STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PALM BEACH COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 98-5220

)

JAY TIEGER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Administrative Law Judge of the Division of Administrative Hearings, on March 16, 1999, in West Palm Beach, Florida.

APPEARANCES

For Petitioner: Thomas E. Elfers, Esquire

JenniLynn Lawrence, Esquire Palm Beach County School Board

3318 Forest Hill Boulevard, Suite C-302 West Palm Beach, Florida 33401

For Respondent: Ronald G. Meyer, Esquire

Meyer and Brooks, P.A. Post Office Box 1547

Tallahassee, Florida 32302 STATEMENT OF THE ISSUE

The issue presented is whether Petitioner timely terminated Respondent's employment, as set forth in the Administrative Complaint filed in this cause.

PRELIMINARY STATEMENT

On January 9, 1998, Petitioner notified Respondent that his employment was terminated, effective January 15, 1998.

Respondent requested an evidentiary hearing regarding that termination, but his request was denied. Respondent's subsequent petition for writ of mandamus was granted. Tieger v. School Board of Palm Beach County, 717 So. 2d 172 (Fla. 4th Dist. 1998). On November 25, 1998, this cause was transferred to the Division of Administrative Hearings to conduct the evidentiary proceeding.

Petitioner presented the testimony of Peggy Campbell, Ernie Camerino, Patrick Dougherty, and Joanne K. Kaiser. The Respondent testified on his own behalf. Additionally, Joint Exhibits numbered 1-11C were admitted in evidence.

Both parties submitted proposed recommended orders after the conclusion of the final hearing. Those documents have been considered in the entry of this Recommended Order.

FINDINGS OF FACT

1. On July 22, 1997, Respondent completed his application for employment as a teacher for the school year 1997-98. He was hired to be the coordinator for the English for speakers of other languages (ESOL) program at Western Pines Community Middle School. That position is a teaching position.

2. Western Pines is a new school, opening in time for the 1997-98 school year. Principal Peggy Campbell determined she needed extra assistance for the school to be ready in time for

   the students. As with any new school, floors needed to be mopped, windows needed to be washed, supplies needed to be unloaded and stored, desks needed to be placed in the classrooms, books needed to be stamped, and many other things needed to be done to get ready.

3. She requested volunteers from the staff she had hired, and Respondent agreed to help prepare the school for the arrival of students. At the time that volunteers were obtained and began working, Campbell did not have approval to pay any of the volunteers. She subsequently obtained approval.

4. Respondent began working as a volunteer on August 1, 1997. He labeled, stamped, and shelved books. He worked a total of 7 1/2 days. Afterward, he was given a one-time paycheck for those 7 1/2 days based upon a daily rate of pay. In computing the amount to pay him, Petitioner calculated a daily rate for Respondent by dividing his annual salary by 196, the number of duty days for teachers within Petitioner's school system.

5. On August 13, 1997, all teachers reported for duty for the 1997-98 school year. August 13 began the five-day pre-school period for instructional employees, a time during which all teachers attend meetings and prepare for the arrival of students. On that date, Respondent began his professional duties as an instructional staff member of Petitioner's school system. That date was also the effective date for Respondent's instructional position. Starting on August 13, 1997, Respondent's duties were

   substantially different than they were prior to that date. Prior to August 13, 1997, Respondent's work was akin to that of an incidental day laborer.

6. August 20, 1997, was the first day of classes for students within Petitioner's school system.

7. On January 9, 1998, Principal Campbell met with Respondent and gave him a letter advising him that she was recommending to the superintendent the termination of Respondent's employment, effective January 15, 1998. She told him not to report to the school for those interim days but that he was assigned to his home for those additional days for which he would be paid.

8. On February 21, 1998, the School Board ratified that termination, effective January 15, 1998, as part of its consent agenda at a regularly-scheduled Board meeting.

9. At the time Respondent was notified he would be terminated and at the time of the School Board meeting, annual contracts for that school year had not yet been prepared. There is a normal delay with finalizing annual contracts due to extended negotiations with the teacher's union once the budget is final.

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto. Sections 120.569 and 120.57(1), Florida Statutes.

11. Section 231.36, Florida Statutes, controls contracts between the School Board and instructional staff. Subsection (3)(a)4 provides that:

    For any person newly employed as a member of the instructional staff after June 30, 1997, the initial annual contract shall include a 97-day probationary period during which time the employee's contract may be terminated without cause or the employee may resign without breach of contract.

    
    

12. The School Board contends that the 97-day period commenced with the first day that instructional personnel reported for work, i.e., August 13, 1997. Respondent contends that the 97-day period commenced on the first day he volunteered to help prepare the school for students. Under the School Board's interpretation of the statute, it timely notified Respondent during his probationary period that his employment was terminated. Under Respondent's interpretation, he was not timely terminated and, therefore, could only be terminated for cause.

13. Adopting Respondent's interpretation would be inconsistent with the apparent intent of the statute. The statute establishes a probationary period for new teachers. To interpret the statute so that a teacher's probationary period could be served performing other than instructional duties would be contrary to the statute. In other words, a teacher could volunteer to mop floors and wash windows for the entire summer and be terminated as a teacher during the first few days of school. Such an interpretation would not benefit new teachers or

    the school system. A probationary period while the teacher is performing instructional duties allows a new teacher to gain experience and allows supervisory personnel with sufficient time to guide valuable new teachers by providing assistance, if needed, before terminating a new teacher.

14. Further, the statute relates to the initial annual contract. Since the annual contract spans only the official school year, the probationary period must fall within the time covered by the annual contract.

15. The fact that Respondent was terminated prior to receiving an annual contract is not dispositive. Had Respondent received an annual contract, it would have covered only the official school year for instructional employees and would have commenced retroactively on August 13, 1997, not on August 1.

16. Respondent's argument that since he did not receive an annual contract, there was no probationary period for him since the probationary period would arise only from a provision in that contract is not persuasive. The Legislature has required that a probationary period of 97 days be applied as to every member of the instructional staff hired after June 30, 1997. Initial annual contracts must make such provision. The Legislature's requirement simply adds another provision to continued employment, and such requirement must be given effect, even in the absence of contractual provision therefor.

17. Respondent argues that even had he been notified within the probationary 97 days that his principal was recommending to the superintendent that Respondent be terminated without cause, only the School Board, and not his principal, can terminate his employment, and the School Board's action did not take place until well outside the 97-day period. Petitioner's policy 3.20 is entitled "Termination of Employees" and was last revised in 1982. Section (3) of the policy provides that: "The effective date of any resignation or termination shall be the last duty day the employee is physically on duty. . . ." The last day on which Respondent was physically on duty was January 15, 1997, a date within his 97-day probationary period.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that a final order be entered determining that Respondent's employment was terminated within his probationary period.

DONE AND ENTERED this 28th day of May, 1999, in Tallahassee, Leon County, Florida.

LINDA M. RIGOT

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 28th day of May, 1999.

COPIES FURNISHED:

Dr. Joan Kowel, Superintendent Palm Beach County School Board 3340 Forest Hill Boulevard

West Palm Beach, Florida 33406-5869

Tom Gallagher, Commissioner of Education Department of Education

The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400

Thomas E. Elfers, Esquire JenniLynn Lawrence, Esquire Palm Beach County School Board

3318 Forest Hill Boulevard, Suite C-302 West Palm Beach, Florida 33401

Ronald G. Meyer, Esquire Meyer and Brooks, P.A. Post Office Box 1547

Tallahassee, Florida 32302

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: 98-005220

Orders for Case No: 98-005220