THOMAS L. BERKNER, )
vs. ) CASE NO. 78-2203
Respondent. )
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on March 2, 1979, at Orlando, Florida.
For Petitioner: Frederick B. O'Neal, Esquire and
For Respondent: Andrew B. Thomas, Esquire and
By letter dated November 15, 1978 the School Board of Orange County, Florida, Respondent, requested the Division of Administrative Hearings to assign a Hearing Officer to conduct an evidentiary hearing to determine whether the position of Program Coordinator, Title I, is a "similar position in the district at the salary schedule authorized by the School Board" to the position of Principal of Winter Garden Elementary School.
Thomas L. Berkner, Petitioner, filed an appeal in the District Court of Appeal, Fourth District, contesting his transfer from his position as Principal of the Winter Garden Elementary School to a position of Program Coordinator, Title I. Sua sponte the court relinquished jurisdiction for a period of forty- five (45) days for the purpose of an evidentiary hearing pursuant to Chapter 120, Florida Statutes to determine if the position of Program Coordinator, Title I, is a similar position to that of Elementary Principal of Winter Garden School. Discovery requested by both parties extended the forty-five days the court allowed for this proceeding; however, no prejudice has been claimed or demonstrated due to the delay.
At the hearing Petitioner called nine witnesses, Respondent called one witness, and 10 exhibits were admitted into evidence. Ruling on the motion to
strike James Gibson's response to a hypothetical question was reserved at the hearing. That motion is now granted.
Thomas L. Berkner, Petitioner, holds a continuing contract status as principal of elementary school in Orange County.
During the 1977-1978 school year Petitioner was assigned as principal of the Winter Garden Elementary School which had a student enrollment of approximately 250 and consisted of kindergarten, first and second grades only.
The Orange County School Board consolidated Winter Garden and Dillard Street Elementary Schools for the school year 1978-1979 leaving one principal for the school which retained the separate facilities, but was called Dillard Street Elementary School. The job of principal of the consolidated schools was given to the Dillard Street School principal and Petitioner was transferred to the position of Program Coordinator, ESEA Title I at the same salary he was paid as principal.
The ESEA Title I Program is a federally funded project to serve economically disadvantaged and educationally deprived or disadvantaged children in grades 1, 2, and 3 but math is extended to grades 4, 5, and 6.
The pay grade for Program Coordinator Title I was pay grade 46 and when first assigned Petitioner's personnel records reflected this pay grade (Exhibit 3). However, the records were corrected to reflect his continuing contract status and his pay grade was increased to 48 (Exhibit 4) the same pay grade for elementary school principals for schools with enrollment below 800.
Although program coordinators are on annual contract status, Petitioner does not, while serving in this capacity, lose the continuing contract status as an elementary school Principal which he acquired in 1970.
Scholastic and experience requirements for various positions in the Orange County school system are revised when these positions are advertised for applicants and generally reflect the highest qualities available in the local job market.
At the present time elementary school principals and program coordinators are required to hold a masters degree. In addition program coordinators must be certified in elementary education and supervision, and have a minimum of five years teaching experience at the elementary level. Elementary principals must be certified in elementary school administration and supervision, and have a minimum of five years teaching experience (Exhibits 5, 7, and 9).
Both principals and program coordinators perform primarily administrative functions as opposed to teaching functions. The principal is given overall responsibility for the school to which he is assigned and has certain statutory duties and authority that are not visited upon other positions. These include administrative responsibility for evaluating the educational program at his school, recommending the transfer and assignment of personnel at his school, administrative responsibility for school records, authority to administer corporal punishment and suspension of students, and perform such other duties as may be assigned by the Superintendent.
Those duties assigned by the Superintendent are contained in the Job Description, Elementary School Principal (Exhibit 7) and phrased in the lexicon of education administrators, call upon the principal to promote, develop, coordinate, formulate, involve, manage and initiate programs and relationships to optimize the effectiveness of the school.
The job description of the Program Coordinator ESEA, Title I (Exhibits
5 and 9) assigns to him responsibility for supervision of the Title I Program. The program coordinator's typical duties include interpreting the philosophy and goals of the program, assisting teachers, planning activities, participating in program planning, assisting principals and staffs, preparing and submitting reports and records, and performing other duties that may be assigned.
Both jobs involve dealing with teachers and students, supervision, and administrative functions in carrying out the program for which each is responsible. The principal carries out his duties in the school to which he is assigned and works from his office while the program coordinator is responsible for the Title I program in several schools and spends a large part of his time away from the "office" he shares with other program coordinators.
The principal has a secretary while the program coordinator must share a secretary with other program coordinators. However, one witness described the secretary at one elementary school as a school secretary and that the secretary did not work solely for the principal.
Of those 15 typical duties of an elementary school principal listed on Exhibit 7, the program coordinator performs all but 5 and they involve duties that may be described as school-oriented rather than program-oriented. Of those
7 typical duties listed on Exhibit 9, Job Description for ESEA Title I Program Coordinator, the elementary school principal performs all except serve on Title I advisory council.
Several witnesses testified that the position of principal was more prestigious than that of program coordinator, however, when all the evidence is considered it appears that prestige, like beauty, is in the eye of the beholder.
