STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KAREN GRIMM, )

)

Petitioner, )

)

vs. ) Case No. 97-2460

) SEMINOLE COUNTY SCHOOL BOARD, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was held by the Division of Administrative Hearings, before Daniel M. Kilbride, Administrative Law Judge, in Sanford, Florida, on January 22 and 28, 1999. The following appearances were entered:

APPEARANCES

For Petitioner: John J. Chamblee, Esquire

Chamblee & Johnson, P.A.

202 West Cardy Street Tampa, Florida 33606

For Respondent: Ned N. Julian, Jr., Esquire

Seminole County Public Schools

400 East Lake Mary Boulevard Sanford, Florida 32773

STATEMENT OF THE ISSUE

Whether the Petitioner, Karen Grimm, is entitled to obtain two years' creditable service toward retirement benefits in the Florida Retirement System for School Teachers, or the equivalent value thereof, for duties performed as a teacher for Project Excel in the 1993-94 and 1994-95 school years.

Whether the Petitioner is entitled to obtain two years' teaching experience credit toward salary benefits with the Seminole County School Board.

PRELIMINARY STATEMENT

A Petition for Administrative Hearing in this matter was filed on April 21, 1997. This matter was referred to the Division of Administrative Hearing on May 15, 1997, and a hearing was scheduled. On October 30, 1997, an Order of Abeyance was entered on the request by the parties on the grounds that some of the issues could be resolved without a formal hearing. On

June 16, 1998, Petitioner filed a Motion for Leave to Join Florida Division of Retirement as a Party and a Motion for Leave to File an Amended Petition for Hearing. Respondent and the Division of Retirement filed Objections and a telephonic hearing was held on June 26, 1998. An Order was entered on June 29, 1998, denying Petitioner's Motion to Join the Florida Division of Retirement and granting Petitioner's Motion to Amend petition.

An Amended Petition was filed on June 26, 1998. A hearing date was scheduled for December 18, 1998, and continued at the request of the parties.

A final hearing was conducted before the Division of Administrative Hearings on January 22 and 28, 1999. Petitioner called three persons as witnesses: Karen Grimm, Lynette Stucka and Bradford Clayton. Petitioner also offered Petitioner's Exhibits 1 through 17, and 37 through 46, as tabbed in the

Appendix to Petitioner's Motion for Summary Final Order, Volumes I and II, and Exhibits 47 and 48, which were received into evidence. Respondent called five witnesses: Thomas Marcy, Tim Giannoni, John Reichert, Linda Dawson, and Jim Dawson.

Respondent offered Exhibits 1 through 31 which were admitted into evidence. Joint Exhibit 1 was also received into evidence. The depositions of Jerry Dority, John Pavelchak, and Debra Hoover were also received into evidence. The Administrative Law Judge took official recognition of the stipulated facts and pertinent law.

The Transcript of the hearing was filed March 4, 1999, and a supplement to the Transcript was filed on April 12, 1999. At the request of the parties, April 12, 1999, was the date approved for the parties to submit their proposed recommended orders.

Petitioner submitted her proposals on April 12, 1999. Respondent has not submitted its proposals as of the date of this Order.

FINDINGS OF FACT

Based on the evidence, the following facts are found:

1. Project Excel is an alternative education program for students of the Seminole County Public School District who were subject to expulsion by the Seminole County School Board. The students removed from their regular school and permitted to attend Project Excel in lieu of a full exclusion or expulsion.

2. Petitioner was employed as a teacher for Project Excel from February 4, 1994, until July 28, 1995.

3. Project Excel (f/k/a Project REAP) was operated pursuant to a contract (hereinafter "Agreement") between the Seminole County School Board (hereinafter the "Board" or "School Board") and the Private Industry Council of Seminole County, Inc. (hereinafter "PIC"), a not-for-profit corporation organized under the laws of the State of Florida. PIC was an active Florida

   not-for-profit corporation during the period in question. The project was established under the federal Job Training Partnership Act for the establishment and operation of an alternative program for students.

4. Under the terms of the initial and successor contracts, PIC was to provide a facility, equipment, curriculum materials, and teaching staff to deliver educational services to high school students who were offered an opportunity by the School Board to enroll in Project Excel as an alternative to a full expulsion for misconduct. Students enrolled in Project Excel were students who were charged with a violation of the student conduct and discipline code for which expulsion was a permitted penalty, but who, at the discretion of the School Board, were permitted to enroll in Project Excel as an alternative to a full exclusion or expulsion.

5. PIC was paid consideration as stated in the contract for the services that it provided. In addition, the School Board made school lunches available to students enrolled in Project Excel and provided transportation. Lunches were provided to

   Excel students on the same basis that they were provided to other students, that is, the students paid for their lunches or received them under the Federal free or reduced-cost lunch program.

