Judges: ROBERT T. BENTON, II
Agency: County School Boards
Latest Update: Dec. 23, 1988
Summary: Whether the school board terminated petitioner's employment lawfully, in keeping with the contract for professional services between the parties?Teacher on professional service contract whose job was abolished cannot be passed over for comparable position in favor of newcomer.
88-2808.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
HOSSEIN ACHTCHI, )
)
Petitioner, )
)
vs. ) CASE NO. 88-2808
) SCHOOL BOARD OF WAKULLA COUNTY, )
)
Respondent. )
)
RECOMMENDED ORDER
This matter came on for hearing in Crawfordville, Florida, before Robert T. Benton II, Hearing Officer of the Division of Administrative Hearings, on October 21, 1988. The Division of Administrative Hearings received the hearing transcript on November 7, 1988. On December 2, 1988, respondent's proposed recommended order and the brief of petitioner were filed. The attached appendix addresses proposed findings of fact by number.
The parties are represented by counsel:
For Petitioner: Ronald G. Meyer, Esquire
Meyer, Brooks & Cooper, P.A. Post Office Box 1547 Tallahassee, Florida 32302
For Respondent: J. David Holder, Esquire
Rigsby and Holder
1408 Piedmont Way, Suite 200
Tallahassee, Florida 32312
On March 21, 1988, Mike Falk, chairman of the Wakulla County School Board, wrote petitioner, advising him that his "position of employment will be discontinued." Petitioner's Exhibit No. 11. The letter also stated:
The Board considered, without limitation, the educational qualifications, efficiency, compatibility, character and capability to
meet educational service needs of the community in determining the best qualified employees to be retained. . . .
This action will become final unless you make a written request for a hearing . . . .
Petitioner's Exhibit No. 11.
In response, petitioner wrote, on April 5, 1988, "I do wish to avail myself of the hearing opportunity," but requested "that the conduct of such hearing be postponed until after staffing decisions for the 1988-89 school year have been made."
On June 7, 1988, the Division of Administrative Hearings received the hearing request, which the School Board transmitted, in keeping with Section 120.57(1)(b)3., Florida Statutes (1987).
ISSUE
Whether the school board terminated petitioner's employment lawfully, in keeping with the contract for professional services between the parties?
FINDINGS OF FACT
Until the 1987-88 school year, Hossein Achtchi taught adults and pregnant children reading, math, science, psychology, sociology and other subjects at the Adult School at St. Marks. The Director of Wakulla Adult School recommended him for continuing contract on June 7, 1984. Joint Exhibit No. 1. Beginning with the 1984-85 school year, and continuing through June 7, 1988, respondent employed petitioner under a professional service contract. See Petitioner's Exhibit No. 1.
Faithful Service
For seven years Hossein Achtchi has worked for the School Board of Wakulla County. In the fall of 1987, he began as one of two "itinerant substitute" teachers who worked full-time for the Board. In this capacity, he taught two weeks at the elementary school in Crawfordville, four or five times at Wakulla High School and the remainder of the school year at Wakulla Middle School.
For the most part, he filled in for other teachers absent for a day or two, but he taught math and English to the same middle school classes for the final two months of the 1987- 88 school year. In this situation, he prepared lesson plans regularly, and assigned grades, all in a satisfactory manner.
The parties were in agreement that Mr. Achtchi, who holds a master's degree and a regular Florida teacher's certificate qualifying him to teach secondary students biology and chemistry as well as "science" to junior high students, Petitioner's Exhibit No. 8, "did a good job while he was employed by the district." (T. 17) See also Petitioner's Exhibit No. 9.
Reduction in Force
In the fall of 1987, Roger Stokley, Wakulla County's superintendent of schools, decided to recommend elimination of teaching positions, in order to place in a contingency fund money that would otherwise have gone for teachers' salaries. Both itinerant substitute teachers' positions were among the seven instructional positions the School Board eliminated on Mr. Stokley's recommendation. 1/ Respondent's Exhibit No. 3. Substitute teachers the School Board has employed for 1988-89 have been paid less and have not been offered contracts.
