STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
SCHOOL BOARD OF LEON COUNTY, )
)
Petitioner, )
)
vs. ) CASE NO. 92-1405
)
CARLOS SASSE, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to written notice a formal hearing was held in this case before Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings, on May 18, 1992, in Tallahassee, Florida.
APPEARANCES
For Petitioner: C. Graham Carothers, Esquire
Ausley, McMullen, McGehee, Carothers & Proctor
Post Office Box 391 Tallahassee, Florida 32302
For Respondent: J. David Holder, Esquire
J. David Holder, P.A. Suite 100
1408 North Piedmont Way Tallahassee, Florida 32312
STATEMENT OF THE ISSUES
Whether the Petition for Formal Administrative Hearing filed by the Respondent, Carlos Sasse, should be dismissed in part for failure to timely file.
Whether the Petitioner, the School Board of Leon County, should have abolished Mr. Sasse's position of employment and failed to fulfill its contract of employment with Mr. Sasse.
PRELIMINARY STATEMENT
On November 19, 1991, the Petitioner, the School Board of Leon County (hereinafter referred to as the "School Board"), abolished the funding for several positions of employment with the Leon County school district (hereinafter referred to as the "School District"), including the position of Assistant Superintendent of Instruction. Funding was eliminated effective December 31, 1991. The Respondent, Carlos Sasse, was employed as the Assistant Superintendent of Instruction at all time relevant to this proceeding.
On January 27, 1992, Mr. Sasse served a Petition for Formal Administrative Hearing on the School Board and requested referral of the Petition to the Division of Administrative Hearings for the purpose of conducting a formal administrative hearing. On March 2, 1992, the School Board filed the Petition with the Division of Administrative Hearings.
Initially the School Board was designated as the Respondent and Mr. Sasse was designated as the Petitioner. This designation was incorrect because the School Board has the burden of proof in this case. The error was corrected but not until the final hearing of this case.
In addition to the Petition, School Board filed [Petitioner's] Motion to Dismiss Portions of the Petition for Formal Administrative Hearing. In the motion, the School Board requested a ruling on its motion be incorporated in this Recommended Order. The motion has been addressed, infra.
At the final hearing, the School Board presented the testimony of Lee V. Legutko. The School Board also offered three exhibits, which were accepted into evidence. The School Board called William M. Woolley as a rebuttal witness.
Mr. Sasse testified on his own behalf and presented the testimony of David Domenick Giordano and Mr. Woolley. Mr. Sasse also offered fourteen exhibits, which were accepted into evidence. Mr. Sasse also offered as an exhibit a Return of Service. The Return of Service was offered only for purposes of the Motion to Dismiss.
The parties have filed proposed recommended orders containing proposed findings of fact. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order or the proposed finding of fact has been accepted or rejected in the Appendix which is attached hereto.
FINDINGS OF FACT
Carlos Sasse's Employment with the School Board.
In July, 1989, the Respondent, Carlos Sasse, was hired by the Petitioner, the School Board of Leon County. Mr. Sasse was hired as the Assistant Superintendent of Instruction (or a similarly designated position).
Mr. Sasse's duties included the supervision of seven executive directors, the functioning of twenty-two elementary schools, seven middle schools, five high schools and a number of other programs.
The Superintendent of the School District, William M. Woolley, recommended that Mr. Sasse be retained for the 1991-1992 fiscal year of the School Board. The School Board accepted the Superintendent's recommendation and reappointed Mr. Sasse as Assistant Superintendent of Instruction.
The School Board's fiscal year runs from July 1st to June 30th.
For the 1991-1992 fiscal year the School Board approved (on April 16, 1991), and Mr. Sasse accepted, the employment of Mr. Sasse for twelve months beginning July 1, 1991, at a salary of approximately $60,000.00, plus fringe benefits.
No written contract of employment between the School Board and Mr. Sasse for the 1991-1992 fiscal year was entered into. The School Board
admitted, however, in its Answer filed in this case that Mr. Sasse was employed pursuant to an annual contract of employment.
Mr. Sasse has performed his duties with the School Board in a satisfactory manner.
The School Board's 1991-1992 Budget.
The School Board is charged by law with the responsibility to operate, control and supervise all public schools within the School District.
In fulfilling its responsibilities, the School Board is required to approve a budget for the operation of the school system. Toward this end, the School Board approved the budget for the 1991-1992 school year (hereinafter referred to as the "1991-1992 Budget"), on September 17, 1991. See Petitioner's Exhibit 1.
Consistent with the requirements of Florida law (Section 237.061, Florida Statutes), the 1991-1992 Budget was a balanced budget. That is, projected expenditures did not exceed projected sources of funds.
At the time the School Board approved the 1991-1992 Budget, the School Board members were aware of the unfavorable economic conditions impacting the budget. The School Board had taken actions prior to the 1991-1992 fiscal year to reduce expenditures by reducing approximately seventy-five positions totaling almost $2.5 million.
The 1991-1992 Budget consisted generally of five "funds": (a) a general operating fund; (b) a special revenue fund; (c) a capital improvement fund; (d) a debt service fund; and (e) a trust and agency fund. The general operating fund is the fund providing for the budget for the School Board's educational and support service programs.
The School Board was somewhat restricted in the use of monies between funds. For a more detailed description of the various funds (other than the general operating fund), see proposed findings of fact 7-10 of the School Board's proposed recommended order.
The final 1991-1992 Budget provided for approximately $131 million of expenditures and, excluding certain fund balances, approximately $125 million of revenues.
State revenue accounted for approximately 72% of the general operating fund of the 1991-1992 Budget. Approximately 82% of the general operating fund was earmarked for salaries and employee benefits for the approximately 4,000 employees of the School District.
In approving the 1991-1992 Budget the School Board established certain priorities, which the School Board sought to achieve through the 1991-1992 Budget. For more details concerning those priorities, see the School Board's proposed findings of fact 14 and 15.
The Unappropriated Fund Balance.
Although not required by statute, it is generally recognized within the public agency sector that public agencies, such as the School Board, should attempt to maintain an amount of money as an "unappropriated fund balance"
(hereinafter referred to as the "Fund Balance"), or as a reserve equal to approximately 5% of the total operating budget.
In an effort to establish a Fund Balance, the School Board adopted Rule 6.01, Rules of the School Board. Rule 6.01 provides, in pertinent part:
(14) . . . .
The School District shall establish and maintain an annual contingency reserve of no less than 1% of the total general fund effective with the 1990-91 fiscal year, increasing by as much as 1% per fiscal year thereafter until stabilizing at 5% subject to an annual financial review by the Board during the budget process. This reserve shall provide for temporary funding of unforeseen needs of an emergency or non- recurring nature. . . .
The Fund Balance was separate from another contingency fund created by Rule 6.01.
For the 1990-1991 fiscal year, the School Board's goal of a 1% Fund Balance was achieved. The Fund Balance at the end of the 1990-1991 fiscal year was $7,841,954.00.
For the 1991-1992 Budget, however, the School Board was required to utilize the Fund Balance to meet "unforeseen needs of an emergency or non- recurring nature." As a result of severe revenue restrictions, the School Board was required, and decided as part of its approval of the 1991-1992 Budget on September 17, 1991, to utilize approximately $5,167,746.00 of the Fund Balance.
