vs. ) CASE NOS. 88-2005
Respondents. )
A hearing was held in these cases in St. Petersburg, Florida on August 4, 1988, before Arnold H. Pollock, Hearing Officer. The issue for consideration was whether the Petitioner, School Board of Pinellas County, could lawfully terminate from employment the Respondents, Jeffrey Muckle and Thomas Poole.
For Petitioner: Bruce P. Taylor, Esquire
For Respondents: Charleen C. Ramus, Esquire
Kelly and McKee, P.A. 1724 East 7th Avenue Post Office Box 75638
On March 16, 1988, Dr. Scott M. Rose, Superintendent of the Pinellas County Schools, by letter, advised each Respondent that due to declining and low enrollment in his particular program area, it was necessary to recommend to the School Board, (Board), cancellation of the Respondents' continuing contracts and termination of their positions for the 1988-1989 school year. By letter dated April 6, 1988, counsel for both Respondents advised the attorney for the Board that the Respondents requested a formal hearing on their proposed termination and on April 19, 1988, the matter was forwarded to the Division of Administrative Hearings for appointment of a Hearing Officer.
The cases were originally consolidated for hearing along with several others involving the same proposed termination for other individuals, but on June 14, 1988, after presentation to the undersigned by counsel for both parties, the undersigned entered an Order of Deconsolidation and set the hearing for August 4, 1988, at the Board Offices in Clearwater. However, on July 20,
1988, on the basis of ore tenus motion of counsel for the Board, the undersigned agreed to change the location of the hearing to Courtroom C, in the Pinellas County Courthouse in St. Petersburg where the hearing was held as scheduled.
Respondent Poole and Counsel for the Respondents were present for the hearing along with Petitioner's counsel.
At the hearing, Counsel for Respondents indicated that she was unable to locate Respondent Muckle, but was prepared to proceed in his defense. Counsel for Petitioner objected and moved that Respondent Muckle's request for hearing be dismissed. Petitioner's motion to dismiss Muckle's Petition was denied and the case proceeded in his absence.
The parties agreed that DOAH cases 88-2003, 2007, and 2009, involving Mr.Duclon, Mr. Parks, and Mr. Reynolds, respectively, will be held in abeyance.
Petitioner presented the testimony of Dr. Herbert J. Ross, Assistant Superintendent for Vocational, Technical, and Adult Education in Pinellas County; Mr. Robert G. Wagner, Director of Pinellas Vocational/Technical Institute, (PVTI), in Clearwater; and Warren Laux, Director of St. Petersburg Vocational/Technical Institute, (SPVTI). Petitioner also introduced Petitioner's Exhibits 1 through 8.
Respondent Poole testified in his own behalf and presented the testimony of Richard S. Maselli, an assistant to Counsel for Respondent. Mr. Muckle was not present, but Mr. Maselli's testimony was pertinent to his case as well as that of Mr. Poole. Respondent also introduced Respondent's Exhibits A through C.
The parties introduced Joint Exhibits I through VI and requested that the undersigned take official recognition of Sections 231.36 and 231.361, Florida Statutes. Official Recognition was taken as requested.
The parties provided a transcript of the hearing and both parties submitted Proposed Findings of Fact which have been ruled upon in the Appendix to this Recommended Order.
The parties stipulated that for Fiscal Year 1987-1988, the vocational- technical-adult education division of the Pinellas County Schools suffered a
$7,000,000.00 budget deficit. The parties further agreed that if Dr. Cecil Boris, Executive Assistant Superintendent for Curriculum and Instruction were present, she would testify that she determined that as a result of the budget deficit, it would be necessary to eliminate $1,000,000.00 from the budget for the 1988-1989 fiscal year. She instructed her staff to implement that reduction based on two considerations. The first involved the cost effectiveness of individual programs and the second related to the need for the school system to service the community.
