Judges: DONALD D. CONN
Agency: Department of Education
Latest Update: Jun. 24, 1985
Summary: Teacher failed to show why he should be grandfathered in under previous Department of Education (DOE) rule setting requirements for teacher certification after its ammendment.
85-0279.PDF
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DAVID C. SYSTER, )
)
Petitioner, )
)
vs. ) CASE NO. 85-0279
) FLORIDA DEPARTMENT OF EDUCATION, )
)
Respondent. )
)
RECOMMENDED ORDER
On May 8, 1985, a final hearing in this case was held in Tallahassee before Donald D. Conn, a duly designated Hearing Officer of the Division of Administrative Hearings. The parties were represented by:
For Petitioner: Robert F. McKee, Esquire
401 South Albany Avenue Tampa, Florida 33606
For Respondent: Gene T. Sellers, Esquire
State Board of Education Knott Building
Tallahassee, Florida 32301
A Petition for Formal Hearing was filed on behalf of David C. Syster, hereinafter referred to as Petitioner, which raises the issue of whether the Department of Education, Respondent, erred in denying his application to add electrical wiring to his teaching certificate. At the hearing the Petitioner introduced two depositions, without objection and the parties jointly introduced nine exhibits. Respondent called four witnesses and introduced nine exhibits. The Respondent moved that the Hearing Officer take official recognition of Rule 6A-4.42, F.A.C., which is referred to in various exhibits, and about which Respondent's witnesses testified. The motion was granted. Following Petitioner's case in chief, Respondent moved to dismiss the petition, and ruling on this motion was
reserved to allow a review of the depositions and exhibits received in evidence, and to allow a ruling thereon to be incorporated in this Recommended Order. A transcript of the final hearing was filed on May 29, 1985.
Proposed findings of fact and conclusions of law have been submitted by both parties pursuant to Section 120.57(1)(b)4, F.S., and have been considered.
Petitioner's motion for extension of time has been granted. A ruling on each proposed finding has been made, either directly or indirectly in this Recommended Order, except where such proposed findings have been rejected as subordinate, cumulative, immaterial, or unnecessary, or not based on competent substantial evidence.
FINDINGS OF FACT
The Petitioner has been employed by the Pinellas County School Board and has held a Florida teaching certificate in industrial arts, number 449426, at all times material hereto. He seeks to add electrical wiring as a specialized vocational certification.
From 1981 until 1984 Petitioner taught electrical wiring at Dunedin High School, but Petitioner has never been certified to teach electrical wiring, and he was therefore teaching this course "out of field."
Following initial inquiry by Petitioner about what he would have to do to extend his industrial arts teaching certificate to include electrical wiring, Respondent advised him by letter dated February 7, 1979, that he had to complete a three semester hour course in Principles and Philosophy of Vocational Education, as well as submit verification of occupational experience. Petitioner acknowledges receipt of this letter. Following a second inquiry by Petitioner through Jean Drainer, certification technician with the Pinellas County School Board, he was advised in May 1981 that his occupational experience had been verified and he would only have to take the course in Principles and Philosophy of Vocational Education to add electrical wiring to his teaching certificate. Petitioner was not advised of any time limit by which he had to take this course.
From March 21, 1974 until December 28, 1983 Respondent had an informal policy known as the "short
plan", which was never adopted as a rule under Section 120.54, F.S. The short plan was an alternative procedure to Rule 6A-4.42, F.A.C., by which industrial arts teachers could add specialized vocational certifications, such as electrical wiring. There were three requirements under the short plan: (1) two years of occupational experience, (2) the course in Principles and Philosophy of Vocational Education, and (3) practical teaching experience.
Petitioner had been advised in 1979 and 1981 under the terms of the short plan, and in May 1981 was advised he lacked only the required course.
Respondent began a review of the "short plan" in the summer of 1983 in an effort to strengthen the quality of teachers for vocational subjects. Interpretive Memorandum 15, dated December 28, 1983, eliminated the "short plan". All school districts were notified of the elimination of this plan in the usual manner of distributing notice of policy changes through teacher certification contacts in each district. Respondent "grandfathered" less than five applicants who were advised in the Fall of 1983 about the availability of the "short plan" and who enrolled in the required course at their first opportunity and completed the course in the Spring Semester 1984.
