STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RICHARD HODGKINS, )

)

Petitioner, )

)

vs. ) CASE NO. 89-0464

) ST. JOHNS COUNTY SCHOOL BOARD, ) ST. JOHNS COUNTY, FLORIDA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William R. Cave, held a formal hearing in the above- styled case on March 30 and 31, 1989, in St. Augustine, Florida.

APPEARANCES

For Petitioner: Linda Logan Bryan, Esquire

97 Orange Street

St. Augustine, Florida 32084

For Respondent: Joann M. Bricker, Esquire

COFFMAN, COLEMAN, ANDREWS & GROGAN

Post Office Box 40089 Jacksonville, Florida 32203

STATEMENT OF THE ISSUE

Whether under the facts and circumstances of this case the reassignment of Petitioner Richard Hodgkins from the position of Director of Business and Finance to the position of Supervisor of Transportation was a demotion rather than a transfer and thereby entitling Petitioner to relief.

PRELIMINARY STATEMENT

At the regular session of the St. Johns County School Board on October 8, 1988 and November 11, 1988, Superintendent of Schools, Otis A. Mason's recommendation to reassign Petitioner Richard Hodgkins, from the position of Director of Finance to the position of Supervisor of Transportation was discussed in detail but a motion to adopt the recommendation failed for lack of a second. At a special meeting of the School Board on December 16, 1988, Superintendent Mason's recommendation was again considered and approved by the School Board; however, the effective date of reassignment was not made clear so the School Board at its regular session on January 10, 1989 made clear the effective date to be December 16, 1988. Also at this meeting, the School Board considered Richard Hodgkins' petition for formal hearing and granted the request for a hearing with the understanding that the School Board was not waiving the issue of whether Richard Hodgkins' substantial interest had been affected.

The petition for formal hearing was referred to the Division of Administrative Hearings and Charles C. Adams was designated as the Hearing Officer. Several motions, including the School Board's Motion To Dismiss Petition, was filed but denied by order dated February 23, 1989. Subsequently, William R. Cave was designated as the Hearing Officer to hear this matter.

In support of his position, Richard Hodgkins testified in his own behalf and presented the testimony of Thomas Allen, Jr., Barbara Ward, Susan Yocuis, Robert Braden, David Weingartner and Otis A. Mason as a rebuttal witness.

Petitioner's exhibits 1 through 21, 23 and 24 were received into evidence.

The School Board presented the testimony of Otis A. Mason. Respondent's exhibits 1 through 13 were received into evidence.

At the beginning of the hearing, Respondent filed an ore tenus motion to prevent any member of the St. Johns County School Board from testifying on the basis that each was a member of the agency that would be required to take final agency action on this matter. After hearing argument of counsel, the motion was denied.

A transcript of this proceeding was filed on May 18, 1989 and the parties timely filed their respective posthearing Proposed Findings of Fact and Conclusions of Law on May 12, 1989 in accordance with the order extending the time for filing such pleadings. A ruling on each proposed finding of fact has been made as reflected in the Appendix to this Recommended Order.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:

1. At the time of the hearing, Petitioner Richard Hodgkins (Hodgkins) had been employed by the St. Johns County School Board (Board) for approximately 13 years.

   
   

2. In the beginning, Hodgkins worked for the St. Augustine Technical Center in several different capacities and was appointed to the position of Supervisor of Operations by the Board for the 1984-1985 school year (SY).

   
   

3. Hodgkins was appointed Finance Officer (the title was later changed to Director of Business and Finance) for the 1985-1986 SY by the Board on the recommendation of the Superintendent of Schools in St. Johns County, Otis A. Mason (Mason) who had just won his first 4 year term as superintendent in the elections held in 1984 after previously working for the school system in various capacities for over 30 years. Subsequently, the Board appointed Hodgkins to the position of Director of Business and Finance on the recommendation of Mason for each of the next three SYs; 1986-1987, 1987-1988 and 1988-1989.

   
   

4. The position of Director of Business and Finance is a non-tenured, non- instructional, administrative position in the St. Johns County School System which reports directly to the Superintendent of Schools and is subject to annual appointment for the school year by the Board on the recommendation of the Superintendent.

   
   

5. Hodgkins is not a continuing contract employee. Hodgkins does not have a written contract with the Board and is not a member of any bargaining unit.

6. During his 13 years of employment with the Board, Hodgkins has always received favorable ("at expectation") performance evaluations, was consistently promoted and had received raises each year.

