vs. ) CASE NO. 81-3246
Respondent. )
Pursuant to notice, an administrative hearing was held before P. Michael Huff, duly designated Hearing Officer of the Division of Administrative Hearings on June 14, 1982, in Fort Lauderdale, Florida.
For Petitioner: Donald J. Vestal, Esquire
For Respondent: Edward J. Marko, Esquire
This cause was initiated on a request for a 120.57(1) administrative hearing filed by Petitioner, Russell Freeman. The Petitioner, at times pertinent hereto, was an employee of the Respondent School Board of Broward County, Florida, serving in the capacity of a "coordinator-9560," meaning that he was a coordinator of special student education for the physically handicapped. The Petitioner contends that his continuing contract as a coordinator of the physically handicapped was improperly discontinued due to a reorganization of the exceptional education program for Broward County, whereby he maintains that his position was improperly abolished. Since the controversy arose, the Petitioner has voluntarily retired after having served from the 1977 school year through part of the 1982 school year in the position of classroom teacher after the abolition of his coordinator position. He agrees that he does not seek reinstatement in the coordinator's position, but rather seeks reinstatement of his full retirement benefits in the amounts to which he would be entitled had he been maintained in his position of coordinator of special student education through the date of his retirement.
At the hearing the Petitioner presented one witness, consisting of the Petitioner himself, and eight (8) exhibits. All Petitioner's exhibits, except Exhibit 3, were admitted into evidence. The Respondent presented two witnesses, Dr. Frank J. Scalise and Dr. Benjamin F. Stephenson. The Respondent presented seven (7) exhibits, all of which were admitted info evidence.
At the conclusion of the proceeding the parties elected to obtain a transcript of the proceeding and exercised the right to file proposed findings of fact and conclusions of law, also waiving the thirty (30) day requirement for rendition of the Recommended Order pursuant to Rule 28-5.402, F.A.C.
The issue in this proceeding concerns whether the Petitioner's position of coordinator of exceptional education was properly abolished and whether his continuing contract in such a position was properly discontinued due to a reorganization of the School Board's exceptional education department and, concomitantly, whether he should be reinstated to that position to the extent of receiving appurtenant retirement benefit entitlements.
The Petitioner, Russell Freeman, was employed by the School Board of Broward County, Florida, as coordinator of exceptional student education for the physically handicapped and was under a continuing contract status for that position for the 1975-1976 school year. He had been employed by the School Board of Broward County since 1969.
The Respondent is the School Board of Broward County, Florida, a government agency charged with employing, regulating, supervising and managing the practices, operations and tenure of instructional and non-instructional personnel for the Broward County Public School System.
During the 1975-1976 school year, the Respondent employed individual coordinators for exceptional education, each assigned to cover a single student exceptionality. The Petitioner was employed as such a coordinator, serving in the capacity of coordinator for physically handicapped students. There were four such coordinators, specializing in various student exceptionalities, one of whom was the Petitioner. During that school year, the School Board's Administrative Staff conducted a review of the exceptional student education program on a county-wide basis to determine what services were being rendered to exceptional students with a view toward determining the best method and practice to deliver appropriate educational services to the various categories of exceptional students considering problems posed by the dense population in the county and the high and growing population of exceptional students. At the time this review was conducted, the exceptional student population in the county school system was approximately 15,000. The Petitioner was responsible for coordination of the provision of exceptional education services to approximately 5,060 of these students, approximately 5,000 being in a speech handicap program and approximately 60 being in a physical motor handicap program. The Petitioner, as were the other three former coordinators, was responsible for the students in his particular category of exceptional education for the entire county.
With the advent of United States Public Law, 94-142, the School Board Staff charged with conducting the exceptional student program for Broward County was required to approve, promulgate and implement individualized educational plans (IEPs) for each exceptional student in the county. This would have necessitated each of the four coordinators attempting to appropriately oversee the promulgation, drafting and implementation of an individualized educational plan for each of the 2,000 to 5,000 students under his supervision (in the Petitioner's case 5,060 students). The School Board and Administrative Staff became concerned that this task and service could not be provided students on an adequate basis from a centralized organization, wherein each coordinator had several thousand students for which he was mandated to implement such an I.E.P.
Accordingly, the School Board retained the services of an expert consultant in the field of exceptional education, Dr. Sage, who ultimately prepared a report, the thrust of which was a recommendation that the School Board decentralize the provision of exceptional education services and assign a coordinator who was responsible for all types of exceptional student (rather than one category) for a smaller geographical area than the county as a whole. This report, and she consultant who prepared it, recommended, and Dr. Scalise, in his testimony for the Respondent, established that the provision of exceptional educational services, including the preparation and use of appropriate individualized educational plans could be better performed if one coordinator had less students and a smaller geographical area under his "jurisdiction." With a view toward this goal, the School Board began deliberation on a reorganization plan for the provision of exceptional educational services.
