STATE OF NORTH CAROLINA



STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF ORANGE 07 EDC 0926

|Christopher Lee Hesse |) | |

|Petitioner |)) | |

| |))))| |

|vs. | |DECISION |

| | | |

|Department of Public Instruction | | |

|Respondent | | |

This cause came on to be heard on November 15, 2007 in Raleigh, North Carolina before administrative law judge Beecher R. Gray. Having heard and considered the testimony and other evidence presented, the Undersigned makes the following Findings of Fact and Conclusions of Law:

Appearances

For the Petitioner: Thomas M. Stern

Law Office of Thomas M. Stern

PO Box 2206

Durham, NC 27702-2206

For the Respondent: Laura E. Crumpler

Assistant Attorney General

NC Department of Justice

PO Box 629

Raleigh, NC 27602

ISSUE

Whether the Petitioner met his burden to show that the Respondent erroneously denied his 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. Under 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.” (Respondent’s Exhibit 1.)

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. (See Respondent’s Exhibit 1)

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 is whether that degree is “directly related” to an individual’s area of licensure and work assignment. (Respondent’s Exhibit 1) In addition, the teacher must show that his 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 currently is employed as a teacher with the Orange County Schools. He teaches middle school physical education. Petitioner has a K-9 North Carolina teaching license in physical education.

6. Petitioner, through his school system, made a request to Respondent to recognize his Master’s in Sports Administration for purposes of placing him on the graduate pay scale.

7. Petitioner’s request initially was denied by staff at the Department of Public Instruction Licensure Section. Staff members are trained in how to analyze applications for experience and graduate credit. Staff determined that Petitioner’s Master’s degree was not “directly related” to his area of licensure and teaching assignment.

8. Petitioner, again through his school system, 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 North Carolina’s professional teacher organization.

9. The Panel in this case considered Petitioner’s appeal, including all documentation submitted by him. The Panel compared Petitioner’s area of licensure and teaching assignment with the coursework that led to his Master’s degree. The Panel voted unanimously to deny the graduate pay credit on grounds that Petitioner’s Master’s was not “directly related” to his area of licensure and current teaching assignment.

10. Petitioner was notified of the denial by letter dated March 30, 2007, from Shelia White, Program Specialist, Licensure Section, DPI.

11. Petitioner then filed a Petition for Contested Case Hearing with the Office of Administrative Hearings.

12. At the hearing of this matter, Respondent’s witness, Ms. Kymm Ballard, testified regarding her review of Petitioner’s coursework and her comparison of that coursework with the requirements of the North Carolina Standard Course of Study in Physical Education. Ms. Ballard is a consultant at DPI for the area of Physical Education (PE) and has experience teaching PE. She holds an advanced degree in PE and has responsibility for overseeing the delivery of the Healthful Living and PE Standard Course of Study by local school systems in North Carolina.

13. Petitioner received his Master’s degree from the University of Southern Mississippi and specifically was enrolled in the School of Human Performance and Recreation. His coursework included: Internet Concepts; Psychological and Sociological Aspects of Motor Performance; Development of Strength and Conditioning Programs; Policy and Governance in Sport; Organizational Leadership in Sport Administration; Athletic Seminar; Legal and Ethical Aspects in Sport; Research Techniques; Advanced Sport Administration Processes; Research Technique; Introduction to Education Statistics; and the Practicum.

14. While some of these courses would be applicable to the teaching of PE in the public schools, the courses as a whole constituted a Master’s in Sports Administration and would not have been sufficient to support an award of a Master’s in Physical Education. Similarly, while many concepts and skills taught in these courses would be helpful to a teacher of PE, the courses themselves are clearly aimed at the administration of sports and not the teaching of the NC Standard Course of Study in PE.

15. While there is no definition of “directly related” contained in State Board Policy QP-A-006, the persons at DPI charged with interpreting the policy have been trained in applying the policy to various fact situations. Likewise the Experience Panel has considerable experience in applying the policy. Over the years, the term “directly related,” as used in QP-A-006 has achieved the status of a term of art and denotes a close relationship and overlappage between the subject matter of the graduate degree and teacher’s license and teaching area.

16. Petitioner’s Master’s degree in Sports Administration is not “directly related” to his license area and teaching assignment.

CONCLUSIONS OF LAW

1. The parties properly are before the Office of Administrative Hearings.

2. 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).

3. 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.

4. Petitioner has not met his burden of demonstrating that Respondent has deprived him of property or has otherwise substantially prejudged his 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.

5. Respondent properly found that Petitioner’s Master’s was not “directly related” to his area of licensure and teaching assignment.

6. In reaching this determination, the court relies upon evidence that the agency has interpreted the policy at issue in a consistent and uninterrupted manner over many years, without legislative intervention or without having promulgation of a rule under the Administrative Procedures Act to codify policy QP-A-006. This court may rely upon consistent interpretation by a State Agency of its own policies in reaching a conclusion with regard to the application of a particular policy to a given set of facts. Indeed the agency’s interpretation must be given substantial deference unless it plainly is erroneous. Morrell v. Flaherty, 338 N.C. 230, 449 S.E.2d 175 (1994) cert denied, 515 U.S. 1122 (1995)

DECISION

The decision of the State Board of Education denying Petitioner’s request for a waiver is affirmed as supported by the evidence.

ORDER

It hereby is 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 13th day of December, 2007

____________________________________

Beecher R. Gray

Administrative Law Judge

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