STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HAZEL BOWDOIN, )

)

Petitioner, )

)

vs. ) CASE NO. 84-0732RX

) SCHOOL BOARD OF GILCHRIST COUNTY, )

)

Respondent. )

)

FINAL ORDER

The final hearing was held in this matter on March 23, 1984. This order is being entered following the receipt and review of proposed Recommended Orders submitted by the parties and of the Memorandum of Law submitted by the Petitioner. To the extent that these proposals and argument are consistent with the order, they have been utilized. Rejection of the remaining presentation by the parties is based upon irrelevance, immateriality and for reason that the proposals are contrary to facts found and the conclusions of law reached.

APPEARANCES

For Petitioner: M. Blair Payne, Esquire

Post Office Drawer 1707 Lake City, Florida 32055

For Respondent: William O. Clifton, Esquire

Post Office Box 233 Trenton, Florida 32693

Edward J. Philman, Esquire Post Office Box 308 Trenton, Florida 32694

ISSUES

This is a challenge to action of the Gilchrist County School Board in its act of abolishing the Petitioner's employment position with the School Board as Occupational Specialist. In particular, Petitioner alleges that this action constituted rule within the meaning of Section 120.-52(15), Florida Statutes.

Further, it is alleged that that rule activity did not comply with the procedural requirements set forth in Section 120.54, Florida Statutes. Finally, Petitioner claims that the rule enactment or activity was arbitrary and capricious.

FINDINGS OF FACT

1. The parties have agreed by stipulation in the course of this hearing that the entire record, to include testimony and exhibits presented in the companion case, Hazel Bowdoin v. School Board of Gilchrist County, Florida,

   D.O.A.H. Case No. 82-1375, becomes part of the record in this proceeding and may be utilized by the Hearing Officer in arriving at the decision in this cause. The parties have also stipulated to the standing of this Petitioner to challenge the alleged activity in the abolishment of the Occupational Specialist position as being a rule. The parties are satisfied on the subject of the notice of hearing as established in a stipulation entered into at hearing. In a concluding stipulation, the parties agree that the decision to abolish the position of Occupational Specialist held by the Petitioner was not a decision which complied with the formal rule-making procedures set forth in Section

   120.54 Florida Statutes.

   
   

2. Petitioner is the holder of a Rank III Teaching Certificate, issued by the State of Florida. The certification recognizes her as an Occupational Specialist. On July 8, 1974, she was granted a continuing contract of employment with the Gilchrist County School Board as an Occupational Specialist in the Trenton and Bell schools within the Gilchrist County School District. A copy of that contract may be found as Respondent's Exhibit No. 7, admitted into evidence. The contract by its terms states at Paragraph 9, "This contract shall not operate to prevent discontinuance of a position as provided by law." It is the discontinuance or abolishment of the position of Occupational Specialist held by the Petitioner that occasioned the formal hearing in this cause.

   
   

3. Since being granted the position of Occupational Specialist in permanent status, Petitioner has performed those duties described in the job description, a copy of which is Petitioner's Exhibit No. 2, admitted into evidence. Those functions include career planning for students, considering their personal problems, preparing them for assessment tests and the execution of job application forms. In the school year 1981-82, Petitioner worked three- fifths of her time in Trenton High School and two-fifths in Bell High School. In her capacity, Respondent considered her to be acting as the equivalent of a guidance counselor. She has never been certified by the State of Florida as a guidance counselor.

   
   

4. Around the beginning of April 1982, the Superintendent of Schools in Gilchrist County, Ray Thomas, decided that the position of Occupational Specialist held by the Petitioner should be abolished. At that time, and at all relevant times, this position of Occupational Specialist was the only position of its type in the Gilchrist County School System. The basis for the abolition or discontinuation of the position concerned anticipated revenue shortfalls or budget inadequacy for the upcoming school year 1982-83, pursuant to information from persons within the State of Florida responsible for educational funding.