Dr. Scalise at the time was one of the four former coordinators. He was asked to advise the School Board regarding this reorganization. It was felt by Dr. Scalise, others on the exceptional educational staff, and the Board, that because of the size of the population in Broward County and the population of exceptional students as well as the geographic size of the county that it was not possible for the former coordinators to each serve the entire county for a single exceptional educational category. The kind of service envisioned by Public Law 94-142 could not he provided unless coordinators were qualified to supervise all exceptionalities in a decentralized fashion, being responsible for a smaller geographical area and a smaller number of students.
Dr. Scalise, in his advisory capacity to the School Board felt that a decentralized exceptional education supervisory operation would improve the quality of services rendered to exceptional students. Accordingly, with a view toward the recommendation in this report, as well as his own experience in operation of the mentally handicapped exceptional student program, Witness Scalise recommended that the county consider decentralizing the exceptional education program so that an exceptional student coordinator would be assigned to handle the entire scope of the exceptional student program and be appropriately qualified, for such, within each of four geographic areas of the county. After due deliberation, the School Board, on April 8, 1976, voted to implement a reorganization of the exceptional education office or department and, thus, accept Dr. Scalise's recommendation that the provision of exceptional student services be decentralized.
Formerly, the Director of Exceptional Student Education for the entire county had to approve the eligibility of each student who entered or exited the exceptional student program and had to approve any significant change in the students individualized education plan required by Public Law 94-142. He, thus, had to supervise the eduational plans for each of approximately 15,000 students. When the decentralization plan was inaugurated the four new area coordinators who were ultimately hired were given the responsibility, because of their background, experience and qualifications in special education to approve the eligibility of each student within their own geographical area, rather than all plans having to be approved by one director for the entire county. Witness Scalise demonstrated that, based upon his experience as director of the entire program after the reorganization was implemented, that decentralized administration of exceptional education of four geographical areas of the county permitted more efficient monitoring and delivery of educational services to exceptional students than had the earlier system under the former four "at large" coordinators who had to visit each of many schools where students within their particular category of exceptionality were assigned. With the advent of the new organization, the "geographical" exceptional education coordinators work
directly with the assistant county superintendent for their geographical areas in establishing programs, selecting teachers, determining curricula, the types of materials, supplies and other aids, and concomitant preparation of exceptional student program budgets for their particular geographical areas.
The coordinator exceptional education for that area had to assist in the handling of due process proceedings, with obtaining transportation for exceptional students to various special programs. In short, the "new coordinator" has to handle the total scope of the delivery of exceptional education for that geographical area. Under the former system, only one person, the Director, was responsible for and handled the entire task of providing all needs of exceptional education, whereas under the new organization, four qualified people were hired to perform those varied tasks.
With the approval by the School Board of the decentralized organization plan, the four new positions were duly advertised and four new coordinators were hired. All but one were certified in at least one area of exceptional education. Witness Scalise was hired as the director of the exceptional education program for the county and is certified in "varying exceptionalities," which is an overview certification issued by the State Department of Education certifying that the holder, Witness Scalise, has some qualification in all areas of exceptional student education. The philosophy or purpose behind the School Board's reorganization of this department was thus to better and more efficiently provide exceptional education services to a high population of exceptional students which has grown since the year in question to number approximately 20,000 students at the time of the hearing.
The testimony of Dr. Stephenson corroborates that of Dr. Scalise and establishes that a new job description for these new coordinator positions was created with new qualifications. The School Board then openly advertised the new positions in accordance with its rules. The Petitioner applied for one of those new positions and was unsuccessful. Dr. Stephenson's testimony was uncontradicted in establishing that the Petitioner, Mr. Freeman, was not possessed of all of the qualifications necessary in order to be considered for the new position.
The Petitioner's continuing contract, which is the subject of this proceeding, provides that he is to be placed in the position of "coordinator- 9560" at a salary of $21,450 per year with the beginning date being July 1, 1973 and the ending date 1984. The contract, however, provides that if the School Board adopts a lower salary schedule than the contract salary for the immediate prior year this may be done provided 15 days notice are provided the teacher (the Petitioner) at which point he may accept such salary or decide not to accept it and resign "without prejudice." The contract also has a provision at Item 9 providing that the contract will not operate to prevent the discontinuance of a position "as provided by law." The contract is, of course, for a specific coordinator position rather than as a "teacher" continuing contract. It does, however, have the escape clause of Item 9 allowing the discontinuance of a position without breach of the contract, provided it is legally performed.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes (1981).
Section 231.36(3)(e), Florida Statutes, provides pertinently as follows:
(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.