6. Procedurally, when a student is alleged to have committed a violation of the student discipline and conduct code, the alleged infraction is investigated by a designated administrator at the student's school. If the investigation determines that the student has committed an offense, the student is initially suspended from school for a period of time, usually

   10 days.

   
   

7. During the 10-day suspension, if the violation is one that carries a maximum penalty of expulsion, the principal then meets with the student and the student's parents. If, in the course of that meeting, the student is willing to admit the violation, the student is offered an opportunity to enroll in Project Excel for a period of time as an alternative to a full exclusion. If the student accepts the offer, the student is enrolled in Project Excel for a prescribed period of time. If the child rejects the offer or requests an evidentiary hearing before the School Board under Section 120.57(2), Florida Statutes, the student could still be enrolled in Project Excel at the discretion of the School Board.

8. Once a student completes his or her term of expulsion at Project Excel, the student is permitted to return to the student's regular school of attendance.

9. The intent of Project Excel is to provide a penalty for serious student misconduct, while at the same time providing a student with an opportunity to continue receiving educational services during the student's exclusion from the student's regular school of attendance. By providing such an opportunity, it was the hope of the School Board that the student's behavior would be reformed, that the student would successfully reenter school at the completion of the term of expulsion, and that the student would not become a drop-out.

10. Because of the School Board's expectation for student's assigned to Project Excel, the curriculum at Project Excel was designed to mirror the curriculum at the student's regular school and the school district standards. The student's grades at Project Excel were recorded in the student's School Board records. And a student earned regular academic credit towards graduation from a Seminole County public school by successful completion of course work at Project Excel.

11. In order to ensure the quality of the teaching staff at Project Excel, teachers employed by PIC were required to meet the same standards applicable to teachers employed by the School Board. Teachers employed by PIC were required to be properly certified by the Florida Department of Education or eligible for

    certification and were required to submit to a criminal history check pursuant to Section 232.02, Florida Statutes (1993).

12. Teachers for Project Excel were required to complete a Seminole County School Board personnel application package, the same as all Seminole County Public School teachers, which were thereafter maintained by the School Board in its applicant files.

13. Teachers for Project Excel students were required to hold valid teaching certificates, the same as any teacher in the Seminole County School District.

14. From January 1994 until July 1994, Mr. Wolfgang Halbig ("Halbig") held the position of Project Manager Principal for Project Excel. Halbig received his paycheck from the School Board, that is, the Seminole County School District.

15. From July 1994 until June 1995, Ms. Jerry Merritt ("Merritt") held the position of Project Manager for Project Excel. Merritt was formally employed by the School Board and received her paycheck from the Seminole County School District.

16. During the period of Petitioner's employment with Project Excel, Gary Earl was the Executive Director for PIC.

17. During the period of Petitioner's employment with Project Excel, James Dawson was the Director of Alternative Programs for the Seminole County School District.

18. During the period of Petitioner's employment with Project Excel, Dr. Tom Marcy was Executive Director of Secondary Education for the Seminole County School District. Dr. Marcy

    selected Wolfgang Halbig as the first Project Manager for Project Excel.

19. Petitioner was interviewed by Halbig and Giannoni in January 1994, for the position of teacher at Project Excel. Petitioner was told that she would be teaching Seminole County School District students who had either been expelled or who would be attending Project Excel in lieu of expulsion.

    Petitioner was told that Project Excel was a "unique partnership" with the Seminole County School District.

20. Petitioner had a Seminole County School District personnel application, dated in 1992, on file when she was hired for Project Excel. In 1994, after Petitioner was hired for Project Excel, she was asked by Halbig to update her personnel file with the District's Personnel Department, which she did on July 11, 1994.

21. When the Petitioner updated the application package, an I-9 form was completed and Petitioner was also fingerprinted. Petitioner had not been fingerprinted when she completed the application package in 1992, nor was an I-9 form completed in 1992.

22. Project Excel was listed by the Seminole County School District as a Cost Center with No. 9217, a number assigned to Project Excel for internal account purposes.

23. On February 4, 1994, Petitioner was verified as eligible for immediate employment as a certified teacher. She

    was employed by PIC as a teacher in Project Excel from February 1994 until July 1995, that is, for 115 days of the 1993-94 school year and for the entire 196 days in the 1994-95 school year.

24. Petitioner signed employment agreements with PIC. The Petitioner's employment by PIC was governed by a contract of employment between Petitioner and PIC. All of Petitioner's employment benefits were provided by PIC. PIC withheld a portion of the Petitioner's salary for federal income tax and FICA. PIC paid the employer's share of FICA on account of its employee, Karen Grimm. Petitioner's medical/hospital insurance was provided by PIC. Petitioner's working days and hours were controlled by PIC.

25. During the time that Petitioner was an employee of PIC, the School Board provided no employee benefits and paid petitioner no compensation for services as a teacher in the Project Excel.

