16-000378 Cordelia Brown vs. Sarasota County School Board Status: Closed Recommended Order on Monday, June 13, 2016.

Summary: Petitioner proved that she is a "teacher," and, therefore, she is eligible for an award under the 2015 Best and Brightest Teacher Scholarship Program.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CORDELIA BROWN,

Petitioner,

vs. Case No. 16 - 0378

SARASOTA COUNTY SCHOOL BOARD,

Respondent,

and

DEPARTMENT OF EDUCATION,

Intervenor.

_______________________________/

RECOM MENDED ORDER

The final hearing in this matter was conducted before

J. Bruce Culpepper, Administrative Law Judge of the Division of

Administrative Hearings, pursuant to sections 120.569 and

120.57(1), Florida Statutes (2015), 1/ on March 31, 2016, in

Saras ota, Florida.

APPEARANCES

For Petitioner: Ronald G. Meyer, 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

Departm ent of Education

Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

STATEMENT OF THE ISSUE

Whether Petitioner, Cordelia Brown, is eligible to receive a

scholarship offered by the 2015 Flor ida Best and Brightest

Teacher Scholarship Program.

PRELIMINARY STATEMENT

On September 3 , 2015, Petitioner, Cordelia Brown

(ÐPetitionerÑ), applied to the School Board of Sarasota County,

Florida (the ÐSchool BoardÑ), for a scholarship under the 2015

Florid a Best and Brightest Teacher Scholarship Progr am (the

ÐScholarship ProgramÑ).

On November 11, 2015, the School Board notified Petitioner

that it had determined that she was not eligible for the

scholarship.

On January 13, 2015, Petitioner timely requested an

administrative hearing to contest the School BoardÓs denial of

her application. On January 22, 2016, the School Board referred

the matter to the Division of Administrative Hearings (ÐDOAHÑ)

and requested assignment to an Administrative Law Judge (ÐALJÑ )

to conduct an evidentiary hearing.

On January 26, 2016, the Florida Department of Education

(the ÐDepartmentÑ) filed a Motion to Intervene. The DepartmentÓs

motion was granted by Order, dated January 27, 2016.

The final hearing was held on March 31, 201 6. At the

hearing, Petitioner testified on her own behalf. The School

Board presented the testimony of Sonia Figaredo - Alberts,

e xecutive d irector of p upil s upport s ervices, and Al Harayda,

e mployee r elations and equity a dministrator. The Department

pres ented t he testimony of Brian Dassler, d eputy chancellor of

educator q uality. The parties stipulated to the introduction of

Exhibits 1 through 14 , which were received into evidence.

A one - volume T ranscript of the final hearing was filed with

DOAH on April 21, 2016. At the close of the hearing, the parties

were advised of the ten - day timeframe following DOAHÓs receipt of

the transcript to file post - hearing submittals. Following the

DepartmentÓs Unopposed Motion for Extension of Time to File

Proposed Recomm ended Order , filed on April 26, 2016, the parties

were given until May 12, 2016, to file proposed recommend ed

orders. Each party filed a P roposed R ecommended O rder that was

duly - considered in preparing this Recommended Order.

FINDING S OF FACT

1. The Flor ida Legislature created the Scholarship Program

during its 2015 Session. Through the 2015 General Appropriations

Act, the Legislature adopted proviso language in Specific

Appropriation 99A (ÐAppropriation 99AÑ) allocating $44,022,483.00

to Ðaward a maximu m of 4,402 teachers with a $10,000 scholarship

based on high academic achievement on the SAT or ACT.Ñ See

C h. 2015 - 232, § 2, 9 9A, at 27, Laws of Fla.

2. To be eligible to receive the scholarship, Appropriation

99A stated that, Ða teacher must have score d 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.Ñ 2/

3. Appropriation 99A further provided that an Ðeligible

teacherÑ was to apply to the employing school distri ct no later

than October 1, 2015. Thereafter, each school district was to

submit to the Department the number of eligible teachers who

qualified for the scholarship by December 1, 2015. By

February 1, 2016, the Department was to disburse scholarship

fun ds to each school district for each teacher who was to receive

the scholarship. By April 1, 2016, each school district was to

pay the scholarship award to each eligible teacher.

