational school and needed to learn an employable skill before they left high school. There was no problem with money being available for additional pay on the extended period. In fact, the school system would receive additional FTE money for each day an individual student attended during the extended period.

   
   

3. On July 14, 1988, the School Board met in regular session. At that meeting, Mr. Combs, a School Board member, made a motion to extend the small engine repair class from a 10-month to the 12-month period. The motion was voted on and passed by the School Board.

   
   

4. Either at the same meeting or after the meeting had adjourned, it came to the attention of the board members that the motion was not proper since it had not been on the agenda. It was Mr. Johnson who informed the board members of this technicality. Mr. Johnson had always opposed the idea of extending the small engine repair class from 10 months to 12 months and did not recommend taking such action.

   
   

5. Previous to the Board's meeting, Mr. Johnson had conducted a survey at the high school and the survey showed that everyone who listed the class had been enrolled in the class to that date. He, therefore, felt that there was no need to extend the position and to do so would be a waste of money. However, the School Board disagreed with that analysis. The School Board intended to correct the agenda technicality at the next meeting on July 23 by placing the issue on the agenda for that meeting. Therefore, after the July 14 meeting, Mr. Johnson raised an issue in addition to the easily resolved agenda technicality. Mr. Johnson asserted that individual personnel matters were solely within his jurisdiction and, therefore, the Board could not extend an individual contract or otherwise deal with an individual personnel matter. The board members maintained that it was not their intention to extend the individual contract of Lamar Ford, but that they only wished to extend the time period during which the small engine repair class was offered, i.e., a curriculum matter. The authority issue was raised by Mr. Johnson by referring to the phraseology of the motion by Mr. Combs. After the July 14 meeting, but before the July 23, 1987, meeting, the board members listened to the tape of the July 14 meeting. They wanted to determine exactly the language that was used in Mr. Comb's motion at the July 14 meeting. The Board did not wish to go outside its authority when it corrected the agenda technicality at the next meeting on July 23, 1988. The Board even went so far as to call its Association for advice on the subject and was informed it had the authority to deal with a curriculum matter (position), but not an individual personnel matter. At the July 23, meeting, the School Board passed a motion extending the "contract of the small engine mechanics" from 10 to 12 months.

   
   

6. At the hearing, three board members testified and made it very clear that regardless of the specific wording of the motion at either meeting, their intent was to affect the class taught by the small engine teacher and that they were not concerned with the specific individual who taught the class. It was a policy matter with them that the position be a year long position instead of the truncated 10-month position it had been. Regardless of the language that was used at either of the meetings, it is the intent of the School Board members which controls when, as in this case, vague language is being used. It is

   especially true with this case since the members apparently used "Mr. Ford's position" or "contract of the small engine mechanics" as descriptive of the small engine repair class and the board members were being advised by the Superintendent that the use of the word "contract" versus "position" did not make any difference since they meant the same thing. The befuddlement was further exacerbated by the fact no one was listening to what the other side meant by its words of explanation. The Superintendent did not wish the extension to be made and kept hearing what he wanted to hear and suggesting language based on his point of view. On the other hand, the School Board kept hearing what they wanted to hear, and not realizing the vagueness of the language they were using or that both parties were using the same language to express different concepts.

   
   

7. The minutes of the July 14 meeting were read and approved at the July

   23 meeting without comment since the exact language hopefully making everything clear had already been utilized in the Motion made at the July 23 meeting. However, as it turns out, the language did not quite clarify the intent of the Board and the issue actually remained unresolved.

   
   

8. Needless to say, Mr. Ford was caught between the two dueling political bodies. He reported for work pursuant to the Board's instructions, but Mr. Johnson did not allow him to teach his class and has refused to pay him on a 12 month basis.

