STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PETER J. LELEKIS, )

)

Petitioner, )

)

vs. ) CASE NO. 87-4910

)

BETTY CASTOR, Commissioner of ) Education, and the STATE BOARD ) OF EDUCATION, )

)

Respondent. )

)

RECOMMENDED ORDER

A final hearing was held in this case on February 10, 1988 in Clearwater, Florida, before Donald D. Conn, Hearing Officer, Division of Administrative Hearings. The parties were represented by:

For Petitioner: Ronald G. Meyer, Esquire

MEYER, BROOKS & COOPER, P.A.

Post Office Box 1547 Tallahassee, Florida 32302

For Respondent: Charles S. Ruberg, Esquire

Department of Education Knott Building Tallahassee, Florida 32399

The issue in this case is whether Peter J. Lelekis (Petitioner) timely tendered his application for continued participation in the State Master Teacher Program for the 1986-87 school year. The parties introduced eleven joint exhibits. Petitioner testified on his own behalf, and also called: John Katsaris, math teacher at Tarpon Springs High -school participating in the State Master Teacher Program; Chalmers Coe, principal of Tarpon Springs High School; Patricia Burdette, principal's secretary; and Larry Hutcheson, bureau chief with the Department of Education. Virginia Sasser, an employee of the Department of Education with continuing responsibilities for the Master Teacher Program, was called on behalf of Betty Castor, as Commissioner of Education, and the State Board of Education (Respondents). No transcript of the hearing was filed. The Appendix to the Recommended Order contains a ruling on each timely filed proposed findings of fact.

FINDINGS OF FACT

1. Petitioner is now, and has been employed as a teacher in the Pinellas County school District since the 1980-81 school year. Since the 1983-84 school year, he has taught biology and earth science at Tarpon Springs High school under continuing contract.

2. In November, 1984, Petitioner applied for Associate Master Teacher Endorsement in the state Master Teacher Program for the 1984-85 school year.

   His application was approved, and he participated in the Master Teacher Program for the 1984-85 school year, receiving the appropriate salary incentive award of

   $3000.

   
   

3. In October, 1985 Petitioner applied for continued participation in the Master Teacher Program for the 1985-86 school year. His application was again approved, and he participated in the program for the 1985-86 school year, receiving the appropriate salary incentive award of $3000.

   
   

4. The 1986-87 school year was the third and final year of the State Master Teacher Program. The application deadline for continued participation by teachers previously endorsed as Master Teachers was November 1, 1986. According to Virginia Sasser, Petitioner meets all substantive requirements and criteria for continued participation in the program for the 1986-87 school year.

   However, it is the position of the Respondents that Petitioner failed to timely file his application by November 1, 1986, and therefore he was not eligible to receive a Master Teacher salary incentive award for the 1986-87 school year.

   
   

5. The first notice that Petitioner received that he had not been approved for participation in the program for the 1986-87 school year was in August, 1987 when other Master Teachers at Tarpon Springs High School received their salary incentive awards of $3000, and he did not. Petitioner contacted the Department of Education and spoke with Virginia Sasser who told him that the Department had no record of his 1986-87 application for continued participation. No specific advice was offered by Sasser about what he should do. Subsequently, Sasser learned that the Pinellas County School District also had no record of ever receiving Petitioner's application for 1986-87.

   
   

6. The 1986-87 application procedure required individual teachers to complete Form MT-5, and submit it to their principal for his certification and signature. The Form requires the principal to certify that he has returned a completed copy of the application to the teacher after the principal affixed his signature. Thereafter, the Form was to be forwarded by the principal to the School District Office for transmittal to the Department of Education. In January, 1987, acknowledgments were sent to teachers whose applications had been received by the Department of Education.

   
   

7. Based upon the testimony of Petitioner, Chalmers Coe, Petitioner's principal, John Katsaris, fellow Master Teacher, and Patricia Burdette, Coe's secretary, it is specifically found that Petitioner did properly complete and submit Form MT-5 to Coe in mid-October, 1986. However, the Form was thereafter lost either in Coe's office or in transit from Tarpon Springs High School to the School District Office in Clearwater via courier. Petitioner was not responsible for, and was not aware of this loss. Although he was on the School District's list of Master Teachers from whom an application for continued participation would be expected to be received, no one from the School District Office ever contacted Coe or the Petitioner to inquire why his Form MT-5 had not been received. Petitioner reasonably assumed that Coe had properly processed the application he gave him, and that the intradistrict mail courier would deliver it to the School District personnel officer. Patricia Burdette testified that on occasion items she placed in the courier mail, or which were placed in the mail for her, were lost and never received.

   
   

8. The testimony of Chalmers Coe, principal of Tarpon Springs High school is found to be credible and persuasive in that he clearly confirmed the

   following statements contained in a letter he sent to Virginia Sasser in September, 1987, after Petitioner had been informed by Sasser that his application had not been received by the Department:

   
   

   This is to notify you that Peter Lelekis, a teacher on our staff, did submit a completed application for the Master Teacher Program for 1986-87. This application was submitted before the deadline of November 1, 1986.

