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MARTIN COUNTY EDUCATION ASSOCIATION vs. MARTIN COUNTY SCHOOL BOARD, 75-001126 (1975)
Division of Administrative Hearings, Florida Number: 75-001126 Latest Update: Jun. 28, 1990

Findings Of Fact The Public Employer filed a petition for determination of managerial and confidential employees with PERC on February 21, 1975. The job positions for which managerial or confidential status is requested, and the persons who occupy the positions are set out in the petition. The petition was presented to the Public Employee Relations Commission on May 8, 1975. The hearing in this case was scheduled by notice dated August 1, 1975. The Public Employer recognized the MCEA as the exclusive bargaining agent of instructional personnel employed by the Public Employer prior to the instant petition being filed. A contract between the Public Employer and MCEA was signed on August 26, 1975, and was received in evidence at the hearing as Public Employer's Exhibit 5. The Public Employer's evidence respecting the responsibilities, duties, and day-to-day activities of the persons who occupy the positions for which managerial or confidential status is being sought was received primarily in the form of job descriptions, and a chart showing the functions of each position which justify managerial or confidential status as perceived by the Public Employer. The job descriptions were received in evidence as Public Employer's Exhibit 2. The chart was received in evidence as Public Employer's Exhibit 3. The job descriptions accurately describe the duties, responsibilities, and day- to-day activities of each position. If the persons who occupy the positions are not performing their duties in accordance with the descriptions, then they are performing their duties improperly. It is likely that if the jobs were being performed contrary to the descriptions, this fact would be known to the Superintendent. The positions for which managerial or confidential status is being sought are described in Public Employer's Exhibit 2 beginning at the following indicated page: the Assistant Superintendent for Service at page 27, the Assistant Superintendent for Instruction at page 5, the Assistant Superintendent for Business Affairs at page 32, the Director of Personnel at page 24, the Director of Instructional Support and People Personnel Services at page 20, the Director of Adult Education at page 17, the Director of Exceptional Child and Special Services at page 13, the Director of Federal Programs at page 22, the Director of Career Education at page 16, the Director of Secondary Education at page 7, the Director of Elementary Education at page 9, the Director of Vocational Education at page 15, the Director of Community Manpower Programs at page 18, the Director of Planning and Research at page 14, the Maintenance Supervisor at page 28, the Transportation Supervisor at page 29, the Supervisor of Custodial Services at page 30, the Food Service Supervisor at page 34, the High School Principal at page 8a, the Middle School Principals at page 8f, the Elementary School Principals at page 11, the Assistant High School Principals at page 8c, the Assistant Middle School Principals at page 8h, the High School Department Heads at page 8d, the Curriculum Coordinators at page 8i and 12a, the Helping Teacher at page 12c. The references in the chart which was received as Public Employer's Exhibit 3 are to paragraphs in the job descriptions set out in Public Employer's Exhibit 2. The Public Employer is seeking to implement what was described at the hearing as a "team management system" in order to accomplish management a baser level. Under this system Principals, Assistant Principals, and department Heads would take on increased management functions. Principals are expected to initiate action respecting policy changes which they consider appropriate. The School Board, the Public Employer's legislative body, is ultimately responsible for adopting policy. The School Board typically adopts policies based upon the recommendations of the elected Superintendent, the Public Employer's chief executive officer. The Principal's recommendations respecting policy, especially policy which would be applicable primarily in the Principal's school are given great weight. One recent policy making decision in which a principal played a part involved parking at Martin County High school. The school Principal advised the superintendent of a need for a change in rules and regulations respecting parking. The principal went before the Board to describe the problem, and the Board directed the Principal and the Assistant Superintendent for Service to write a new policy for the Board's consideration. This policy was formulated primarily by the school Principal and was presented to the superintendent. The superintendent presented the policy to the School Board and recommended its adoption. The School Board adopted the policy without amendment. There are ten Principals employed by the Public Employer. There are one High School Principal, three Middle School Principals, and six Elementary School Principals. The High School Principal, one Middle School Principal and one Elementary School Principal were appointed by the Public Employer to the team which negotiated a contract with the MCEA. Under the agreement that has been signed by the Public Employer and by the MCEA, the Principal is charged with administering the agreement within his or her school. The Principal takes on a primary responsibility in the grievance procedure established in the agreement. The Principal is primarily responsible for making determinations respecting hiring and firing of personnel employed at his or her school. The Principal does not have the absolute authority to hire or fire personnel. The Principal makes recommendations to the superintendent, who in turn makes recommendations to the School Board. The School Board has the ultimate authority. In Martin County the Principals' recommendations respecting hiring and firing are followed, possibly without exception. The Principal is responsible for evaluating the personnel employed at his or her school. The evaluation is done on a form that has been adopted by the School Board. The evaluation goes into the employee's personnel file, and becomes a part of the employee's permanent employment record. The Public Employer's system for formulating and administering its budget is somewhat decentralized. Money is budgeted to a school based on the number of students. The school budget, which does not include expenditures for salaries or capital improvements, is prepared by the Principal. The Principal's budget is for all school supplies including textbooks. The central administration reviews the Principal's budget and would have authority to change items that were out of line. The budget ultimately adopted by the School Board actually reflects ten separate school budgets. The Principal has no control over the amount of money that will be budgeted to his or her school, but the Principal does have considerable latitude in setting the budget priorities for his or her school. Once the budget is adopted, the Principal has the authority to make expenditures based upon the budget. The Principal signs all purchase requisitions emanating from his or her school. The duties of Assistant Principals vary among the schools in Martin County, depending in part upon the responsibilities which are delegated by the Principal to the Assistant Principal. Virtually any of the Principal's responsibilities can be delegated by the Principal to the Assistant Principal, although ultimate responsibility would remain with the Principal. Generally Assistant Principals are charged with establishing schedules, and assigning teachers. The witness Clara Bevis Fulton is presently Principal at Martin County High School. She was previously Assistant Principal. As Assistant Principal she would hold initial interviews with job applicants. If the applicant appeared satisfactory she would call in the Department Head in the area in which the applicant works and would check the applicant's references. She would evaluate the teachers based on information given to her by Department Heads, and based upon her own classroom visits. She made recommendations to the Principal respecting hiring and firing. The Principal's budget responsibilities were handled by Mrs. Fulton while she was Assistant Principal at Martin County High School. There are six Department Heads employed by the Public Employer. All of the Department heads work at Martin County High School. The Department Heads typically spend approximately 4/5 of their time as classroom teachers, and the remaining time fulfilling administrative duties. The Director of Guidance, who is classified as a Department Head, spends more than half of his time on administrative duties. Department Heads are paid on a management pay scale rather than on a teacher's pay scale. The opinions of the Department Heads respecting new employees and old employees are solicited by the Principal or Assistant Principals. The Department Heads give considerable input into teacher evaluations. Department Heads serve as the first step in the grievance procedure adopted in the collective bargaining contract that has been signed by the Public Employer and by the MCEA. The School Superintendent refers to Department Heads as the front line of management. The Principal or Assistant Principals seek information from the Department Heads respecting the budgetary needs of their department. This information would primarily amount to an explanation of the coming year's needs in relation to the past year. This budget information relates to supplies and textbooks, not to salaries. The primary function of Curriculum Coordinators is to plan and administer a school's curriculum. The Curriculum Coordinator plays a role in evaluating teachers by forwarding information to the Principal or Assistant Principals. Information is sought from the curriculum Coordinators respecting budgetary needs, especially from the perspective of the priority of conflicting needs. The Curriculum Coordinator has no classroom duties. ENTERED this 16 day of January, 1976, in Tallahassee, Florida. G. STEVEN PFEIFFER Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida COPIES FURNISHED: All parties of record

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BAY COUNTY SCHOOL BOARD vs MARVIN JONES, 13-002835 (2013)
Division of Administrative Hearings, Florida Filed:Panama City, Florida Jul. 26, 2013 Number: 13-002835 Latest Update: Jan. 10, 2025
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GENE A. STARR vs. HAMILTON COUNTY SCHOOL BOARD, 88-004116 (1988)
Division of Administrative Hearings, Florida Number: 88-004116 Latest Update: Apr. 18, 1989

The Issue Whether the Superintendent of Hamilton County Schools recommended that the Respondent enter into a professional services contract with the Petitioner, Gene Starr?

