STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARY L. BAXTER, )

)

Petitioner, )

)

vs. ) CASE NO. 87-3650

) SCHOOL BOARD OF POLK COUNTY, )

)

Respondent. )

)

RECOMMENDED ORDER

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 February 25, 1988, at Bartow, Florida.

APPEARANCES

For Petitioner: Fred L. Buckine, Esquire

1511 North Morgan Street Tampa, Florida 33602

and

Henry E. Nobles, Esquire 2303 West Platt Street Tampa, Florida 33602

For Respondent: Donald H. Wilson, Jr., Esquire

Post Office Box 1574 Bartow, Florida 33830

By Petition for Administrative Review dated February 10, 1988, Mary L. Baxter, Petitioner, seeks reinstatement to the position of Principal at John Cox Elementary School, to be given a multi-year contract and awarded attorney's fees and costs. As grounds therefor, it is alleged she was wrongfully denied a multi-year contract at John Cox Elementary School and that the Superintendent of Schools for Polk County acted arbitrarily and capriciously in denying her a multi-year contract at John Cox and transferring her to another school as assistant principal with no reduction in her pay.

Petitioner initially requested an administrative hearing by letter dated August 12, 1987, which was forwarded to the Division of Administrative Hearings by the school board on August 18, 1987, and the hearing was scheduled to commence November 12, 1987. The parties submitted a Joint Motion for Continuance, and the hearing was rescheduled to commence January 28, 1988.

During a prehearing conference on January 20, 1988, the case was rescheduled to be held February 25, 1988.

At the commencement of the hearing, Respondent withdrew its Motion to Dismiss Petition. Thereafter, Petitioner called three witnesses, including Petitioner, Respondent called one witness and eleven exhibits were admitted into evidence.

Proposed findings have been submitted by Petitioner and are accepted.

Respondent has failed to timely file proposed findings. To the extent Petitioner's proposed-findings are not included below, they were deemed unnecessary to the conclusions reached.

FINDINGS OF FACT

1. Mary L. Baxter has been employed by the Polk County School Board for approximately 14 years, first as a classroom teacher, then as assistant principal, and in 1984 she was appointed as principal of John Cox Elementary School in Lakeland.

   
   

2. While assigned to John Cox Elementary School, Petitioner was issued an annual contract for eleven months (Exhibit 5).

   
   

3. Neriah E. Roberts is the Northwest Area Superintendent of Polk County Schools and was in that position at all times here relevant. As Northwest Area Superintendent, Dr. Roberts was Petitioner's immediate supervisor and supervised seventeen additional principals of the Polk County School System. Functions of the area superintendent include acting as liaison between the communities and the schools in his area responsibility, assisting the principals in obtaining funding for maintenance and other school activities and overseeing the performance of these principals. As Petitioner's immediate supervisor, Dr. Roberts prepared Petitioner's performance evaluation.

   
   

4. In his first annual evaluation of Petitioner's performance (Exhibit 4), Dr. Roberts reported that Petitioner met performance standards. However, two of those blocks contained comments regarding performance by Petitioner that needed to be improved. Under "Student Services," Dr. Roberts commented that Petitioner should reassess her disciplinary procedures.

   
   

5. Dr. Roberts had received complaints from parents of children at John Cox Elementary School indicating Petitioner was paddling an excessive number of pupils. When he checked the discipline records with Petitioner, he found some

   97 pupils had been paddled during that school year. That discovery lead to Dr. Robert's comments.

   
   

6. Under "Management" on the evaluation, Dr. Roberts commented that Petitioner should open lines of communication between her staff and her assistant principal. Dr. Roberts had received comments from teachers at John Cox that Petitioner was short tempered and was not popular with members of her instructional staff. On one occasion while Petitioner was principal at John Cox, Dr. Roberts met with the staff at John Cox at which meeting five or six teachers commented unfavorably on Petitioner's relations with her staff. Such reports formed the basis of these comments by Dr. Roberts above noted.

   
   

7. In addition to placing the two comments on the March 25, 1985 evaluation, Dr. Roberts submitted a letter to Petitioner dated March 27, 1985 (Exhibit 6) in which he elaborated on the comments placed on the evaluation.

   
   

8. Dr. Roberts held another conference with Petitioner on August 14, 1985, which he memorialized in a letter to Petitioner dated August 23, 1985, (Exhibit

   7). In this letter, he referred to his March 27, 1985, letter and stated that letter was intended to substitute for a more formal professional development plan.

   
   

9. In the evaluation of Petitioner dated March 3, 1986, Dr. Roberts reports that Petitioner successfully met minimum standards in all sections of the evaluation. However, in Section 1, comments are made that "Improvement has been made in leadership style, but this does not preclude the need for continued improvement." Under Item 11 on this evaluation, the comment appears that "Your flexibility and adjustment to this community and students has been good. Due to the inability to read the dates on some of the evaluations contained in Exhibit 4, it is impossible to tell which evaluation was for the second year and which is for the third year Petitioner was principal at John Knox. From Dr. Roberts' testimony, it appears that the evaluation for the second year is included in Exhibit 6, and the evaluation reports in Exhibit 4 in which the date is not legible was for her third year at John Cox.