   
   

7. While Hodgkins served as Director of Business and Finance his immediate supervisor and performance evaluator was Mason.

   
   

8. All of Mason's written performance evaluations of Hodgkins were satisfactory or "at expectation", including his midyear and year-end performance evaluation of Hodgkins during the 1987-1988 SY which were completed in March and July 1, 1988 respectively. Mason has not given Hodgkins a written performance evaluation for the 1988-1989 SY in the position of Director of Business and Finance.

   
   

9. While satisfactory job performance may be necessary for continued employment during the period of appointment for the position of Director of Business and Finance, satisfactory job performance does not necessarily determine reappointment. Recommendation by the superintendent is determinative of reappointment unless the Board finds "good cause" under the law to reject the superintendent's recommendation.

   
   

10. The Board implemented a Performance Management System which required semiannual written assessments of an employee's performance at midyear (February) and year-end (May), effective with the 1987-1988 SY and continuing into the 1988-1989 SY, along with notice to any employee regarding performance deficiencies, and assistance with respect to improvement of job performance.

    
    

11. As Director of Business and Finance, Hodgkins' primary responsibility was the annual preparation of the District School System's (System) budget and budget control for the System.

    
    

12. At present, as Supervisor of Transportation, Hodgkins' primary responsibility is the hiring and direction of all bus drivers.

    
    

13. Although the System's Total Fund Balance decreased from $2 million plus in 1985 to $1 million plus in 1987, there was no evidence that Hodgkins was responsible for the approximate $1 million reduction in the Total Fund Balance or that Hodgkins failed to timely make the Board or Mason aware of such reduction during 1985 through 1987.

    
    

14. From Mason's performance evaluation of Hodgkins in 1988, it is clear that Mason did not have any serious problems or concerns about Hodgkins' ability to perform his duties as Director of Business and Finance, notwithstanding the concerns of Bill Mignon, Principal of Allen Nease Jr./Sr. High School, and Gary

    P. Blount, Principal of St. Augustine High School, expressed in their memoranda to Hodgkins in March and July, 1988 respectively, since Mason was aware of their concerns prior to his performance evaluation of Hodgkins.

    
    

15. Although Mason expressed some concern about Hodgkins' ability to perform his duties as Director of Business and Finance, specifically the preparation of the System's 1988-1989 budget, as early as August, 1988, Mason's concern, along with several of the Directors and Principals within the System as expressed in their respective memorandums, intensified after Mason's election on September 6, 1988. However, there is insufficient evidence to show that this was a result of Hodgkins' refusal to publicly support Mason for superintendent of schools.

16. On September 15, 1988, when Hodgkins' efforts had failed to timely produce a balanced budget, Mason appointed David Toner, Director of Facilities Planning/Operations, "to coordinate efforts of the directors and staff in preparing the final budget information" for presentation to the Board on the evening of September 19, 1988.

    
    

17. This joint effort by the directors (including Hodgkins) and the staff working over the weekend resulted in the budget information being finalized and presented to Mason on Monday morning, September 19, 1988 and presented to the Board by Hodgkins as Director of Business and Finance on the evening of September 19, 1988.

    
    

18. Although Hodgkins was required by Mason to present the budget to the Board on September 19, 1988, it is clear that Mason, by appointing Toner and subsequent actions, had lost confidence in Hodgkins and intended to remove Hodgkins from a position of authority in the budget process.

    
    

19. Toner expressed certain concerns about the budget by memorandum to Mason at this time; however, these same concerns had been expressed previously by Toner and other directors and principals.

    
    

20. Several of the directors and principals continued to express their concern about Hodgkins' handling of the budget to both Mason and Hodgkins after the budget was presented to the Board and continuing after Hodgkins' reassignment was presented to the Board on October 11, 1988.

    
    

21. The memoranda from the directors, principals and some Board members, including those prior to Hodgkins' performance evaluation, mainly expressed concern about failure of Hodgkins to furnish printouts of certain data relating to a particular school or failure to furnish information requested by a Board member or concerning cuts in a director's or principal's budget.

    
    

22. Hodgkins responded to these concerns as he became aware of them but not always to everyone's satisfaction. In those instances where Hodgkins was not made aware of the concerns simultaneously with Mason, it was not shown that Mason deliberately withheld those concerns from Hodgkins.

