08-001202 Margaret Benson, Reba Davis, Deborah Elleard, Deborah Gregory, Ida Lanier, Phyllis Malone, Vicki Outzen And Janet Taylor vs. Escambia County School Board Status: Closed Recommended Order on Thursday, August 21, 2008.

Summary: Petitioners claimed their salaries should be computed using all of their experience teaching in out-of-state school districts. Held: out-of-state experience counts the same as in-state experience when computing teachers` salaries.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARGARET BENSON, REBA DAVIS, )

DEBORAH ELLEARD, DEBORAH )

GREGORY, IDA LANIER, PHYLLIS )

MALONE, VICKI OUTZEN AND JANET )

TAYLOR, )

)

Petitioners, )

)

vs. ) Case No. 08-1202

)

ESCAMBIA COUNTY SCHOOL BOARD, )

)

Respondent. )

)

RECOMMENDED ORDER

This cause came on for final hearing before Harry L.

Hooper, Administrative Law Judge with the Division of

Administrative Hearings, on July 8, 2008, in Pensacola, Florida.

APPEARANCES

For Petitioners: H. B. Stivers, Esquire

Levine & Stivers

245 East Virginia Street

Tallahassee, Florida 32301

For Respondent: Joseph L. Hammons, Esquire

Hammons, Longoria & Whittaker, P.A.

17 West Cervantes Street

Pensacola, Florida 32501-3125

STATEMENT OF THE ISSUE

The issue is whether Respondent properly considered prior

teaching experience when calculating an appropriate salary for

Petitioners.

PRELIMINARY STATEMENT

Petitioners filed a lawsuit in 2007, in the Circuit Court

of Escambia County, Florida, under case number CA 000740, for

back salary and proper placement on the salary schedule of the

Escambia County School Board (Board). Nowhere in the evidence

can be found the date when the suit was filed. Petitioners aver

in their Petitioners' Recommended Order that the suit was filed

on or about April 2, 2007. Respondent in its Recommended Order

avers that the suit was filed on March 29, 2007. Petitioners

are presumed to know best when the lawsuit was filed, since they

filed it. Therefore, for purposes of this Recommended Order the

suit is deemed to have been filed April 2, 2007.

On January 31, 2008, Judge Jan Shackelford entered an order

staying the proceedings pending the outcome of this

administrative proceeding.

On February 29, 2008, Petitioners filed a Petition for

Formal Hearing. On March 7, 2008, counsel for the Board filed a

response to the Petition for Formal Hearing. The Petition for

Formal Hearing and Respondent's Response were forwarded to the

Division of Administrative Hearings and filed on March 10, 2008.

The final hearing was originally scheduled for June 10

and 11, 2008, but the Petitioners filed a Notice of Scheduling

Conflict and Request to Reset Hearing on April 1, 2008. The

final hearing was rescheduled and held on July 8, 2008.

At the hearing, Petitioners presented the testimony of Reba

Davis, Deborah Elleard, Ida Lanier, Phyllis Malone, Vicki

Outzen, and Janet Taylor, and offered 22 exhibits into evidence,

and they were admitted. Respondent presented the testimony of

Keith Leonard and offered two exhibits into evidence, and they

were admitted.

A Transcript was filed on July 24, 2008. After the

hearing, Petitioners filed their proposed findings of fact,

conclusions of law, and recommendations on August 13, 2008.

Respondent filed its proposed findings of fact, conclusions of

law, and recommendations on August 14, 2008.

FINDINGS OF FACT

1. All Petitioners were employed by the Board as

full-time Florida certified public school teachers under a

series of successive annual contracts.

2. The Board 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 negotiations with the Escambia Educational Association

(EEA), the collective bargaining agent that represents teachers.

A negotiated salary schedule is then recommended by the

superintendent of Escambia County Schools pursuant to

Subsection 1012.27(2), Florida Statutes (2007), to the Board for

approval and adoption.

3. The salary schedule adopted by the Board governs the

compensation payable to instructional personnel. The salary

schedule includes "steps" with corresponding "salary."

Placement on the salary 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.

4. All Petitioners received an annual instructional

contract under the authority of Subsection 231.36(3), Florida

Statutes, or later, Subsection 1012.33(3), Florida Statutes.

