STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
TEACHERS EDUCATORS ASSOCIATION, )
)
Petitioner, )
)
vs. ) Case No. 00-3468
)
DUVAL COUNTY SCHOOL BOARD, )
)
Respondent. )
)
RECOMMENDED ORDER
Upon due notice, this cause came on for a disputed-fact hearing on November 13, 2000, in Jacksonville, Florida, before the Division of Administrative Hearings, by its duly-designated Administrative Law Judge, Ella Jane P. Davis.
APPEARANCES
For Petitioner: Jack Daniels, President
Teachers Educators Association Post Office Box 40068 Jacksonville, Florida 32203
For Respondent: Ernst D. Mueller, Esquire
City of Jacksonville
Office of the General Counsel
117 West Duval Street Suite 480
Jacksonville, Florida 32202 STATEMENT OF THE ISSUE
May Petitioner be recognized by Respondent School District as a professional teacher association, pursuant to Section 231.6075, Florida Statutes.
PRELIMINARY STATEMENT
Petitioner Teachers Educators Association (TEA) sought recognition by Respondent Duval County School District as a "professional teacher association," which recognition was not forthcoming, as more particularly described in the following Findings of Fact.
TEA then petitioned for formal hearing, and Respondent failed to act upon that petition. A writ of mandamus was sought. A July 12, 2000, ruling of the First District Court of Appeal directed Respondent either to deny or grant the request for hearing. Respondent granted the request for hearing, and on August 17, 2000, Respondent referred the case to the Division of Administrative Hearings (DOAH) for a hearing on the merits of the petition for recognition. The case arrived before DOAH pursuant to a contract between DOAH and Respondent for provision of independent triers of fact.
On August 17, 2000, DOAH's Initial Order was issued.
On August 24, 2000, a scheduling conference was held by telephonic conference call.
On August 28, 2000, a Notice of Hearing for September 12, 2000, was mailed, together with an Order of Pre-hearing Instructions.
On September 7, 2000, a letter and Order concerning qualified representation was mailed.
On September 9, 2000, another scheduling conference was held by telephonic conference call.
On September 11, 2000, an Order Rescheduling All Hearings, and Providing for More Definite Statements from the parties was entered.
On September 19, 2000, in a hearing by telephonic conference call, Administrative Law Judge Don W. Davis, in the absence of the undersigned, considered Respondent's Motion to Strike Appearance of Jack Daniels on behalf of Petitioner TEA and granted Mr. Daniels' application for qualified representative status.
On October 19, 2000, motions on various discovery issues were heard by telephonic conference call, and on October 24, 2000, an Order issued thereon.
On November 3, 2000, two Orders on further discovery issues were entered.
The case proceeded to hearing on November 13, 2000.
At hearing, Petitioner was represented by Jack Daniels, who testified and presented the oral testimony of Buddy Worwetz and Vicki Reynolds. Petitioner's Exhibits 1-4 and 6 were admitted in evidence. Petitioner's Exhibit 5 was not admitted.
Respondent had five exhibits admitted in evidence.
A Transcript of the proceedings was filed on November 29, 2000.
On December 4, 2000, a Post-hearing Order noting the date the Transcript had been filed and explaining how to prepare proposed recommended orders was mailed.
The parties had agreed to file post-hearing proposals within 10 days of the filing of the Transcript, or December 9, 2000. Since December 9, 2000, fell on a Saturday, the next non- holiday, December 11, 2000, became the date for filing.
Respondent Faxed its proposal on December 11, 2000, at
5:42 p.m., after DOAH business hours. Therefore, it was not "filed" with the Clerk of the Division until December 12, 2000. Petitioner filed no proposal. Under these circumstances, Petitioner cannot be prejudiced by the consideration of Respondent's late-filed Proposed Recommended Order, and it has been considered.
Due to a court reporter's error, the exhibits which were to be attached to the original Transcript were sent with Respondent's copy of the Transcript, and Respondent forwarded them to DOAH on December 19, 2000.
FINDINGS OF FACT
Despite any typographical or other errors in the Petition, the parties are agreed that this cause is brought solely pursuant to Section 231.6075, Florida Statutes.