At the time the 1991-1992 Budget was adopted, the School Board anticipated that it would receive approximately $2.6 million more in total general operating fund revenues than it had in the previous fiscal year. It also anticipated expenditures of approximately $10 million over the previous fiscal year because of increases in salaries, fringe benefits, carry over obligations and other expenses. Therefore, it was anticipated that expenditures would exceed revenues by approximately $7.4 million. The School Board decided to offset the projected 7.4 million excess, in part, by using $5.2 million of the Fund Balance. This resulted in a projected Fund Balance of only
$2,674,208.00.
The School Board approved the 1991-1992 Budget with a projected Fund Balance of $2,674,208.00, less than its 1% goal. Rule 6.01, however, recognizes the possibility that the Fund Balance may have to be used. While Rule 6.01 establishes a 5% goal for the Fund Balance, it does not require that this goal be achieved within any particular time period.
Anticipated Shortfalls in State Funding and the School Board's Response Thereto.
Between September 17, 1991, and November 5, 1991, the School Board was informed that the State of Florida had predicted that the anticipated revenues to be paid to the School District by the State would likely be $3,300,000.00 less than previously anticipated.
After applying an emergency 1% fund and other funds to offset this anticipated reduction in revenues, the School Board was faced with a reduction
of approximately $1,550,000.00 in its projected revenues for the 1991-1992 Budget.
The School Board met on November 5, 1991, to consider what action to take to respond to the anticipated short-fall in State funding. During this meeting, the School Board heard from, among others, Lee Legutko, the Chief Financial Officer of the School District.
After hearing from the Chief Financial Officer, the School Board directed the Superintendent to prepare for consideration at a November 19, 1991, meeting of the School Board a number of budget-reducing and other budget-related items. Among the items to be prepared for consideration was the following:
the abolishment of the following positions effective December 31, 1991 as shown below:
* ....Executive Director of Operations
....Executive Director of Student Services
....One position in Information Services
....Assistant Director of Educational Media
....Athletic Complex Foreman
....District Auditor
....Internal Accounts Auditor
* Executive Director of Facilities
....Assistant Superintendent for Instruction
....Assistant Superintendent for Administration
*Combine [Emphasis added].
At the November 5, 1991, School Board meeting, the School Board directed the Superintendent to notify the persons who were in the positions under consideration for abolishment that the School Board would consider the issue at the November 19, 1991, meeting.
By letter dated November 12, 1991, from the Superintendent to Mr. Sasse, Mr. Sasse was informed of the School Board's action at the November 5, 1991, meeting. Among other things, the Superintendent told Mr. Sasse:
At [the November 19, 1991] meeting, the Board may take formal action to abolish the position currently filled by you effective December 31, 1991. Any such abolishment of your position will be without prejudice to your right to petition the Board for a subsequent hearing with respect to your right of employment in and the availability of other positions for which you may be qualified. [Emphasis added].
The Superintendent went on to inform Mr. Sasse of the place and time of the meeting, he invited Mr. Sasse to attend and "present your position" (including through a written statement) and he assured Mr. Sasse that the Superintendent was committed to assisting persons adversely affected to "find other employment within the District with no break in service." The Superintendent ended the letter by assuring Mr. Sasse that he would make no recommendation until the November 19th meeting.
Mr. Sasse was not advised in the November 12, 1991, letter, or otherwise, that his position was abolished or as to any due process rights he might have to contest any action adversely affecting Mr. Sasse's employment contract with the School Board.
Mr. Sasse received the November 12, 1991, letter from the Superintendent.
The School Board met on November 19, 1991. Among the items considered during this meeting was the abolishment of Mr. Sasse's position and the other positions the Superintendent had been requested to consider.
Mr. Sasse was aware of the fact that the abolishment of his position would be considered prior to the meeting. He attended the meeting and, therefore, was aware of the School Board's action concerning his position during the November 19, 1991, meeting. Counsel for Mr. Sasse spoke on his behalf at the November 19, 1991, meeting.
The Chief Financial Officer of the School District informed the School Board at the November 19, 1991, meeting, as he had at the November 5, 1991, meeting, that the 1991-1992 Budget would be balanced as required by law even if the School Board did not abolish Mr. Sasse's position (or the other positions being considered for abolishment).
The Chief Financial Officer notified the School Board that the Fund Balance for the 1991-1992 Budget would be $260,758.00 if all eight of the positions the School Board had identified for consideration at its November 5, 1991, meeting were abolished effective December 31, 1991.
Upon a motion being duly made, the School Board voted three to two to abolish the positions the School Board had identified for consideration at its November 5, 1991, meeting, including the position of Mr. Sasse. The positions were all eliminated effective December 31, 1991. Later during the November 19, 1991, meeting, the School Board voted to reinstate one of the eight abolished positions. Therefore, ultimately, the School Board eliminated seven positions, including Mr. Sasse's.
The manner in which Mr. Sasse's position was eliminated consisted of a vote of the School Board to eliminate the position and the adoption of an amendment to the 1991-1992 Budget to eliminate funding for Mr. Sasse's position for the second half of the 1991-1992 fiscal year.
The School Board also approved other amendments to the 1991-1992 Budget at the November 19, 1991, meeting.
The abolishment of Mr. Sasse's position resulted in a savings in the 1991-1992 Budget of approximately $40,609.00. The net savings attributable to the abolishment of the seven positions eliminated was approximately $165,000.00.
After all the amendments to the 1991-1992 Budget approved on November 19, 1991, the Fund Balance was projected to be $192,442.00. Therefore, the Fund Balance was sufficient to provide the funding necessary to fulfill the School Board's annual contract with Mr. Sasse from the Fund Balance.
According to the Chief Financial Officer, it was not necessary to abolish Mr. Sasse's position in order for the School Board to maintain a balanced budget.
The Superintendent recommended to the School Board that all of the positions other than Mr. Sasse's be eliminated. The Superintendent recommended that the School Board not eliminate Mr. Sasse's position based upon the Chief Financial Officer's advice to the School Board and the Superintendent's perceived need for the position. The Superintendent has subsequently, however, indicated that the loss of the position has actually had some positive impact on the administration of the Leon County school system.
The School Board did not undertake any study or review of the administration of the School District before determining which positions, if any, should be considered for elimination prior to its action on November 19, 1991. It did take such action after the fact.
Prior to reaching its decision on November 19, 1991, the School Board did not receive evidence or testimony or provide other due process safeguards to Mr. Sasse.
The weight of the evidence failed to prove that the projected Fund Balance as of November 19, 1991, could not have been used to fulfill Mr. Sasse's employment contract for the entire fiscal year.
After abolishing Mr. Sasse's position and the other positions the School Board directed the Superintendent to take the following actions:
. . . promptly advice those persons whose positions have been abolished by the action of the Board, advise those persons of any vacant positions for which they may seek to be considered and to suggest to those affected persons that they make known their interest in any such vacancies within the next several weeks. . . .
