STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
LEON COUNTY SCHOOL BOARD, )
(ED) FENN, Superintendent, )
)
Petitioner, )
)
vs. ) CASE NO. 79-905
)
OTHA R. REDDICK, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on March 7, 1980, in Tallahassee, Florida. A transcript of the final hearing was received on March 27, 1980. Pursuant to stipulation, the parties were afforded leave through March 27, 1980, to submit memoranda supportive of their respective positions. Memoranda were received and considered by me in preparation of this Recommended Order.
APPEARANCES
For Petitioner: James C. Massie, Esquire
LaCAPRA AND MASSIE
Suite 712, Barnett Bank Building Tallahassee, Florida 32302
For Respondent: Andrew H. Schuster, Esquire and
Robert I. Scanlan, Esquire SCHUSTER AND SCANLAN
210 East College Avenue Tallahassee, Florida 32304
ISSUE
At issue herein is whether or not the Petitioner's suspension of Respondent on March 6, 1979, 1/ from his employment duties without pay based on conduct set forth hereinafter in detail, was proper.
FINDINGS OF FACT
Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence introduced, the arguments of counsel and the entire record compiled herein the following relevant facts are found.
Otha Reddick, Respondent, was employed by the Leon County School Board, Petitioner, as a Systems Analyst during November of 1974, a position he held until his suspension on March 6. His rate of pay at the time of his suspension was $1,326.00 per month. On April 11, Petitioner's superintendent, Dr. N.E.
(Ed) Fenn, filed a Notice of Charges against Respondent. At its meeting of April 17, the School Board referred the matter to the Division of Administrative Hearings for a formal hearing pursuant to Section 120.57(1)(a), Florida Statutes. The Notice of Charges alleged in pertinent part that:
Respondent, Otha Reddick, was absent from work for the period February 15 through March 2, during which period he willfully neglected his duties at the Data Processing Center.
On or about March 1, Respondent committed misconduct in office in that he represented to his supervisor, Ott Carraway, that because of medical reasons he was unable to return to work when, in fact, he was operating a private business, Top Bookkeeping Services, during regular school work hours.
The Respondent, Otha R. Reddick, is guilty of willful neglect of duties and misconduct in office in that he operated a private business, Top Bookkeeping Services, during regular school work hours.
Based on these charges, the Petitioner seeks to convert its suspension of Respondent into a permanent termination of his employment.
Respondent's duties as a Systems Analyst with Petitioner included supervising programmers in the Data Processing Center. His work hours consisted of a normal eight hour day. In addition to his employment by Petitioner, Respondent owned two businesses: Top Bookkeeping Services, a business engaged primarily in the preparation of tax returns and related bookkeeping functions; and Twin Oaks Production, a company involved in the promotion of bands and live burials. Respondent's operation of and duties connected with his ownership of Top Bookkeeping Services occurred after his regular hours of employment by Petitioner. Respondent used what is commonly referred to as seasonal or casual employees on an as needed basis for the operation of Top Bookkeeping Services. According to Respondent, the bookkeeping service has been operating at a loss since its inception. Respondent utilizes a similar employment arrangement in his operation of Twin Oaks Productions.
On the morning of February 13, Respondent, while at work, became visibly upset when he was advised by his supervisor, Ott Carraway, that the payroll function of the Data Processing Center would be contracted out to a private agency. Respondent disagreed with this decision and made known his disagreement, since in his opinion, the Data Processing Systems Division was capable of and had in fact been properly carrying out the payroll functions for the School Board. Before leaving for his lunch break on February 13, Respondent Reddick inquired of the production control and leave clerk, Janet Guthrie, the amount of accrued sick and annual leave he had. During his lunch break, Respondent went home, took two Valium pills (one more than his prescribed dosage), laid across his bed and went to sleep. Before doing so, Respondent summoned to his apartment for medical assistance Theresa Fountain, his secretarial assistant at Top Bookkeeping Services. Then Ms. Fountain arrived at Respondent's apartment, she noticed that he was visibly upset, was red in the face, appeared stressed and his speech was slurred. Ms. Fountain, a former
hospital employee assigned to a psychiatric ward, related that Respondent exhibited symptoms of a person suffering a nervous breakdown (TR. 208-210). After a few minutes, Ms. Fountain was able to get Respondent calm and they discussed the problem relating to the letting of the payroll function to a private entity. She suggested that the Respondent get some rest. Ms. Fountain was aware of Respondent's ulcer disease and stomach problems and phoned Respondent's daughter-in-law in Bonifay. Ms. Fountain asked Respondent's sons to come to Tallahassee (from Bonifay) to get medical attention for their father.
Ms. Fountain phoned Respondent's supervisor, Ott Carraway, and informed him that in view of Respondent's nervous condition, she was of the opinion that he needed medical attention and, therefore, would be unable to return to work.
Respondent's sons, Douglas and Ronald Elvin Reddick, drove to Tallahassee the evening of February 13 to pick up their father. Respondent's sons drove to Tallahassee in a van which has a sofa bed in the rear that Respondent used to lie down on for the trip to Bonifay. Upon arrival at Respondent's apartment, his sons assisted him out of the bed to the van. Respondent slept most of the entire trip from Tallahassee to Bonifay. Respondent spent the following day, February 14, lounging around his house in
Bonifay, where he remained until approximately 10:00 p.m. the following day. He then drove to the Dallas-Ft. Worth, Texas, area accompanied by Country Bill White, the person used in the live burials. While in the Dalla-Ft. Worth area, Respondent spent the next two evenings enlisting support in the form of pledges from local tavern owners and selling magazine subscriptions and newspaper ads to finance the live burial act.
During the next few days, Respondent drove to Houston, Texas, to visit his brother. He remained in Houston two days and returned to the Dallas-Ft. Worth area. The live burial which was then scheduled to take place in the Dallas-Ft. Worth area was postponed due to inclement weather. In this regard, the evidence revealed, and Respondent admitted, that he had planted to request leave to attend the live burial act in Texas on the scheduled dates of February
22 and 23, 1979. Respondent credibly testified that he had no planned (active) role in the scheduling of the live burial act. (Testimony of Respondent and his sons, Douglas and Elvin Reddick. TR. 172-176.) When the live burial act took place, Respondent was not present in Texas. On Sunday, February 25, Respondent drove to New Orleans where he briefly frequented several bars. He later drove to Bonifay, where he arrived at his home at approximately 9:00 p.m. He remained in Bonifay until the following morning, when he returned to Tallahassee.
