STATE OF NORTH CAROLINA



STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF ONSLOW 07 EDC 0539

| |) | |

|Jayne Ellen Miller |)) | |

|Petitioner |))))| |

| |) | |

|vs. |) |DECISION |

| | | |

|Public Schools of North Carolina | | |

|Respondent | | |

This cause came on to be heard on October 26, 2007, before the undersigned Administrative Law Judge. Having heard and considered the testimony and other evidence presented, the Undersigned makes the following Findings of Fact and Conclusions of Law:

APPEARANCES

For Petitioner: Jayne Miller, pro se

603 Huff Drive

Jacksonville, NC 28546

For Respondent: Laura E. Crumpler

Assistant Attorney General

NC Department of Justice

PO Box 629

Raleigh, NC 27602

ISSUE

Whether the Petitioner met her burden to show that the Respondent erroneously denied her request for graduate pay.

STATUTE TO BE CONSTRUED

N.C. Gen Stat. sec. 150B-23; 115C-296; and State Board of Education Policy QP-A-006.

FINDINGS OF FACT

1. N.C. General Statute §115C-296(a) provides, in pertinent part, as follows:

The State Board of Education shall have entire control of certifying all applicants for teaching positions in all public elementary and high schools of North Carolina; and it shall prescribe the rules and regulations for the renewal and extension of all certificates and shall determine and fix the salary for each grade and type of certificate which it authorizes. . . .

G.S. 115C-296(a)

2. Pursuant to its statutory authority to “determine and fix the salary for each grade and type of certificate which it authorizes,” the State Board of Education (hereinafter the “SBE”) has adopted a policy, QP-A-006, entitled “Policies related to Experience/Degree Credit for Salary Purposes.”

3. The policy recognizes that educators employed in the public schools may be awarded salary credit for past employment experience as well as for certain graduate degrees. Generally, the salary credit falls into three main categories: prior experience as a teacher; prior work experience that is non-teaching in nature; and possession of a graduate degree.

4. In order to be eligible to receive credit for a graduate degree, the degree must meet several criteria. The critical factor for deciding whether to award salary credit for a graduate degree, however, is whether that degree is “directly related” to an individual’s area of licensure and work assignment. In addition, the teacher must show that her assignment “for the majority (50% or more) of the school day is in the area for which the master’s or higher degree applies.” SBE Policy QP-A-006.50

5. Petitioner’s license was renewed by the North Carolina Department of Public Instruction (hereinafter DPI) on July 1, 2006, and she was credited with thirteen (13) years of experience. She has received credit for and is being paid for her master’s degree.

6. Petitioner was employed as a Guidance Counselor with the Craven County Schools in July, 2002, and she was assigned to Havelock High School. Petitioner is currently employed with the Onslow County Schools. She is a Counselor and Testing Coordinator with the Onslow County Learning Center, the county’s alternative school, where she has been assigned since 2004. Petitioner has a school counselor’s license.

7. Petitioner initially made a request to Respondent through her employment with Craven County Schools to recognize her Doctorate in Higher Education Administration for the purpose of placing her on the graduate pay scale.

8. On August 13, 2002, Petitioner’s request was denied by staff at the Department of Public Instruction Licensure Section on the grounds that Petitioner’s doctorate’s degree is not directly related to her area of licensure or assignment.

9. Staff in the Licensure Section receives extensive training in how to analyze applications for experience and graduate credit.

10. The key phrase herein is “directly related” as is required by the State Board of Education policy. This is a nebulous concept which is applied in a highly subjective manner. Despite extensive training within the Licensure Section, it seems that this phrase escapes precise definition. Christy Lane, who has been with the Licensure Section for five (5) years as a “specialist”, was incapable of defining the term and, in fact, used the phrase in trying to define it. This Court finds, as it has previously in other cases, that the policy is ill defined and that the Respondent’s attitude that “we know it when we see it” as applied to the concept of “directly related” is not and should not be an acceptable standard.

11. Through her school system Petitioner appealed the decision of staff to the Appeals Panel for Graduate Pay Approval. The Appeals Panel is established by State Board Policy QP-A-006 and consists of independent professional educators appointed by the State Board of Education to consider appeals of requests for non-teaching work experience or graduate salary. Members include local school system personnel administrators, faculty from institutions of higher education, and representatives from the professional teacher organization, none of whom are member of the staff of DPI or the State Board of Education.