The motion to abolish Mr. Sasse's position and the other positions adopted by the School Board also expressly provided that the School Board's actions was "subject to the right of the incumbents to file a petition with the Board for a subsequent hearing for the purposes of determining whether there are other vacant positions for which these persons are qualified "
The weight of the evidence failed to prove that were not other reasonable alternatives to breaching its contract with Mr. Sasse available to the School Board to address the budget problems. For example, the School Board failed to refute evidence presented by Mr. Sasse concerning the possibility of furloughing administrative staff for one day. The School Board also failed to refute evidence presented by Mr. Sasse that the School Board normally has lapsed salary (amounts budgeted to be paid for salary which are not used because of vacancies) which has averaged $1 million a year.
At the time of the final hearing of this matter, the anticipated carry forward in revenues for the 1991-1992 fiscal year was $1.1 million.
Efforts to Place Persons in Abolished Positions in Other Positions.
Subsequent to the November 19, 1991, meeting, Mr. Dave Giordano, the Director of Personnel Services of the School District, considered alternatives for placing the persons in other positions within the school district whose positions had been abolished. The alternatives were discussed with the Superintendent and other administrative staff.
A memorandum dated November 22, 1991, was written by Mr. Giordano to Mr. Sasse and was provided to Mr. Sasse. The memorandum notified Mr. Sasse that the School Board had directed that Mr. Sasse "be allowed, without prejudice, to apply for other positions within the school district." Mr. Giordano requested that Mr. Sasse notify him in writing within the next three weeks of any positions he wished to be considered for. A copy of a list of eight vacant and available positions was provided to Mr. Sasse with the memorandum.
Three days after Mr. Giordano prepared his November 22, 1991, memorandum to Mr. Sasse, Mr. Giordano prepared a memorandum to the Superintendent setting forth for consideration a possible plan for the placement for the displaced employees into the vacant and other existing positions Mr. Sasse had been informed of. The plan of placement set out in Mr. Giordano's November 25, 1991, memorandum was based upon the discussions between the Superintendent and staff that had already taken place. Based upon the plan, Mr. Sasse was being considered for the position of Director of Co-Curricular Activities.
On December 10, 1991, before the expiration of the three week period in which Mr. Sasse had been told to respond to Mr. Giordano's memorandum, the School Board met. At the December 10, 1991, meeting, all of the persons whose positions had been abolished on November 19, 1991, except Mr. Sasse, were recommended by the Superintendent for placement in other positions. The Superintendent's recommendation was approved by the School Board.
The weight of the evidence failed to prove that the School Board took any action, other than Mr. Giordano's memorandum of November 22, 1991, to place Mr. Sasse in a vacant position which would insure that the School Board's contractual obligation to Mr. Sasse for the remainder of the fiscal year was fulfilled.
By letter dated December 11, 1991, counsel for Mr. Sasse informed the Superintendent that Mr. Sasse understood (based upon Mr. Giordano's November 25, 1991, memorandum) that the Superintendent was considering placing Mr. Sasse in the Director of Co-Curricular Activities position. Counsel indicated that "Mr. Sasse would be willing to accept such an appointment provided that he remain at his contractually agreed price pay grade for the remainder of his contract period." Counsel went on to explain that the apparent difference in his current salary and the salary for the Director of Co-Curricular Activities he was being considered for of $7,363.20 for the second half of the fiscal year was contrary to his contract with the School Board and was not acceptable to Mr. Sasse.
The School Board did not respond to counsel for Mr. Sasse's letter of December 11, 1991.
As of December 10, 1991, the only vacant position available to Mr. Sasse that he had been informed of by the School Board was the Director of Co- Curricular Activities, which remained open and available as late as the day the final hearing in this case was conducted.
Mr. Sasse was qualified, ready and able to serve as the Director of Co-Curricular Activities during the period from January 1, 1992, to June 30,
1992. He was also willing to serve in that position if the conditions of his contract with the School Board concerning salary were met and so notified the School Board.
The School Board made no additional effort to place Mr. Sasse in any position as of January 1, 1992, or to otherwise fulfill its contract with him for the second half of the fiscal year.
Mr. Sasse has remained willing an able to fulfill the terms of his employment contract with the School Board.
No action has been instituted pursuant to Section 231.36, Florida Statutes, to terminate Mr. Sasse's contract for just cause.
The School Board had a rule governing the manner in which employees may be terminated. Rule 6Gx37-2.36. This rule was not followed by the School Board.
Request for Hearing.
Mr. Sasse has never been informed that his position has been terminated and the School Board did not intend to take any further action to find a position for him which would fulfill their contract with him for the second half of the fiscal year. The School Board has also failed to provide notice to Mr. Sasse of the reason why his contract was not fulfilled, his right to request a hearing on the actions of the School Board or the time within which he must request a hearing.
On January 27, 1992, Mr. Sasse served a Petition for Formal Administrative Hearing with the School Board.
Although not served with twenty-one days after Mr. Sasse's position was abolished, it was served with twenty-one days after it first became definite that the School Board did not intend to comply with its contract with Mr. Sasse by placing him in another position or by any other means.
CONCLUSIONS OF LAW
Jurisdiction and Standing.
The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1991).
Mr. Sasse has proved that he was substantially affected by the actions of the School Board in failing to fulfill its contract with him for employment for the second half of the 1991-1992 fiscal year of the School Board.
Motion to Dismiss Portions of the Petition for Formal Administrative Hearing.
The School Board has filed a motion to dismiss portions of the petition arguing that the petition was not timely filed in accordance with Rule 28-5.111, Florida Administrative Code. In particular, the School Board has suggested that the agency action at issue in this proceeding is the action of the School Board to abolish Mr. Sasse's position taken on November 19, 1991.
The School Board has argued, therefore, that the petition, which was not served until January 27, 1992, was not served within twenty-one days of the agency action.
The School Board has also argued that the action to abolish Mr. Sasse's position was final agency action reviewable only be the District Court of Appeal of Florida, First District, pursuant to Section 120.68, Florida Statutes. It is suggested, therefore, that the Division of Administrative Hearings lacks jurisdiction over the issue of the School Board's action in abolishing Mr. Sasse's position.
The School Board has only requested that the portions of Mr. Sasse's petition "relating to the Board's prior action in abolishing Petitioner's position" be dismissed.
Mr. Sasse suggests that the motion to dismiss was not filed within the time requirements of Rules 22I-6.004(5) and 28-5.205, Florida Administrative Code. This argument is rejected. The motion raises issues concerning the jurisdiction of the undersigned over this matter, which may be raised at any time.
Turning to the merits of the School Board's motion, the motion must be denied. First, the petition in this case is not merely a challenge to the action of the School Board in abolishing Mr. Sasse's position on November 19, 1991. That action is only a part of the action of the School Board challenged in this case. It is the totality of the School Board's actions as they relate to a breach of contract between the School Board and Mr. Sasse that is at issue. The School Board abolished Mr. Sasse's position, indicated it would make efforts to place him in another position for the remainder of his contract, gave a somewhat contradictory indication that Mr. Sasse could pursue another position within the School District to serve in for the remainder of his contract, made some very minimal effort to find a position for Mr. Sasse and, finally, did nothing to fulfill the School Board's contractual obligation to Mr. Sasse for the remainder of the contract term. It is all these actions together which constitute the agency action at issue in this case.