Appropriation 99A further stated that if the number of eligible

teachers exc eeded the total appropriated amount ($44,022,483.00),

the Department was to prorate the per teacher scholarship amount.

4. On September 3, 2015, Petitioner timely applied to the

School Board to receive the scholarship award under the

Scholarship Program.

5. On November 11, 2015, the School Board notified

Petitioner that it had been determined that she did not qualify

for the Scholarship Program. The School Board explained that

Petitioner was not a Ðclassroom teacher.Ñ Therefore, she was not

eligib le to receive the scholarship.

6. Petitioner is a first - year employee with the School

Board. The School Board hired her at the start of the 2015 - 2016

school year. The School Board hired Petitioner as a speech -

language pathologist.

7. Prior to working for the School Board, Petition er taught

in Fulton County, Georgia. One factor in her decision to accept

the School BoardÓs offer of employment and relocate to Florid a

was the Scholarship Program.

8. For the 2015 - 2016 school year, Petitioner entered into a

ÐProb ationary Contract of Employment for Instructional Personnel

of the Public SchoolsÑ with the School Board. 3/ Petitioner holds

a two - year, temporary teaching certificate issued by the

Department in the ar ea of Speech - Language Impaired.

9. For the 2015 - 2016 school year, the School Board assigned

Petitioner to work as a speech language pathologist at Brentwood

Elementary. All of PetitionerÓ s students were identified as

e xceptional s tudent e ducation or ÐESEÑ students.

10. At Brentwood Elementary, Petitioner led two class

subjects, Speech Therapy and Language Therapy. In her Speech

Therapy class, Petitioner addressed her studentsÓ problems with

speech and fluency ( e.g. , stuttering). PetitionerÓs Language

Therapy class focused on the content of what is being said ( i.e. ,

expressive and receptive language). Petitioner instructed

students in areas including reading, reading alo ud, and analysis.

11. Petitioner instructed a total of 25 students over six

class periods. Her classes consisted of small groups of two - to -

four students. PetitionerÓs students ranged in age from pre -

kin dergarten through fifth - grade.

12. For her six classes, Petitioner prepared daily lesson

plans. Her lesson plans targeted the goals and objectives on

each of her studentsÓ individualized education plans. She

aligned her lesson plans with Florida state standards. Some of

the state standa rds are general education grade - level standards,

and some are specific to speech or language therapy. Each lesson

plan included sections addressing ÐSet ting the Purpose for

Learning,Ñ ÐInstruction and Assessment,Ñ ÐTeacher Supported

Guided Instruction,Ñ and ÐApplication.Ñ Petitioner submitted her

lesson plans to her assistant principal for a quarterly review.

Petitioner was observed and evaluated by her assistant principal

using the same form used for evaluating other teachers at

Brentwood Elementary. Petitioner was observed and evaluated on

criteria related to the instruction she provided to her students

as well as the culture of her classroom.

13. Th e School Board reported that Petitioner is

ÐoutstandingÑ in her role and was doing Ða great jobÑ according

to the Brentwood Elementary administration. The School Board

further relayed that Ðthere is no question that [Petitioner] is

an up - and - coming great professional.Ñ

14. The School Board denied PetitionerÓs application

because it did not consider a speech language pathologist to be

eligible for the Scholarship Program. The School Board explained

that it understood the term ÐteacherÑ as used in Appropri ation

99A to mean a Ðclassroom teacherÑ as that term is defined in

section 1012.01(2)(a). The School Board did not believe that

Petitioner fit into the definition of a Ðclassroom teacher.Ñ The

School Board described a Ðclassroom teacherÑ as a Ðperson who is

in charge of the whole classroom who is doing the daily

instr uctional services to the kids.Ñ

15. In contrast to a Ðclassroom teacher,Ñ the School Board

considers speech - language pathology as a type of Ðrelated

service.Ñ Related services are services provided to exceptional -

education students to assist them in accessing and benefiting

from classroom instruction. The School Board considers its

Ðclassroom teachersÑ and speech language pathologists to possess

different skill - sets, bases of knowledge, and job goals and

responsibilities. Speech - language pathologists have a specific

role to support other teachers by helping student s meet their

educational goals.

16. The School Board described PetitionerÓs job duties as

Ðtherapeutic services.Ñ In general, speech - language pathologists

are professionals who assess, diagnose, and provide therapeutic

treatment for various speech, language, and hearing disorders.

