STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LIMESTONE CREEK COMMUNITY ) ELEMENTARY SCHOOL ADVISORY ) COMMITTEE, LIMESTONE CREEK ) COMMUNITY ELEMENTARY SCHOOL ) PARENT TEACHER ORGANIZATION, ) INC., EDNA RUNNER, LIZ MALLARDI,) and SARAH OPATOSKY, )

)

Petitioners, )

)

vs. ) CASE NO. 95-0693

) SCHOOL BOARD OF PALM BEACH ) COUNTY, FLORIDA, )

)

Respondent. )

)

RECOMMENDED ORDER OF DISMISSAL

On or about February 9, 1995, the Limestone Creek Community Elementary School Advisory Committee, the Limestone Creek Community Elementary School Parent Teacher Organization, Inc., Edna Runner, Liz Mallardi and Sarah Opatosky (hereinafter referred to collectively as "Petitioners") filed a Petition for Formal Administrative Proceedings (hereinafter referred to as the "Petition") "challenging the decision of the Respondent, School Board of Palm Beach County, Florida ("School Board") to involuntarily transfer Edward Bohne, principal of Limestone Creek Elementary, without notice and during the middle of the school year, from Limestone Creek Elementary to West Riviera Elementary School."

Petitioners describe themselves in the first five numbered paragraphs of their Petition as follows:

1. The School Advisory Committee of Limestone Creek Community Elementary ("SAC") is established pursuant to Section 229.58, Florida Statutes and is composed of teachers, education support employees, students, parents and community representatives from Limestone Creek Elementary and the surrounding community. Among other duties, the SAC is charged with presentation of a school improvement plan in order to implement school improvement and education accountability as provided by statute and State Board of Education Rule. . . .

   1/

   
   

2. The Limestone Creek Community Elementary School Parent Teacher Organization, Inc. ("PTO") is a Florida corporation with a membership that includes the parents and teachers at Limestone Creek Elementary. The Limestone Creek PTO provides volunteer assistance, raises funds, and other support for the educational mission of Limestone Creek Elementary. Edward Bohne has been a major reason for the success of the PTO, the parental involvement and the recruitment of outstanding faculty and staff at Limestone Creek. . . .

3. Mrs. Edna Runner is a resident of Jupiter . . . . Mrs. Runner is a member of the SAC and serves as community liaison between the Limestone Creek community and the school.

   
   

4. Mrs. Liz Mallardi is a resident of Jupiter . . . . Mrs. Mallardi is the parent of Matthew, a third grader at the school. Because of the lack of any notice, Mrs. Mallardi did not learn the Board was going to consider the involuntary transfer of Mr. Bohne. Had she known, Mrs. Mallardi would have attended the meeting and requested an opportunity to be heard.

   
   

5. Mrs. Sarah Opatosky is a resident of Jupiter . . . . Mrs. Opatosky is a volunteer at the school and is active in the PTO. She seeks this hearing on behalf of herself as a parent and citizen of Palm Beach County, and on behalf of and as guardian of her daughter Rachel, a fourth grader at Limestone Creek.

   
   

   In their Petition, Petitioners allege that Mr. Bohne's transfer was accomplished in violation of the public notice requirements of Section 120.53, Florida Statutes, as well as written School Board policies, and "is extremely detrimental to the educational mission of Limestone Creek Elementary, its teachers and students and to the community it serves." They list the following as the "disputed issues of material fact" in the instant case:

   
   

   1. Whether the Palm Beach School Board is going to "walk the walk" or simply "talk the talk" concerning parent, teacher, and community involvement in the operation of community schools.

      
      

   2. Whether the requirements of the Florida Administrative Procedure Act and School Board Policy have been intentionally violated, or through haste disregarded, precluding public notice of the involuntary transfer of Mr. Bohne.

      
      

   3. Whether the Board was misled into believing that the transfer of Mr. Bohne was voluntary rather than involuntary.

      
      

   4. Whether the involuntary transfer of Mr. Bohne is in the best interests of the School System of Palm Beach County and the students, teachers and parents of Limestone Creek Elementary.

      
      

   5. Whether the Palm Beach County School Board has failed to adopt, implement and follow an objective-based process for the screening, selection, and appointment of a principal at the magnet school at West Riviera Elementary in violation of Section 231.0861, Florida Statutes.

