96-003217 Winnie Oden vs. Flagler County School Board Status: Closed Recommended Order on Thursday, August 8, 1996.

Summary: Burden of proof and duty to go forward established where school teacher seeks extended leave of absence to serve as school board member appointed by Governor.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WINNIE ODEN, )

)

Petitioner, )

)

vs. ) CASE NO. 96-3217

)

THE SCHOOL BOARD OF FLAGLER COUNTY, )

)

Respondent. )

____________________________________)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for formal hearing before Ella Jane

P. Davis, a duly-designated Hearing Officer of the Division of Administrative

Hearings, on July 24, 1996 in Bunnell, Florida.

APPEARANCES

For Petitioner: C. Allen Watts, Esquire

COBB, COLE & BELL, P.A.

Post Office Box 2491

Daytona Beach, Florida 32115-2491

For Respondent: Michael D. Chiumento, Esquire and

Ann-Margret Emery, Esquire

CHIUMENTO, GUNTHARP, EMERY

and ROSENBERG, P.A.

4 Old Kings Road North, Suite B

Palm Coast, Florida 32137

STATEMENT OF THE ISSUES

Whether Petitioner is entitled to an unpaid leave of absence from

employment as a teacher of the Flagler School District, from July 1, 1996 until

expiration of her commission as School Board member on November 19, 1996.

PRELIMINARY STATEMENT

Petitioner Winnie Oden was appointed by the Governor in 1995 to a vacancy

on the Respondent School Board, expiring November 19, 1996. The vacancy

occurred in mid-term due to the death of her predecessor. Petitioner sought and

received an unpaid leave of absence from duty as a tenured teacher for the

balance of School Year 1995-1996.

Prior to April 1, 1996, Petitioner applied for an extension of unpaid leave

of absence for School Year 1996-1997, until the expiration of her commission as

School Board member, November 19, 1996. The Superintendent brought her request

before the Respondent School Board with a recommendation of approval. On April

23, 1996, the School Board denied the requested leave of absence. It further

denied requests for rehearing and for an evidentiary hearing.

The Circuit Court of the Seventh Judicial Circuit in and for Flagler County

thereafter held, in Case No. 96-411-CA, that the action of the Respondent

affected Petitioner's substantial interests and that Petitioner was entitled to

an administrative hearing pursuant to Section 120.57, F.S. The Respondent

thereupon referred the matter to the Division of Administrative Hearings, on or

about July 12, 1996.

The parties requested an expedited formal hearing for a day specific, which

was granted for July 24, 1996.

At the commencement of formal hearing, the parties stipulated to all facts,

but not necessarily all law, as set out in Petitioner's Prehearing Statement

(TR-25); agreed that the content of Flagler County School Board Rule 3.37(2)(d)

was correctly set out in Respondent's Prehearing Statement and that the rule was

in effect at all times material (TR-24, 32-34); and that School Board Rule

3.37(2)(d) and Rule 6A-1.080 Florida Administrative Code are the only local or

other policies applicable under Section 231.39 F.S. (TR-24-25, 33).

After oral argument on the burden of proof and duty to go forward, it was

ruled that it was Petitioner's duty to go forward to demonstrate a prima facie

case of good cause, considering the several rule elements, to grant the request

for leave, whereupon the burden shifts to the Respondent. (TR-41-43) 1/

Petitioner presented the oral testimony of fellow School Board members

Nancy Dance and Richard Marier, and testified in her own behalf. She had five

exhibits admitted in evidence, one of which was the testimony of Dr. Donn

Kaupke, Superintendent of Schools for Flagler County. Dr. Kaupke's deposition

was admitted without objection and without submittal of any certified questions.

Respondent presented the oral testimony of Mr. Gayle Bowen, the School

District's Director of Personnel, Transportation and Insurance, and had one

exhibit admitted in evidence.