   
   

   I, as well as my secretary, Patricia Burdette can verify that Mr. Lelekis did comply with the instructions from the Master Teacher Division of the Department of Education. I personally signed and forwarded forms to Superintendent.

   
   

   The testimony of John Katsaris supports the testimony of Petitioner and Coe in that Katsaris testified he saw Petitioner take his Form MT-5 to Coe's office in mid-October, 1986, and spoke with Petitioner about the application.

   
   

9. According to Larry Hutcheson, who administered the Master Teacher Program for the Department of Education from approximately June, 1985 to July, 1986, the Department followed a "hold-harmless philosophy" in administering the program whereby if an applicant did his part to comply with all application procedures, as verified by his principal or superintendent, an applicant whose application was not timely filed would be held-harmless for this omission and the substantive merits of his application would be evaluated. This philosophy was applied "not infrequently" according to Hutcheson. Virginia Sasser, who has continuing responsibilities for the program, confirmed this "philosophy," and stated that if the principal or superintendent conceded their error, a teacher's application would be accepted and evaluated. She further acknowledged that if an application was lost in the mail, the teacher should similarly be held- harmless for the courier's error.

   
   

10. In this case, an error was made either by the intra-district mail courier, or by Coe in not insuring that Petitioner and the District Personnel Office received a copy and the original Form MT-5, respectively, after he signed this form. In either event, the error that was made was not made by Petitioner, and he should therefore be held-harmless in accordance with the Department's applicable "philosophy" for administering this program.

    
    

11. Coe and Petitioner both testified that he meets all substantive requirements and criteria for continued participation for the 1986-87 school year, a fact not disputed by Respondents.

    
    

12. Petitioner has timely sought review of the Respondents' decision, as set forth by letter dated September 17, 1987, to deny his continued participation in the State Master Teacher Program for the 1986-87 school year solely for the following reason:

    
    

    According to our records, a 1986-7 application was never received by our office for you. In addition, the Pinellas school district office records further confirmed that your application was not

    processed through their office. I regret that we cannot accept Mr. Coe's statement as evidence of your filing an application for continued participation in the program.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this cause Section 120.57(1), Florida Statutes.

    
    

14. In pertinent part, Rule 6A-4.046, Florida Administrative Code, states:

    
    

    1. Continued program participation. An individual who holds a valid associate master teacher endorsement and desires an economic incentive for the second or third school fiscal year of the validity period of the endorsement shall:

       1. Submit a State Master Teacher Program Application, Form MT-5, no later than November 1 of the school fiscal year for which continued program participation is desired. For participants who did not take a subject area examination for the

          endorsement, the candidate shall obtain the principal's verification of the majority of the candidate's teaching duties pursuant to Rule 6A-4.046(4)(a)3., F.A.C.

       2. The Florida district superintendent or the chief administrative officer of a state-supported school shall verify to the Department by April 1 of the school fiscal year for which the basis of economic incentive is desired, the participant has:

          1. Successfully performed assigned responsibilities; and

          2. Agreed by contract to complete one

             (1) year of service, as defined in Rule 6A-4.046(2)(c) and (d), F.A.C., in a Florida public nursery, elementary, or secondary school.

       3. Provide a properly authenticated score report of a superior score as defined in Rule 6A-4.046(6)(e), F.A.C., on the appropriate subject area examination, if required.

          * * *

          1. Appeal process.

             * * *

             1. The Commissioner shall, within ninety (90) days of receipt of the completed State Master Teacher Program

                Application, inform each candidate that his or her application for the continued program participation has been granted or denied, stating with particularity the grounds or basis for the denial, and in the

                event of denial, that he or she may request a hearing in accordance with Section 120.57, Florida Statutes. Said request shall be filed by the applicant within twenty-one (21) days of receipt of the denial, and shall be filed in accordance with Rule 6A-16.016, F.A.C.

             2. It shall be the burden of the candidate to show that he or she has met criteria for the continued program participation. The Commissioner shall issue a final order granting or denying the continued program participation. Appeal from said order shall be taken to the appropriate district court of appeal in accordance with Section 120.68, Florida Statutes.

             
             

          2. Extenuating circumstances. Under extenuating circumstances not covered by the provisions of this rule, the Commissioner shall be authorized to make decisions on implementation of Rules

          6A-4.046(3) through (6), F.A.C., when requested in a written statement by a Florida district superintendent or a chief administrative officer of a state-supported school.

