Judges: DELPHENE C. STRICKLAND
Agency: Department of Education
Latest Update: Feb. 18, 1977
Summary: Whether actions taken by the Hillsborough County School Board prior to December 1, 1974, were sufficient to achieve comparability pursuant to the provisions of Title I of the Elementary and Secondary Education Act of 1965, as amended. whether budgeting and establishing positions by the School Board is sufficient to meet the test of comparability.Respondent wrongfully witheld funds under Title I because Petitioner substantially complied with all aspects of the federal act.
75-1164STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
HILLSBOROUGH COUNTY SCHOOL BOARD, )
)
Petitioner, )
)
vs. ) CASE NO. 75-1164
)
DEPARTMENT OF EDUCATION, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice a Public hearing was held before Delphene
Strickland, Hearing Officer, Department of Administrative, Division of Administrative Hearings, in Tallahassee, Florida, on October 31, 1975, at 11:00 a.m. in Room 101, Collins Building.
APPEARANCES
For Petitioner: W. CROSBY FEW, Esquire
Counsel, Hillsborough County School Board Suite 405, 725 Kennedy Building
Tampa, Florida 36602
For Respondent: GENE T. SELLERS, Esquire
Counsel, State Board of Education
400 Barnett Bank Building Tallahassee, Florida 32304
ISSUES
Whether actions taken by the Hillsborough County School Board prior to December 1, 1974, were sufficient to achieve comparability pursuant to the provisions of Title I of the Elementary and Secondary Education Act of 1965, as amended.
whether budgeting and establishing positions by the School Board is sufficient to meet the test of comparability.
FINDINGS OF FACT
The Respondent, through its compensatory education section, has the responsibility of administering the Title I program, as called for in the Elementary and Secondary Education Act of 1965, as amended, and for dispensing federal-funds to the various school districts throughout the state of Florida.
Petitioner, Hillsborough County School Board, is a large urban school district of over 100,000 children. It has some 11,000 employees and 6,000 instructional employees. Employees are allocated on the formula of a per pupil basis, and numerous adjustments must be made after the fall opening of the schools because of major shifts of pupils over a summertime. Allocations, in order to comply with Title I, is a task which requires a great deal of attention, particularly in the fall of the school year.
The following sequence of events are pertinent:
The Hillsborough County Title I application for FY '75 was approved initially on the basis of the assurance which was signed by the District School Superintendent indicating that comparability existed in the Hillsborough County Title I schools and would continue to be maintained throughout the 1974-75 school year.
A memorandum dated September 27, 1974, was signed by Halley B. Lewis, Jr., Administrator, Compensatory Education, and was circulated to all local school districts in Florida confirming that the U.S. Commissioner of Education was designating October 1, 1974, as the date for collecting data on which a comparability report for FY '75 would be based.
On October 7 and 8, 1974, the Compensatory Education Section in the Florida Department of Education sponsored a statewide meeting of Title I, ESEA personnel in Orlando. One of the sessions was devoted to comparability.
On November 7 and 8, 1974, the Compensatory Education Section of the Florida Department of Education called a meeting for District School Superintendents, Finance Officers, Federal Program Directors and ESEA, Title I Coordinators from the eleven (11) most populous counties in Florida at the request of one (1) or more District School Federal Program Directors. One- half of the program--which amounted to one-half day--was devoted to comparability as outlined in Section 116.26 of the regulations
as promulgated in the Federal Register, Volume 38, Number 124, for Thursday, June 28, 1973.
On November 20, 1974, in a memorandum from Woodrow
J. Darden marked "URGENT", the Respondent advised all Superintendents, the Finance Officers and Title I Coordinators that the comparability reports were due on or before December 1, 1974. A part of said memorandum stated:
"If the comparability report submitted by your district did not meet the measures to determine comparability as outlined in the Federal Regulations, administrative or Board action for the purpose of reallocating resources should be taken on or before December 1, 1974, to bring the schools into compliance."
On November 27, 1974, a letter from the Hillsborough County School District, dated November 26, 1974, and an original comparability report were received by the Compensatory Education Section of the Florida Department of Education.
On December 2, 1974, a letter from Hillsborough County School District dated November 27, 1974, and a revised comparability report were received by the Compensatory Education Section in the Florida Department of Education.