On Monday, February 27, Respondent phoned his supervisor, Cecil "Ott" Carraway, to inquire if he could pick up his paycheck. A lengthy telephone conversation ensued between Respondent and Supervisor Carraway during which conversation Respondent was advised by Carraway that in view of his protracted absence, he (Carraway) would be requiring Respondent to secure a doctor's excuse to substantiate his illness before his paycheck would be released. Chapter 6 GX 37-2, Rule 2.14(7), Florida Administrative Code, Leon County Rules and Regulations. Respondent explained to supervisor Carraway that it was necessary for Respondent to receive his paycheck inasmuch as he had requested and was granted leave by Centel, through the close of business on February 27, to pay his telephone bill or his service would be interrupted. Supervisor Carraway stood fast on his insistence that a doctor's excuse be submitted before releasing Respondent's paycheck. it was not until the following day, February 28, that Respondent was able to obtain a doctor's excuse from his regular physician, Dr. Norbert J. Wegmann, of Chipley, Florida. Respondent's residence phone service was interrupted by Centel on February 27 and was not restored
until March 3. During the period when Respondent's phone service was interrupted, he used his office phone at Top Bookkeeping Services.
During the conversation between Respondent and Supervisor Carraway on February 28, Respondent requested an additional two days leave. There is a dispute with regard to the type of leave Respondent requested and supervisor Carraway granted February 28. Respondent's version is that he simply requested time off, whereas supervisor Carraway's version is that he explained to Respondent that he had exhausted his sick leave and, therefore, it was necessary for him to use one day of annual leave which he had recently been credited with as of March 1. On February 27, Respondent spent most of the day lounging around his apartment. The next day Respondent went to his office at Top Bookkeeping Services (located at Park Twenty West) to have access to a phone and to begin work on his personal income tax return. On March 1, Respondent, while on what he considered to be annual leave status, prepared an income tax return for Mr. and Mrs. Ward, employees of Petitioner's key punch operations. The return was completed approximately 8:00 p.m.
On the afternoon of March 1, Respondent received a telephone call from Charles Johnson and Linda Jordan, employees and agents of Petitioner, who scheduled an appointment to get their tax returns prepared at Top Bookkeeping Services during the afternoon of March 2. Employees Jordan and Johnson used the fictitious name of "Susie Jones" to secure the appointment. On March 2 Linda Jordan, Director of Personnel, and Charles Johnson, the then Director of Employee Relations, for the Leon School District, visited the offices of Top Bookkeeping Services at the agreed upon time. Another employee of Respondent's at Top Bookkeeping Services had been assigned to prepare the tax returns for "Susie Jones", who later turned out to be Petitioner's employees, Jordan and Johnson. The most that can be said about Respondent's presence at Top Bookkeeping Services is that he was in fact present. There were no customers at Top Bookkeeping Services at the time, nor did attorney Johnson, who testified, indicate that the Respondent even appeared to have been preparing tax returns when he and Director Jordan visited the Top Bookkeeping Services office (TR. 117). Attorney Johnson did not see what Respondent was in fact doing other than the fact that he was simply present. Attorney Johnson explained to Respondent that he thought that his job might well be in jeopardy by his presence at Top Bookkeeping Services while he was on leave. Attorney Johnson suggested that Respondent talk to Dr. Fenn about his presence at Top Bookkeeping Services. Respondent, being concerned about his job security expressed reluctance to visit the Superintendent with attorney Johnson and the Personnel Director present without the advice and assistance of his attorney. Respondent, attorney Johnson and Personnel Director Jordan could not come to an acceptable procedure to counsel with Dr. Fenn and Respondent remained at Top Bookkeeping Services. Attorney Johnson discussed the matter with Dr. Fenn and they jointly decided that Respondent should be suspended inasmuch as there was a "breach in Respondent's obligation to the School Board since he was working on other duties during school hours."
Respondent was not given a copy of the Notice of Charges prior to the March 6 School Board hearing. The Board suspended Respondent at its March 6 meeting, which suspension remains effective.
Norbert Wegmann, M.D., is a General Practitioner in Chipley, Florida, and was received as an expert in medicine for this proceeding. Dr. Wegmann has been treating Respondent for anxiety, tension, fatigue and irritability since approximately 1968. During this period, Respondent has undergone family and marital stresses and Dr. Wegmann has prescribed tranquilizers and analgesics for
his (Respondent's) ulcer and stomach disorders. Dr. Wegmann suggested that Respondent work at a slow pace; take time off and generally do things which permit him to put his mind at ease and to remain in a relaxed condition at the onset of anxiety and stress (TR. 149). Dr. Wegmann considered that Respondent's taking time off from work would have been consistent with his prescribed treatment for Respondent. Although Dr. Wegmann last examined Respondent physically (during times material) approximately November of 1977, he sent Petitioner a written excuse to substantiate his authorization of Respondent's absence during the period involved herein based on his knowledge of Respondent's medical condition. (Testimony of Dr. Wegmann, TR 142, 143.)
Janet Guthrie, Petitioner's production control clerk, is in charge of maintaining leave records and answering incoming phone calls. Ms. Guthrie reviewed Respondent's leave record before lunch on the morning of February 13, 1979, and advised Respondent that he had approximately ten (10) days of sick leave accrued at that time. At the beginning of March, 1979, Respondent earned an additional day of vacation and sick leave. Employees are permitted to call in to request sick leave. (Testimony of Janet Guthrie and Supervisor Carraway.)
Dr. Ed Fenn, Petitioner's Superintendent of Schools, is the administrator and manager of the Leon County School District. He became familiar with Respondent based on conversations with supervisor Ott Carraway, to the effect that Respondent was taking sick leave to take care of his private bookkeeping services. Dr. Fenn considered that Respondent was absent without leave based on information gathered through Ott Carraway and the visits by attorney Johnson and Personnel Director Linda Jordan's visit to Respondent's bookkeeping service. Supervisor Carraway recommended that Respondent be suspended effective Monday with pay until a recommendation could be made to the School Board for a suspension without pay. Attorney Johnson delivered the suspension letter to Respondent. (Petitioner's Exhibit 1). Dr. Fenn acknowledged that Petitioner has no rule which prevents its employees from conducting personal business during non-working hours. Nor is there a rule which prevents employees from doing personal work during their vacation time. Dr. Fenn also made clear that the Board does not concern itself with the activities of its employees while they are on vacation leave. 2/ He also pointed out that when an employee exhausts all accrued sick leave, the leave category is switched to either vacation leave or leave without pay. In this regard, Respondent was not paid for leave taken on March 2, 1979. (Testimony of Dr. Fenn and Supervisor Ott Carraway.)