Section 231.6075, Florida Statutes, effective June 21, 1999, reads as follows:
231.6075 Rulemaking authority; professional teacher associations. The State Board of Education shall adopt such rules as necessary to ensure that not-for-profit, professional teacher associations which offer membership to all teachers, noninstructional personnel, and administrators, and which offer teacher training and staff development at no fee to the district shall be given equal access to voluntary teacher meetings, be provided access to teacher mailboxes for distribution of professional literature, and be authorized to collect voluntary membership fees through payroll deduction.
On July 7, 1999, Betty Coxe, Division Director, Human Resources Development, Florida Department of Education (DOE) wrote to Florida's District School Superintendents, advising them of the enactment of the statute and that DOE had identified "one statewide organization" which met the criteria to be a professional teacher association under this statute. That association was the Professional Educators Network of Florida, Inc. (PEN).
Petitioner TEA was incorporated as a not-for-profit Florida corporation on September 22, 1999, by Jack Daniels as Chairman, Helen Heard as secretary-treasurer, and Daryl Grier as vice-chairman. The president, vice-president, and secretary- treasurer are elected by the Board of Directors. Currently, Chairman Daniels is also president.
On October 25, 1999, Dean Andrews, Deputy General Counsel for DOE, issued a legal opinion on the following question:
Must the State Board of Education adopt rules prior to school district implementation of Section 231.6075, Florida Statutes, relating to professional teacher associations?
Mr. Andrews answered the question in the negative, concluding that "Section 231.6075, Florida Statutes, is self-executing."
On December 20, 1999, David Ashburn, Director, Division of Human Resources Development, DOE, sent a letter to Florida's District School Superintendents "to provide further clarification for district level implementation" of Section 231.6075, Florida Statutes. That letter read, in pertinent
part:
It has come to the attention of the Department that there may be several associations that may meet the criteria for recognition in a district, and thus shall be afforded access to mailboxes, meetings, and payroll deduction as provided in the law.
The professional association must provide documentation of compliance with the law and provide training in the district to establish recognition on an individual district by district basis. Therefore, a statewide listing or identification of the associations will not be possible.
Implementation and compliance are to be at the local level. (Emphasis supplied)
Sometime in January 2000, but before January 10, 2000, Mr. Daniels orally requested that Respondent Duval County School
District recognize TEA as a professional teachers association, pursuant to Section 231.6075, Florida Statutes. His request was directed to Vicki Reynolds, Executive Director, Office of Policy and Compliance for the Duval County School District, who had been delegated the responsibility for handling this matter by Respondent's Superintendent of Schools.
Ms. Reynolds has an extensive background with the Respondent School District. She was an elementary classroom teacher for eight years; served nine years as legal affairs liaison for the District; served as School District general counsel for two and a-half years; and has been in her present position for approximately one year. The record is silent as to whether she continues to be a certified or licensed professional teacher.
In two trips to see Ms. Reynolds, Mr. Daniels delivered to her a copy of TEA's Articles of Incorporation and a copy of an October 13, 1999, letter from Buddy Worwetz, President of Worwetz Education Systems.
According to Mr. Worwetz's testimony, Worwetz Education Systems is a "training, consulting, technology firm" which "mostly does adult basic training" and some "teacher training." Mr. Worwetz would expect to be paid for such services.
The October 13, 1999, Worwetz letter indicated that Worwetz Education Systems had presented many workshops in "educator training" and "staff development," such as "drop out prevention and classroom management," which had been personally taught by Mr. Worwetz in Respondent's School District, and that the company had the capacity to provide workshops in "curriculum and instruction, various subject matter, technology, exceptional student education, communications, diversity, community relations, and the school improvement process," plus two, six- hour courses, taught by Dr. Kyker and Carla Jones, entitled "Introduction to Cooperative Discipline" and "Student-Centered Leadership." TEA contended that these courses constituted appropriate continuing education courses for professional teachers.
In January 2000, when she reviewed TEA's Articles of Incorporation and the October 13, 1999, Worwetz letter,
Ms. Reynolds accepted them at face value, but Ms. Reynolds could not identify any of the members of TEA's Board of Directors as teachers or educators. She also was not familiar with any of the names or the specifically-titled courses in Mr. Worwetz's October 13, 1999, letter. She was familiar with Mr. Daniels' background, which was primarily in insurance and union organization and litigation. On or about January 10, 2000, she orally denied TEA's recognition request.
On January 11, 2000, Mr. Daniels wrote a letter to Respondent's Superintendent of Schools, requesting recognition of TEA. The Superintendent did not write him back, but that day, or shortly thereafter, Ms. Reynolds orally conveyed the Superintendent's denial to Mr. Daniels.