    
    

23. Sometime, during or after July, 1988, Mason began to keep a personal file on Hodgkins in his office, made up of the memoranda discussed above which eventually found its way into Hodgkins' personnel file. Hodgkins was not aware of all of the memoranda in this personal file of Mason's. Additionally, Hodgkins was not aware of them being made a part of his personnel file or that Board members were being allowed to review his personnel file, specifically the memoranda discussed above, without his knowledge and in some instances before Hodgkins had reviewed them or had an opportunity to respond.

    
    

24. By memorandum dated October 4, 1988, Mason advised Hodgkins that he would recommend to the Board at its next regular session on October 11, 1988 to reassign Hodgkins from the position of Director of Business and Finance to the position of Supervisor of Transportation for the remainder of the 1988-1989 SY at his current salary. Mason's stated purpose for the reassignment was three fold: (a) to offer new challenges to staff members; (b) to fulfill immediate needs of the school system; and (c) to continue improving efficiency, coordination and accountability.

25. At its regular session on October 11, 1988, the Board considered Mason's reassignment of Hodgkins but the matter was tabled because of some concerns expressed by members of the Board.

    
    

26. At its regular session on November 8, 1988, the matter of Hodgkins' reassignment was removed from the table and after discussion a motion to approve Mason's recommendation died for lack of a second.

    
    

27. At a special meeting of the Board on December 16, 1988, the matter of Hodgkins' reassignment was again discussed and the recommendation by Mason to reassign Hodgkins to the position of Supervisor of Transportation was approved by the Board on a 3/2 vote. The date of reassignment was not made clear at this meeting but was clarified by the Board at its regular meeting on January 10, 1989 to be effective December 16, 1988.

    
    

28. Additionally, at its regular meeting on January 10, 1989, the Board granted Hodgkins' request for a formal hearing without waiving its right to raise the issue of whether Hodgkins' substantial interest had been affected.

    
    

29. After reassignment to the position of Supervisor of Transportation, Hodgkins continued to receive the same salary he was receiving as Director of Business and Finance, including the salary supplements for serving on the Board's negotiating team.

    
    

30. Although the position of Director of Business and Finance is a pay grade 8, while the position of Supervisor of Transportation is a pay grade 7, a review of the qualifications and responsibilities set out in the Position Description of each position adopted by the Board contained in Petitioner's Composite exhibit 4 shows the positions to be similar in that: (a) both are administrative positions; (b) both require a college degree; (c) both have reporting requirements to the state; (d) both require direction of personnel, albeit different type personnel; (e) both involve budget preparation, with the Supervisor of Transportation involved only in his budget whereas the Director of Business and Finance has the responsibility for the entire System's budget; (f) both require interaction and cooperation with other Board personnel; (g) while the Director of Business and Finance can serve as a regular team member and a revolving team member on the negotiating teams, the Supervisor of Transportation is eligible only as a revolving team member which could result in the Supervisor of Transportation receiving a lower salary supplement; and (h) both involve supervisory duties and accountability for their respective areas.

    
    

31. There is insufficient evidence to establish that Hodgkins was unable to secure alternate comparable employment.

    
    

32. There is insufficient evidence to show that Hodgkins' professional reputation has been publicly disparaged.

    
    

33. There is insufficient evidence to establish that Hodgkins' reassignment from the position of Director of Business and Finance to the position of Supervisor or Transportation was a result of Hodgkins' exercise of his First Amendment rights or Hodgkins' refusal to publicly support Mason or that the reassignment was "politically" motivated.

    
    

34. Because of a loss of confidence in Hodgkins' ability to "handle the job", perceived or real, that some directors, some principals, some Board members and Mason was experiencing there was a lack of harmony within the System.

    CONCLUSIONS OF LAW

    
    

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

    
    

36. Hodgkins bears the burden of establishing that he has a substantial interest and that there has been a violation of his rights. Martin v. School Board of Gadsden County, 432 So.2d 588 (1 DCA Fla. 1983); Florida Department of Transportation v. J. W. C. Company, Inc., 396 So.2d 788 (1 DCA Fla. 1981).

    
    

37. The position of Director of Business and Finance is a non-tenured, non-certified, noninstructional, administrative position subject to annual appointment by the Board after recommendation by the Superintendent of Schools unless the Board finds "good cause" to reject the Superintendent's recommendation in accordance with Section 230.23(5)(a), Florida Statutes. Von Stephens v. School Board of Sarasota County, 338 So.2d 890 (2 DCA Fla. 1976). However, the Board is not limited in determining "good cause" to the "seven deadly sins" set out in Section 231.36(6)(b), Florida Statutes. Spurlin v.