12. The Panel in this case considered Petitioner’s appeal, including all documentation submitted by her. The Panel compared Petitioner’s area of licensure and teaching assignment with the coursework that led to her Doctorate degree. The Panel voted unanimously to deny the graduate pay credit on grounds that Petitioner’s Doctorate was not “directly related” to her area of licensure and current teaching assignment. Despite the usefulness of many of the skills and concepts, and the fact that Petitioner was able to transfer those skills to her work in secondary schools, nevertheless, the Doctorate and the coursework leading up to it are designed for higher education. Her dissertation dealt with residence counselors on a higher education campus. This graduate degree is not “directly related” to her area of licensure and teaching assignment.

13. Petitioner was notified of the denial by letter dated February 14, 2007, from Dr. Kathy Sullivan, Director, Division of Human Resource Management, DPI.

14. From the denial by the Panel, the Petitioner filed a Petition for Contested Case Hearing with the Office of Administrative Hearings.

15. Petitioner offered considerable documentation to support her contention that she should be compensated for her doctorate degree. On consideration and inspection, all of the course work, course descriptions and accompanying syllabi confirm that her graduate work toward her doctorate was in higher education. The Student Academic Records provided by Petitioner indicate her major as Higher Education Administration.

16. Petitioner contends that much of the course work provided transferable skills and acquired knowledge that pertains to her counselor work, and in deed it does to a degree. “Transferable” skills indicate that they are not “direct” skills; however, they may still be considered as to whether or not the degree is “directly related.” The essence of her doctoral work is in higher education.

17. Much of Petitioner’s contentions focus on her course work in Student Development and the application of the theories of Chickering. It appears from the records that her minor course of studies in Counselor Education consisted of two courses, one of which was the course in Student Development. That course addresses the subject matter from three perspectives: counselor, administrator and educator. Many of the courses may have some aspect of “student development” in its curriculum; however, the information provided does not support the contention that the Petitioner’s course of study is primarily in student development.

18. Petitioner’s letter to Beckie Collins, Director of Personnel Services for Onslow County Schools, dated September 18, 2006, concludes that her degree has been an “asset” in her position at Onslow County Schools. There is no doubt that her superiors support her in many ways and especially in this process, and that she is in deed a valuable asset to Onslow County Schools; however, being a valuable asset is not the test at issue.

CONCLUSIONS OF LAW

1. Petitioner bears the burden of proving the claims alleged in the Petition by a preponderance of evidence. Peace v. Employment Sec. Comm’n., 349 N.C. 315, 507 S.E.2d 272 (1998).

2. The State Board of Education has the constitutional power “to supervise and administer the free public school system and the educational funds provided for its support.” N.C. Const. art IX, § 5. This power includes the power to “regulate the grade [and] salary . . . of teachers.” Guthrie v. Taylor, 279 N.C. 703, 709, 185 S.E. 2nd 193, 198 (1971), cert. denied, 406 U.S. 920, 32 L.Ed.2d 119 (1972). The State Board has the specific duty “to certify and regulate the grade and salary of teachers and other school employees.” N.C. Gen. Stat. § 115C-12(9)a; Guthrie at 711.

3. Petitioner has not met her burden of demonstrating that Respondent has deprived her of property or has otherwise substantially prejudged her rights and that Respondent has:

(1) Exceeded its authority;

(2) Acted erroneously;

(3) Failed to use proper procedure;

(4) Acted arbitrarily or capriciously; or

(5) Failed to act as required by law.

4. Respondent properly found that Petitioner’s doctorate degree was not “directly related” to her area of licensure and teaching assignment.

DECISION

The decision of the State Board of Education denying Petitioner’s request for graduate degree credit should be AFFIRMED.

ORDER

It is hereby ordered that the agency serve a copy of the final decision on the Office of Administrative Hearings, 6714 Mail Service Center, Raleigh, NC 27699-6714, in accordance with North Carolina General Statute 150B-36(b).

NOTICE

The agency making the final decision in this contested case is required to give each party an opportunity to file exceptions to this recommended decision and to present written arguments to those in the agency who will make the final decision. G.S. 150B-36(a).

The agency is required by G.S. 150B-36(b)(3) to serve a copy of the final decision on all parties and to furnish a copy to the parties’ attorney of record and to the Office of Administrative Hearings.

The agency that will make the final decision in this contested case is the North Carolina State Board of Education.

This the 19th day of December, 2007

____________________________________

Donald W. Overby

Administrative Law Judge

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