5. Petitioners' annual instructional contracts set forth

the contract salary on an annual basis payable through 12

monthly installments. The contracts specify the number of days

to be worked and the daily rate of compensation.

6. The Board's standard form contract provides that

"[t]his annual contract 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."

7. All Petitioners performed the agreed-upon instructional

services and, individually, were paid the agreed-upon

contractual amount, as provided in the "Master Contract

1999-2002" or "Master Contract 2004-2007," as appropriate. This

included the amount paid for years of service or "steps" as

provided in the Master Contracts. Petitioners Davis, Elleard,

Lanier, Malone, Outzen, and Taylor, however, protested the steps

they were assigned. As shall be addressed below, the Master

Contract allowance for steps was less than that required by

Florida law subsequent to July 1, 2001.

8. Petitioners' annual instructional contracts specify the

salary paid through 12 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 takes leave and has no accrued leave

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

leave without pay taken. The Board maintains ledgers with all

the compensation information for its employees, including

Petitioners.

9. Petitioner Margaret Benson has been employed by the

Board as a full-time public school teacher since August of 2002.

Prior to her employment with the Board, Ms. Benson was a

full-time public school teacher in New Jersey and Tennessee for

17 years. For each of those 17 years, Ms. Benson received

satisfactory performance evaluations. Upon being hired by the

Board, Ms. Benson was given credit for 15 of the 17 years of her

prior teaching experience. Ms. Benson has requested that the

Board recognize each of her 17 years of teaching service. In

March or April 2007, the Board recognized one additional year of

Ms. Benson's experience effective June 1, 2006. The Board has

denied the request for the period of August 2002 through May 31,

2006. There is no evidence in the record as to whether

Ms. Benson requested recognition of her entire teaching service,

prior to the filing of this lawsuit.

10. Petitioner Reba Davis was employed by the Board as a

full-time public school teacher for the 2003-2004 and 2004-2005

school years. Prior to her employment with the Board, Ms. Davis

was a full-time public school teacher in Florida, Oklahoma,

Alabama, and Kentucky for 25 years. For each of those 25 years

as a full-time public school teacher, Ms. Davis received

satisfactory performance evaluations. Upon being hired by the

Board, Ms. Davis was given credit for all but five years of her

prior teaching experience. Ms. Davis has requested that the

Board recognize each of her 25 years of teaching service. The

Board has denied the request for the period of 2003-2005 school

years. Ms. Davis retired from teaching in 2005, but is not

using the five years of teaching credit toward her retirement

benefit, which was earned outside the State of Florida. At the

time she began her service with the Board Ms. Davis made inquiry

with Mary Helen Fryman of the Board's Human Resources Office as

to why she was not given credit for all of her prior experience.

She was informed by Ms. Fryman that the matter was, "Still under

negotiation and that she knew I would be given . . . my

experience for my years in Florida." She made additional

inquiries of the teachers union and the Board and was told that,

"They were still in the bargaining stages and they were still

not clear."

11. Petitioner Deborah Elleard has been employed by the

Board as a full-time public school teacher since August 2003.

Prior to her employment with the Board, Ms. Elleard was a

full-time public school teacher in Alabama for 29 years. For

each of those 29 years as a full-time public school teacher,

Ms. Elleard received satisfactory performance evaluations.

Ms. Elleard retired from the State of Alabama and when hired by

the Board, Ms. Elleard was not given credit for her 29 years of

prior teaching experience. Ms. Elleard has requested that the

Board recognize each of her 29 years of teaching service. In

March or April 2007, the Board recognized her 29 years of

experience effective June 1, 2006. The Board has denied the

request for the period of August 2003 through May 31, 2006.

When Ms. Elleard was hired she made inquiry as to why she was

not receiving credit for her 29 years of teaching service. She

was informed then and several times thereafter that the Board

was working on the matter and that it would be resolved.

12. Petitioner Deborah Gregory was employed by the Board

as a full-time public school teacher beginning August 2002 until

her resignation following the conclusion of the 2005-2006 school

year. Prior to her employment with the Board during the

relevant time, Ms. Gregory was a full-time public school teacher

in Alabama, Escambia County, and Orange County for 16 years.