A letter, dated December 5, 1974, was forwarded to the Hillsborough County School District by the Compensatory Education Section requesting the dates that the personnel authorized by the School Board on November 26, 1974, reported for work.
The Hillsborough County School District, in a letter dated December 10, 1974, submitted to the Compensatory Education Section a partial report detailing the beginning employment dates of some of the personnel authorized by the Hillsborough County District School Board on November 26, 1974, for the purpose of meeting comparability requirements.
On December 13, 1974, Ralph D. Turlington, Commissioner of Education, Florida Department of Education, received a telegram from Robert B. wheeler, Acting Deputy Commissioner for School Systems, U.S. Office of Education:
"This is to remind you that your agency is required under Title I of the Elementary and Secondary Education Act not to make any further payments as of December 1 to any local educational agency that has not as of that date complied with the comparability requirements in 45 CFR 116.26 and to notify
each such agency not to obligate any Title I funds after that date. Compliance with this requirement is subject to Federal audit.
Your continued cooperation is appreciated."
The Hillsborough County School District, in a letter dated December 17, 1974, submitted a final report to the Compensatory Education Section detailing the actual beginning employment dates of personnel authorized by the Hillsborough County District School Board on November 26, 1974, for the purpose of meeting comparability requirements.
The Director of the Elementary and Secondary Education Division in the Florida Department of Education notified the Hillsborough County School District that ESEA, Title I funds were being withheld from December 1 through December 16, 1974.
A letter from the Compensatory Education Section was sent to the Hillsborough County School District on December 20, 1974, for the primary purpose of reaffirming the necessity to maintain comparability.
The Compensatory Education Section of the Florida Department of Education, in a letter dated January 3, 1975, notified the Hillsborough County School District of accounting procedures to be followed for the period of suspension of ESEA, Title I funds from December 1, 1974 through December 16, 1974.
The Hillsborough County School District sent a letter dated January 8, 1975, to Commissioner Ralph D. Turlington, Florida Department of Education, along with the documentation they used as a basis for requesting "a special hearing to appeal withholding ESEA, Title I funds for Hillsborough County schools from December 1, 1974 through December 16, 1974."
On January 24, 1975, the Commissioner of the Florida Department of Education wrote the district school superintendent in Hillsborough County granting their request for a hearing to appeal the withholding of Title I, ESEA funds.
Petitioner, Hillsborough County School Board, applied for and received Title I funds for the school year 1974-75. It became apparent from the memorandum marked "URGENT" from the Department of Education, dated November 20, 1974, that some reallocation was necessary. On November 26, 1974 the Hillsborough County School Board authorized additional positions budgeting funds for the positions and on November 22, 1974 filed its report choosing the option to hire additional people into the Title I schools rather than shifting personnel who were already working in the non-Title I schools.
By letter dated December 18, 1974, the Respondent notified Petitioner funds were being withheld for the period of December 2 through December 16, 1974, for the reason that the additional personnel required were not hired and all did not report to work until December 16, 1974. Some $63,000 of additional local funds were required to hire the additional personnel.
Funds withheld from Petitioner in excess of $153,000 are Involved in this hearing.
Petitioner contends:
That it acted in good faith.
That the Board action on November 26, 1974, budgeting, approving and establishing the additional positions was compliance both with the federal statutes and regulations and with the requirements of the memorandum from Mr. W. J. Darden of the Department of Education dated November 20, 1974.
Respondent contends:
That comparability is a continuous state of being, that it not only must be achieved, but must be maintained throughout the year;
That upon collection of the data on October 1, it is incumbent upon the school board not only to approve and establish the additional positions but also to see that the persons are hired and in place, on the job, on or before the filing of the report on December 1. The Respondent's position is that the last person necessary to achieve comparability was not in place on the job in Hillsborough County until December 16, 1974, and therefore it had no alternative but to withhold the funds
during the period December 2, 1974 through and including December 16, 1974.
The statute under consideration is 20 USCA Sec. 241(e): "(a) A local educational agency may receive
grant under this subchapter for any fiscal year only upon application therefore approved by the appropriate State educational agency, upon its determination (consistent with such basic criteria as the Commissioner may establish)--...