On March 16, 1988, two days after the School Board had voted to eliminate the itinerant teachers' positions, Robert Allen Myhre, Wakulla Middle School's principal, completed a form "Review of Instructional Personnel Using Wakulla County School Board Policy 3.08." Petitioner's Exhibit No. 2. As to "Educational Qualifications," "Character," and "Compatibility," Mr. Myhre rated petitioner Achtchi, Sandy Coker, JoAnn Daniels, Suzanne Edwards, Carol Mitchell, Annette Smith and Mary Zapata equally. With respect to "Capability to Meet
Community Educational Needs" and "Efficiency," he gave Mr. Achtchi an average rating of "3" while giving all the other Wakulla Middle School teachers of science listed on the form ratings of "4" or "5." Id.
Not one of the six teachers with whom Mr. Achtchi, was compared had a professional service contract or any other continuing contract rights, as far as can be told from the record. Petitioner's Exhibit No. 6. Mr. Myhre recommended Mary Zapata, Sandra Coker, Annette Smith, and women teachers surnamed Daniels and Edwards as "annual contract teachers" for 1988-89. Petitioner's Exhibit No. 6.
The day before he filled the form out, Mr. Myhre had met with Mr. Achtchi and Superintendent Stokley. In a memorandum dated March 17, 1988, Superintendent Stokley alluded to the meeting, and reported to the School Board that Mr. Achtchi "was very understanding. He will be considered by Mr. Myhre for an opening next year if one occurs in the 7th or 8th grade. This is contingent upon the school board accepting Mr. Myhre's rating and my recommendation that you terminate his professional service contract because in our opinion all of the current science teachers deserve to be retained before Mr. Achtchi does." Petitioner's Exhibit No. 4.
The practice and understanding was for principals to call prospective employees for interviews, although Mr. Myhre, who had indicated that he did not want to spend [his] summer interviewing," (T. 91) was already familiar with Mr. Achtchi. Mr. Myhre had, indeed, written, on May 30, 1988, that Mr. Achtchi "maintained high standards of professionalism on a daily basis," that he was "extremely dependable and supportive of the entire school effort," that "student's respond well to him," that he had "excellent rapport with the facility," and that "he maintains good classroom control." Petitioner's Exhibit No. 9. On more than one occasion, Mr. Achtchi told Mr. Myhre of his interest in any teaching assignment for which he was qualified. At all pertinent times, he had an application on file with the School Board's office. Eventually, at Mr. Myhre's request, he also wrote Mr. Myhre a letter.
Work for Newcomers
At the time the School Board notified Mr. Achtchi that his job was to end, both Mr. Achtchi and Mr. Myhre knew that Annette Smith, whom the principal had rated as a science teacher (because she taught a science course, even though not certified to do so) would probably not return for the 1988-89 school year. By letter dated June 7, 1988, Respondent's Exhibit No. 1, she made her resignation official. Instead of filling this vacancy with Mr. Achtchi, Mr. Myhre "hired a lady by the name of Ruth Ann Glissen," (T. 46) who had some five years' teaching experience out of state. Ms. Glissen was certified to teach math and social studies in Florida, but not science. Mr. Myhre has assigned her only one period of science. (T. 46).
Mr. Myhre was well aware of Mr. Achtchi's desire to teach in Wakulla County during the 1988-89 school year, and "considered" giving Mr. Achtchi the job Ms. Smith vacated. On June 20, 1988, Mr. Achtchi had written him:
This is to respectfully inform you of my interest in the teaching position which has been opened at your school for the 1988-89 year, and kindly request that I be considered as an applicant for it.
Respondent's Exhibit No. 10.
It was about this time that Sandy Coker also resigned and Mr. Myhre chose another stranger to the Wakulla County school system, Michael DuBois, to teach the reading class, two math classes and two science classes that she (or Mr.
Achtchi, had he been hired) would otherwise have taught. Mr. DuBois "has a teaching certificate in Elementary Education and a Junior High certification in Math." (T. 49).
It "seems like it was early July that" (T. 51) Mr. Myhre hired a third stranger to the school system to teach science at Wakulla Middle School. When JoAnn Daniels decided to become a resource teacher at Crawfordville Elementary School, he replaced her with Renee Bonifay, a first-year teacher with temporary "certification in Junior High Science and Senior High Science" (T.
51) who teaches three science and two English classes. She also agreed to sponsor the school cheerleaders, an opportunity never offered petitioner.
Not listed as a science teacher evaluated comparatively with Mr. Achtchi was Richard Johnson, who taught alternative education at Wakulla Middle School. He, too, resigned his position for the 1988-89 school year, creating a vacancy which Mr. Myhre filled with a (fourth) newcomer to Wakulla County's schools. Both because of his long service at the adult school and because of his work as a substitute with the alternative education class at Wakulla Middle School during the 1987-88 school year (T. 78-9), Mr. Achtchi was eminently qualified for the position Mr. Johnson vacated, not that the newcomer might not also have been qualified.