Ott Carraway, Petitioner's Data Processing Director, is in charge of operating the computer center and supervising employees of the computer center. Carraway has known Respondent professionally approximately eight years and recommended that he be hired. Supervisor Carraway, in explaining Petitioner's leave procedures, related that leave requests must be approved in advance, with the exception of sick leave. On February 13 at approximately noon, Theresa Fountain phoned supervisor Carraway and explained that Respondent was suffering from a nervous condition and, therefore, needed time off. This was, of course, the date that supervisor Carraway advised Respondent that the payroll function of the computer center was being transferred to an outside agency. Supervisor Carraway considered the request by Ms. Fountain to be a request from Respondent for sick leave, and the request was granted. According to Carraway, when Respondent, much like other employees, are absent, their work loads are distributed among other employees. Supervisor Carraway received confirmation of Respondent's illness from Dr. Wegmann on March 1, at which time his check was released. Supervisor Carraway considered Respondent's leave request for two additional days on February 28 to be a request for sick leave based on
Respondent's discussion of his nervous condition. Respondent, in the usual situation, would have been placed on annual leave when his sick leave was exhausted. Supervisor Carraway surmised that Respondent was abusing his sick leave when he heard that Respondent had filed tax returns for two employees who worked in the Data Processing Center during the evening of March l. At supervisor Carraway's instigation employees Charles Johnson and Linda Jordan made an appointment through a fictitious name to get their tax returns prepared at Top Bookkeeping Services during the afternoon of March 2. After the visit by employees Johnson and Jordan to Respondent's offices at Top Bookkeeping Services, supervisor Carraway was made aware of Respondent's presence at the offices at Top Bookkeeping Services and recommended that he be suspended for misuse of sick leave. This recommendation was acted upon by Superintendent Fenn, which resulted in formal action by the School Board on March 6, 1979.
Prior to this incident, supervisor Carraway has never requested employees to bring in a medical excuse to document their sick leave. Supervisor Carraway knew of no rule or regulation promulgated by Petitioner which required that an employee on sick leave be confined to bed.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and parties to this action. Chapter 120.57(1), Florida Statutes.
The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.
The authority of the Petitioner is derived frown Chapter 231, Florida Statutes, and Chapter 6Gx 37-2, Rule 2.14, Florida Administrative Code, Rules of the Leon County School Board.
Section 231.36(6) provides in pertinent part that:
Any member of the District administrative or supervisory staff. . ., may be suspended or dismissed at any time during the
school year; provided that the charges against him must he based on immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, drunkenness, or conviction of any crime involving moral turpitude. Whenever such charges are made against any such employee of the school board, the school board may suspend such person without pay, but if charges are not sustained he shall be immediately reinstated, and his back salary shall be paid. In cases of suspension by the school board or by
the superintendent, the school board shall determine upon the evidence submitted whether the charges have been sustained and, if such charges are
sustained, either to dismiss that employee or fix the term under which said employee may he reinstated.
Rule 2.14, Chapter 6Gx 37-2, Florida Administrative Code, Rules of the Leon County School Board, provides in pertinent part that:
2.14 Leaves of Absence.
GENERAL REGULATIONS.
(a) All leaves and extensions of leaves must be initiated by the person desiring leave and approved by the immediate supervisor, superintendent and school board . . .
SICK LEAVE (ILLNESS, EMERGENCY AND PERSONAL REASONS).
(a) Illness.
* * *
7. Sick leave shall be granted for
illness of self . . . Principals or division heads shall be responsible for verifying each day of sick leave. Other adequate verification of sick leave shall be submitted to the school board upon request. If reason or reasons given for the request for sick leave is found to be erroneous
or fraudulent, the employee will be subject to dismissal by the school board.
* * *
VACATION LEAVE.
* * *
(e) No substitute is to be employed for anyone while that individual is on vacation. The administrative head of each school or department shall organize schedules that will permit vacation leave days to be used in a manner that will not cause substantial interruption to the mission of the school or office.
UNAUTHORIZED LEAVE: DISCIPLINARY ACTION.
Unauthorized Leave: Unauthorized leave is defined as non-performance of those
duties and responsibilities assigned by
the school district and its representatives including all duties and responsibilities
as defined by statute, rules and regulations of the State Board of Education, policies
of the school board and administrative regulations of this school district.
Such unauthorized leave may include but is not limited to collective refusal to provide service, unauthorized use of sick leave, unauthorized use of ocher leave benefits, non-attendance at required
meetings and failure to perform supervisory functions at school sponsored activities.
An employee is deemed to be on unauthorized leave at such time and on such occasions
as the employee may absent himself from required duties not having made provisions
for appropriate leave as may be elsewhere provided in these policies and regulations.
(b) Disciplinary Action:
1. Unauthorized leave shall constitute a breach of contract and, therefore, may result in the initiation of dismissal procedures, loss of salary or such disciplinary action as may be deemed appropriate.
* * *
VERIFICATION OF ABSENCE.
The superintendent or the supervisor
of the employee may require a physician's or other verification as to an employee's claimed reasons for absence in any situation in which it is believed that no valid grounds exist for the employee's claim of absence. Such verification shall be made within five (5) days of
the official request.
As stated, Respondent had been employed as a Systems Analyst with the Leon County School Board since November 1, 1974, until the date of his suspension, March 5, 1979. Approximately lunch time on February 13, Respondent left work after becoming upset that the payroll services function of the computer section had been contracted to an outside firm. Respondent took sick leave for the next approximately seventeen (17) days. 3/ Respondent initiated the leave request and the extension of the leave request by having his secretarial assistant, Theresa Fountain, call supervisor Carraway on February
Respondent initiated and was granted the extension of leave by his supervisor on February 27. Such requests were in compliance with Rule 2.14(1)(a), Chapter 6Gx 37-2, Florida Administrative Code, Rules of the Leon County School Board. During this period while Respondent was on leave, Petitioner's agent's suspicions were aroused when it was learned that Respondent had prepared the tax returns of two of his fellow employees during the evening of March 1 at Top Bookkeeping Services. Respondent was also requested to verify his sick leave request by a medical statement from his doctor. Verification was provided by Respondent from his physician who credibly testified during the hearing that the leave was authorized based on Respondent's long-term ulcer disease and his physician's extended treatment of Respondent for ulcer disease and nervousness. Dr. Wegmann's testimony was that Respondent's drive to Texas would have been commensurate with his prescribed treatment of Respondent. Respondent's leave request was granted and when the genuineness of the request was questioned, Respondent verified it in the manner requested by his supervisor. Additionally, Dr. Wegmann corroborated the authenticity of the Respondent's medical condition. Petitioner failed to introduce competent and substantial evidence to support its suspicion that the Respondent's sick leave requests were erroneous or fraudulent which would, of course, subject him to dismissal as provided in Rule 2.14(7), Chapter 6Gx 37-2, Florida Administrative Code, Rules of the Leon County School Board.
