STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA EDUCATION ASSOCIATION/UNITED, ) LYNNE DEMAREST, PEARL COLEMAN and )

LINDA WILLIAMS, )

)

Petitioners, )

)

1. ) CASE NO. 93-1862RU

   )

   SCHOOL BOARD OF VOLUSIA COUNTY, )

   )

   Respondent. )

   )

   
   

   FINAL ORDER

   
   

   Pursuant to notice, a formal hearing was held by telephone in this case on July 16, 1993, in Tallahassee, Florida, before the Division of Administrative Hearings, by its designated Hearing Officer, Diane K. Kiesling.

   
   

   APPEARANCES

   
   

   For Petitioners: Lorene C. Powell

   Chief Trial Counsel, FEA/United

   118 North Monroe Street Tallahassee, Florida 32399-1700

   
   

   For Respondent: Thomas M. Gonzalez

   Attorney at Law

   109 North Brush Street, Suite 200 Post Office Box 639

   Tampa, Florida 33601 STATEMENT OF THE ISSUES

   The issues are whether the School Board's policy on allowing teachers to continue teaching on annual extensions of annual contracts instead of terminating them for failure to achieve tenure is an unpromulgated rule; and if so, is the policy an invalid exercise of delegated legislative authority?

   
   

   PRELIMINARY STATEMENT

   
   

   The Petitioners, Florida Education Association/United, Lynne Demarest, Pearl Coleman, and Linda Williams, presented the testimony of Pearl Coleman, Linda L. Williams, and Lynne Demarest. Petitioners' Exhibits 1-7 were admitted in evidence.

   
   

   The Respondent, School Board of Volusia County (the Board), presented the testimony of Duane Busse and offered no exhibits.

   The transcript of the proceedings was filed on August 12, 1993. The parties were to file their proposed orders on August 22, 1993, but Respondent filed a Motion for Extension of Time, which was granted. The parties then timely filed their proposed orders on August 25, 1993. All proposed findings of fact and conclusions of law have been considered. A specific ruling on each proposed finding of fact is made in the Appendix attached hereto and made a part of this Final Order.

   
   

   FINDINGS OF FACT

   
   

   1. By operation of the Constitution of the State of Florida, Article IX, Section 4(b), the Board is charged with the operation, control and supervision of all schools within Volusia County, Florida. By state law, Section 230.01, Florida Statutes (1991), the State of Florida has delegated to the Board the responsibility for the actual operation and administration of all schools within Volusia County.

      
      

   2. Section 230.23, Florida Statutes (1991), provides that the Board will exercise, inter alia, the following general powers:

      
      

      (5) PERSONNEL - Designate positions to be filled, prescribe qualifications for those positions, and provide for the appointment, compensation, promotion, suspension, and dismissal of employees as follows, subject to the requirements of Chapter 231:

      (a) Positions, qualifications and appointments.

      - Act upon written recommendations submitted

      by the Superintendent for positions to be filled . . .

      
      

   3. Section 230.33(7)(a), Florida Statutes, requires the Superintendent of Schools to make written nominations of persons to fill positions established by the School Board.

      
      

   4. With respect to classroom teachers employed by the Board, such employees may be granted tenure, that is the right to continuing employment subject to removal upon certain conditions. The tenure rights of classroom teachers employed by the Board are provided by the Volusia County Teachers' Tenure Law, Chapter 18964, Laws of Florida (1937), as amended (hereinafter referred to as "the Volusia County Tenure Law" or "the tenure law.")

      
      

   5. The procedure used by the Board in determining which teachers are to be granted tenure begins with a recommendation made by the principal who is supervising the teacher in question. The recommendation is made to the Board's personnel office which then passes it on to the Superintendent, who either supports the recommendation by making it to the School Board or not. Only the Board may reelect a teacher for employment, and such reelection is an essential precondition to the obtainment of status as a tenured teacher.

      
      

   6. The Volusia County Tenure Law provides for a probationary period of three years following which, if the teacher is reelected to employment for a fourth consecutive year and fills other requirements set forth in the tenure law, he or she will obtain tenure.

   7. In the case of the three individual Petitioners who are parties to this action, each was denied tenure following her third year of employment, but did obtain employment in the status of a fourth year probationary employee. The alternative to this fourth year of probation was described by the Board's representative as a "failure to enter into a contract for an additional year and termination." The Union introduced a list of three teachers besides the individual Petitioners in this action as Petitioners' Exhibit 7. Of the three persons listed in that exhibit, one, Hall, was granted tenure after her fourth year of probation. Another, Maynar, was granted tenure after his fifth year of probation. The third, Powers, was granted tenure after seven years of probationary status. The fact that two of those teachers served probationary periods in excess of four years was described to be as the result of "oversight" on the part of the Board.