   
   

9. By extending the small engine position to 12 months, the School Board's action necessarily had an impact on the continuing contract of Lamar Ford. That contract has no specific time period for performance. The contract in paragraph

   6 simply provides that Lamar Ford will perform his duties for the length of the school term fixed by the County Board in accordance with law. The phrase "school term" refers to the period of operation established for the school as a whole and not to the individual courses offered by the school. Certain classes may or may not run the entire school term. However, a teacher under a continuous contract like Mr. Ford's can be required to work the full school term or may be required to work for only part of the term. The difference in work is reflected in the salary schedule established by the School Board. In this case, Intervenor admits in his memorandum of law that the Liberty County school term was already lawfully established as 12 months. Mr. Ford was, therefore, already under contract for a 12 month term which would have included the period beginning July 24, 1987, and running through August 14, 1987. However, Mr. Ford had only taught the small engine class for a 10 month period; and only received pay in accordance with his work load. The Board's action effectively increased that work load and Mr. Ford was the only person already under contract to perform the increased duties. He could not refuse to perform without breaching his contract. Conversely, Mr. Ford is contractually entitled to receive the benefit of hi's bargain with the School Board, i.e., the rate of pay caused by the increased work load. The fact that Mr. Ford did not actually teach during the summer months is irrelevant since performance was tendered, but refused by the Superintendent. At all times Mr. Ford was ready, willing and able to perform.

   
   

10. Superintendent Johnson had no authority to prevent (or breach) the performance of Mr. Ford under his contract. In fact, Superintendent Johnson is under a statutory duty to see that the classes established by the School Board are properly administered and taught. Section 230.33(b)(h), Florida Statutes. Since, at all times material hereto, Mr. Ford was ready, willing and able to perform, but was unlawfully prevented from doing so, he is entitled to back pay

    for the July 24 through August 14, 1987, period according to the pay schedule already in place in Liberty County.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

12. Chapter 230, Florida Statutes, is the applicable law in this case. The controlling sections of that chapter are 230.22, 230.23, 230.32 and 230.33, Florida Statutes. Those provisions read in pertinent part:

    
    

    1. General powers of school board.-- The school board, after considering recommendations submitted by the

       superintendent, shall exercise the following general powers:

       1. DETERMINE POLICIES AND PROGRAMS. -- The school Board shall determine and adopt such policies and programs as are deemed necessary by it for the efficient operation and general improvement of the district school system.

          * * *

    2. Powers and duties of school board.

    * * *

    1. ADOPT SCHOOL PROGRAM. -- Authorize the assembling of all data and the making of school surveys essential to the development of a school program for the entire district and to adopt such a program as the basis for operating the schools, one phase of the program to be a 5-year program and another phase to constitute the annual program.

    2. ESTABLISHMENT, ORGANIZATION, AND OPERATION OF SCHOOLS. -- Adopt and provide for the execution of plans for the establishment, organization, and operation of the district

    as follows:

    * * *

    (f) Opening and closing of schools; fixing uniform date for. -- Fix, insofar as possible, a uniform date each year for the opening of all schools under its control, on which date, unless otherwise authorized by the school board, all schools shall open, in order that the keeping of records, the making of reports, the payment of salaries, and the supervision of instruction may be facilitated; and fix the closing date for all schools in the district, these dates to be so determined as to assure, as far as practicable, uniform terms for all schools in the district; adopt rules for the closing of schools during an emergency and to provide for the payment of salaries to the members of the instructional staff on such occasions. However, notwithstanding any of the

    foregoing, any school board may in its discretion operate any or all of the district schools on an extended term basis, provided the board notifies the Commissioner of Education of its plans for an extended school year on or before January 1 preceding the extended school term. However, notwithstanding any of the foregoing, any school board may, in its discretion, operate any of the district schools on a quarterly basis; provided that:

    * * *

    (h) Vocational classes and schools. -- Provide for the establishment and maintenance of vocational schools, departments, or classes, giving instruction in vocational education as defined by regulations of the state board, and use any moneys raised by public taxation in the same manner as moneys for other school purposes are used for the maintenance and support of public schools or classes.