   In arriving at his decision, Thomas sought comment from Robert Ervin, the principal at Bell High School and James Surrency, the principal at Trenton High School. Ervin was asked if the guidance responsibility at Bell High School could best be achieved by the provision of a full-time guidance counselor.

   Thomas gave the impression to Surrency that the basis for requesting the discontinuation of the position of Occupational Specialist pertained to funding. No particulars were revealed to the principals on the question of the financial position of the school system facing the advent of the 1982-83 school year.

   Respondent's Exhibits Nos. 1 and 2, admitted into evidence, are the comments of the Trenton and Bell principals on the subject of the abolition of the position of Occupational Specialist. Ervin accepted the idea of abolishing the Occupational Specialist. Ervin accepted the idea of abolishing the Occupational Specialist position based upon his belief that a full-time guidance counselor would be provided to his school as contrasted to the half-time guidance counselor and two-fifths time work of the Petitioner during the school year 1981-82. In his remarks, Surrency indicates reconciliation to the idea of

   losing the three-fifths time that the Petitioner was spending at Trenton High; however, he indicates his preference to have the Occupational Specialist position remain if it could be afforded. In the school year 1981-82, Trenton had a full-time guidance counselor in addition to the work being done by the Petitioner.

   
   

5. After receiving the comments of the principals and in keeping with his choice, the superintendent of schools wrote to the Petitioner on April 21, 1982, advising her that he would recommend to the School Board, effective the beginning of the school year 1982-83, that the position of Occupational Specialist not be filled and offering Bowdoin a leave of absence without pay for one year. A copy of this correspondence may be found as Respondent's Exhibit No. 3.

   
   

6. On April 22, 1982, the recommendation of the Superintendent was presented to the School Board and in the course of that meeting, the Petitioner was represented by counsel. Action on this recommendation by the superintendent was tabled. On May 3, 1982, the Superintendent wrote the School Board and modified his position on the question of Occupational Specialist from one recommending that the position of Occupational Specialist not be filled in 1982-

83 school year to one of recommending the discontinuance of the position for economic and curriculum reasons, stating that the duties of that position could be assumed or transferred to the guidance counselor at each school in Gilchrist County. A copy of this correspondence may be found as Respondent's Exhibit No.

1. On May 4, 1982, consideration was given to the suggestion of total abolishment of the position of Occupational Specialist and the School Board in a

   3 to 2 vote determined to abolish the position of Occupational Specialist. This action was in keeping with Chapter 230, Florida Statutes. Prior to the vote, no specific information was imparted by the Superintendent or other school officials as to the financial benefits to be derived from the action or effect of the abolishment in terms of curriculum changes. The school board simply accepted the Superintendent's word that it was necessary to abolish the position for financial reasons. (The Superintendent, since taking office in 1981, has abolished other positions within the-Gilchrist County School System, such as assistant principal at Trenton High School, general supervisor of instruction, food services supervisor, brick and block masonry teacher, librarian at Trenton High School and has left vacant teachers's aide positions.) At the May 4, 1982, meeting, Petitioner asked for and the Board agreed to afford a formal hearing to the Petitioner to challenge the abolishment of the Occupational Specialist position.

   
   

   1. Again, on June 1, 1982, a request was made in the Petitioner's behalf to have a grievance hearing before the board concerning the board's decision to abolish the job and it was determined that that grievance hearing should be held on July 6, 1982. On July 6, 1982, the Board requested the Superintendent to prepare a list of vacancies which Mrs. Bowdoin might be certified for, the salary schedules related to those positions, a list of programs offered other than K-12 and the state certification requirements for those positions and the name of those persons filling the positions at the time. On July 20, 1982, the Board considered the level III grievance of the Petitioner in the presence of the Petitioner's attorney on the topic of an alternative placement of the Petitioner and the salary associated with that placement. On August 3, 1982, the Board entered a written resolution of decision pertaining to the level III grievance pertaining to the Petitioner, a copy of that resolution being found as Respondent's Exhibit No. 5. In this resolution, the School Board properly identified that the Petitioner could not be placed as a guidance counselor in that she did not hold a master's degree required for such position. In lieu, of