We are not here dealing with unauthorized leave or a failure to perform assigned duties as provided in Rule 2.14(11), Chapter 6Gx 37-2, Florida Administrative Code, Rules of the Leon County School Board. Dr. Wegmann's outstanding directions to Respondent were that he should take time off and do things which would put his mind at ease whenever his ulcer disease flared up. Respondent's sick leave request appeared to have been in compliance with his
doctor's orders. Finally, it was noted that Petitioner, according to its agents, was authorized to request Respondent to submit to a medical examination by an independent physician if it appeared that Respondent was feigning sickness as a means to operate or promote his private businesses. 4/ Petitioner's rules do not prohibit an employee from operating a private business during regular school hours although there is a rule providing sanctions for unauthorized leave. Such is not the case here. For all those reasons, including the fact that the leave was authorized, verified and substantially corroborated by Respondent, Dr. Wegmann, Ms. Fountain, Douglas and Elvin Reddick, and the absence of any credible evidence tending to establish that the Respondent was in fact embarking upon a promotional tour as alleged, insufficient evidence was offered to establish that the Respondent feigned sickness or otherwise willfully neglected his duties at the School Board by absenting himself from work without good cause.
Also, insufficient evidence was offered to establish that the Respondent willfully neglected his assigned duties at the School Board and is otherwise guilty of misconduct in office by operating a private business during regular school hours. Attorney Johnson and Personnel Director Jordan's visit to Top Bookkeeping Services on March 2 hardly established that Respondent's presence at the office of Top Bookkeeping substantiates the allegation that Respondent was operating a private business during regular school hours. As noted above, Respondent had assigned the task of preparing the tax return for the fictitious "Susie Jones" to employee Robert Thomas. Employee Thomas was present at Top Bookkeeping when attorney Johnson and director Jordan arrived. There were no customers present at Top Bookkeeping Services when attorney Johnson and director Jordan arrived. Attorney Johnson's testimony is simply that Respondent was present at Top Bookkeeping when he and director Jordan made their surprise appearance. Respondent's reason for being there, to have access to a phone and to begin preparation of his tax return, appears consistent with his leave request. Accordingly, I shall recommend that the charges be dismissed and Respondent be reinstated with back pay.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:
That the Leon County School Board reinstate Respondent, Otha Reddick, to his former position as Systems Analyst (or a substantially equivalent position) effective March 2, 1979.
That the Respondent be made whole for all losses of earnings he suffered as a result of the suspension less interim earnings, plus interest at the rate of eight (8 percent) percent per annum. 5/
That Respondent's leave records be credited with the appropriate amounts reflective of the leave and other employee benefits he would have earned but for his suspension of March 2, 1979.
That Respondent's personnel folder be expunged of all records relative to the suspension.
RECOMMENDED this 8th day of May, 1980, in Tallahassee, Florida.
JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301
(904) 488-9675
ENDNOTES
1/ Unless otherwise noted, all dated are in 1979.
2/ The terms "vacation leave" and "annual leave" are used interchangeably.
3/ The exact number of days is somewhat in dispute based on the confusion as to the type of leave Respondent requested and his supervisor granted on or about February 2, 1979. However, there is no dispute but that Respondent was in sick leave status from approximately noon time on February 13 through March 1.
Respondent was charged with one day of annual leave on March 1 and was placed in absent-without-leave status (since he was not paid) for March 2, 1979.
4/ Rule 2.14(12), Chapter 6Gx 37-2, Florida Administrative Code, Rules of the Leon County School Board, authorize Petitioner to require a physician or other verification as to an employee's claimed leave of absence when it is believed that no valid grounds exist for an employee's claim for absence.
5/ Insufficient evidence was offered during the hearing to establish a finite figure in terms of a back pay award. Therefore, it is recommended that the parties jointly determine the amount of back pay the Respondent is entitled to as a result of the suspension. Respondent credibly testified that he continued to seek employment during the period of his suspension. These include interviews at the Department of Education, Electronic Data Processing, Department of Highway Safety and Motor Vehicles, Division of Retirement, and Florida State University. He also testified that he had not refused any job offers which were comparable to the position he held at the School Board. See Pasco County School Board v. Florida Public Employees Relations Commission. App. 353 So.2d 108, pages 126-127.
COPIES FURNISHED:
James C. Massie, Esquire LaCAPRA AND MASSIE
Suite 712, Barnett Bank Building Tallahassee, Florida 32302
Andrew H. Schuster, Esquire and Robert I. Scanlan, Esquire SCHUSTER AND SCANLAN
210 East College Avenue Tallahassee, Florida 32304
Dr. N.E. (Ed) Fenn
Superintendent, Leon County Schools 2757 West Pensacola Street Tallahassee, Florida 32304
================================================================= AGENCY FINAL ORDER
================================================================= BEFORE THE SCHOOL BOARD OF LEON COUNTY, FLORIDA
E. (Ed) FENN, as Superintendent of Schools in and for Leon County, Florida,
Petitioner,
vs. CASE NO. 79-905
OTHA R. REDDICK,
Respondent.
/
FINAL ORDER
This matter came before the School Board of Leon County, Florida, at its regularly scheduled meeting on July 1, 1980, for final agency action pursuant to section 120.57(1)(b)9., Florida Statutes, on Hearing Officer James E. Bradwell's Recommended Order of May 8, 1980. Appearances were James C. Massie, Esquire, for Petitioner, Dr. N. E. (Ed) Fenn; and Robert I. Scanlan, Esquire, for Respondent, Otha R. Reddick.
The entire Board having read and reviewed the complete record, and having considered the Hearing Officer's Recommended Order and Petitioner Fenn's exceptions thereto, the Board enters the following findings of fact and conclusions of law.
FINDINGS OF FACT
Respondent Otha Reddick was employed by the School Board of Leon County, Florida as a Systems Analyst in November, 1974. Respondent was suspended with pay on March 5, 1979 by letter from Petitioner, N. E. (Ed) Fenn, Superintendent. The letter informed Respondent that he was being suspended for erratic work behavior and operating his own private business at times he should have been working for the School Board. Respondent was suspended without pay by the School Board on March 6, 1979. His rate of pay at the time of his suspension was $1,326.00 per month. On April 11, 1979, Superintendent Fenn filed a formal Notice of Charges against Respondent.
At its meeting of April 17, 1979, the School Board referred the matter to the Division of Administrative Hearings for a formal hearing pursuant to section 120.57(1)(a), Florida Statutes.
The Notice of Charges alleged iii pertinent part that:
Respondent, Otha Reddick, was absent from work for the period February 15 through March 2, during which period he willfully neglected his duties at the Data Processing Center.
On or about March 1, Respondent com- mitted misconduct in office in that he repre- sented to his supervisor, Ott Carraway, that because of medical reasons he was unable to return to work when, in fact, he was opera- ting a private business, Top Bookkeeping Services, during regular school work hours.
The Respondent, Otha R. Reddick, is guilty of willful neglect of duties and mis- conduct in office in that he operated a pri- vate business, Top Bookkeeping Services, during regular school work hours.
Based on these charges, Petitioner Fenn seeks to have the school Board convert its suspension of Respondent into a permanent termination of his employment.