26. Petitioner resigned her employment as teacher at Project Excel on July 28, 1995.

27. While teaching at Project Excel, Petitioner never saw a copy of the Agreement between the School Board and PIC. Likewise other teachers at Project Excel, Brad Clayton and Lynette Stucka, did not see the Agreement between the School Board and PIC.

28. The School Board reserved the right to make recommendations relative to personnel assigned or retained in Project Excel.

29. The Project Manager was responsible for the day-to-day operations of Project Excel.

30. The Project Manager was employed by the School Board and not by PIC's Director of Operations. He/she attended expulsion hearings for students before the School Board and many of these students became students at Project Excel.

31. The Project Manager attended various meetings with members of the School Board regarding Project Excel.

32. The Project Manager directly supervised Project Excel teachers and assisted in curriculum development.

33. When Petitioner required time off, she requested the time from the Project Manager.

34. The Project Manager and Director of Operations signed Petitioner's evaluation. However, teachers were in close daily contact with the Project Manager, and not with the PIC's Director of Operations.

35. The Project Manager reported directly to Mr. Dawson.

    
    

36. The Project Manager directed the Petitioner to contact Dawson's office for any questions relating to curriculum for Project Excel.

37. The Project Manger conducted Project Excel orientation meetings for parents and students.

38 The Project Manager reported student attendance and student grades to the Director of Alternative Learning for the District.

1. The Project Manager was responsible for management of the disciplinary system, including decisions relating to discipline of students and signed all incident reports when students misbehaved. All incident reports were sent to the District.

2. At times, the Seminole County School District administrators exercised their authority and control to deny the Project Manager permission to recommend to the School Board removal of a Project Excel student.

3. Seminole County School District administrators made frequent visits to the premises of Project Excel, including James Dawson, Supervisor of Alternative Programs; Dr. Tom Marcy, Executive Director of Secondary Education; Dr. Hortense Evans, Administrative Assistant to the Superintendent; and Dr. Marion Dailey, Executive Director of Instructional Support Services; and Dr. Paul Hagerty, Superintendent of Schools. At times, some district administrators made verbal recommendations for program changes during their visit. Dawson met with the teachers at least every other week.

4. All students enrolled in Project Excel were identified by and referred by the School Board and were Seminole County School District students. Moreover, Project Excel accepted all students that were recommended by the School Board.

5. Typically the entry process for a student to enter Project Excel was as follows: 1) a principal recommended

   expulsion to the superintendent; 2) the superintendent recommended expulsion to the School Board; 3) an expulsion hearing took place before the School Board; 4) the School Board held the student's expulsion in abeyance and offered the student the opportunity to attend Project Excel and the student automatically returned to his or her former zone school; and 5) the School Board could approve re-entry for a student to a former zone school upon request.

6. The signature of Superintendent, Paul J. Hagerty, was required on all student behavioral and academic contracts before a student was permitted by the School Board to enter Project Excel.

7. The "Code of Conduct" for students of Seminole County School District applied to students of Project Excel.

8. Project Excel was included in the Seminole County School District courier system for inter-office transporting of packages and mail.

9. Seminole County School District bus transportation department transported students who chose to attend Project Excel, the same as any other Seminole County public school student.

10. PIC was required to accept for Project Excel any and all students identified by and referred by the School Board.

11. School Board permission and approval was required for a student to be removed from Project Excel.

12. As part of the operations of Project Excel, the School Board provided support and technical assistance as follows.

    1. The School Board verified students enrolled in and withdrawn from the program.

    2. The Board received a monthly report on each student enrolled to verify the student's attendance, including the number of days present and the number of days absent.

    3. The Board provided information about individual students enrolled in the program as necessary to facilitate and support a student's participation in the program.

    4. The Board allowed full use of District Media Services for the Seminole County School District.

    5. The Board provided to PIC the curriculum frameworks for courses taught in Project Excel consistent with Department of Education requirements.

    6. The Board required that PIC use the curriculum frameworks in its instructional program for Project Excel, which were provided by the Board and consistent with Department of Education requirements.

    7. The Board required that the educational program provided to students in Project Excel meet the requirements of Section 230.2316(4)(e), Florida Statutes.

    8. Project Excel operated according to the calendar adopted by the Board.

13. Project Excel teachers worked on the same calendar as the Seminole County School District. Other PIC employees did not work on a school-based calendar.

14. The School Board held Project Excel out to the public as a "partnership" between the Seminole County School Board and PIC.

15. All forms included the logo of the Seminole County School Board, as well as PIC.

16. James Dawson was named in the Agreement as the contract administrator between the School Board and PIC.

17. The School Board funded Project Excel, pursuant to the Agreement, including the following:

    1. A minimum guaranteed payment to PIC for the operation of Project Excel of

       $841.00 per day and a maximum of

       $1,820.00 for the 1993-94 school year and $892.00 per day and a maximum of

       $1,645.00 per day for the 1994-95 school year. The Agreement also provided for bonus payments based on performance.