On or about February 7, 1984, a program auditor from the Department of Education met with Petitioner during a routine audit and found he was teaching electrical wiring out of field. Petitioner contacted Respondent by telephone on February 10, 1984, and was advised that the short plan had been discontinued and he could no longer be certified simply by completing the required course. Petitioner contends this was the first time he was notified that the short plan was no longer available.
Petitioner enrolled at the University of South Florida for the Spring Semester 1984 and successfully completed the course, "History and Principles of Vocational Education.
There is no evidence that Petitioner made any inquiry about the short plan requirements from May 1981 until being advised in February 1984 of its discontinuance. Further, there is no evidence that Petitioner took any action to meet the course requirement under this short plan
from February 1979 until he enrolled in the 1984 Spring Semester at the University of South Florida.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this case. Section 120.57(1), F.S. The Respondent has authority to issue teaching certificates to persons who meet established standards. Section 231.17, F.S. and Chapter 6A-4, F.A.C.
Rule 6A-4.42, F.A.C. has been effective at all times material hereto and provides a means by which a teacher can obtain certification in vocational or industrial subjects. This rule sets forth the requirements which Petitioner, or other similarly situated teachers, must meet in order to add electrical wiring to his teaching certificate. From March 21, 1974 until December 28, 1983 Rule 6A-4.42 was supplemented by the "short plan" which set forth an alternative for obtaining specialized vocational certification. This alternative procedure is no longer available since it was discontinued on December 28, 1983. At the time of its discontinuance, Petitioner had not met the requirement that he have successfully completed a course in Principles and Philosophy of Vocational Education. He did not enroll in and complete this course until the Spring Semester, 1984.
It is the contention of Petitioner that he should be "grandfathered" under the "short plan". He completed the plan's requirements within six months of its discontinuance and he argues he should receive his electrical wiring certification since he was advised about the availability of the "short plan" before its elimination.
The burden is clearly on an applicant for licensure or certification to produce competent substantial evidence at the final hearing to establish his entitlement to the license or certification sought. Florida Department of Transportation v. J.W.C. Co., Inc., 396 So. 2d 778 (Fla. 1st DCA 1981); Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977). Petitioner has not presented sufficient evidence to establish his right to be "grandfathered" under a discontinued informal policy, which was never adopted as a
"rule" in the first place. It has not been established that Petitioner was ever advised of a time limit for meeting the "short plan" requirements. Therefore, there was no basis for him to assume that he had five years to take the required course or that the "short plan" would not be changed or eliminated. Petitioner had almost five years to complete the short plan requirements after he was first advised of them, but he simply failed to do so.
Petitioner's delay did not give rise to a vested right upon which he can now rely.
Respondent's decision to "grandfather" less than five applicants who were advised in late 1983 about the short plan and who immediately enrolled in and completed the required course at their first opportunity was not arbitrary or capricious, and creates no right for Petitioner herein. Whereas those who were grandfathered were prompt and diligent in reacting to advice they received from Respondent, Petitioner was at best dilatory.
RECOMMENDATION
Based upon the foregoing, it is recommended that Respondent enter a Final Order dismissing the petition filed by David C. Syster.
DONE and ENTERED this 24th day of June, 1985, at Tallahassee Florida.
DONALD D. CONN
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 24th day of June, 1985.
COPIES FURNISHED:
Robert F. McKee, Esquire
401 South Albany Avenue Tampa, Florida 33606
Gene T. Sellers, Esquire State Board of Education Knott Building
Tallahassee, Florida 32301
Ralph D. Turlington Commissioner of Education The Capitol
Tallahassee, Florida 32301
Docket for Case No: 85-000279
Orders for Case No: 85-000279
| Issue Date |
Document |
Summary |
|
Jun. 24, 1985 |
Recommended Order
|
Teacher failed to show why he should be grandfathered in under previous Department of Education (DOE) rule setting requirements for teacher certification after its ammendment.
|