      
      

   8. Petitioners' Exhibit 1 sets forth tenure treatment of classroom teachers employed by the Board from and including the 1988-89 school year to and including the 1991-92 school year. In the 1988-89 school year, 123 teachers received tenure after a third year of probation, 12 teachers were granted tenure after a fourth year of probation, 115 teachers were non-renewed (terminated) after their third year, and 23 accepted a fourth year of probation. In the

      1989-90 school year, 110 teachers received tenure after their third year, 22 were granted tenure after a fourth year of probation, 25 were non-renewed, and

      25 accepted a fourth year of probation. In the 1990-91 school year, 155 teachers received tenure after their third year, 25 were granted tenure after a fourth year of probation, 28 were not renewed after their third year, and 41 accepted a fourth year of probation. In the 1991-92 school year, the last year for which records were available at the time of the hearing, 198 teachers received tenure following a third year of probation, 46 were granted tenure after a fourth year of probation, 33 were not renewed after their third year of probation, and 9 accepted a fourth year of probation.

      
      

   9. On March 30, 1993, Dr. Willie D. Brennon, Assistant Superintendent for Personnel for the Board, issued an interoffice memorandum to all principals and department heads which informed those principals and department heads that contract "Status 5," that is the granting of a fifth probationary year, was no longer an option open to principals and department heads dealing with classroom teachers. The Board's Division for Personnel Services has also issued a document entitled "Procedure for Giving Notice of Non

      forms for the employment and treatment of teachers. The Board has not promulgated any set of standards to be used by a principal in deciding whether he or she will recommend a classroom teacher for tenure.

      
      

   10. On April 19, 1991, Pearl Coleman was employed by the Board as a classroom teacher. On that same day, Ms. Coleman's principal, Rowena Reddix, completed a form entitled "Instructional Personnel Reappointment 1991

       School Year." In that form, Ms. Reddix requested that Ms. Coleman be recommended for reappointment for the 1991

       
       

   11. On May 10, 1991, Ms. Reddix recommended that Ms. Coleman be granted tenure by completing a form entitled "Recommendation for Tenure 1991-92 School Year." However, Ms. Reddix later rescinded her recommendation that tenure be granted to Ms. Coleman. After the recision, on June 13, 1991, Ms. Reddix recommended that Ms. Coleman be appointed as a probationary (non

       employee for the 1991

       document, Ms. Coleman accepted employment as a probationary employee by executing a sworn statement that read as follows:

       
       

       This is to inform you that I voluntarily accept classification as a probationary employee for the 1991-92 school year.

       
       

   12. When Ms. Coleman signed that statement and accepted employment as a probationary employee, she understood that, but for her acceptance of this status, she would not be employed by the Board. Furthermore, although Ms. Coleman believed she would receive tenure after her fourth year of probation, she understood that she did not have tenure in that fourth year.

       
       

   13. On May 15, 1992, Mr. Gerald L. Gill, who succeeded Ms. Reddix as Ms. Coleman's principal, signed a letter, which informed Ms. Coleman that she would not be recommended for employment for the 1992-93 school year and that the Board would not enter into a contract of employment with her for any period subsequent to the 1991-92 school year.

       
       

   14. Linda L. Williams was employed by the Board as a classroom teacher for the 1989-90, 1990-91, and 1991-92 school years. In her third year of employment, Ms. Williams was employed as a classroom teacher at Woodward Avenue School and served under principal Jo Anne Rodkey. In the same year, Ms. Rodkey informed Ms. Williams that she would not be recommended for reemployment because the school was losing a unit and therefore there was no position for her at the school. On May 12, 1992, Ms. Rodkey delivered to Ms. Williams a letter informing Ms. Williams that Ms. Rodkey would not be recommending her for tenure.

       
       

   15. Subsequently, Ms. Williams applied for a position as a sixth grade teacher at Holly Hill Middle School. Ms. Williams previously had been informed by Ms. Rodkey that any further employment by the Board would be as a probationary employee. Ms. Williams specifically understood that the only way she would be hired at Holly Hill was on a probationary basis and further understood that if she had not agreed to probationary status she would not have been employed at Holly Hill Middle School. Ms. Williams accepted employment at Holly Hill under these conditions.