    2. Start-up costs for assets (February 1, 1994, to June 8, 1994), not to exceed

       $46,200.00 and total cost of assets purchased at both Service Levels II and III not to exceed $23,100.00, respectively, for the 1993-94 school year.

    3. Total cost of assets purchased at Service Level II, not to exceed

       $10,000.00 and not to exceed $15,000.00 at Service Level III for the 1994-95 school year.

    4. At the point of reimbursement to PIC, assets purchased were considered the property of the Board.

    5. All non-consumable supplies and equipment purchased by PIC for Project Excel and reimbursed by the Board were to be used solely for Project Excel and for no other purpose, without specific permission by the Board.

    6. No equipment for which PIC was reimbursed by the Board could be discarded by PIC without approval by the Board.

    7. The Board required that PIC maintain all equipment in good repair at all times.

    8. The Board required that all non- consumable supplies and equipment be made in accordance with Rules of the

       State Board of Education for the purchase of like equipment by the Board.

       
       

18. The School Board required PIC to submit FTE reports and costs reporting the same as any other school in the Seminole County School system. The School Board had the right without limitation to audit any and all records relative to FTE reporting.

19. The School Board required PIC to provide the School Board with accurate accounts and records with respect to the entire operation of Project Excel.

20. The Crooms School of Choice, Pride Program, was another alternative, drop-out prevention program for Seminole County middle school students, which included students with disciplinary problems. However, Crooms was not operated under a contract but was operated by the School Board with teachers paid directly by the School Board. Eligibility criteria for Project Excel for high school students were the same eligibility criteria as for Crooms for middle school students.

21. The Standard Operating Procedures Manual provides guidance of the interrelationship between School Board and PIC regarding Project Excel, inter alia, as follows:

    1. Placement into the program will be made by the School Board. Decisions regarding returning to zone school shall be made in joint staffing between student, parents, principal of zone school and Project Manager.

    2. Project manager shall develop a reporting and tracking system to verify student progress.

    3. Progress reports sent to Jim Dawson, District's Supervisor of Alternative Learning Programs.

    4. Students not considered to be expelled from District once they entered Project Excel, but a last chance to demonstrate to the School Board they want to obtain a high school education. Since the students were not formally expelled, they were still active Seminole County School District students.

    5. Recommendations for student enrollment and behavioral contract were sent to the School Board for review after students had participated in orientation at Project Excel.

    6. Student behavior was governed by Seminole County's Student Conduct and Discipline Code, after the 5th offense, the School Board was to be contracted.

    7. Project manager had the responsibility to update student records and to provide the School Board with information regarding removal of a student from Project Excel.

    8. Exit procedures from Project Excel were approved by the School Board.

    9. Duties of the project manager included observing and assisting teachers; maintaining student records; arranging for staff development and training, preparing reports to both PIC and the School Board; maintaining updated curriculum objectives for approved Seminole County School Board academic courses; working with county data processing personnel as to reporting student grades, credits, etc; preparing budget for Project Excel under guidance of both PIC and School Board; preparing reports for both PIC and School Board.

    10. Project manager was an assignment

        position from the Seminole County School Board as defined by the Board with pay consistent with the Seminole County School Board grade. Project manager was responsible for the disciplinary system of Project Excel.

    11. Project Excel teacher is directly responsible to the project manager.

        Petitioner's responsibilities are outlined on this page.

    12. Procedures for entry into Project Excel and re-entry back to a zone school are between the School Board or its designated staff and the project manager. No contact is with PIC's Director of Operations.

    13. Notification of students to attend Project Excel was through the office of Dr. Hortense Evans, during the time of Petitioner's employment at Project Excel.

    14. Verifies that student is not technically expelled.

    15. The School Board defined all policy relating to student participation in Project Excel.

    16. Student grievance process defined by School Board.

    17. Project manager responsible to monitor prescription drug use and off-property drug abuse by students would subject the student to possible recommendation to the School Board for removal from Project Excel.

    18. Recommendation to the School Board for removal was part of the progressive discipline program in effect at Project Excel.

    19. Bus transportation provided for Project Excel students at no charge.

    20. Seminole County School District provided lunch on campus for Project Excel.

    21. Attendance record used to calculate FTE's.

    22. Project Excel credits based on high school requirements.

    23. Teachers completed academic course offerings and turned in to project manager.

        1. Teachers completed academic course offerings and turned into project manager.

        2. Provided at orientation. All students selected by School Board for participation. Students must develop behavioral contract and appear before the School Board and request placement at Project Excel. Behavioral standards

           based on School Board's Student Conduct and Discipline Code.

        3. If a student is recommended for withdrawal from Project Excel, the student will be recommended to the School Board for expulsion. School Board assigned each student to Project Excel for a specified duration.