    * * *

    1. General powers of superinten-

       dents. -- The Superintendent shall have the authority, and when necessary for the more efficient and adequate operation of the district school system, the superintendent shall exercise the following powers:

       * * *

       1. ADVISE, COUNSEL, AND RECOMMEND TO SCHOOL BOARD. -- Advise and counsel with the school board on all educational matters and recommend to the school board for action such matters as should be acted upon.

       2. RECOMMEND POLICIES. -- Recommend to the school board for adoption such policies pertaining to the district school system as

       he may consider necessary for its more efficient operation. (emphasis added)

       * * *

    2. Duties and responsibilities of superintendent. -- The superintendent shall exercise all powers and perform all duties listed below and elsewhere in the law; provided, that in so doing he shall advise and counsel with the school board. The recommendations, nominations, proposals, and reports required by law and rule to be made to the school board by the superintendent shall be either recorded in the minutes or shall be made in writing, noted in the minutes, and filed with the public records of the board. It shall be presumed that, in the absence of the record required in this paragraph, the recommendations, nominations, and proposals required of the superintendent

    were not contrary to the action taken by the school board in such matters. (emphasis added)

    * * *

    1. ESTABLISHMENT, ORGANIZATION, AND OPERATION OF SCHOOLS, CLASSES, AND SERVICES. -- Recommend the establishment,

       organization, and operation of such schools, classes, and services as are needed to provide adequate educational opportunities for all children in the district, including: (emphasis added)

       * * *

       (h) Vocational classes and schools. -- Recommend plans for the establishment and maintenance of vocational schools, departments, or classes, giving instruction in vocational education as defined in regulations of the state board, and administer and supervise instruction in such schools, departments, or classes as are established by the school board. (emphasis added)

       * * *

    2. PERSONNEL. -- Be responsible, as required herein, for directing the work of the personnel, subject to the requirements of chapter 231, and in addition he shall have the following duties:

       1. Positions, qualifications, and nominations. -- Recommend to the school board duties and responsibilities which need to be performed and positions which need to be filled to make possible the development of an adequate school program in the district; recommend minimum qualifications of personnel for these various positions; and nominate in writing persons to fill such positions. All nominations for reappointment of supervisors and principals shall be submitted to the school board at least 8 weeks before the close of the postschool conference period. All nominations for reappointment of members of the instructional staff shall be made after conferring with the principals and shall be submitted in writing to the school board at least 6 weeks before the close of the postschool conference period.

    * * *

    1. Contracts and terms of service. -- Recommend to the school board terms for contracting with employees and prepare such contracts as are approved. Contracts with the members of the instructional staff are to be prepared, recommended, and executed as hereinbefore prescribed. Authority is given to make appointments to approved positions

       and to approve compensation there for at the rate provided in the currently established salary schedule, pending action by the local board at its next regular or special meeting.

       * * *

    2. Contracts and terms of service. -- Provide written contracts for all regular members of the instructional staff. All contracts with members of the instructional staff shall be in accordance with the salary schedule adopted by the school board, shall be in writing for definite amounts and for definite terms of service, and shall specify the number of monthly payments to be made. All such contracts shall be executed in duplicate, and a true signed copy shall be retained by the board in the office of the superintendent. The school board is prohibited from paying any salary to any member of the instructional staff, except when this provision has been observed.

       * * *

       231.36(3)(d) A school board may issue a continuing contract prior to July 1, 1984, and may issue a professional service contract subsequent to July 1, 1984, to any employee who has previously held a professional service contract or continuing contract in the same or another district within this state. Any employee who holds a continuing contract may, but is not required to, exchange such continuing contract for a professional service contract in the same district.

