STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF POLK COUNTY, )

)

Petitioner, )

)

vs. )

) Case No. 99-4172

RITA CLARKSON, )

)

Respondent. )

)

RECOMMENDED ORDER

On March 1, 2000, a formal administrative hearing in this case was held in Bartow, Florida, before William F. Quattlebaum, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Donald H. Wilson, Jr., Esquire

Boswell & Dunlap, LLP

245 South Central Avenue Post Office Drawer 30 Bartow, Florida 3831-4620

For Respondent: Mark Herdman, Esquire

Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684

STATEMENT OF THE ISSUE

The issue in the case is whether the Respondent completed the applicable probationary period while employed as a teacher with the Polk County School System.

PRELIMINARY STATEMENT

The Respondent was terminated from employment at the Bartow High School effective September 28, 1999. The Petitioner asserts

that the Respondent did not complete a probationary period and that the Petitioner’s employment may be terminated without cause. The Respondent asserts that she is not subject to a probationary period and may not be terminated without cause. The Respondent requested a formal hearing to challenge the termination. The Petitioner forwarded the request to the Division of Administrative Hearings, which scheduled the proceeding.

At the hearing, the Petitioner presented the testimony of seven witnesses and had Exhibits numbered 1-12 admitted into evidence. The Respondent testified on her own behalf and presented the testimony of one witness. The Transcript of the hearing was filed on March 16, 1999. Both parties filed Proposed Recommended Orders pursuant to a deadline extension granted upon the unopposed request of the Petitioner.

FINDINGS OF FACT

1. The Respondent was employed as an eighth grade teacher at Boone Middle School from the beginning of the 1998-1999 school year until October 6, 1998.

2. The Boone Middle School principal and an assigned peer teacher observed the Respondent’s teaching techniques. The observers had certain concerns related to the Respondent’s methods, and on October 2, 1998, the principal met with the Petitioner to discuss the concerns.

3. A second conference was scheduled for October 6, 1998. When the Petitioner arrived at the conference, she announced that she was resigning her employment.

4. At the time of the resignation, the Respondent was asked to submit a written resignation. Although the written resignation was never received, on October 12, 1998, the Respondent turned in her grade book and other documents.

5. By statute, a teacher employed under an "initial annual contract" must complete a 97-work day probationary period, during which time the employment may be terminated without cause and the teacher may resign without being in breach of the employment contract.

6. The Respondent was employed at Boone Middle School for

   
   

   47 days. She did not complete the probationary period.

   
   

7. The Respondent asserts that she did not resign from Boone Middle School, but transferred from Boone Middle School to Cypress Lake Middle School. The evidence fails to establish that a transfer took place.

8. Polk County School Board policy requires that the principals of the employing schools approve teacher transfers. There is no evidence that either the Boone Middle School or the Cypress Lake Middle School principals approved of an official transfer between the schools.

9. There is no evidence that the Boone Middle School principal was aware of the Respondent’s intention to leave until

   October 6, 1998, when the Respondent announced her resignation from employment. At the hearing, the Boone principal testified that, given the difficulty in hiring math teachers, she would not have approved a transfer in the middle of the school term.

10. The Respondent asserts that she took October 7, 1998, as pre-approved leave time. There is no credible evidence that October 7, 1998, was approved for the Respondent as a personal leave day by any appropriate authority. She had resigned her employment from Boone Middle School, and had not begun her employment at Crystal Lake Middle School. It is unclear as to which employer would have approved a request for leave.

11. The Respondent began employment at Crystal Lake Middle School on October 8, 1998. The Petitioner worked at Crystal Lake until February 12, 1999.

12. After the first grading period was completed, Crystal Lake administrators were concerned about the number of failing grades the Respondent had assigned to her students. Crystal Lake administrators met with the Respondent and asked that she reconsider the grading scale.

13. On February 1, 1999, the Respondent submitted her resignation to Crystal Lake administrators.

14. The Respondent was employed at Crystal Lake Middle School for 82 days. She did not complete the probationary period.

15. Following her resignation from Crystal Lake, she occasionally worked as a substitute teacher.

16. The Respondent was employed at Bartow High School at the beginning of the 1999-2000 school year. She taught nutrition and wellness courses. She was assigned a peer teacher.

17. After classes began, the Bartow High School principal began to receive complaints from students, parents, and others regarding the Respondent’s teaching performance. Based upon the complaints, the principal terminated the Respondent’s employment effective September 28, 1999.

18. The Respondent was employed at Bartow High School for

    
    

    42 days. She did not complete the probationary period.

    
    

19. The Respondent asserts that her employment at Bartow High School was as a "re-appointee" not under an "initial contract," that the probationary period is inapplicable, and that she may not be terminated without cause.

20. The Respondent testified that an employee of the Polk County School Board personnel department told her upon her employment at Bartow High School that she would be considered a "re-appointee."