In her role at Brentwood Elementary, Petitioner provided a

comprehensive program to her ESE student s to treat those

studentsÓ specific speech or language impairments. PetitionerÓs

Speech Therapy and Language Therapy classes were provided to two -

to - four students at a time who were evaluated and deemed to have

a disability that impacted their educational classroom

performance. Petitioner taught her selected students specific

skills or coping mechanisms that would allow them to overcome

their impairments in order to better access instruction and

curriculum. In other words, PetitionerÓs focus was to give her

students the ability to learn.

17. The School Board further explained that PetitionerÓs

Ðlesson plansÑ are referred to in the therapy setting as Ðplans

of care.Ñ Plans of care are similar in form to lesson plans

created by classroom teachers, but the y differ in substance.

Classroom teachersÓ lesson plans set forth strategies for an

educator to deliver instruction to an entire classroom. Speech -

language pathologistsÓ plans of care, on the other hand, set

forth tailored therapy plans that address an individual studentÓs

specific impairment. In addition, PetitionerÓs class roster is

referred to as a Ðcaseload.Ñ Furthermore, while the PetitionerÓs

Speech Therapy and Language Therapy classes were assigned course

codes similar to general education cours e codes, her two classes

were specially coded. PetitionerÓs students did not receive

course credit for attending her classes with the t herapy course

code designation.

18. Testimony at the final hearing, however, revealed that

in an academic setting the g oals and responsibilities of a

speech - language pathologist have objectives similar to a

Ðclassroom teacher Ós .Ñ Sonia Figare do - Alberts, the School

BoardÓs e xecutive director of pupil support s ervices, who is also

a speech - language pathologist, recognized t hat Petitioner Ðis

instructing students with communication disorders.Ñ

Ms. Figaredo - Alberts explained that Ðwe, as speech and language

pathologists assist with very specific targeted areas . . . we do

a very therapeutic intervention. WeÓre teaching [our students].

ThereÓs no question that our therapy is about teaching that

student specific skills . . . in a very thorough and specialized

area.Ñ

19. According to Appropriation 99A, the Legislature gave

the decision regarding a ÐteacherÓsÑ eligibility to r eceive a

scholarship to the school districts. Appropriation 99A directed

each Florida school district to receive teacher applications for

the Scholarship Program and to submit the number of eligible

teachers who qualified for the scholarship to the Depart ment.

20. While processing applications, several school districts

sent questions to the Department regarding the implementation of

the Scholarship Program. In particular, the Department received

inquiries regarding who should be considered a ÐteacherÑ fo r

purposes of the scholarship. Although the Department

administered the Scholarship Program, Appropriation 99A did not

grant the Department rulemaking authority. Therefore, the

Department did not adopt rules regarding what teachers were

eligible for the scholarship. The Department, however, did

prepare and issue a memorandum addressing school districtsÓ

commonly asked questions.

21. On July 27, 2015, Hershel Lyons, c hancellor of the

Division of Public Schools for the Department, issued a

memorandum enti tled ÐGuidance on Best and Brightest Teacher

ScholarshipÑ (the ÐMemorandumÑ) to the Florida School District

Superintendents. The Memorandum provided that Ð[t]eachers

eligible for the Best and Brightest Teachers Scholarship Program

are classroom teachers a s defined in [section] 1012.01(2)(a),

F.S., who are employed by Florida school districts, charter

schools, or the [Florida S chool for the Deaf and Blind].Ñ

22. The Department based its interpretation of the term

ÐteacherÑ on the various classes of employe es set forth in

section 1012.01(2)(a). The Department determined that the term

Ðclassroom teacherÑ in section 1012.01(2)(a) provided the best

definition of the word ÐteacherÑ for purposes of the Scholarship

Program.

23. On September 4, 2015, Chancellor L yons issued a second

memorandum to School District Superintendents with an attached

Frequently Asked Questions document. The Frequently Asked

Questions provided, in relevant part:

1. What are the eligibility criteria for the

Best and Brightest Teacher Sc holarship

Program?

In order to meet eligibility requirements for

the scholarship, the individual must:

a. Be a classroom teacher as defined in

section 1012.01(2)(a), Florida Statutes . . .