On January 26, 2000, TEA filed a Petition for Formal Hearing, which was not acted upon by Respondent.
TEA next filed a Petition for Writ of Mandamus in the First District Court of Appeal, requesting that court to compel Respondent School District "to either grant or deny" TEA's request for formal hearing. Respondent opposed the Petition for Writ of Mandamus.
On July 12, 2000, the First District Court of Appeal issued an Order, providing in pertinent part, as follows:
We issued an order to show cause and find that respondent's arguments in opposition to the petition might ultimately prove to be valid reasons to deny the request for formal hearing or, if a hearing is held, to support the district's decision to decline to authorize TEA. They are not, however valid reasons to fail to act on the petition for formal hearing in a timely fashion. . . .
Accordingly, we grant the petition and issue our writ of mandamus, directing the district to act on TEA's petition for formal
hearing . . . .
Respondent did not deny TEA's request for formal hearing.
Rather, Respondent granted TEA's request for formal hearing, in effect declining to recognize TEA, and referred the case to DOAH, on or about August 17, 2000, for a hearing on the merits of recognition, pursuant to Section 231.6075, Florida Statutes.
In either September or October 2000, Respondent, through Ms. Reynolds, accepted submittals from PEN (see Finding of Fact No. 3) at face value. She reviewed a four-page document provided by PEN, which listed all PEN's teacher education and staff development courses with course descriptions and objectives and named some of the instructors. Ms. Reynolds also reviewed a brochure naming PEN's Board of Directors and stating PEN's mission and vision, and a brochure listing the services PEN offers its members in exchange for their dues, which services include legal representation, insurance, and a statewide networking procedure.1
Ms. Reynolds was able to identify teachers and "educators" certificated and/or licensed by DOE on PEN's Board of Directors and certificated and/or licensed teachers named for its courses. Some of these persons she knew personally and others she knew by reputation from her nearly 20 years as a teacher and/or administrator in Respondent School District.
Ms. Reynolds identified a former superintendent of Gadsden County Schools and a former president of Florida State
University as being these "educators." She identified the courses offered by PEN as having some value to continuing teacher education. She also accepted that PEN was a statewide professional teacher association which presumably had DOE's imprimitur. (See Finding of Fact No. 3.)
Thereafter, Respondent recognized PEN, pursuant to Section 231.6075, Florida Statutes, and Respondent now deducts PEN members' dues from Respondent's payroll.
Ms. Reynolds also testified that representatives of a union, Duval Teachers United (DTU), had asserted that Section 231.6075, Florida Statutes, was unconstitutional and that they had urged that Respondent therefore not recognize any professional teacher associations, including PEN and TEA. It is unclear whether DTU has any affiliation with the AFL-CIO.
At hearing, Jack Daniels testified and presented TEA's Articles of Incorporation, demonstrating that TEA is a not-for- profit corporation which offers membership to all teachers, non- instructional personnel, and administrators of all Florida School Districts. TEA apparently operates out of Mr. Daniels' home. TEA is not affiliated with the AFL-CIO.
There are no professional (certificated or licensed) teachers on TEA's Board of Directors.
It is not necessary to determine if an "educator" also may be a person trained in school administration, teacher
qualification, and similar educational support services without also being a licensed or certificated teacher, because TEA's Board does not contain any of these professionals either.
TEA did not demonstrate that any of its Board members had any education, training, or experience which would equip him or her to offer appropriate teacher training or staff development.
Mr. Daniels has a background in insurance and union organization and litigation.
Ms. Heard's qualifications were never clearly revealed.
It was disputed whether or not Daryl Grier remained on TEA's Board of Directors as of the date of formal hearing, but in any case, TEA never affirmatively demonstrated that Mr. Grier has any background or qualifications as a teacher or "educator." In fact, his qualifications, if any, were never revealed.
Buddy Worwetz testified concerning the courses described in his October 13, 1999, letter to Mr. Daniels (see Finding of Fact Nos. 10 and 11), but he never clearly explained the content of any course offered by his company, including those he has taught in the District. The other instructors available and named in the letter, Dr. Kyker and Carla Jones, were trained and "certified" by contributing authors, Pete DeSisto and Ken Blanchard, of a book with a title similar to one
of the course titles, "Introduction to Cooperative Discipline." One of the proposed instructors, Dr. Kyker, reputedly is a "professor," but a professor of what discipline and where she serves as a "professor" was not explained. No mention was made of whether any of these people are certificated or licensed by DOE. Other qualifications, if any, of these proposed instructors were not explained.