When all the actions for the School Board which constitute the breach of contract complained of in this case are considered, the one thing that is clear is that there was no clear point in time that Mr. Sasse could have realized that his contract had been breached by the School Board absent notice of such breach from the School Board. At the earliest, the breach may have occurred on January 1, 1992. More realistically, the breach actually occurred at the end of June 30, 1992. Until that point in time, absent clear notice from the School Board, Mr. Sasse could still have been placed in a position for some part of the second half of the fiscal year that would have fulfilled his contract. Until the end of June 30, 1992, all that Mr. Sasse knew positively was that the School Board had abolished his position, told him that they would make efforts to place him in another position (or that he could seek some position himself) Therefore, and had never notified him that his contract was considered null and void by the School Board. Based upon this facts, Mr. Sasse's petition was timely filed.
Additionally, even if Mr. Sasse were merely challenging the School Board's action of November 19, 1991, the evidence proved that the School Board never informed Mr. Sasse of his due process right to request a hearing to challenge that action or the time within which such a request had to be made under the School Board's rules. See Wahlquist v. School Board of Liberty
County, 423 So.2d 471 (Fla. 1st DCA 1983). Rule 28-5.111, Florida Administrative Code, requires such notice in writing. The only written notice to Mr. Sasse was the letter of November 12, 1991, in which he was informed that the School Board "may" take some action. The November 12, 1991, letter did not inform Mr. Sasse of his due process rights.
The fact that Mr. Sasse attended the November 19, 1991, meeting also did not provide Mr. Sasse with adequate notice that he needed to request a hearing to contest the ultimate agency action at issue in this case, the breach of the School Board's contract with Mr. Sasse. The action of the School Board in abolishing Mr. Sasse's position must be considered in light of the other actions taken by the School Board at the same meeting which indicated that the School Board might still fulfill its contractual obligation to Mr. Sasse by placing him in another acceptable position. That this would not happen did not become clear until after the contract expired on June 30, 1992.
Finally, the argument that the action of the School Board in abolishing Mr. Sasse's position was final action is rejected. The School Board has cited no authority which adequately supports such a conclusion and the case law supports a contrary conclusion. See Mitchell v. Leon County School Board,
591 So.2d 1032 (Fla. 1st DCA 1991). More importantly, the agency action at issue in this case is the breach of its contract with Mr. Sasse.
Based upon the foregoing the School Board's motion to dismiss is denied.
The School Board Breached Mr. Sasse's Contract.
The evidence presented in this case proved that Mr. Sasse had a one- year contract for employment with the School Board. That contract began July 1, 1991, and was to expire June 30, 1992. Although Mr. Sasse was willing and able to fulfill the terms of the contract, it became somewhat apparent to Mr. Sasse as of December 31, 1991 that the School Board probably did not intend to pay him as agreed in the contract for the remainder of the term of the contract. It was only "somewhat apparent" to Mr. Sasse because the School Board never informed him of its intention with regard to the contract.
A school board may terminate a contact of employment pursuant to Section 231.36(6)(b), Florida Statutes. The evidence in this case, however, proved that the School Board has taken no action pursuant to Section 231.36(6)(b), Florida Statutes, to terminate the contract for just cause. Nor was any evidence presented that would justify termination of Mr. Sasse's contract pursuant to Section 231.36, Florida Statutes.
It is also true that a school board may abolish positions as part of the budgeting process. Therefore, the School Board could, and did, decide not to fund certain positions as part of the 1991-1992 Budget at the beginning of the fiscal year.
Finally, a school board may abolish positions so long as such action is justified on grounds of financial necessity and efficiency in the operation of the school district. See Bass v. Gilchrist County School Board, 438 So.2d
100 (Fla. 1st DCA 1983); Tolar v. School Board of Liberty County, 363 So.2d 144 (Fla. 1st DCA 1978); and Mitchell v. School Board of Leon County, 347 So.2d 805 (Fla. 1st DCA 1977). Based upon these authorities, it is the position of the School Board that it could abolish Mr. Sasse's position so long as its actions were reasonable and necessary.
The School Board has suggested that the actions it took concerning Mr. Sasse were reasonable because the actions were taken in order to fulfill the School Board's responsibility to adopt a balanced budget and its responsibility to operate, control and supervise all public schools within the School District.
Mr. Sasse has suggested that the School Board does not have the right to abolish Mr. Sasse's position. Mr. Sasse's arguments in support of this position need not be addressed. Even if it is assumed that the School Board has the right to abolish a position during the middle of the term of the contract of employment for that position, the weight of the evidence in this case failed to prove that the School Board's actions were reasonable and were not arbitrary.
The weight of the evidence proved that the action of the School Board in abolishing Mr. Sasse's position on November 19, 1991, resulted in a savings in the School Board's 1991-1992 Budget of just over $40,000.00. The evidence also proved that the School Board had been informed that it had been projected in the 1991-1992 Budget that there would be sufficient money in the Fund Balance to fulfill the School Board's contractual obligation to Mr. Sasse for the remainder of Mr. Sasse's contract. The School Board was also told that the
1991-1992 Budget would be balanced as required by law even if Mr. Sasse's position (as well as the other six abolished positions) was not abolished. It simply was not necessary to abolish Mr. Sasse's position in order to have a budget that complied with Florida law as argued by the School Board.
The School Board has attempted to prove that it was necessary to abolish Mr. Sasse's position in order to have a properly funded Fund Balance. The evidence failed to support this position. The weight of the evidence proved that the Fund Balance was created to meet emergency situations. The Fund Balance had, in fact, already been used consistent with its purpose to meet expected shortfalls in the 1991-1992 Budget. The Fund Balance was sufficient to fulfill the School Board's contractual obligation to Mr. Sasse. Why then did the School Board not use another $40,000.00-plus of the Fund Balance in order to meet its contractual obligation to Mr. Sasse? The weight of the evidence in this case failed to adequately answer this question.
The evidence also failed to prove that the School Board did not have other alternatives which would not have required it to breach its existing contract with Mr. Sasse to meet the budget crises. The Chief Financial Officer informed the School Board of the likely availability of some amount of lapsed salary (salary that is budgeted for expenditure, but which is not in fact spent because of the departure of some employees during the budget year). Lapsed salary had historically averaged $1 million a year. The School Board failed to prove that this option could not have been chosen in order to avoid breaching its contract with Mr. Sasse.
The possibility of furloughs as an alternative means of meeting the budget problems which arose in 1991 had also been considered. The School Board failed to prove that this option could not have been chosen in order to avoid breaching its contract with Mr. Sasse.
The School Board also acted unreasonably in eliminating administrative positions without conducting any reasonable study of what administrative positions, if any, should have be eliminated. Such a study should have been undertaken because of the nature of the consequences of the School Board's action--the breach of an existing contract.
While the undersigned is not unmindful of the fact that the current economic times and conditions have made it very difficult for the School Board to carry out its duties and responsibilities and that the School Board has a genuine desire to reduce possibly unnecessary administrative staff, it cannot be ignored that the School Board had a duty to fulfill a contract it freely entered into with Mr. Sasse. A contract Mr. Sasse was willing and able to fulfill. A contract which the School Board failed to fulfill for the second half of its term. The School Board failed to prove that it was reasonable to not fulfilling its contractual obligation.