21. The Respondent was unable to specifically identify which employee allegedly provided the information; however, employees of the personnel office testified that they did not recall speaking to the Respondent about this issue, but further

    testified that Respondent’s recollection is contrary to school board policy.

22. The employees testified that a teacher, once resigned, who later returns to employment, is treated as a "new" employee and receives an "initial" annual contract. The board policy was further confirmed by the testimony of the Petitioner’s director of employee relations.

23. The Respondent asserts that she was not in fact treated as a new teacher, in that she was not required to complete a new employment application and was not asked to provide fingerprints or medical documents which are required of a new hire. The personnel department employees testified that generally it is not necessary for a person in the Respondent’s position to resubmit such materials when those already on file are of recent vintage.

    CONCLUSIONS OF LAW

    
    

24. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding. Section 120.57(1), Florida Statutes.

25. Section 231.36(3)(a)4., Florida Statutes, provides as follows:

    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.

26. The annual contract between the Petitioner and the Respondent states as follows:

    The teacher shall not be dismissed during the term of this contract except for just cause as provided in Section 231.36(1)(a), Florida Statutes. However, as provided in Section 231.36(3)(A)4., Florida Statutes, if this contract is the Teacher’s initial annual contract of employment with the school board as a member of the School Board’s instructional staff, then the Teacher shall be on probation for a period of ninety-seven

    (97) work days during which time this contract may be terminated without cause of [sic] the teacher may resign without breach of contract.

27. The evidence establishes that the Respondent did not complete a probationary period of 97 days at any time during her employment by the Polk County School Board, and therefore the Respondent may be terminated without cause.

28. The Respondent asserts that the contract governing her employment at Bartow Middle School was not her "initial" annual contract and that her employment may not be terminated without cause. Although the Bartow principal terminated the Respondent’s employment based upon a number of complaints received about her performance, the Petitioner in this case did not attempt to demonstrate cause for her termination.

29. There is no statutory definition of the word "initial" as it relates to an annual teaching contract. The Respondent asserts that the 1998-1999 contract was her "initial" contract, and that under the 1999-2000 contract the Respondent may not be terminated without cause. The Petitioner essentially suggests

    that until successful completion of a probationary period, any new employment contract is an "initial" contract.

30. Under the Respondent’s view, a poor employee could resign immediately after starting employment and avoid a probationary period if the employer chose to offer the former employee a second opportunity for success. Were the Respondent’s view to prevail, the likely result would be that a teacher who did not successfully complete a probationary period during the first period of employment would find school boards unwilling to offer a second chance.

31. Given that a probationary period permits both parties to an employment contract to determine whether the employee and the job are appropriately suited to each other, a more reasonable interpretation is that espoused by the Petitioner. Once an employee successfully completes a probationary period, the assumption is that the employee is capable of performing the tasks associated with the employment, and should not be terminated without cause related to the performance of those duties. Prior to completion of a probationary period, the employer may terminate the employment without cause and the employee may resign (as the Respondent did in this case) without breach of contract.

32. The Respondent asserts that she did not resign from Boone Middle School, but was transferred from Boone to Crystal

    Lake. The evidence establishes that the Respondent specifically and verbally resigned her employment at Boone Middle School.

33. The evidence also establishes that no transfer was approved between the schools. Paragraph 17.5 of the collective bargaining agreement sets for the following procedure for teacher transfers:

    Transfers During School Term: Teachers may request to be transferred during the school year when there are vacancies in the school or area which they desire. If the transfer is to become effective after the start of the school year a qualified replacement must be secured before the transfer can be made.

    Such request must go through his/her building principal, with copies to the receiving principal or immediate supervisor and the personnel office. The transfer of a teacher shall be made upon an agreement among the teacher and both principals/immediate supervisors involved, as soon as feasible and subject to approval by the Board.

34. There is no evidence that a transfer between the two schools occurred. There is no evidence that either principal approved a transfer. There is no evidence that a "qualified representative" was secured prior to October 8, 1998, the date upon which the Respondent began her employment at Crystal Lake School.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the School Board of Polk County enter a Final Order terminating the employment of Rita Clarkson.

DONE AND ENTERED this 25th day of April, 2000, in Tallahassee, Leon County, Florida.

WILLIAM F. QUATTLEBAUM

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 25th day of April, 2000.

COPIES FURNISHED:

Donald H. Wilson, Jr., Esquire Boswell & Dunlap, LLP

245 South Central Avenue Post Office Drawer 30 Bartow, Florida 33831-4620

Mark Herdman, Esquire Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684

Mr. Glenn Reynolds

School Board of Polk County 1915 South Floral Avenue Bartow, Florida 33830-0391

Michael H. Olenick, General Counsel Department of Education

The Capitol, Suite 1701 Tallahassee, Florida 32399-0400

Honorable Tom Gallagher Commissioner of Education The Capitol, Plaza Level 08

Tallahassee, Florida 32399-0400

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 must be filed with the agency that will issue the final order in this case.

Docket for Case No: 99-004172

Orders for Case No: 99-004172