       
       

   16. On June 12, 1991, Petitioner Lynne Demarest was employed as a classroom teacher at South Daytona Elementary School. On that same date, Ms. Demarest executed a notarized statement which stated:

       
       

       This is to inform you that I voluntarily accept classification as a probationary employee for the 1991

       
       

   17. Subsequently, on June 14, 1991, Mr. David C. Butler, who was the principal at South Daytona Elementary School, recommended the reappointment of Ms. Demarest as a probationary employee for the 1991

       time that Ms. Demarest accepted employment on probationary status, she understood that this was the only condition upon which she would be employed by the Respondent.

       CONCLUSIONS OF LAW

       
       

   18. The Division of Administrative Hearings has jurisdiction of the parties to and subject matter of these proceedings. Section 120.57(1), Florida Statutes.

       
       

   19. The tenure rights of classroom teachers employed by the Board, including the individual Petitioners who are parties to this action, are provided by the Volusia County Teachers' Tenure Law. The tenure law provides as follows:

       
       

       Every employee in the public free schools of Volusia County who is over the age of twentyone (21) years and who, on or after

       July 1, 1935, shall have been employed therein for three (3) consecutive years and who shall have a valid Florida certificate and who, during such three (3) year period, has occupied himself or herself for a period of at least

       six (6) weeks in registration and attendance in some college or university of recognized standing by the department of education and has earned at least six (6) semester hours'

       credit in professional study or their equivalent in district in

       and if re

       year to position in such public schools in the same district, county, or other unit by which he was formerly employed, shall thereafter for said ensuing year and each subsequent school year be a permanent employee of the district, county, or other unit as long as the employee shall be possessed of a valid certificate of

       the class required by the position to be filled, and shall attend schools or participate in district in service programs for professional study at intervals, or shall travel, under requirements set forth in Section 3 of this

       Act, except as hereinafter other wise provided.

       
       

   20. The tenure law, in Section 3, provides further as follows:

       
       

       No person who has qualified as a permanent employee in the public free schools of Volusia County shall be thereafter dismissed or not reemployed for any subsequent year in such public free schools except for one or more

       of the following causes: . . . Nothing herein shall prejudice the right of the employing unit to reemploy the teacher on probation, except a sustained charge of immorality; nor the right of the teacher to voluntarily accept classification as probationary employee. Such employee shall not come within the purview of this act during such period of probation.

   21. Section 120.56, Florida Statutes (1991), which governs this action, provides that:

       
       

       1. Any person substantially affected by a rule may seek an administrative determination of the invalidity of the rule on the ground that the rule is an invalid exercise of delegated legislative authority.

          
          

          Therefore, in order to prevail, the Petitioners must establish the existence of a rule, show that they are substantially affected by the rule, and demonstrate the invalidity of that rule. The Board has made no claim that if a rule is demonstrated to exist or be required, then the individual Petitioners would not have been substantially affected by it. Furthermore, although raised in the pleadings, the Board does not attack the standing of the Petitioner Union to take part in this proceeding, if a rule is established to exist or be required under the facts of this case. Therefore, the only issues which need be addressed in this proceeding are whether a rule has been established to exist or to be required and whether that rule is an invalid exercise of delegated legislative authority.

          
          

   22. Petitioners in this case, three former employees of the Board and a union which represents these and other former and current employees of the Board, attack what they allege to be a rule of the board which they claim is an invalid exercise of delegated authority and was implemented without the required rulemaking set forth in the Administrative Procedures Act. It is the position of the Board that what the Petitioners seek is not to attack a rule but to obtain an interpretation of a law which sets forth certain powers of the Volusia County School Board.

       
       

   23. The rule which is attacked herein by the Petitioners is described by the Petitioners as follows:

       
       

       D. Description: It has been the practice of the Volusia County School Board to request

       that teachers, after three years of probationary service, "voluntarily" waive their right to tenure under the Volusia County Teachers'

       Tenure Law, Laws 1937, CH. 18964 [as amended]. This waiver is for varying and indefinite periods of time and is practiced without standards of agency action and without guidelines for teachers as to how, when, or if they will be tenured.

       
       

   24. Section 120.52(16), Florida Statutes (1991), defines a "rule" as:

       
       

       Each agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the organization, procedure, or practice requirements of any agency and includes any form which imposes any requirement or solicits any information not specifically required by statute or by an existing rule. The term also includes the amendment or repeal of a rule . . . .