Mr. Sasse also suggested that the School Board's actions were unreasonable because the School Board failed to follow the procedures for reductions of staff it had created by rule and because the Superintendent had recommended that Mr. Sasse's position not be abolished. In light of the conclusions reached, supra, it is unnecessary to address these issues.
The School Board's reliance on Woolley v. School Board of Leon County,
13 FALR 2256, is misplaced. Woolley involved a challenge by the Superintendent to a rule of the School Board require the superintendent to take certain actions to confirm the existence of certain positions before making a nomination as to who should fill the positions. This case involves the abolishment of a position after the School Board has accepted a recommendation from the Superintendent as to who should fill the position and after a final budget has been adopted. In this case, the Superintendent had recommended that Mr. Sasse's employment be continued from the 1990-1991 fiscal year and the School Board had fully accepted that recommendation. The School Board had also finalized its budget for the 1991-1992 budget year. The School Board and Mr. Sasse had a contract for the employment of Mr. Sasse through June 30, 1992. The suggestion of the School Board that the budget was not a final budget and no acceptance of the Superintendent's recommendation took place until November 19, 1991, is not supported by the facts. The School Board's action on November 19, 1991, was to abolish an already approved position and to amend the previously adopted final budget.
Finally, the evidence in this case proved that the School Board, after breaching its contract with Mr. Sasse, did not fulfill its contractual obligation by placing Mr. Sasse in another available position. The School Board's suggestion that it was Mr. Sasse's burden to prove the availability of such a position and to prove that Mr. Sasse made sufficient efforts to obtain such a position from the School Board is not supported by law and ignores the facts in this case.
It was the School Board that breached its contract. The School Board, therefore, had the burden to prove that it made reasonable efforts to place Mr. Sasse in a position which would have fulfilled its obligations. It did not provide such proof. What the evidence proved was that Mr. Sasse was willing and able to fulfill his contract if the School Board fulfilled its responsibilities. The only effort the School Board made was to initially give Mr. Sasse three weeks to decide if he was interested in a few positions, almost all of which the School Board then proceeded to fill before the three week period ended. The only position which remained open, although generally acceptable to Mr. Sasse, would have only partially satisfied the School Board's contractual obligation. Mr. Sasse was not required to accept less than what his contract with the School Board provided for.
Finally, Mr. Sasse has sought the payment from the School Board for attorney fees and costs pursuant to Section 448.08, Florida Statutes. This request is denied. This case is not "an action for unpaid wages."
Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a Final Order in this matter
providing for the payment to Carlos Sasse of all salary and benefits to which he
would have been entitled had he been allowed to fulfill his contract of employment for the period January 1, 1992, to June 30, 1992, It is further
RECOMMENDED that the School Board make contributions to the State of Florida retirement system on behalf of Mr. Sasse to insure that he receives any retirements he would have been entitled to had he been allowed to fulfill his contract of employment for the period January 1, 1992, to June 30, 1992. If the School Board is unable to comply with this recommendation, the Sc hool Board should pay Mr. Sasse an amount equal to the present value of any retirements he would have earned for the period January 1, 1992, to June 30, 1992. It is further
RECOMMENDED that the School Board take the actions necessary to insure that Mr. Sasse receives credit toward retirement for the period January 1, 1992, to June 30, 1992.
DONE and ENTERED this 3rd day of August, 1992, in Tallahassee, Florida.
LARRY J. SARTIN
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 3rd day of August, 1992.
APPENDIX TO RECOMMENDED ORDER
The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted.
The School Board's Proposed Findings of Fact
Proposed Finding Paragraph Number in Order
of Fact Number of Acceptance or Reason for Rejection
1 8.
2 3.
3 4.
4 9 and 12.
5 15.
6 14.
7-10 See 13.
11 17-18 and 20-21. The suggestion that the final budget was adopted November 19, 1991, is not supported by the evidence. The final budget for the 1991-1992 fiscal year was, according to the Chief Financial Officer of the School District, adopted September 17, 1991. It was subsequently amended on November 19, 1991.
12 17.
13 Hereby accepted.
14-15 See 16.
16 21.
Hereby accepted. Although this finding of fact is true, the evidence also proved that increases in expenditures were approved. For example, $363,000.00 of expenditures excluded from the 1990- 1991 budget were approved for the 1991- 1992 Budget. There were also new expenditures, referred to as "enhancements or expansions" of approximately $64,836.00 approved for 1991-1992.
Hereby accepted.
19 23-24.
20 26. The Fund Balance referred to was contingent upon no cuts being made, which the facts proved did not occur.
21 27.
22 28. The last sentence is hereby accepted.
23 32 and 41.
24 34.
35 and 46. The last sentence is not relevant.
Although correct, the reasons for the position cuts were those of one School Board member. The evidence failed to prove that the School Board adopted those reasons.
27 45.
28 35 and 37.
50. The last sentence is not relevant.
52 and hereby accepted.
See 54.
Mr. Sasse's Proposed Findings of Fact Proposed Finding Paragraph Number in Order
of Fact Number of Acceptance or Reason for Rejection
1 1.
2 Hereby accepted.
3-4 3.
5 5. But see 6.
6 28-29.
7 35 and hereby accepted.
8 36.
9 11, 18 and 20.
10 9 and 14.
11 38.
12-13 33 and 40.
14-15 See 47.
16 52 and hereby accepted.
17 50.
18 51.
19 52.
20 52 and 58.
21 54 and 57.
22 57.
23 59.
24 58.
25 7.
26 60.
27 61.
28 Hereby accepted.
29 41.
30 42.
31 43.
32 48.
COPIES FURNISHED:
C. Graham Carothers, Esquire Post Office Box 391 Tallahassee, Florida 32302
J. David Holder, Esquire 1408 North Piedmont Way Suite 100
Tallahassee, Florida 32312
Honorable Betty Castor Commissioner of Education The Captiol
Tallahassee, Florida 32399-0400
Sydney H. McKenzie General Counsel Department of Education The Capitol, PL-08
Tallahassee, Florida 32399-0400
Mr. Bill Woolley, Superintendent Leon County School Board
2757 West Pensacola Street Tallahassee, Florida 32304
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
SCHOOL BOARD OF LEON COUNTY, FLORIDA,
Petitioner,
CASE NO. 92-10
DOAH CASE NO. 92-1405
LCSB ORDER NO. 92-18
CARLOS SASSE,
Respondent.
/
FINAL ORDER
Preliminary Matters
THIS MATTER came on to be heard upon the Recommended Order dated August 3, 1992 by the Division of Administrative Hearings and upon the Exceptions thereto filed on behalf of Petitioner and Respondent. The matter was noticed for consideration by the Board at its regularly scheduled public meeting held October 13, 1992. Both parties were represented by counsel and were afforded an opportunity to present their Exceptions and argument in support of their position. All members of the Board had previously examined the record of the proceedings held before the Division of Administrative Hearings on May 18, 1992.
Petitioner's Exceptions to the Recommended Order
The board is mindful that it may not reverse findings of fact contained in the Recommended Order without a review of the complete record and unless there is no competent substantial evidence upon which such findings are based.