        4. Student behavioral contract signed by Superintendent Hagerty.

        AA. Project Excel teachers had access to district high school records.

        BB. Weekly student evaluation did not require signature of Tim Giannoni, Director of Operations of PIC, but did require the signature of the student, the teacher and the project manager.

        CC. Copies of incident reports were given to teacher, parent, student and project manager, but not to Director of Operations of PIC.

        DD. Withdrawal form was completed by the project manager, not Director of Operations.

        EE. Form developed by Wolfgang Halbig, Project Manager, and when completed, it was turned into the district office. (Joint Exhibit 8)

22. In order to become an employee of the School Board in July 1995, Petitioner was required to update her School Board application file. That file, dated from 1991, was created when Petitioner first submitted an application for employment by the School Board. The superintendent was required to recommend to the School Board that the Petitioner be employed in the position of teacher at Hamilton Elementary School and the School Board was required to approve the recommendation. Subsequent to School Board approval of the superintendent's recommendation for employment of Karen Grimm as a teacher at Hamilton Elementary

    School, Petitioner was issued an annual contract of employment as a first-year teacher in the Seminole County School District.

23. On December 20, 1994, the Director of Personnel for Seminole County Schools responded to Petitioner's request for information regarding credit for teaching experience at Project Excel as follows:

    Teaching experience can be granted for your teaching experience through the Excel program when you:

    
    

    have taught in the Excel program in a full-time capacity for 99 days or more during the school year and have possession of a Florida Educator's certificate for the duration of the time for which your teaching experience accrued. (Petitioner's Exhibit 8)

24. On May 10, 1995, Petitioner wrote to Dr. Marcy and to Jim Dawson requesting assistance in verifying that teaching credit toward a Professional Services Contract should be granted.

25. In 1995, Petitioner was recommended for continued employment by the School Board on a Professional Service Contract. The administrator in charge of personnel employment believed that Petitioner's service as a teacher for PIC in Project Excel counted towards the requirement for three years' employment in the district as one of the predicates for the issuance of a Professional Service Contract. Upon that premise, the Petitioner's employment by the School Board at Hamilton for the 1995-96 school year would have constituted Petitioner's third year of employment in the district.

26. On its Instructional Experience Verification Form, the Seminole County Schools verified that the Petitioner worked for

    115 days during the 1993-94 school year and 196 days during the 1994-95 school year. Therefore, the Petitioner worked more than

    99 days during both the 1993-94 and the 1994-95 school years and was entitled to receive teaching credit toward the Professional Services Contract.

27. On October 4, 1996, Petitioner received a Professional Services Contract.

28. On February 6, 1997, via an internal communication, based on advice from the School Board's attorney, a decision was made to withdraw the teaching credit that had been approved by the School Board in 1996.

29. On April 10, 1997, Petitioner was advised in writing that she had been issued a Professional Services Contract in error because the district had decided Petitioner was not entitled to credit toward PSC status for the two years teaching at Project Excel. At that time, Petitioner was advised that the professional service contract issued in error would be canceled and an annual contract issued in its place.

30. On April 17, 1997, Petitioner signed the annual contract, with a proviso attached that she reserved her statutory right to challenge the District's decision to rescind her Professional Services Contract.

31. On March 11, 1998, Petitioner was again recommended by the principal for the Professional Services Contract. When Petitioner successfully completed three years of teaching services (as computed by the School Board), a professional service contract was issued to Petitioner.

32. In addition to publication in the general media, Project Excel teaching positions were advertised on the Seminole County Public School Hotline, which identifies position openings within the District.

33. The School Board's funding of Project Excel provided a sum of money sufficient to take care of all the needs for Project Excel, including the salaries of the teachers.

34. Unless the School Board provided funds to support the salaries of the teachers, there would be no teachers at Project Excel. Sixty to eighty-five percent of the money for teachers' salaries came from the School Board.

35. Petitioner did not fill out an application package with the intent of becoming a substitute teacher.

36. The paperwork completed by the Petitioner was the same as any other teacher employed by the Seminole County School District was required to complete.

37. The School Board is subject to a union collective bargaining agreement under Chapter 447, Florida Statutes, which governs the wages, hours, and terms and conditions of persons employed as teachers. As an employee of PIC, Petitioner was not

    a member of the bargaining unit under the agreement between the School Board and the Seminole Education Association, Inc.

38. When Petitioner became a teacher at Hamilton Elementary, the only additional paperwork required by the Seminole County School District personnel office was completion of an updated health certificate.

39. The School Board received funding for students enrolled in Project Excel through FTE's the same as for any other Seminole County public school student.

40. In the initial Project REAP, the program cost proposal and calculations of staff salary were based on current School District pay scale for respective positions, education, and years of service.

41. The Project Manager representing Project Excel, attended meetings with district administrators to help establish consistency between competency based programs such as Crooms and EXCEL.