For each of those 16 years as a full-time public school teacher,

Ms. Gregory received satisfactory performance evaluations. Upon

being hired by the Board in 2002, Ms. Gregory was given credit

for 15 of her 16 years of prior teaching experience.

Ms. Gregory has requested that the Board recognize each of her

16 years of teaching service. The Board has denied the request

for the period of August 2002 through May 31, 2006. There is no

evidence in the record as to when or if Ms. Gregory requested

recognition of her entire teaching service.

13. Petitioner Ida Lanier has been employed by the Board

as a full-time public school teacher since August 2001. Prior

to her employment with the Board, Ms. Lanier was a full-time

public school teacher in Alabama for 25 years. For each of

those 25 years as a full-time public school teacher, Ms. Lanier

received satisfactory performance evaluations. Ms. Lanier

retired from the State of Alabama, and upon being hired by the

Board, Ms. Lanier was denied credit for her 25 years of prior

teaching experience. Ms. Lanier has requested that the Board

recognize each of her 25 years of teaching service. In March or

April 2007, the Board recognized Ms. Lanier's 25 years of

experience effective June 1, 2006. The Board has denied the

request for the period of August 2002 through May 31, 2006.

When she was hired, Ms. Lanier inquired as to why she did not

get credit for prior service and she was told it was because she

was retired from another state. She was informed that the

collective bargaining agreement prevented the credit but that

the situation might change. She continued over time to make

inquiry to both her union and the Board.

14. Petitioner Phyllis Malone has been employed by the

Board as a full-time public school teacher since August 2003.

Prior to her employment with the Board, Ms. Malone was a

full-time public school teacher in Alabama for 25 years. For

each of those 25 years, Ms. Malone received satisfactory

performance evaluations. Ms. Malone retired from the State of

Alabama and upon being hired by the Board, Ms. Malone was given

credit for 15 of her 25 years of prior teaching experience.

Ms. Malone requested that the Board recognize each of her 25

years of teaching service. In August 2006, the Board recognized

each of her 25 years of experience effective June 1, 2006. The

Board has denied the request for the period of August 2002

through May 31, 2006. Ms. Malone had conversations with the

Board's Human Resources Office and wrote a letter to Dr. Scott

of the Board and talked to Judy Fung of the Board, inquiring as

to why she was not receiving credit for past experience. During

the time she taught, she continued to make inquiries.

15. Petitioner Vicki Outzen has been employed by the Board

as a full-time public school teacher since August 2002. Prior

to her employment with the Board, Ms. Outzen was a full-time

public school teacher in Alabama for 25 years. For each of

those 25 years, Ms. Outzen received satisfactory performance

evaluations. Ms. Outzen retired from the State of Alabama and

upon being hired by the Board, Ms. Outzen was not given credit

for her 25 years of prior teaching experience. Ms. Outzen has

requested that the Board recognize each of her 25 years of

teaching service. In March or April 2007, the Board recognized

Ms. Outzen's 25 years of experience effective June 1, 2006. The

Board has denied the request for the period of August 2002

through May 31, 2006. Ms. Outzen made inquiries of the Board at

the time she was hired and continuously during her employment

with regard to the Board's refusal to give her the requested

credit. She was informed that negotiations with the union were

in progress and that she should continue to "check back" with

the Board. She continually checked back with Ms. Fryman,

Director of Human Resources at the Board, and was told in a

letter that because she was retired from another state she must

start teaching at step zero.

16. Petitioner Janet Taylor has been employed by the Board

as a full-time public school teacher since September 11, 2002.

Prior to her employment with the Board, Ms. Taylor was a

full-time public school teacher in Alabama for 30 years. For

each of those 30 years, Ms. Taylor received satisfactory

performance evaluations. Ms. Taylor retired from the State of

Alabama and upon being hired by the Board, Ms. Taylor was not

given credit for her 30 years of prior teaching experience.

Ms. Taylor has requested that the Board recognize each of her 30

years of teaching service. Respondent has failed to recognize

any of Ms. Taylor's prior years of teaching experience. The

Board led Ms. Taylor to believe that she would be notified by

the Board when she would be eligible to receive credit for prior

teaching experience.

17. For the years Petitioners are seeking credit, those

years were not earned under the Florida Retirement System (FRS)

as codified in Chapter 121, Florida Statutes (2007).

