07-002125 Charles V. Keene vs. Escambia County School Board Status: Closed Recommended Order on Friday, December 21, 2007.

Summary: Petitioner is not entitled to back pay, interest, and attorney`s fees for not receiving credit for 20 years of teaching experience from which he retired in Alabama.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHARLES V. KEENE , )

)

Petitioner , )

)

vs. ) Case No. 07 - 2125

)

ESCAMBIA COUNTY SCHOOL BOARD , )

)

Respondent . )

)

RECOMMENDED ORDER

This cause came on for f inal hearing before Robert S.

Cohen, Administrative Law Judge with the Division of

Administrative Hearings, on August 31, 2007, in Pensacola,

Florida.

APPEARANCES

For Petitioner: Michael J. Stebbins, Esquire

Michael J. Stebbin s, P.L.

504 North Baylen Street

Pensacola, Florida 32501

For Respondent: Joseph L. Hammons, Esquire

Hammons, Longoria & Whittaker, P.A.

17 West Cervantes Street

P ensacola, Florida 32501 - 3125

STATEMENT OF THE ISSUE

The issue is whether Petitioner is entitled to damages and

back salary for the period of April 22, 2004, through May 31,

2006, pursuant to Subsection 1012.33(3)(g), Florida Statutes

(2007) , as well as interest and attorney ' s fees.

PRELIMINARY STATEMENT

On September 18, 2006, Petitioner filed a lawsuit in the

Circuit Court of Escambia County, Florida, for back salary

pursuant to his contract with Respondent and Section 1012.33(g),

Florida Statutes. Af ter filing an answer to this lawsuit,

Respondent later filed a motion to dismiss based upon the

Petitioner's failure to exhaust his administrative remedies. On

April 20, 2007, Judge Terrell issued an order staying the

proceedings and directed Petitioner t o file a p etition with

Respondent within 21 days of the order. Petitioner filed his

p etition on May 4, 2007, to which Respondent filed its answer on

May 14, 2007, contesting the allegations and relief sought by

Petitioner.

Petitioner filed a Motion to Di smiss the administrative

proceeding on July 6, 2007, for lack of jurisdiction, and to

relinquish jurisdiction to the Circuit Court of Escambia County,

Florida. That Motion was denied by Order dated July 13, 2007.

The final hearing was originally scheduled for Wednesday,

July 18, 2007, but upon Motion for Continuance filed by

Petitioner, the final hearing was held on Friday, August 31,

2007.

At the hearing, Petitioner testi fied and offered E xhibits

numbered 1 - 14, 20 - 22, and 26 - 40, which were admitted into

e vidence. Respondent presented the testimony of Keith Leonard,

Director of Human Resources for the Escambia County School

District and offered four exhibits , which were admitted into

evidence. The parties jointly filed a Pre - hearing Stipulation.

A Transcr ipt was filed on September 26, 2007 . Thereafter,

by agreement, Petitioner and Respondent filed their Proposed

Findings of Fact and Conclusions of Law on October 31, 2007 , by

agreement .

References to statutes are to Florida Statutes (200 7 )

unless otherwi se noted.

FINDINGS OF FACT

1. Petitioner, Charles V. Keene, has been employed b y

Respondent, the School Board of Escambia County, as a full - time

Florida - certified public school teacher since A pril 22, 2004,

under a series of annual contracts.

2. Prio r to his employment with Respondent, Petitioner was

a full - time public school teacher in Alabama for 20 years and

received satisfactory performance evaluations throughout the 20

years .

3 . At the time he was hired by Respondent, commencing

April 22, 2004, Petitioner received credit for salary schedule

placement for the one year he had previously taught in Florida,

and for the two years he had taught in Georgia. He requested,

but did not receive, credit for the 20 years of instructional

service in the stat e of Alabama that he utilized to obtain his

retirement in Alabama.

4 . Respondent operates under a collective bargaining

agreement known as the "Master Contract." The Master Contract

includes, among other things, a salary schedule that is the

result of n egotiations with the Escambia Educational Association

("EEA"), the collective bargaining agent that represents

teachers. The negotiated salary schedule is then recommended by

the Superintendent of Escambia County Schools pursuant to

S ubs ection 1012.27(2), Florida Statutes, to Respondent for

approval and adoption.

5 . The salary schedule adopted by Respondent governs the

compensation payable to instructional personnel. The salary

schedule includes "steps" with corresponding "salary."