Findings Of Fact Gene A. Starr has been continuously employed by the School Board of Hamilton County as an agriculture teacher since the 1985-1986 school year. On March 18, 1988, the principal of Hamilton County High School recommended to the Superintendent of the Respondent that the Respondent enter into a professional service contract with Mr. Starr. At a meeting of the Respondent held on April 12, 1988, the Superintendent made recommendations to the Respondent concerning reappointment of a number of employees. The Superintendent specifically recommended that Mr. Starr receive a professional service contract. A motion was made and seconded by members of the Respondent to accept the recommendations of the Superintendent. The following events took place, as reported in the minutes of the Respondent's April 12, 1988, meeting: At the Board's request, Mr. Lauer [the Superintendent] appeared to discuss the recommendation of Gene Starr. The consensus of the Board was that the agriculture program has not progressed as per expectations, and that Mr. Starr's coaching duties conflict with his duties as an agriculture teacher. It was the opinion of some members that there should be more emphasis on crop production and harvesting and on supervision of home projects. Following the discussion of the Superintendent's recommendation concerning Mr. Starr, the Superintendent "asked for and was granted permission to withdraw his recommendation on & Mr. Starr and to resubmit another recommendation on him at a subsequent meeting." The Superintendent then "amended his recommendation to omit Mr. Starr" and the motion to accept the Superintendent's recommendations was amended to reflect this change. The Respondent then approved the Superintendent's recommendations, as amended. The Respondent did not consider whether there was "good cause" to reject the Superintendent's recommendation concerning Mr. Starr. At a May 10, 1988, meeting of the Respondent the Superintendent recommended that Mr. Starr be reappointed to an instructional position for the 1988-1989 school year and that Mr. Starr serve in the instructional position for a fourth year on annual contract instead of being granted a professional services contract. The recommendation was withdrawn on advice of counsel for the Respondent. At a May 23, 1988, meeting of the Respondent Mr. Starr and the Respondent agreed that Mr. Starr would agree to a fourth year on annual contract, "subject to and without prejudice to a formal hearing on his right to a professional services contract." Mr. Starr was informed of this action in a letter dated May 31, 1988. Mr. Starr filed a Petition for a Formal Hearing challenging the Respondent's action with regard to the Superintendent's recommendation to the Respondent that Mr. Starr receive a professional services contract. In the Petition, Mr. Starr specifically requested the following relief: That the matter be assigned to the State of Florida Division of Administrative hearings [sic] for the assignment of a hearing officer. That a formal hearing be held on this particular petition pursuant to Sec. 120.57(1), Fla. Stat. as to Petitioner's entitlement to employment under a professional services contract.

Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the recommendation of the Superintendent of Hamilton County Schools be accepted by the School Board of Hamilton County unless the School Board of Hamilton County concludes that there is good cause for rejecting the recommendation. DONE and ENTERED this 18th day of April, 1989, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of April, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-4116 The Petitioner has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1. 2 3-9. 3 10. 4-8 Statement of events which occurred at the formal hearing and some of the arguments advanced by the parties at the formal hearing. COPIES FURNISHED: Edwin B. Browning, Jr., Esquire Post Office Drawer 652 Madison, Florida 32340 Donald K. Rudser, Esquire Post Office Drawer 151 Jasper, Florida 32052 Owen Hinton, Superintendent Hamilton County School Board Post Office Box 1059 Jasper, Florida 32052 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399-0400

Florida Laws (1) 120.57
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JERRY KAPUSTA vs. SCHOOL BOARD OF HARDEE COUNTY, 77-001587 (1977)
Division of Administrative Hearings, Florida Number: 77-001587 Latest Update: Dec. 12, 1977

Findings Of Fact Prior to the commencement of the 1977-78 school year, the position of Assistant Principal at Hardee High School became vacant. The vacancy was properly advertised, and very little interest was shown in the position. The Petitioner, Jerry Kapusta, was at that time employed at Hardee High School as a Physical Education teacher, Head Football Coach, and Head Track Coach. Kapusta applied for the vacant position. The Principal of Hardee High School recommended that Kapusta be hired as Assistant Principal. Acting in part on the basis of the Principal's recommendation, and in part upon his own independent examination of Kapusta's qualifications, the Superintendent of Public Instruction recommended to the School Board that Kapusta be hired as Assistant Principal at Hardee High School. A motion to approve the Superintendent's recommendation was defeated at a School Board meeting by a vote of 2 to 2. One member of the Commission was absent. Subsequently, the Superintendent made a decision to replace the position of Assistant Principal with the position of Dean of Students. The Superin tendent recommended that Kapusta be hired for this position. At a School Board meeting conducted approximately two weeks following the earlier meeting, the Board rejected the recommendation by a vote of 3 to 2. Members of the School Board who voted against the recommendation testified that they did so primarily because Kapusta was not properly certified by the State Board of Education in the fields of supervision and administration. School Board member Barlow testified that she voted against the recommendation because Kapusta was not certified, because she felt he was doing a good job as football coach, and that he should stay in that position, and because she felt that Kapusta's lack of certification would hinder the Board's efforts to get the schools accredited by the Southern Association of Colleges and Schools. School Board member Knight testified that she voted against the recommendation because of Kapusta's lack of certification, and because he was doing a good job as football coach. School Board member Gilliard testified that he voted against the recommendation due to the lack of certification and because be wanted Kapusta to remain as football coach. Sometime during May, 1969, the School Board adopted policies which were included in the Board's policy book. The qualifications for the position of Assistant Principal were among the policies adopted. One of the qualifications was as follows: Candidates for assistant principalships. . . must hold a rank II or higher certificate covering administration and supervision at the level for which the applicant is to be employed or covered by a special permit. Similar qualifications were adopted for other administrative positions. This policy was readopted by the School Board each time that it readopted its policy manual. Since the policy was adopted the School Board has consistently ignored it. Joint exhibits 6 and 7 list persons who were hired by the Board to fill administrative positions since the policy was originally adopted. The overwhelming majority of persons hired for administrative positions since the policy was adopted were not properly certified according to the policy. Certification of administrative personnel as administrative personnel is not among the requirements for accreditation set out In the Southern Association of Colleges and Schools' "Standards of the Commission on Secondary Schools." The Petitioner, Jerry Kapusta, has adequately performed his duties as Physical Education Teacher, Head Football Coach, and Head Track Coach at Hardee High School. Kapusta is certified as a physical education teacher and health instructor for Kindergarten through twelfth grade, and for junior colleges. He is not certified as a supervisor or administrator. He would require approximately twenty-one (21) hours of additional course work in order to obtain such certification. It is Kapusta's intention to enroll in courses that would lead to his certification as an administrator. Kapusta is the most qualified person to have applied for the position of Dean of Students at Hardee High School. Other than his lack of certification, and the desire that he remain as Head Football Coach, no testimony was presented which would establish that Kapusta is other than qualified for the position.

Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, hereby, RRECOMENDED: That a final order be entered accepting the Superintendent's recommendation that the Petitioner/Appellant, Jerry Kapusta, be appointed to the position of Dean of Students of Hardee High School, and appointing him to that position. RECOMMENDED this 12th day of December, 1977, in Tallahassee, Florida. G. STEVEN PFEIFFER, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: John W. Burton, Esquire Burton, Patarini & Collins, P.A. Post Office Box 420 and 605 Wauchula, Florida 33073 John J. Chamblee, Jr., Esquire 341 Plant Avenue Tampa, Florida 33606

Florida Laws (1) 120.57
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RICHARD CORCORAN, AS COMMISSIONER OF EDUCATION vs CARMEN KOMNINOS, 19-005851PL (2019)
Division of Administrative Hearings, Florida Filed:Naples, Florida Nov. 04, 2019 Number: 19-005851PL Latest Update: Mar. 26, 2020

The Issue The issues to be determined are whether the Florida educator’s certificate of Respondent, Carmen Komninos, is subject to discipline for violating section 1012.795(1)(j), Florida Statutes, and Florida Administrative Code Rule 6A- 10.081(2)(a)1, as alleged in the Administrative Complaint, and, if so, the appropriate penalty therefor.

