Broward Teachers Union, Local 1975, Florida Education Association (FEA), American Federation of Teachers (AFT) v. The School Board of Broward County, Florida

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT

BROWARD TEACHERS UNION, LOCAL 1975, FLORIDA EDUCATION
ASSOCIATION (FEA), AMERICAN FEDERATION OF TEACHERS (AFT),
NATIONAL EDUCATION ASSOCIATION (NEA), AMERICAN
FEDERATION OF LABOR/CONGRESS OF INDUSTRIAL
ORGANIZATIONS (AFL-CIO),
Appellants,

v.

THE SCHOOL BOARD OF BROWARD COUNTY, FLORIDA,
Appellee.

No. 4D15-1910

[June 22, 2016]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; John B. Bowman, Judge; L.T. Case No. CACE-14-
017594-2.

Philip J. Padovano of Brannock & Humphries, Tampa, and Pamela L.
Cooper, Tallahassee, for appellant, Florida Education Association.

Douglas G. Griffin, Assistant General Counsel, The School Board of
Broward County, Fort Lauderdale, for appellee.

GROSS, J.

Broward Teachers Union appeals from a final judgment on the
pleadings entered in favor of the School Board of Broward County.
The facts of this close case are undisputed. The single issue presented
concerns the meaning of a statutory provision, which provides that
teachers “on annual contract as of July 1, 2014, shall be placed on the
performance salary schedule . . . .” § 1012.22(1)(c)4.a., Fla. Stat. (2014).
The Union interprets the provision to mean that only those teachers
hired on or after July 1, 2014, are to be placed on the performance salary
schedule, while the Board’s interpretation is that those teachers on annual
contract at the time of the effective date are to be put on the performance
salary schedule.
 We affirm and write to address the circuit court’s adoption of the
Board’s statutory interpretation.
Factual Background

In 2011, the Florida legislature added two salary schedule provisions
to subsection 1012.22(1)(c) of Chapter 1012, Florida Statutes—the
grandfathered salary schedule and the performance salary schedule. The
new provisions went into effect in 2014. The grandfathered salary
schedule provision identifies those employees entitled to remain on the
earlier salary schedule and those who would be compelled to move to a
performance salary schedule.

In early 2014, the parties met to address the implementation of the new
performance salary schedule. A disagreement emerged concerning
whether the new performance salary schedule provisions would apply to
employees hired by the School Board before July 1, 2014. The Union
interpreted the new provisions to apply only to personnel hired on or after
July 1, 2014, while the Board interpreted the same provisions to apply to
employees previously hired but still employed as of the effective date.

The Union sought declaratory relief against the Board. The Board’s
answer admitted all the factual allegations of the Union’s complaint. The
Union moved for a judgment on the pleadings because the action turned
“solely on the proper interpretation of the statute in question” and was
thus a “pure question of law.” The Board cross moved for judgment on the
pleadings. The trial court sided with the Board and declared that section
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requires the School Board of Broward County, Florida,
(“School Board”) to place every teacher who was on annual
contract status as of July 1, 2014, on the School Board’s
performance salary schedule, including those teachers on
annual contract status on that date who were hired by the
School Board prior to July 1, 2014.

Standard of Review
Both an order granting judgment on the pleadings and questions of
statutory interpretation are reviewed de novo. See Newsome v. GEO Grp.,
Inc., 72 So. 3d 168, 170 (Fla. 4th DCA 2011); Fla. Dep’t of Transp. v. Clipper
Bay Invs., LLC, 160 So. 3d 858, 862 (Fla. 2015).
The Relevant Statutes