While testifying in his own behalf Petitioner averred that as a program administrator he had no administrative duties and no personnel duties. Other program coordinators testified that they did have administrative and personnel duties. Petitioner acknowledged that most of the typical duties listed on Exhibit 7 were also performed by program coordinators.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.
Petitioner proffered the testimony of witnesses who would testify that, in response to a hypothetical question, in their opinion the duties of principal and program coordinator were very dissimilar. This evidence was rejected on two grounds. First, the hypothetical question by which this testimony was predicated was not founded upon facts in evidence. Steiger v. Massachusetts Casualty Ins. Co., 273 So.2d 4 ( Fla. 3rd DCA 1973); Florida East Coast Railway Co. v. Morgan, 213 So.2d 632 (Fla. 3rd DCA 1968) . Second, the testimony proffered an opinion on the ultimate fact in issue and was hence inadmissible. Farmer v. Brotherhood of Railroad Trainmen, 258 So.2d 503 (Fla. 3rd DCA 1972).
Section 231.36 Florida Statutes provides for continuing contracts between instructional personnel and school boards and provides in pertinent part:
(3)(e) Each person to whom a continuing contract has been issued as provided herein shall be entitled to continue in his position or in a similar position in the district at the salary schedule authorized by the school board without the necessity for annual nomination or reappointment until such time as the position is discontinued, the person resigns, or his contractual status is changed as prescribed below.
(g) Any person who has previously earned continuing contract status as a supervisor or principal in the school district shall be continued in that status until such time as the position is discontinued, the person
resigns, or his contractual status is changed by mutual agreement or as prescribed below.
Petitioner attained continuing contract status as a principal in 1970 and Respondent acknowledges that petition falls within the provisions of the above-quoted statute. Respondent and Petitioner part company on the sole issue of whether the position of program coordinator is a similar position to that of principal of an elementary school of less than 800 students.
As noted in the findings above the basic requirements for each position are similar and the "typical" duties of each position are performed by the holder of the other position.
If the requirements of similarity in the statute means exactly similar as Petitioner apparently contends, then no job but principal could suffice.
This would result in taking away all flexibility from superintendents add school boards in their assignments of continuing contract personnel to enhance the efficiency of the school system. Such a strict construction of the word "similar" is not considered consonant with the intent of the legislature.
Nowhere in Chapter 230 et seq. Florida Statutes does it appear that the responsibility for the effective operation of the district school system is vested other than with the School Board. Unless the legislature intended "similar" to mean generally similar and at the same salary schedule the words following "continue in his position" to "until such time" in Section 231.36 above-quoted are redundant.
The only case cited in point is Burns v. School Board of Palm Beach County, 283 So.2d 873 (Fla. 4th DCA 1973) involving the reassignment of a principal of a junior high school on continuing contract status to the inferior position of administrative dean of a junior high school with a reduction in salary.
The court did not comment that the position of administrative dean might not be similar to the position of principal but relied solely on the salary reduction resulting from the transfer in holding that the school board was without authority to reduce Burns' salary without following procedure set out in the statute. The court stated at page 875, 876:
When a person has fulfilled the statutory qualifications entitling him to the issuance of a continuing contract and has, in fact been issued a continuing contract, he is thereby entitled to be paid at the salary for the position for which his contract has been issued. It may well be, for administrative reasons, that a school board assigns a Person under a continuing contract for a stated position to perform the duties of another position. However, the administrative decision cannot abrogate the contractual rights of a person holding a continuing contract or preclude a holder from remaining on a contract status for the position for which he is shown to be qualified.
* * *
By enacting Section 231.36, the legislature has endeavored to spell out the rights, duties and responsibilities of the school board and employees of the school system with respect to the issuance of a continuing contract and with respect to effectuating any change in such contractual status. (Emphasis added).
Mohr v. Dade County School Board, 237 So.2d 337 (Fla. 3rd DCA 1974) involved a claim that appellants had obtained de facto continuing contract status and could not be demoted from guidance counsellor to classroom teachers without cause. In sustaining the trial judge's dismissal of appellant's complaint for failure to state a cause of action the court, after quoting Section 231.36(3)(e) stated at p. 340:
Appellants agree that thirty guidance counsellor positions have lawfully been discontinued. They claim a right to a "reasonable, rational policy" in
determining whether each of them should
be included in the thirty. The above-quoted statute seems to negate such a right.
Furthermore, even if the courts should create the right now claimed it is difficult to see how judges are better qualified than school administrators to supervise a school system. (Emphasis supplied)
From the foregoing it is concluded that the positions of elementary school principal pay grade 48, and ESEA Title I Program Coordinator, pay grade 48, are similar positions in the Orange County school system. It is further concluded that Thomas L. Berkner has continuing contract status as an elementary principal in the Orange County school system, and the job protection concomitant therewith. Discontinuance of all positions of Program Coordinator in the Orange county school system would result in no change in Petitioner's continuing contract status. It is therefore,
RECOMMENDED that Thomas L. Berkner's petition to be reassigned to a position of Elementary School Principal in the Orange County school system be DENIED.
DONE and ENTERED this 9th day of April, 1979, in Tallahassee, Florida.
K. N. AYERS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301
Frederick B. O'Neal, Esquire Winifred J. Sharp, Esquire Johnson, Motsinger, Trismen
& Sharp, P.A.
Andrew B. Thomas, Esquire David Brown II, Esquire Rowland, Bowen & Thomas P.A.
