STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STANLEY SWITZER, )

)

Petitioner, )

)

vs. ) CASE NO. 82-1353

)

WILLIAM McFATTER, Superintendent ) of Schools, Broward County, ) Florida, and the SCHOOL BOARD ) OF BROWARD COUNTY, FLORIDA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William E. Williams, held a public hearing in this cause on October 5, 1982, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Richard H. Frank, Esquire

341 Plant Avenue Tampa, Florida 33606

For Respondent: Edward J. Marko, Esquire

1040 Bayview Drive, Suite 322 Post Office Box 4369

Fort Lauderdale, Florida 333

By Petition dated April 9, 1982, Petitioner requested a public hearing to determine Petitioner's contractual status as an instructional employee of the School Board of Broward County, Florida ("Respondent"). Petitioner contends that he is entitled to continuing contract status with Respondent, and that his summary termination at the conclusion of the 1978-1979 school year was therefore improper. Respondent contends that at all times Petitioner was a "part-time" instructor; that he was, therefore, not entitled to continuing contract status; and that his termination from employment was appropriate.

Final hearing in this cause was scheduled for October 5 and 6, 1982, by Notice of Hearing dated August 10, 1982. At the final hearing, Petitioner testified in his own behalf, and offered Petitioner's Exhibits 1 and 2, which were received into evidence. Respondent called Dr. Benjamin F. Stevenson as its only witness, and offered Respondent's Exhibit 1 through 8, which were received into evidence.

Counsel for each of the parties have submitted proposed findings of fact for consideration by the Hearing Officer. To the extent that those proposed findings are not included in this Recommended Order, they have been specifically

rejected as being either irrelevant to the issues involved in this cause, or as not having been supported by evidence of record.

FINDINGS OF FACT

1. Petitioner was employed by Respondent at the commencement of the 1975- 1976 school year as an industrial arts teacher at the B. F. James Adult Education Center. During the first days of the 1975-1976 school year, Petitioner was employed as a substitute teacher. On November 17, 1975, however, Petitioner entered into a written agreement with Respondent entitled "Contract for Part-Time Instruction." Pursuant to the terms of the contract, Petitioner was to be paid an hourly salary of $8.82 per hour. The contract further provided, in pertinent part, that:

   
   

   The number of hours of instruction will be based upon the courses offered for which the instructor is qualified, and assignment to teach such courses

   will be made by the county superintendent of schools through his designated adminis- trative representative. This appointment is contingent upon minimum enrollment and attendance in the course assigned.

   This contract may be cancelled at any time by either party upon ten days written notice. . . (Emphasis added.)

   
   

2. During the 1975-1976 school year, Petitioner worked at least seven and one-half hours per day, five days per week, 12 months per year. Petitioner worked a regular day schedule with additional but irregular work performed at night.

   
   

3. Like full-time teachers on an annual contract, Petitioner received his pay on a monthly basis. However, as indicated above Petitioner was paid an hourly salary, whereas teachers on either annual or continuing contracts were paid according to a salary schedule negotiated between Respondent and the Broward County Classroom Teachers Association, Inc. In addition, as earlier indicated, Petitioner's work hours were on an "as needed" basis, depending upon student enrollment, the nature of courses offered, and funding for particular programs of instruction. Full-time teachers on annual or continuing contracts were employed on the basis of a school year of not less than 196 days.

   
   

4. During the course of the 1975-76 school year, Petitioner inquired of his immediate supervisor concerning the possibility of receiving an annual contract. The supervisor, in fact, recommended Petitioner for such a contract, but that recommendation was not acted upon favorably by Respondent. The record in this cause reflects only that there was "some problem" with Petitioner's personnel file which led to Respondent's decision not to offer an annual contract to him during the 1975-1976 school year. Respondent was again recommended, in a subsequent school year, by his immediate supervisor for an annual contract for 70 percent of a full school day, but again that recommendation was not acted upon favorably.

   
   

5. Petitioner continued employment with Respondent during the 1976-1977, 1977-1978, and 1978-1979 school years. During each of those years, Petitioner continued to work at least seven and one-half hours per day, five days per week,

   12 months per year. After the initial contract between Petitioner and

   Respondent for the 1975-1976 school year, however, Petitioner never received another written contract. He did, however, inquire on several occasions concerning his right to receive an annual contract. Respondent, however, never offered Petitioner annual contract status.

