99-001904 School Board Of Walton County vs. Ann Farrior Status: Closed Recommended Order on Friday, June 16, 2000.

Summary: School Board showed that Respondent was not qualified for a position as school psychologist, and the policy for employment of non-certified personnel did not apply.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WALTON COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 99-1904

)

ANN FARRIOR, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

This cause came on for formal hearing on March 3, 2000, in

DeFuniak Springs, Florida. The case was heard by P. Michael

Ruff, duly-designated Administrative Law Judge of the Division of

Administrative Hearings. The appearances were as follows:

APPEARANCES

For Petitioner: Joseph L. Hammons Esquire

Hammons & Whittaker, P.A.

17 West Cervantes Street

Pensacola, Florida 32501

For Respondent: George R. Meade, II, Esquire

Clark, Pennington, Hart, Larry,

Bond, Stackhouse & Stone

125 West Romana Street, Suite 800

Post Office Box 13010

Pensacola, Florida 32591-3010

STATEMENT OF THE ISSUES

The issues to be resolved in this proceeding concern whether

the Petitioner school board has good cause to reject the Walton

County School superintendent's recommendation of Ann Farrior

(Respondent) for renewal of an annual contract to serve in the

position of school psychologist.

PRELIMINARY STATEMENT

This cause arose upon the rejection of the Walton County

School Board of its superintendent's nomination of Ann Farrior to

fill the position of school psychologist, as a renewal of a

previously fulfilled annual contract with the Respondent. The

rejection occurred on April 15, 1999, and the Respondent was

notified of that Board action by letter of April 21, 1999.

Thereafter, the Respondent timely availed herself of her rights

to a hearing designed to protect her substantial interests

pursuant to Section 120.57(1) and Section 120.569, Florida

Statutes.

The cause came on for hearing as noticed. The Respondent's

Exhibits numbered 1-5 were admitted. The Petitioner's Exhibits

numbered 1-8, as well as 12, 13, and 14, were admitted into

evidence. Additionally, the Petitioner presented the testimony

of witnesses Zane Woodrow Sunday, Personnel Director of Walton

County Schools; Ann Farrior, the Respondent; and John F.

Bludworth, Jr., Superintendent of the Walton County School

District in this case. The Respondent presented the testimony of

Dr. Lee Revell Graves, Nancy Elaine Holder, and the Respondent's

testimony on her own behalf.

After completion of the hearing, which occurred on March 3,

2000, the parties where given the opportunity to file proposed

findings of fact and conclusions of law in the form of proposed

recommended orders, some two weeks after the filing of a

transcript of the hearing with the Administrative Law Judge. The

Transcript was filed on March 13, 2000. The parties timely

availed themselves of the right to submit Proposed Recommended

Orders and those Proposed Recommended Orders have been considered

in the rendition of this Recommended Order.

FINDINGS OF FACT

1. Ann Farrior was employed as a school psychologist by the

Walton County School District for the 1998-1999 school year. She

was employed on the recommendation of the superintendent and

under an annual contract for that school year.

2. Title 20, United States Code, Chapter 33, is known as

the Individuals with Disabilities Education Act (IDEA). The

intelligence testing and questions regarding assessment and

placement of exceptional education students is governed by that

federal statute and rules pendent thereto. The federal

regulations implementing the IDEA provide certain federal funds

to assist in their implementation by local school districts. The

Walton County School District receives federal funding to

implement the IDEA. The failure to comply with appropriate

federal regulations governing testing, assessment and placement

of exceptional education students can result in a loss of such

federal funding for the District.

3. The Superintendent, Mr. Bludworth, nominated Ms. Farrior

for the school psychologist position at issue for the 1998-1999

school year with the understanding that although she was not

certified as a school psychologist, she was eligible to be

certified as such. During the course of her employment as a

school psychologist that school year, state audit personnel

determined that she was not properly credentialed to administer

intelligence testing as part of the assessment process for

exceptional education students, which is necessary to the

formulation of Individualized Educational Plans ( IEPs) which is

in turn a necessary element of the ultimate decision of proper

placement of such students in the educational system in a school

district. In view of this situation, Mr. Sam Goff of the Bureau

of Instructional Support and Community Services of the Department

of Education wrote the superintendent on January 20, 1999,

outlining specific requirements that the District would have to

meet in order to bring itself into compliance with the IDEA as a

result of Ms. Farrior's ineligibility to administer intelligence

testing as part of the assessment and evaluation process for

exceptional students.