It was not demonstrated that Mr. Worwetz is a licensed or certificated teacher.
Also, the cost and objectives of Worwetz's courses were not explained.
However, evidence of Worwetz instructors and courses is essentially moot, since any planned collaboration between TEA and Worwetz Education Systems had ended before formal hearing. Effective May 26, 2000, Mr. Worwetz wrote Mr. Daniels that Worwetz Education Systems would no longer be available to contract with TEA for educational services.
Mr. Worwetz's reasons for rescinding his October 13, 1999, offer to deal with TEA were his "gut feeling" that his organization "was being used to bolster TEA's eligibility and capability"; because Mr. Daniels had not contacted him in more than 30 days; and because he believed contracting with TEA would hurt his business with an AFL-CIO rival of TEA. It is clear from Mr. Worwetz's candor and demeanor while testifying that
AFL-CIO members had influenced his decision to distance himself from TEA, but there is no evidence of any efforts of the Respondent School District in that regard.
TEA currently has no employees, agents, or contractors who can offer continuing teacher education.
TEA presented no evidence it currently has any members besides its three Directors, let alone any members who are professional teachers in Respondent's school district who might value receiving TEA materials in their mailboxes and deductions for TEA dues from their paychecks.
TEA presented no evidence concerning the content or credit-hour value of educational courses it currently intends to offer. Apparently, TEA expects Respondent to list courses Respondent considers acceptable for teachers' continuing education and staff development and then Mr. Daniels, on behalf of TEA, will try to contract with some entity to produce these courses or will try to contract with an entity already offering such courses. Such a scenario hardly seems feasible, and TEA offered no evidence that any qualified entity exists which is willing to contract with TEA for this service.
TEA presented no evidence that it has operating funds with which to provide the educational programs contemplated by the statute.
Respondent School District, as represented by
Ms. Reynolds, is aware of a prior labor dispute decided by the Florida Public Employees Relations Commission (PERC) which partially went against Respondent and in favor of a non-AFL-CIO union which Mr. Daniels represented. There also has been litigation before PERC which required Mr. Daniels' union "client" to pay money to Respondent, and the money has not been paid. Despite Ms. Reynolds' denial, her candor and demeanor when testifying suggests that she and her advisers have a concern that Mr. Daniels has a secret union agenda connected with TEA and that this concern was a component of Respondent's denial of recognition to TEA, pursuant to Section 231.6075, Florida Statutes.
Respondent School District, as represented by
Ms. Reynolds, views access to teachers' mailboxes and use of payroll deductions as having fiduciary overtones. She and her advisers have reservations about Mr. Daniels' fitness to administer such activities and funds on behalf of TEA. It is feared that programming into Respondent's system a payroll deduction for TEA may cause some of Respondent's employees to believe that Respondent has checked TEA's reliability in fiscal matters and is endorsing TEA in that regard. Respondent does do such checks on the tax-sheltered annuity firms for which Respondent makes payroll deductions.
Supporting its concerns about union agitation and fiscal responsibility, Respondent had admitted in evidence PERC Show Cause Order Docket No. RC-99-014; Order No. 99E-070, dated March 18, 2000, found at 6 FPER paragraph 31099. That Order, in pertinent part, found as fact as follows:
In 1990 Florida American Union (FAU) . . . through Daniels, filed an unfair labor practice charge which it knew was frivolous or groundless and ordered FAU to pay the [Duval County] School District its reasonable attorney's fees and costs. The Commission approved this recommendation.
See Florida American Union v. Duval County School District, 16 FPER ¶21150 (1990).
In 1993, . . . Daniels [as lay representative of a union] filed a motion asserting racial allegations against the Commission. That motion contained inaccurate and deceptively stated information and the Commission denied the motion as devoid of merit in form and substance. See Brotherhood of Black Custodial and Food Service Workers v. Duval County School District v. Florida Public Employees Council 79 AFSCME 19 FPER ¶24067 (1993).
In 1994 . . . the hearing officer disqualified Daniels as a lay-representative for creating and using false evidence, presenting false testimony, and engaging in ex parte communications with the Commission. Recognizing the gravity of Daniels' misconduct in the ACE case, the Commission stated that in future cases Daniels would be subject to a show cause order when he asks to serve as a lay-representative. See Association of City Employees v. City of Jacksonville, 22 FPER ¶27052 (1996) appeal dismissed, No. 96-168 (Fla. 1st DCA Oct. 30, 1996).