    School Board of Sarasota County, 520 So.2d 294 (2 DCA Fla. 1988). A transfer of an employee under Section 230.23(5)(e), Florida Statutes, must be treated as an appointment and thereby activates the cause requirements in Section 230.23(5)(a), Florida Statutes. Von Stephens v. School Board of Sarasota County, 338 So.2d 890 (2 DCA Fla. 1976). However, the Superintendent and the Board may not exercise this authority in an unlawful manner.

    
    

38. Having been appointed to the position of Director of Business and Finance for the 1988-1989 school year, Hodgkins has a protected substantial interest during the year of appointment but not beyond. Sullivan v. School Board of Pinellas County, 773 F. 2d 1182 (11th Cir. 1985)

    
    

39. Hodgkins has failed to show that the action of Mason and the Board in moving him from the position of Director of Business and Finance to the position of Supervisor of Transportation, whether you consider it a transfer, reassignment or demotion, resulted in a reduction of pay for the balance of the appointment or resulted in being placed in a position for the balance of the appointment that was not similar in duties, responsibilities and qualifications and, thereby adversely affecting his substantial interest. Berkner v. School Board of Orange County, 373 So.2d 54 (4 DCA Fla. 1979), cert. denied, 383 So.2d 1190 (Fla. 1980); Osburn v. School Board of Okaloosa County, 451 So.2d 980 (1 DCA Fla. 1984); Mohr v. Dade County School Board, 287 So.2d 337 (3 DCA Fla. 1973), cert. denied, 294 So.2d 91 (Fla. 1974). Nor has Hodgkins shown that the action taken by Mason or the Board was unlawful in that it was taken in response to Hodgkins' exercise of his First Amendment rights or that it was "politically" motivated. Brew v. Orange County School Board, 626 F. Supp. 709 (M.D. Fla. 1985).

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED the Respondent, School Board of St. Johns County, enter a Final

Order denying Petitioner, Richard Hodgkins, the relief sought and upholding the

Board's transfer of Richard Hodgkins to the position of Supervisor of Transportation for the remainder of the 1988-1989 school year at the salary

being paid Hodgkins at the time of the transfer on December 16, 1988, including any salary supplements for serving on the negotiating team.

DONE AND ENTERED this 3rd day of July, 1989, in Tallahassee, Leon County, Florida.

WILLIAM R. CAVE

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 3rd day of July, 1989.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-0464

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the Proposed Findings of Fact submitted by the parties in this case.

Specific Rulings on Proposed Findings of Fact Submitted by the Petitioner, Richard Hodgkins

1. Each of the following Proposed Findings of Fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the Proposed Finding of Fact: 1(1,3); 2(3); 3(4); 4(6); 5(7); 6(8); 7(4); 8(9); 9-10(10); 11-12(15); 14(16,17); 15(17,18,20); 17(24); 18(11); 19(12); 20(30); 21(25); 23(25); 24(26); 25-26(23); 27-28(27).

   
   

2. Proposed Findings of Fact 16, 22, 29 & 30 are rejected as not being material or relevant.

   
   

3. Proposed Finding of Fact 13 is rejected as not being supported by substantial competent evidence in the record.

Specific Rulings on Proposed Findings of Fact Submitted by the Respondent, St. Johns County School Board

1. Each of the following proposed Findings of Fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the Proposed Finding of Fact: 1(3); 2(3); 3(3); 4(5); 5(3); 6(8); 7(11); 8(14); 9(15); 10(20,21); 11(11); 12(13); 13(14); 14-18(20,21); 19-20(16); 21(17); 22(19); 23,25,26(20,21); 27,28(24); 29(15,18); 30(34); 31(24); 32,33,35(29); 40-41(30); 42,43(27,28).

   
   

2. Proposed Findings of Fact 24, 34, & 36-39 are rejected as not being material or relevant.

COPIES FURNISHED:

Honorable Otis A. Mason Superintendent

St. Johns County Schools

40 Orange Street

St. Augustine, Florida 32084

Chairman

St. Johns County School Board Orange Street School Board Center St. Augustine, Florida 32084

Linda Logan Bryan, Esquire MILLER, SHINE & BRYAN, P.A.

97 Orange Street

St. Augustine, Florida 32084

Joann M. Bricker, Esquire

COFFMAN, COLEMAN, ANDREWS & GROGAN

Post Office Box 40089 Jacksonville, Florida 32203

Docket for Case No: 89-000464

Orders for Case No: 89-000464