THE FLORIDA EDUCATIONAL                                               

NEGOTIATORS

 

(850)414-2587  (850)414-2585 FAX

SUNCOM 994-2587 SUNCOM FAX 994-2585

 

Volume II………………….Winter 2004

 

FEN Members:

 

            The 24^th Annual Spring Training Program will be held on May 11-14, 2004.  The first general session will begin on Wednesday morning, May 12.  The location of the conference is at the Adam’s Mark Hotel in Daytona Beach.  This is the ONLY training program specifically designed for Florida school board negotiators.  Superintendents, school board members and bargaining team members are encouraged to attend as well.

Mark you calendar now.  More information will be published soon.

 

The following article is reprinted with permission from the National Public Employer Labor Relations Association.  It appeared in the November 2003 issue.

 

EEOC Finds Age Based DROP Program in Violation of Age Discrimination Act

 

The EEOC recently determined that there is reasonable cause to believe that the Deferred Retirement Option Program (DROP) offered to City of Fort Lauderdale Police Officers and Firefighters violates the federal Age Discrimination in Employment Act (ADEA).  The DROP is a voluntary early retirement incentive program.  It allows employees who meet eligibility criteria based upon age and years of service to freeze their future retirement benefits, “retire” and begin receiving normal retirement benefits while continuing to work at full pay and benefits until a predetermined date up to sixty (60) months in the future.  During the DROP period the employee’s monthly retirement checks are accumulated in a tax-deferred account and disbursed to the employee in lump sum upon cessation of City employment.

The City’s program allows employees the option to retire or to enter DROP at any age with twenty (20) years of service.  Employees who reach twenty (20) years of service and age forty-five (45) or older must make a choice between delaying the DROP election in favor of accruing higher normal retirement benefits or losing one month of DROP participation for each month the DROP election is delayed.  This feature is common to early retirement incentive plans around the country, including the DROP offered by the Florida Retirement System.

EEOC charges were filed against the City by employees who claim that the DROP discriminates against workers who are older at the time of hire.  They contend that the ADEA requires the City to permit them to continue working until they reach maximum normal retirement benefits (81% of pensionable salary at 23.9 years of service) and then allow them to participate in DROP for an additional sixty (60) months.  This legal interpretation, if upheld in the courts, will completely negate the purpose of DROP as a voluntary early retirement incentive program.

Nonetheless, the EEOC has apparently agreed with the view that any DROP plan that requires employees to join when first eligible based upon age and years of service, or lose DROP participation time, unlawfully discriminates against older workers.  As a practical matter, the EEOC’s position would invalidate all purely voluntary DROP retirement options where eligibility is based in whole or in part upon an employee’s normal retirement date or age.

 

 

State of Florida

Division of Administrative Hearings

Case No. 03-3167

 

Escambia County School Board

            Petitioner

vs

 

Joe Bernard

            Respondent

 

            Order

 

            This cause comes before the undersigned on a Motion to Dismiss Filed by the Escambia County School Board (ESCB). 

            The Respondent, Joe Bernard, was employed as the ECSB’s Risk Management Director pursuant to a twelve month non-instructional contract which expired June 30, 2003.  Superintendent Paul failed to re-nominate Bernard for a contract of employment for the 2003-2004 school year and informed him of that decision by letter of May 9, 2003.  Thus, the superintendent never tendered a nomination or re-nomination to the ECSB of Mr. Bernard as the school district’s Risk Manager.  Therefore, the ECSB had no occasion to consider whether Bernard should be re-employed for the 2003-2004 school year.

            With respect to the employment of personnel, it is the duty of the superintendent to select and nominate personnel, then make a recommendation to the school board, which must either accept the recommendation, or else reject the nomination for “good cause.”

            The ECSB never received a recommendation from Superintendent Paul with respect to Bernard’s employment as the school district’s risk management director for the 2003-2004 school year or beyond.  The superintendent simply allowed the twelve-month contract to lapse and took no further action to re-nominate or recommend for another contract of employment.  The superintendent’s decision in this regard was his alone, and the ECSB was precluded as matter of law from interfering with his actions or from proactively rehiring or securing Bernard’s continued employment beyond the 2002-2003 school year.

            Even if the ECSB wanted Bernard to receive a new appointment as the School District’s Risk Management Director, under the Florida School Code, it was powerless to act without having first received a recommendation from Superintendent Paul.  The decision to renew or not renew Bernard’s employment, whatever the reasons, was Superintendent Paul’s alone.  The May 9, 2003 letter informing Bernard that he would not be re-hired for the 2003-2004 school year was an order issued by Superintendent Paul, acting pursuant to his exclusive statutory authority in Section

1012.22 (1) (a) 3., Florida Statutes.  Accordingly, Bernard’s request for an administrative hearing naming the Escambia County School Board as one of the entities responsible for his alleged injury is misdirected.

            The ECSB has not taken any action affecting Bernard’s substantial interests.  To the extent Bernard is entitled to an administrative hearing, he may only proceed against the Superintendent, the agency that allegedly caused him the injury.  Thus the Petition should be dismissed as to the ECSB and should be amended to reflect that the Superintendent is the correct party taking initial agency action as to this proceeding.  Accordingly, it is

            ORDERED

            That the Petition is hereby dismissed, with the Respondent, Joe Bernard, being accorded a period of 20 days in which to submit an amended petition if he desires, naming the Superintendent of Public Instruction, Mr. Paul, as a party.

 

            Mr. Bernard resubmitted an amended petition, and the hearing was conducted on January 29, 2004.  The outcome of the hearing will be shared in a subsequent report.

 

Special Report—Career Ladder

 

            The career ladder plan format was released to school districts on January 8.  Many districts are using the proposals from the pilot districts to obtain ideas in writing their plans.  As you are aware, the deadline for submission to the State Board of Education is March 1.  Of course that is only the beginning.  The real challenge is the negotiations which will follow with your bargaining agent.

            Funding continues to be a major concern.  As of this date, there are no plans for “additional” funds from the state legislature.

________________________________________________________________________

 

CITATION DISCLAIMER -   The summary for any cases should not be cited.  For that purpose, the cases may be acquired by contacting FSLRS or PERC.  You are encouraged to contact labor relations officials or their attorneys for details on specific cases.

Information provided herein is with the understanding that FSLRS is not engaged in rendering legal service.  If legal advice or assistance is required, please contact your attorney.