18. If the Petitioners had been paid as they assert, the

Board would be required to pay Petitioners as follows:

(a) Margaret Benson for an additional step for school

years 2002-2003, 2003-2004, 2004-2005, and 2005-2006. This

amount totals $3,308.

(b) Reba Davis for five steps for school years 2003-2004

and 2004-2005. This amount totals $11,423.

(c) Deborah Elleard for 29 steps for school years 2003-

2004, 2004-2005, and 2005-2006. This amount totals $52,895.

(d) Deborah Gregory for one step for school years 2002-

2003, 2003-2004, 2004-2005, and 2005-2006. This amount totals

$3,308.

(e) Ida Lanier for 25 steps for school years 2001-2002,

2002-2003, 2003-2004, 2004-2005, and 2005-2006. This amount

totals $83,561.

(f) Phyllis Malone for 10 steps for school years 2003-

2004, 2004-2005, and 2005-2006. This amount totals $28,692.

(g) Vicki Outzen for 26 steps for school years 2002-2003,

2003-2004, 2004-2005, and 2005-2006. This amount totals

$66,338.

(h) Janet Taylor for 30 steps for school years 2002-2003,

2003-2004, 2004-2005, 2005-2006, 2006-2007, and 2007-2008. This

amount totals $101,427.

CONCLUSIONS OF LAW

19. The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

proceeding. § 120.57(1), Fla. Stat. (2007).

20. All Petitioners are instructional personnel as

described in Subsection 1012.01(2)(a), Florida Statutes (2007).

21. Section 231.001, Florida Statutes (2000), provided,

"Except as otherwise provided by law or the State constitution,

district school boards may prescribe rules governing personnel

matters, including the assignment of duties and responsibilities

for all district employees." Chapter 231, in 2000, did not

address credit for teaching service in other districts or other

states. Therefore district school boards could give as much or

as little credit for teaching service (or steps) in other

districts or other states as they, in consonance with any union

input, deemed proper.

22. Subsection 231.36(3)(g), Florida Statutes (2001),

became effective July 1, 2001, as the result of the passage of

Committee Substitute for Committee Substitute for House Bill

1193 (HB 1193), which was approved by the Governor on May 16,

2001, with an effective date of July 1, 2001. This became

Chapter 2001-47, Section 11, Laws of Florida, which was

subsequently codified as noted above.

23. The reasons for this new policy of equal credit for

teaching experience is contained in the legislative history of

HB 1193, found inter alia at Florida House of Representatives

Storage Names h1193s1a.sa.doc, h1193s2.llc.doc, and

h1193s2z.ge.doc, dated April 12, April 18, 2001, and May 25,

2001, respectively. This history demonstrates that among the

goals sought by passage of the bill was to address a perceived

teacher shortage, to end the practice of having credit for prior

service applied differently in different districts, and to

facilitate the movement of teachers from an area having a

surplus of teachers, to a district needing teachers.

24. Section 7 of the analysis of Committee Substitute for

HB 1193 by the staff of House of Representatives Committee on

State Administration, states: " Section 7. Amends s. 231.36,

F.S. Current Situation. Currently, some districts limit the

use of teaching experience from other districts or states. That

is to say, when a teacher comes from outside of a school

district the district may limit the number of years it will

'credit' the new employee with, in terms of salary and other

benefits. This limit varies from district to district." This

may be found at Florida House of Representatives Storage Names

h1193s1a.sa.doc.

25. Section 10 of the analysis of Committee Substitute for

Committee Substitute for HB 1193 by the staff of House of

Representatives Council for Lifelong Learning, also indicates

that giving credit equally to teachers from without the state

will ameliorate a perceived teacher shortage. This may be found

at Florida House of Representatives Storage Names

h1193s2.llc.doc. The language indicating the need to attract

teachers from without the state is repeated in the House of

Representatives General Education Final Analysis for Committee

Substitute for Committee Substitute for HB 1193, 2d Engrossed,

found at Florida House of Representatives Storage Names

h1193s2z.ge.doc.

26. Subsection 231.36(3)(g), Florida Statutes (2001),

reads as follows:

Beginning July 1, 2001, for each employee

who enters into a written contract,

pursuant to this section, in a school

district in which the employee was not

employed as of June 30, 2001, for purposes

of pay a school board must recognize and

accept each year of full-time teaching

service for which the employee received a

satisfactory performance evaluation. This

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 out of the district the same as

years of teaching experience within the

district. Instructional personnel employed

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

from the provisions of this paragraph.