Respondent's duties as a Systems Analyst with the school Board included supervising programmers in the Data Processing Center. His work hours consisted of a normal eight-hour day.
In addition to his employment by the School Board, Respondent owned two businesses: Top Bookkeeping and Tax Services, located at Park 20 West, Tallahassee, Florida, a business engaged primarily in the preparation of tax returns and related bookkeeping functions; and Twin Oaks Productions, a company involved in the promotion of bands and live burials.
The Board rejects the Hearing Officer's finding that Respondent's operation of and duties connected with his ownership of Top Bookkeeping and Tax Services occurred after his regular hours of employment by the School Board as not based on competent substantial evidence. The Board finds that Respondent's operation of and duties in connection with Top Bookkeeping and Tax Services occurred during his regular hours of employment by the School Board on at least one occasion.
Respondent used what is commonly referred to as seasonal or casual employees on an as needed basis for the operation of Top Bookkeeping and Tax Services. According to Respondent, the bookkeeping service has been operating at a loss since its inception. Respondent utilizes a similar employment arrangement in his operation of Twin Oaks Productions.
On the morning of February 13, Respondent, while at work, became visibly upset when he was advised by his supervisor, Ott Carraway, that the payroll function of the Data Processing Center would be contracted out to a private agency.
Respondent disagreed with this decision and made known his disagreement, since in his opinion, the Data Processing Systems Division was capable of and had in fact been properly carrying out the payroll functions for the School Board.
Before leaving for his lunch break on February 13, Respondent Reddick inquired of the Production Control and Leave Clerk, Janet Guthrie, the amount of accrued sick and annual leave he had.
The Respondent commented to Mrs. Guthrie to the effect that "... he could almost take a month's time or a month's leave."
During his lunch break, Respondent went home, took two valium pills (one more than his prescribed dosage), laid across his bed and went to sleep.
The Board rejects the Hearing Officer's finding that Respondent summoned to his apartment for medical assistance Theresa Fountain, his secretarial assistant at Top Bookkeeping and Tax Services, as not based on competent substantial evidence. The Board finds that by Ms. Fountain's own testimony, she was at Respondent's apartment for lunch as usual when he arrived.
Ms. Fowtain noticed that Respondent was visibly upset, red in the face, that he appeared stressed and that his speech was slurred. Ms. Fountain, a former hospital employee assigned to a psychiatric ward, related that Respondent exhibited symptoms of a person suffering a nervous breakdown. After a few minutes, Ms. Fountain was able to get Respondent calm and they discussed the problem related to the letting of the payroll function to a private entity. She suggested that the Respondent get some rest.
Ms. Fountain phoned Respondent's supervisor, Ott Carraway, at approximately noon on February 13 and informed him that in view of Respondent's nervous condition, she was of the opinion that he needed medical attention and might have to be hospitalized for a little while. Therefore he would be unable to return to work.
This was, of course, the date that supervisor Carraway advised Respondent that the payroll function of the computer center was being transferred to an outside agency.
Supervisor Carraway considered the request by Ms. Fountain to be a request from Respondent for sick leave, and the request was granted. No leave request form was filled out by Respondent, but Ms. Fountain did request sick leave for him.
According to Carraway, when employees are absent, their work loads are distributed among other employees. This was done in Respondent's case.
Respondent did not personally call in to speak to his supervisor until February 28, 1979, fifteen days after he first left work.
In answer to a question from Petitioner's attorney as to whether he felt ill at school, Respondent answered "I was probably madder than ill."
Ms. Fountain was aware of Respondent's ulcer disease and stomach problems and phoned Respondent's daughter-in-law in Bonifay. Ms. Fountain asked Respondent's sons to come to Tallahassee (from Bonifay) to get medical attention for their father. Respondent's sons, Douglas and Ronald Elvin Reddick, drove to
Tallahassee the evening of February 13 to pick up their father. Respondent's sons drove to Tallahassee in a van which has a sofa bed in the rear that Respondent used to lie down on for the trip to Bonifay. Upon arrival at Respondent's apartment, his sons assisted him out of the bed to the van.
Respondent slept most of the entire trip from Tallahassee to Bonifay.
Respondent spent the following day lounging around his house in Bonifay, where he remained until approximately 10:00 P.M. the next following day. He then drove straight through to the Dallas-Fort Worth, Texas area accompanied by Country Bill White, the person used in the live burials.
While in the Dallas-Fort Worth area, Respondent spent the next two evenings enlisting support for the live burial promotion in the form of pledges from local tavern owners and selling magazine subscriptions and newspaper ads to finance the live burial act. He also claims to have done "... more drinking than anything else."
During the next few days, Respondent drove to Houston, Texas to visit his brother. He remained in Houston two days and returned to the Dallas-Fort Worth area. The live burial which was then scheduled to take place was postponed due to inclement weather.
In this regard, the evidence revealed, and Respondent admitted, that he had planned to request leave to attend the live burial in Texas on the scheduled dates of February 22 and 23, 1979. However, there is evidence that Respondent had never requested this leave from his supervisor.
The Board rejects the finding of the Hearing Officer that Respondent had no planned (active) role in the scheduling of the live burial act as not based on competent substantial evidence. The Board finds that Respondent was the sole owner of Twin Oaks Productions, which promoted the live burial of an entertainer, and that Respondent drove the entertainer to Texas and participated in the raising of fund and the promotion of the stunt. Further, the Board finds that Respondent attempted to be present at the actual live burial, but since the event was postponed twice due to bad weather, he was unable to be there on the day the event took place. The Board finds that by these actions, Respondent participated actively in the promotion of the live burial, and his company was doing it for the purpose of financial gain.
When the live burial act took place, Respondent was not present in Texas. On Sunday, February 25, 1979, Respondent drove to New Orleans where he remained for about 24 hours, during which time he frequented several bars.
He drove to Bonifay on Monday, February 26, where he arrived at his home at approximately 9:00 P.M. He remained in Bonifay until the following morning of February 27, when he returned to Tallahassee.
Respondent had not personally contacted his supervisor during this 14 day period, but he and his wife had instructed his private secretary from Top Bookkeeping and Tax Services to talk to his supervisor, indicate that Respondent was still sick, and indicate that she did not know how long Respondent would be gone from work. At no time did Respondent's private secretary indicate to his supervisor that Respondent was in Texas.
Nevertheless, the supervisor began to become suspicious because Respondent's wife had called to speak with the Respondent and because there was a rumor in the office that Respondent was in Texas promoting a burial.
Respondent's coworkers knew about the planned promotion and they had even called several newspapers trying to get information. They learned that the burial had been postponed.
Once back in Tallahassee, Respondent worked on his personal income tax and was in and out of his bookkeeping office.
The Board rejects the Hearing Officer's finding that on Monday, February 27, Respondent phoned his supervisor to inquire if he could pick up his paycheck as not based on competent substantial evidence and finds instead that this phone call was not made until February 28.