The parties further agreed that in their respective departments, Mr. Poole and Mr. Muckle were the least senior instructors. Mr. Poole and Mr. Muckle both were continuing contract teachers at PVTI. Mr. Poole taught welding and Mr. Muckle taught heating, ventilation, and air conditioning. The terms of their employment are governed by the Agreement between The School Board of Pinellas County and the Pinellas Classroom Teachers Association, (Union), for 1985-1988. Other than the slots occupied by both Respondents as described above, and with the exception that as to Mr. Poole, a possible slot for him existed at SPVTI, there were and are no other open slots within the school
system for which either Respondent is certified to teach. The parties agreed that the use of the term "open" means unoccupied by a continuing contract teacher or a teacher serving under a professional service contract.
The parties further agreed that negotiations were conducted by the School Board with each Respondent in an effort to place him in other positions subsequent to his termination but the negotiations were unsuccessful.
Pertinent Florida statutes relative to the issue here indicate that unless a teacher's contract is terminated for cause, it must be terminated at the end of the school year. Though the contracts of Mr. Poole and Mr. Muckle were not so terminated at the end of a school year, the parties agreed that failure was not and would not be raised as a defense to their termination.
In November or December of each year, the various county school boards, including Petitioner, receive from the State the number of full time equivalents, (FTEs) they will be authorized for the following school year. A FTE equates to 900 hours of instruction per pupil and is authorized in various categories, including secondary education, post-secondary education, adult education, etc. If the Board feels the authorization allotted to it is inadequate or erroneous, it can appeal that allotment. Ordinarily, however, once the number of FTEs is received, the Board then examines the various programs it proposes to offer and establishes the number of units which it can employ for the coming school year. A unit equates to one full-time teacher. In addition, on the basis of the FTE authorization, the Board can figure what part time hour programs it can offer by the number of hours available to it.
The post-secondary vocational-technical-adult education area is divided into several basic curriculum areas including, but not limited to, business education, distributive education, agricultural education, building trades, and health occupation education. The areas are not all funded equally but are weighted on the basis of projected student population relating to FTEs. The weights change year by year and the effect of weighting creates, in some cases, an opportunity to have a lower teacher/pupil ratio, (TPR). Some areas, by law, require lower TPRs. As a result, the weight for these programs is higher. Conversely, if the requirement is not as high, then the weighting given to the FTE is lower.
When the Pinellas County School Board received its authorization for FTEs, a staff model implementing these authorizations was prepared by Dr. Herbert Ross, Assistant Superintendent for Vocational-Technical-Adult Education, under Dr. Boris' direction. This staff model, which defines where the FTEs are to be assigned, is prepared by the staff which, in doing so, evaluates the prior years programs, the TPR, the placement of students, and the future of the various authorized programs based on input from the various school advisory committees. This staffing model, when promulgated, is not fixed. If additional economies can be generated as a result of factors which occur later on in the school year, these economies will be implemented. By the same token, if a vacancy occurs subsequent to the preparation of the staffing model which does not warrant replacement based on projections of student population, the Board will not hire a replacement.
The staff model pertinent to this case, prepared by the Division of Curriculum and Instruction, as it related to vocational teachers, reflects that SPVTI's staffing level for vocational teachers was to be reduced from 109 to 102 (7 teachers), and PVTI's teacher staffing was to be reduced from 120 to 111, (9 teachers). Elimination of these 16 teacher positions would result in a savings
of $518,400.00. The entire reduction generated by staff reductions throughout the Division of Curriculum and Instruction totaled $1,085,612.00.
The reductions identified in the staffing summary were based on the 1988 student load reports and the registrar's reports of enrollment in the various schools. Student load reports were not the sole factor considered. TPR's were also considered as were the number of sections in a program, (a program with one section only, involving one instructor, would not likely be cut as to do so would result in the loss of the entire expertise in that area), the various course placement records, the need for the course within the community, and other factors of a similar nature. When the evaluations were made, individual instructors were considered. The determination as to which programs required cuts generally resulted in identification of those programs with the lowest TPR being singled out for reduction.