27. Upon consideration of the language of the statute as

well as the staff analyses, it is concluded that what this

change meant (except for those falling into the category set

forth in the last sentence), is that if a school teacher who was

not employed by the Board prior to June 30, 2001, became

employed with the Board after that date, that person must

receive credit for teaching experience outside of the Escambia

County School District for each year the person received a

satisfactory performance evaluation. The credit is required

whether the person acquired the experience in another state or

whether it was acquired in another Florida school district.

28. The language further provided that the credit was to

be given even if a collective bargaining agreement stated

otherwise. The right to collective bargaining in Florida is

addressed in the Florida Constitution at Article I, Section 6.

However, as was stated in United Teachers of Dade, FEA/United,

AFT, Local 1974, AFL/CIO v. Dade County School Board , 500 So. 2d

508 (Fla. 1986), "The legislature has the authority and duty to

enact guidelines implementing the rights guaranteed by Fla.

Const. art. I, § 6." A collective bargaining agreement may not

be made that contravenes a statute. Thus, to the extent that

the Master Contract 1999-2002 conflicted with Subsection

231.36(3)(g), Florida Statutes (2001), the statute governed.

29. Chapter 121, Florida Statutes, is entitled The Florida

Retirement System (FRS). Subsection 121.091(9)(b)3., Florida

Statutes (2001), provided for the employment of a retired member

of the FRS as a substitute or hourly teacher, education

paraprofessional, transportation assistant, bus driver, or food

service worker on a noncontractual basis after he or she has

been retired for 1 calendar month, in accordance with s.

121.021(39). This clause simply meant that for persons in that

class, the mandatory credit required by Subsection

121.091(9)(b)3., Florida Statutes (2001), did not apply to them.

30. Petitioner Lanier, the only petitioner who began

working in the 2001-2002 school year, was in the instructional

personnel category and was not a retired member of the FRS.

Absent the effect of the appropriate statute of limitations,

Petitioner Lanier should be paid for 25 years of experience from

inception of employment, as a result of the passage of

Subsection 231.36(3)(g), Florida Statutes (2001).

31. The Florida Legislature in 2002, amended Subsection

231.36(3)(g), Florida Statutes (2001), with changes underlined

and deletions struck through, to read as follows:

1012.33 Contracts with instructional

staff, supervisors, and school principals.-

* * *

(3)(g) Beginning July 1, 2001, for each

employee who enters into a written contract,

pursuant to this section, in a school

district in which the employee was not

employed as of June 30, 2001, for purposes

of pay, a district 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 and

for which the employee received a

satisfactory performance evaluation. This

provision is not intended to interfere w ith

the operation of a collective bargaining

agreement except to the extent it requires

the agreement to treat years of teaching

experience out of the district the same as

years of teaching experience within the

district. Instructional personnel employed

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

from the provisions of this paragraph.

32. The effective date of this amendment was January 7,

2003. This amendment reinforced the notion that full credit was

to be given to teachers coming into the district from other

districts in Florida or from out of state. The language

addressing collective bargaining agreements, which as noted

above, had no effect on the operation of the statute, was

struck. The language further provided that credit was mandatory

only for public school teaching.

33. Absent the effect of the appropriate statute of

limitations, Petitioners Lanier, Benson, Gregory, Outzen, and

Taylor, should be paid for all years of experience requested,

beginning with the inception of school year 2002-2003.

34. Subsection 1012.33(3)(g), Florida Statutes (2002), was

not amended by the Florida Legislature in 2003. However, a

significant amendment was made to Subsection 121.091(9)(b)3.

that impacted the operation of Subsection 1012.33(3)(g), Florida

Statutes (2003), by including instructional personnel within its

ambit. The result of this amendment was to deny the mandatory

benefits of Subsection 1012.33(3)(g), Florida Statutes (2003),

to persons retired under the FRS.

35. The amendment that became Subsection 121.091(9)(b)3.,

Florida Statutes (2003), gave a benefit to someone retired from

a state other than Florida that was not available to someone

retired under the FRS. The policy reasons for this are not

clear, but the language is.