   
   

6. Respondent classifies the contractual status of its instructional employees as either "annual," "continuing," or "part-time." Part-time employees, unlike annual contract and continuing contract employees, have not been given written employment contracts for at least the last five years. Recommendations to employ part-time instructional employees originate with Respondent's school principals, who transmit their recommendations to the Superintendent. The Superintendent, in turn, recommends the employment of part- time employees to the School Board. Part-time employees are recommended by the Superintendent and voted upon by the Board en masse in June of each year for employment during the following school year. As many as 1,200 to 1,500 part- time employees may be recommended for employment at one time. Once the School Board approves the Superintendent's recommendations concerning the hiring of part-time employees, those persons approved are thereafter available to principals to be hired at any time during the ensuing school year. Respondent places no limits on the amount of time part-time employees may work, notwithstanding their part-time designation, so long as students, courses, and course funding are available. When a course offered by Respondent and taught by Petitioner or other instructional employees similarly situated did not generate sufficient enrollment or failed to receive funding, the course was discontinued and the instructional employee's employment ceased.

   
   

7. Sometime during the 1978-1979 school year, Petitioner met with his immediate supervisor to discuss his continued employment with Respondent. Ultimately, Petitioner received a letter advising him that his employment would be terminated at the conclusion of the 1978-1979 school year. Prior to his termination, Petitioner had never been advised, in writing, of any deficiencies in his job performance.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding. Section 120.57(1), Florida Statutes.

   
   

9. Section 231.36(3)(a), Florida Statutes, provides that:

   
   

   The school board of each district shall provide continuing contracts aspre-

   scribed herein. Each member of the instruc- tional staff . . . in each district school system . . . who:

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

   2. Has completed 3 years of service in the same district of the state dur-

      ing 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 super- intendent for such continuing contract based on successful performance of duties and demonstration of professional compe- tence shall be entitled to and shall be issued a continuing contract in such form as may be prescribed by regulations of the state board. (Emphasis added.)

      
      

10. Section 228.041(20), Florida Statutes, provides that the ". . . [t]he minimum time which may be recognized in administering the state program of education . . . as a year of service by a school employee shall be full time actual service. . . . (Emphasis added.)

    
    

11. As indicated by the court in Gainey v. School Board of Liberty County,

    387 So.2d 1023, 1028 (Fla. 1st DCA 1980), the central purpose of Section 231.36(3)(a), Florida Statutes, quoted above, is to prevent a school board from retaining a teacher who is eligible for continuing contract "in limbo" during a fourth year of service. Stated otherwise, a teacher moving through a school system on a series of annual contracts who has not been advised of deficiencies in performance, has not been discharged, and has been retained for a fourth year of employment is automatically eligible for a continuing contract. However, in the instant case, Petitioner at all times knew that he was on "part-time" status, and, in fact, sought on numerous occasions to have his status upgraded to an "annual" contract. Since Florida law requires that service by instructional personnel be "full-time" in order to be counted as a year of service, "part-time" service cannot be utilized in order to fulfill the continuing contract requirements of Section 231.36(3)(a), Florida Statutes.

    
    

12. Petitioner having failed to demonstrate that he was contractually employed as a "full-time" employee, notwithstanding the fact that the exigencies of his particular situation required a work schedule which was equivalent to "full-time," he was in no way misled by Respondent's conduct prior to his termination. Further, there is no evidence of record in this cause that would in any way establish that Respondent utilized contracts for "part-time" employment in order to avoid the requirements of Section 231.36(3)(a), Florida Statutes. Accordingly, it is

RECOMMENDED:

That a Final Order be entered by the School Board of Broward County, Florida, denying the relief requested by Petitioner.

DONE AND ENTERED this 7th day of November, 1983, at Tallahassee, Florida.

WILLIAM E. WILLIAMS

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 7th day of November, 1983.

COPIES FURNISHED:

Richard H. Frank, Esquire FRANK & KELLY, P.A.

341 Plant Avenue Tampa, Florida 33606

Edward J. Marko, Esquire 1040 Bayview Drive, Suite 322 Post Office Box 4369

Fort Lauderdale, Florida 33338

Dr. William A. McFatter Superintendent of Schools 1320 Southwest Fourth Street

Fort Lauderdale, Florida 33310

Docket for Case No: 82-001353

Orders for Case No: 82-001353