In this regard, Counsel for Respondent strongly contested Mr. Wagner's analysis of which programs were cut and why. Documentation prepared by her from records furnished by the Board in response to discovery would tend to indicate that many programs with a much lower TPR than either that of Mr. Muckle or Mr. Poole's classes were spared reduction while Poole's and Muckle's programs were cut. Mr. Wagner logically and reasonably justified each one of the judgement calls he made in determining whether a particular program should or should not be cut and no evidence was presented by Respondents to indicate that his judgement was incorrect or unsupported.
Neither Mr. Wagner nor Dr. Ross played any part in the identification of the individuals who were to be terminated. Once the programs to be reduced were identified, they were forwarded to the school district personnel officer where identification of individual instructors was made on the basis of number of students, number of teachers, and projections for the future. Both the welding program, in which Mr. Poole teaches, and the heating, ventilating and air conditioning program, in which Mr. Muckle teaches, are in the same weighted category of courses, (trade and industrial). Based on the weight factors for trade and industrial courses, a unit, (teacher), needs a 12 to 14 TPR of full time students or part time equivalents.
In making his identification of programs to be reduced, Mr. Wagner relied on several documents produced within his facility. The first is the registrar produced enrollment documents reflecting each course's student enrollment by nine week period, (quintmester or quint), for the prior two years. These quint rolls are prepared at the opening of each quint by the registrar from registration forms submitted by students for each class in session. As students come and go during the quint, adjustments are made as required.
These forms, however, give the student enrollment only at the beginning of the term, and in order to get an accurate figure of class enrollment at any given time, Mr. Wagner periodically requests his instructors to prepare student load reports which list, by class period, the number of students each instructor has enrolled in his class and present on the day the report is submitted. Since some students are full time and some only part time, in determining the TPR, 3 part time students equal 1 full time student. This is a reasonable method of analysis.
After making his study, Mr. Wagner identified the heating, ventilation, and air conditioning courses and the welding courses for reduction because these two technologies had been suffering a decline over several years. In fact, Mr. Muckle was warned that his job might be in jeopardy the prior year.
In addition, whereas the institute had been previously getting central office support for various programs during a period of decline, this support was no longer forthcoming. When Wagner recommended cuts to the district personnel office, his recommendation was to cut a unit in the department. The choice of instructor was based upon seniority.
The TPR in the heating, ventilating and air conditioning program had shown a pattern of continuous decline and enrollment at the time of identification was even lower than in previous years. Major appliances, a part of that program, had suffered a reduction through retirement of an instructor during the past year and this year, with the number of students enrolled being even smaller, it was necessary to cut an additional instructor.
This same situation applied to the welding technology where though there was higher fluctuations than in heating, ventilating and air conditioning, the pattern of decline was consistent.
Because of the impact that reduction has on the instructors within the system, the administration attempts, wherever possible, to do away first with vacancies. When those are gone, the remaining necessary cuts are attempted through attrition. In the instant case, Mr. Wagner cut two open units and got three more by not replacing retirements. Once these five units were cut, he was forced to look to annual contract teachers. A teacher who resigned was not replaced. Finally, when cuts were still required, it became necessary to look to continuing contract teachers to make up the difference between the six spaces mentioned above and the sixteen needed.
Night course programs cannot be considered in the same category with day programs as they are "supplemental" programs. Teachers within these programs are usually part time teachers hired at an hourly rate. Mr. Wagner did not consider placing those teachers identified for cutting into the night program as teachers. Generally an instructor under continuing contract which calls for 25 hours of instruction per week cannot get enough teaching hours in a night program, (four nights per week, at four hours per night), to make absorption of the remaining nine hours cost efficient.
