STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHIPOLA JUNIOR COLLEGE, )

)

Petitioner, )

)

vs. ) CASE NO. 81-2056

)

JAMES T. SIMS, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in the above-captioned matter, after due notice, at Marianna, Florida on November 10, 1981, before the undersigned Hearing Officer.

APPEARANCES

For Petitioner: Richard Wayne Grant, Esquire

209 North Jefferson Street Post Office Box 209 Marianna, Florida 32446

For Respondent: Philip J. Padovano, Esquire

Post Office Box 873 Tallahassee, Florida 32302

ISSUE

Whether Respondent should be dismissed from his employment as an instructor at Chipola Junior College for alleged misconduct in office, incompetency, willful neglect of duties, and drunkenness, as set forth in the Complaint Recommending Dismissal, dated July 31, 1981.

This proceeding commenced with the issuance of a Complaint Recommending Dismissal by the Interim President of Chipola Junior College alleging that Respondent James T. Sims, an instructor, should he dismissed for misconduct in office, incompetency, willful neglect of duty, and drunkenness. Respondent filed a petition for formal hearing pursuant to Section 120.57(1), Florida Statutes, on August 13, 1981. The matter thereafter was referred to this Division for the appointment of a Hearing Officer.

At the hearing, Petitioner presented the testimony of Dr. Richard E. Morley, Interim President of Chipola Junior College; Dean James A. Lewis, Dean of Academic Studies; and Alice J. Story, Chairman of the Division of Natural Science and Mathematics. Respondent testified in his own behalf, and submitted the testimony of Dr. Jack Golden, Director of the Alcoholism Treatment Program at Capital Medical Center, Tallahassee, Florida. Four exhibits were received into evidence.

The memorandum brief of Petitioner, and Respondent's memorandum have been fully considered and those portions thereof not adopted herein are considered to be either unnecessary, irrelevant, or unwarranted in fact or law.

FINDINGS OF FACT

1. Respondent James T. Sims has been an instructor at Chipola Junior College, Marianna, Florida, since 1959. In 1962, he entered into a continuing contract with the Beard of Public Instruction of Jackson County, Florida to continue in the capacity of a teacher at the college. At some undisclosed date, responsibility for the college became vested in a Board of Trustees at which time existing continuing contracts with the county Board of Public Instruction were apparently honored by the Board of Trustees without execution of new contracts. (Testimony of Respondent, Morley, Exhibit 1)

   
   

2. Respondent's personnel file reflects that he was the subject of a number of memoranda from his supervisors commencing in 1975, concerning late or non-attendance of faculty meetings, early dismissal of classes, award of high grades to students who did not attend class, and unexcused absences. A "confidential" letter from Joiner Sims, Chairman, Division of Natural Science and Mathematics at the college, to Respondent, dated October 17, 1977, expressed concern over a "serious personal problem" that Respondent had had for several years which Sims had offered to help him solve, but stated that if he were found under the influence of alcohol on campus in the future, he would recommend Respondent's dismissal or return to annual contract.

   
   

3. A memorandum from Chairman Joiner Sims to Respondent in March, 1978, recited that Respondent had been absent from classes on two occasions during the semester without advance notification.

   
   

4. In September, 1979, President Raymond M. Deming met with Respondent, Dean of Academic Studies James A. Lewis, and Miss Josephine Story, then Chairman of the Division of Natural Science and Mathematics. A memorandum in Respondent's personnel file, dated September 10, 1979, of President Deming, reflects that during this conference Dean Lewis advised Respondent to quit drinking with the assistance of medicine, and that Respondent acknowledged that he liked to drink and had done quite a bit of drinking, but denied doing so on the college campus. The college officials offered to do anything they could to aid Respondent and he expressed appreciation for their consideration.