Mr. Achtchi was willing, able and fully qualified to fill each of the four 1988-89 vacancies for which Mr. Myhre selected teachers new to the Wakulla County schools. On July 19, 1988, Mr. Myhre wrote Mr. Hossein, informing him
I have selected another person for the position of classroom teacher at Wakulla Middle School. . . . I will be glad to consider you for any future openings should they develop.
Respondent's Exhibit No. 2.
In 1987-88 and 1988-89, respondent's instructional employees worked as "teachers," without further contractual qualification. At Wakulla Middle School, there "are no . . . science positions . . . math positions . . . [or] social studies positions . . . [just] teaching positions." (T. 43)
Another Situation
Disappointed in his efforts to secure continued employment with the Wakulla County School Board, Mr. Achtchi found a teaching position at a school in Thomas County, Georgia, at an annual salary of $24,320. This exceeds both what he was paid by Wakulla County for the 1987-88 school year and what he would have been paid for the 1988-89 school year if the Wakulla County School Board had renewed his professional service contract. On the other hand, he is making no progress toward the ten years required in order for Florida pension rights to vest.
Board Rules
Among the School Board's rules are provisions concerning reducing personnel and renewing contracts for professional services, including the following:
3.08 REDUCTION IN PERSONNEL--If a reduction in personnel requires the School Board to choose from its employees the Board shall retain the employees best qualified. In determining qualifications the Board shall consider without limitation educational qualifications, efficiency, compatibility, character and capability to meet educational service needs of the community.
After initially determining which employees shall be retained, the Board shall give written notice of the proposed action to all affected employees together with a summary of the factual, legal, and policy grounds therefor, including a list of criteria being utilized.
Any employee affected by the initial determination may request a hearing within twenty-one (21) days after receipt of the notice of proposed action. The request for hearing shall be treated as a petition by the School Board and should contain all pertinent information relevant to the appeal as outlined in the Board's procedures relating to suspension or dismissal in Section 3.18 of these Rules. Thereafter, the procedures outlined in that rule should be followed before, during, and after the hearing. Authority: 230.22(2), F.S.
Law Implemented: 120.53, 120.57,
120.58, 120.59, 231.36, F.S.
SUSPENSION OR DISMISSAL--
(5) Nothing in this rule shall be construed to prohibit The Board from dismissing employees whose services are no longer needed.
Authority: 230.22, F.S.
Law Implemented: 230.23(5)(g) 230.33(7)(h), 231.36, F.S.
PROCEDURES FOR SUSPENDING AND DISMISSING EMPLOYEES--
(1) Any employee may be suspended or dismissed at any time during the school year provided such suspension or dismissal is based on just cause as set forth in School Board rules and in Section 231.36(1), Florida Statutes. Authority: 230.22(2), F.S.
Law Implemented: 120.53, 120.57,
120.58, 120.59, 120.68, 231.36(6), F.S.
NON-RENEWAL OF PROFESSIONAL SERVICE CONTRACT--Professional Service Contracts shall be renewed each year unless the Superintendent, after receiving a negative personnel assessment and recommendation for review of an employee's contract, shall charge the employee with unsatisfactory performance pursuant to Sections 231.29 and 231.36(3)(e), Florida Statutes. Authority: 230.22(2), F.S.
Law Implemented: 231.36, F.S. Respondent's Exhibit No. 5.
The collectively bargained agreement between the School Board and the teachers' union contemplates reductions in force, Article I, Paragraph B of the Master Context, but does not specify procedures.
CONCLUSIONS OF LAW
When the School Board of Wakulla County referred this matter to the Division of Administrative Hearings, in accordance with its Rule 3.18(9), the Division of Administrative Hearings assumed "jurisdiction over the formal proceeding." Section 120.57(1)(b)3., Florida Statutes (1987).
Reduction Assumed Lawful
The parties stipulated that enhancement of the contingency fund was a lawful objective and agreed not to litigate the "fiscal exigency." (T. 5) For purposes of decision, it is assumed that reducing the number of instructional positions was a permissible means of addressing the exigency. See Art. IX, Section 4(b), Fla. Const.; Sections 230.03(2), 230.23(4) and (5), and 230.35, Florida Statutes (1987); Tolar v. School Board of Liberty County, 363 So.2d 144 (Fla. 1st DCA 1978). This assumption rejects petitioner's argument that the School Board is without authority to effect a reduction in force, because the collectively bargained agreement between the School Board and the teachers' union does not specify procedures for accomplishing a reduction in force.