42. In September 1994, Petitioner was assured by Excel Project Manager, Jerry Merritt, in response to Petitioner's inquiries, that School District personnel agreed that Excel teachers should receive Seminole County teaching credit toward a Professional Services Contract.

43. On October 4, 1994, Petitioner wrote a letter to Ms. Linda Dawson, Director of Personnel Services, requesting written verification that Excel teaching staff could receive

    teaching credit toward a Professional Services Contract in Seminole County.

44. On November 22, 1994, Petitioner wrote a follow-up letter to Ms. Dawson requesting expeditious written confirmation as to how teaching credit would be granted.

45. On or about July 7, 1995, Petitioner spoke to Pam Williams in the Seminole County School District personnel office, who verified that the 1993-94 and 1994-95 school years at Project Excel would count toward eligibility for a Professional Service Contract. On July 12, 1995, the decision was verified on the Seminole County Determination of Prior Experience Verification Status Form.

46. Petitioner taught at Hamilton Elementary School for the 1995-96 school year, which was Petitioner's third year with the District when the 1993-94 and 1994-95 Project Excel years were counted toward Professional Service Contract credit. As a result, the School Board approved Petitioner's change in status from annual contract to Professional Service Contract on

    August 13, 1996.

    
    

47. Petitioner relied upon statements by Halbig, during the job interview for teaching at Project Excel, that because she was being paid by the School Board through its funding of Project Excel, she would receive the same benefits as an employee of the School Board. Petitioner relied upon the promises made orally and in writing in 1994 that she would receive teaching credit

    toward the Professional Service Contract eligibility. Petitioner made every effort during the fall of 1994, by contacting proper administrators orally and in writing, to determine whether she would receive credit. Petitioner made these efforts in order to make the appropriate career decisions. Dawson responded affirmatively that Petitioner would, in fact, receive the credit toward Professional Services Contract eligibility and gave the credit thereto.

48. Petitioner would not have stayed at Project Excel had she known she would not receive teaching credit toward Professional Service Contract eligibility as promised by District administrators. Teaching at Project Excel meant teaching the students in the county with the worst discipline records, and the Petitioner would not have poured forth the great energy and care to help these students had she known that it would not help her professional career with the District.

49. No contributions were made to the Florida Retirement System on behalf of Karen Grimm for her term of employment by PIC. As her employer from February 1994 through July 1995, PIC was not permitted to be a member of the Florida Retirement System, its employees were not public employees, and PIC was not permitted to make contributions to the Florida Retirement System on behalf of Karen Grimm. As Karen Grimm was not considered to be an employee of the School District, the School Board was not

    permitted to make contributions to the Florida Retirement System on her behalf.

50. Petitioner has lost two years' creditable service with the Florida Retirement System by not being formally classified as an employee, in the amount of $8,421.51 and has lost two years' service credit toward a salary increase given pursuant to District policy after ten years. Petitioner has also lost two years' service credit for being considered for an administrative position. Petitioner is working on a doctorate degree and has professional goals for career advancement which are affected by this decision.

    CONCLUSIONS OF LAW

    
    

51. The Division of Administrative Hearings has jurisdiction over the parties to, and subject matter of these proceedings. Sections 120.57(1) and 120.569, Florida Statutes.

52. Section 121.021, Florida Statutes reads in pertinent part:

    The following words and phrases as used in this chapter have the respective meanings set forth unless a different meaning is plainly required by the context:

    
    

    * * *

    
    

    1. "Existing systems" means . . . the retirement system for school teachers . . .

    2. "System" means the general retirement system established by this chapter to be known and cited as the "Florida Retirement System."

    
    

    * * *

    1. "Employer" means any . . . district school board . . .

    2. "Officer or employee" means any person receiving salary payments for work performed in a regularly established position . . .

    3. "Member" means any officer or employee who is covered or who becomes covered under this system in accordance with this chapter.

    * * *

    
    

    (17)(a) "Creditable service" of any member means the sum of his or her past service, prior service, military service, out-of- state service, workers' compensation credit, and future service allowed within the provisions of this chapter if all required contributions have been paid and all other requirements of this chapter have been

    met . . . Service as applied to a teacher . . . shall be based on contract

    years of employment or school term years of employment, as provided in chapters 122 and 238, rather than 12-month periods of employment.

53. Section 230.2316, Florida Statutes, reads in pertinent part:

    1. This act may be cited as the "Dropout Prevention Act."

    2. INTENT . . . It is further the intent of the Legislature that cooperative agreements be developed among school districts . . . private agencies and community resources in order to implement innovative exemplary programs aimed a reducing the number of students who do not complete their education and increasing the number of students who have a positive experience in school and obtain a high school diploma.

    * * *

    
    

    (4) STUDENT ELIGIBILITY AND PROGRAM CRITERIA.--All programs funded pursuant to the provisions of the section shall be positive and shall reflect strong parental

    and community involvement in action, specific programs shall meet the following criteria.