Respondent testified that on February 28, 1979, he probably went to his private business and initiated his first personal contact with his supervisor by inquiring by telephone about his paycheck. A lengthy telephone conversation ensued between Respondent and supervisor Carraway during which conversation Respondent was advised by Carraway that in view of his protracted absence he (Carraway) would require Respondent to secure a doctor's excuse to substantiate his illness before his paycheck would be released. The supervisor, Ott Carraway, testified that he asked for a doctor's report in his case because:
length of time Respondent was out from work;
the supervisor had not been able to get in touch with Respondent during that period
of time;
the supervisor had not heard from Respondent during that period of time;
Respondent's wife had called the office to speak with Respondent;
rumors about Respondent being in Texas.
Prior to this incident, supervisor Carraway had never requested employees to bring in a medical excuse to document their sick leave. Supervisor Carraway knew of no rule or regulation promulgated by the School Board which required that an employee on sick leave be confined to bed.
Respondent explained to supervisor Carraway that it was necessary for Respondent to receive his paycheck inasmuch as he had requested and was granted permission by Centel, through the close of business on February 28, to pay his telephone bill or his service would be interrupted. Supervisor Carraway stood fast on his insistence that a doctor's excuse be submitted before releasing Respondent's paycheck.
The Board rejects the Hearing Officer's finding that Respondent was able to obtain a doctor's excuse on the following day, February 28, as not based on competent substantial evidence and finds instead, by Respondent's own testimony, that this excuse was obtained on March 1, 1979 from Dr. Norbert J. Wegmann, of Chipley, Florida. Dr. Wegmann is a general practitioner in Chipley and was received as an expert in medicine for this proceeding.
Dr. Wegmann has been treating Respondent for anxiety, tension, fatigue and irritability since approximately 1968. He last treated Respondent for bronchitis in November, 1977. Respondent had undergone family and marital stresses and Dr. Wegmann had prescribed tranquilizers and analgesics for Respondent's ulcer and stomach disorders. Dr. Wegmann suggested that Respondent
work at a slow pace; take time off and generally do the things which permit him to put his mind at ease and to remain in a relaxed condition at the onset of any anxiety and stress.
Respondent did not speak with Dr. Wegmann, but he did speak with the doctor's receptionist or nurse. Subsequently, Dr. Wegmann's office called the supervisor on March 1 and confirmed Respondent's illness and the check was released.
Dr. Wegmann then executed a note which read, "To Whom It May Concern. This is to certify that Otha Reddick was advised to remain off from work 2-13-79 thru 2-28-79 due to a nervous condition." (Petitioner's exhibit 1).
Dr. Wegmann had neither seen nor examined Respondent since November, 1977, when Respondent was treated for bronchitis and did not know the type of work Respondent was engaged in.
Furthermore, Dr. Wegmann had not talked directly with Respondent but was told, presumably by his receptionist or nurse, that Respondent "... was not feeling well and he took time off "
Dr. Wegmann testified that he expected Respondent to call him each time something would flare up or cause him anxious moments or nervousness. Dr. Wegmann considered that Respondent's taking time off from work would have been consistent with his prescribed treatment for Respondent.
However, during this 16-day period prior to March 1, 1979, Respondent had not contacted any doctor for treatment, including Dr. Wegmann.
The Board rejects the Hearing Officer's finding that Dr. Wegmann sent the School Board a written excuse to substantiate his authorization of the Respondent's absence during the period involved based on his knowledge of Respondent's medical condition as not based on competent substantial evidence. Instead, the Board finds that Dr. Wegmann's written excuse was provided after Respondent had taken sick leave and without examination of or consultation with Respondent.
Respondent was not examined by Dr. Wegmann until July, 1979, several months after the time period in question.
The Board rejects the Hearing Officer's finding that a telephone conversation in which Respondent requested an additional two days leave occurred between Respondent and supervisor Carraway on February 28 as not based on competent substantial evidence and finds instead by Respondent's own testimony that that conversation occurred on March 1.
On March 1, 1979, Respondent went to his office at Top Bookkeeping and Tax Services and from that location, called his supervisor. During the conversation, Respondent requested an additional two-day's leave. There is a dispute with regard to the type of leave Respondent requested and supervisor Carraway granted.
Supervisor Carraway considered Respondent's leave request for two additional days to be a request for sick leave based on Respondent's discussion of his nervous condition.
Respondent's version is that he simply requested time off, whereas supervisor Carraway's version is that he explained to Respondent that he had exhausted his sick leave and, therefore, it was necessary for him to use one day of annual leave which he had recently been credited with as of March 1.
Respondent, in the usual situation, would have been placed on annual leave when his sick leave was exhausted.
The supervisor further testified that Respondent's sick leave status continued because he had been on sick leave and Respondent had indicated that he did not feel like he could come back to work. The supervisor clarified his position by stating, "the taking of vacation does not mean you're on vacation. You can be on sick status and take vacation days, which is what [Respondent] had been doing February 28."
On March 1, Respondent went to his office at Top Bookkeeping and Tax Services to have access to a phone and to begin work on his personal income tax return. On March 1, Respondent, while on what he considered to be annual leave status, prepared an income tax return for Mr. and Mrs. Ward, employees off the School Board's keypunch operations. The return was completed at approximately 8:00 P.M.
There is some dispute as to whether Respondent's supervisor told Respondent to call on March 2 if he would be unable to be in to work. Respondent first stated that his supervisor told him that if he did not make it in on Friday, March 2, to call. Respondent later stated that his supervisor asked him to call on Monday, March 5, if he wasn't going to be in to work. Respondent's supervisor testified that he told Respondent to call on Friday if he could not come in. At any rate, no such call was made by Respondent.
Supervisor Carraway surmised that Respondent was abusing his sick leave when he heard that Respondent had prepared tax returns for two fellow employees who worked in the Data Processing Center during the evening of March
This report, together with the length of time Respondent had been out from work, the supervisor's inability to get in touch with Respondent, and rumors about Respondent being in Texas, led to his conclusion.
The Board rejects the Hearing Officer's finding that Respondent received a telephone call from Charles Johnson and Linda Jordan as not based on competent substantial evidence. Instead, the Board finds that Respondent received a call from an employee of the Board who scheduled an appointment to get a tax return prepared at Respondent's bookkeeping service for the afternoon of March 2. The employee used the name "Susie Jones" to secure the appointment, which was made at Mr. Carraway's instigation.
Respondent took the call, made the appointment, and arranged to have one of his employees present to do the tax return.
On March 2, Linda Jordan, Director of Personnel, and Charles Johnson, the then Director of Employee Relations, visited the offices of Top Bookkeeping and Tax Services at the agreed upon time and found Respondent there. Another employee of Respondent at Top Bookkeeping and Tax Services had been assigned to prepare the tax return for "Susie Jones", who turned out to be School Board employees Jordan and Johnson.