Mr. Poole was not the only instructor identified for cut in the welding program. At the beginning of the identification process, four teachers were in the program, but Mr. Poole, the most junior, was identified and his position cut. That left three instructors. By May, 1988, Mr. Wagner had to recommend another reduction in that program, reducing the number to two and the prognosis was for even further decline. Even with the reductions imposed and identified for future imposition, it would appear that the welding program was not cost effective, notwithstanding Mr. Poole's testimony, uncontroverted, that it was well received in the community and the placement record for students coming out of the program was good. The May/June 1988 enrollment figures showed
25 students in the programs. This is just enough for two instructor positions. Consequently, when Mr. Wagner identified the third unit, rather than cut it, he transferred it to SPVTI along with the incumbent instructor effective July 1, 1988, the start of the 1988/1989 fiscal year. Mr. Poole was junior to that instructor.
Quint reports for the HVAC program showed for the January - March 1988 period 49 students in the program with 7 teachers, generating a TPR of 7. In the previous year, there were 69 students at the beginning of the school year and during the same months of that year, the count was 75 students. Mr. Wagner projected that the student population would go down even further in the future.
As for the welding program, during the January - March 1988 period, the program served 28 students with 4 teachers. At the beginning of the school year, the student population was 29 and during the same period for the previous year, it was 33.
Heating, ventilation, and air conditioning and welding were not the only programs identified for reduction during this round of budget cuts. Several others, including electromechanical studies and practical nursing were also reduced as were the architecture/civil program. All of these had TPRs of
10 or less. No program with a TPR of over 10 was affected by the cuts.
Once Mr. Muckle and Mr. Poole were identified by the district personnel office for cut, Mr. Wagner looked to see if, consistent with their certification, they could be moved into another department. Mr. Poole is certified in welding and Mr. Muckle is certified in heating and air conditioning. Both are certified in related technology. However, both instructors are continuing contract teachers and changing to a related technology is not normally done for continuing contract instructors.
Several departments at PVTI which have a lower TPR than welding and HVAC were not affected. In one case, Mr. Wagner reduced a teacher to a 10 month contract from a 12 month contract status and also generated 39 more part time students in an effort to raise the TPR and keep the course. One-teacher departments, even with a lower TPR, were kept open in order not to lose the expertise. In other cases, the nature of the student population involved might have justified keeping a course open even with a low TPR, (handicap). The determination as to where to impose cuts was, in most cases, a question of judgement wherein Mr. Wagner, as Director of the school, had to consider other factors in addition to the TPR in deciding where to recommend the cuts.
Mr. Poole had previously taught at night and was willing to again teach at night on a part time basis. However, he had chosen to withdraw from teaching night classes in the past and notwithstanding he stated he had offered to teach them again, he did not communicate this to Wagner.
As to whether Poole could be reassigned to the welding program at SPVTI, there are currently two instructors, (including a transfer in from PVTI), on board and at the close of July, 1988, there were only 9 or 10 students for both teachers. This does not justify a third teaching position for Mr. Poole to fill.
Respondents, offered several statistical surveys of teacher/pupil ratios which indicate there are numerous programs within the school system which appear to have lower TPRs than either the welding or HVAC programs. However, numerous factors other than TPR were considered in determining and identifying various programs for reduction. There has been no evidence whatever to indicate that Mr. Wagner's judgement was inaccurate, incorrect, or flawed. There was no evidence that his decisions were either arbitrary or capricious or based on an improper attempt to impose an adverse action on either Respondent or to improperly give benefit to others.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case. Section 120.57(1), Florida Statutes.