   
   

10. At the expiration of Petitioner's three years as principal at John Cox, she became eligible for a multi-year contract, and Dr. Roberts recommended her for such a contract.

    
    

11. When this recommendation reached the superintendent's office, Donald

    R. Cox, Assistant Superintendent for Personnel, noted that the recommendation was inconsistent with school board policy and contacted Dr. Roberts to remind him of the policy that before administrative personnel can be given a multi-year contract, their performance evaluations must be totally satisfactory in each category on the evaluation report for the three years preceding the awarding of a multi-year contract.

    
    

12. Dr. Roberts then contacted Petitioner by phone to tell her she would not receive a multi-year contract. Petitioner was quite upset during this conversation and indicated to Dr. Roberts that she would resign. She was requested to put her resignation in writing. This conversation occurred near the end of the week, and the following work day (either Friday or Monday) Dr. Roberts and Dr. Cox met with the superintendent. During this meeting, the status of Petitioner was brought up, and Dr. Roberts told the superintendent that Petitioner had indicated she would resign.

    
    

13. Shortly thereafter on January 12, 1987, the superintendent of schools submitted a letter to Petitioner (Exhibit 5), accepting her verbal resignation as principal at John Cox Elementary School and advising her that she would be reassigned to the first available vacancy as assistant principal.

    
    

14. By letter dated June 15, 1987 (Exhibit 10), Petitioner indicated she had not resigned and that the charges against her were based on information she had been given no opportunity to challenge or rebut.

    
    

15. The superintendent then authorized Dr. Cox to set up a meeting with Petitioner and Dr. Roberts to try and resolve the differences. At this time, it was clear that no valid resignation had been submitted by Petitioner, and this was no longer an avenue to be pursued by the school board.

    
    

16. Dr. Cox was authorized by the superintendent to offer Petitioner continued employment as principal of John Cox Elementary School, a transfer to another school as assistant principal at no reduction in salary or a return to professional status as instructional personnel. A meeting was scheduled and held shortly after June 15, 1987 between Roberts, Cox and Petitioner at which

    Cox offered the above noted alternatives to Petitioner. Petitioner then stated she did not want to remain at John Cox, but would like a lateral transfer to another school as principal. Cox was not authorized to approve the lateral transfer requested by Petitioner and told her he would relay that request to the superintendent and advise Petitioner. When Dr. Cox presented this proposal to the superintendent, the latter indicated he would refuse to recommend to the school board that Petitioner be employed at any other school to a position higher than assistant principal. Cox relayed this information back to Petitioner, and she was subsequently assigned as assistant principal at North Lakeland Elementary School at the same salary she had received as principal at John Cox.

    
    

17. Petitioner subsequently requested the hearing to challenge this action, and these proceedings followed.

    
    

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

    
    

19. Section 231.001, Florida Statutes (1985), authorized the district school boards to prescribe rules governing personnel matters, including the assignment of duties and responsibilities of all district employees. Pursuant to this authority, the Polk County School Board issued a policy manual (Exhibit

    ). Section 6Gx53-3.016IIC, thereof provides:

    
    

    Multi-year contracts - Shall be issued to school board administrative personnel as follows:

    1. Three-year contracts: The Superintendent shall recommend to the school board a three-year contract for school based administrative personnel after the third year in said position who received total satisfactory or better in each category on the annual procedure for assessing the performance of administrative personnel in the school district.

       
       

20. A principal is considered in the category of administrative personnel and not in the category of instructional personnel.

    
    

21. The duties of a principal are contained in Section 231.085, Florida Statutes, which provides:

    
    

    A district school board shall employ, through written contract, public school principals who shall supervise the operation and management of the schools and property as the board deems necessary. Each principal shall perform such duties as may be assigned by the superintendent pursuant to the rules of the school board. Such rules shall include, but not be limited to, rules relating to the administrative

    responsibility, instructional leadership of the educational program of the school to which the principal is assigned, submission of personnel recommendations to the superintendent, administrative responsibility for records and reports, administration of corporal punishment, and student suspension.

    
    

22. Section 6Gx53-3.002III Policy Manual more specifically outlines the duties of a principal in the Polk County School System. These duties include administrative responsibility and leadership for the school, making personnel recommendations, maintaining required records and reports, controlling student behavior, maintaining good community relations, providing for student needs, maintaining good staff relations and such other duties as may be assigned by the superintendent.

    
    

23. To quality for a multi-year contract which Petitioner here seeks, her performance for the three years preceding the award of such a contract must be totally satisfactory. Totally satisfactory has been interpreted by the Polk County School Board as having no adverse comments on the evaluation report. Petitioner's first and second year evaluations contained comments clearly indicating improvements were necessary. Thus, these evaluations were not "total satisfactory," and Petitioner was not eligible for a multi-year contract.

    
    

24. In his argument, counsel for Petitioner does not contend the interpretation of Section 6Gx-53-3.016IIC Policy Manual was an unreasonable interpretation -- only that Petitioner was not specifically advised that comments on her evaluation would disqualify her for a multi-year contract. This argument is without merit. This rule clearly states that performance evaluation must be totally satisfactory for three years before a multi-year contract will be awarded. Totally is the adverb form of the noun total which means entire, complete and utter.