Placement on the s alary schedule step depends, in part upon

prior teaching experience. Generally, more prior teaching

experience credited for placement on the schedule results in a

higher level of compensation.

6 . At the time of Petitioner's hire on April 22, 2004, the

M aster Contract in place was the contract for the period of

1999 - 2002, extended by agreement of Respondent and the EEA until

July 21, 2004.

7 . According to the Master Contract in effect on

Petitioner's date of hire, limitations were placed on the amount

o f prior teaching experience that could be used for determining

placement on the salary schedule. For example, credit for prior

teaching, military, governmental, or employment service, not

including Florida public school teaching experience, was limited

to a maximum of fifteen years. The Master Contract also

contained a specific provision for placement of retired

educators. The contract provided as follows:

II.5(C) Placement for Retired Educators

1. Educators who retired from Escambia

District School s and who return to full time

employment in Escambia District Schools

shall be placed on Step 5 of Appendix A -

Instructional Salary Schedule.

2. Educators who retired from any other

school district shall be placed on Step 0 of

Appendix A - Instructional S alary Schedule.

The effect of this provision was that Petitioner received no

credit for the 20 years of Alabama teaching when placed on the

salary schedule .

8 . Employees ' rights for placement on the salary schedule

are determined by the date of hire.

9 . With credit being given for prior teaching experience

in Florida and Georgia, but without credit for 20 years of

teaching experience in Alabama, Petitioner was placed on the

salary schedule in accordance with the provisions of the Master

Contract in e ffect at the time of his hire.

1 0 . Petitioner received annual instruction contracts under

the authority of Section 231.36(2), Florida Statutes (later

renumbered Section 1012.33(3), Florida Statutes).

11 . Petitioner's annual instructional contracts se t forth

the contract salary on an annual basis payable through twelve

monthly installments. The contract specified the number of days

to be worked and the daily rate of compensation.

12 . Respondent's standard form contract provides that

"[t]his annual co ntract shall be deemed amended to comply with

all laws, all lawful rules of the State Board of Education, all

lawful rules and actions of the School Board and all terms of an

applicable ratified collective - bargaining agreement."

1 3 . Respondent, as a matte r of practice, provides newly

hired teachers with information on how they are placed on the

salary schedule. Additionally, R espondent's website has

information available with a link to the Master Contract

language which demonstrates how instructors are pl aced on the

salary schedule.

14 . Human Resource s staff members are instructed that the

Master Plan governs placement of newly hired instructors on the

salary schedule, and they advise the newly hired instructors of

placement on the salary schedule.

15 . At the time of his hire, Petitioner was told he would

not be credited on the salary schedule for his Alabama teaching

experience which led to his retirement in that state after 20

years.

16 . Petitioner acknowledged that he received a copy of the

Maste r Contract in August of 2004, when the school year started.

17 . Petitioner knew, at the time of hire, that his rate of

pay was based on his placement on the salary schedule.

Petitioner had agreed at that time to perform the services

required by his contr act based upon the compensation set forth

in the contract.

18 . Petitioner inquired about receiving credit for his 20

years of teaching experience in Alabama at the time he was hired

by Respondent. At that time, P etitioner was told by Judy Fung,

an employ ee with Respondent's human resources office, that

Petitioner would not be granted credit for his 20 years of

teaching experience in Alabama.

19 . Petitioner provided Respondent, shortly after he was

hired, all the necessary paperwork to document his 20 yea rs of

satisfactory service as a teacher in Alabama.

20 . Petitioner performed the agreed - upon instructional

services and was paid the agreed - upon contractual amount.

21 . Petitioner's annual instructional contract specifies

the salary paid through twelv e monthly installments with a daily

rate of compensation identified. The amount of compensation can

be further broken down into an hourly rate based upon 7.5 hours

per day, and provides for annual leave and sick leave. As is

customary, if the employee ta kes leave and has no accrued leave

balance, his pay will be reduced to compensate for the hours of

leave without pay taken. Respondent maintains ledgers with all

the compensation information for its employees, including

Petitioner.

