STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DADE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 77-827

)

FRED L. CROSS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Michael R.N. McDonnell, Hearing Officer with the Division of Administrative Hearings at 1:30

1. on July 11, 1977, in Room 360, State of Florida Office Building, 1350 N.W. 12th Avenue, Miami, Florida.

   
   

   Phyllis O. Douglas, Esquire, appeared as counsel for Petitioner, Dade County School Board, and Respondent, Fred L. Cross, appeared in his own behalf.

   
   

   Petitioner charged that Respondent was in violation of Section 321.44, Florida Statutes, by being absent without leave and seeks to cause a forfeiture of Respondent's compensation for the time of such absence and to permanently discharge Respondent as an employee of the School Board of Dade County, Florida.

   
   

   No provision was made by the agency for the preservation of testimony in the proceeding. However, both Petitioner and Respondent stipulated to waive this requirement and rely on the notes and recollection of the hearing officer.

   
   

   FINDINGS OF FACT

   
   

   1. Respondent has been employed by the School Board of Dade County, Florida, as a continuing contract teacher for some years. The contract between the Dade County Public Schools and the United Teachers of Dade, introduced as Respondent's Exhibit No. 1, contains the terms and conditions of Respondent's employment.

      
      

   2. The contract states that the superintendent has the authority to assign or reassign the Respondent to any school within the system. The superintendent or his designee may, when deemed in the best interest of the school system, involuntarily transfer a teacher. Before a teacher is involuntarily transferred a conference shall be held with the area superintendent or his designee or appropriate division head, except where such transfers are the result of a legal order.

      
      

   3. The contract further provides for the filing of grievances by employees concerning the application or interpretation of the wages, hours, terms, and conditions of employment as defined in the contract. The contract defines a grievance as a formal allegation by an employee that there has been a violation,

      misinterpretation or misapplication of any of the terms and conditions of employment set forth in the contract.

      
      

   4. Respondent was involuntarily transferred from a sixth grade teaching position at Edison Park Elementary School to a first grade teaching position at Primary C Elementary School. Prior to the transfer he was afforded the opportunity of a conference with a designee of the Area Superintendent at which time he unsuccessfully challenged his transfer. The Respondent believes that the conference which was held was a sham and was not meaningful. Respondent continued to be dissatisfied with the transfer and continued to seek a solution to his problem by engaging in subsequent conversations with the Area Superintendent and others within the Dade County School System.

      
      

   5. Respondent did not follow the provisions for grievance filing contained in the contract but rather reported for duty on August 25, 1976. On or about that date, he notified his principal and Mr. Steve Moore, the Assistant Superintendent for Personnel, that he would not and did not intend to remain at his assigned position. Respondent worked on August 26, 1976, but then departed, calling in sick for the work days up to and including October 8, 1976. This period of absence constituted authorized sick leave.

      
      

   6. On October 8, 1976, Respondent advised Dr. West and other members of the school system administrative staff that he was available for assignment to another school but would not report to work at Primary C Elementary School. Up to and including the date of the hearing, Respondent has failed and refused to report for duty at his assigned work location and has in fact performed no duties as a teacher during that time. The school system administration has at no time authorized Respondent's absence from duty from October 8, 1976, to the date of the hearing.

      
      

      CONCLUSIONS OF LAW

      
      

   7. The Notice of Charges filed by Petitioner alleges that Respondent violated Section 231.44, Florida Statutes, by being absent without leave. In Its proposed order submitted to the Hearing Officer, Petitioner seeks also a finding that Respondent violated Section 231.36(6), Florida Statutes, by willfully neglecting his duty. Respondent was not charged with violation of Section 231.36(6), Florida Statutes, and not having been put on notice as to such a charge, will not be held responsible to answer for it.

      
      

   8. In that Respondent was absent from his duties without authority from October 8, 1976, to the date of the hearing, Respondent violated Section 231.44, Florida Statutes, by being willfully absent from duty without leave. It is therefore,

RECOMMENDED that Respondent, Fred L. Cross be dismissed from his employment with the Dade County School System and that he forfeit compensation for the time of such absence.

DONE and ENTERED this 5 day of August, 1977, in Tallahassee, Florida.

MICHAEL R. N. MCDONNELL

Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 77-827

In accordance with the requirements of the decision in Stuckey's of Eastman, Ga. v. Department of Transportation, 340 So.2d 119 (Fla. 1st DCA 1976). The rulings on proposed findings of fact submitted by the parties along with the grounds for rejection are set forth below.

PETITIONER'S PROPOSED FINDINGS OF FACT:

1. Adopted in substance.

2. Adopted in substance.

3. Adopted in substance.

4. Adopted in substance.

5. Adopted in substance.

6. Adopted in substance.

7. Adopted in substance.

8. Adopted in substance.

Petitioner seeks also a finding that Respondent was in violation of 231.36(6), Florida Statutes, by willfully neglecting his duty. This request is denied because the Notice of Charges filed July 6, 1977, restrict the accusation to a violation of 231.44, Florida Statutes: absent without leave.

RESPONDENT'S PROPOSED FINDINGS OF FACT:

1. Rejected. No evidence was introduced as to the reason for Respondent's reassignment. The subject of Respondent's reassignment is not relevant to the issues herein.

2. Rejected. Irrelevant.

3. Rejected. Not in the form of a proposed finding of fact.

4. Rejected. Irrelevant.

5. Rejected. Unsupported by the evidence and irrelevant.

6. Adopted in substance.

7. Rejected. Unsupported by the evidence and irrelevant.

8. Rejected. Unsupported by the evidence.

9. Rejected. Unsupported by the evidence.

10. Rejected. Unsupported by the evidence.

11. Rejected. Unsupported by the evidence.

COPIES FURNISHED:

Mr. Fred L. Cross

2950 Northwest 64 Street

Miami, Florida 33147

Jesse J. McCrary, Jr., Esquire 3000 Executive Building

Suite 300

3050 Biscayne Boulevard

Miami, Florida 33137

Phyllis O. Douglas, Esquire Assistant Board Attorney 1410 Northeast 2nd Avenue Miami, Florida

Docket for Case No: 77-000827

Orders for Case No: 77-000827