Moreover, it is the Hearing Officer's function to consider all the evidence presented and reach ultimate conclusions of fact which are based upon competent, substantial evidence by resolving conflicts, judging the credibility of
witnesses and drawing reasonable inferences therefrom. If the evidence supports two inconsistent findings, it is the Hearing Officer's role to decide between them. Heifetz v. Dept. of Business Regulations, 475 So.2d 1277 (Fla. 1st DCA 1985); DeGroot v. Sheffield, 95 So.2d 912 (Fla. 1957).
Petitioner excepts to the finding of fact contained in paragraph 29 of the Recommended Order which states: "Mr. Sasse was not advised in the November 12, 1991 letter, or otherwise, that his position was abolished or as to any due process rights he might have to contest any action adversely affecting Mr. Sasse's employment contract with the School Board." The record reflects that Mr. Sasse was fully advised prior to and during the November 19, 1991 meeting of the Board of the matters agendaed for consideration (T 148), was present at that meeting, and was represented by counsel who also addressed the Board. T 128, 130; Pet. Ex. 2(c). In addition, Mr. Sasse was informed by letter dated November 12, 1991 from the Superintendent that the Board would consider taking formal action to abolish his position at the November 19, 1991 meeting and that such action was without prejudice to his right to a hearing with respect to the availability of other positions for which he might be qualified. Pet. Ex. 3(a). Accordingly, said exception is granted as that finding is not supported by competent substantial evidence.
Petitioner excepts to the finding of fact contained in paragraph 43 of the Recommended Order which states: "[p]rior to reaching its decision on November 19, 1991, the School Board did not receive evidence or testimony or provide other due process safeguards to Mr. Sasse." The record reflects that voluminous evidence was presented to and considered by the Board relating to the adoption of the budget and the fiscal impact of decisions which were made by the Board. Pet. Ex. 1, 2. In addition, due process safeguards were provided to Mr. Sasse as evidenced by the letter of November 12, 1991 (Pet. Ex. 3(a)) and by the letter of November 22, 1991 requesting Mr. Sasse to notify Mr. Giordano of any positions for which Mr. Sasse wished to be considered. Pet. Ex. 3(c). Accordingly, said exception is granted as that finding is not supported by competent substantial evidence.
Petitioner excepts to the finding of fact contained in paragraph 43 of the Recommended Order which states: "[t]he School Board did not undertake any study or review of the administration of the School District before determining which positions, if any, should be considered for elimination prior to its action on November 19, 1991." The record reflects that consideration thereof was taken at the meeting held September 17, 1991 at which the final budget was adopted and again on November 5, 1991. Pet. Ex. 1, 2(a). Accordingly, said exception is granted as that finding is not supported by competent substantial evidence.
Petitioner excepts to the finding of fact contained in paragraph 61 of the Recommended Order in concluding that Rule 6Gx37-2.36, Rules of the School Board applies to the abolishment of positions, and finding that such rule was not followed by the Board. Rule 2.36 provides for a reduction in personnel by "layoff" and is totally inapplicable to the abolishment of any position, including the position previously held by Mr. Sasse. Accordingly, said exception is granted as that finding is not supported by competent substantial evidence.
Petitioner excepts to the finding of fact contained in paragraph 62 of the Recommended Order that Mr. Sasse has never been informed 1) that his position has been terminated, 2) that the Board did not intend to find a position for him, 3) of the reason why his contract was not fulfilled, and 4) of
his right to request a hearing. The record reflects that Mr. Sasse was informed that his position was terminated (T 128, 130; Pet. Ex. 2(c) and 3(c)), that the Board was committed to assist him in identifying other positions for which he was qualified (Pet. Ex. 3(c)), of the reasons why his position was abolished (Pet. Ex. 2(c)), and of his right to request a hearing. Pet. Ex. 3(a).
Accordingly, said exception is granted as those findings are not supported by competent substantial evidence.
Petitioner excepts to the Hearing Officer's refusal to enter the following finding of fact as being irrelevant:
At no time subsequent to November 19, 1991 did Respondent ever write to Mr. Giordano to express any interest in any position. T 198. Notices of job opportunities have routinely been posted at over 80 sites within the dis- trict prior to and subsequent to abolishment of Respondent's position. T 198.
Petitioner's Proposed Findings, Paragraph 29.
The Board finds such facts to be relevant to the issue of whether Respondent ever expressed an interest in other positions for which he was qualified and to the issue of whether efforts were made by the district staff to advise Respondent and others of potential vacancies for which he might apply.
Accordingly, said exception is granted, and the proposed finding of fact is incorporated by reference in this Final Order.
Petitioner excepts to the Hearing Officer's refusal to enter the following finding of fact as being irrelevant:
Each of the persons whose jobs had been abolished and were reappointed to other avail- able positions had applied in writing to the Superintendent for those positions, (T 183) and Mr. Sasse was the only prior employee who did not inform the Director of Personnel Services of his interest in other positions for which he might be qualified. T 199.
Petitioner's Proposed Findings, Paragraph 30.
The Board agrees that such facts are largely irrelevant to the issues raised in this proceeding, and accordingly, said exception is denied and the proposed finding is rejected.
Petitioner excepts to the Hearing Officer's refusal to explicitly include findings of fact contained in paragraphs 7-10, 13-15 and 17 of Petitioner's proposed findings of fact. An examination of the Hearing Officer's Recommended Order reflects that such proposed findings were "accepted" by the Hearing Officer, although not explicitly repeated in full in the Recommended Order.
Accordingly, the Board agrees with the Hearing Officer and grants Petitioner's exception and the aforesaid proposed findings of fact are hereby incorporated in this Final Order by adding the following facts:
The Special Revenue Fund is derived
from federal, state and local sources. Gener- ally, the largest single expenditure from this fund is for food services for students en- rolled in the District. However, depending on the dollar amount of federal projects, the federal portion could at some point in time during a fiscal year exceed food service expenditures. Other than to increase the price of meals to students, there is no pract- ical way for the District to achieve any fiscal surplus in the Special Revenue portion of the budget. T 26-29.
The Capital Improvement Fund is
funded from four sources and such funds are restricted generally to approved, designated capital projects. T 29-31; Petitioner's Ex. 1, pp. 139-143. There is no practical way for the District to achieve any fiscal surplus in this portion of the budget (T 53) except to transfer funds for salaries of preventative maintenance employees or other authorized capital expenditures within the General Operating Fund which was indeed done by Peti- tioner. T 53-55.
The Debt Service Fund is used for retirement of race track, general obligation bonds, and any other debt previously issued by the District. These obligations are funded by race track receipts from the state and by local ad valorem taxes, and such funds may not be used for other purposes. T 31-33, 55; Petitioner's Ex. 1, pp. 153-158.
Trust and Agency Funds comprise approximately $30,000 for fiscal year 1991-92.
$10,000 of this fund was budgeted for instruc- tional purposes, with a restricted fund balance of $20,000. Petitioner's Ex. 1, p.
159. These funds are derived from the "Frank Stoutamire Trust Fund" and may only be used for purposes which are consistent with the establishment of the trust. T 34, 55-56.