22 . The statutory prov ision governing credit for prior

teaching experience at issue in this hearing is former

S ubs ection 231.36(3)(g), renumbered through amended versions to

S ubs ection 1012.33(3)(g), Florida Statutes. Although the

statute has been amended several times since 2 001, the language

that applies to all instructional employees (which includes

public school classroom teachers pursuant to S ubs ection

1012.01(2)(a), Florida Statutes) hired after June 30, 2001,

r e mains the same: "[F]or purposes of pay, a school board must

recognize and accept each year of full - time public school

teaching service earned in the state of Florida or outside the

state." The original version of the statute effective July 1,

2001, included language that this statutory provision "is not

intended to interfere with the operation of a collective

bargaining agreement except to the extent it requires the

agreement to treat years of teaching experience outside the

district the same as years of teaching experience within the

district." § 231.35(3)(g), F la . Stat . (2001). The statute was

amended effective January 7, 2003, removing the reference to

collective bargaining and clarifying that the statutory

provision applied only to public school teachers.

§ 1012.33(3)(g), Fla . Stat . (2003).

23 . The Master C ontract was amended effective July 22,

2004, to include language referencing S ubs ection 1012.33(3)(g),

Florida Statutes. The changes to the Master Contract, however,

applied only to those instructors hired after July 22, 2004.

24 . Petitioner, and certai n other teachers hired after

June 30, 2001, but before July 22, 2004, have requested their

placement on the salary schedule be revised to include credit

for previous years of teaching experience. Those requesting a

revised placement on the salary schedule based upon uncredited

experience include teachers who had previously retired utilizing

that credit and some who had not retired. Respondent, uncertain

as to the proper application of the statute, has addressed

claims for placement on the salary schedule and/or past

compensation on a case - by - case basis.

25 . In February 2006, Petitioner became aware that

Respondent's position concerning his requested credit for 20

years of teaching experience in Alabama may have been incorrect.

26 . Petitioner made a reque st for retroactive credit and

for back salary for his 20 years of teaching experience in

Alabama in June 2006, and again provided Respondent with

documentation of his Alabama satisfactory teaching experience.

27 . Petitioner's request for credit and back s alary was

refused. The only reason given to him at the time was that he

failed to make his request within two years of his hire date.

28 . At the direction of its General Counsel and after

approval by the School Board , Respondent's placement on the

salary schedule was amended effective June 1, 2006, to allow

credit for his 20 years of teaching experience in Alabama.

29 . Respondent's human resources department does not know

why the retroactive credit and salary increase were allowed for

Petitioner, nor w hy the date of June 1, 2006, was chosen,

especially when the collective bargaining agreement, according

to Respondent, does not allow such credit.

30 . Petitioner seeks from Respondent 20 years of service

credit and back salary for his satisfactory Alabama teaching

experience for the period of April 22, 2004, through May 31,

2006, in the amount of $39,209.50.

31 . Petitioner also seeks reimbursement of reasonable

attorney's fees, costs, and interest , both pre - and post -

judg ment .

CONCLUSIONS OF LAW

32 . Th e Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

proceeding. § § 12 0 .569 and 120.57(1), Fla. Stat.

33 . Subsection 1012.33 (3) (g), Florida Statutes , provides :

Beginning July 1, 2001, for each employee

who enters into a written contract,

pursuant t o this section, in a school

district in which the employee was not

employed as of June 30 , 2001, but has since

broken employment with that d istrict for 1

school year or more, for purposes of pay, a

district s chool board must recognize and

ac cept each year of full - time public school

teaching se rvice earned in the state of

Florida or outside the state and for

which the employee received a satisfactory

performance evaluation. Instructional

personnel employed pur suant to s.

121.091(9)(b)3. ar e exempt from the

provisions of this paragraph.

34. Subsection 121.091(9)(b)3 . does not apply in this case

because it is limited to re - employment of retired instructional

personnel who take employment as substitute or hourly teachers,

education paraprofessionals, transportation assistants, bus

drivers, or food service workers on a non - contractual basis.

Petitioner is not employed in any of these enumerated positions

and is a contract instructional employee.

35. The proper a pplication of Subsection 1012.33(3)(g),

Florida Statutes, is the primary issue for resolution here.

Petitioner's assertion that he is entitled to rely upon

Respondent's past practice concern ing other educators similarly

situated regarding the implementati on of this statutory

provision is irrelevant to the issues in this proceeding.

Absent other legal restrictions, this provision either requires

payment of the requested compensation or it does not. Further,

t o the extent Petitioner claims that Respondent is estopped to

deny the claimed compensation because his salary schedule

placement was changed or because others may have been paid under

similar circumstances, his reliance upon the doctrine of

administrative estoppel is misplaced.

36. Subsection 1012.33 (3)(g), Florida Statutes, does not

apply to retired educators. From the initial version of the

statutory provision at Subsection 231.36(3)(g), Florida Statutes

(2001), through the subsequent amended versions of the statute,

one clause has remained constan t: "Instructional personnel

employed pursuant to s.121.091(9)(b)3. are exempt from the

provisions of this paragraph." As stated above, Petitioner does

not fall within this exempt class.