In the instant case, Petitioner, Board, proposes to terminate the Respondents employment because of funding constraints imposed upon it. Petitioner does not claim, and in fact the parties stipulate, that the terminations are in no way based on the Respondents' duty performance or other "for cause" reasons. Consequently, the termination is not a license disciplinary action and no stigma of any sort attaches to either Respondent because of it. That being the case, the burden of proof upon the Petitioner is not the more stringent "by clear and convincing evidence" test imposed by Ferris
v. Turlington, 510 So.2d 292 (Fla. 1987). Nor is the test that of competent and substantial evidence" as is called for in employment termination cases where "for cause" is in play Ferris v. Austin, 487 So.2d 1163 (Fla. 5DCA 1986) and Culuwe v. South Florida Water Management District, 459 So.2d 390 (Fla. 4DCA 1984).
Consequently, the question then turns on whether the Petitioner established the propriety of its act by a "preponderance of the evidence." To make that determination, one must look for guidance to the terms of the Agreement between the Board and the Union since, according to Section 231.36(5), Florida Statutes:
Should a school board have to choose from among its personnel who are on continuing contract or professional service contracts as to which should be retained, such decisions should be made pursuant to the terms of a collectively bargained agreement, where one exists...
The Agreement involved here recognizes seniority as a consideration at Article XIX. Under the provisions of Article XXII, dealing with reductions in force:
Should the Board be unable to maintain all employees, it shall immediately reopen negotiations to provide for an orderly method of reducing, retraining and recalling affected employees.
Here, the parties agreed that negotiations as called for, supra, were conducted by the Board with each Respondent in an effort to place him in another position within the system but that those negotiations were unsuccessful.
The remaining question for resolution, then, is whether the reduction in force, as it pertains to the Respondents, was orderly.
The evidence presented by the Board, reflecting the method of identification of those positions to be cut and the unfortunate termination of those instructors occupying those positions, was rational, calculated, well reasoned, and reasonable. Extreme care was taken to insure that personalities were kept out of the decision and that in so far as was possible, seniority was the controlling factor as to individuals affected. Admittedly, the areas to be affected and the selection of slots within those areas was based on a combination of other factors, but by no means could that judgement call be considered less than reasonable and well thought out. By no means could it be considered either arbitrary or capricious. Valid factors such as TPR, depth of experience in staff, community need, utilization trends and other like factors
were considered in the decision process and while TPR may have been important, it was not the governing factor.
Respondent questions the reliability of the information utilized by Board personnel to identify positions for cuts but to replace it offers only a self-serving analysis by counsel's legal assistant which carries little if any probative weight.
Respondent Poole, after being identified as a result of the application of this considerable and orderly process, could not have been assigned to a night teaching position because, as a continuing contract teacher, his utilization for only 16 out of 25 hours would not be cost effective. In a time of increasing costs and decreasing resources, attention to cost effectiveness and good fiscal management is a must. The decision not to use him, therefore, was neither unreasonable nor improper.
In the event either Respondent's skills can be used by the Board in the future, they should be given priority for recall.
Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore:
RECOMMENDED that the termination of employment of Respondents Jeffrey Muckle and Thomas Poole be upheld and their employment contracts with the School Board of Pinellas County be cancelled.
RECOMMENDED this 29th day of September, 1988, at Tallahassee, Florida.
ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building
Filed with the Clerk of the Division of Administrative Hearings this 29th day of September, 1988.
APPENDIX TO RECOMMENDED ORDER, CASE NOS. 88-2005, 88-2008
The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.
1 - 2. Accepted and incorporated herein.
3 - 4. Accepted and incorporated herein.
5 - 6. Accepted and incorporated herein.
7. Accepted and incorporated herein.
8 - 9. Accepted and incorporated herein.
10 - 11. Accepted and incorporated herein.
12 - 13. Accepted and incorporated herein.
16 - 23. Accepted and incorporated herein.
1 - 2. Accepted and incorporated herein.
7 - 8. Accepted and incorporated herein.
9 - 10. Accepted.
11 - 12. Accepted.
18 - 19. Accepted but irrelevant.
Bruce P. Taylor, Esquire School Board Attorney 1960 East Druid Road Post Office Box 4688
Charleen C. Ramus, Esquire Kelly and McKee, P.A.