The relief Petitioners request is "the entry of a final order pursuant to Section 120.59, Florida Statutes, quashing the involuntary transfer of Mr. Bohne from Limestone Creek Elementary to West Riviera Elementary."

By letter dated February 10, 1995, the School Board referred the matter to the Division of Administrative hearings (hereinafter referred to as the "Division"). The letter, which was received by the Division on February 16, 1995, asked that the Division "assign a hearing officer to this case" to conduct the formal administrative hearing Petitioners had requested. On February 21, 1995, the instant case was assigned to the undersigned Hearing Officer.

On February 22, 1995, the School Board, having reconsidered its decision to refer the instant matter to the Division to conduct a formal administrative hearing, filed a motion "request[ing] that this matter be dismissed" on the ground that "Petitioners do not have a 'substantial interest' and lack standing

to challenge the transfer of a Principal." In its motion, the School Board argues that the Division "does not have jurisdiction over the issue of transfer of employees which do not affect substantial interests of the employee, nor do the parent and teacher organizations have standing to challenge personnel transfers, since these groups do not have a 'substantial interest' nor are their interests 'substantially affected' by the intradistrict transfer of a principal." The School Board acknowledges in its motion that "concerned" parents have "an interest in the educational program of their children," but it takes the position that "such concern is not sufficient to satisfy the threshold requirement of standing to challenge the action of the Superintendent and ratification by the School Board in the transfer of a principal from one school to another."

On March 6, 1995, Petitioners filed a response in opposition to the School Board's Motion to Dismiss. In their response, Petitioners contend that they have standing to question the School Board's compliance with the notice requirements of Section 120.53, Florida Statutes, in transferring Mr. Bohne inasmuch as, in accordance with the holding in State ex rel. Boyles v. Florida Parole and Probation Commission, 436 So.2d 207 (Fla. 1st DCA 1983), 2/ "any citizen" may bring such a challenge. Furthermore, they argue, they are entitled to challenge the transfer on the other grounds they have raised in their Petition because the transfer "substantially affects [their] interest in school- based management and the welfare of their children."

Oral argument on the School Board's Motion to Dismiss was held by telephone conference call on March 9, 1995.

The Hearing Officer is without authority to dismiss the Petition as the School Board has requested him to do in its motion. Only the School Board itself has such authority. The Hearing Officer, however, is empowered to close the file of the Division in this case and return the matter to the School Board for the entry of a final order of dismissal. See Linder Truck Center, Inc., v. General Motors Corporation/GMC Coach Division, 546 So.2d 119, 120 (Fla. 2d DCA 1989); Friends of the Everglades, Inc., v. Zoning Board, Monroe County, 478 So.2d 1126, 1127 (Fla. 1st DCA 1985); Department of Professional Regulation v. LeBaron, 443 So.2d 225 (Fla. 1st DCA 1983). Accordingly, the Hearing Officer will treat the School Board's Motion to Dismiss as requesting such relief.

Petitioners have petitioned the School Board for a Section 120.57 formal hearing on the School Board's decision to transfer Mr. Bohne from his position as principal at Limestone Creek Elementary School to the same position at West Riviera Elementary School. "To establish entitlement to a [S]ection 120.57 formal hearing, one must show that its 'substantial interests [or, alternatively, in the case of an association, the substantial interests of a substantial number of its members] will be affected by proposed 3/ agency action.' This, in turn, requires a showing that (1) the proposed action will result in injury-in-fact which is of sufficient immediacy to justify a hearing; and (2) the injury is of the type that the statute pursuant to which the agency has acted is designed to protect." 4/ Fairbanks, Inc., v. Department of Transportation, 635 So.2d 58, 59 (Fla. 1st DCA 1994); Friends of the Everglades, Inc., v. Board of Trustees of the Internal Improvement Trust Fund,

595 So.2d 186, 188 (Fla. 1st DCA 1992). The Hearing Officer agrees with the School Board that none of the Petitioners have made such a showing in their Petition and that therefore the Petition should be dismissed. See Martin v. School Board of Gadsen County, 432 So.2d 588 (Fla. 1st DCA 1983)(involuntarily transferred teacher who failed to allege pecuniary harm or damage to reputation resulting from transfer (but who did allege that she was a resident of Gadsen