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 Section 1012.22, Florida Statutes, was amended in 2011, as a part of
the Student Success Act (“the Act”), to add the grandfathered salary
schedule and the performance salary schedule provisions. See Ch. 2011-
1, Laws of Fla. To properly evaluate the disputed provision, it helps to
define several key terms.
“‘Instructional personnel’ 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.” § 1012.01(2),
Fla. Stat. (2014). Instructional personnel include classroom teachers,
student personnel services (guidance counselors), librarians, and other
instructional staff like learning resource specialists. Id. Other kinds of
employees include administrative personnel, “who perform management
activities.” § 1012.01(3). These include district school superintendents,
principals, and career center directors. Id.
There are three types of contracts for teachers―a continuing contract,
a professional services contract, and an annual contract. A continuing
contract is a status an employee had “prior to July 1, 1984,” entitling the
employee “to retain such contract and all rights arising therefrom as
prescribed by rules of the State Board of Education adopted pursuant to
s. 231.36, Florida Statutes (1981), unless the employee voluntarily
relinquishes his or her continuing contract.” § 1012.33(4)(a), Fla. Stat.
(2014).
A professional service contract is one which requires “a professional
certificate covering the classification, level, and area for which the
applicant is deemed qualified . . . .” § 1012.56(1)(a), Fla. Stat. (2014).
“Each member of the instructional staff who completes [certain]
requirements on or after July 1, 1984, shall be entitled to and shall be
issued a professional service contract . . . .” § 1012.33(3)(a), Fla. Stat.
(2010). Such contract “shall be renewed each year unless the district
school superintendent, after receiving the recommendations under s.
1012.34, charges the employee with unsatisfactory performance and
notifies of performance deficiencies . . . .” § 1012.33(3)(a), Fla. Stat. (2014).
The 2010 version of section 1012.33(3)(a) provided that “[e]ach district
school board shall provide a professional service contract as prescribed
herein.” The 2011 amendments did away with that provision.
Section 1012.335, Florida Statutes, entitled “Contracts with
instructional personnel hired on or after July 1, 2011,” was also created
in 2011 as a part of the Act. The statute provided that, beginning on July
1, 2011, “each individual newly hired as instructional personnel by the
district school board shall be awarded a probationary contract. §

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1012.335(2)(a), Fla. Stat. (2014). Upon successful completion of the
probationary contract, the district school board may award an annual
contract. . . . ” Id. An annual contract is an “employment contract for a
period of no longer than 1 school year which the district school board may
choose to award or not award without cause.” § 1012.335(1)(a).
Thus, under the Act, teachers hired on or after July 1, 2011, were given
annual contracts which may or may not be renewed the following school
year. The second district explained the effects of the 2011 changes to
teacher contracts:
[S]chool boards are no longer authorized to issue professional
service contracts. Instead, the only contracts school boards
are authorized to issue to members of their instructional staffs
are probationary contracts for new hires and annual contracts
for all others. To put it simply, tenure is no longer available
for members of a school board’s instructional staff hired on or
after July 1, 2011.
Gabriele v. Sch. Bd. of Manatee Cty., 114 So. 3d 477, 479 n.1 (Fla. 2d DCA
2013) (internal citation omitted).
Finally, the Act amended section 1012.22, adding the grandfathered
salary schedule and performance salary schedule provisions under
subsection (1)(c), entitled “Compensation and salary schedules.” The
“‘Grandfathered salary schedule’ means the salary schedule or schedules
adopted by a district school board before July 1, 2014 . . . .” §
1012.22(1)(c)1.b. “‘Performance salary schedule’ means the salary
schedule or schedules adopted by a district school board pursuant to
subparagraph 5” of section 1012.22. § 1012.22(1)(c)1.d.
The grandfathered salary schedule (hereinafter “the grandfathered
provision”), the statute here at issue, provides:
(1)(c)4. Grandfathered salary schedule.—
a. The district school board shall adopt a salary
schedule or salary schedules to be used as the basis
for paying all school employees hired before July 1,
2014. Instructional personnel on annual contracts
as of July 1, 2014, shall be placed on the
performance salary schedule adopted under
subparagraph 5. Instructional personnel on
continuing contract or professional service contract
may opt into the performance salary schedule if the
employee relinquishes such contract and agrees to
be employed on an annual contract under s.

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 1012.335. Such an employee shall be placed on the
performance salary schedule and may not return to
continuing contract or professional service contract
status. Any employee who opts into the performance
salary schedule may not return to the grandfathered
salary schedule.
§ 1012.22(1)(c)4. (emphasis added).
The performance salary schedule provision (hereinafter “the
performance provision”) provides:
5. Performance salary schedule.--By July 1, 2014, the
district school board shall adopt a performance salary
schedule that provides annual salary adjustments for
instructional personnel and school administrators based
upon performance determined under s. 1012.34.
Employees hired on or after July 1, 2014, or employees who
choose to move from the grandfathered salary schedule to the
performance salary schedule shall be compensated pursuant
to the performance salary schedule once they have received
the appropriate performance evaluation for this purpose.
However, a classroom teacher whose performance evaluation
utilizes student learning growth measures established under
s. 1012.34(7)(e)1 shall remain under the grandfathered salary
schedule until his or her teaching assignment changes to a
subject for which there is an assessment or the school district
establishes equally appropriate measures of student learning
growth as defined under s. 1012.34 and rules of the State
Board of Education.
§ 1012.22(1)(c)5. (emphasis added).
Thus, although much of the Act went into effect in 2011, section
1012.22(1)(c)5. gave the school boards until July 1, 2014, to adopt “a
performance salary schedule that provides annual salary adjustments for
instructional personnel and school administrators based upon
performance . . . .” § 1012.22(1)(c)5.
The Act was a legislative value judgment that injected performance
evaluations into the educational system. The Act’s introduction stated
that it was amending certain section 1012.22 provisions “relating to
instructional personnel and school administrator compensation and
salary schedules; providing requirements for a performance salary
schedule, a grandfathered salary schedule . . . .” Ch. 2011-1, at 1, Laws
of Fla. The Act sets forth, at length, the new performance evaluation upon