      the position of Occupational Specialist which had been abolished by the School Board on May 4, 1982, by its August resolution, the Board offered the position of Teacher's Aide at Trenton Elementary School, with a substantial reduction in salary from approximately $15,000 a year to approximately $6,300 a year. This position of Teacher's Aide was reserved until August 16, 1982. Petitioner did not elect to accept the position of Teacher's Aide and has been unemployed since August 1982.

      
      

   2. In the course of an August 11, 1982 meeting, the Superintendent reported to the Board that the Petitioner had "responded" at a level IV grievance procedure. On August 31, 1982, the Board was asked to consider litigation which had been presented to it by the Superintendent. On September 2, 1982, in an Executive Board session of the School Board of Gilchrist County, discussion was made of certain civil litigation brought by Petitioner against the Board. On October 5, 1982, an update was given to the Board concerning that case of the Petitioner versus the Board. Another update was made on October 5, 1982. On December 7, 1982, the Board was made aware of the fact that the case was to be considered in arbitration. (Various minutes of School Board meetings as described in this paragraph are more completely set forth in Respondent's Exhibit No. 8, admitted into evidence.) The matter was presented before the American Arbitration Association and the Arbitrator in his report absolved the Board of any violation related to the job abolition. The copy of that report may be found as Respondent's Exhibit No. 6, admitted into evidence. The date of the report is July 21, 1983.

      
      

   3. As stated before, the Bell High School in 1982-83, employed a full-time guidance counselor in substitution for an approximately half-time guidance and two-fifths time from Bowdoin the prior year. The Trenton school went from a 1981-82 school year in which a full-time counselor and three-fifths of Bowdoin's time was devoted to counseling activities to a full-time counselor, an aide working two-thirds time mostly in a clerical capacity and some assistance by a vocational teacher in school year 1982-83. Had Bowdoin returned as an aide to the Trenton school in 1982-83, she would have been used in the guidance department in the same role as she had been given as Occupational Specialist.

      
      

   4. There was a revenue surplus left at the end of the 1982-83 school year and it was sufficient to have allowed the funding of the position of Occupational Specialist for the 1982-83 school year; however, that surplus was less than the 1981-82 school year by approximately $65,000. This funding difference in the face of providing essentially the same services in the school system, pointed out the more difficult economic circumstance that Thomas had made mention of in his initial decision to abolish the position of Occupational Specialist.

      
      

   5. In the 1982-83 Schools year, employees in the school system received salary increases.

      
      

   6. At the conclusion of the 1981-82 school year, there were approximately 900 students at the Trenton school which included grades K-12. According to Petitioner's Exhibit No. 11, excerpts from the standards of the Commission on Secondary Schools of the Southern Association of Colleges and Schools, schools of a population of 750-999 need two guidance professionals. Therefore, the reduction of one and three-fifths counselors in 1981-82 to one counselor and something less than three-fifths in 1982-83 was contrary to the statement of standards. This excerpt is at 4.10.0, Figure 1, minimum personnel requirements. Respondent replies to that assertion through its Exhibit No. 9, which are excerpts of the standards for unit schools by the Commission on

      Secondary Schools and Commission on Elementary Schools of the Southern Association of Colleges and Schools. At Page 9, 9.16.0-9.16.2, Respondent argues that one guidance counselor suffices for any school with a membership of

      500 or more students up to 999 students. Without determining which of these guidelines related to accreditation by the Southern Association of Colleges and Schools is correct, it suffices to say that the changes that were made by the School Board in abolishing the position of Occupational Specialist as it might affect accreditation were made in good faith in that it can arguably be said that Trenton school, having 900 students, only needed one guidance counselor to meet conditions of accreditation.