Findings Of Fact Ms. Komninos holds Florida Educator’s Certificate No. 985529, which covers Elementary Education, English for Speakers of Other Languages (ESOL), and World Language – Spanish, and is valid through June 2021. Ms. Komninos began her 42-year career as an educator in New Jersey. She moved to Florida in 2006 and started working for the School District. She primarily taught Spanish at the School from 2007 until she retired in 2019. During the 2017-2018 school year, Ms. Komninos served as a Spanish teacher and taught B.T. and C.M., among other students. The Administrative Complaint focuses on two separate incidents in which Ms. Komninos allegedly grabbed B.T. and C.M. by their arms. Neither B.T. nor C.M. reported the alleged incidents to the School when they happened. Rather, they only disclosed them during the School’s investigation of complaints made by other students. That investigation began on March 22, 2018, when a teacher received the following two documents from an unidentified student: (1) a handwritten letter of unknown origin purportedly signed by several students complaining about Ms. Komninos1; and (2) a copy of a photograph posted to Snapchat. The photograph clearly depicts Ms. Komninos standing behind B.T. and holding onto his left arm with both of her hands. She does not appear to be exerting any force. B.T. is facing away from her and clearly smiling. The photograph contained the following two captions: how aggressive Hey Look! “Los novios” The use of the cry-laughing emoji multiple times seems to reflect that the students who posted the photograph found the incident humorous. But, the record contains neither evidence as to who took the photograph, posted it to Snapchat, or drafted the captions, nor evidence as to when that occurred. The teacher brought the documents to a guidance counselor who gave them to the assistant principal. The assistant principal brought them to the principal and Corporal Soto, the School’s youth relations deputy. The principal notified the School District and immediately removed Ms. Komninos from teaching duties pending the investigation. Mr. Ghelman, the School District’s coordinator for secondary schools and human resources at the time, directed the principal to obtain statements from the students. In his statement, B.T. acknowledged that he got out of his seat to sharpen his pencil after being told not to do so by Ms. Komninos and then refused to heed her directive to sit down. At that point, she grabbed his arm and tried to pull him back into his seat while his classmates yelled. 1 The record is silent as to the letter’s author, no student who signed it testified, and it focuses on allegations beyond the scope of the Administrative Complaint. Thus, the undersigned excluded the letter and has not relied on it in making any finding of fact. In her statement, C.M. indicated that she got up out of her seat to throw a piece of paper in the recycling bin and did so without permission because Ms. Komninos did not have a rule requiring them to ask first. C.M. stated that Ms. Komninos approached her at the recycling bin, grabbed her arm forcefully, and pushed her down to pick up the paper from the bin. C.M. said she picked up the paper and walked back to her desk. In their written statements, neither B.T. nor C.M. indicated when their respective incidents occurred or stated that they suffered (or could have suffered) any harm. Upon receipt of the statements, Mr. Ghelman met with Ms. Komninos. Contrary to C.M.’s statement, Ms. Komninos confirmed that she required the students to ask permission before getting up from their seats. She also said that she never placed her hands on a student. When shown the photograph, she ultimately agreed that it depicted her and B.T., but she did not recall the incident. She noted that she met with B.T.’s parents earlier that year to address B.T.’s struggles in her class. As to C.M., Ms. Komninos recalled the incident, but said that she never pushed C.M. and only told her to sit down when she got up without permission. Around the same time, Corporal Soto interviewed B.T. B.T. conceded that he wrongly got up without permission and refused to sit after being told to do so. B.T. said that, at that point, Ms. Komninos grabbed his arm to prevent him from continuing to walk towards the pencil sharpener and he went back to his seat. B.T. confirmed he suffered no injuries. Corporal Soto contacted B.T.’s father, who did not know about the incident. After viewing the photograph and speaking to his son, he informed Corporal Soto that they did not want to press charges. However, he remained concerned because he had met with Ms. Komninos and the guidance counselor before the incident to address concerns with her teaching style. In early April 2018, the principal met with B.T., his father, and Ms. Komninos. B.T.’s father wanted to ensure that Ms. Komninos would not treat his son differently if she returned to the class. She apologized for the incident and promised to help B.T. with the class. The principal believed that B.T.’s parents accepted the apology and welcomed her assistance. On April 18, 2018, after concluding its investigation, the School District suspended Ms. Komninos for one day without pay. She accepted the discipline and returned to the classroom. B.T.’s father confirmed that she treated B.T. fairly and that he passed her class. Notwithstanding the discipline already imposed, the Commissioner conducted its own investigation and obtained additional written statements from the students in November 2018. In B.T.’s statement, he indicated that he stood up to sharpen his pencil during a test, after Ms. Komninos told him he could not do so, and she then grabbed his arm and pulled to get him back to his seat. This statement largely mirrored the one he gave in March 2018. In C.M.’s statement, she indicated that Ms. Komninos forcefully grabbed her arm when she got up to throw away trash, pulled her, and told her to return to her seat. C.M. did not believe she needed permission since they were doing independent study. She was upset that Ms. Komninos grabbed her, instead of asking her to sit down. This statement conflicted with the one she gave in March 2018, in which she never accused Ms. Komninos of pulling her. Much like their first statements, neither B.T. nor C.M. indicated when their respective incidents occurred or stated that they suffered (or could have suffered) any harm. Several other students also submitted statements, though none of them testified at the hearing. A.A. indicated that B.T. got out of his seat after the bell rang, at which point Ms. Komninos grabbed B.T.’s arm and would not allow him to leave until he handed in his work. M.C. indicated that Ms. Komninos grabbed B.T.’s arm and pulled him over to her desk. C.R. indicated that Ms. Komninos grabbed C.M.’s wrist and pulled her to the front of the room, yelling that she would not give C.M. respect without it being returned. Most of these accounts conflicted with the details described in the statements of B.T. and C.M. In the meantime, Ms. Komninos continued teaching at the School until her retirement in July 2019. Upon her retirement, the School District issued a “Resolution in Recognition of Outstanding Service Leading to Retirement” to recognize her excellent service, contributions to the School District, and devotion to the school system. The resolution recognized that Ms. Komninos served the School District in a meritorious, faithful, and outstanding manner. The honor bestowed on her is not surprising. The principal who evaluated Ms. Komninos’s performance for many years, including at the time of the alleged incidents, believed she was a strong educator, a hard worker, and a rule follower based on his observations of her in the classroom. According to him, she clearly communicated her rules to the students, had a great rapport with them, and maintained control over the classroom. After Ms. Komninos already had been disciplined by the School, received an award from the School District for her years of dedicated service, and retired from teaching, the Commissioner issued its Administrative Complaint seeking to discipline her educator’s certificate as a result of the two incidents. Specifically, the Commissioner alleged that she violated the Principle of Professional Conduct requiring her to make reasonable efforts to protect the students from conditions harmful to their learning, mental and physical health, and/or safety. In its PRO, the Commissioner seeks to issue a letter of reprimand, place Ms. Komninos on probation for two years, and levy a $750 fine against her. Only three witnesses who were in the classroom when the incidents allegedly occurred testified at the hearing—B.T., C.M., and Ms. Komninos. Ms. Komninos generally explained that she required students to raise their hands before getting out of their seat for any reason. They knew the rules because she wrote them on the bulletin board and repeated them verbally. However, some of the students pushed the envelope. As to the incident concerning B.T., Ms. Komninos credibly testified that she did not recall the incident even after seeing the photograph, which she agreed depicted her holding onto B.T.’s arm. She said the same thing to both the principal and Mr. Ghelman during the investigation. She credibly explained that the photograph must have been taken in the Fall of 2017 based on the items posted on the cabinet doors in the background. She agreed that she met with the principal and B.T.’s father after the investigation began, reassured them that she would harbor no ill will towards B.T., and offered to help him better his grade. The undersigned credits Ms. Komninos’s testimony and found her to be forthcoming and truthful. B.T. testified that he thought the incident occurred within a month or two before the March 2018 investigation. He explained that Ms. Komninos would not allow him to sharpen his pencil during a test, so he violated her rules and got up without permission. Instead of walking to the back of the room to the sharpener, he started walking to the front. Ms. Komninos then grabbed his arm to stop him from walking. She held onto his arm for a matter of seconds and let go. He initially confirmed that she never pulled him back into his seat, contrary to his prior written statements, but later waivered and agreed that his memory was better back then. B.T. confirmed that he suffered no injuries in the incident and felt embarrassed more than anything else. That is why he smiled. He definitively testified that he never felt there was even a chance of Ms. Komninos harming him, though he waivered when counsel for the Commissioner later asked whether he could have been harmed had he continued to walk forward. Based on the weight of the credible evidence, the undersigned finds that Ms. Komninos held onto B.T.’s arm for a few seconds to stop him from further violating the rules by walking around during a test, but she did not pull him back into his seat. B.T. suffered no harm and the credible evidence established that Ms. Komninos never acted in a manner that could be seen as failing to make reasonable efforts to protect B.T. from conditions harmful to learning, mental and physical health, and/or safety. As to the incident concerning C.M., Ms. Komninos credibly explained that it occurred in March 2018. Ms. Komninos testified that C.M. got out of her seat without permission and, when Mr. Komninos instructed her to sit down, she further defied her order by continuing to walk to the recycling bin. Ms. Komninos walked to the recycling bin, instructed C.M. to remove the paper, and followed her back to her seat to ensure that she did not walk around the room and disturb the other students. Ms. Komninos credibly confirmed that she never touched C.M., pushed her down towards the recycling bin, or pushed her into her seat. She stayed at least a foot away from C.M. the entire time. C.M. testified that Ms. Komninos pushed her down towards the recycling bin, grabbed her arm for a brief period of time, and pulled her back to her seat. However, C.M.’s testimony conflicted with her prior written statements. In the first statement, she indicated that Ms. Komninos forcefully grabbed her arm and pushed her down to pick up the paper from the bin. In the second statement, she accused Ms. Komninos of forcefully grabbing her arm, pulling her, and telling her to sit down. When confronted with these inconsistencies, C.M. said the first statement—that omitted any reference to pulling her—more accurately reflected the incident. She also could not recall on what day the incident occurred. Nevertheless, C.M. confirmed that she suffered no harm and only got upset because Ms. Komninos could have asked her nicely to sit down. Based on the weight of the credible evidence, the undersigned finds that Ms. Komninos did not forcefully grab C.M.’s arm, push her down towards the recycling bin, or pull her back to her seat. C.M. suffered no harm and the credible evidence established that Ms. Komninos never acted in a manner that could be seen as failing to make reasonable efforts to protect C.M. from conditions harmful to learning or to her mental and physical health, and/or safety.

Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission, issue a final order dismissing the Administrative Complaint against the Respondent, Carmen Komninos. DONE AND ENTERED this 26th day of March, 2020, in Tallahassee, Leon County, Florida. S ANDREW D. MANKO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of March, 2020. COPIES FURNISHED: Robert J. Coleman, Esquire Coleman and Coleman Post Office Box 2089 Fort Myers, Florida 33902-2089 (eServed) Ron Weaver, Esquire Post Office Box 770088 Ocala, Florida 34477-0088 (eServed) Gretchen Kelley Brantley, Executive Director Education Practices Commission Department of Education Turlington Building, Suite 316 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Matthew Mears. General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Randy Kosec, Jr., Chief Office of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)

Florida Laws (5) 1012.7951012.796120.569120.57120.68 Florida Administrative Code (1) 6A-10.081 DOAH Case (1) 19-5851PL
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BREVARD COUNTY SCHOOL BOARD vs. LEE MACE, 77-000903 (1977)
Division of Administrative Hearings, Florida Number: 77-000903 Latest Update: Sep. 29, 1977

The Issue Whether Lee Mace struck Suarez and is thereby guilty of misconduct in office contrary to the provisions of Section 231.36(6), Florida Statutes.

Findings Of Fact Petitioner, Robert L. Blubaugh, is the superintendent of the School District of Brevard County, Florida. Respondent, Lee Mace, is a member of the instructional staff of the School Board of Brevard County, Florida, employed pursuant to a continuing contract of employment. On or about May 10, 1977, at a meeting of the School Board of Brevard County, Florida, Petitioner recommended to the School Board that Respondent be dismissed from employment. This recommendation was based upon reports that Respondent had, on or about April 22, 1977, struck a student, George Suarez, on the premises of Melbourne High School in Brevard County, Florida. The Board acted upon the Petitioner's recommendation and suspended the Respondent with pay pending an evidentiary hearing pursuant to the provisions of Florida Statutes 231.36(6), upon the allegations asserted by the Petitioner. The School Board further voted to seek the appointment of a hearing officer the Division of Administrative Hearings for the purpose of conducting a hearing on the Petitioner's allegations. The School Board's action was set out in a complaint and request for hearing, dated May 18, 1977, and forwarded to the Division of Administrative Hearings. The Division of Administrative Hearings assigned Stephen F. Dean as Hearing Officer in this matter. Notice of formal hearing was given for a hearing to be conducted on June 30, 1977. George Suarez was a student at Melbourne High School in Brevard County, Florida. He had been a member of the track team at Melbourne High School coached by the Respondent. Immediately prior to April 22, 1977, Suarez quit the track team. This was Suarez's third resignation from the team during the 1977 school year. On April 22, 1977, the Respondent entered the classroom of Ned Brown between second and third period at approximately 9:30 a.m. He asked George Suarez to come into the hall, and Suarez refused. Respondent then sought permission of Ned Brown to enter his classroom and speak with Suarez. He was granted this permission and spoke to Suarez concerning his return of track equipment issued to Suarez. Suarez refused to return the track equipment alleging that the Respondent had entered his track locker and given away his personal belongings to other members of the track team. The Respondent told Suarez that his belongings had been removed from his track locker but had been placed in Respondent's file cabinet in his office where he could pick them up upon return of his track equipment. During this exchange, the discussion became more heated and following New Brown's suggestion, Mace began to leave the classroom. At this time, Suarez called out to Mace words to the effect, "Why don't you beat me up like you said you would?" The Respondent, continuing to leave the room, said to Brown words to the effect, "Scum like him isn't worth beating up" and continued to leave the classroom. At this point, Suarez shouted at Mace, "You are the scum." Mace questioned Suarez concerning what he had said. The testimony of the various witnesses concerning what occurred immediately thereafter is somewhat conflicting, but there is general agreement that Suarez, who had been sitting, jumped to his feet and while doing so or immediately thereafter, Mace struck him cuting Suarez's lip. The witnesses' testimony indicates that Suarez aggressively jumped from his seat to confront Mace, and that Suarez had a reputation for being quick tempered and for fighting. However, Mace admits that Suarez never struck at him. The witnesses' testimony generally agreed that the Respondent had not struck Suarez a deliberate forceful blow, based upon their observations and the fact that the Respondent, a man with the strength and build of a professional athlete, would have severely hurt Suarez had that been his intention. There is no dispute concerning the relevant facts concerning what immediately followed the physical contact between the Respondent and Suarez. Lee Mace enjoys a good reputation as an instructor and coach at Melbourne High School among the students, faculty, and parents. His reputation is based upon his working with student athletic teams and bringing the members of these teams together in activities which build character and which are morally uplifting. The evidence in this case indicates that he had given a great deal of personal attention, and had arranged to provide special coaching to George Suarez in an effort to keep him interested in athletics as a means of self expression to overcome Suarez's disciplinary and academic problems. Mace had also spent many hours of his own time in repainting the football stadium at Melbourne High School and making improvements to the student locker rooms.

Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer would recommend to the School Board that Lee Mace be suspended without pay for a period of thirty (30) days. DONE AND ORDERED this 1st day of September 1977, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530 Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Mark F. Kelly, Esquire 341 Plant Avenue Tampa, Florida 33606 William C. Walker, Esquire 3435 S. Hopkins Avenue Post Office Box 1084 Titusville, Florida 32780

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BROWARD COUNTY SCHOOL BOARD vs AVA E. WILLIAMS, 19-003379TTS (2019)
Division of Administrative Hearings, Florida Filed:Fort Lauderdale, Florida Jun. 20, 2019 Number: 19-003379TTS Latest Update: Jan. 14, 2020

The Issue The issue is whether, as the district school board alleges, an elementary school teacher choked one of her students in class——an allegation which, if proved, would give the district just cause to dismiss the teacher from her position.