(3) That ... (c) state and local funds be used in the District of such agencies to provide services in project areas which, taken as a whole, are at least comparable to services being provided in areas in such districts which are not receiving funds under this subchapter: . . . Provided further, That each local educational agency receiving funds under this subchapter shall report on or before July 1, 1971 and on or before July
1 of each year thereafter with respect to its compliance with this clause; ..."
The regulation under consideration which was promulgated to implement the statute is 45 CFR 116.26, a part of which reads:
"(a) A State educational agency shall not approve an application of a local educational agency for a grant under section 141(a) of the Act, or make payment of title I funds under a previously approved application of such agency, unless that local educational agency has demonstrated, in accordance with paragraph (c) of this section, that services provided with State and local funds in title I project areas are at least comparable to the services being provided with State and local funds in schools serving attendance areas not designated as title I project areas. Such approval shall not be given unless the local educational agency also provided the assurances and the additional information required by paragraph (e) of this section with respect to the maintenance of comparability. For the purpose of this
section, State and local funds include those funds used in the determination of fiscal effort in accordance with 116.45."
116.26(c)
"If any school serving a title I project areas is determined not to be comparable under this paragraph, no further payments of title I funds shall be made to the local educational agency until that agency has taken the action required by paragraph (k)(1) of this section to overcome such lack of comparability."
Regulation Sec. 116.26(k)(1) in part reads: "that such local educational agency has allocated or reallocated sufficient addi- tional resources to title I project areas so as to come into compliance with such requirements and has filed a revised comparability report reflecting such compliance..."
The Hearing Officer further finds:
That both Petitioner and Respondent have demonstrated a dedication and concern for the schools within their respective jurisdictions;
That both Petitioner and Respondent have been diligent in trying to act within the provisions of the subject statute and regulations;
That the personnel of both the Petitioner and Respondent are familiar with the requirements of the statute and regulation but the federal requirements are subject to different interpretations by reasonable persons. There was no meeting of the minds of the parties from the federal, state and local governmental units as to the required method of compliance with the laws.
CONCLUSIONS OF LAW
The provisions of Title 20, Sec. 241(e)(3) require that State and local funds be used to provide services in project areas which are at least comparable to service being provided in areas
which are not receiving funds. The regulation implementing the statute is Regulation 116.26.
Neither the statute nor the regulation define exactly how comparability may be achieved. It appears inescapable that the authorized allocation of instructional staff and authorization of budgetary transfer together with directions to the staff to effectuate the authorization and the subsequent continuous endeavor to achieve comparability and its achievement is compliance with the foregoing statute. The memorandum of November 20, 1974 from Mr. Darden indicated that Board action should be taken by December 1, 1974. Action was taken. Consistent with the "Substantial Compliance Rule" as defined in Inter-Southern Life Insurance Company v. Cochran, 259 Ky. 677, 83 S.W. 2d 11, 14. The Petitioner Board had done substantially all it was required to do to effect change and the ministering acts of the Petitioner's employees only remained to be done and the change would be effected. It appears that the doctrine of "Substantial Performance" which protects against forfeiture for technical inadvertence or trivial variations or variations in performance should be considered in this case. See Sgarlat v. Griffith, 349 Pa. 42, 36 A. 2d 330, 332. Substantial performance exists where there has been no willful departure and the dictates of the statute and regulation has been honestly and faithfully performed in its material and substantial particulars and the only variance from the strict and literal performance consits of technical or unimportant omissions or defects. Here the variance is minimal when considered in light of the overall task.
It further appears that the Respondent Department of Education could and should have examined proceedings of the Board meeting of November 20, 1974 and determined that such meeting was held pursuant to the clear suggest ion of the Respondent that such action be taken "to bring the schools into compliance" and that when budgetary arrangements then were made so that sufficient staff could be employed and the employing personnel was notified to employ, the Respondent should have determined that such Board action was compliance with the statute and regulation. The Department of Education has the discretion to function in a reasonable and practicable manner.
In summary it is the conclusion of this Hearing Officer that the Petitioner by its Board action pursuant to the Department of Education memorandum dated November 20, 1974, complied with or substantially complied with Title 20 Sec. 241(e) and Regulation
116.26 during the period of time from December 2, 1974 through
December 16, 1974. Such compliance is all that is necessary to receive Title I funds.
RECOMMENDED ORDER
The decision of the Respondent to withhold Title I funds during the period of December 1, 1974 to and including December 16, 1974, should be rescinded.