36. In Florida State Racing Com. v. McLaughlin , 102 So. 2d

574, 575 (Fla. 1958), the Florida Supreme Court stated that, "It

is elementary that the function of the Court is to ascertain and

give effect to the Legislative intent in enacting a statute. In

applying this principle certain rules have been adopted to guide

the process of judicial thinking. The first of these is that

the Legislature is conclusively presumed to have a working

knowledge of the English language and when a statute has been

drafted in such manner as to clearly convey a specific meaning

the only proper function of the Court is to effectuate this

legislative intent." See also Vocelle v. Knight Bros. Paper

Co. , 118 So. 2d 664 (Fla. 1st DCA 1960).

37. The amendment had no effect on the pay status of the

Petitioners because none of them were retired under the FRS.

Thus, absent the effect of the appropriate statute of

limitations, Petitioners Davis, Elleard, and Malone, beginning

with the inception of school year 2003-2004, joined the class of

Petitioners who were entitled to recognition for all of their

years of teaching experience.

38. The Florida Legislature in 2004, amended Subsection

1012.33(3)(g), Florida Statutes (2003), with changes underlined,

to read as follows:

Beginning July 1, 2001, for each employee

who enters into a written contract,

pursuant to this section, in a school

district in which the employee was not

employed as of June 30, 2001, or was

employed as of June 30, 2001, but has since

broken employment with that district for 1

school year or more, for purposes of pay, a

district 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 and for which

the employee received a satisfactory

performance evaluation. Instructional

personnel employed pursuant to s.

121.091(9)(b)3. are exempt from the

provisions of this paragraph.

39. This new language brought persons with "broken

service" into the zone of recognition for purposes of mandatory

step pay. This language is inapplicable to any of the

Petitioners.

40. Unless there is some impediment to be found outside of

Subsection 1012.33(3)(g), Florida Statutes (2007), the Board

must pay Petitioners in accordance with the statute, including

Petitioners Elleard, Lanier, Malone, Outzen, and Taylor, who

retired from teaching in Alabama.

41. It is noted that in a similar case, Charles V. Keene

v. Escambia County , Case No. 07-2125 (DOAH December 21, 2007),

approved in the Final Order Adopting the Findings of Fact and

Conclusions of Law of the Administrative Law Judge , Escambia

County School Board, January 22, 2008, it was found that the

Florida Legislature would not have provided for one standard for

teachers retired in another state and another standard for

teachers retired under the FRS, and therefore teachers retired

from a state other than Florida could not benefit from

Subsection 1012.33(3)(g), Florida Statutes (2007). However, the

evidence and law presented in this case require an opposite

conclusion.

42. The Board has asserted, as an impediment, that the

parties entered into individual contracts that were derived from

the appropriate Master Contract, that the teachers were paid in

accordance with the contract to which they agreed, and that the

Board is only obligated to pay Petitioners in accordance with

that contract. Therefore, the Board argues, Petitioners may not

now obtain back pay in accordance with Subsection 1012.33(3)(g),

Florida Statutes (2007).

43. However, Subsection 1012.33(3)(g), Florida

Statutes (2007), overrides the provisions of the Master

Contracts of the individual Petitioners to the extent they

conflict with it. The subsection is of the sort discussed in

United Teachers , supra , and has supremacy over the terms of the

Master Contracts, which provides the bases for the contracts

into which Petitioners entered. Moreover, Petitioners were

unable to waive the application of the law requiring credit.

The operative law is what is provided by Subsection

1012.33(3)(g), Florida Statutes (2007), not what the Board or

the Petitioners agree. It is further noted, that Petitioners

Elleard, Malone, Outzen, Lanier, Davis, and Taylor, continually

asserted their rights under the statute.

44. Respondent asserts that the application of equitable

estoppel and Section 215.425, Florida Statutes (2007), prevents

Respondent from adjusting the Petitioners' pay. The facts

required to establish the elements of equitable estoppel are not

present in this case.

45. Section 215.425, Florida Statutes (2007), provides in

part, "No extra compensation shall be made to any officer,

agent, employee, or contractor after the service has been

rendered or the contract made; nor shall any money be

appropriated or paid on any claim the subject matter of which

has not been provided for by preexisting laws, unless such

compensation or claim is allowed by a law enacted by two-thirds

of the members elected to each house of the Legislature."