Findings Of Fact The Broward County School Board ("School Board" or the "district"), Petitioner in this case, is the constitutional entity authorized to operate, control, and supervise the Broward County Public School System. At all times relevant to this matter, Respondent Ava E. Williams ("Williams"), who holds an active Florida Educator Certificate, was employed as a third-grade teacher at Watkins Elementary School. She had taught at that school for the preceding 13 years and been an employee of the district since 1998. During the 2018-2019 school year, one of the students in Williams's class was a boy named P.P. After school on Friday, September 14, 2018, P.P. told his mother that, earlier during the day, Williams had choked him in class. P.P.'s mother and sister accompanied P.P. to school later that day, or the following Monday, to report this allegation to Assistant Principal Shereen Reynolds. P.P. claims that when he returned to class after the meeting with Ms. Reynolds, Williams called P.P. a "lying, fat pig" for turning her in. The undersigned rejects this allegation, which is uncorroborated, as not credible. Sometime later, on September 17, 2018, Ms. Reynolds told Williams about P.P.'s allegation that she (Williams) had choked P.P. the Friday before. The next day, Tuesday, Williams encountered her colleague, Shawony Russell, in the hallway. Williams——who was acquainted with, but not close to, Ms. Russell——knew that Ms. Russell had been P.P.'s teacher the previous school year, when P.P. was in the second grade. There is no dispute that Williams spoke briefly to Ms. Russell at this time. Ms. Russell asserts, however, that Williams admitted to her that she had choked P.P., whereas Williams adamantly denies having made such a confession. For reasons that will be discussed, the undersigned deems Williams's account of this conversation to be the more credible and thus rejects Ms. Russell's testimony to the contrary. After conducting an investigation, the district determined that Williams was guilty of having choked P.P. while screaming at him, "Do you hear me?"——or words to that effect. On this basis, the district seeks to terminate Williams's employment. Although the district advances several theories in support of its intended decision, Williams concedes that the allegations against her, if proved, would afford the district just cause for dismissal. Her defense is that the allegations are untrue. At hearing, only two witnesses to the alleged incident testified, namely Williams and P.P. Their respective accounts differ in material respects. Williams was by far the more credible witness, and her testimony is accepted over P.P.'s. Although, as the fact-finder, the undersigned is not obligated to explain why he has found one witness to be more believable than another, in this instance a few comments are in order, given that the School Board largely grounded its case on P.P.'s testimony. To begin——and this is undisputed——P.P. is a liar. That is a harsh word, "liar," one that the undersigned does not use lightly, especially with reference to a child witness. But here it is an accurate description. P.P. admitted under oath that he tells lies quite often, including to teachers. He has lied to get other students in trouble, among other things. This, alone, was enough to make the undersigned hesitate to take P.P.'s word about a charge that, if true, would cost a person her job——and might even end that person's professional career. Beyond that, P.P.'s description of the incident makes little sense and is difficult to imagine. P.P. claims that on the morning in question, Williams lined up the students in her class to walk with them to the cafeteria for lunch, except for P.P., who stayed behind because Williams, who thought P.P. had thrown a chair, was walking quickly towards him, after telling the other students to go. According to P.P., after everyone else had left, Williams stood in front of him and touched his throat with her open hand for one second, never squeezing, pushing, or making any movement at all——nor causing any pain—— before withdrawing. The undersigned does not believe that this is likely what happened. Williams's account, in contrast, is easy both to follow and to picture occurring. She recalls telling the children to clean up for lunch that morning, which all of them proceeded to do, except for P.P., who just sat at his desk and refused to move. Another student said something to P.P. that made P.P. mad, and he pushed a chair at the student. At this, Williams walked over to P.P. and asked him to get in line for lunch, but P.P. would not budge. Without touching P.P., Williams raised her voice and said to him loudly, "Do you hear me now?" She instructed the other students to leave for lunch and began walking towards the door herself. P.P. followed Williams and then exited the classroom ahead of his teacher, who had waited at the door for him. At this point, the incident was over. The undersigned credits Williams's testimony and finds that the incident likely took place as described in this paragraph. Apart from the eyewitness testimony, the only other significant evidence that the district offered was Williams's alleged admission. As mentioned above, P.P.'s second-grade teacher, Ms. Russell, testified that, during a conversation in the hallway on September 18, 2019, Williams confided to Ms. Russell that she had "choked" P.P. The undersigned does not believe that Ms. Russell's testimony is historically accurate in this regard. Credibility determinations such as this are the undersigned's prerogative to make without elaboration, but, as promised, a brief explanation will be given. There are three main reasons why the undersigned has found it unlikely that Williams said to Ms. Russell, "I choked him." First, Ms. Russell was not a confidant of Williams. Ms. Russell acknowledged this, saying she was surprised that Williams would tell her such a thing and agreeing that it "[m]ade no sense." Indeed, it makes so little sense that Ms. Russell's description of the confession strains credulity. Why on earth would Williams tell someone whom she had no particular reason to trust that she had choked a student——a gratuitous confession that could have ruinous consequences, including potentially a criminal prosecution? Stranger things happen, of course, but the odds are against an unsolicited, unexpected admission of this nature. Second, Ms. Russell claims that Williams said she had "choked" P.P. This is the word P.P. used in making his allegation against Williams, and it is the term that the district has used in charging and prosecuting Williams. Yet, if P.P.'s testimony were true (which it probably isn't), the contact that Williams made with P.P.'s throat could not reasonably be described as "choking." The term "choke" in this context obviously denotes the application of pressure around the victim's neck or throat to impede breathing and blood flow. What P.P. described, in contrast, was a brief (one second), painless touch without any constriction about his neck whatsoever. Thus, if Williams had touched P.P. (she probably didn't), and if, further, she had confessed as much to Ms. Russell (which is unlikely), it is highly improbable that Williams would have admitted doing something far worse than that which P.P. claims happened——which was, again, that Williams merely brushed the boy's neck with the palm of her hand.1/ Finally, Ms. Russell did not act like Williams had admitted having attacked a student. Imagine that you are an elementary school teacher and that one day, out of the blue, a colleague of yours, someone whom you do not know well, tells you that she has choked a third-grade student. Wouldn't you want to know what had happened? Ms. Russell didn't. More important, wouldn't you feel the need to report this potential child abuse to appropriate authorities for investigation, right away? Ms. Russell didn't. Ms. Russell did not take any immediate action because "[w]e were heading out to recess. I like to go outside and get my sun and just relax." Therefore, Ms. Russell testified, "I didn't call anyone. I didn't do anything. I was going back outside to relax." In fact, Ms. Russell never reported Williams's alleged admission to the school administration or the Department of Children and Families, even though she knew that, as a teacher, she had a legal duty to report child abuse upon becoming aware of reasonable cause to suspect that such has occurred. See § 39.201, Fla. Stat. Promptly going outside to relax in the sun and forget the matter is not the response one reasonably would expect from a teacher whose co-worker has just confessed to choking a student. Williams's description of the hallway encounter between her and Ms. Russell rings true. As stated, Williams knew that Ms. Russell had taught P.P., and she wanted to find out what Ms. Russell's experience with P.P. had been like. Seeing Ms. Russell in the hallway, Williams took the opportunity to inquire. There is no dispute that Ms. Russell told Williams that P.P. performed below grade level academically, had behavioral issues, and lied a lot.2/ Williams recalls telling Ms. Russell that, indeed, P.P. is a liar "because he said I choked him." The undersigned finds that the alleged "admission" is nothing but a truncated version of this statement, in which Williams described P.P.'s charge, not her own conduct. Determinations of Ultimate Fact The district has failed to prove its allegations against Williams by a preponderance of the evidence.

Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Broward County School Board enter a final order exonerating Ava E. Williams of all charges brought against her in this proceeding, reinstating Williams to her pre-dismissal position, and awarding Williams back salary as required under section 1012.33(6)(a). DONE AND ENTERED this 14th day of January, 2020, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of January, 2020.

Florida Laws (5) 1012.33120.569120.57120.6839.201 DOAH Case (1) 19-3379TTS
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JEFF ZURAFF vs. UNION COUNTY SCHOOL BOARD, 87-002536 (1987)
Division of Administrative Hearings, Florida Number: 87-002536 Latest Update: Aug. 27, 1987

Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: During the 1986-87 school year the Petitioner was employed by the Respondent as a Compensatory Education Teacher at Lake Butler Middle School. Additionally, he served as Assistant Football Coach and Junior Varsity Baseball Coach. The Petitioner is over the age of eighteen years. During the 1986-87 school year the Petitioner possessed a temporary teaching certificate issued by the Florida Department of Education (Certificate Number 562142) disclosing "Highest Acceptable Level of Training - Bachelor's Degree." The Petitioner also possesses a permanent teaching certificate with a validity period of July 1, 1987, through June 30, 1992. Superintendent of Schools, James H. Cason, III, met with M. H. Boyd, Principal, Lake Butler Middle School and Petitioner's principal, prior to formulating his decision to recommend Petitioner to Respondent for additional year of employment. Boyd advised Superintendent Cason that she was not entirely satisfied with Petitioner's performance but that she could "live with" Petitioner's reappointment for the 1987-88 school year. Superintendent Cason also conferred with the head coach, James F. Niblack, Petitioner's supervisor for the athletic duties performed by Petitioner, prior to formulating a recommendation to Respondent concerning Petitioner's reappointment for the 1987-88 school year. Coach Niblack recommended Petitioner's reappointment for the 1987-88 school year. Superintendent Cason made a timely written nomination that Petitioner be reappointed by the Respondent in an instructional position for the 1987-88 school year. On April 27, 1987, Respondent conducted a meeting for the purpose, inter alia, of acting upon the recommendation of Superintendent Cason for personnel appointments. The Respondent voted unanimously to reject the recommendation of Superintendent Cason that Petitioner be reappointed to an instructional position for the 1987-88 school year. No reason for the rejection of the nomination of the Petitioner by the Respondent was verbally stated at the April 27, 1987, meeting nor spread upon the minutes of such meeting. During the hearing, and after conferring with the members of the board, counsel for Respondent stipulated that Petitioner met the statutory requirement to be eligible for appointment to a position with Respondent in that he is of good moral character, is over the age of eighteen (18) years and holds a certificate issued under the rules of the State Board of Education. School Board member, W. S. Howard, Jr., a cousin of Boyd, requested that Boyd prepare an evaluation of Petitioner. The record is not clear as to whether the evaluation was made before or after the Superintendent conferred with Boyd on Petitioner's reappointment. Petitioner was evaluated "satisfactory" in ten (10) of the eighteen (18) areas measured on the evaluation instrument that was utilized, "unsatisfactory" on two (2), "not applicable" was marked on two (2) criteria and four (4) were left unmarked by the evaluator. The evaluation instrument utilized by the Respondent in evaluating the Petitioner's performance was not the instrument which should have been utilized during the 1986-87 school year although such instrument was utilized by the principal for other employees at the Petitioner's school. The Respondent officially sponsors, maintains and funds the athletic programs in which the Petitioner rendered services during the 1986-87 school year. Such programs constitute an integral part of the overall educational program offered by the Respondent to children of Union County. The Petitioner's service to the athletic program conducted by the Respondent was rated satisfactory or above.

Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED: That Respondent, School Board of Union County, enter a Final Order GRANTING the Petitioner an annual contract for the 1987-88 school year and reimbursing Petitioner for any loss of wages due to his non-pay status which resulted from Respondent's rejection of his nomination. RESPECTFULLY SUBMITTED AND ENTERED this 27th day of August, 1987, in Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of August, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2536 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner 1.-11. Adopted in Findings of Fact 1 through 11, respectively. 12.-15. Adopted in Findings of Fact 13 through 16, respectively. Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Finding of Fact 1. Adopted in Finding of Fact 7. Adopted in substance in Findings of Fact 5, 6 and 7. Adopted in substance in Finding of Fact 1. Adopted in Finding of Fact and 6. The fact that Boyd had some reservations concerning Petitioner's abilities to teach the compensatory education class is adopted in Finding of Fact 5, the balance of paragraph 6 is rejected as not supported by substantial competent evidence in the record. The fact that Niblack recommended Petitioner for reappointment is adopted in Finding of Fact 6, the balance of Paragraph 7 is rejected as not supported by substantial competent evidence in the record. The fact that the Union County School Board voted not to rehire Petitioner is adopted in Finding of Fact 9, the balance of paragraph 8 is rejected as not supported by substantial competent evidence in the record. The fact that the reason for Respondent's vote to reject Petitioner's reappointment was not verbally stated or spread in the minutes is adopted in Finding of Fact 10, the balance of paragraph 9 is rejected as not being supported by substantial competent evidence in the record in that the testimony of the individual School Board members lacked credibility. Rejected as being presented as an argument and not as a Finding of Fact. COPIES FURNISHED: Ronald G. Meyer, Esquire Meyer, Brooks and Cooper, P.A. 911 East Park Avenue Post Office Box 1547 Tallahassee, Florida 32302 Bobby Lex Kirby, Esquire Route 2, Box 219 Lake Butler, Florida 32054 James H. Cason, III, Superintendent The School Board of Union Co. 55 Southwest Sixth Street Lake Butler, Florida 32054 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399 Sydney McKenzie, General Counsel Department of Education Knott Building Tallahassee, Florida 32399

Florida Laws (1) 120.57
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HILLSBOROUGH COUNTY SCHOOL BOARD vs. HILLSBOROUGH CLASSROOM TEACHERS ASSOCIATION, 75-002079 (1975)
Division of Administrative Hearings, Florida Number: 75-002079 Latest Update: Jun. 03, 1977

Findings Of Fact The facts clearly show that the Charging Party was certified by PERC as bargaining agent for instructional personnel of the Hillsborough County School Board System on April 18, 1975, and that the public employer was the Hillsborough County School Board. Since 1969 there had bean negotiations between the HCTA and the HCSB. These negotiations had resulted in mutual agreements which had been approved as the policy of the Board for the year 1969 until 1973. Among the items negotiated during these years were a series of pay schedules. These schedules were based on training as reflected by pay differentials dependent on the individual teacher's degree, and experience, as reflected in pay differentials based on the individual teacher's years of service. After the agreement reached for 1970-71, later agreements stated that the salary schedules were based on training and experience. Compare Negotiations Agreement, 1970-71, p. 61, Salaries (Exhibit 1) with Instructional Personnel Policies, 1971, Item B-17 (Exhibit 2) and Agreement, 1973-74 and 1974-75, p. 12, Item B-8.3 (Exhibit 4). Under the terms of the 1973-75 Agreement, it was to remain in effect until June 30, 1975 and thereafter from year to year unless at least 120 days prior to June 30, 1975, either party serves written notice upon the other of its desire to terminate or makes changes to the Agreement. HCTA gave notice to the Board by a letter from Sam Rosales, President, to Dr. Raymond O. Shelton, Superintendent of Schools, Hillsborough County, (Exhibit 6) of its desire to make changes in the Agreement. On or about May 27, 1975, the Board and HCTA commenced negotiations on a new collective bargaining agreement which negotiation continued until August 19, 1975. During the month of June, 1975 it became necessary for the Board to take action to issue contracts of employment to all instructional personnel to be employed in the upcoming school year. See F.S. 230.23(5)(c)(d) and (e). The provisions mandate among other things that each contract shall state in writing definite salary amounts and definite tires of service. Section 236.02(3) provides that all instructional personnel shall be provided written contracts at least one (1) month before school begins providing for a definite salary as provided by law. The Board therefore had a legal obligation to reissue contracts in late July or August, and had to reach some decision regarding the salary amounts to be stated in the contracts. The Board's minutes for June 24 and July 1, 1975 were introduced and reflect that the Board was concerned about its fiscal position in the upcoming school year and whether it could reemploy all of the teachers who it had employed in the 1974-75 school year. It was clearly the Board's position that its foremost consideration was to prevent the necessity of any layoffs. Further, the minutes reflect that the best fiscal data available indicated that the Board would not have sufficient revenue available to pay increased salaries and pay the longevity increases. The debate on the Board clearly indicates that it would have been necessary to cut the pay of all teachers 2 percent if the step increases were implemented to stay within its budget. The comments of the Board members and Mr. Sam Rosales, who was present at both meetings, reveal that they felt the salary negotiations would be complete and the new salary schedule worked out and the contracts amended prior to the time most of the teachers would receive their step increases. The Board voted to issue reemployment contracts to all instructional staff at the same salary as the 1974-75 year and not to implement the longevity pay increases as an interim measure pending negotiations of the new salary schedule. The General Counsel and Charging Patty allege that the Board's action unilaterally set salaries for the 1975-76 year which were a subject of collective bargaining which was then in progress and therefore violated Section 447.501 (a) and (c), F.S. Their allegation is based upon the argement that the longevity pay increases were a condition of employment which remained in effect during the period of negotiation. In support of its position the General Counsel and Charging Party cite Triborough, Poughkeepsie, and Massapequa. 1/ These cases indicate that a term or condition of employment stated in a previous contract will remain in effect during the course of negotiations even if the preceding contract terminates. Further that the act of changing such a condition without consultation with the union is per se a unilateral act. The Hearing Officer would agree generally with the application of the principle stated in these cases and their applicability to the present facts. Certainly, the longevity pay increases which had been negotiated had bean paid in the past. Although the Board's affirmative action in approving reemployment contracts had been required in earlier years, this approval as generally given and the statutes would indicate the Board could only withhold approval for good cause. However, the Hearing Officer finds that the Board had a legal obligation to issue the contracts one month before the opening of school, and that the contracts had to state an exact salary amount and term of service. There was, however, no impediment from the Board consulting with the HCTA prior to its action at the negotiating session and attempting to reach some agreement. Had no agreement been reached, then the Board would have bean justified in taking unilateral action. The Board could have issued the contracts reflecting the longevity pay increases and if later it had lacked the funds, reduced the payment asserting inability to pay as another alternative solution. The General Counsel has cited the earlier decision of Pasco CTA vs. School Board of Pasco County, in which PEPC stated with regard to the defense of F.S. Subsections 230.25(5)(c-e) and 236.02(3) and (4): "We are not persuaded by Respondent's argument especially in light of the fact that it admittedly made no attempt whatsoever to notify the Charging Patty of its planned action or, indeed, inform the Charging Party that salary matters would be on the School Board's agenda. Thus, even assuming a legitimate necessity for its action, although the facts herein persuade us otherwise, the Respondent's ex parte action is sufficient to violate its duty to bargain." (emphasis supplied) The facts here reflect that Rosales was present on June 24, 1975 at the Board's meeting when the matter was first raised and spoke persuasively to convince the Board to postpone action until July 1, 1975. Rosales was again present on July 1, 1975 and again addressed the Board. Certainly HCTA was aware of the pending action by the School Board, unlike the Pasco County Case, although the Board acted without consulting HCTA at the negotiating table. The Pasco County case, while deciding against the Board on the facts, does apparently reflect PERC's recognition of the Wappinger doctrine as indicated by the emphasized portion of the quote above. In the Matter of Central School District No. 1 (Wappinger), 5 PERB 3124 (Dec. 15, 1972), the PERB recognized that there are some terms and conditions of employment which must be finalized by the beginning of the school year which must be allowed while negotiations continue. However, the Wappinger doctrine clearly does not apply in this instance because sufficient time was available to consult with HCTA on the matter. In summary the Hearing Officer finds as a matter of fact that: HCTA was a certified bargaining agent and the Board was a public employer. HCTA and the Board were negotiating a new collective bargaining agreement in June and July, 1975. The School Board had to let the contracts in July and state therein the specific amounts available pending resolution of its fiscal picture and negotiation of the contract. The school Board did notify the HCTA through Sam Rosales, who was aware of the pending proposal at least one week prior to its adoption. The terms of the 1973-75 agreement remained in effect during negotiations, and subsequent to June 30, 1975. The Board failed to raise the issue at the bargaining table in any attempt to reach a compromise and to present evidence of its fiscal inability to meet the 1973-75 contract terms. The action of the Board did not maintain the status quo, but resulted in a salary reduction under terms of the 1973-75 agreement. As to the, law, the Hearing Officer finds that: The Board, by falling to raise the matter at negotiations and by failing to present any evidence at negotiations of its inability to meet the 1973-75 contract terms, acted unilaterally to set salary terms during negotiations. Although the Hearing Officer is of the opinion that the Board acted without malice, the Board's action in unilaterally setting teachers' salaries is per se a violation of Section 447.501(1)(a) and (c), F.S. The damages are the difference between what the employees did receive between July 1, 1975 and the effective date of the new contract and what they would have received if the longevity pay increases had been paid. DONE and ORDERED this 30th day of April, 1976 in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675