      
      

   7. There were no curriculum changes made in the 1982-83 school year as a result of abolishing the Occupational Specialist position. There were curriculum changes but they were not the result of any influence provided by the abolishment of the Occupational Specialist job.

      
      

      CONCLUSIONS OF LAW

      
      

   8. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action pursuant to Chapter 120, Florida Statutes.

      
      

   9. Respondent moved to dismiss this action prior to the opportunity for the parties to submit proposed orders. That motion was denied, with leave for the Respondent to request dismissal of the action following the presentation of proposed orders.

      
      

   10. The initial question to be considered is whether the School Board in the abolishment of the position of Occupational Specialist took action which is tantamount to a rule within the definition of Section 120.52(15), Florida Statutes. The action of the School Board, when examined in the context of the definition, cannot be said to be a statement of general applicability which had as its purpose the implementation interpretation or prescription of law or policy or a description of the organization, procedure or practice requirements of that agency. It was specific action taken within the authority established in the various provisions of Chapter 230, Florida Statutes, and the 1974 contract between the parties at Paragraph 9, solely related to the single employee. It was action that could be undertaken pursuant to the statutory authority without the necessity of rules making. It did not constitute the amendment or repeal of an existing rule. Moreover, it was part of the process of the preparation of an agency budget related to the upcoming school year 1982-

83. For these reasons, the action was not a rule by definition. Not being a rule, it was not necessary to comply with the provisions of Section 120.54, Florida Statutes, related to rule making. Finally, Petitioner's claim that the action arbitrary and capricious, in the context of a rules case, assumes the existence of a rule duly promulgated, which has not been shown on this occasion. The issue of arbitrariness and capriciousness has been dealt with in the companion case which considered de novo the Petitioner's allegation that the Board's policy choice in abolishing the position was arbitrary and capricious. (This decision takes into account the opinions set forth in those cases cited by the Petitioner, i.e., Polk v. School Board of Polk County, Florida, 373 So.2d 960 (Fla. 2 DCA 1979); Mitchell v. School Board of Leon County, Florida, 347 So.2d 805 (Fla. 1 DCA 1977) and Freeman v. School Board of Broward County, Florida, 382 So.2d 140 (Fla. 4 DCA 1980). Polk dealt with the matter of school redistricting; Mitchell dealt with reorganization of a school district, related to staff and Freeman dealt with the failure to afford Freeman due process rights in challenging the abolishment of his position, a circumstance that has not

occurred in the Petitioner's case. None of these cases stand for the proposition that the abolishment of a single position constitutes rule making by the school system. This is not the kind of general and pervasive undertaking described and envisioned in the Mitchell case.)

17. In summary, the Petitioner has failed to prove that the action of abolishing the position of Occupational Specialist was a rule and the petition is dismissed.

DONE AND ORDERED this 21st day of May 1984 in Tallahassee, Florida.

CHARLES C. ADAMS

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 21 day of May, 1984.

COPIES FURNISHED:

W. Roderick Bowdoin, Esquire

M. Blair Payne, Esquire

DARBY, PEELE, BOWDOIN, MANASCO & PAYNE

327 North Hernando Street Post Office Drawer 1707

Lake City, Florida 32056-1707

William O. Clifton, Esquire Post Office Box 233 Trenton, Florida 32693

Edward J. Philman, Esquire BURT AND PHILMAN

Post Office Box 308

Trenton, Florida 32693 May 1984.

Ray E. Thomas Superintendent of Public Instruction

Gilchrist County Courthouse Trenton, Florida 32693

Carroll Webb, Executive Director Administrative Procedures Committee Room 120, Holland Building Tallahassee, Florida 32301

Ms. Liz Cloud, Chief Department of State Room 1802, The Capitol

Tallahassee, Florida 32301

Docket for Case No: 84-000732RX

Orders for Case No: 84-000732RX