* * *

2. According to section 1012.01(2)(a), F.S.,

w hat is the definition of a classroom

teacher?

Classroom teachers are staff members assigned

the professional activity of instructing

students in co urses in classroom situations,

including basic instruction, exceptional

student education, career educatio n and adult

education, including substitute teachers.

24. Upon reviewing the Memorandum, the School Board

believed the Department confirmed its view that Ðclassroom

teachersÑ were the only individuals eligib le for the Scholarship

Program.

25. The Depart ment did not follow up to determine whether

any school district followed its guidance. The Department did

not believe that Appropriat ion 99A gave it that authority.

26. The Department received the names of 5,332 teachers

that the school districts determi ned were eligible for the

scholarship awards. Appropriation 99A directed the Department to

act as the fiscal agent for the Scholarship Program. As

Appropriation 99A directed, the Department disbursed scholarship

funds by February 1, 2016. 4/ The Departme nt prorated the

scholarship funds so that each eligible teacher received

approximately $8, 300.

27. Based on the evidence and testimony presented during

the final hearing, Petitioner proved, by a preponderance of the

evidence that she qualifies for the Sch olarship Program.

Accordingly, the School Board should take the necessary steps to

ensure that Petitioner receives the appropriate scholarship award

contained in Appropriations 99A.

CONCLUSIONS OF LAW

28. The Division of Administrative Hearings has

juris diction over the subject matter and parties pursuant to

sections 120.569 and 120.57(1) .

29. The School Board is a duly - constituted governing body

charged with the duty to operate, control, and supervise public

schools within Sarasota County, Florida. See Art. IX, § 4(b),

Fla. Const.; and §§ 1001.30 and 1001.33, Fla. Stat.

30. The Department acts as the administrative and

supervisory education agency under the direction of the State

Board of Education. See § 1001.20(1), Fla. Stat. The Department

is requ ired to Ðassist in providing professional leadership and

guidance and in carrying out the policies, procedures, and duties

authorized by law.Ñ £ 1001.20(2), Fla. Stat.

31. Petitioner challenges the School BoardÓs denial of her

application for a financial award under the Scholarship Program.

Absent specific statutory authority, the burden of proof is on

the party asserting the affirmative of an issue in an

administrative proceeding. See Antel v. Dep't of Prof'l Reg. ,

522 So. 2d 1056 (Fla. 5th DCA 1988); and Dep't of Transp. v.

J. W.C. Co. , 396 So. 2d 778 (Fla. 1s t DCA 1981).

32. The preponderance of the evidence standard is

applicable to this case. See § 120.57(1)(j), Fla. Stat.;

Dep't of Banking & Fin., Div. of Sec. & Investor Prot. v. Osborne

Stern & Co. , 670 So. 2d 932 (Fla. 1996). Preponderance of the

evidence is defined as Ðthe greater weight of the evidence,Ñ or

evidence that Ðmore likely than notÑ tends to prove a certain

proposition. S. Fla. Water Mgmt. v. RLI Live Oak, LLC ,

139 So. 3d 869, 872 (Fla. 2014); see also Dufour v. State , 69 So.

3d 235, 252 (Fla. 2011) (ÐPreponderance of evidence is defined as

evidence Òwhich as a whole shows that the fact sought to be

proved is more probable than not.ÓÑ) . Accordingly, Petitioner

carries the ultimate burden to prove, by a preponderance of the

evidence, that she is entitled to receive an award under the

Scholarship Program.

33. The Florida L egislature, through the 2015 General

Appropriations Act, created the Scholarship Program. See

Ch. 2015 - 232, § 2, 99A, at 27, Laws of Fla. The proviso language

in Appropriation 99A established the eligibility prerequisites

for the Scholarship Program. Appropriation 99A states:

99A SPECIAL CATEGORIES GRANTS AND AIDS -

THE FLORIDA BEST AND BRIGHTEST TEACHER

SCHOL ARSHIP PROGRAM

FRO M GENERAL REVENUE FUND . . .

44,022,483

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

based 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 th e 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 80t h 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,

20 15, 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 n umber of eligible teachers

who qualify for the scholarship. By

February 1, 2016, the department shall

disburse scholarship 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 t he number of

eligible teachers exceeds the total the

department shall prorate the per teacher

scholarship amount.