In 1996, . . . [w]hen Daniels sought to act as JETs lay-representative, the hearing officer issued an order to show cause why he should not be disqualified. Jacksonville Employees Together (JET) v. Jacksonville Housing Authority v. Florida Public Employees Council 79, AFSCME Case No. RC-96- 054 (Fla. PERC HOO Dec. 13, 1996). The
hearing officer noted Daniels' flagrant misconduct in the ACE case and that Daniels' response only attacked Commissions ACE decision; thus, according to the hearing officer, Daniels failed to provide sufficient reasons why he should not be disqualified to serve as JET's lay- representative. Jacksonville Employees Together v. Jacksonville Housing Authority
v. Florida Public Employees Council 79, AFSCME, Case No. RC-96-054 (FLA. PERC H00 Dec. 19, 1996); see also Jacksonville Employees Together v. Jacksonville Housing Authority v. Florida Public Employees Council 79, AFSCME, 23 FPER ¶28109 (1997). On appeal, the court affirmed the hearing officer. Jacksonville Employees Together v. Jacksonville Housing Authority, Case No. 97- 1784 (Fla. 1st DCA Aug. 19, 1998).
In 1997, . . . the hearing officer disqualified Daniels as JET's lay- representative because he engaged in conduct that was prejudicial to the administration of justice. Fla. Admin. Code Rule 28- 106.107(3)(b) . . . See Jacksonville Employees Together v. City of Jacksonville
v. Florida Public Employees Council 79, AFSCME, AFL-CIO, Case No. RC-97-034 (Fla. PERC H00 July 24, 1998, appeal withdrawn, Case No. 98-0343 (Fla. 1st DCA Mar. 4, 1999); see also Jacksonville Employees Together v. City of Jacksonville v. Florida Public Employees Council 79, AFSCME, AFL- CIO, 25 FPER ¶30047 (1999).
On August 31, 1998, . . . [t]he circuit court . . . adjudged Daniels in contempt for failing to honor a lawfully issued subpoena.
. . . In re: The Petition of Florida Public Employees Council 79, AFSCME, Case No. 98- 4935-CA (Fla. 4th Cir. Ct. Nov. 16, 1998).
[Bracketed material added for grammar and clarity.]
The PERC Order gave Mr. Daniels 10 days in which to respond.
TEA presented no evidence that the foregoing PERC Order to Show Cause had been responded to, reconsidered, vacated, set aside, or even appealed. Mr. Daniels testified, without refutation but also without any subsequent PERC Order to support his testimony, that, due to a change of PERC Commissioners, he has been re-admitted to practice before PERC. This evidence, even if believed, does not alter the facts as previously found by the PERC Order in evidence.2
CONCLUSIONS OF LAW
The Division of Administrative Hearings (DOAH) has jurisdiction of the parties and subject matter of this cause pursuant to this case's procedural history.
Any failures to act by Respondent Duval County School District prior to its referral of the case on August 17, 2000, for a hearing on the merits is now moot.
The "proposed agency action" herein is Respondent Duval County School District's intent to deny recognition of TEA, but this proceeding is not an "appeal" of that decision. That decision does not arrive before the undersigned with a
presumption of correctness. Young v. Dept. of Community
Affairs, 625 So. 2d 831, 833 (Fla. S. Ct. 1993); Hamilton County Commissioners v. State Dept. of Environmental Regulation,
587 So. 2d 1378, 1387 (Fla. 1st DCA 1991); McDonald v. Dept. of Banking and Finance, 346 So. 2d 569 (Fla. 1st DCA 1977).
This is a de novo proceeding in which Petitioner TEA bears the duty to go forward and prove by a preponderance of the evidence its entitlement to recognition pursuant to Section 231.6075, Florida Statutes. Florida Department of
Transportation v. J. W. C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981), and Balino v. Dept. of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977).
This case is governed by Section 231.6075, Florida Statutes, previously quoted in Finding of Fact No. 2, supra.
Through its pleadings, Respondent Duval County School District has taken the position that due to the "plain wording" of the statute at issue and/or due to DOE's interpretations thereof, Respondent is required to take no action whatsoever in the absence of, or at least prior to, rules being adopted by the State Board of Education, and that, alternatively, TEA does not qualify for recognition under the terms of the statute.