The Board rejects the Hearing Officer's finding that the most that can be said about Respondent's presence at Top Bookkeeping and Tax Services is that
he was present as not based on competent substantial evidence. The Board finds instead that Respondent was the sole owner of the business and had employees working for him who were present in the office. Although there were no customers present at Top Bookkeeping and Tax Services at the time and there was no evidence as to whether Respondent had been preparing tax returns, Mr. Johnson testified that everything that he saw was consistent with Respondent's working at his private business. Respondent was at his private business during regular school hours at the time an appointment had been made for him to do some work.
He was the sole owner of the business and had employees working for him who were present in the office. During this four-day period, Respondent was present in the office, prepared at least one tax return, answered the telephone, made appointments, and made arrangements for his employees to prepare at least one other tax return. The Board finds that the sum of these actions constitutes work by Respondent at his private business. In addition, the Board finds that most of these activities occurred during regular school hours.
Mr. Johnson explained to Respondent that he thought than Respondent's job might well be in jeopardy by his presence at Top Bookkeeping and Tax Services while he was on leave. Mr. Johnson suggested that Respondent talk to Dr. Fenn about his presence there.
It was suggested that Respondent meet that day with Superintendent Fenn, but Respondent indicated he did not want to because he was too nervous and upset. Respondent, expressing concern about his job-security, also indicated he did not want to meet with the Superintendent without the advice and assistance of his own attorney. Therefore, he remained at Top Bookkeeping and Tax Services.
After the visit by employees Johnson and Jordan, supervisor Carraway was made aware of Respondent's presence at the offices of Top Bookkeeping and Tax Services and recommended that he be suspended for misuse of sick leave. Attorney Johnson discussed the matter with Dr. Fenn and they jointly decided that Respondent should be suspended inasmuch as there was a "breach in Respondent's obligation to the School Board since he was working on other duties during school hours."
On Monday, March 5, 1979 Respondent appeared with his attorney, Ed Green, at the Superintendent's office. After discussion of the matter, in the presence of counsel, with Director of Employee Relations, Charles Johnson, and after deciding not to meet with the Superintendent without Presence of counsel, Respondent was given a letter from the Superintendent alleging erratic work behavior and the fact that Respondent had been operating his own private business at times when he should have been working for the School Board. This letter had the effect of suspending Respondent with pay pending the next regularly scheduled School Board meeting on March 6, 1979. Respondent was notified that at that meeting the Superintendent would recommend that Respondent be suspended without pay by the School Board pending the filing of formal charges.
The Board suspended Respondent without pay at its March 6 meeting. Respondent was neither Present nor represented at that meeting, although given an opportunity to appear and although he had been informed of the meeting the day before. On April 11, 1979 Respondent was given a document entitled "Notice of Charges."
Janet Guthrie, the School Board Production Control clerk, is in charge of maintaining leave records and answering incoming phone calls.
Ms. Guthrie reviewed Respondent's leave record before lunch on the morning of February 13, 1979, and advised Respondent that he had approximately
10 days of sick leave accrued at that time. At the beginning of March, 1979, Respondent earned an additional day of vacation and sick leave. Employees are Permitted to call in to request sick leave.
Dr. Ed Fenn, Superintendent of Schools, is the administrator and manager of the Leon County School District.
Dr. Fenn became familiar with Respondent based on conversations with Ott Carraway to the effect that Respondent was taking sick leave to take care of his private bookkeeping service. Dr. Fenn considered that Respondent was absent without leave based on information gathered through Ott Carraway and the visit by employees Johnson and Jordan to Respondent's bookkeeping service.
Dr. Fenn acknowledged that the School Board has no rule which prevents its employees from conducting personal business during non-working hours. Nor is there a rule which prevents employees from doing personal work during their vacation time. Dr. Fenn also made clear that the School Board does not concern itself with the activities of its employees while they are on vacation leave.
He also pointed out that when an employee exhausts all accrued sick leave, the leave category is switched to either vacation leave or leave without pay. In this regard, Respondent was not paid for leave taken on March 2, 1979.
Ott Carraway, the School Board Data Processing Director, is in charge of operating the computer center and supervising employees of the computer center. Mr. Carraway has known the Respondent professionally approximately eight years and recommended that he be hired.
Supervisor Carraway, in explaining the School Board's leave procedures, related that leave requests must be approved in advance, with the exception of sick leave.
Respondent indicated that he has received $2,050.20 in unemployment compensation and had recently ceased to seek employment. There was no evidence as to his income from his outside businesses.
CONCLUSIONS OF LAW
On the basis of the foregoing findings of fact and the evidence in the record, the Board enters the following conclusions of law and order:
The School Board of Leon County, Florida, has jurisdiction over the subject matter and the parties to this action. Section 120.57(1), Florida Statutes.
The parties were duly noticed pursuant to the notice provision of Chapter 120, Florida Statutes.
The authority of the Petitioner is derived from Chapter 231, Florida Statutes, and Chapter 6G x 37-2, Rule 2.14, Florida Administrative Code, Rules of the Leon Counity School Board.
Section 231.36(6), Florida Statutes, states in pertinent part:
Any member of the district administra- tive or supervisory staff ... may be suspended or dismissed at any time during the school year; provided the charges against him must be based on immorality, misconduct in office, in- competency, gross insubordination, willful neglect of duty, drunkenness, or conviction of any crime involving moral turpitude. Whenever such charges are made against any such employee of the school board, the school board may suspend such person without pay, but if charges are not sustained he shall be immediately reinstated, and his back salary shall be paid. In cases of Suspension by school board or the Superintendent, the school board shall determine upon the evidence submitted whether the charges have been sustained and, if said charges are sustained, either to dismiss said employee or fix the terms under which said employee may be reinstated. If such charges are sustained by a majority vote of the full membership of the school board and such employee is discharged, his con- tract of employment shall be thereby cancelled.
Rule 2.14, Chapter 6G x 37-2, Florida Administrative Code, Rules of the Leon County School Board, provides in pertinent part that:
2.14 Leaves of Absence
GENERAL REGULATIONS
(a) All leaves and extension of leaves must be initiated by the person desiring leave and approved by immediate super- visor, Superintendent and School Board.
. . . .
SICK LEAVE (ILLNESS, EMERGENCY AND PERSONAL REASONS)
(a) Illness:
. . . .
7. Sick leave shall be granted for ill- ness of self or any immediate member of the family. Principals or division heads shall be responsible for verifying each day of sick leave. Other adequate verification of sick leave shall be sub- mitted to the School Board upon request.
If reason or reasons given for the request of sick leave is found to be erroneous or fraudulent, the employee will be subject to dismissal by the School Board.
. . . .
VACATION LEAVE
. . . .