A significant portion of state funds available to public school districts is deter- mined and calculated by the number of "full time equivalent" (FTE) students. Fla. Stat. Section 236.081. T 38. In adopting the
1991-92 final budget, Petitioner made a policy decision to maintain the same number of instruc- tional units as in previous years even though the estimated "FTE" for fiscal year 1991-92 was substantially larger in number than in previous years and would typically generate additional units for growth. T 40-41. In choosing to hold the classroom harmless, the Board "opted" to reduce expenditures in non-instructional areas. T 57-58; Petitioner's Ex. 1, pp. 120-121.
In adopting the 1991-92 final budget, Petitioner and its staff relied upon a formula describing its funding priorities with the priority being given first to health, safety and sanitation needs, and then in descending order to legal requirements, present program needs, accreditation standards, economy- efficiency-payback programs and desirable directions and programs not required by accreditation or legal requirements.
T 57-58; Petitioner's Ex. 1, p. 26.
The final budget adopted by Petitioner for the 1991-92 fiscal year was designed to meet existing School Board goals in addition to directing continued emphasis on middle schools; fifth and ninth grade special emphasis; improve overall student achievement; reduce school dropouts; strengthen early childhood education; improve instructional technology while exploring distance learning; emphasize red carpet schools; a Second Chance School; a Full Service School; and site-based decision making and school improvement/accountability.
T 56-57; Petitioner's Ex. 1, p. 2.
(17) In adopting the final budget for 1991-92, Petitioner was forced to cut approximately
$700,000 from various district support "cost centers" which had requested funds for operational functions (T 50) and approximately
$525,000 in further cuts by unfunding numerous district level positions and reducing the district travel budget. T 51-52. In addition, over $4,000,000 of requests from various district level cost centers for increased funding to cover level of service needs as well as enhancements over the previous fiscal year were eliminated and not funded. T 52; Petitioner's Ex. 1 pp. 120-125.
Respondent's Exceptions to the Recommended Order
Respondent excepts to the Hearing Officer's rejection of his request for reimbursement of attorney's fees and costs on the ground that the instant proceeding was not "an action for unpaid wages." An examination of Respondent's proposed Recommended Order reflects that such request was based upon the provisions of Section 448.08, Florida Statutes. Respondent also based his claim for reimbursement of attorney's fees and costs upon the First District Court of Appeal's decision in Greene v. School Board of Hamilton County, 501 So.2d 50 (Fla. 1st DCA 1987) where the Court held, without discussion, that the appellant was entitled to such relief under Sections 448.08, Florida Statutes (1985) and 57.041, Florida Statutes (1985). However, the District Court of Appeal, Fifth District, in ruling to the contrary in a similar case, observed that Greene and other cases did not expressly consider whether an administrative hearing is the equivalent of an "action" within the meaning of Section 448.08, Florida Statutes. See Werthman v. School Board of Seminole County, 599 So.2d 220 (Fla. 5th DCA 1992). Although the basis upon which the Hearing Officer rejected the claim was upon the finding that this proceeding was not "an action for unpaid
wages," said statute, even if applicable to this proceeding, applies only to the prevailing party. In light of the disposition herein, Respondent is not the prevailing party and is not therefore entitled to reimbursement of attorney's fees or costs. Accordingly, Respondent's exception is denied.
Findings of Fact
Having considered the Hearing Officer's findings of fact, and being mindful of the record in this cause, the Board finds that the Hearing Officer's findings of fact are supported by competent, substantial evidence, except as previously modified herein. The Hearing Officer's findings of fact, as modified herein, are hereby adopted.
Conclusions of Law
Petitioner filed exceptions 9 through 17 inclusive, directed to certain conclusions of law contained in the Hearing Officer's Recommended Order. The Hearing Officer concluded 1) that the Petition filed by Respondent was timely filed and that the action taken by the Board on November 19, 1991 abolishing Respondent's position was not final agency action; 2) that Section 231.36(6)(b), Florida Statutes applies to the abolishment of Respondent's position; 3) that the Board's action in abolishing Respondent's position was unreasonable and arbitrary; 4) that the Board failed to carry its burden of demonstrating that it made reasonable efforts to place Respondent in another position; and 5) that Respondent was not required to accept any other position paying less than his annual contract salary. In reaching such conclusions and applying such conclusions to the facts presented at the evidentiary hearing, the Board finds that the Hearing Officer erred for the reasons hereinafter discussed.
The action of the Board on November 19, 1991 in abolishing Respondent's position constituted final agency action. Respondent was given adequate notice of the impending abolishment of his position, and both he and his attorney were present at the meeting of the Board at which the action was taken. Under those circumstances, neither the failure of Petitioner to advise Respondent of his right to a Section 120.57(1) hearing, nor the absence of a written final order affected the fairness of the hearing. Indeed, the Board acted consistent with and in reliance upon prior decisions of the District Court of Appeal, First District. See Bass v. Gilchrist County School Board, 438 So.2d 100, 101-102 (Fla. 1st DCA 1983); Mitchell v. School Board of Leon County, 347 So.2d 805, 807 (Fla. 1st DCA 1977); Tolar v. School Board of Liberty County, 363 So.2d 144, 146 (Fla. 1st DCA 1978).
The Petition dated January 27, 1991 by Respondent in this proceeding which alleges various irregularities in the action of Petitioner in abolishing his position and requesting a Section 120.57(1), Florida Statutes, hearing on that issue was untimely pursuant to Rule 28-5.111, Florida Administrative Code.
Under the facts present here, Respondent's failure to file a written petition within 21 days of receipt of written notice of the Board's intent to render a decision or within 21 days of receipt of written notice of the decision itself constituted a waiver of any such right to subsequently request a hearing.
Alternatively, and independent of the conclusions set forth above, the testimony and exhibits received at the hearing fully support the conclusion that Petitioner's action in abolishing certain administrative positions including the position held by Respondent was fully within Petitioner's discretion and was prompted by legitimate concern for economy in the light of anticipated revenues and expenditures as they existed when the action was taken. The Board is
required as a matter of law to adopt a balanced budget, and its desire to maintain a reserve fund was consistent with sound fiscal policy. There has been no showing that the Petitioner was arbitrary, capricious, or that its action was taken with impermissible motives. Tolar, supra at 145; Mitchell, supra at 807; Bass, supra at 101.
District school boards have the power and authority to abolish positions which are derived from Section 230.03(2), 230.22, 230.23(4)(5) and 230.35, Florida Statutes. Tolar, supra at 145. It matters not whether Respondent was under annual contract (Tolar, supra) or under a continuing contract (Mitchell, supra; Bass, supra; Shaffer v. School Board of Martin County, 543 So.2d 335 (Fla. 4th DCA 1989)) or whether the position was abolished at the end of the fiscal year (Shaffer - June 1979) or during the fiscal year (Bass - July 6, 1982, Mitchell - April 1, 1975, Tolar - January 4, 1977). The decision of the Supreme Court of Florida in Board of Public Instruction for Suwannee County v. Arnold, 194 So. 334 (Fla. 1940) is not to the contrary, for the Court's holding was succinctly stated:
The law is well settled that when a teacher is employed for a specified term at a specific rate of compensation, full recovery may be had and lack of funds is no defense to the action,
24 R.C.L. 614; 56 C.J. 396; Harrison School Twp. v. McGregor, 96 Ind. 185, unless there be some provision in the contract itself or a constitutional or statutory provision prohi- biting such a recovery. No such provision is here brought to our attention, and we have not been able to find any.