At the conclusion of the hearing, the parties agreed to provide an

expedited transcript, which was filed on July 26, 1996. By agreement, proposed

recommended orders were to be filed by August 2, 1996. Petitioner's proposal

was filed Friday, August 2, 1996; Respondent's proposal was filed Monday, August

5, 1996. All proposed findings of fact have been considered and are ruled upon

in the appendix to this recommended order, pursuant to Section 120.59(2) F.S.

FINDINGS OF FACT

1. Petitioner is a teacher employed by the Flagler County School District.

2. Petitioner has been employed for more than three years, has been

recommended by the School Board and reappointed and has become eligible for, and

has received, a Professional Services Contract with tenure.

3. Petitioner has been employed by the Flagler County School System for

six years. She is enrolled in the Florida Retirement System, and her eligible

employment under that system consists entirely of her service in the Flagler

County School System.

4. Petitioner was appointed by the Governor as a School Board member on or

about September 5, 1995. She had just begun School Year 1995-1996 as an

elementary teacher at Bunnell Elementary School.

5. Petitioner was appointed to serve as a School Board member until

November 19, 1996. Her appointment expires upon the election and start of a

member to fill the remaining two years of the term of a deceased member of the

School Board.

6. Following her appointment to the School Board, Petitioner applied for a

leave of absence as teacher in order to take her position as a School Board

member.

7. Petitioner sought an unpaid leave of absence from the time of her

appointment to the School Board until the end of the 1995-1996 School Year. The

Superintendent recommended that her request be approved and the School Board

approved it. At that time, the Superintendent made clear to her that any leave

of absence beyond June 30, 1996 would be subject to the School Board's approval,

notwithstanding the Superintendent's current or future recommendations.

8. Petitioner's request for leave of absence near the commencement of

School Year 1995-1996 presented no administrative inconvenience to the School

District, and minimal disruption of the routine of her students.

9. Petitioner was tendered renewal of her teaching contract for the 1996-

1997 School Year, apparently effective August 13, 1996.

10. Petitioner timely applied to the Superintendent for an extension of

her leave of absence as a teacher for that part of School Year 1996-1997 that

overlapped the time up to the expiration of her term as a School Board member,

November 19, 1996.

11. The Superintendent recommended that Petitioner's request for extension

of leave of absence without pay for the applicable portion of School Year 1996-

1997 be granted.

12. In considering Petitioner's request for an extension of her leave of

absence into School Year 1996-1997, the Superintendent considered the

requirements of efficient operation of the School District, including tentative

discussions with his staff about possible positions suitable to Petitioner's

experience upon her projected return November 19, 1996 from her requested

extended leave of absence.

13. The position to which Petitioner has been appointed at Bunnell

Elementary School commencing August 13, 1996 is not being held open by

Respondent, but has been filled by another teacher irrespective of these

proceedings.

14. There is a tentatively identified position suitable to Petitioner's

experience. Mr. Bowen, Director of Personnel, Transportation, and Insurance,

opined that if the tentatively identified position were not filled until

November 19, 1996, it might be disruptive to good education of the particular

type of students targeted for the program. The School District has no imminent

need to fill the tentatively identified position, but there is no guarantee it

still will be available on November 19, 1996.

15. In the interim, other positions may open through maternity leave,

illness, death, etc. or they may not. On average, there are three or four

teaching positions that open and that must be re-filled every school year.

There is no evidence that a position which opens, if any, will be one for which

Petitioner is qualified.

16. If there is no position for which Petitioner is suitable available on

November 19, 1996 she cannot be placed in Flagler County. Seniority has no

effect; suitability by educational qualifications and credentials does.

17. If Petitioner's leave of absence is not approved and she fails to

commence work on August 13, 1996, she will forfeit her contract as a teacher.

If, after November 19, 1996, Petitioner is neither a School Board member nor a

teacher on approved leave of absence, she will no longer be covered by the

Florida Retirement System. If Petitioner is denied leave and returns to the

position which is now available she will lose no employment benefits.

18. The Superintendent recommended to the Respondent Board that the

extension of Petitioner's leave of absence be approved because of the

extraordinary circumstance of her gubernatorial appointment to the position of

School Board member, and because the requested leave period was for such a short

portion of School Year 1996-1997, (approximately 96 days including weekends and

autumn holidays when no teaching occurs), that it was acceptable within his

expert educator administrative experience.