34. The parties agree that, except for the issue of

PetitionerÓs status as a Ðteacher,Ñ Petitioner is otherwise

eligible for a scholarship. Accordingly, the legal issue to

determine in this matter is whether Petitioner qualifies as a

ÐteacherÑ as the L egislature used the term in Appropriation 99A.

35. The facts establish that Petitioner, a speech - language

pathologist, is not a Ðclassroom tea cherÑ as defined by the

School Board. She does not teach a subject for which her

students receive academic credit. She does not teach a full

classroom. PetitionerÓs les son plans differ from those of

Ðclassroom teachers.Ñ PetitionerÓs Ðplans of careÑ ar e

individualized to treat a single studentÓs specific speech or

language impairment while Ðc lassroom teachersÓÑ lesson plans set

forth strategies to deliver instruction to an entire classroom.

36. However, the facts also establish that Petitioner does

ins truct students in a classroom setting at Brentwood Elementary.

She is assigned 25 students. Petitioner teaches two class

subjects. She is assigned six class periods. She prepares

lesson plans (Ðplans of careÑ) for each subject in accordance

with Florid a state standards. Petitioner inculcates her students

in certain academic skills including reading, reading

comprehension, and speech. Petitioner also holds a (temporary)

teaching certifi cate issued by the Department.

37. In reviewing Appropriation 99A, the undersigned

concludes that the term ÐteacherÑ is broad enough to encompass

Petitioner in her role at Brentwood Elementary. The Legislature

specifically used the term ÐteacherÑ to describe the individuals

it desired to be eligible for the Scholarship Program. The term

ÐteacherÑ means Ðteacher.Ñ The Legislature did not limit the

scholarship to just Ðclassroom teachers.Ñ Consequently, as

explained below, the undersigned determines that the School Board

should not restrict its employeesÓ eligibility fo r a scholarship

award to just Ð classroom teachers.Ñ

38. The resolution of this matter centers on statutory

interpretation. The interpretation of Appropriation 99A begins

with the question of whether the proviso language is clear and

unambiguous. ÐWhen c onstruing a statute, the court must first

look to the plain meaning of the words used by the Legislature.Ñ

Brandy's Prods. v. Dep't of Bus. & Prof'l Reg . , Div. of Alcoholic

Bev . & Tobacco , 188 So. 3d 130 , 2016 Fla. App. LEXIS 5244, *4

(Fla. 1st DCA 2016) (citing Verizon Bus. Purchasing, LLC v. Dep't

of Revenue , 164 So. 3d 806, 809 (Fla. 1st DCA 2015)); see also

W. Fla. Reg'l Med. Ctr., Inc. v. See , 79 So. 3d 1, 9 (Fla. 2012).

ÐWhen a statute is clear, a court may not look behind the

statute's plain langu age or resort to rules of statutory

construction to determine legislative intent.Ñ Dep't of High .

Saf . & Motor Veh . v. Peacock , 185 So. 3d 632, 633 (Fla. 1st DCA

2016) (citing State, Dep't of Rev . v. Lockheed Martin Corp. , 905

So. 2d 1017, 1020 (Fla. 1st DCA 20 05)).

39. ÐTo discern legislative intent, a court must look first

and foremost at the actual language used in the statute.Ñ

Larimore v. State , 2 So. 3d 101, 106 (Fla. 2008) . ÐThe

Legislature is assumed to know the meaning of the words used in a

st atute and to have expressed its intent through the use of the

words.Ñ Peacock , s upra , at 633. The actual language the

Legislature used in Appropriation 99A is clear and unambiguous.

40. Appropriation 99A does not define the term Ðteacher.Ñ

Where the L e gislature has not specifically defined the words used

in a statute, Ðthe language should be given its plain and

ordinary meaning.Ñ Greenfield v. Daniels , 51 So. 3d 421, 426

(Fla. 2010) (citing Sch . Bd. of Palm Beach C n ty . v. Survivors

Charter Schs . , Inc. , 3 So. 3d 1220, 1233 (Fla. 2009) (quoting

Fla. Birth - Related Neurological Injury Comp. Ass'n v. Fla. Div.

of Admin. Hr g s . , 686 So. 2d 1349, 1354 (Fla. 1997)). It is

appropriate to refer to a dictionary definition to ascertain the

plain and ordinary meanin g of a word used in a statute.