46. The meaning of Section 215.425, Florida

Statutes (2007), is illuminated primarily by Attorney General

Opinions. The opinions address situations where a person

receives compensation from a governmental entity and thereafter

is awarded additional compensation. In this case, Petitioners

did not receive the amount to which they were lawfully entitled

ab initio . Therefore, Section 215.425, Florida Statutes (2007),

does not prohibit the Board from paying Petitioners the amounts

to which they were entitled from the beginning of their

employment. This was not a case of extra compensation. It

is a case of compensation that was unlawfully denied.

47. Respondent further asserts that Petitioners' claims

are barred by Subsection 95.11(4)(c), Florida Statutes (2007).

That subsection provides a two-year statute of limitations based

on, "An action to recover wages or overtime or damages or

penalties concerning payment of wages and overtime. Petitioners

assert that if Chapter 95, Florida Statutes (2007), applies at

all, then the proper subsection is a four-year limitation

pursuant to Subsection 95.11(3)(k), Florida Statutes (2007).

48. Generally, determinations that actions may not be

brought because of the time limitations provided Chapter 95,

Florida Statutes, are not made by administrative law judges.

However, in a case that is an administrative substitute for a

civil action, it is within the province of the administrative

law judge to provide a recommendation when the statute of

limitations is in issue. See Winter Haven Hospital v. Agency

for Health Care Administration , Case No. 04-1887MPI (DOAH

December 28, 2004).

49. Subsection 95.11(4)(c), Florida Statutes (2007), is

the correct limitation to use in this case. It provides for a

two-year limitation on actions for wages. A number of cases

have addressed limitations on payments made to teachers

including McWilliams v. Escambia County School Bd. , 658 F.2d

326 (5th Circuit 1981). In McWilliams , the plaintiff, a teacher

in the Escambia County School District, asserted civil rights

violations and demanded back pay. The court, interpreting

Florida Law, held that the two-year statute of limitations for

wages was applicable to his claim. In Burney v. Polk Community

College , 728 F.2d 1374 (11th Cir. 1984), the court, interpreting

Florida Law, found that in a case involving a tenured guidance

counselor, the two-year statute of limitations for wages was

applicable. It is apparent that in this case Subsection

95.11(4)(c), Florida Statutes (2007), provides the appropriate

limitation.

50. Section 95.031, Florida Statutes (2007), provides in

part:

§ 95.031. Computation of time

Except as provided in subsection (2) and

in s. 95.051 and elsewhere in these

statutes, the time within which an action

shall be begun under any statute of

limitations runs from the time the cause of

action accrues.

(1) A cause of action accrues when the last

element constituting the cause of action

occurs.

* * *

51. The issue in this case is the correct amount of pay to

which each Petitioner was entitled. Petitioners were paid based

on a series of successive annual contracts that were broken down

into daily units. Every day that Petitioners were paid based on

an incorrect determination of credit for experience was an

accrual of a cause of action. Therefore, the period for filing

suit runs from the time of filing the lawsuit, April 2, 2007,

back to April 2, 2005.

52. Pursuant to Section 448.08, Florida Statutes (2007),

Petitioners are entitled to a reasonable attorney's fee.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that the Escambia County School Board

recalculate Petitioners' salary as of April 2, 2005, so that

their salaries reflect the amount each should have earned if

Petitioners had been given credit for each year of full-time

public school teaching service earned in the State of Florida or

outside the state, and pay them that amount. It is further

recommended that Petitioners receive pay at all future times as

provided by Subsection 1012.33(3)(g), Florida Statutes (2007),

and this Recommended Order. It is further recommended that the

Escambia County School Board remit to Petitioners a reasonable

attorney's fee.

DONE AND ENTERED this 21st day of August, 2008, in

Tallahassee, Leon County, Florida.

S

HARRY L. HOOPER

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 21st day of August, 2008.

COPIES FURNISHED :

Joseph L. Hammons, Esquire

Hammons, Longoria & Whittaker, P.A.

17 West Cervantes Street

Pensacola, Florida 32501-3125

H. B. Stivers, Esquire

Levine & Stivers

245 East Virginia Street

Tallahassee, Florida 32301

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 County 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.