Professional Service Tenure
But, having eliminated positions, the School Board is not free, in selecting which teachers to dismiss, to ignore the tenure rights of teachers with professional service contracts. The School Board has no authority to lump
teachers on annual contract, much less applicants new to the district, together with those who have professional service contracts, for comparative evaluation, in order to decide whether to renew professional service contracts.
Petitioner is entitled to renewal of his contract for professional service. See Bass vs. Gilchrist County School Board, 438 So.2d 100 (Fla. 1st DCA 1983); Berkner vs. School Board of Orange County, 373 So.2d 54 (Fla. 4th DCA 1979); and State ex rel. Slater vs. Smith, 142 So.2d 767 (Fla. 1st DCA 1962). Vacant positions for which he is qualified should have been offered to him, before being given to teachers without tenure.
Whether petitioner should be viewed as holding a continuing contract, under the rationale of Gainey v. School Board of Liberty County, 387 So.2d 1023 (Fla. 1st DCA 1980), is not determinative, since a professional service contract is equivalent to a continuing contract, insofar as conferring tenure, absent charges of unsatisfactory performance.
Because petitioner performed satisfactorily as a teacher, he was entitled to renewal of the professional service contract which existed between the parties:
A professional service contract shall be renewed each year unless the superintendent
. . . charges the employee with unsatisfactory performance . . . .
Section 231.36(3)(e), Florida Statutes (1987).
Only if the School Board had lawfully reduced teachers' positions in an amount necessitating the layoff of non-tenured teachers would Section 231.36(5), Florida Statutes (1987), come into play. That subsection reads:
Should a school board have to choose from among its personnel who are on
continuing contracts or professional service contracts as to which should be retained, such decisions shall be made pursuant to the terms of a collectively bargained agreement, when one exists. If no such agreement exists, the district school board shall prescribe rules to handle reductions in work force.
Subsection five only has application in cases in which a school board must choose among tenured teachers.
This is not such a case, the School Board passed over petitioner in favor of at least five teachers on annual contract and four who had no contract at all.
The School Board's rules should be understood in this context.
Without defining "employees," Rule 3.08 prescribes the procedure for determining which employees are to be retained, only "[i]f a reduction in personnel requires the School Board to choose from its employees . . . ." Rule 3.08 must be read in pari materia with Rule 3.19, which plainly specifies that "Professional Service Contracts shall be renewed each year unless the Superintendent . . .
shall charge the employee with unsatisfactory performance . . . ." As applied
to the present case, the School Board's rules, taken together, require comparative evaluation only or non-tenured employees qualified to hold the positions eliminated. Any other interpretation of Rule 3.08 would render it invalid as contrary to statutes the School Board's rules purport to implement.
In legal contemplation, the School Board has not yet taken final action in this matter: its decision not to renew petitioner's contract for 1988-
89 is proposed agency action only. But events have overtaken this legal fiction. Mr. Achtchi has agreed to work elsewhere for the 1988-89 school year.
It is, accordingly, RECOMMENDED:
That the School Board offer petitioner a teacher's position for the 1989-90 school year at the same salary he would have been entitled to if he had worked for the School Board for the 1988-89 school year.
That the School Board tender contributions to the state pension fund on petitioner's behalf in the amount it would have contributed if he bad taught in Wakulla County for the 1988-89 school year.
That the School Board take whatever additional steps may be necessary to assure petitioner retirement credit for the 1988-89 school year.
That the School Board pay petitioner the moneys it would have contributed to the state pension fund on petitioner's behalf if he had taught in Wakulla County for the 1988-89 school year, if it proves impossible to assure petitioner retirement credit for the 1988-90 academic year.
DONE AND ENTERED this 23rd day of December, 1988, in Tallahassee, Florida.
ROBERT T. BENTON, II
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
Filed with the Clerk of the Division of Administrative Hearings this 23rd day of December, 1988.
ENDNOTE
1/ On Mr. Stokley's recommendation, the Board also eliminated one administrator's position, at least in part because the "administrator . . . [who held the position] was going to retire." (T. 98).