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which teachers are to be assessed. It also laid out the newly proposed
compensation and salary schedules. The Act begins by explaining the
rationale for the changes made to section 1012.34 “Personnel evaluation
procedures and criteria:”
For the purpose of increasing student learning growth by
improving the quality of instructional, administrative,
and supervisory services in the public schools of the state,
the district school superintendent shall establish procedures
for evaluating the performance of duties and responsibilities
of all instructional, administrative, and supervisory personnel
employed by the school district.
Ch. 2011-1, § 2, at 2, Laws of Fla. (emphasis added).
The Parties’ Arguments
The circuit court’s interpretation of the grandfathered provision places
those teachers on annual contract as of July 1, 2014, on the performance
salary schedule. Teachers on continuing contract or professional services
contract remain on the grandfathered salary schedule.
Both parties make plain meaning arguments. Where a statute is “clear
and unambiguous and conveys a clear and definite meaning . . . the
statute must be given its plain and obvious meaning.” Holly v. Auld, 450
So. 2d 217, 219 (Fla. 1984) (quoting A.R. Douglass, Inc. v. McRainey, 137
So. 157, 159 (Fla. 1931)).

The Union contends that the first sentence of the grandfathered
provision—specifically the clause that states “all school employees hired
before July 1, 2014”—applies to all employees hired before that date, so
that all pre-July 1, 2014, hires qualified for the grandfathered salary
schedule. The Union further argues that the trial court failed to ascribe
any meaning to the first sentence, and instead relied upon the second
sentence of the provision, which it says is ambiguous.

The Board conversely argues that the second and third sentences of the
grandfathered provision modify and expand upon the first sentence. It
asserts that the trial court’s interpretation is supported by the plain and
ordinary meaning of the entire grandfathered provision.

Discussion

The Board’s interpretation of the entire grandfathered provision is
consistent with its plain and ordinary meaning. The first sentence is
crucial: “The district school board shall adopt a salary schedule or salary

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schedules to be used as the basis for paying all school employees hired
before July 1, 2014.” § 1012.22(1)(c)4.a. (emphasis added). This sentence
merely directs the school boards to create “a” salary schedule for all of its
employees. It does not specify what type of salary schedule—the
performance-based or the grandfathered—must be adopted.

The sentences after the first sentence describe how a salary schedule
will be implemented. As the Board correctly argues, the second and third
sentences of subsection (1)(c)4. expand upon the first sentence by
providing which teachers will continue under the grandfathered salary
schedule and which will be transferred to the new performance based
salary schedule.

After the first sentence states that the school boards “shall” adopt
salary schedules for all employees, the grandfathered provision continues
on to provide: “Instructional personnel on annual contract as of July 1,
2014, shall be placed on the performance salary schedule adopted under
subparagraph 5. Instructional personnel on continuing contract or
professional service contract may opt into the performance salary schedule
. . . .” if they so choose. Reading the first three sentences of the provision
together, as we must, the second and third sentences are not in conflict
with the substance of the first sentence; they specify precisely the type of
salary schedule upon which different instructional personnel are to be
placed. The Union’s attempt to tease ambiguity into the provision does
not find support from a plain meaning of the entire provision.

The Union focuses on the first sentence of the grandfathered provision
that mentions “all employees,” and argues that an annual contract teacher
who worked for the Board in a previous year is necessarily an “employee”
who was “hired” by the Board on or before the effective date of the new
law. However, this argument neglects the statutory definition of an
“annual contract.”

Beginning on July 1, 2011, all newly hired teachers were awarded a
probationary contract. § 1012.335(2)(a). Once that probationary term was
successfully completed, they were then awarded an annual contract. As
explained above, an annual contract is “an employment contract for a
period of no longer than 1 school year which the district school board may
choose to award or not award without cause.” § 1012.335(1)(a). Thus, a
teacher on annual contract is not, as the Union asserts, an “employee”
who was hired before the effective date, because they would only be an
employee for the school year, at which point they could potentially not be
re-hired. See Gabriele, 114 So. 3d at 479 (“Annual contracts expire at the

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end of the school year. Accordingly, a teacher employed under an annual
contract has no right to reemployment.” (citation omitted)).