19. On April 23, 1996, the Respondent School Board voted to refuse the

Superintendent's recommendation to extend Petitioner's leave of absence without

pay for the additional time she would otherwise be teaching. Petitioner's

request was the only recommended leave request not approved at that School Board

meeting.

20. An extended leave for over one school year has not been granted by the

Flagler County School Board since 1978.

21. The Respondent Board had no evidence before it other than the

Superintendent's recommendation when it considered the extension of Petitioner's

leave. During the Superintendent's thirteen-year experience which has been

since 1983, the Board has always accepted his recommendations with respect to

leaves of absence.

22. Due to the death of another School Board member and the inability of

Petitioner to participate in the vote, only three Board members participated in

the vote on the Superintendent's recommendation for extension of Petitioner's

leave of absence. Member Dance moved that the leave be denied because the Board

had never before granted an extended leave for an employee to accept a full time

salaried position. The motion was approved by two members, Ms. Dance and Mr.

Marier.

23. The only "concerns" expressed by Ms. Dance and Mr. Marier, who

testified at formal hearing, related to speculation and assumptions that

Petitioner presented a case of first impression, certainly for their School

Board and probably for the State of Florida, and that if Petitioner were granted

an extended leave of absence, it might be difficult to administer the system in

the event of a deluge of similar requests from teachers requesting leave without

pay to take other salaried positions.

24. Ms. Dance has served on the School Board for twelve years and felt

that in a growing school system, such as the Flagler County School District, it

is inefficient to remove teachers and then attempt to have positions made

available to them upon return from leave.

25. If extended leave is granted, Petitioner will not teach for roughly 96

days of the 1996-1997 School Year and will only teach in Flagler County if re-

employed in a position actually available on November 19, 1996. See, Findings

of Fact 12-16 supra.

26. Superintendent Kaupke shared Ms. Dance's concern for orderly

administration but still recommended approval of extended leave for Petitioner.

On average, leaves of absence of varying duration are recommended and granted

for a dozen or more teachers each School Year, and there are three to four

permanent teacher replacements each year without any significant effect on

efficiency of the system or disruption of the education of even elementary

school students.

27. In the past, the Superintendent has consistently denied requests of

employees to take other salaried positions and the School Board has not granted

any. In one instance, a teacher lied to Dr. Kaupe about his reason for

requesting a leave of absence without pay and took a salaried teaching position

in another state. The Superintendent would not have recommended a leave of

absence be granted had he known the true circumstances.

28. During her employment as a teacher, Petitioner also worked part-time

in a separate job as a child care apprenticeship instructor. The School Board

has no rules, policies or past precedents which forbid dual employment by school

teachers, so long as the second job does not interfere with their

responsibilities under their teaching contracts with the School Board.

29. For the balance of 1996, all regular School Board meetings are

scheduled to be held at 7:30 p.m. on the third Tuesday of each month. Although

this schedule is subject to change, at the time of formal hearing herein, there

were no scheduled events for School Board members during a school teacher's

normal duty hours.

30. Petitioner's requested extended leave of absence was volitional, but

was not submitted for the purpose of accepting another salaried position which

would physically prevent the performance of her duties as a teacher. Rather, it

was submitted in order to conform to the requirements of Section 112.313(10)

F.S. and the holding in Wright v. Commission on Ethics, 389 So.2d 662 (Fla.

1980).

CONCLUSIONS OF LAW

31. The Division of Administrative Hearings has jurisdiction over the

subject matter and the parties hereto pursuant to Section 120.57(1), F.S.

32. Section 231.39 F.S. provides that leaves of absence for district

school board employees shall be granted with or without compensation pursuant to

rules adopted by the district school boards.

33. Section 229.053 F.S. authorizes the State Board of Education to

prescribe such policies or rules as it may find necessary for the improvement of

the state system of public education. Section 230.23(5) F.S. covers the general

powers of school boards with regard to personnel. Section 231.36 F.S. covers

the powers of the school boards with regard to the contracts and appointments of

instructional staff.