APPENDIX
Respondent's proposed findings of fact Nos. 1, 2, 3, 4, 5, 6, 10, 14, 15,
18, 23, 24, 25 and 26 have been adopted, in substance, insofar as material.
Respondent's proposed findings of fact Nos. 7, 8 and 9 are immaterial under the parties' stipulation. Also immaterial is respondent's proposed findings fact No. 11.
With regard to respondent's proposed findings of fact Nos. 13 and 17, the School Board rules were misapplied.
With regard to respondent's proposed findings of fact No. 16, the chronology is not clear: the decision not to renew petitioner's contract may have occurred before the rating.
Respondent's proposed findings of fact No. 19 and 21 are rejected as against the weight of the evidence.
With respect to respondent's proposed findings of fact No. 20, the School Board has not yet taken final action. Because of the pendency of the petition, petitioner was entitled to be considered for each of the four positions.
With regard to respondent's proposed finding of fact No. 22, to the extent it is not immaterial, teachers at Wakulla Middle School frequently, if not invariably, teach out their area.
COPIES FURNISHED:
RONALD G. MEYER, ESQUIRE MEYER, BROOKS & COOPER, P.A. POST OFFICE BOX 1547 TALLAHASSEE, FLORIDA 32302
J. DAVID HOLDER, ESQUIRE RIGSBY AND HOLDER
1408 PIEDMONT WAY
SUITE 200
TALLAHASSEE, FLORIDA 32312
HONORABLE BETTY CASTOR COMMISSIONER OF EDUCATION THE CAPITOL
TALLAHASSEE, FLORIDA 32399-0400
MR. ROGER STOKLEY, SUPERINTENDENT WAKULLA COUNTY SCHOOL BOARD
POST OFFICE BOX 100 CRAWFORDVILLE, FLORIDA 32327
=================================================================
AGENCY FINAL ORDER
================================================================= BEFORE THE SCHOOL BOARD OF WAKULLA COUNTY, FLORIDA
HOSSEIN ACHTCHI,
Petitioner,
vs. DOAH CASE NO. 88-2808
SCHOOL BOARD OF WAKULLA COUNTY,
Respondent.
/
FINAL ORDER
This matter came before the Wakulla County School Board on March 2O, 1989, for final agency action., On March 14, 1988, the School Board acted to officially abolish the itinerant substitute teaching position held by the Petitioner. On March 21, 1988, the School Board acted to discontinue the professional services contract of Petitioner based upon Wakulla County School Board Rule 3.08. Pursuant to said rule, Mr. Achtchi requested an administrative hearing to contest the School Board's action.
The case was referred to the Division of Administrative Hearings and a formal hearing held before Robert T. Benton, II, Hearing Officer assigned by the Division. A recommended order was entered on December 23, 1988. A subsequent order dated February 9, 1989 to correct a clerical error in the recommended order was also entered.
The Wakulla County School Board met pursuant to Notice of Hearing to take final agency action on the recommended order. The Petitioner was represented by Ronald G. Meyer, Esquire. The School Board was represented by J. David Holder, Esquire. Each party was given the opportunity to make a presentation to the School Board addressing the facts of the case and the Hearing Officer's recommended order.
No exceptions have been filed by either party to the recommended order.
The School Board adopts the findings of fact, conclusions of law and the recommendations set forth in the recommended order, as amended by the February 9, 1989 order A copy of these orders are attached hereto and incorporated herein by reference.
The parties are notified that this order may be appealed by filing a notice of appeal and a filing fee as set out in Section 120.68(2), Florida Statutes, and Florida Rule of Appellate Procedure 9.110(b) and (c), within thirty days of the date of this order.
DONE AND ORDERED on this 20th day of March, 1989.
Mike Falk, Chairman
School Board of Wakulla County
I HEREBY CERTIFY that a true copy of the foregoing Final Order was furnished by U.S. Mail to Ronald
G. Meyer, Esquire, P. 0. Box 1547, Tallahassee, Florida 32302, on this 20th day of March, 1989.
ROGER STOKLEY, Superintendent
COPIES FURNISHED TO:
J. David Holder, Esquire Ronald G. Meyer, Esquire
Docket for Case No: 88-002808
Orders for Case No: 88-002808
| Issue Date |
Document |
Summary |
|
Mar. 20, 1989 |
Agency Final Order
|
|
|
Dec. 23, 1988 |
Recommended Order
|
Teacher on professional service contract whose job was abolished cannot be passed over for comparable position in favor of newcomer.
|
