STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TOM E. MASSEY, )

)

Petitioner, )

)

vs. ) CASE NO. 96-1394

) ALACHUA COUNTY SCHOOL BOARD, )

)

Respondent. )

)

RECOMMENDED ORDER

Following notice to all parties, Don W. Davis, a Hearing Officer for the Division of Administrative Hearings, held a final hearing in the above-styled case on May 15, 1996, in Gainesville, Florida.

APPEARANCES

For Petitioner: Tom E. Massey, Pro Se

c/o Susan C. Massey

5160 Northeast Elliott Circle Corvallis, Oregon 87330

For Respondent: Thomas L. Wittmer, Esquire

School Board of Alachua County 620 East University Avenue Gainesville, Florida 32601

STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner should be permitted to transfer credit of certain hours of accrued sick leave from Petitioner's former place of employment, P.K. Yonge School, to Petitioner's current leave balance with Respondent, the Alachua County School Board (Board).

PRELIMINARY STATEMENT

By letter dated March 14, 1996, the Alachua District Superintendent of Schools requested that the Division of Administrative Hearings conduct a formal hearing pursuant to Section 120.57(1), Florida Statutes, regarding Petitioner's request for transfer of sick leave earlier accrued to him while employed by the University of Florida P.K. Yonge Laboratory School to his current leave balance with the Alachua County School Board. The Board had preliminarily denied Petitioner's request.

Hearing Officer P. Michael Ruff scheduled a final hearing to be held in the matter on May 15, 1996. Prior to final hearing, the case was transferred to the undersigned.

At the final hearing, Respondent presented testimony of one witness, Assistant Superintendent James L. Scaggs, and seven exhibits. Petitioner presented testimony of one witness, himself.

No transcript of the final hearing was provided. Proposed findings of fact submitted by the parties have been reviewed and are addressed in the appendix to this recommended order.

FINDINGS OF FACT

1. Petitioner, Tom E. Massey, began his employment with Respondent at the start of the 1983-84 school year. He had been previously employed at the University of Florida's P.K. Yonge Laboratory School since September 1, 1967.

   
   

2. During the 1983-84 and 1984-85 school years, Petitioner was technically on a leave of absence from the University of Florida. At the conclusion of that two year period, Petitioner determined that he would make his employment relationship with Respondent permanent and formally terminate his employment with the University of Florida.

   
   

3. At the time of separation from employment with the University of Florida, Petitioner had accrued a balance in that employment of 336 hours of unused sick leave prior to October 1, 1973, and 686.4 hours of sick leave after that date. Petitioner learned from Respondent's personnel department that existing policy did not provide for transfer of such leave to the Alachua County School Board employment. Transfers of existing leave balances were limited to other school boards in the state and educational personnel in residential care facilities of the Department of Health and Rehabilitative Services. Consequently, Petitioner elected, on September 6, 1985, to be paid by the University of Florida for unused sick leave under prevailing personnel rules at his existing salary rate for one-eighth of the hours accrued prior to October 1, 1973, and one-fourth of the hours accrued on or after October 1, 1973.

   
   

4. As a result of his decision to sell his sick leave, Petitioner was paid approximately $2,419 by the University of Florida. At the present, Petitioner has no unused sick leave hours accrued at the University.

   
   

5. As a result of the legislative enactment in 1990 of the "Sidney Martin Developmental Research School Act" (Section 2 of 90-49, Laws of Florida), codified at Section 228.053, Florida Statutes, university sponsored developmental schools were established as a category of public schools funded under the Florida Education Finance Program (FEFP), as opposed to the previous practice of funding such "laboratory schools" through the budget of the State University System.

   
   

6. On June 4, 1991, Respondent amended its policy to permit transfer of sick leave from other public schools in Florida funded through the FEFP. Pursuant to that policy, Respondent also permitted certain existing employees of the Alachua County School Board to transfer unpaid leave balances resulting from prior employment with the University of Florida.