Section 231.6075, Florida Statutes, enables the State Board of Education to adopt rules "as necessary to ensure" that specific entities (professional teachers associations) shall be
given equal access to voluntary teacher meetings, be provided access to teacher mailboxes for distribution of professional literature, and be authorized to collect voluntary membership fees through payroll deduction.
This case demonstrates that statewide rules are desirable, but the fact that the State Board of Education has determined that no rules are necessary does not relieve local school districts of reasonably granting or denying recognition of professional teacher associations, and it is disingenuous for Respondent to assert that it has no authority to recognize such professional teacher associations but does have authority to deduct dues for one of them, PEN.
Although this proceeding is not bound by DOE memoranda, it is noted that DOE's construction of the statute is reasonable. Until the State Board of Education promulgates rules, the decision to recognize or not recognize professional teacher associations, pursuant to Section 231.6075, Florida Statutes, is discretionary with the respective school districts.
However, a district's discretion may not be exercised in a manner that is discriminatory, because the thrust of the statute is to provide for access by all qualified professional teacher associations. The statute is not designed to provide recognition of only those qualified associations which a district prefers for a reason(s) not contained in the statute.
It also is not designed to permit a district to select and choose from among qualified associations only those qualified associations the district thinks will "best" provide the services described in the statute. The statute seeks to foster access by all qualified associations, not just access by the
most qualified association(s).
Respondent's concern over TEA's financial resources and failure to specifically assess the financial resources of PEN suggests possible discrimination in favor of that professional teacher association, but there is insufficient evidence to clearly reach that conclusion, and the instant proceeding does not constitute a review of Respondent's decision to recognize PEN.
The maxim, "expressio unius est exclusio alterius" applies: That which is not included is excluded. More to the point, that which is not expressed is presumed not to be intended. See State, Dept. of Health & Rehab. v. Hartsfield,
443 So. 2d 322 (Fla. 1st DCA 1983); Graham v. Azar, 204 So. 2d
193 (Fla. 1967); Dobbs v. Sea Isle Hotel, 56 So. 2d 341 (Fla.
1952); Ideal Forms Drainage District v. Certain Lands, 19 So. 2d
234 (Fla. 1944); In re Ratliff's Estate, 188 So. 128 (Fla.
1939). Legislative intent is expressed by its choice of words and legislatures are presumed to mean what they say. It is assumed that the Legislature used particular wording advisedly
and for a purpose, and it is not up to the courts to supply missing words. See DeSisto College Inc. v. Town of Howey-in- the-Hills, 706 F. Supp. 1479 (U.S.M.D. Fla. 1989), aff. 888 F.2d 766 (11th Cir. Fla. 1989); Zuckerman v. Alter, 615 So. 2d 661 (Fla. 1993); Gunite Works Inc. v. Lovett, 392 So. 2d 910
(Fla. 1st DCA 1980); Thayer v. State of Florida, 335 So. 2d 815 (Fla. 1976). Courts should be extremely careful about adding words to a statute as enacted by the Legislature. They cannot take the liberty of supplying a word. They must not invoke a limitation not placed there by the Legislature. See Rebick v. Burdine's and Liberty Mutual Ins. Co., 417 So. 2d 284 (Fla. 1st DCA 1982) rev. den. 424 So. 2d 284 (Fla. 1982); Hialeah, Inc v. B & G Horse Transportation, Inc. 368 So. 2d 930 (Fla. 3d DCA
1979); Armstrong v. City of Edgewater, 157 So. 2d 422 (Fla. 1963); Atlantic Coast Line Railroad Company v. Boyd, 102 So. 2d 709 (Fla. 1958).
Prior union dealings between Respondent Duval County School District and TEA's President Jack Daniels and their mutual distrust of one another's motives (see Finding of Fact No. 39) is not recognized by the statute and therefore may not be considered in this proceeding.
Acts which an ordinarily prudent person would regard as acts of bad character (see Finding of Fact Nos. 40-42) may raise legitimate concerns about authorizing TEA to have equal
access to voluntary teacher meetings, to be provided access to teacher mailboxes, and to collect voluntary membership fees through payroll deductions, but those concerns are neither explicit nor implicit in the statute. Therefore, prior acts of Mr. Daniels and his current character, good or bad, may not be considered in this proceeding.