DONE and ORDERED this 16th day of December, 1975.
DELPHENE C. STRICKLAND
Hearing Officer
Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
(904) 488-9675
COPIES FURNISHED:
Honorable Ralph D. Turlington Commissioner of Education The Capitol
Tallahassee, Florida 32304
W. Crosby Few, Esquire
Suite 405, 725 Kennedy Building
Tampa, Florida 36602
Gene T. Sellers, Esquire
400 Barnett Bank Building Tallahassee, Florida 32304
================================================================= AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA DEPARTMENT OF EDUCATION
HILLSBOROUGH COUNTY SCHOOL BOARD,
Petitioner,
vs. CASE NO.: 75-1164
DEPARTMENT OF EDUCATION,
Respondent.
/
ORDER
PURSUANT TO NOTICE, a public hearing was held before Delphene C. Strickland, Hearing Officer, Department of Administration, Division of Administrative Hearings, in Tallahassee, Florida on October 31, 1975, at 11:00 a.m., in Room 101, Collins Building.
APPEARANCES
For Petitioner: W. Crosby Few, Esquire
Counsel, Hillsborough County School Board
Suite 405, 725 Kennedy Building
Tampa, Florida 33602
For Respondent: Gene T. Sellers, Esquire
Counsel, State Board of Education
400 Barnett Bank Building Tallahassee, Florida 32304
ISSUES
WHETHER ACTIONS TAKEN BY THE HILLSBOROUGH COUNTY SCHOOL BOARD PRIOR TO DECEMBER 1, 1974, WHERE SUFFICIENT TO ACHIEVE
COMPARABILITY PURSUANT TO THE PROVISIONS OF TITLE I OF THE ELEMENTARY AND SECONDARY EDUCATION ACT OF 1965, AS AMENDED; AND,
WHETHER BUDGETING AND ESTABLISHING POSITIONS BY THE SCHOOL BOARD IS SUFFICIENT TO MEET THE TEST OF COMPARABILITY.
FINDINGS OF FACT
On the 16th day of December, 1975, Mrs. Delphene C. Strickland, Hearing Officer, released her formal findings regarding this hearing. The findings were reached by Mrs. Strickland after hearing oral presentations on October 31, 1975, by Counsel and witnesses for the Petitioner, and Counsel and witnesses for the Respondent.
In the order written by Mrs. Strickland, it was recommended to the Florida Commissioner of Education that " . . . The decision of the Respondent to withhold Title I funds during the period of December 1, 1974, to and including December 16, 1974, should be rescinded."
The transcripts of the hearing and the documents presented into evidence at the hearing are a matter of public record and were considered as background information by the Florida Commissioner of Education in arriving at a Final Order in this matter.
FEDERAL LEGAL REQUIREMENTS THAT MUST BE FOLLOWED IN CONCLUDING THIS TYPE OF HEARING PROCESS AT THE STATE LEVEL
Section 425.(a) of U.S. Public Law 93-380, signed into Law by the President of the United States on August 21, 1974, mandates that the following procedure be followed in concluding a hearing in which the applicant or recipient is aggrieved by the final action of the State education agency, and alleging a violation of State or Federal Law, rules, regulations or guidelines governing the applicable program.
Section 425.(a) of U.S. Public Law 93-380 mandates, and I quote in pertinent part:
" . . . the State education agency shall issue a written ruling, including reasons therefore. If it determines such action was contrary to Federal or State Law, or to the rules, regulations, and guidelines governing such
applicable program, it shall rescind such final action."
In keeping with the above quoted Section of U.S. Public Law 93-380, acting as Commissioner of Education for the State of Florida, I hereby issue a ,ruling on this matter and include my reasons, therefore.
FINAL ORDER
I hereby rescind the action taken by the Florida Department of Education in withholding Title I, ESEA funds from the Hillsborough County School District for the period of time from December 1, 1974, through December 16, 1974.
REASONS
As Commissioner of Education for the State of Florida, I felt that it was my duty to read the Law, rules, regulations and guidelines as they were grouped together into one category of expenditures per child. If that is the case, it may be that the Hillsborough County School District was comparable on the first submission under a literal interpretation of the statute.
However, I can not rule on that since I must rule within the confines of the material presented at this hearing.
Since corrective action was apparently needed either under the, statutes or under the regulations, the question remained as stated under ISSUES earlier in this order.