   
   

7. Leonard D. Jackson was employed at P.K. Yonge School from August 1, 1971, until November 23, 1973, when he left that employment with the University of Florida to commence employment with Respondent. Jackson had accrued 18 days and seven hours of sick leave (151 hours) during that period, but was ineligible for leave payment since the length of his employment with the University was less than 10 years.

8. Following Respondent's June 4, 1991, policy change, Leonard D. Jackson transferred the 151 hours of accrued sick leave from the University of Florida to his then current employer, the Alachua County School Board. Upon his retirement, Jackson received payment for the leave at a rate of 110 percent of his final salary rate.

   
   

9. Totsye J. Connor, employed at the University of Florida from September 1, 1968, until May 20, 1982, elected not to be paid for accrued sick leave when she left that employment for her subsequent employment with Respondent. Following Respondent's policy change in 1991, she then transferred 59 hours of accrued sick leave to her employment with Respondent and was paid for that leave upon her retirement.

   
   

10. Petitioner intends to retire from employment at the conclusion of the present school term in June of 1996. Petitioner will receive compensation at that time for the leave balance accrued by him in Respondent's employment. Petitioner argues that he has been treated unfairly and should now be permitted to transfer and receive compensation for all or a portion of his previous unused sick leave balance accrued at the University of Florida's P.K. Yonge School.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1), Florida Statutes.

    
    

12. Petitioner bears the burden of proving entitlement to the relief requested in this proceeding. Fla. DOT v. J.W.C. Co., Inc., 396 So. 2d 778 (Fla. 1st DCA, 1981).

    
    

13. School boards in Florida must provide sick leave for members of the instructional staff. Section 230.40(3), Florida Statutes. Some sick leave accrued in other agencies or school boards may be transferred to an employee's current leave balance, provided at least one half of the cumulative leave originates in the employee's current district of employment. Section 230.40(3)(a)1., Florida Statutes. The circumstances governing sick leave transfer is governing by the rule-making powers of the district school board. Sections 230.22(2), 230.23(5), and 231.40, Florida Statutes.

    
    

14. But for Petitioner's election to receive payment from the University of Florida for his outstanding sick leave balance in 1985, he would be entitled to elect and receive the same treatment accorded Jackson and Connor, i.e., payment by Respondent for accrued leave transferred at a rate of 110 percent of his ending salary with Respondent. Unfortunately, Petitioner did elect to receive payment from the University in 1985 and thereby extinguished his leave balance as well as any right to further payment for that leave. Further, he has failed in this proceeding to show that he was accorded treatment dissimilar from that received by Jackson or Connor at the time of their transfers.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered denying Petitioner's request for transfer and subsequent compensation for sick leave from the University of Florida's P.K. Yonge School.

DONE and ENTERED this 11th day of June, 1996, in Tallahassee, Leon County, Florida.

DON W. DAVIS

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 11th day of June, 1996.

APPENDIX

In accordance with provisions of Section 120.59, Florida Statutes, the following rulings are made on the proposed findings of fact submitted on behalf of the parties.

Petitioner's Proposed Findings

Petitioner's handwritten proposed findings were unnumbered and basically restated his argument that he has been treated unfairly by what he views as a discriminatory school board rule. The findings of fact, as set forth above, address, to the extent possible, facts proposed by Petitioner.

Respondent's Proposed Findings 1.-8. Accepted.

1. Rejected, unnecessary to result.

2. Accepted.

COPIES FURNISHED:

Tom E. Massey

c/o Susan C. Massey

5160 Northeast Elliott Circle Corvallis, Oregon 97330

Thomas L. Wittmer, Esquire School Board of Alachua County 620 East University Avenue Gainesville, Florida 32601

Robert W. Hughes, Superintendent Alachua County School Board

620 East University Avenue Gainesville, Florida 32601

Frank T. Brogan, Commissioner Department of Education

The Capitol

Tallahassee, Florida 32399-0400

Michael Olenick, Esquire Department of Education The Capitol

Tallahassee, Florida 32399-0400

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 within which to submit written exceptions. You should consult with the agency that will issue the final order in this case concerning their 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: 96-001394

Orders for Case No: 96-001394