Likewise, the statute does not require that a professional teachers association have professional teachers capable of offering teacher education and staff development courses on its Board of Directors, only that it be able to provide those courses.
Once again, although this proceeding is not bound by the DOE memoranda, the factors DOE considers important for districts to assess for purposes of recognition of a professional teachers association pursuant to Section 231.6075, Florida Statutes(documentation of compliance with the law and proof it can provide training in the district) are both reasonable and reasonably authorized by the statute itself.
TEA did not demonstrate that it can provide the teacher training and staff development contemplated by the statute.
Despite repeated admonitions by the undersigned that the status of the parties as of the date of hearing was at issue, TEA insisted on reiterating the wrongs it felt it had
suffered at Respondent's hands prior to the District Court's ruling and never put on much useful evidence about its current status.3
Consequently, TEA has failed to show by a preponderance of the evidence that it should be recognized by Respondent.
TEA demonstrated that it is a not-for-profit "paper" corporation which offers membership to all teachers, non- instructional personnel, and administrators, but it did not demonstrate that it has any members qualified to offer teacher training and staff development. It has no outside qualified courses lined-up, and its president could not name any teacher training or staff development course which is currently available. TEA did not even demonstrate a sufficient economic base whereby it could contract for training and staff development courses at any future date. Because the burden of proof in this case is upon Petitioner TEA, it behooved TEA to affirmatively demonstrate its ability to offer teacher education and staff development courses at no cost to the district, and it did not.4
Based upon the findings of fact and conclusions of law, it
is
RECOMMENDED:
That the Duval County School District enter a final order denying Teachers Education Association's request for recognition pursuant to Section 231.6075, Florida Statutes, as of the date of the final order.5
DONE AND ENTERED this 5th day of January, 2001, in
Tallahassee, Leon County, Florida.
ELLA JANE P. DAVIS
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 5th day of January, 2001.
ENDNOTES
1/ These documents were not offered in evidence, but
Ms. Reynolds' testimony on this score is found to be credible.
2/ TEA did not offer in evidence at formal hearing any PERC order or even the items (an announcement apparently printed by Mr. Daniels or his union and a newspaper article) attached to prior pleadings seeking Mr. Daniels' acceptance as TEA's qualified representative in this case. Items not admitted in evidence at formal hearing cannot be considered, but in the event the prior items could be considered, they would not support or explain direct evidence, would constitute only further unsubstantiated hearsay, and would be probative of nothing.
3/ It was TEA's position that once an application is received, it is the School District's duty to investigate the proffered courses and instructors and "prove-up" the applicant's
entitlement to recognition. This is simply not how any type of application works. Applicants always bear the affirmative duty to establish eligibility. Although Ms. Reynolds' method of accepting only names of teachers and courses she, through her education, training, and experience readily recognized is a very loose standard of review and may point to the need for statewide rules, it is not an unprecedented or discriminatory standard.
Applicants were free to attach curriculum vitae or anything else which would support their applications and persuade her.
4/ In reaching this conclusion, I have not ignored TEA's assertion that in order to solicit members and collect dues, an association is better off if it is already recognized by a school district. Nor have I ignored the probable AFL-CIO interference with TEA's contract negotiations for course material and instructors, but these concerns are not within the control of Respondent and are not recognized by Section 231.6075, Florida Statutes.
5/ Nothing herein shall be construed to prohibit TEA reapplying for recognition when and if it can qualify under Section 231.6075, Florida Statutes.
COPIES FURNISHED:
Jack Daniels, President Teachers Educators Association Post Office Box 40068 Jacksonville, Florida 32203
Ernst D. Mueller, Esquire City of Jacksonville
Office of the General Counsel
117 West Duval Street Suite 480
Jacksonville, Florida 32202
Michael H. Olenick, General Counsel Department of Education
The Capitol, Suite 1701 Tallahassee, Florida 32399-0400
Honorable Tom Gallagher Commissioner of Education Department of Education The Capitol, Plaza Level 08
Tallahassee, Florida 32399-0400
John C. Fryer, Superintendent Duval County School Board 1701 Prudential Drive
Jacksonville, Florida 32207-8182
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.
| Issue Date | Document | Summary |
|---|---|---|
| Mar. 06, 2001 | Agency Final Order | |
| Jan. 05, 2001 | Recommended Order | School districts recognize professional teacher associations based on documentation of compliance with law and ability to provide training in district. Until adoption of rules, individual districts shall decide upon statute alone. |