34. Rule 6A-1.080 Florida Administrative Code provides:

No leave, except military leave, shall be

granted at one time for a period greater than

one year, but the school board may adopt

policies whereby [a new application for leave

may be filed at the expiration of leave and

new leave granted at the discretion of the

board. Such policies shall be based on the

requirements of efficient operation of the

district school system as well as on consider-

ation of what is fair to the employee.]

Automatic renewals of leave shall not be

allowed. Specific Authority 229.053(1) FS.

Law Implemented Repromulgated 12-5-74,

Formerly 6A-1.80. [Emphasis supplied]

35. Pursuant to the authority granted under Rule 6A-1.080 Florida

Administrative Code, the Respondent School Board has adopted Rule 3.37(2)(d)

providing:

Personal Leave -

[Each extended leave-without-pay request

shall be considered on its own merit] by

the School Board. Return from leave is

contingent on a vacant position in the

system the employee is qualified to fill.

[Requests for extended leave to take another

position for salary shall be denied unless

there are extenuating circumstances that are

acceptable to the Board.] [Emphasis supplied]

36. There are oblique suggestions in both parties' proposals to the effect

that the Flagler County School Board's rule shifts the burden established by the

state scheme and summarily creates a standard of unbridled discretion in the

School Board. However, in the context in which the instant cause has arisen,

that rule must be considered valid and applied.

37. Petitioner has argued that the discretion conferred by law on an

member of a school board is required to be exercised according to the

established rule of law; that the officer when exercising that discretion is not

permitted or allowed to act in an arbitrary or capricious manner; and that s/he

is not permitted to exercise the discretion conferred by law for personal,

selfish or fraudulent motives or for any reason or reasons not supported by the

discretion conferred by law. Petitioner further asserted that the

Superintendent is the executive officer of a school district and is responsible

for the administration and management of schools, pursuant to Section 230.03(3),

F.S.; that the allocation of responsibilities with respect to school district

personnel matters, i.e., selection by the Superintendent and appointment by the

Board, was intended not only to remove political considerations from the process

of selecting those persons responsible for the education of children, but also

to insure that the Superintendent will have sufficient control and authority

over the employees of the school district to permit the Superintendent to carry

out the responsibilities of managing the system; and that an executive or

administrator who cannot control his employees cannot function. Therefore,

Petitioner contended that unless there is contrary evidence, the

Superintendent's recommendation, supported by the evidence, is entitled to

deference in the Board's consideration. This is a valid and persuasive

argument, but it is not even necessary to assign special deference to the

Superintendent's recommendation in the limited context of this case.

38. As to the burden of proof and duty to go forward, this conclusion of

law adopts the discussion in Endnote 1.

39. Herein, the Superintendent has considered all requirements of

efficient operation of the Flagler District School System and has explicated

them adequately for the record. His administrative experience shows that in the

predictable and usual course of any School Year, a leave of absence without pay

is not common but is not out of the ordinary, will not affect administrative

efficiency, and will not disrupt educational progression of students. In the

Superintendent's expert opinion as an educator, there is no good cause to deny

Petitioner's request to extend her leave without pay for 96 days out of this

School Year's contract.

40. The only contrary evidence is speculative based upon what [might]

happen with regard to filling a tentatively identified position, which position

may no longer be available on November 19, 1996 and in which Petitioner has no

vested interest. Other speculations about what [may] happen with regard to a

deluge of extended leave requests which [might] be recommended by the

Superintendent contrary to all his past history of leave recommendations [if]

Petitioner's request for extended leave is granted cannot be controlling in this

cause because the School Board's own rule requires that "each extended leave

without pay [shall be considered on its own merit]." [Emphasis supplied]. Even

so, it is exceedingly unlikely that there will be a deluge of similar extended

leave requests, let alone that many teachers would be able to show substantially

similar circumstances.