   (Testimony of Lewis, Story, Exhibit 1)

   
   

5. A further memorandum from Dean Lewis to Miss Story on November 19, 1979, reviewed his concern about complaints from members of the community about Respondent's behavior off campus and his lessened effectiveness as an instructor over the past several months as a result of his "alcoholic problem," such as dismissing class early and absences from his office during office hours. By the memorandum, Dean Lewis requested that Miss Story direct Respondent to meet assigned classes for the full period, observe posted office hours, adhere to college rules, and insure that he understood that an immediate and permanent change in his performance was expected. Accordingly, by memorandum of November 20, 1979 to Respondent, Miss Story reviewed student complaints she had received concerning Respondent's late arrival at classes, assigning problems with little or no explanation, dismissing classes early, and coming to school sometimes smelling of alcohol. Miss Story had frequently failed to find Respondent in his office during office hours and she also noted this in her memorandum. The memorandum therefore directed Respondent specifically to cure the stated deficiencies. The memorandum had been preceded by a conference with Respondent

   on November 19th at which time Miss Story had reviewed Respondent's shortcomings, offered suggestions for improvement, and told him that if he found it impossible to abide by the conditions she had stated in her memorandum of November 20th, she would recommend that he be given the option of taking a semester's leave of absence to seek professional help. At the conference, Respondent assured her that he would take appropriate action to prevent further complaints. (Testimony of Story, Exhibit 1)

   
   

6. Respondent's personnel file reflects that the President of the college Student Government Association wrote to President Deming on November 29, 1979, stating that Respondent had come to class several times unable to properly teach because of his "current problem of alcoholism" which prevented him from doing his job, that it was common knowledge to the students and faculty that he had a severe alcohol problem, and that his reputation would hurt the college greatly. In a letter to Miss Story dated December 12, 1979, Respondent denied the allegations. (Exhibit 1)

   
   

7. In a letter dated December 17, 1979, President Deming informed Respondent that his image at the college and in the community should be a subject of great concern and that it may become necessary to request that Respondent submit himself to a physical examination if deemed necessary, and that if he ever came on the campus under the influence of alcohol he would be removed from the classroom and "immediate action would be taken." In another memorandum from Miss Story to Respondent dated June 3, 1980, she noted that although he had made a real effort toward improvement during the spring semester she had observed that several of his summer session classes had been dismissed before the end of the period, and cautioned him about maintaining class schedules. She explained the contents of her memorandum to Respondent in a conference on June 23rd and confirmed this with a memorandum dated June 25, 1980. In a further memorandum dated July 1, 1980, Dean Lewis reviewed past memoranda concerning Respondent that were contained in the latter's personnel file, and noted that "a pattern has developed that appears to be growing progressively worse." (Testimony of Story, Lewis, Exhibit 1)

   
   

8. On March 31, 1981, Dean Lewis went to talk with Respondent during scheduled office hours but found that he had dismissed a class early and had not returned to his office. After searching around the campus, Lewis went to Respondent's home and, after no one answered his knocks at the door, went inside fearing that Respondent might be ill. He found Respondent watching television with a drink of some kind in his hand. Respondent told Lewis that he had gone home to take his medicine. Based on this incident, Dean Lewis sent a memorandum to President Deming with a copy to Respondent recommending that Respondent be given the opportunity to take off both 1981 summer sessions and the fall semester to seek professional help "with his problems" and that if he did not elect to do so, that either dismissal or some lesser action be taken against him. President Deming reprimanded Respondent in a letter dated April 10, 1981, wherein he again reviewed Respondent's past actions as reflected in memoranda in his file, restated the requirements that had previously been placed upon him as to his conduct, and stated that even one deviation from any of those directives would result in an immediate suspension and recommendation of dismissal. Respondent, by letter to President Deming, dated April 23rd defended his actions on March 31 by stating that he had been ill and attached copies of prescriptions for medicine issued on March 24 and 26 for throat pain. He claimed that he was only drinking a glass of water when Dean Lewis arrived at his home, and that his only dereliction was in failing to notify anyone that he was leaving the campus. (Testimony of Lewis, Exhibit 1)

9. In another incident that occurred on June 15, 1981, during registration for the summer session, at which time Respondent was supposed to be counselling students, Dean Lewis observed that Respondent could not walk straight and did not appear rational. He appeared to be either sick or under the influence of alcohol, but Lewis could not smell anything on his breath. He felt that Respondent was in no condition to counsel students and carry out his duties. (Testimony of Lewis, Exhibit 1)