Id. at 335.
As stated by the First District in Tolar, supra, "the Board's power to discontinue positions is derived from Sections 230.03(2), 230.22, 230.23(4), (5) and 230.35, Fla. Stat. (1975)." Moreover, as noted by the Supreme Court in Arnold, the plaintiff who sued for recovery of his salary, continued to work for the school district after the closing of his school. No such facts are present here. In addition, the specific statutory authority upon which school districts may abolish positions which was lacking in 1940 currently appears in the Florida School Code, and Arnold is no longer controlling.
The District Court of Appeal, First District, has, on at least three occasions, described certain conditions upon which school districts were entitled to abolish positions of employment. The District Court stated in Bass, supra:
There is no valid basis for appellant's con- tention on appeal that the Board acted arbi- trarily or with impermissible motives in abolishing appellant's position. The Board's action was justified on grounds of financial necessity and efficiency in the operation of the school lunch program.
Id. at 101.
In Shaffer, supra, the District Court affirmed the school Board's final order terminating Mr. Shaffer's continuing contract of employment when the position of Director of Elementary Education was discontinued "... as part of a staff reorganization plan." Shaffer at 335.
Similarly, the District Court previously affirmed the abolishment by this Board of the position of Supervisor of Guidance and Testing resulting from the adoption of a staff reorganization plan which resulted in the discontinuance of several county-level positions in the Department of Pupil Personnel Services.
In Mitchell, supra, the Court observed:
Dr. Mitchell contends the Board's action was arbitrary and not justified by its ostensible purpose of economy;...
* * *
There has been no showing that the Board acted arbitrarily, with impermissible motives, or otherwise in violation of the school code or Dr. Mitchell's contract by discontinuing the county position of supervisor of guidance and testing as part of reorganization for economy. (footnote omitted) While the Board could not lawfully discontinue that position merely to evade Dr. Mitchell's tenured claim on it, and the stated economic justification for the action would be suspect if the position's former functions were assigned without others to a new position or divided between two new positions carrying more aggregated salary, those conditions do not appear here. The former functions of the supervisor of guidance and testing were divided and assigned to the new positions of coordinator of career guid- ance and counseling and coordinator of re- search and evaluation, which also absorbed functions of other discontinued positions.
The reorganization was cart of the Board's response to an anticipated reduction of reve- nue during the school year 1975-76 by three to five million dollars. While Dr. Mitchell's counsel asserted before the Board that "we feel [the reorganization plan] to be a subter- fuge," no particulars were stated or substan- tiated. (emphasis supplied)
Id. at 807.
The issue of whether the Board's actions in abolishing the positions of employment held by Mr. Sasse and others were arbitrary or unreasonable in the light of the Board's financial plight cannot be resolved in a vacuum. It is not, as the Hearing Officer erroneously concluded, as simple a matter as a
$40,000 expenditure for one-half of Mr. Sasse's annual salary. Nor is it a matter of simply balancing an annual budget. The fiscal crisis facing the board was significantly larger and infinitely more complex, as evidenced by the fact that 1) the Board's General Fund is used to conduct the district's educational
and support programs; 2) 82% of the General Fund is used for employee salaries and benefits; 3) the Board cut $700,000 from various district support "cost centers" and $525,000 by unfunding numerous district level positions and reducing the district travel budget and eliminating over $4,000,000 of requests from district cost centers for increased funding to maintain level of service needs and program enhancements; and 4) the fund balance was reduced to less than 1%.
Bass, supra, articulates, for the first time, the right of an employee under a "continuing contract" of employment whose position was abolished by a district school board to a hearing "... to determine whether there is any other available position within the county's school system for which [s]he is qualified." Although Respondent was not employed by the school district under a "continuing contract," Petitioner voluntarily extended to Respondent and others whose positions were abolished the opportunity for such a hearing. However, having requested the hearing, Respondent presented no testimony and offered no exhibits reflecting any present vacancy, except the position of Director of Co- Curricular Activities. T 194. Nor does the record reflect any effort whatsoever on Respondent's part in seeking and identifying vacant positions and applying therefor. Indeed, Respondent, through counsel, informed the Superintendent that he would not accept appointment to the position of Director of Co-Curricular Activities at its approved salary level. Petitioner's Ex.
3(d). Accordingly, the record is bare of any evidence reflecting the existence of any other vacant positions for which Respondent may be qualified.
Accordingly, we grant the exceptions filed by Petitioner numbered 9-17 inclusive and reject the conclusions of law and recommendations contained in the Recommended Order.
Dismissal of Petition
It is HEREBY ORDERED that the Petition filed herein by Respondent is denied, and that the position of Assistant Superintendent of Instruction be and the same is hereby abolished effective December 31, 1991. The parties hereto have the right to seek judicial review of this Final Order. The Board and the appropriate District Court of Appeal must receive a notice of appeal within 30 days from the date on which this Order is filed with the Clerk of the Board.
Explanation of the right to appeal is found in Section 120.68, Florida Statutes, and in Florida Rule of Appellate Procedure 9.110.
DONE AND ORDERED this 19th day of October, 1992.
THE SCHOOL BOARD OF LEON COUNTY, FLORIDA
By: Vice-Chair
Filed this 19th day of October, 1992 at Tallahassee, Leon County, Florida, with the Secretary of the Board.
Secretary-Clerk
COPIES FURNISHED:
David J. Holder, Esquire
C. Graham Carothers, Esquire Division of Administrative Hearings
| Issue Date | Proceedings |
|---|---|
| Oct. 21, 1992 | Final Order filed. |
| Aug. 03, 1992 | Recommended Order sent out. CASE CLOSED. Hearing held 5-18-92. |
| Jul. 13, 1992 | Petitioner`s Proposed Recommended Order filed. |
| Jul. 13, 1992 | Respondent`s Proposed Recommended Order w/Respondent`s Errata Sheet filed. |
| Jun. 29, 1992 | Transcript (Vols 1&2) filed. |
| May 18, 1992 | CASE STATUS: Hearing Held. |
| May 14, 1992 | (Respondent) Pre-Hearing Memorandum of Law filed. |
| Mar. 18, 1992 | Notice of Hearing sent out. (hearing set for 5-18-92; 9:00am; Tallahassee) |
| Mar. 16, 1992 | (Respondent) Response to Hearing Officer`s Initial Order filed. |
| Mar. 10, 1992 | (Respondent) Answer to Petition for Formal Administrative Hearing; Response to Request for Production of Documents and Materials filed. |
| Mar. 06, 1992 | Initial Order issued. |
| Mar. 02, 1992 | Respondent`s Motion to Dismiss Portions of the Petition for Formal Administrative Hearing; Order filed. |
| Mar. 02, 1992 | Agency referral letter; Petition for Formal Administrative Hearing; Request for Assignment of D.O.A.H. Hearing Officer; Request for Production of Documents and Materials; Notice of Filing and Serving Interrogatories; Petitioner`s First Interrogatories to |
| Issue Date | Document | Summary |
|---|---|---|
| Oct. 19, 1992 | Agency Final Order | |
| Aug. 03, 1992 | Recommended Order | School Board action arbitrarily in abolishing contract employee's position for budget reason before contract ended. Timely requested petition. |