In the hearing, the Respondent contended, and I quote in pertinent part, " . . . that comparability is a continuous state of being, that it not only must be achieved, but must be maintained throughout the year . . ."
It is my opinion that any system, such as comparability, that must be maintained throughout the year must provide for a reasonable period of time to hire staff members to keep the proper level of compliance. For example, suppose a number of staff members were suddenly taken ill in a specific Title I school in February or March, and had to suddenly drop out of teaching. They should be replaced as expeditiously as possible, but they certainly could not be replaced over night. In the case before me, the Hillsborough County School District knew that remedial action was necessary based on the information placed in their original Comparability Report. However, due to the length of time it took to compute the complex data that was gathered for the
purpose of determining the necessary specific corrective action, it was not until approximately one (1) week prior to November 26, 1974, that the Hillsborough County School District calculated the specific details of the specific actions that must be taken to make the appropriate corrections. The matter was taken to the Hillsborough County School Board on November 26, 1974, and the School Board immediately authorized $68,000.00 to hire additional personnel to place in the Title I schools. The Hillsborough County School District moved to expeditiously hire and place the necessary personnel. Most of the staff members were hired and went to work within a few days after the School Board meeting.
Further, within approximately two weeks, all of the necessary staff members were at work helping children.
It is my opinion as Commissioner of Education for the State of Florida, that the Hillsborough County School Distract moved as swiftly as possible to presented in the written and oral testimony before the Hearing Officer and to draw a conclusion from the facts before me.
The statutory language set forth in Public Law 91-230, Section 109(3) reads in pertinent part a follows:
"(c) State and local funds will be used in the district of such agency to provide services in project areas which, taken as a whole, are at least comparable to services being provided in areas in such district which are not receiving funds under this title . . ."
Using the statute as a guide, I analyzed the data included in the original Comparability Report submitted by the Hillsborough County School District and the revised Comparability Report following their additional allocation of resources.
When I used the statute as a guide, I found that when the Title I project area schools, taken as a whole, were compared to the non-Title I schools, taken as a whole, the Title I project area schools had, on the average, a higher per pupil base salary expenditure, and more funds per pupil for other instructional materials and supplies. However, in the category of average
pupil-staff ratio, the students attending non-Title I schools had, on the average, a slightly smaller pupil-staff ratio than did the students attending non-Title I schools.
Average | Average Per Pupil | Average Other |
Pupil-Staff | Base Salary | Instructional |
Ratio | Expenditure | Expenditures |
Title I Non | Title I Non | Title I Non |
y 17.3 17.1 $431.21 $426.36 64.98 58.93 |
Tabulated below are comparisons of the 1974-75 Comparability Reports for Hillsborough County total countywide average for the Title I elementary schools with the total countywide average for the non-Title I elementary schools:
Original Comparabilit Submission
Revised Comparability Submission Following Additional
Allocation 17.1 17.1 $432.74 $426.32 64.98 58.93
Even though the pupils attending the Hillsborough County School district's non-Title I schools had, on the average, slightly smaller pupil-staff ratios, the term "taken as a whole" may mean that all three categories should be correct and henceforth maintain the required degree of services to pupils attending schools in the Title I project area.
DONE AND ORDERED this 15th day of January, 1976.
RALPH D. TURLINGTON
Commissioner of Education State of Florida
Copies to:
W. Crosby Few, Esquire
Counsel, Hillsborough County School Board Suite 405, 725 Kennedy Building
Tampa, Florida 33602
Dr. Raymond Shelton, Superintendent Hillsborough County School District Post Office Box 3408
Tampa, Florida 33601
Gene T. Sellers, Esquire
Counsel, State Board of Education
400 Barnett Bank Building Tallahassee, Florida
Woodrow J. Darden, Director Division of Public Schools Florida Department of Education Knott Building
Tallahassee, Florida 32304
Ted J. Meredith, Comptroller Florida Department of Education Knott Building
Tallahassee, Florida 32304
Docket for Case No: 75-001164
Orders for Case No: 75-001164
| Issue Date |
Document |
Summary |
|
Jan. 15, 1976 |
Agency Final Order
|
|
|
Dec. 16, 1975 |
Recommended Order
|
Respondent wrongfully witheld funds under Title I because Petitioner substantially complied with all aspects of the federal act.
|