          
          

15. In this case, Petitioner has established by a preponderance of the evidence, that he met the substantive and procedural requirements of Rule 6A-

    4.046 for continued participation in the State Master Teacher Program. The evidence establishes that he did everything required of him, but through no fault of his own his Form MT-5 was lost. Competent substantial evidence was offered on Petitioner's behalf while absolutely no evidence was offered by Respondents to support their position that Petitioner failed to timely file his application. They rely simply on the fact that Petitioner's application was not received, and seek to ignore the "hold-harmless philosophy" which had been applied to this program.

    
    

16. In their Proposed Conclusions of Law, Respondents rely on the requirements for filing of applications set forth in subsections (3) and (4) of Rule 6A-6.046. Yet, Respondents disregard subsection (11) of Rule 6A-6.046, set forth above, which provides authority for the Commissioner of Education to decide questions on the implementation of Rule 6A-6.046(3) through (6) in extenuating circumstances when requested by a district superintendent or school principal. Principal Coe's letter of September, 1987, and his testimony at hearing constitute just such a request for a decision under the extenuating circumstances of this case. In Respondent's Proposed Conclusion of Law 10(a), it is conceded that, "The application was lost somewhere between the desk of Principal Coe and the school district office." This extenuating circumstance requires the application of the "hold-harmless philosophy" so that Petitioner is not penalized or made to suffer for the failures of others.

17. It is not disputed by Respondents that Petitioner meets all substantive criteria for continued participation in the Master Teacher Program for the 1986-87 school year. Additionally, the evidence establishes that he timely filed his application before November 1, 1986.

RECOMMENDATION

Based upon the foregoing, it is recommended that the Respondents enter a Final Order approving Petitioner for continued participation in the State Master Teacher Program for the 1986-87 school year, and providing him with the appropriate salary incentive award of $3000.

DONE AND ENTERED this 3rd of March, 1988, in Tallahassee, Florida.

DONALD D. CONN

Hearing Officer

Division of Administrative Hearings The Oakland Building

2900 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 3rd day of March, 1988.

APPENDIX

Rulings on Petitioner's Proposed Findings of Fact:

1. Adopted in Finding of Fact 2.

2. Adopted in Finding of Fact 3.

3. Adopted in Findings of Fact 4, 7, 8.

4. Adopted in Findings of Fact 4, 11.

5. Adopted in Findings of Fact 5, 7.

6. Rejected and Accepted, in part, in Finding of Fact 5.

7. Adopted in Finding of Fact 5.

8. Adopted in Finding of Fact 8.

9. Adopted in Findings of Fact 4, 8, 11.

10. Adopted in Findings of Fact 4, 11.

11. Adopted in Findings of Fact 4, 7, 10, 11.

12. Adopted in Findings of Fact 9, 10.

Rulings of Respondent's Proposed Findings of Fact:

1. Adopted in Finding of Fact 1.

2. Adopted in Finding of Fact 2.

3. Rejected as unnecessary.

4. Rejected as unnecessary, and as a conclusion of law.

5-6. Rejected as unnecessary. The only issue in this case is whether Petitioner is entitled to the third year salary incentive award. Thus, the general application and renewal process is irrelevant.

7. Adopted in Finding of Fact 3.

8-9. Rejected as irrelevant and unnecessary.

10. Rejected in Findings of Fact 4, 11.

11-13. Rejected as unnecessary, irrelevant and as a conclusion of law. Generalized discussion of the Master Teacher Program does not pertain to the issue in this case.

1. Adopted in Findings of Fact 4, 6, 7.

2. Rejected in Findings of Fact 7, 8. The primary testimony was offered by Coe and Was confirmed and supported by Katsaris, Petitioner and Burdette.

16-18. Rejected in Findings of Fact 7, 8, 10 and otherwise

1. Adopted in part in Finding of Fact 10, but otherwise Rejected as irrelevant.

2. Rejected as irrelevant and unnecessary.

3. Adopted in Finding of Fact 5 but otherwise Rejected as irrelevant.

4. Rejected in Findings of Fact 7, 8, 10.

5. Adopted in Finding of Fact 5.

6. Adopted in Findings of Fact 5, 6.

7. Rejected as irrelevant.

26-27. Adopted in Finding of Fact 5.

1. Adopted in Findings of Fact 8, 12.

2. Rejected as irrelevant. This is a de novo hearing to determine if Petitioner did submit his application.

30-31. Adopted in part in Findings of Fact 9, 10, but otherwise Rejected as irrelevant and not based on competent substantial evidence.

32. Rejected in Finding of Fact 12. Petitioner's request for hearing was timely.

COPIES FURNISHED:

Ronald G. Meyer, Esquire MEYER, BROOKS & COOPER, P.A.

Post Office Box 1547 Tallahassee, Florida 32302

Charles S. Ruberg, Esquire Department of Education Knott Building Tallahassee, Florida 32399

Hon. Betty Castor Commissioner of Education The Capitol

Tallahassee, Florida 32399

Sydney H. McKenzie General Counsel Department of Education Knott Building

Tallahassee, Florida 32399

Docket for Case No: 87-004910

Orders for Case No: 87-004910