37 . S ubs ection 121.091(9), Florida Statutes, entitled

"Employment A fter Retirement; Limitation" generally controls the

circumstances through which public employees of the State of

Florida who have retired and receive benefits under the Florida

Retirement System ("FRS") can return to employment with the same

employer or an other FRS covered employer. It sets time

constraints on when those employees may return to work and

additional constraints on their receipt of previously earned FRS

benefits. Subsection (9)(b)3 specifically addresses "school

board" employees who have ret ired. School board employees who

have retired may return to employment with a district school

board only in accordance with the terms of this subsection , and

in the limited enumerated positions .

38 . While S ubs ection 121.091(9), Florida Statutes, speaks

t o the circumstances under which all retired members of the FRS

may return to employment, Subsection (9) (b)3 . addresses only the

circumstances under which school board retired employees may

return to work. Significant to this analysis,

Subsection 1012.33(3 )(g), Florida Statutes, does not concern

retirement at all except to exclude certain retired school board

personnel from its coverage. The plain language of the statute

demonstrates the intent to require school boards to treat years

of experience outside the school district the same as years of

experience within the school district. The same plain language

excludes retired educators from coverage under the statute.

39 . Subsection 1012.33(3)(g), Florida Statutes, requires

only the recognition, for pay pur poses, of years of experience

of teachers seeking employment within the school districts of

Florida. The explicit purpose appears to be, in all versions of

the statute, that credit for teaching service be recognized at

time of hire in some manner and in e qual fashion for those with

teaching service earned in the State of Florida and those with

service earned outside the state .

40 . The limited exclusion from the provision of Subsection

1012.33(3)(g) for retired educators is explicit: "Instructional

person nel employed pursuant to s.121.091(9)(b)3. are exempt from

the provisions of this paragraph." The stated purpose of

Subsection 1012.33(3)(g) is to ensure equal credit for newly

hired instructors for their prior teaching service, whether that

service was e arned within the State of Florida or outside the

state. No legislative intent is provided to enlighten as to

whether that body intended to give preferential treatment to

out - of - state retired educators that is not available for Florida

retired educators. The statute cannot be reasonably construed

as intending to provide a special benefit for retired teachers

from other states while denying Florida teachers who retire the

right to use the same years of experience for pay purposes in

the event of a return to teaching. The statute is designed to

ensure that teachers having prior service outside Florida are

treated equally with teachers having prior service in Florida.

The statute cannot be used, with respect to the exclusion under

Subsection 121.091(9)(b)3, to confer a benefit on teachers who

retire outside of Florida while denying that same benefit to

teachers who retire in Florida by using years of service earned

in Florida.

41. Next, the doctrine of equitable estoppel does not

apply in this instance. "Al though equitable estoppel can apply

against the state . . ., such claims can be pursued only in rare

instances where there are exceptional circumstances." McNamara

v. Kissimmee River Valley Sportsm e n ' s Association , 648 So. 2d

155, 162 - 63 ( Fla. 2d DCA 1994 ). "Among the elements that must

be proven is a positive act by an authorized official, upon

which reliance is based." Id. ; see also Bishop v. State,

Division of Retirement , 413 So. 2d 776, 779 ( Fla. 1st DCA 1982)

(" There is no evidence that the state or its agents have

committed an affirmative act by which an equitable estoppel

could be declared against the State."); Department of

Administration, Division of Retirement v. Flowers , 356 So. 2d

14, 15 (Fla. 1st DCA 1978) ("The authorities are clear that

est oppel cannot be raised against the State unless there are

exceptional circumstances and some positive act on the part of a

state officer."); and Greenhut Construction Co. v. Henry A.

Knott, Inc. , 247 So. 2d 517, 524 ( Fla. 1st DCA 1971) (" The

ca su al and off hand manner in which the bureau chief indicated

that he thought it would be satisfactory for Knott to submit a

bid cannot be said to constitute such an affirmative and

positive representation of fact as to justify reliance thereon

by Knott in determining w hether it should submit a bid for

construction of the project.").