To further advocate for its interpretation, the Union points to the
performance provision of section 1012.22. The second sentence of that
provision provides: “Employees hired on or after July 1, 2014, or
employees who choose to move from the grandfathered salary schedule
shall be compensated pursuant to the performance salary schedule once
they have received the appropriate performance evaluation for this
purpose.” (emphasis added). The Union argues that this sentence makes
it clear that “the performance salary schedule applies to employees hired
on or after July 1, 2014.”

This sentence must be read in the context of the entire statute. The
first sentence of the performance salary schedule provision provides: “By
July 1, 2014, the district school board shall adopt a performance salary
schedule that provides annual salary adjustments for instructional
personnel and school administrators based upon performance determined
under s. 1012.34.” The second sentence continues on to provide that all
employees hired on or after the applicable date or those employees who
choose to move from the grandfathered schedule, shall be compensated
pursuant to the performance schedule once they have been evaluated.

This provision is consistent with the grandfathered provision. Although
the Act was originally enacted in 2011, the school boards were given until
2014 to adopt a performance salary schedule. And the focal point of the
second sentence in the performance provision, providing for employees
hired after the effective date, is on the placement of these employees on
the performance schedule once they have received the proper evaluation.
Thus, the focus of the performance provision is on the mechanics of the
performance salary schedule and when the teacher’s performance
evaluation is triggered, and less about which personnel will be placed on
the schedule. This phase-in process is further evidenced by the last
sentence of the performance provision:

However, a classroom teacher whose performance evaluation
utilizes student learning growth measures . . . shall remain
under the grandfathered salary schedule until his or her
teaching assignment changes to a subject for which there is
an assessment or the school district establishes equally
appropriate measures of student learning growth as defined
under s. 1012.34 and rules of the State Board of Education.

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§ 1012.22(1)(c)5. 1

Moreover, both the grandfathered provision and the performance
provisions are included within subsection (1)(c) of the statute—
“Compensation and salary schedules.” The grandfathered provision
describes which employees will be grandfathered into the salary schedule
in place before July 1, 2014, and which of those instructional personnel
(teachers) will be transitioned into the performance schedule. It explicitly
sets forth that teachers on annual contract as of July 1, 2014, will be put
on the performance salary schedule and states that teachers on continuing
or professional contract have the choice to opt into the performance salary
schedule. The performance provision then directs the school boards to
adopt such a salary schedule that provides annual salary adjustments
based on performance evaluations. It continues to set forth when new
hires (hires on or after July 1, 2014) and teachers who teach in a subject
for which there is no performance assessment begin to be compensated
under the performance salary schedule. This makes sense, because it
would be impossible to pay either of these two groups in accordance with
the performance salary schedule without their performances first being
evaluated.

Finally, in the grandfathered provision, the second sentence places
teachers on annual contract as of July 1, 2014 on the performance salary
schedule. However, in the performance provision, the legislature used “on
or after” when talking about new hires or those employees on the
grandfathered plan who could move to the performance salary schedule
after a performance evaluation. Thus, the legislature’s failure to utilize
“on or after” in the grandfathered provision was not an oversight.

The Board’s reading of the statute is consistent with the expressed goal
of the Act. It was created “[f]or the purpose of increasing student learning
growth by improving the quality of instructional, administrative, and
supervisory services in the public schools of the state.” Ch. 2011-1, § 2, at
2, Laws of Fla. The Legislature’s value judgment was that students would
be best served by being taught by teachers who are paid based on their

1 We note that, effective May 10, 2016, this last sentence of the performance
provision was deleted. It was deleted pursuant to Florida Senate Bill 1038, a
Reviser’s Bill, which deleted numerous provisions from various statutes “that
have expired, have become obsolete, have had their effect, have served their
purpose, or have been impliedly repealed or superseded.” Ch. 2016-10, at 1, Laws
of Fla. At any rate, its inclusion in the original version of the provision supports
our interpretation that the purpose of the performance provision is to explain the
phase-in process after evaluations are conducted.

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performance. To construe the statute to exclude a significant number of
existing teachers from performance based evaluation criteria would
undermine the expressed legislative intent.

Affirmed.

FORST and KLINGENSMITH, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

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