The evidence in this record establishes that the School Board, in adopting the new organizational chart or plan which resulted in four new coordinators being hired, did so with a positive view toward improving the quality of exceptional education services delivered to exceptional students in the Broward County School System. It is true that under the new organization plan there would still remain four coordinators of special student education (the new positions) who still reported to a director of special student education, however, where the four coordinators previously had their labor divided on the basis of categories or exceptionalities, representing different types of exceptional students, they would now have their duties divided on a geographical basis within the county, with each new coordinator being responsible for the entire panoply of exceptional students so long as they were in his geographical jurisdiction. This quite naturally, as the evidence establishes, required a coordinator to have additional qualifications from those former coordinators who were each responsible for only one type of exceptional student. The School Board, accordingly, drafted and implemented the qualifications for the four new positions to include additional certifications and qualifications in terms of education and experience for the new coordinators. The School Board was shown to have acted with due deliberation and with the positive and worthy purpose of trying to decentralize the office or department charged with providing services to special students so that the responsible coordinators who determined eligibility and ruled upon the appropriateness of education plans for individual students would be both physically and administratively closer to those students and better able to determine and serve their needs, hence, the decentralization of the exceptional education office. It might also be added that the School Board acted on the recommendation of two experts with extensive experience in the field of exceptional education in deciding to inaugurate this reorganization or decentralization plan. It was thus not demonstrated that the School Board acted in an arbitrary or capricious manner. It was similarly not demonstrated by a preponderance of the evidence that the School Board's reorganization plan was merely a sham reorganization plan with the ulterior purpose of terminating the employment of Mr. Freeman in the face of his continuing contract. The School Board clearly has statutory authority to abolish a continuing contract position so long as that is lawfully accomplished. There was no showing in this record that the School Board acted arbitrarily or capriciously or otherwise unlawfully in abolishing the Petitioner's position. Where the board abolishes a position for a worthy purpose, such as economy, or, as here, in an honest attempt to render service more efficiently, the reorganization is proper. See Mitchell v. School Board of Leon County, 347 So.2d 805 (Fla. 1st DCA 1977).
The Petitioner contended that there was no compliance demonstrated by the School Board with regard to the mandates of Section 120.53(1) or 120.54, Florida Statutes, which require that prior to the adoption or amendment of a rule, an agency should give notice of the intended action setting forth the short and plain explanation of the purpose and effect of the proposed rule, its legal authority and a summary of the estimate of its economic impact. The Petitioner, thus, implictedly at least, contends that the adoption of the reorganization plan or chart which resulted in the creation of the new positions was a ruling making proceeding of which be was not afforded adequate notice and an opportunity to protect his substantial interest. Specifically, he argues that the notice requirements of Section 120.54, Florida Statutes, were not followed in that the notice was insufficient because it only consisted of an agenda item indicating that a new organization chart would be adopted at a meeting, which was posted on the bulletin board at his school. He argues that there was no indication that the result of the meeting might cause the abolition of any positions. In that regard it has not been demonstrated that any notice to an employee of the abolition of his position prior to that occurring is legally required, and further without deciding whether the notice afforded the Petitioner was adequate for purposes of the statutory section cited above relating to rule making, the proper forum for a challenge to a rule (if this can be deemed a policy of such generally applicability as to be construed as rule) is in an appropriately filed and noticed Section 120.56 proceeding. Such a rule challenge cannot be raised in a Section 120.57(1) proceeding. The notice requirements for a rule challenge are different and the time constraints for the setting of a hearing and the rendition of a final order in a rule challenge are so limited as to render that not appropriate to be heard in conjunction with a Section 120.57(1) proceeding concerning disputes of material fact. Further, the Hearing Officer must enter a Final Order in a rule challenge proceeding directly appealable to the appellate courts and such a process is foreign to the procedure in a 120.57 case which culminates for the Hearing Officer's purpose in a recommended order which still must be finally acted upon by the agency involved. If the two types of disputes were combined into one 120.57(1) proceeding the result would be in derogation of the mandated means of conducting "rule disputes" in Section 120.56. If the Petitioner wished to challenge the questions of notice or the propriety of a rule-making (if this were such) it should be done in separate proceeding.
It has not been demonstrated by a preponderance of the evidence in the record that the School Board acted improperly, arbitrarily, capriciously or otherwise illegally in abolishing the position held by the Petitioner pursuant to his continuing contract (Exhibit 1). That contract contains recognition that the School Board retains the authority to discontinue positions in a lawful manner and the abolition of his job was not shown to be a sham proceeding concealing an ulterior desire to dismiss a continuing contract employee with a good record. Consequently, it must be concluded that the Petitioner's claim should be denied.
Having considered the foregoing findings of fact, conclusions of law, the candor and demeanor of the witnesses and the pleadings and arguments of counsel, it is, therefore
That the petition of Russell Freeman for reinstatement into his continuing contract position of "coordinator-9560" for the limited purpose of obtaining full concomitant entitlement to retirement benefits should be denied.
DONE and ENTERED this 10th day of January, 1983, in Tallahassee, Florida.
P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building
Filed with the Clerk of the Division of Administrative Hearings this 10th day of January, 1983.
Donald J. Vestal, Esquire 4001 Hollywood Boulevard
Edward J. Marko, Esquire Post Office Box 4369
James E. Maurer, Superintendent School Board of Broward County 1320 Southwest Fourth Street Fort Lauderdale, Florida 33312