4. The superintendent also received notice by memorandum of

January 28, 1999, and by letter of January 29, 1999, from the

Auditor General's staff and the Auditor General (in evidence as

Petitioner Exhibits 4 and 5), that audit findings had determined

that the District employed a person as a school psychologist (the

Respondent) concerning whom school district records did not

indicate a basis for that person being qualified for the school

psychologist's position. The Auditor General's findings noted

that the position description for school psychologist employed by

the school district included responsibilities for administering

testing and assessing placement for all exceptional education

students. The preliminary findings noted that the employee, the

Respondent, then serving as a school psychologist possessed only

a temporary Florida teaching certificate in "psychology" which

had expired on June 30, 1998, and which did not constitute

certification as a "school psychologist." District records did

not show that the Respondent had renewed her teaching certificate

or had otherwise met the minimum job requirements for the school

psychologist position.

5. The Auditor General recommended that the school district

document its records with a basis upon which the individual, the

Respondent, was determined to be qualified for the school

psychologist position or to take appropriate action to provide

for a licensed or certified school psychologist for administering

testing and for assessing placement for exceptional students. As

a result of receiving these communications and preliminary

findings, the superintendent met with the Respondent and felt

compelled to request her resignation.

6. Nancy Holder had been the school psychologist in the

position that Ann Farrior assumed. Early in the 1998-1999 school

year, Ms. Holder, who is a certified school psychologist, had

been transferred to the position of "Staffing Specialist" upon

which occurrence Ann Farrior then occupied the position of school

psychologist. Ms. Holder, in her testimony, described the duties

of school psychologist as including, in addition to performing

intelligence testing of students, testing for academic

achievement, and personality testing as well as counseling duties

involving students, their parent, and teachers. The school

psychologist must also participate in staffing meetings and in

the IEP formulation process and resulting decisions regarding

placement of exceptional students; she must assist classroom

teachers and parents with the particular problems involving both

exceptional students as well as students who do not have

exceptionalities or diagnoses. Because of the above-referenced

preliminary audit findings by the Department of Education, Ms.

Holder was required to assume the additional responsibility of

supervising Ms. Farrior's activities for the remainder of her

annual contract year as well as undertaking to re-test those

students whom Ms. Farrior had previously tested. The school

district alternatively obtained a consultant to perform the

educational testing that otherwise would have been done by Ms.

Farrior as school psychologist had she been qualified under the

pertinent regulations to do so.

7. The school district received a statement from the

Department of Education's Bureau of Teacher Certification, dated

March 22, 1999, concerning the Respondent's eligibility to apply

for or to receive certification as a school psychologist. That

statement of eligibility noted that the Respondent lacked 27-

semester hours of graduate school credit in school psychology

which would necessarily have to include six-semester hours of

graduate credit in a supervised school psychology internship.

Additionally, Ms. Farrior would have to submit a passing score on

the state-required teacher certification examination. Ms.

Farrior enrolled in an appropriate school psychology internship

program for the 1999-2000 school year, but as of the date of the

hearing in this case, she still lacked 24 of the required

semester hours of graduate credit in school psychology and had

not yet submitted a passing score on the Florida State Teacher

Certification examination.