Florida Laws (2) 447.501447.503
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FRED D. GREENE vs. HAMILTON COUNTY SCHOOL BOARD, 85-000706 (1985)
Division of Administrative Hearings, Florida Number: 85-000706 Latest Update: Oct. 29, 1985

Findings Of Fact Petitioner, Fred D. Greene, began service with the Hamilton County School Board as a teacher in August, 1965. He was employed on annual contract for three school years until he was granted a continuing contract by the school board on July 23, 1968, as a teacher pursuant to Section 231.36, Florida Statutes. After the execution of the continuing contract, Petitioner was assigned as coordinator of vocational education during the 1969-1970 school term but in addition to those duties, continued to teach five classes. As Petitioner was assigned additional duties by the Superintendent, his teaching duties were reduced. Starting in 1970 and continuing through 1973, though the continuing contract as a teacher had not been rescinded, Petitioner and the school board entered into annual contracts of employment in which Petitioner was assigned as Director of Vocational Education. On June 5, 1973, the parties entered into a second continuing contract which described Petitioner's duties as "Director of Vocational, Technical and Adult Education." At no time did Petitioner ever hold a contract as "principal" nor was he ever paid as such. His current Florida Teacher's Certificate shows him certified in, among other things, secondary administration and supervision. Both this contract and the 1968 continuing contract contained a provision that the school board was authorized, upon recommendation of the superintendent of schools, to transfer and assign the Petitioner to a "similar position in any other school" in the district, provided that "the duties shall be similar to the duties originally assigned and the salary shall be as heretofore set forth." From the time he was appointed director of VTAE until January, 1981, Petitioner served in that capacity. As director of VTAE, he considered his position as similar to that of a principal in that he reported directly to the Superintendent of Schools, he supervised the teachers who taught within his program (although he did not rate them) he was paid on the non- instructional salary schedule as is a principal he was responsible for the procurement of and administration of students including their promotion and graduation. Nonetheless, he was not classified as a principal, he served schools throughout the county, the teachers in the program were recruited from regular day teachers and additional personnel who taught only in the night program, and these teachers were rated by their day principal when appropriate. Consequently, his position as Director, VTAE, was not similar to that of a principal. At the time he left the job as Director, VTAE, to assume the office of Superintendent of Schools, he was paid a salary of $21,000.00 per year for a 12 month term and was on step 6 of the non-instructional salary schedule. He has never released the school board from the terms of the continuing contract. In January, 1981, Petitioner took office as Superintendent of Schools. At that time the function of Director, VTAE, was assigned to Ms. Scaff who subsequently also occupied several other positions within the school board system including instructional coordinator, secondary curriculum coordinator, community education director, law education director, and management information systems director. Ms. Scaff did not assume all those functions at one time. The job was built up over a period of years and while the duties changed, the title of Director, VTAE, did not. Ms. Scaff was paid as an instructional director on the non-instructional salary schedule. As Director, VTAE, Ms. Scaff, and Mr. Greene before her, occupied one of the director positions reflected in the directory of the School Board. The School Board uses the same contract form for directors and principals and the director is evaluated by the Superintendent of Schools as is a principal, but there are few other similarities between the function of principal and Director. Petitioner served as Superintendent of Schools from 1981 until November, 1984, when he was replaced as superintendent by Mr. Hinton. Several months before his term expired, in June, 1984, Petitioner recommended to the School Board that it appoint Ms. Scaff, who was at that time serving as, inter alia, Director, VTAE, to a two year contract in that position. This contract was approved by the School Board. Shortly after his defeat in the election, Petitioner allegedly told Mr. Hinton that he did not wish to displace anyone employed by the school system in order to enforce his return rights under the continuing contract he held. It was his position that he would accept a teaching position but at a salary level equivalent to that of an administrator until such time as an administrator's position within the system became open. At a special meeting of the School Board called by Petitioner on the last day of his term as superintendent, Mr. Greene nominated himself for the position as principal at NHE. This nomination, however, was tabled by the School Board upon advice of counsel so that an advisory opinion on it could be requested from the Florida Commission on Ethics. At this point it should be noted that though the position as Principal at NHE became vacant prior to Petitioner leaving his position as superintendent, he did not apply during the period that the·advertisement was open. The only person to do so was Harry Pennington who was subsequently placed in that position. When Mr. Hinton assumed the position of Superintendent of Schools, replacing Mr. Greene, he immediately assigned Petitioner to the position as teacher of business education. Mr. Greene accepted the assignment but requested that he be paid a salary equivalent to the 20th step on the salary schedule for the position of instructional director at a figure of $32,550.00 per year. The figure demanded by Petitioner was not paid, however. After conferring with the State Department of Education regarding the proposed salary for Petitioner, the School Board determined that since he held a continuing contract as a teacher, he would be employed at a salary based on the teacher position. He was given credit for four years of teaching service while serving as Superintendent of Schools which placed him at the 20 year service point. In addition, he was given credit for a master's degree and for teaching in his field of certification. His total salary, therefore, was set at $23,460.00 over a ten month term. Petitioner was not satisfied, especially since Mr. Pennington, who was serving as principal of NHE was receiving $28,100.00 per year based on a 12 month employment contract. On May 27, 1985 the school board rejected Mr. Greene's nomination of himself as principal at NHE. The board's rejection of Mr. Greene was based on the recommendation of Mr. Hinton who felt that Petitioner was not qualified for the position in that he did not hold certification in administration and supervision at the elementary level his contract was not for the position of principal he had no experience as principal or assistant principal he did not apply for the position when it was advertised and because counsel advised that filling the position based on self nomination might violate Florida law. Mr. Pennington on the other hand, was fully certified in administration and supervision for all grade levels involved at NHE. Other positions for which Respondent felt himself qualified came open during the 1984-1985 school year but he was not selected to fill any of them. Included in these were that of principal of Hamilton County High School and administrative assistant positions at both North Hamilton Elementary and South Hamilton Elementary. When Mr. Hinton took over as Superintendent of Schools, as a part of his management program and in an effort to correct what appeared to be a problem regarding the late payment of School Board obligations which existed when he took over, he recommended certain personnel changes including the creation of an office manager position. Mattie Fouraker, formerly the business education instructor at Hamilton High School, was appointed office manager to the School Board at a salary approximately equivalent to that she received as a teacher. It is to her vacant job as teacher of business education that Mr. Greene was assigned. Petitioner contends Ms. Fouraker was appointed to the position before it was ever officially created and approved by the School Board. Be that as it may, however, it becomes clear that the Superintendent of Schools intended that a problem be solved and to do so, created a position designed to correct it. He appointed Ms. Fouraker to the job on a temporary basis and as soon as the School Board met at the next scheduled meeting in December, 1984, it approved the position and