Survivors Charter Sch s . , s upra , at 1233.

41. The word ÐteacherÑ has a plain and ordinary meaning.

ÐTeacherÑ is defined as Ðone that teaches; especially: one whose

occupation is to instruct.Ñ ÐTeacherÑ also means Ða perso n who

passes on information or skill.Ñ MERRIAM - WEBSTER DICTIONARY, at

http://www.merriam - webster.com. See Seagrave v. State , 802 So.

2d 281, 286 (Fla. 2001) (ÐWhen necessary, the plain and ordinary

meaning of words [in a statute] can be ascertained by re ference

to a dictionary.Ñ); see also Raymond James Fin. Servs. v.

Phillips , 110 So. 3d 908, 910 (Fla. 2d DCA 2011) (ÐIt is

appropriate to refer to dictionary definitions when c onstruing

statutes or rules.Ñ) .

42. Based on the plain and ordinary meaning of the term

Ðteacher,Ñ Petitioner is eligible to participate in the

Scholarship Program. It is undisputed that Petitioner

ÐinstructsÑ the ESE students assigned to her at Brentwood

Elementary. Petitioner also Ðpasses on information or skillsÑ to

her students . Therefore, based on the common understanding of

the word Ðteacher,Ñ the undersigned concludes that the term

ÐteacherÑ as used in Appropriation 99A includes Petitioner.

43. The School Board (and the Department) interpret the

term Ðteacher , Ñ based on a d efinition set forth in section

1012.01(2)(a). Section 1012.01(2)(a) provides definitions for

c hapter 1012, the Personnel Chapter of the Florida Educator Code.

Section 1012.01 states, in pertinent part:

(2) INSTRUCTIONAL PERSONNEL. Ï

ÐInstructional perso nnelÑ means any K - 12

staff member whose function includes the

provision of direct instructional services to

students. Instructional personnel also

includes K - 12 personnel whose functions

provide direct support in the learning

process of students. Include d in the

classification of instructional personnel are

the following K - 12 personnel:

(a) Classroom teachers. Ï Classroom teachers

are staff members assigned the professional

activity of instructing students in courses

in classroom situations, including b asic

instruction, exceptional student education,

career education, and adult education,

including substitute teachers.

(b) Student personnel services. Ï Student

personnel services include staff members

responsible for: advising students with

regard to t heir abilities and aptitudes,

educational and occupational opportunities,

and personal and social adjustments;

providing placement services; performing

educational evaluations; and similar

functions. Included in this classification

are certified school co unselors, social

workers, career specialists, and school

psychologists.

* * *

(d) Other instructional staff. Ï Other

instructional staff are staff members who are

part of the instructional staff but are not

classified in one of the categories sp ecified

in paragraphs (a) - (c). Included in this

classification are primary specialists,

learning resource specialists, instructional

trainers, adjunct educators certified

pursuant to s. 1012.57 , and similar

positions.

44. Despite this definition available in section

1012.01(2), the School Board is not permitted to add the word

ÐclassroomÑ to Appropriation 99A that the Legislature did not

include therein. Ð[C]ourts are not at liberty to add words to

statutes that were not placed there by the Legislature.Ñ

Caceres v. Sedano's Supermarkets , 138 So. 3d 1224, 1225 (Fla. 1st

DCA 2014); see also L.G. v. State , 939 So. 2d 1141, 1143 (Fla.

1st DCA 2006) (ÐWhere the legislature has used a term in one part

of the statute and excluded it in another, it is improper to

imply the term in a provision where it has been otherwise

excluded.Ñ) If the drafters of Appropriation 99A h ad intended to

restrict the Scholarship Program to only Ðclassroom teachersÑ

instead of Ðteachers,Ñ the drafters would have specifically

included that extra word in the proviso language. Consequently,

section 1012.01(2)(a) does not support the School Boar dÓs

position that Ðclassroom teachersÑ are the only individuals

eligible for the Scholarship Program.