    
    

    * * *

    
    

    (d) Disciplinary Programs--

    (1) The student has a history of disruptive behavior in school or has committed an offense which warrants suspension or expulsion from school according to the district code of student conduct.

    
    

54. Section 238.01, Florida Statutes, reads in pertinent part:

    The following words and phrases as used in this chapter shall have the following meanings unless a different meaning is plainly required by the context.

    
    

    * * *

    
    

    1. "Teacher" means any member of the teaching or professional staff and any certificated employee of any public free school, of any district school system and vocational school . . .

       
       

       * * *

       
       

       In all cases of doubt the division shall determine whether any person is a teacher as defined herein.

    2. "Member" means any person included in the membership of the retirement system as provided in s. 238.05.

    3. "Employer" means the state, the school boards of all the districts of the state employing teachers, or . . . any other agency of and within the state by which the teacher is paid . . .

    4. "Service" means service as a teacher as described in subsection (3) rendered while a member of the retirement system.

    * * *

    (9) "Creditable service" means prior service plus membership service for which credit is allowable under s. 238.06.

    
    

    * * *

    
    

    (13) "Earnable compensation" means the full compensation payable to a teacher working the full working time for his or her position . . . .

    
    

55. Section 238.05, Florida Statutes, reads in pertinent part:

    (1) The membership of the retirement system shall consist of the following:

    
    

    * * *

    
    

    (b) All persons who became or who become teachers on or after July 1, 1939 . . . shall become members of the retirement system by virtue of their appointment as teachers.

    
    

56. Section 238.06, Florida Statutes, reads in pertinent part:

    Membership application, creditable service, and time for making contributions.--

    (1) Under such rules and regulations as the Division of Retirement shall adopt, each teacher upon becoming a member shall file with the division an application showing date of birth and such other necessary information as the division may require for the proper operation of the retirement system . . . .

    * * *

    
    

    (8) Creditable service at retirement on which the retirement allowance of a member shall be based shall consist of the membership services rendered by him or her since he or she last became a member, and if the member has a prior service certificate which is in full force and effect, the service certified on his or her prior service certificate.

57. Respondent relies on the case of Schoettle v. Department of Administration, Division of Retirement, 513 So. 2d 1299 (Fla. 1st DCA 1987), where a teacher requested service credit toward retirement for school years when he was employed at a military school in the Marshall Islands. The DOAH Hearing Officer recommended that the Petitioner be denied out-of-state credit (DOAH Case No. 86-1330) and the Division of Retirement denied the Petitioner's request; however, the District Court of Appeal held that the teacher was entitled to credit on the grounds that the school was "conducted" by the armed forces, even though the school was operated for the armed forces by a private company.

58. Although the Schoettle court found that a school "using military-owned text books, run on military time, paid for by public funds appropriated to serve, albeit indirectly, a military objective, is no less a school 'conducted by the Armed Forces' because the actual teaching is performed by a teacher employed by a private company contracting with the government to provide this service, than if the teaching was performed by military personnel." The Schoettle court found further that the focus of Chapter 238, Florida Statutes, is on the nature of the school where the teacher teaches, not on the status of the party who issues the payroll check and found that the school was tax- supported. Id. at 1302.

59. However, the credible service which the court found in Schoettle is specifically provided for in Section 238.06(9)(a), Florida Statutes, which deals with out-of-state service credit. This provision can not be applied to Respondent's in-state service credit by analogy.

60. Respondent argues that in the instant case, the focus should be on the nature of Project Excel and its students, not on the mere fact that PIC wrote payroll checks with funds received from the School Board. The more appropriate focus should be on the nature of the contract between the employer and the employee. In spite of all the indicia of control that the School Board retained over Project Excel, the Respondent signed employment agreements with PIC to teach at Project Excel. She did not sign a typical annual contract with the School Board. The terms and conditions of employment were controlled by these agreements. During the time that Petitioner worked at Project Excel, she was aware that the School Board did not provide any contributions to the retirement system on her behalf and that she was not considered a member of the retirement system. Therefore, the more appropriate cases that apply to these facts by analogy can be found in Board of Trustees of Northwest Florida Community Hospital v. Department of Management Service, Division of Retirement, 651 So. 2d 170 (Fla. 1st DCA 1995) and Davis v. Department of Administration, 585 So. 2d 421 (Fla. 1st DCA 1991).

61. For the purpose of determining whether Petitioner can participate in the Retirement System for School Teachers for the 1993-94 and 1994-95 school years, the joint employee doctrine cited in Hollis v. School Board of Leon County, 384 So. 2d 661 (Fla. 1st DCA 1980), and NLRB v. Browning-Ferris Industries of Pennsylvania, Inc., 691 F.2d 1117 (3rd Cir. 1982), does not apply in this case, even though Project Excel was held out to the public as a "partnership."