   
   

10. On July 27, Miss Story recommended to Dean Lewis that Respondent be relieved of his teaching duties, and Lewis recommended to Dr. Morley, the Interim President, that Respondent be removed as a member of the faculty. Interim President Morley thereafter had a conference with Respondent at which he gave him the opportunity to resign or face dismissal action. Respondent declined to resign, and the Complaint Recommending Dismissal was issued by Morley on July 31, 1981. (Testimony of Morley, Lewis, Story, Exhibit 1)

    
    

11. Miss Story and Respondent have philosophical differences regarding grading practices. Respondent uniformly gave high grades to his students and Miss Story felt that this was not in keeping with standard college practices. Respondent consistently received satisfactory evaluations of his performance regardless of his deficiencies, and both Dean Lewis and Miss Story justified this as an effort to encourage him to improve his performance. Neither questioned his knowledge of subject matter or teaching ability, but are of the opinion that his cumulative record establishes that his instructional ability has been impaired and he is a detriment to the institution. (Testimony of Lewis, Story, Exhibit 1)

    
    

12. Respondent received treatment in the Alcoholism Treatment Program at Capital Medical Center, Tallahassee, Florida, in late August, 1981, for the program period of 28 days. The program involves psychotherapy which assists one suffering from the disease of alcoholism to regain his "self-concept," and learn about the addiction process and the person's own value and belief system. After the inpatient phase, the individual becomes involved in an aftercare program which includes a weekly meeting with counselors at the Medical Center, participation in Alcoholics Anonymous, and regular use of "Antabuse" to prevent lapses from abstention. A year is the normal recovery period. Since his discharge from Capital Medical Center in September, 1981, Respondent has been involved with the aftercare program. He has missed several of the meetings and on at least one occasion failed to take his Antabuse, became intoxicated, and was arrested for driving under the influence of alcohol in Marianna on October 21, 1981.

    
    

13. Dr. Jack Golden, the Director of the Alcoholism Treatment Program, finds that it is not unusual for someone in Respondent's situation to not follow up completely with the aftercare treatment, or to experience at least one period of drinking during the first year of recovery. About 95 percent of his cases, including that of Respondent, involve the "denial process" for varying periods in which the individual cannot make sound judgments and refuses to recognize that he has a problem with alcohol. The disease, which has been recognized as treatable, is biological in nature in which the chemical system of a patient reacts differently to the drug of alcohol than does that of normal individuals. In most cases, persons will not seek assistance unless some crisis arises, or they are placed under coercion of some sort. In Respondent's case, the fact that he was being considered for dismissal prompted him to seek assistance. The treatment program has been experiencing about a 90 percent success rate if an individual remains in the program for one year with a six-months follow-up period thereafter. Although public intoxication has been decriminalized and

    alcoholism primarily placed in the health care system, it does not serve as an excuse for criminal activities. A state policy adopted in 1973 applicable to Career Service employees provides for termination of employment of persons suffering from alcoholism only if they refuse to seek treatment. (Testimony of Golden, Respondent)

    
    

14. Respondent conceded at the hearing that he is an alcoholic and that he had committed himself to treatment which has benefited him to the point where he believes he can resume his normal career after successful completion of the treatment program. He admitted that he had dismissed classes early at various times and failed to keep proper office hours. However, he denied that he had ever been under the influence of alcohol while on the college campus and, in fact, had not consumed any alcohol for approximately six (6) months prior to the filing of the instant charges against him. He admitted that there was truth to the various other complaints that had been made against him over the years, but that some had been exaggerated to some extent. He did not take any initiative to reguest a leave of absence to seek treatment during the lengthy period because he was in what had been described as the "denial stage" of alcoholism. He produced a doctor's statement to the effect that he had had episodes of acute syncope, bradycardia, hypertension, cardiac arrhythmia, and fluid retention.