41. "What is fair to the employee," as provided in the State Rule, would

be an extended leave. Section 112.303(10) F.S., prevents Petitioner from

serving as a School Board member unless she is on an unpaid leave of absence

from her employment as a teacher. Under the Florida Retirement System,

Petitioner is not entitled to normal retirement benefits unless she has at least

ten years of creditable service. See, Section 121.029, F.S. Interruption of

employment for more than one month is considered an interruption in continuous

service, except for periods of absence creditable with Chapter 121 F.S. See,

Section 121.021(38), F.S. Creditable service may include, as future service, up

to two years during which the member is on a leave of absence authorized in

writing by her employer, and in which the member makes the required contribution

for service credit during the leave of absence. See, Section 121.121, F.S.

42. Finally, a situation as unusual as a gubernotorial appointment fits

anyone's definition of "extenuating circumstances." See, School Board Rule

3.37(2)(d).

43. "Extenuation" is defined by Merriam-Webster's Collegiate Dictionary,

Tenth Edition, at page 411, as:

1: the act of extenuating, or state of being

extenuated: esp.: partial justification

2: something extenuating: esp. a partial excuse.

44. Upon the evidence presented, Petitioner's requested leave of absence

does not interfere with the efficient operation of the Flagler District School

System, is fair to the employee, and presents the requisite extenuating

circumstances.

RECOMMENDATION

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

RECOMMENDED that the School Board of Flagler County enter a Final Order

granting Petitioner's request for extension of unpaid leave of absence through

November 19, 1996.

DONE AND ENTERED this 8th day of August, 1996, in Tallahassee, Florida.

___________________________________

ELLA JANE P. DAVIS, Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 8th day of August, 1996.

ENDNOTE

1/ Respondent School Board argued that the subject matter of this cause is not

addressed in Sections 230.23(5) and 231.36 F.S. and their case law progeny

because it concerns a leave recommendation, not an instructional contract or

appointment recommendation in which the courts have found teachers have a vested

property right; that Section 231.39 F.S. applying strictly to leaves of absence

to be granted according to law does not change the concept that grants of leave

are purely discretionary with school boards; that therefore the duty to go

forward is upon Petitioner and that "good cause" is not the burden of proof

herein as has been established in the case law on contracts and appointments

cited by the Petitioner but that the burden is to prove that the School Board

acted "capriciously, arbitrarily, fraudulently or in an abuse of its

discretion." Respondent did not offer any case law to that effect, and that

standard is normally reserved for bid disputes under Section 120.53 F.S. and

rule challenges under Sections 120.54 and 120.56 F.S.

The case law concerning Sections 230.23(5) and 231.36 F.S. and dealing with

appointments and contracts, is consistent that once the Superintendent

recommends, the School Board must provide an evidentiary, due process hearing.

See, Spurlin v. School Board of Sarasota County, 520 So.2d 295 (Fla. 2d DCA

1988); Greene v. School Board of Hamilton County, 444 So.2d 501 (1st DCA 1984);

Foreman v. Columbia County School Board, 429 So.2d 384 (Fla. 1st DCA 1983);

Wright v. Commission on Ethics, 389 So.2d 662 (Fla. 1st DCA 1980); and Von

Stephens v. School Board of Sarasota County, 338 So.2d 890 (Fla. 2d DCA 1976).

See also, 1985 Fl. A.G. Opinion 77 and 96 Fl. A.G. Opinion 13. That stage was

reached herein by the School Board's ultimate referral to DOAH for a Section

120.57(1) F.S. proceeding, after the intervention of the Circuit Court.

Petitioner is clearly entitled to an evidentiary hearing pursuant to her

substantial interests being affected by the proposed action of the School Board,

pursuant to that court order and Section 120.57(1) F.S.

Pursuant to the foregoing statutes and rules, "good cause" must be shown

for whatever action the School Board takes in regard to granting or denying

contracts and appointments. It is also a reasonable test for granting or

denying the extension of leave. See, Section 231.39 F.S. and Rule 6A-1.080

F.A.C. Also of note are the line of cases dealing with the concomitant

situation where an employee who abuses the leave privileges granted pursuant to

Section 231.39 F.S., may be subject to dismissal either upon "clear and

convincing evidence" if s/he is instructional personnel or upon a showing of

"just cause" if s/he is non-instructional personnel.