62. Petitioner argues, in the alternative, that Respondent should be equitably estopped from denying Petitioner's classification as a teacher or employee:

63. The elements of equitable estoppel are:

    
    

    1. A representation as to a material fact that is contrary to a later-asserted position;

       
       

    2. Reliance on that representation; and

       
       

    3. A change in position detrimental to the party claiming estoppel, caused by the representation and reliance thereon. Kuge v. State Department of Administration, Division of Retirement, 449 So. 2d 389 (Fla. 3d DCA 1984).

       
       

64. In Kuge, supra, the state was estopped from denying retirement benefit eligibility to a former employee, where the State informed the employee who was then still in state service that she would have ten years of creditable State retirement service should she continue to work through a certain date. The employee, in reliance on the representation, served the time necessary to obtain the ten years of state retirement service and

    then resigned and took employment elsewhere. The facts were sufficient to establish detrimental reliance and to equitably estop the State from denying her retirement benefit eligibility, notwithstanding the claim that there was no detrimental reliance since the employee could always return to state employment and serve out an additional eight months, thereby becoming eligible for State retirement benefits.

65. In City of Coral Springs v. Broward County, 387 So. 2d

    
    

    389 (Fla. 4th DCA 1980), the court held that the doctrine of equitable estoppel may be invoked against a municipality in the same manner as against an individual. Petitioner here asserts that the doctrine of equitable estoppel may be invoked against the Respondent, School Board, in the same manner as against an individual.

66. In the instant case, the Respondent represented to the Petitioner that she was entitled to credit for her two years' teaching at Project Excel. Petitioner received letters, had paperwork in her personnel file, and actually was granted a Professional Services Contract on October 4, 1996. Not until April 1997, did the Respondent assert that Petitioner was not entitled to a Professional Services Contract and that Petitioner would not receive teaching credit or retirement credit for the two years teaching at Project Excel.

67. Further, it appears that the Petitioner would not have accepted the position at Project Excel, nor would she have stayed

    at Project Excel, if she had known that she would not receive teaching credit toward PSC or retirement credit as promised by district administrators.

68. Petitioner has lost a "bump" in salary which Seminole County School District teachers receive after teaching experience credit is given for previous teaching experience. Petitioner would be on a different salary schedule if the District counted her teaching experience at Project Excel.

69. Although the Petitioner has lost two years of retirement credit toward the ten years' vesting requirement which came about as the result of the Petitioner remaining at Project Excel, and it appears that Petitioner relied upon the representations of district administrators, nevertheless, in her agreement with PIC, Petitioner was aware, or should have been aware, that she was not eligible for teacher's retirement. Petitioner knew that no contributions were being made to the retirement fund on her behalf by the School Board during the two- year period she taught at Project Excel. Therefore, Petitioner has not shown detrimental reliance as to the loss of retirement benefits for that period.

70. However, based on the facts provided herein, the Respondent should be estopped from denying the Petitioner's classification as an employee, during this period, for the limited purpose of experience benefits arising therefrom.

71. While public policy may give school boards the exclusive prerogative to decide whether to reappoint non-tenured teachers, here, Petitioner was successively reappointed. It is not against public policy to require the School Board to grant the Petitioner teaching credit toward PSC for the successful completion of the 1993-94 and 1994-95 school years at Project Excel. Cf., Davis v. School Board of Gadsden County, 646 So. 2d 766 (Fla. 1st DCA 1994).

72. The Petitioner has failed to show that she is entitled to participate in the Retirement System for School Teachers, Chapter 238, Florida Statutes, for the 1993-94 and 1994-95 school years.

RECOMMENDATION

Based on the foregoing, it is

RECOMMENDED that the School Board enter a final order holding that:

1. Petitioner was not an employee of the School Board for the 1993-94 and 1994-95 school years and, as a result, is not entitled to retirement benefits from the Florida Retirement System pursuant to Chapters 121 and 238, Florida Statutes for that period.

2. Petitioner is entitled to receive teaching experience credit for said school years, as applicable to a salary increase after ten years, to which the Petitioner was entitled based on

her prior teaching experience, together with her Project Excel teaching experience.

DONE AND ENTERED this 26th day of May, 1999, in Tallahassee, Leon County, Florida.

DANIEL M. KILBRIDE

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 26th day of May, 1999.

COPIES FURNISHED:

John J. Chamblee, Esquire Chamblee & Johnson, P.A.

202 West Cardy Street Tampa, Florida 33606

Ned N. Julian, Jr., Esquire Seminole County School Board

400 East Lake Mary Boulevard Sanford, Florida 32773-7127

Dr. Paul Hagerty

Superintendent of Seminole County Schools

400 East Lake Mary Boulevard Sanford, Florida 32773-7127

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 97-002460

Orders for Case No: 97-002460