    The statement reflected that his "intermittent confusion, unstable gait and extreme weakness at times have probably been directly related to his electrolyte imbalance." Respondent also submitted a number of letters from various individuals, including students, attesting to his excellence as a mathematics instructor and to their lack of knowledge as to any problems with alcohol while on campus. (Testimony of Respondent, Exhibit 3, Composite Exhibit 4)

    
    

    CONCLUSIONS OF LAW

    
    

15. Section 240.319(3)(n), Florida Statutes, provides that the Board of Trustees of a community (junior) college shall provide for the appointment, employment, and removal of personnel. Article 10.3 of the 1979-81 agreement between the District Board of Trustees, Chipola Junior College and the Chipola Faculty Association provides that the parties will abide by State Board of Education Rule 6A-14.411, Florida Administrative Code, in cases involving suspension, dismissal, or return to annual contract for cause. Rule 6A- 14.411(6) provides for suspension or dismissal of community college instructional personnel under continuing contract by the Board of Trustees upon recommendation of the college president for the reasons contained in the Administrative Complaint herein, i.e., misconduct in office, incompetency, willful neglect of duty, and drunkenness. No facts were alleged in the Complaint in support of any of the above grounds for disciplinary action and, consequently, they must be considered individually based upon the record evidence as a whole.

    
    

16. At the hearing, and in his post-hearing memorandum, Respondent did not contest the basic evidence presented by Petitioner except in regard to being under the influence of alcohol on campus. He claims that he cannot be dismissed for reasons relating to a personal disease, i.e., alcoholism, and contends that he cannot be terminated for personal illness under paragraph 10 of his continuing contract which reads as follows:

    
    

    10. Failure of the Employee to fulfill his contract, or to carry out the lawful provisions thereof, unless prevented from doing so by reason of personal illness shall constitute sufficient grounds for the

    termination of the contract . . . .

    (emphasis added)

    
    

    In the same vein, Respondent states that dismissal would be contrary to state law (Chapter 396, Florida statutes) which mandates that an alcoholic shall be treated as a sick person and that all public officials in the state should take cognizance of that legislative policy. He also points to the state policy regarding Career Service employees in Rule 22A-7.10(7), Florida Administrative Code, which requires dismissal actions for job related alcohol abuse to be in accordance with the state policy on alcoholism as adopted by the Administration Commission and the guidelines issued by the Secretary of Administration. This policy recognizes problem drinking as a treatable disease and states that the employee shall be counselled and required to secure appropriate medical or professional help, but that the problem shall not be handled as a disciplinary matter unless the employee has refused to recognize his condition and to cooperate by seeking such help, or unless treatment has proved unsuccessful. It further provides for placing the employee under compulsory disability leave if working conditions are adversely affected by his behavior, and later initiating disciplinary action if the employee's progress is unsatisfactory or he fails to cooperate. (See Department of Administration "Management Policies and Procedures" No. 1.914, effective 12/12/75.) Respondent concedes that the Petitioner has not adopted the policy formally and that, therefore, it is not binding upon that body, but he points to it as an analogy for consideration in this proceeding. In answer, Petitioner simply refers to the fact that the state policy has not been made applicable to community colleges, and that drunkenness has continued to serve as a ground for disciplinary action since 1973.

    
    

17. Although the rules in Chapter 6A-14, Florida Administrative Code, relating to community colleges do not provide definitions for the stated grounds for dismissal in Rule 6A-14.411(6), it is considered that the definitions of identical grounds for dismissal of school district instructional personnel under Section 231.36, Florida Statutes, which are found in Rule 6B-4.09, Florida Administrative Code, may be applied as "useful analogues" here. See Smith v. School Board of Leon County, 405 So.2d 183 (Fla. 1st DCA 1981). It is recognized that Chapter 6B-4 concerns instructors of elementary and high school students as opposed to college students, but certain of the definitions are susceptible to some modification and use in this proceeding.