45. Even if the School Board could rely on section

1012.01(2) to interpret the term Ðteacher,Ñ the statutory

definition of Ðclassroom teacherÑ appears to support PetitionerÓs

claim. Parsing through the statutory language, the evidence in

the record demonstrates that Petitioner is a Ðstaff memberÑ of

Brentwood Elementary assigned a Ðprofessional activityÑ by the

School District. She ÐinstructsÑ students a ssigned to her. She

conducts Ðcourses in classroom situations.Ñ And, her courses are

specifically prepared for Ðexceptional student education.Ñ 5/

Further, the classification of education personnel set forth in

section 1012.01, makes no separate mention of personnel who

provide Ðrelated services.Ñ Accordingly, there is no legal

reason one who provides a Ðrelated serviceÑ cannot also be a

ÐteacherÑ for purposes of the Scholarship Program. 6 /

46. Notwithstanding the plain and ordinary meaning of the

term ÐteacherÑ in Appropriation 99A, the undersigned recognizes

that Florida courts defer to agency interpretation of their own

statutes. However, because the proviso language in Appropriation

99A is unambiguous and conveys a clear and definite meaning, the

co urt must apply that meaning even if it conflicts with the

interpretation of the statute adopted by the administrative

agency charged with enforcing it. See Muratti - Stuart v. Dep't of

Bus. & Prof'l Reg . , Constr. Indus. Licensing Bd. , 174 So. 3d 538,

540 (F la. 4th DCA 2015) (ÐAn agency's interpretation of a statute

is entitled to great deference unless the agency's interpretation

conflicts with the plain and ordinary meaning of the statute.Ñ);

Verizon Bus. Purchasing , 164 So. 3d at 812 (ÐJudicial deference

d oes not require that courts adopt an agency's interpretation of

a statute when the agency's interpretation cannot be reconciled

with the plain language of the statute.Ñ); Micjo, Inc. v. Dep't

of Bus. & Prof'l Reg . , 78 So. 3d 124, 126 - 27 (Fla. 2d DCA 2012)

(rejecting the agency's interpretation of the definition of

Ðwholesale sales priceÑ in section 210.25(13) , Florida Statutes

(2009) , because the interpretation was inconsistent with the

p lain language of the statute).

47. The undersigned also notes that, w hile the Legislature

tasked the Department with disbursing the scholarship funds,

Appropriation 99A did not grant the Department with rulemaking

authority over the Scholarship Program. As the Department

repeatedly stressed, the Memorandum it issued offeri ng a

suggested definition for ÐteacherÑ was simply guidance to the

school districts. Consequently, the School Board is not

obligated to foll ow the DepartmentÓs Memorandum.

48. Finally, the School Board (and the Department) suggest

that language in the 20 16 General Appropriations Act can be used

to interpret the term ÐteacherÑ in Appropriation 99A. During its

2016 Session, the Legislature enacted section 1012.731, Florida

Statutes (2016), entitled ÐThe Florida Best and Brightest Teacher

Scholarship Progra m.Ñ See C h . 2016 - 62, Laws of Fla . , § 25, at

33 - 34 (ÐSection 25Ñ). Through Section 25, the Legislature

allocated funds to award scholarships to Ðclassroom teachers, as

defined in s. 1012.01(2)(a).Ñ 7 /

49. The School BoardÓs argument, however, is not

pers uasive. The undersigned recognizes that, to interpret

ambiguous statut ory language , legislation enacted in subsequent

legislative sessions may be examined to discern legislative

intent. See Dadeland Depot, Inc. v. Paul Fire & Marine Ins. Co. ,

945 So. 2d 1216, 1230 (Fla. 2006) . However, Section 25 contains

no express language that the Legislature intended the proviso

language in the 2016 Scholarship Program to apply retroactively

to the 2015 Scholarship Program. Neith er does Section 25 contain

any l egisl ative expression that Appropriation 99A was incorrectly

implemented or misapplied. The undersigned considers the 2016

enactment a new/renewal of the Scholarship Program, not a

ÐclarificationÑ of the funds the Legislature specifically

appropriated in 2015. See e.g. , D & T Props. v. Marina Grande

Assocs. , 985 So. 2d 43, 47 (Fla. 4th DCA 2008) (ÐWhere the

legislature expressly characterizes the intent of legislation, it

is especially appropriate to consider the amended statute to

determine the original legis lative intent of the statute.Ñ)

