15-007042 David Oness vs. Sarasota County School Board Status: Closed Recommended Order on Tuesday, March 29, 2016.

Summary: Petitioner failed to carry his burden of proof; Petitioner is not eligible for the Best and Brightest Scholarship.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DAVID ONESS,

Petitioner,

vs. Case No. 15 - 7042

SARASOTA COUNTY SCHOOL BOARD,

Respondent,

and

DEPARTMENT OF EDUCATION,

Intervenor.

_______________________________/

RECOMMEN DED ORDER

Pursuant to notice, a final hearing was held February 9,

2016, via video teleconference in Sarasota and Tallahassee,

Florida, before Administrative Law Judge Lynne A. Quimby - Pennock

of the Division of Administrative Hearings (Division).

APPEARAN CES

For Petitioner: Ronald G. Meyer, Esquire

Lynn C. Hearn, Esquire

Meyer, Brooks, Demma and Blohm, P.A.

Post Office Box 1547

131 North Gadsden Street (32301)

Tallahassee , Florida 32302

For Respondent: Margaret R. Good, Esquire

Matthews Eastmoore

Suite 300

1626 Ringling Boulevard

Sarasota, Florida 34236

For Intervenor: David L. Jordan, Esquire

Daniel Terrence Gaffney, Esquire

Department of Education

Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

STATEMENT OF THE ISSUE

Whether Petitioner, David On ess, is eligible to receive the

remuneration from the 2015 state of Florida Best and Brightest

Scholarship program.

PRELIMINARY STATEMENT

By correspondence dated November 13, 2015, the Sarasota

County School Board (SCSB or Respondent) informed Mr. Oness th at

he did Ðnot qualify for the Best and Brightest Scholarship

because [his] ACT test scores [did] not reflect the 80th

na tional percentile or higher.Ñ In response to the November 13

correspondence, Mr. Oness timely requested a hearing before the

Division. By correspondence dated December 14, the SCSB

forwarded the hearing request to the Division for a hearing. 1/

On January 6, 2016, the Florida Department of Education (DOE)

filed an unopposed motion to intervene, which was granted. The

final hearing was scheduled for , and he ld on , February 9, 2016.

Prior to the hearing, the parties, including the

intervenor, filed a Pre - hearing Stipulation. To the extent

appropriate, the stipulated facts are found below.

At the final hearing, Mr. Oness testified on his own

behalf. Respon dent called Al Harayda, SCSBÓs Employee Relations

and E quity A dministrator, to testify on its behalf. DOE called

Brian Dassler, DOE Deputy C hancellor , to testify. Exhibits A

through F were admitted into evidence without objection.

T he Transcript of the proceeding was filed with the

Division on February 25, 2016. 2/ On February 26, a Notice of

Filing Transcript was issued , wherein the parties were notified

that their respective proposed recommended orders (PROs) were to

be filed on Ma rch 7 , before 5:00 p.m . The parties timely

submitted their PROs. Within RespondentÓs PRO, the issue of

subject matter jurisdiction was raised as an impediment to the

Division rendering the Recommended Order.

On March 9, 2016, Mr. Oness filed his Unoppo sed Motion to

Supplement Proposed Recommended Order to Address Newly Raised

Claim of Lack of Jurisdiction. An Order granting the request

was issued, and the undersigned considered Mr. OnessÓ supplement

addressing the Ðlack of jurisdictionÑ position.

On March 22, 2016, Respondent and DOE filed a Joint Notice

of Supplemental Authority (notice), citing as supple mental

authority section 25 of c hapter 2016 - 62, Laws of Florida.

Mr. Oness timely filed a response to the notice. Both pleadings

have been consid ered.

Unless otherwise noted, all statutory citations are to the

Florida Statutes (2015) .

FINDING S OF FACT

1. M r. Oness is employed by the SCSB and is in his 11th

year as a teacher at Sarasota High School.

2. The 2015 Florida Legislature Appropriation s Act created

the Best and Brightest Teacher Scho larship Program ( the

scholarship ), c hapt er 2015 - 232, p. 27, Item 99A. The

eligibility pre - requisites for applying to and being awarded the

scholarship (up to $10,000) were established in the scholarship .

3. The scholarship provided the following:

Funds in Specific Appropriation 99A are

provided to implement Florida's Best and

Brightest Teacher Scholarship Program. The

funds shall be used to award a maximum of

4,402 teachers with a $10,000 scholarship

bas ed on high academic achievement on the

SAT or ACT. To be eligible for a

scholarship, a teacher must have scored at

or above the 80th percentile on either the

SAT or the ACT based upon the percentile

ranks in effect when the teacher took the

assessment and have been evaluated as highly

effective pursuant to section 1012.34,

Florida Statutes, or if the teacher is a

first - year teacher who has not been

evaluated pursuant to section 1012.34,

Florida Statutes, must have scored at or

above the 80th percentile on either the SAT

or the ACT based upon the percentile ranks

in effect when the teacher took the

assessment. In order to demonstrate

eligibility for an award, an eligible

teacher must submit to the school district,

no later than October 1, 2015, an official

record of his or her SAT or ACT score

demonstrating that the teacher scored at or

above the 80th percentile based upon the

percentile ranks in effect when the teacher

took the assessment. By December 1, 2015,

each school district, charter school

governing board, and the Florida School for

the Deaf and the Blind shall submit to the

department the number of eligible teachers

who qualify for the scholarship. By

February 1, 2016, the department shall

disburse s cholarship funds to each school

district for each eligible teacher to

receive a scholarship. By April 1, 2016,

each school district, charter school

governing board, and the Florida School for

the Deaf and the Blind shall provide payment

of the scholarship to each eligible teacher.