42. The mere failure to act does not constitute a

"positive act" upon which an estoppel against a state agency can

be based. See Monroe County v. Hemisphere Equity Realty, Inc. ,

634 So. 2d 745, 747 - 48 ( Fla. 3d DCA 1994) (" Here, the trial

court misconstrued the legal doctrine of equitable estoppel when

it ruled that Texas Largo was entitled to proceed with its

development based upon the County's failure to act against third

parties. The tri al court further erred when it found that the

Planning Director's 1987 letter to Tamarind, the original

developer, was an additional basis for estopping the County from

enforcing its regulation against Texas Largo. . . . [T]he

letter does not, under any c onceivable standard, rise to the

level of a 'positive act' sufficient to create estoppel. Simply

put, the letter says nothing, and suggests nothing by omission,

regarding the two - year limitation."); State v. Hadden , 370 So.

2d 849, 852 ( Fla. 3d DCA 1979) ("[E]stoppel will not be applied

against the State for an omission to act . . . .") ; and U. S.

Immigration and Naturalization Service v. Hibi , 94 S. Ct. 19,

21 - 22 ( 1973) (" Here the petitioner has been charged by Congress

with administering an Act which bot h made available benefits of

naturalization to persons in respondent's class and established

a cutoff date for the claiming of such benefits. Petitioner, in

enforcing the cutoff date established by Congress, as well as in

recognizing claims for the benefi ts conferred by the Act, is

enforcing the public policy established by Congress. While the

issue of whether 'affirmative misconduct' on the part of the

Government might estop it from denying citizenship was left open

in Montana v. Kennedy , 366 U.S. 308, 3 14, 315, 81 S. Ct. 1336, 6

L. Ed. 2d 313 (1961), no conduct of the sort there adverted to

was involved here. We do not think that the failure to fully

publicize the rights which Congress accorded under the Act of

1940, or the failure to have stationed in the Philippine Islands

during all of the time those rights were available an authorized

naturalization representative, can give rise to an estoppel

against the Government.").

43. In the present case, Petitioner presents no evidence

that, in reliance on Respondent's representation that he was

properly placed on the salary schedule, he changed his position

to his detriment. On the contrary, the evidence of record

demonstrates that Petitioner knew of his placement on the salary

schedule; knew the salary he was to receive for his employment;

and agreed to perform services in exchange for the compensation

he was promised. Moreover, he performed the services expected

of him and received the promised compensation.

44. Further, if Respondent had known at the t ime of the

hiring of Petitioner that the salary schedule would have

required it to pay Petitioner at a significantly higher rate, it

might have chosen not to offer Petitioner employment. While

there was no proof offered at hearing that Petitioner altered

his position to his detriment ( i.e. , his plans to teach in

Escambia County at the time he accepted employment) when

Subsection 1012.33(3)(g), Florida Statutes, was not applied to

give him credit for 20 years of teaching service in Alabama,

Respondent may h ave detrimentally altered its position by hiring

an instructor at a rate of compensation agreed upon by the

parties where, were it known at the time of hiring that a higher

rate of compensation would later be claimed, the offer of

employment may not have b een extended. Under these facts, it is

Petitioner who is estopped, after completing the contractual

periods of employment, from claiming that he must be paid a

higher rate of compensation, for the period already served, than

that to which he agreed when t he offer of employment was

extended.

45. Neither would estoppel lie against Respondent if it

had engaged in the "positive act" of misinforming Petitioner

about the provisions of Subsection 1012.33(3)(g), Florida

Statutes , inasmuch as agencies of "the stat e cannot be estopped

through mistaken statements of the law." State Department of

Revenue v. Anderson , 403 So. 2d 397, 400 (Fla. 1981);

SourceTrack, LLC v. Ariba, Inc. , 958 So. 2d 523 (Fla. 2d DCA

2007); and Austin v. Austin , 350 So. 2d 102, 105 (Fla. 1st DCA

1977) ("Administrative officers of the state cannot estop the

state through mistaken statements of the law.").

4 6 . Additionally , Petitioner's attempt to place the blame

on Respondent for what he claims was its erroneous

interpretation of the law at t he time he was hired (and

currently) simply misses the mark. First, "[n]o less than [the

school board ], [Petitioner] is charged with knowledge of the

law," including both statutory and rule provisions, and

therefore he should have known, without Responden t having to

personally interpret for him, whether he was entitled to credit

for his pre - retir e ment years of teaching in Alabama. State v.

Beasley , 580 So. 2d 139, 142 ( Fla. 1991) (" [P]ublication in the

Laws of Florida or the Florida Statutes gives all cit izens

constructive notice of the consequences of their actions."); see

also Buscher v. Mangan , 59 So. 2d 745, 748 ( Fla. 1952)

("[E] veryone is charged with knowledge of the law."); Nelson v.

