STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 80-519

)

JAMES P. CARROLL, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings by its designated Hearing Officer, Michael Pearce Dodson, held a final hearing in this case on May 29, 1980, in Miami, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Jesse J. McCrary, Jr., Esquire

3050 Biscayne Boulevard, Suite 300

Miami, Florida 33137

For Respondent: William Du Fresne, Esquire

Du Fresne and Du Fresne, P.A. 1782 One Biscayne Tower Miami, Florida 33131

These proceedings began on March 6, 1980, when the Superintendent of Schools for Dade County, Florida, gave notice to the Respondent, James P. Carroll, that Mr. Carroll was suspended as a school teacher effective March 12, 1980. On that date the School Board of Dade County, Florida, approved the suspension of Mr. Carroll. On March 13 he requested an administrative hearing on such charges as might be later filed against him. The request was forwarded to the Division of Administrative Hearings on March 18, 1980, for the assignment of a Hearing Officer and the scheduling of a final hearing. Subsequently on April 25, 1980, a notice of charges was filed against Mr. Carroll. He responded with a timely answer.

At the final hearing Petitioner presented no witnesses or exhibits but rested its case on the notice of charges and answer of Respondent. Respondent presented as his witnesses; Ms. Eula Bacon, Dr. Jeffrey Fox and the Respondent himself. He offered no exhibits. At the conclusion of the hearing the parties were given the opportunity to file proposed findings and orders. No such proposals were received from either party.

FINDINGS OF FACT

1. Between the school years of 1970-71 and 1979-80, Mr. Carroll has been employed as a school teacher by the School Board of Dade County, Florida.

   During the school year 1970-71 he was absent without authority from his assigned duties for a period of 9 days. During the 1971-72 school year he was absent without authority for 16 days. In the 1972-73 school year Mr. Carroll was absent without authority for 27 days. During the 1973-74 school year he was absent on 24 occasions without proper authority. His absences without authority in the 1974-75 school year amounted to 5 days. During the 1975-76 school year he was absent without authority for 41 days. In the 1976-77 school year he was absent without authority for 66 days. During the 1977-78 school year he was absent without authority or leave for a period of 30 days. During the 1978-79 school year, Mr. Carroll was absent without authority for 51 days. During the school year of 1979-80 up to the time of his suspension by the school board on March 12, 1980, the Respondent was absent for 30 days without leave or authority. (The foregoing findings are taken from the notice of charges and admissions of Respondent in his answer).

   
   

2. Mr. Carroll has been diagnosed to suffer from a peptic ulcer. A peptic ulcer results from an irritation of the stomach lining by gastric acid. That type of ulcer is believed to be related to mental stress.

   
   

3. Respondent had been to several physicians including a psychiatrist for this problem during the last several years. Between May 12 and May 17, 1979, he was hospitalized for treatment of his ulcer.

   
   

4. If Mr. Carroll refrains from smoking cigarettes and drinking alcohol, the symptoms of his ulcer can be ameliorated somewhat. This information was given to him by his last treating physician, Dr. Jeffrey Fox. In spite of this advice Mr. Carroll continues to smoke and drink in moderate amounts.

   
   

5. There are times when the symptoms from Mr. Carroll's ulcer are so severe that he is unable to work. It was during those periods of exacerbated symptoms that Mr. Carroll has been absent from his teaching duties. There is no medical indication that Mr. Carroll is using his illness for malingering.

   
   

6. Mr. Carroll has not seen Dr. Fox since July 26, 1979, for the follow-up treatment which Dr. Fox recommended.

   
   

7. On several occasions Mr. Carroll's supervisors have counseled him about his excessive absences and told him that if they continued, he could to terminated from employment.

   
   

8. Because of his illnesses, Mr. Carroll has been granted two medical leaves of absence. The first was from February, 1978 until the end of the school year. The second leave was from May, 1979 at the time of Mr. Carroll's hospitalization until the end of the school year.

   
   

9. Mr. Carroll has a continuing contract as a member of the instructional staff of the School Board of Dade County, Florida.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this case. Section 120.57(1), Florida Statutes (Supp. 1980) and Section 120.65, Florida Statutes (1979).

    
    

11. As a member of the instructional staff, employed by a district school board, Mr. Carroll can be suspended and discharged from his position for only those grounds set out in Section 231.36(6), Florida Statutes (1979). They

    include willful neglect of duty with which Mr. Carroll has been charged by the school board here.

    
    

12. The school board has proven its charge. There is no question that for many years Mr. Carroll has had excessive absences without authorization. These absences constitute a neglect of his duty to be present and offer instruction to his students. Section 231.09, Florida Statutes (1979). Mr. Carroll has argued in response to the charges that while his absences have been in excess of those allowed by his contract and the rules of the school board, those absences have not been willful because they have resulted from his illness. That argument might be tenable but for the following Facts. 1/ His last treating physician, Dr. Fox, advised Mr. Carroll in July 1979 to return for follow-up treatment after his hospitalization and further instructed him not to drink or smoke. Mr. Carroll has refused to follow these instructions. This failure constitutes a willful act on his part not to do everything he can to make himself healthy in order to carry out his obligation to the School Board. At the final hearing Mr. Carroll after rationalizing why he continued to smoke, gave no indication that he intended in the future to cease drinking or smoking. For these reasons it is concluded that Mr. Carroll has willfully neglected his duty as a teacher since the beginning of the 1979-80 school year, during which he was absent a period of

30 days without authority.

RECOMMENDATION

Based on the foregoing findings of Fact and Conclusions of Law, it is RECOMMENDED:

That the suspension of Respondent, James P. Carroll be sustained. It is further RECOMMENDED that Respondent, be offered an option to resign as a member of the instructional staff for reasons of health within five (5) days from the entry of the Board's final order. In the absence of such a resignation by Respondent, it is RECOMMENDED he be dismissed from his employment by the School Board of Dade County, Florida.

DONE and RECOMMENDED this 21st day of January, 1981, in Tallahassee, Florida.

MICHAEL PEARCE DODSON

Hearing Officer

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 21st day of January, 1981.

ENDNOTE

1/ It was not accepted in the case of School Board of Dade County v. Bernice Schlecker, DOAH Case No. 78-1074 (Recommended Order October 28, 1979).

COPIES FURNISHED:

Jesse J. McCrary, Jr., Esquire 3050 Biscayne Boulevard

Suite 300

Miami, Florida 33131

William Du Fresne, Esquire

Du Fresne and Du Fresne, P.A. 1782 One Biscayne Tower Miami, Florida 33131

Docket for Case No: 80-000519

Orders for Case No: 80-000519