       * * *

    3. A professional service contract shall be renewed each year unless the superintendent,

    * * *

    
    

13. It is apparent from Chapter 230 that the general division of power between the School Board and the Superintendent is that the School Board sets the general policy such as school terms and curriculum matters of the school system and in particular, sets the general terms relevant to a particular curriculum item such as vocational classes. The Superintendent is responsible for the more day-to-day functions of the school system and, in particular, individual contracts. See Green v. School Board of Hamilton County, So.2d 500 (Fla. 1st DCA 1984). The Superintendent may make recommendations to the School Board regarding the exercise by the Board of its powers. These recommendations may be either positive or negative. However, the School Board may reject or adopt the Superintendent's recommendation and may substitute its own judgment. The only exception to the above is in an individual employment situation under Section 230.23(5). Under that section, the School Board's power has been statutorily limited and subsumed to a positive recommendation from the Superintendent See Green, supra.

14. This case does not involve that Section since Mr. Ford had already been nominated, recommended and approved by the Superintendent and the School Board. Mr. Ford worked under a contract which had been continuously renewed for over 20 years. A continuously renewing contract is authorized and controlled by Section 231.36, Florida Statutes. Therefore, Section 230.23(7)(d) does not apply and the school board is not prohibited from paying Mr. Ford. Moreover, Mr. Ford's contract incorporates both the Board's action setting the 12 month school term and the salary schedule adopted by the school board since those items are incorporated by reference therein. Section 230.23(7)(d) would therefore be complied with and Mr. Ford would likewise be entitled to his pay.

    
    

15. It is clear from Chapter 230.23, Florida Statutes, that the School Board has the authority to provide for the establishment of vocational classes. One of the items which would be included in providing for vocational classes would be the amount of time during the school term that such classes would be offered, i.e., 10 months or 12 months. Relevant to this point is 230.23(f), which provides for the authority of the School Board to implement a 12-month school program if it so desires. In this case, the School Board rejected the negative recommendation of Superintendent Johnson and followed its own judgment. Mr. Ford is entitled to the benefit of his bargain with the school system since he was the only person under contract with the school to teach the small engine class. He, therefore, is entitled to be paid for the July 24 through August 14 time period according to the pay schedule adopted by the School Board of Liberty County.

RECOMMENDATION

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

That the School Board of Liberty County issue a final order confirming its extension of the small engine position from 10 to 12 months, and that Petitioner be paid for the period of time from July 24, 1987 through August 14, 1987, according to the salary schedule adopted by the Board.

DONE and ENTERED this 29th day of June, 1988, at Tallahassee, Florida.

DIANE CLEAVINGER

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-0315

The factual paragraphs contained in Petitioner's and Intervenor's Statement of the Case in their respective Memorandums of Law were not numbered.

Therefore, I have numbered the paragraphs sequentially as they appear in each memorandum and utilize those numbers in this Appendix.

Paragraphs 1, 2, 3, 4, 5, 6, 8 and 9 contained in Petitioner's memorandum have been adopted in substance, in so far as material.

The first two sentences of paragraph 7 in Petitioner's memorandum are subordinate. The last two sentences have been adopted in substance, in so far as material.

The first and fourth sentences of paragraph 10 in Petitioner's memorandum are subordinate. The second and third sentences have been adopted in substance, in so far as material.

Paragraphs 1, 2, 3, 4, 5, 7, 8, 9 and 10 contained in Respondent's Proposed Finding of Facts have been adopted, in substance, in so far as material.

Paragraph 6 contained in Respondent's Proposed Finding of Facts is subordinate.

Paragraphs 1, 2, 3 and 4 of Intervenor's Memorandum have been adopted in substance, in so far as material.

COPIES FURNISHED:

Kenneth Hosford, Esquire

210 Office Plaza Tallahassee, Florida 32301

Ronald G. Meyer, Esquire MEYER, BROOKS & COOPER, P.A.

911 East Park Avenue Tallahassee, Florida 32301

Howard Scheiner, Esquire FULLER, JOHNSON & FARRELL, P.A.

Post Office Box 1739 Tallahassee, Florida 32302-1739

Honorable Betty Castor Commissioner of Education Department of Education The Capitol

Tallahassee, Florida 32399

Martin B. Schapp Administrator

319 West Madison Street Room 3

Tallahassee, Florida 32399

Docket for Case No: 88-000315

Orders for Case No: 88-000315