STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DORIS FAYE RAYBURN, )

)

Petitioner, )

)

vs. ) CASE NO. 78-224

) SCHOOL BOARD OF LEON COUNTY, ) FLORIDA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held in the above styled cause in Room 104, Collins Building, Tallahassee, Florida, beginning at 9:30 a.m., April 11, 1978, before Delphene C. Strickland, Division of Administrative Hearings, Department of Administration.

APPEARANCES

For Petitioner: Joyce Davis, Esquire

Steven Seliger, Esquire

Legal Services of North Florida, Inc. 822 North Monroe Street

Tallahassee, Florida 32303

For Respondent: C. Graham Carothers, Esquire

Ausley, McMullen, McGehee, Carothers & Proctor

Post Office Box 391 Tallahassee, Florida 32302

ISSUE

Whether Petitioner Rayburn should have been re-nominated and reappointed by Respondent as a teacher aide.

FINDINGS OF FACT

1. Petitioner, Doris Faye Rayburn was employed by the School Board of Leon County, Florida from 1973 to 1977: 1973-74 teacher aide, Nims Middle School; 1974-75 teacher aide, Nims Middle School; 1975-76 secretary/bookkeeper, Nims Middle School, later transferred during the school year to a teacher aide position at Nims Middle School; 1976-77 teacher aide, Nims Middle School.

   
   

2. She was not reappointed for the 1977-78 term and thereupon filed a grievance procedure and then a petition for this administrative hearing.

   
   

3. Petitioner's contract of employment as a teacher aide each year was for

   180 days and included the right to participate in the State Personnel Retirement

   System to accumulate sick leave, and participate in the payroll deduction plan for 12 months insurance coverage.

   
   

4. Thirty-six of the 165 teacher aides employed by the School Board in 1976-77 were not reemployed including Petitioner. The procedure for employment of teacher aides is by a recommendation from the Principal to the School superintendent, a nomination by the Superintendent and subsequent approval by the School Board. This procedure takes place each year for each teacher aide.

   
   

5. Petitioner was not promised reemployment and was not reemployed. The principal testified that his decision not to recommend Petitioner for reemployment was not based alone on her comments to the Superintendent's wife or for things she had said concerning the operation of the school, although he was aware of her activities. There were some complaints about Petitioner "over- stepping" her job and posing as a counselor. After the expiration of Petitioner's last contract two assistant principals urged the Principal not to recommend Petitioner for future employment.

   
   

6. Petitioner satisfied at least two guidance counselors with whom she worked. She is active and interested in school activities. Petitioner feels that she was not reappointed because of things she said concerning the school and its policies. She wanted to be reappointed and had so planned.

   
   

7. Petitioner contends:

   
   

   1. Petitioner was denied employment as a result of exercising her first amendment right of freedom of speech. Mrs. Rayburn voiced her general concerns about the quality of education provided by the school system. These comments were within her right as a public employee, parent and citizen to publicly comment on events of community interests and her speech did not disrupt the efficiency of providing educational services.

      
      

   2. Section 231.141, Florida Statutes, gave Mrs. Rayburn an objective expectation in her employment as a teacher aide, protected by the fourteenth amendment.

      
      

   3. That she had "de facto" tenure and should have been reemployed.

      
      

8. Respondent contends:

   
   

   1. Petitioner was a "non-instructional employee" and not entitled to tenure under the statutes.

      
      

   2. The fact that Mrs. Rayburn had been appointed to four previous years and the fact that 78 percent of the 1976-77 teacher aides were reemployed did not give Petitioner a constitutionally protected interest in continuing employment.

      
      

   3. That the incident of the comments Petitioner made regarding the school policy to the School Superintendent's wife was not constitutionally protected speech and that there is no showing that the Superintendent's decision not to again nominate her for employment as a teacher aide was related in any way to any speech or communication by Petitioner.

      CONCLUSIONS OF LAW

      
      

9. Section 231.36(3)(a), F.S., provides in part:

   
   

   231.36 Contracts with instructional staff.-

   
   

   (3)(a) The school board of each district shall provide continuing contracts as prescribed herein. Each member of the instructional staff, excluding supervisors and principals, in each district school system, except in districts operating under local, special or general tenure laws with stated population application, who:

   1. Holds a regular certificate based at least on graduation from a standard 4-year college, or as otherwise provided by law;

   2. Has completed 3 years of service in the same district of the state during a period not in excess of 5 successive years, such service being continuous except for leave duly authorized and granted;

   3. Has been reappointed for the fourth year; and

   4. Has been recommended by the superintendent for such continuing contract based on successful performance of duties and demonstration of professional competence. . .

   
   

10. Section 231.14, F.S., provides:

    
    

    231.14 Certificate required.- No person shall be employed to serve in an instructional capacity as a regular or part-time teacher in the public schools of the state who does not hold a valid certificate to teach in Florida, granted or recognized pursuant to law under regulations of the state board; nor shall any school board employ, contract with, or pay any person a salary for instructional services who does not hold such a valid certificate, except for employment pursuant to s. 231.15 and under emergency conditions as provided in s. 236.0711. Previous residence in Florida shall not be required as a prerequisite for any person holding a valid Florida certificate to serve in an instructional capacity in schools of the state.

    
    

11. Section 231.141, F.S., provides:

    
    

    231.141 Teacher aides.- School Boards are encouraged to appoint teacher aides to members of the instructional staff in the primary grades, kindergarten, and grades one through three, in order to increase the number of personnel assisting in the classroom and to

    aid members of the instructional staff in such grades in carrying out their instructional and professional duties and responsibilities. The school board may appoint teacher aides to assist members of the instructional staff in other grades. A teacher aide shall not be required to hold a teaching certificate, but shall be required to attend the training program developed pursuant to subsection 230.2311(6). A teacher aide, while rendering services under the supervision of a certificated teacher, shall be accorded the same protection of laws as that accorded the certified teacher. Paid teacher aides employed by a school board shall be entitled to the same rights accorded noninstructional employees of the board.

    
    

12. Under the foregoing statutes, those entitled to tenure under the Florida School Code are teachers who have (a) a teacher's certificate, (b) completed three years of service in the same school or district, (c) been reappointed for a forth year, (d) been recommended by the superintendent of schools to the School Board for a continuing contract.

    
    

13. Teacher aides are not "certified" personnel and Petitioner does not have a teaching certificate. Continuing contracts are issued only to instructional staff and Petitioner is not "instructional staff". Petitioner has not been recommended for a continuing contract.

    
    

14. Petitioner could not have had "de facto" tenure. No action was taken by the School Board to give teacher aides continued employment and her former employment was by contract with specific expiration dates.

    
    

15. There is no showing that anything that Petitioner said to the wife of the School Superintendent or to any other person caused her not to be reemployed. Many other teacher aides were not reemployed.

RECOMMENDATION

Dismiss the petition.

DONE AND ENTERED this 9th day of June, 1978, in Tallahassee, Florida.

DELPHENE C. STRICKLAND

Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Joyce Davis, Esquire Steven Seliger, Esquire

Legal Services of North Florida, Inc. 822 North Monroe Street

Tallahassee, Florida 32303

C. Graham Carothers, Esquire Ausley, McMullen, McGehee, Carothers & Proctor

Post Office Box 391 Tallahassee, Florida 32302

Michael Dodson, Esquire Post Office Box 391 Tallahassee, Florida 32301

Docket for Case No: 78-000224

Orders for Case No: 78-000224