If the number of elig ible teachers exceeds

the total the department shall prorate the

per teacher scholarship amount.

4. Mr. Oness timely filed an application to participate in

the scholarship .

5. Mr. Oness was evaluated as Ðhighly effecti veÑ pursuant

to section 1012.34 , Florida Statutes.

6. Mr. Oness was raised and educated in Canada. Mr. Oness

did not take either the ACT 3/ or the SAT 4/ when he went to

college, as it was not necessary in Canada.

7. Mr. Oness took the ACT in Las Vegas, Nevada, on

September 12, 201 5.

8. On ÐThe ACT§ Student ReportÑ (pages 6 and 7 of

Exhibit A), it recorded Mr. OnessÓs ACT score as: Composite

Score 24 U.S. RANK 74%|STATE RANK 81%

9. No credible testimony or evidence was received from any

authoritative figure from the ACT entity or otherwise that

clearly establishes what is meant by the ÐSTATE RANKÑ

percentile. The form provides:

U.S. Rank and State Rank: Your ranks tell

you the approximate percentages of recent

high school graduates in the U.S. and your

state who took the AC T and received scores

that are the same as or lower than yours.

It remains unclear whether the term ÐSTATE RANKÑ means: the

state of Nevada, where Mr. Oness took the ACT; the state of

Florida, where Mr. Oness lives and works; or some other state.

10. On November 13, 2 015, SCSBÓs Human Resources Salary

S pecialist, Mary McCurry, advised Mr. Oness that he did not

qualify for the scholarship award Ðbecause your ACT test scores

do not reflect the 80th national percentile or higher. Ñ

11. Mr. Oness asked Respo ndent to review the non -

qualification determination by e - mail dated November 13, 2015,

and received a n e - mail in return from the SCSBÓs E mployee

Relations and Equity A dministrator, Al Harayda, advising that

the DOE provided Ðthe percentiles that we had to useÑ in

determining eligibility.

12. The DOE pro vided guidance to the SCSB that Ðthe

national percentile score should be used to meet eligibility

requirements.Ñ

CONCLUSIONS OF LAW

13. The Division of Administrative Hearings has

jurisdiction over the part ies and subject matter of this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat. 5 /

14. Petitioner bears the burden of proving by a

preponderance of the evidence that he is entitled to the award

services. Dep't of Transp. v. J. W. C. Co., Inc. , 396 So. 2d

778 (Fla. 1st DCA 1981); § 120.57(1)(j) , Fla. Stat . A

preponderance of the evidence is defined as "the greater weight

of the evidence," or evidence that "more likely than not" tends

to prove a certain proposition. Gross v. Lyons , 763 So. 2d 276,

280 n . 1 (Fla. 2000).

15. Mr. Oness did not sustain his burden of proof .

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Saraso ta County School Board

enter a final o rder that Petitioner is not eligible for a Best

and Brightest Scholarship.

DONE AND ENTERED this 29 th day of March , 2016 , in

Tallahassee, Leon County, Florida.

S

LYNNE A. QUIMBY - PENNOCK

Administrative Law Judge

Division of Administrative Hearings

The DeSot o Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 29 th day of March , 2016 .

ENDNOTE S

1/ The language in the transmittal letter reads in part:

We have been instructed to refer these

[there were two other cases involving the

same scholarship] matters to the Division of

Administrative Hearings for a hearing(s)

before an administrative law judge regarding

the S chool BoardÓs denial of scholarship

eligibility.

2/ It appears that PetitionerÓs counsel e lectronically f iled the

T ranscript, thus the undersigned assumes that PetitionerÓs

counsel has the original T ranscript, as it wa s not f i led with

the Division .

3/ The phrase ÐACTÑ was n ever defined. The term is understood

to be the acronym for the American College Testing.

4/ The phrase ÐSATÑ was never defined. The term is understood to

be the acronym for the Scholastic Aptitude Test.

5 / RespondentÓs positi on that the Division does not have

jurisdiction is distinguishable. Respondent claims that the

issue involves the stateÓs budget process. This case involves

Mr. OnessÓ eligibility to receive the scholarship, nothing more,

nothing less.

COPIES FURNISHED :

Arthur S. Hardy, Esquire

Matthews Eastmoore

Suite 300

1626 Ringling Boulevard

Sarasota, Florida 34236 - 6815

(eServed)

Margaret R. Good, Esquire

Matthews Eastmoore

Suite 300

1626 Ringling Boulevard

Sarasota, Florida 34236

(eServed)

Ronald G. Meyer, Es quire

Meyer, Brooks, Demma and Blohm, P.A.

Post Office Box 1547

131 North Gadsden Street (32301)

Tallahassee, Florida 32302

(eServed)

Lynn C. Hearn, Esquire

Meyer, Brooks, Demma, and Blohm, P.A.

Post Office Box 1547

131 North Gadsden Street

Tallahassee, Florida 32302

(eServed)

David L. Jordan, Esquire

Department of Education

Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Daniel Terrence Gaffney, Esquire

Florida Department of Education

325 West Gaines Street , Suite 1244

Tal lahassee, Florida 32399 - 0400

(eServed)

Lori White, Superintendent

Sarasota County School Board

1960 Landings Boulevard

Sarasota, Florida 34231

Pam Stewart, Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gai nes Street

Tallahassee, Florida 32399 - 0400

(eServed)

Matthew Mears, General Counsel

D epartment of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parti es 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.