confirmed Ms. Fouraker's assignment to it. This formal board action, however, served to increase her pay from that of a teacher at $23,460.00 per year to that of an administrative position at $29,700.00 per year and her position was changed from that of a 10 month to a 12 month employment, along with the benefits accruing thereto. Petitioner's salary as business education instructor was developed through a tailored formula developed with an intent to,-in the opinion of Mr. Hinton, put Mr. Greene in approximately the same position for the four years he was Superintendent of Schools. As was stated previously, Mr. Greene was given credit for his 16 years in the classroom plus his years of superintendent for a total of 20 years experience credit. Added to that was credit for a Master's degree and credit for teaching in his field of certification. When the $23,460.00 salary that was arrived at for this was compared to what it was anticipated he would have earned had he stayed as Director of VTAE, it was seen that had he remained in his position on the same salary schedule, he would have presumably earned $2,362.50 per month ($23,625.00 per 10 month school year) as an instructional director, Step 6. This is approximately $155.00 more over the school year. Had Petitioner been paid at the salary of an instructional support position, Step 6, the monthly salary would be slightly lower. It should be noted, however, that due to schedule changes during the period, this might not be a valid comparison. Positions within the school system are assigned by the Superintendent of schools on the nature of the position. Non- instructional personnel are assigned categories on the salary schedule based on an assessment of their qualifications and value to the system. Teachers, on the other hand, who are generally serving under contracts, are placed on the salary schedule consistent with the number of years experience they have plus certain other additions. It was Mr. Hinton's position that Mr. Greene should be paid as a teacher since he was serving as a teacher and once that decision was made, Mr. Greene was paid the highest amount that a person with his certificate and his experience and qualification could earn in that position. When the Florida Commission on Ethics issued its opinion on the question certified to it regarding Petitioner's recommending himself for the position of Principal of NHE, the opinion indicated the Commission could not conceive of how the Petitioner's actions in recommending himself for a position could not have constituted a misuse of public position. In other words, while not saying that it was, the Commission concluded that it probably was a violation. Thereafter, the School Board requested an Attorney General's opinion on whether a school superintendent may nominate himself for appointment of a principal. The opinion was not received as of the date of the hearing. Turning again to the issue of the function of Director of VTAE, the School Board contends that the function of Director has steadily expanded in scope. For example, Mr. Hinton urges that the work that Mr. Greene was doing as Director, VTAE prior to being elected superintendent now constitutes only 10 to 20% of the currently described duties of the position. The additional functions that Ms. Scaff performs, as described above, he contends, constitute more by far than that which Petitioner did when he held the job. In support of that position, Mr. Hinton refers to the organization and management study conducted in 1983 at the request of Petitioner when he was Superintendent of Schools. Among the pertinent recommendations of that study was the restructuring of the organization within the school district level. The position of Director, VTAE was not one of the three Director and five coordinator positions recommended by the study. Ms. Scaff indicates that when Petitioner was defeated in his bid for re-election as superintendent of schools, she indicated her willingness to step down from the position of Director, VTAE and return to classroom teaching. She does not consider the return to a position of teaching as a demotion nor does Ms. Fouraker. It should be noted, however, that both individuals received substantial increases in salary by virtue of their position changes under the Hinton administration. For example, Ms. Fouraker's promotion to the position of office manager carried a pay increase from $23,460.00 to $29,700.00 per year. Ms. Scaff now earns the same. Mr. Greene was at Step 6 on the non-instructional scale when he left the job of Director, VTAE. These scales were modified in the intervening years, and Ms. Fouraker traced Mr. Greene's position as Director, VTAE, to the new scale as if he had stayed in place. She placed him at Step 6 on the new scale at a salary of $28,350.00. Petitioner contends that he should be treated the same as Mr. Coe, Director of Personnel, who realized a large salary and step increase when the pay scales were changed. If this were done, and he was given an instructional director's position at step 20 on the non- instructional salary schedule, his salary would be $32,500.00. Subtracting that $28,350.00 from the $32,550.00 he says he should be earning, Mr. Greene indicates that he lost approximately $4,958.87 for the period starting November 20, 1984, when he began teaching, to the end of the school year. He further contends that his salary loss is continuing at the rate of $757.50 per month and in addition, he is also being deprived of other benefits of employment such as paid annual leave, sick leave, enhanced retirement benefits, and other like perquisites attached to a 12 month contract. Mr. Greene further contends that since he was involved in litigation with the school board concerning Mr. Coe's contract prior to his leaving the position of Superintendent of Schools, the School Board should have known of his entitlements under the continuing contract since it was shown that it had been established for assignments and transfers.

Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Petitioner, Fred D. Greene, be assigned a non-principal supervisor/director position within the Hamilton County Schools as available that he be paid accordingly when performing in such a position but that he be denied adjustment for back pay and attorney's fees and costs. RECOMMENDED this 29th day of October, 1985, in Tallahassee, Florida. ARNOLD H POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of October, 1985. COPIES FURNISHED: John D. Carlson, Esquire Gatlin, Woods, Carlson & Girtman 1030 East Lafayette, Suite 112 Tallahassee, FL 32301 Paul Hendrick, Esquire 111 South Central Avenue Suite 1 Jasper, FL 32052 Owen Hinton, Jr. Superintendent Hamilton County School Board P. O. Box 1059 Jasper, FL 32052 Honorable Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, FL 32301 APPENDIX Ruling by the Hearing Officer as to the Petitioner's Proposed Findings Of Fact: Paragraphs Accepted Accepted Accepted Accepted Accepted Accepted Accepted* Accepted* Accepted* Accepted Accepted except as to the veracity of the reported comment of the School Board member Accepted Accepted Accepted Accepted except as to comments of Ms. Scaff as to her being a principal and signing forms as such Accepted except for Petitioner's comment that he would receive temporary certificate for Elementary Ed principal and would obtain certification in grades K-6 without much problem Accepted Accepted Rejected as irrelevant Irrelevant as a finding of fact should be conclusion of law Accepted Accepted except as to last sentence which is irrelevant unnumbered between and 23 Rejected Rejected Rulings by the Hearing Officer as to Respondent's Proposed Findings of Fact (Respondent failed to number paragraphs.) The unnumbered paragraphs are therefore treated in sequence and numbered herein for purposes of identification only. Paragraphs Accepted Accepted Accepted Accepted Accepted Accepted Accepted Accepted Accepted Accepted Accepted Accepted as to substance Accepted Accepted Accepted except that acceptance of the position was not meant to be acquiesed in permanent assignment Accepted Accepted Accepted Accepted Accepted Accepted as it relates to teacher salaries only Accepted Accepted Accepted Accepted Accepted as to the request made. As of the hearing, the opinion had not been received. It was not offered into evidence and though attached to Respondent's Proposed Recommended Order, was not considered Accepted Accepted Accepted except for the conclusion drawn in the last sentence which was not supported by evidence admitted. Accepted Accepted Accepted Rejected. Position was held by Ms. Scaff who performed the same duties performed by Petitioner when he was the encumbent, in addition to additional duties which he did not *Petitioner's terms describing the personnel changes are not necessarily dispositive of the issue.

Florida Laws (1) 120.57
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