8. The Walton County School Board has a written policy

adopted August 13, 1996, and in force at times pertinent hereto

which authorizes the superintendent "to select and recommended

non-certificated instructional personnel for appointment pursuant

to Section 321.1725, Florida Statutes, and State Board of

Education Rule 6A-1.0502, when special services are needed to

deliver instruction." Section 228.041(9), Florida Statutes

defines the term "instructional personnel" as including "school

psychologists." There is no showing in the evidence of record,

however, that "special services" are needed to deliver

instruction. That is, although the school psychologist position

is statutorily deemed to be in the category of "instructional

personnel" it does not involve the teaching of students. Rather

the school psychologist position, which is the subject of this

case, involves testing, evaluation, assessment, and assistance in

the placement of exceptional students in appropriate courses of

instruction. There was no showing that special services were

needed to actually deliver instruction, as envisioned by the

above-referenced written policy of the School Board concerning

the appointment of non-certificated instructional personnel, such

as Ms. Farrior. Given the above-referenced audit findings in

relation to the controlling federal regulations referenced above

and the Board's policy allowing employment of certificated

personnel "out-of-field" only in cases where special services are

needed to deliver instruction, it has not been demonstrated that

the School Board realistically had an option, in the proper

exercise of its discretionary authority, to hire Ms. Farrior

"out-of-field" as a "school psychologist" based merely on her

only certification, which was a temporary certificate authorizing

the teaching of psychology (not certification as a school

psychologist which is really a pupil support position).

Moreover, the School Board's policy authorizes the employment of

teachers for instruction in areas other than that for which they

are certificated only in the absence of available qualified,

certified instructors. Although the school psychologist position

at issue remains unfilled, there is no evidence to demonstrate

why it is unfilled and no evidence of record to demonstrate that

there are not qualified, certified personnel available to be

hired as a school psychologist to fill that position.

9. When the superintendent recommended the Respondent for a

second annual contract in April of 1999, he was already aware

that she was not qualified to perform the duties of a school

psychologist and that the District would have to contract with

outside consultants or other qualified persons to at least secure

the administration of intelligence and other psychological

testing, which testing is a part of the job description and

duties of a school psychologist. The then exceptional education

director for the District, Ms. Rushing, had suggested to the

superintendent that he recommend the Respondent in April of 1999

for the position of "evaluation specialist." This would more

represent the actual duties Ms. Farrior had been performing after

the Department of Education audit finding that she was not

qualified to serve as a school psychologist. Unfortunately,

however, there was no authorized position of "evaluation

specialist" and the superintendent has no authority to set the

qualifications for a particular position or a recommend a person

for a position that had not otherwise been approved nor its

qualifications approved of by the School Board.

10. In summary, as of the date of the hearing, the

Respondent was not yet eligible to receive either a regular or

temporary certificate from the Department of Education as a

school psychologist and still lacked 24 semester hours of

graduate credit necessary for such certification; she had not yet

passed the Florida State Teacher Certification Examination for

school psychologist although she had secured and enrolled in an

appropriate internship to satisfy the above-referenced six-hour

internship requirement.

CONCLUSIONS OF LAW

11. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. Sections 120.569 and 120.57(1), Florida Statues.

12. Section 230.23(5), Florida Statutes, provides in

pertinent part as follows:

(5) Personnel. - Designate positions to be

filled, prescribe qualifications for those

positions, and provide for the appointment,

compensation, promotion, suspension, and

dismissal of employees as follows, subject to

the requirements of Chapter 231:

(a) Positions, qualifications, and

appointments. - Act upon written

recommendations submitted by the

superintendent for positions to be filled and

for minimum qualifications for personnel for

the various positions and act upon written

nominations of persons to fill such

positions. The school board may reject for

good cause any employee nominated. . . .

12. The school superintendent does not have authority to

unilaterally prescribe the qualifications for a position or to

unilaterally modify the duties of a position. See Sinclair and

Starling v. The School Board of Baker County , 354 So. 2d 916

(Fla. 1st DCA 1978).

13. The Petitioner Agency has the burden of proving by

preponderance of the evidence that it has good cause to reject

the nomination of the Respondent by the superintendent for the

school psychologist position at issue. The term "good cause" as

described in Section 230.23(5), Florida Statutes, was treated by

the Second District Court of Appeal in the case of Spurlin v.

School of Sarasota County , 520 So. 2d 294 (Fla. 2nd DCA 1988),

wherein the court stated:

We are persuaded that the reference in

Section 230.23(5) to the "criteria of Chapter

231" cannot mean that the absence of the

statutorily prescribed grounds for suspension

or terminations automatically qualifies the

person for appointment; rather that language

contemplates that the person recommended by

the superintendent is qualified by skill and

training and is "properly certificated" -

conditions which must exist prior to reaching

a question of whether good cause exists for

declining to follow the superintendent's

recommendation. 520 So. 2d 294, 297.