Although "good cause" has been equated with "competent substantial

evidence" in at least one of the court decisions (see, Foreman v. Columbia

County School Board, supra.), "competent substantial evidence "is a standard of

appellate review, not a burden of proof in a Section 120.57(1) F.S. case. See,

Pic 'N' Save Central Florida v. Department of Business Regulation, 601 So. 2d

245 (Fla. 1st DCA 1992) and Adam Smith Enterprises v. State, Department of

Environmental Regulation, 553 So. 2d 1260 (Fla. 1st DCA 1990). Accordingly, the

burden of proof herein was determined by the undersigned to be "good cause," as

stated in the case law cited by Petitioner on contracts and appointments of

instructional personnel, as applied to the specific elements established for

consideration within the rules.

Petitioner argued on the basis of the foregoing case law applicable to

instructional contracts and appointments, that once the Superintendent

recommends, the School Board performs what is, in effect, only a ministerial

duty and it is the School Board which must show good cause to reject the

Superintendent's recommendation. Rather, the situation here is more akin to the

situation is which an agency issues a blanket intent to deny and the applicant

bears the burden of proof to change the agency's mind. See, Florida Department

of Transportation v. J.W.C. Company, Inc. 396 So. 2d 778 (Fla. 1st DCA 1977).

Despite some case law in other administrative categories holding that

renewals of applications require an agency to defend its intent to deny, the

undersigned views this case as one like any other application wherein the duty

to go forward falls upon the applicant. Moreover, herein, School Board Rule

3.37(2)(d) has been incorporated via Section 231.39 F.S. and Rule 6A-1.080

F.A.C. in this proceeding. That rule applies only to requests for extended

leave, and therefore was not considered by either the Superintendent or the

School Board for Petitioner's initial leave request, and Petitioner's request

for extension is, in effect, an initial application under an additional rule.

Accordingly, by all these tests, Petitioner bore the duty to go forward.

APPENDIX TO RECOMMENDED ORDER

Petitioner's PFOF:

1-19 Accepted except that unnecessary, subordinate, and/or cumulative

material has not been adopted.

Respondent's PFOF:

1-7, 12-14, 19-21 Accepted except that unnecessary, subordinate, and/or

cumulative material has not been adopted.

8-11, 16-17 Accepted as modified to reflect the respective complete

testimony of Dr. Kaupke, Ms. Dance, Mr. Marier, and Mr. Bowen.

15 Accepted that this was testified to, but rejected as speculation and

argumentation.

18 In balancing this opinion of the Director of Transportation,

Personnel and Insurance against that of the Superintendent of Schools, a

professional educator who is the one who will make the decision in question, the

latter has been accepted as more credible and persuasive.

COPIES FURNISHED:

C. Allen Watts, Esquire

COBB, COLE & BELL, P.A.

150 Magnolia Avenue

Post Office Box 2491

Daytona Beach, Florida 32115-2491

Michael D. Chiumento, Esquire

Ann-Margret Emery, Esquire

CHIUMENTO, GUNTHARP, EMERY

and ROTENBERG, P.A.

4 Old Kings Road North, Suite B

Palm Coast, Florida 32137

Dr. Donn V. Kaupke, Superintendent

Flagler County School Board

Post Office Box 755

Bunnell, Florida 32110-0755

Frank T. Brogan

Commissioner of Education

Department of Education

The Capitol

Tallahassee, Florida 32399-0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the agency written exceptions to this

Recommended Order. All agencies allow each party at least ten days in which to

submit written exceptions. Some agencies allow a larger period within which to

submit written exceptions. You should contact the agency that will issue the

Final Order in this case concerning agency rules on the deadline for filing

exceptions to this Recommended Order. Any exceptions to this Recommended Order

should be filed with the agency that will issue the Final Order in this case.