Consequently, the undersigned concludes that Appropriation 99A

means what its text most appropriately conveys, that the term

ÐteacherÑ means ÐteacherÑ and is not restricted to Ðclassroom

teacher.Ñ

50. In applying the clear and unambiguous language of

Appropriation 99A, the undersigned concludes that, as a matter of

law, the Legislature intended the Scholarship Program to be open

to all ÐteachersÑ and not restricted to just Ðclassroom

teachers.Ñ Based on the competent subst antial evidence in the

record, Petitioner demonstrated that she serves as a ÐteacherÑ in

her role at Brentwood Elementary. Accordingly, Petitioner has

met her burden of proving, by a preponderance of the evidence,

that she is entitled to a scholarship und er the Scholarship

Program.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the School Board of Sarasota County,

Florida, issue a final order fulfilling its responsibilities

under Appropriation 99A, i.e . , submitting PetitionerÓs name to

the Department of Education as a teacher eligible for the

scholarship created by the 2015 Florida Best and Brightest

Teacher Scholarship Program.

DONE AND ENTERED this 13 th day of June , 2016 , in

Tallahassee, Leon County, Florida.

S

J. BRUCE CULPEPPER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.sta te.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 13 th day of June, 2016 .

ENDNOTE S

1/ All statutory references are to the 201 5 Florida Statutes,

unless otherwise noted.

2/ The proviso language also stated that a teacher m ust have been

evaluated as highly effective pursuant to section 1012.34,

Florida Statutes, unless the teacher was a first - year teacher who

had not yet been evaluated under that section. Pet itioner, as a

first - year teacher at the time she applied, had not been

evaluated under section 1012.34. Therefore, her only requirement

for the scholarship award was to have the requisite SAT or the

ACT score at or above the 80th percentile. Petitioner took the

SAT in 2004. Petitioner scored a 98 percent on her verbal test

and an 89 percent on her math test. The School Board does not

dispute that Petitioner met all the eligibility requirements for

the scholarship aside from the question of whether the School

Board should consider her a ÐteacherÑ for purposes of

partic ipating in the Scholarship Program.

3/ This contract refers to Petitioner as a ÐTeacher.Ñ

4/ Funds appropriated to the Scholarship Program became available

on July 1, 2015. See C h . 2015 - 232, § 113 , Laws of Fla .

5/ The fact that the Legislature specif ically included

Ðexceptional special educationÑ in the statutory definition of

Ðclassroom teacherÑ in section 1012.01(2)(a) shows the value the

Legislature places on instructing ESE students , as well as those

individuals who provide them the specialized in struction they

need to achieve their educational goals. By opening the

Scholarship Program to Ðteachers,Ñ the Legislature expressed its

intent that those teachers who instruct ESE students Ðin

classroom situationsÑ should receive the same scholarship

oppo rtunity as those teachers who lead more traditional course

subjects.

6 / The undersigned finds the facts of this matter are unique to

this case and distinguishable from the factual findings and

conclusions in the Recommended Order in Andrew v. Sarasota C o u nty

Sch ool B oar d , Case No. 15 - 7041, ( Fla. DOAH Apr. 8, 2016). Along

with the factors listed in paragraph 36, the School Board

representative specifically acknowledged that Petitioner

ÐinstructsÑ and ÐteachesÑ the ESE students assigned to her

classes. Ad ditionally, the Petitioner in Andrew did not hold a

teaching certificate.

7 / See section 1012.731(2), effective July 1, 2016.

COPIES FURNISHED:

Arthur S. Hardy, Esquire

Matthews Eastmoore

Suite 300

1626 Ringling Boulevard

Sarasota, Florida 34236 - 6815

(eServed)

Ronald G. Meyer, Esquire

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

Post Office Box 1547

131 North Gadsden Street (32301)

Tallahassee, Florida 32302

(eServed)

Margaret R. Good, Esquire

Matthews Eastmoore

Suite 300

1626 Ringling Boulevard

Sarasota, Florida 34236

(eServed)

Daniel Terrence Gaffney, Esquire

Florida Department of Education

Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

David L. Jordan, Esquire

Department of Education

Suite 1244

325 West Gaines Street

Talla hassee, Florida 32399 - 0400

(eServed)

Lynn C. Hearn, Esquire

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

Post Office Box 1547

131 North Gadsden Street

Tallahassee, Florida 32302

(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 Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Matthew Mears, General Counsel

Department of Education

Tur lington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

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 exce ptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.