    
    

25. It is a well established rule of statutory construction that an agency determination with regard to a statute's interpretation of a statute the agency enforces will normally be accorded great deference unless there is clear error or conflict with the intent of the statute. Red Lion Broadcasting Co. v. FCC,

    395 US 367, 89 S.Ct. 1794, 23 L.Ed 2d 371 (1969); Department of Environmental Regulation v. Goldring, 477 So.2d 532, 534 (Fla. 1985); San Souci v. Division of Land Sales, 421 So.2d 623 (Fla. 1st DCA 1982).

    
    

26. A fortiori, this reasoning applies to the interpretation of a rule by the agency promulgating the rule.

    
    

27. Section 228.041(10)(b), Florida Statutes, provides:

    
    

    A principal is an employee, qualified in accordance with s. 231.15, who is assigned responsibility for administrative direction and instructional supervision at an individual school. For purposes of classification he may be either:

    1. A building principal who is designated as the administrative head of the school; or

    2. An assistant principal who is assigned limited administrative and supervisory duties within a school.

    
    

28. According to this statutory definition, a principal may be assigned as an assistant principal as was done to Petitioner in this case. Inasmuch as Petitioner is receiving the same pay she received as principal at John Cox Elementary School, she has suffered no financial loss as a result of this transfer.

    
    

29. Petitioner has here demanded that she be reassigned as a principal at John Cox Elementary School and given a multi-year contract. From the above discussion regarding the requirement for administrative personnel to obtain a multi-year contract, it is clear that Petitioner was correctly denied a multi- year contract because of her performance evaluation.

    
    

30. With respect to Petitioner's demand for a lateral transfer as principal of John Cox Elementary School, Petitioner was initially offered such an assignment and turned it down. Petitioner has cited no law or other authority to require the superintendent of schools in Polk County to make any recommendation to the school board to which the superintendent does not agree. No evidence has been presented to show the superintendent acted arbitrarily or capriciously in transferring Petitioner to North Lakeland Elementary School as assistant principal or in refusing to transfer Petitioner laterally as principal at another school. The evidence is unrebutted that the superintendent had cause to believe the interest of the Polk County school system would be best served by removing Petitioner as principal at John Cox Elementary School and reassigning her as assistant principal at another school in the Polk County school System.

    
    

31. Among the numerous duties and responsibilities of the superintendent contained in s. 230.33, Florida Statutes, is included:

    
    

    1. PERSONNEL - Be responsible, as required herein, for directing the work of the personnel, subject to the requirements of chapter 231, and in addition he shall have the following duties:

       1. Positions, qualifications, and nominations. - Recommend to the school board duties and responsibilities which need to be performed and positions which need to be filled to make possible the development of an adequate school program in the district; recommend minimum qualifications of personnel for these various positions; and nominate in writing persons to fill such positions. All nominations for reappointment of supervisors and principals shall be submitted to the school board at least 8 weeks before the close of the post school conference period. All nominations for reappointment of members of the instructional staff shall be made after conferring with the principals and

    shall be submitted in writing to the school board at least 6 weeks before the close of the post-school conference period.

    
    

32. In carrying out these duties, perforce, the superintendent is given wide discretion. Absent some clear evidence of an abuse of this discretion, the actions of the superintendent must be affirmed.

    
    

33. From the foregoing, it is concluded that Petitioner did not qualify for a multi-year contract at the expiration of her three-year tour as principal at John Cox Elementary School; that Petitioner was fully advised of reasonable options open to her before she was reassigned and one of those options was to remain as principal of John Cox Elementary School which Petitioner declined; and that the actions of the superintendent recommending and the school board approving Petitioner's transfer to North Lakeland Elementary School as assistant principal with the same salary she made at John Cox Elementary School is in accordance with Florida Statutes and the policy of the Polk County school system. It is

RECOMMENDED that the Petition of Mary L. Baxter for a multi-year contract, to be reinstated as principal at John Cox Elementary, and for attorneys fees be dismissed.

ENTERED this 22nd day of March, 1988, in Tallahassee, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 22nd day of March, 1988.

COPIES FURNISHED:

Fred Buckine, Esquire 1511 North Morgan

Tampa, Florida 33602

Henry E. Nobles, Esquire Post Office Box 4147 Tampa, Florida 33677

Donald H. Wilson, Jr., Esquire Boswell, Boswell, Conner & Wilson Post Office Box 1578

190 East Davidson Street Bartow, Florida 33830-1578

Neriah E. Roberts

Northwest Area Superintendent Polk County Schools

Post Office Box 391 Bartow, Florida 33830

Honorable Betty Castor Commissioner of Education The Capitol

Tallahassee, Florida 32399

Sydney H. McKenzie, Esquire General Counsel

Department of Education Knott Building Tallahassee, Florida 32399

John A. Stewart Superintendent of Schools School Board of Polk County Post Office Box 391

Bartow, Florida 33830-1578

Docket for Case No: 87-003650

Orders for Case No: 87-003650