State , 761 So. 2d 452, 453 ( Fla. 2d DCA 2000) (" Additionally,

the due process clause did not require the State to give Mr.

Nelson notice of the Act's application at the time he was

released from prison. Mr. Nelson is charged with constructive

knowledge of the law.") .

4 7 . When Petitioner was hired by Respondent on Apri l 22,

2004, he received credit for three years of prior service in

Florida and two years of prior service in Georgia because none

of these cumulative five years had been previously credited

toward any retirement. Additionally, Petitioner had 20 years of

s ervice in Alabama that were credited for purposes of his

retirement under the laws of the State of Alabama. The Escambia

County School Board correctly denied placement on the salary

schedule including those 20 years of service in Alabama. Not

only does S ubsection 1012.33(3)(g), Florida Statu t es, not

require Respondent to award such credit for placement on the

salary schedule, but it specifically denies authorization for

such credit to retired educators.

4 8 . Petitioner claims that Respondent must pay him

a dditional compensation for the period he provided instructional

services from April 22, 2004, through May 31, 2006. The

additional compensation is to represent the salary Petitioner

would have received for this time period had he been given

credit for 20 years of teaching in Alabama and been placed on a

higher step on the salary schedule as a result. This is despite

the fact that Petitioner agreed at the time of his hiring to the

compensation offered, performed the services required of him,

and was paid a s promised. The fact that Petitioner believes

that Respondent "illegally" withheld the additional compensation

from him due to its misinterpretation of the Florida Statutes is

not persuasive.

49. Petitioner, as noted above, is deemed to know the law

and will be bound by that law despite his reliance on, as he

puts it, on the school board's erroneous interpretation of

1012.33(3)(g). Petitioner has failed to prove that he is

entitled to credit for the 20 years of teaching service leading

to his retirement in Alabama.

50. Further, he has failed to prove that Respondent's

interpretation of Subsection 1012.33(3)(g), Florida Statutes, is

unreasonable. To the contrary, Respondent has reasonably and

logically interpreted this statute , which is clear and

unambi guous on its face. Petitioner and similarly situated

retired educators who have used years of teaching experience to

qualify for retirement, whether in Florida or outside, may not

rely on Subsection 1012.33(3)(g) to use those same years again,

upon obtain ing instructional employment with a school board in

Florida , for placement on the salary schedule. The purpose of

Subsection 1012.33(3)(g) is to require school districts to

credit all teaching experience equally for pay purposes,

regardless of where that experience was gained. It was not

intended to allow out - of - state retired educators who have used

their previous years of experience for purposes of retirement to

gain advantageous placement on the salary schedule. This

statutory provision may not serve a s a means for those who agree

to a specified salary, based upon non - retirement service, to

later claim entitlement to a higher salary using credit for

retirement service in another state that is not available to

teachers who have retired from service in Fl orida.

51. There being no legal basis to support the

applicability of either a two - year or a five - year statute of

limitations under Chapter 95, Florida Statutes, to an

administrative action, both Respondent's claim that a two - year

statute of limitations ap plies to Petitioner bringing an action

for back pay, and Petitioner's claim that a five - year statute of

limitations applies to his claim for back pay are moot.

52 . There being no legal or equitable basis to credit

Petitioner for the 20 years of service i n Alabama , which

entitled him to retire in that state, Petitioner's additional

claims for attorney's fees and costs, and pre - and post - judgment

interest are moot.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

R E COMMENDED that the Escambia County School Board enter a

f inal o rder denying Petitioner's claim for back salary in the

amount of $39,209.50, as well as pre - and post - judgment interest

on this amount, and attorney's fees and costs.

DONE AND ENTERE D this 2 1 st day of December , 2007 , in

Tallahassee, Leon County, Florida.

S

ROBERT S. COHEN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(8 50) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 2 1st day of December , 2007 .

COPIES FURNISHED :

Joseph L. Hammons, Esquire

Hammons, Longoria & Whittaker, P .A.

17 West Cervantes Street

Pensacola, Florida 32501 - 3125

Michael J. Stebbins, Esquire

Michael J. Stebbins, P.L.

504 North Baylen Street

Pensacola, Florida 32501

Dr. Eric J. Smith

Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Deborah K. Kearney, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Jim Paul , Superintendent

Escambia Count y School Board

215 West Garden Street

Pensacola , Florida 32502 - 5782

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.