(e) No substitute is to be employed for anyone while that individual is on vaca- tion. The administrative head of each school or department shall organize schedules that will permit vacation leave days to be used in a manner that will not cause substantial interruption to the mission of the school or office.
UNAUTHORIZED LEAVE; DISCIPLINARY ACTION
Unauthorized leave; Unauthorized leave is defined as nonperformance of those duties and responsibilities assigned by the School District and its representa- tives including all duties and responsibi- lities as defined by statute, rules and regulations of the State Board and ad- ministrative regulations of this School District. Such unauthorized leave may include but is not limited to collective refusals to provide service, unauthorized use of sick leave, unauthorized use of other leave benefits, non-attendance at required meetings and failure to perform supervisory functions at school-sponsored activities. An employee is deemed to be on unauthorized leave at such time and
on such occasions as the employee may absent himself from required duties not having made provisions for appropriate leave as may be elsewhere provided in these policies and regulations.
Disciplinary Action:
1. Unauthorized leave shall constitute a breach of contract and, therefore, may result in the initiation of dismissal pro- cedures, loss of salary or such disciplinary action as may be deemed appropriate.
. . . .
VERIFICATION OF ABSENCE
The Superintendent or the Supervisor of the employee may require a physician's or other verification as to an employee's claimed reason for absence in any situation in which it is believed that no valid grounds exist for the employee's claim for absence. Such verification shall be made within five (5) days of the official request.
Respondent was employed as a Systems Analyst with the School Board of Leon County, Florida on November 1, 1974. He was suspended without pay on March 6, 1979.
On February 13, 1979, Respondent left his job with the School Board and proceeded to take leave for the next 17 days. Respondent initiated the leave request by having his secretarial assistant, Theresa Fountain, call his supervisor, Ott Carraway, on February 13. Respondent initiated and was granted an extension of leave by Supervisor Carraway on March 1, 1979.
The Board finds that Respondent's sick leave status was not initiated on the advice of or with an examination by any physician, and that the verification of his status offered by Respondent was obtained through a conversation with an employee of Dr. Norbert Wegmann of Chipley, Florida. Dr. Wegmann had last treated Respondent in November, 1977, for bronchitis, and had not seen or examined Respondent since that time and had not communicated with Respondent, either in person or through his assistants, until Respondent was asked to provide a medical excuse for his absence some 15 days after Respondent left his position ostensibly because of illness.
The Board concludes that such activities amount to giving an erroneous or fraudulent reason for sick leave in violation of Rule 2.14 of the Rules of the Leon County School Board. The Board further concludes that Respondent's representation to his supervisor that he could not return to work because of medical reasons when there was no credible medical evidence to support such representation, and when he was engaged in operation of his private businesses, constitutes misconduct in office in violation of section 231.36(6), Florida Statutes.
The Board finds that Respondent was involved at least to some extent in the operation of his private bookkeeping business, Top Bookkeeping and Tax Services, while he was on sick leave from his position of employment with the School Board of Leon County. This finding is supported by evidence that Respondent accepted business calls at his business office, made appointments for work to be done, scheduled his employees to do work, and prepared tax returns for two of his fellow School Board employees. Although School Board rules do not prohibit an employee from operating a private business during regular school hours, it must be assumed that such could not be done without willfully neglecting duties normally performed by a School Board employee during school hours.
The Board concludes that these activities by Respondent amount to willful neglect of his duties with the School Board of Leon County and constitute misconduct in office in violation of section 231.36(6), Florida Statutes.
The Board finds that the Respondent, while on sick leave from his position of employment with the School Board of Leon County, traveled to Texas and was actively involved in the promotion of a live burial act by his solely- owned private business, Twin Oaks Productions. This finding is supported by evidence that Respondent traveled to Texas in the company of the entertainer who was to be buried, sold magazine subscriptions, solicited financial support from tavern owners, and otherwise actively promoted the planned event, and missed being present at the event only because it was postponed because of bad weather. The Board finds Dr. Wegmann's statement that Respondent's trip to Texas "would have been" commensurate with his prescribed treatment of Respondent to be of little weight since that evaluation was given after the fact and without any examination of or communication with Respondent.
The Board concludes that these activities by Respondent amount to a willful neglect of his duties with the School Board of Leon County and misconduct in office in violation of section 231.36(6), Florida Statutes.
Accordingly, it is found as a matter of law pursuant to section 231.36(6), Florida Statutes and the Rules of the Leon County School Board that:
Respondent willfully neglected his duties at the School Board during the period from February 13 through March 2, 1979, by absenting himself from work without good cause;
Respondent committed misconduct in office by representing to his supervisor that he could not return to work because of medi- cal reasons when, in fact, there was no cre- dible medical evidence to support his posi- tion and Respondent continued to work at his private business;
Respondent is guilty of willful neglect of duties and misconduct in office by operating a private business in which he actively participated during regular school hours.
It is, therefore, ORDERED,
That Respondent be discharged from his position and that his employment with the School Board of Leon County, Florida be cancelled.
The charges against Respondent having been found sustained, Respondent is not entitled to ay back salary subsequent to March 6, 1979.
DONE this the 21 day of July, 1980.
THE SCHOOL BOARD OF LEON COUNTY, FLORIDA
Attest:
By: Michael J. Beaudoin
Chairman
N. E. (Ed) Fenn Superintendent and Secretary
CERTIFICATE OF FILING
The foregoing Final Order was filed with me as the Clerk and Recording Secretary for the School Board of Leon County, Florida on this the 22nd day of July, 1980, on which date I mailed a copy of the Final Order by United States mail to Robert I. Scanlan, Esquire, Post Office Box 10311, Tallahassee, Florida
32302; James C. Massie, Esquire, Post Office Box 10317, Tallahassee, Florida 32302; and to the Hearing Officer, James E. Bradwell, Department of Administration, Division of Administrative Hearings, Room 101, Collins Building, Tallahassee, Florida 32301.
Mamie Arrington
| Issue Date | Proceedings |
|---|---|
| Jul. 28, 1980 | Final Order filed. |
| May 08, 1980 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Jul. 21, 1980 | Agency Final Order | |
| May 08, 1980 | Recommended Order | Petitioner didn`t prove Respondent used sick leave to conduct own private business. Respondent should be reinstated with back pay and benefits. |
LOUIS J. YOUNG vs. DEPARTMENT OF CORRECTIONS, 79-000905 (1979)
HUGH G. PURKEY vs. DEPARTMENT OF TRANSPORTATION, 79-000905 (1979)
CHRISTOPHER D. STOKES vs DEPARTMENT OF JUVENILE JUSTICE, 79-000905 (1979)
PALM BEACH SCHOOL BOARD vs FREDERICK ELLIS, 79-000905 (1979)
FLORIDA PUBLIC SERVICE COMMISSION vs. NORMA D. SAABIR, 79-000905 (1979)