   25. There is no question but that the tenure rights of classroom teachers employed by the Respondent are governed by the Volusia County Teachers' Tenure Law. Although Petitioners make reference to Section 231.36, Florida Statutes (1991), which purports to set forth tenure rights for all classroom teacher, it is clear that law does not govern in this case by virtue of the fact that the Florida Legislature in Chapter 82-241, Laws of Florida, specifically recognized that the Volusia County special act continues to govern the tenure rights of teachers employed in that county. By general rules of statutory interpretation, a special law controls over general law treating the same subject. Alford v. Duval County School Board, 324 So.2d 174 (Fla. 1st DCA 1975).

       
       

   26. The Volusia Tenure Law provides that persons employed as certificated classroom teachers will serve a three

       subject to specific preconditions set forth in the law, that teacher will obtain tenure upon reemployment for a fourth consecutive year. During the probationary period, teachers are provided annual contracts which protect against dismissal except for cause during the term of the contract, but which allow for non- renewal of the employment relationship following the expiration of each agreement. Section 1 of the tenure law specifically conditions the grant of tenure following completion of the three

       "except as hereinafter other wise provided." The "hereinafter" included in Section 1 of the law refers to Sections 3 and 4 of the same act. Section 4, which deals with lay

       is not involved in this case, but Section 3 is.

       
       

   27. Section 3 begins with the statement that a person who is qualified as a permanent employee (previously defined in Section 1 of the Act) shall not be "dismissed or not reemployed" except for one of several stated specific causes. At the conclusion of Section 3, however, the legislature also provided that:

       
       

       Nothing herein shall prejudice the right of the employing unit to reemploy the teacher on probation, except a sustained charge of immorality; nor the right of a teacher to voluntarily accept classification as probationary employee. Such employees shall not come within the purview of this Act during such period of probation.

       
       

   28. In this case, the Petitioners have not identified any statement by the Board which fits the definition of a rule, nor have they identified any such statement of general applicability. Although the Petitioners identify the purported rule as a "practice" of the Board to request that teachers waive their rights to tenure and serve an additional year of probation, the record establishes only that in some cases the Board has made individual determinations that tenure would not be granted after the third year of employment to certain numbers of teachers, and that a subset of those teachers was offered employment on a continuing probationary status in lieu of termination of the employment relationship. Thus while each of these decisions might have been a decision substantially affecting the individual Petitioners or other teachers who escaped termination by accepting another year of probation, those issues are not a part of this proceeding.

       
       

   29. Because the tenure law provides for an initial three- year period of probation, following any year of which the Board has the legal authority not to reemploy a teacher, the individual decisions made by the School Board to grant a fourth year of probation to certain teachers is an exercise of the same

       authorized discretion which it exercised following each of the two years of initial probation. Petitioners specifically do not attack the authority of the Board to make employment decisions following the first two years of probation, nor do they attack the authority of the Board not to reemploy a teacher after three years of employment. Neither do Petitioners claim that these actions constituted rules or that rulemaking was required for the implementation of the authority which all parties agree resides with the Board with respect to the first two years of probation and the question of employment or not following the third year.

       
       

   30. In this case, the Union simply seeks a determination that a statute which was applied on individual bases to a finite number of teachers does not grant the Board the authority to do what it did in those individual cases. This proceeding is not the proper vehicle for that determination. In order to succeed here, Petitioners must demonstrate that a rule existed. In order to make that showing, they must demonstrate the existence of a statement by the agency of general applicability. Having failed to do so, the petition must be denied.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that the Petition is DENIED and DISMISSED.

DONE and ORDERED this 12th day of October, 1993, in Tallahassee, Florida.

DIANE K. KIESLING

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 12th day of October, 1993.

APPENDIX TO THE FINAL ORDER IN CASE NO. 93-1862

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case.

Specific Rulings on Proposed Findings of Fact

Submitted by Petitioner, Florida Education Association et al.

1. Proposed findings of fact 1-11 are unsupported by the competent and substantial evidence.

Specific Rulings on Proposed Findings of Fact

Submitted by Respondent, School Board of Volusia County

1. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-17(1-17).

COPIES FURNISHED:

Lorene C. Powell

Chief Trial Counsel, FEA/United

118 North Monroe Street Tallahassee, Florida 32399-1700

Thomas M. Gonzalez Attorney at Law

109 North Brush Street, Suite 200 Post Office Box 639

Tampa, Florida 33601

Carroll Webb Executive Director

Administrative Procedures Committee Holland Building, Room 120 Tallahassee, FL 32399-1300

NOTICE OF RIGHT TO JUDICIAL REVIEW

PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DIVISION OF ADMINISTRATIVE HEARINGS AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

Docket for Case No: 93-001862RU

Orders for Case No: 93-001862RU