The court in that decision noted that the expression

"professional disqualification" is the proper benchmark for

addressing good cause to reject the superintendent's nomination.

The court recognized the Board's ability to reject an applicant

nominated by a superintendent as being broader than the mere

statutory grounds for dismissal from employment or other

disciplinary sanctions provided in Chapter 231, Florida Statutes.

Florida law requires persons occupying instructional and

professional positions within the public schools to be certified

by the Department of Education. See Section 231.02(1), Florida

Statutes. One must in order to be eligible for appointment to

any position in a district school system, in an instructional

capacity, hold a certificate or license issued by the State Board

of Education.

It is undisputed that the Respondent held only a temporary

certificate in the area psychology. A regular or a temporary

certificate issued by the Department in "psychology" only

authorizes that person to teach psychology to students in a

classroom. The position of school psychologist is different from

the functions and duties authorized by a certificate for

psychology and is not a classroom teaching position but rather a

"pupil support" position. The temporary certificate in

psychology would authorize a person to teach psychology during

the validity of that certificate. Ms. Farrior possessed a second

temporary certificate in psychology issued by the Department of

Education which could only be renewed under certain conditions

provided for in Section 231.17(6)(c), Florida Statutes.

14. It might be argued that in the instant situation the

superintendent's nomination of Ms. Farrior might not even trigger

the "good cause" standard for rejection of that nomination by the

Board since Ms. Farrior is not "properly certificated" nor is she

currently eligible to gain certification. Moreover the Board's

policy of allowing non-certificated instructional personnel to be

appointed where "special services are needed to deliver

instruction" as explained above is not applicable nor complied

with, and there has been no showing that properly- certificated

personnel for the school psychologist position are not available.

15. If it be assumed, however, that the superintendent had

made a recommendation to the Board of one who by statute or rule

or by the Board's policy could meet at least some of the

requirements, functions, and duties of the school psychologist

position, thus bringing into play the "good cause requirements"

of Section 230.23(5), Florida Statutes, it has been shown that

the Board acted within the proper exercise of its discretion. It

had "good cause" to reject the nomination because Ms. Farrior was

not actually professionally qualified to fill the position of

school psychologist. Although the Board may in its discretion

chose to weigh certain professional qualifications in order to

allow her to complete an internship and work towards her

certification, the Board had no obligation to do so. The Board

has the authority to reject the nomination by the superintendent

of a person not presently qualified and certified to perform all

of the duties of the existing position of school psychologist

whether one subjectively would agree with that decision or not.

RECOMMENDATION

Having considered the foregoing Findings o f Fact, the

evidence of record, the candor and demeanor of the witnesses and

the pleadings and arguments of the parties, it is, therefore,

RECOMMENDED that a final order be entered by the School

Board of Walton County rejecting the nomination of Ann Farrior

to serve in the position of school psychologist for the school

year 1999-2000, because good cause for such action has been

demonstrated by a preponderance of the evidence in the manner

found and concluded above.

DONE AND ENTERED this 16th day of June, 2000, in

Tallahassee, Leon County, Florida.

___________________________________

P. MICHAEL RUFF

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 16th day of June, 2000.

COPIES FURNISHED:

Joseph L. Hammons, Esquire

Hammons & Whittaker, P.A.

17 West Cervantes Street

Pensacola, Florida 32501

George R. Mead, II, Esquire

Clark, Pennington, Hart, Larry,

Bond, Stackhouse & Stone

125 West Romana Street, Suite 800

Post Office Box 13010

Pensacola, Florida 32591-3010

John F. Bludworth

Superintendent of Schools

Walton County School District

145 Park Street, Suite 3

DeFuniak Springs, Florida 32433

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

days from the date of this Recommended Order. Any exceptions to

this Recommended Order should be filed with the agency that will

issue the Final Order in this case.