County and that the school board violated the notice requirements of Section 120.53, Florida Statutes) not entitled to Section 120.57 hearing on transfer); 5/ see also School Board of Orange County v. Blackford, 369 So.2d 689 (Fla. 1st DCA 1979) (neither children rezoned to different school, their parents, nor parent-teacher association had standing to contest the school board's rezoning decision under Chapter 120; "while these children have a legal right to receive from the [s]chool [b]oard equal opportunities for the obtaining of a free education, they do not have a right to be seated at a particular desk in a particular room at a particular school in order to receive such educational exposure"). 6/

Accordingly, in accordance with the School Board's request, the file of the Division in this case is closed and the instant matter is returned to the School Board for the entry of a final order dismissing the Petition.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 16th day of March, 1995.

STUART M. LERNER

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 16th day of March, 1995.

ENDNOTES

1/ The duties of school advisory councils like the SAC are prescribed in subsection (2) of Section 229.58, Florida Statutes, which provides as follows:

Each advisory council shall perform such functions as are prescribed by regulations of the school board; however, no advisory council shall have any of the powers and duties now reserved by law to the school board. Each school advisory council shall assist in the preparation and evaluation of the school improvement plan required pursuant to s. 230.23(18) and shall provide such assistance as the principal may request in preparing the school's annual budget and plan as required by. s. 229.55(1).

2/ In State ex rel. Boyles, the First District Court of Appeal held that the Florida Attorney General had standing, as a representative of the citizens of the State of Florida, to seek certiorari review in the appellate court of a final order of the Florida Parole and Probation Commission where it was alleged that the challenged order was issued in "violation of the public notice requirements of [S]ection 120.53 (1)(d), Florida Statutes (1981)."

3/ A Section 120.57 formal hearing is a de novo proceeding "intended to formulate final agency action, not to review action taken earlier." McDonald v. Department of Banking and Finance, 346 So.2d 569, 584 (Fla. 1st DCA 1977). In the instant case, the agency action which is the subject of Petitioners' hearing

request--Mr. Bohne's transfer--is not action that the School Board proposes to take, but rather action that it has already "taken earlier" and which it apparently considers to be final.

4/ In the instant case, the School Board acted pursuant to Section 230.23(5)(e), Florida Statutes, which authorizes district school boards to "[a]ct on recommendations of the superintendent regarding transfer and promotion of any employee." The authority of a superintendent of schools to make such transfer recommendations is found in Section 230.33(7)(e), Florida Statutes, which provides that the superintendent shall "[r]ecommend employees for transfer and transfer any employee during any emergency and report the transfer to the school board at its next regular meeting."

5/ Unlike Martin, State ex rel. Boyles, the case upon which Petitioners rely, did not involve a situation where either an individual citizen or a group of citizens was seeking a formal hearing pursuant to Section 120.57, Florida Statutes, and it therefore is distinguishable from the instant case.

6/ Petitioners concede in their response to the School Board's Motion to Dismiss that Blackford is an "obstacle to the[ir] standing," but they argue that since Blackford was decided "Florida has embarked on a program of school reform designed to give parents, teachers and communities a voice in educational decisions affecting their children." The Hearing Officer has examined the legislative enactments which Petitioners have cited as examples of such reform and concludes that their existence does not cause the pronouncements made in Blackford to be any less authoritative today than they were in 1979 when they were made.

COPIES FURNISHED:

Donald M. Middlebrooks, Esquire

L. Martin Reeder, Jr., Esquire STEEL HECTOR & DAVIS

1900 Phillips Point West 777 South FLagler Drive

West Palm Beach, Florida 33401-6198

Cynthia S. Prettyman, General Counsel School Board of Palm Beach County 3318 Forest Hill Boulevard, C-302 West Palm Beach, Florida 33402

Dr. C. Monica Uhlhorn, Superintendent School Board of Palm Beach County 3340 Forest Hill Boulevard, C-320 West Palm Beach, Florida 33406-5869

Alicia Hightower, Secretary School Board of Palm Beach County 3340 Forest Hill Boulevard

West Palm Beach, Florida 33406-5869

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this recommended order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period of time within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 95-000693

Orders for Case No: 95-000693