    
    

18. The term "drunkenness" as used in Rule 6B-4.09(5) exists when an individual is publicly under the influence of alcoholic beverages to the extent that his normal faculties are impaired, or by reason of a conviction of drunkenness by a court of law. In this case, the evidence falls short of establishing a basis for disciplinary action on that ground even though Respondent concedes that he suffers from the disease of alcoholism. Although it is probable that some of his deficiencies both in and out of the classroom were a result of his condition, no hard evidence was presented as to any specific incident where it could be concluded that he was, in fact, drunk while on campus or that any of his absences were due to the ingestion of alcoholic beverages. There was no showing that he was convicted for his admitted arrest for driving while intoxicated in October, 1981, which, in any event, took place subsequent to the period upon which the instant charges are based.

    
    

19. "Incompetency" is defined in Rule 6B-4.09(1) as "inability or lack of fitness to discharge the required duties as a result of inefficiency or incapacity." "Inefficiency," in turn, is defined as the repeated failure to perform duties prescribed by law or to communicate with and relate to students in the classroom. "Incapacity" deals with lack of emotional stability, adequate

    physical ability, general educational background, or command of an area of specialization. Respondent's knowledge of the subject matter which he taught is unquestioned and the record shows that he excelled at relating to his students as a teacher. On the other hand, his record is replete with failure to perform prescribed duties, such as maintaining class schedules and office hours. In spite of continuous exhortation by his supervisors over a lengthy period, Respondent persisted in releasing his classes early, not holding scheduled classes, and not being present when required in his office for the purpose of student consultation and the like. These deficiencies were probably caused in large part from the effects of previous indulgence in alcoholic beverages; however, again, no concrete evidence has been presented to confirm such a conclusion. However, the fact remains that Respondent's fitness to discharge his required duties deteriorated severely over the course of a period of years, and it must, therefore, be concluded that his shortcomings establish the ground of "incompetency" for disciplinary purposes.

    
    

20. "Willful neglect of duties" is linked with "gross insubordination" under Rule 6B-4.09(4) and is defined as a constant or continuing intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority. Again, Respondent's pattern of conduct is such as to fall within this definition and it is, therefore, determined that disciplinary action can be predicated upon this ground.

    
    

21. Rule 6B-4.09(3) defines "misconduct in office" on ethical grounds which have not been made applicable to the community college system. In Smith, supra, the Court looked to the general definition of the term and decisions in other jurisdictions to find that it involves a situation where an employee's conduct adversely affects his relationship with the public. A great amount of hearsay evidence as to the effect of Respondent's misconduct upon his students and his supposed poor reputation in the community was submitted, but there was no direct evidence of such an impact other than upon the officials of the college itself. Consequently it is concluded that this ground for action has not been established.

    
    

22. The final question to be addressed is Respondent's contention that he cannot be held accountable for his actions because of his alcoholic condition. Certainly, sympathetic consideration should ordinarily be given to one who suffers from alcoholism, and every effort should be made to recognize that one may have difficulty in regulating his conduct or performing his duties in a normal manner if he is an alcoholic. This is not to say, however, that one must be excused for deficiencies which have continued over a lengthy period after repeated warnings and offers of assistance from his employer, as was the case here. It may be true that from a clinical standpoint, such an individual has difficulty in facing up to his problems and recognizing that he needs professional assistance, but again, the time comes when one must shoulder that burden and assume responsibility for obtaining assistance with his problem.

Even though inapplicable to community colleges, the state policy on employee alcoholism requires that the employee must cooperate in seeking a solution. The fact is that Respondent did absolutely nothing along these lines until the complaint herein had been filed against him. To require that the college must now refrain from action pending a lengthy and problematical recovery period is unwarranted. In spite of his long period of service to the college, it is concluded that grounds exist for dismissal and that it is justified in Respondent's case.

RECOMMENDATION

That the Board of Trustees of Chipola Junior College dismiss Respondent, James T. Sims, from his employment as an instructor for incompetency and willful neglect of duty pursuant to Rule 6A-14.411(6), Florida Administrative Code.

DONE and ENTERED this 29th day of December, 1981, in Tallahassee, Florida.

THOMAS C. OLDHAM

Hearing Officer

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

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 29th day of December, 1981.

COPIES FURNISHED:

Richard Wayne Grant, Esquire

209 North Jefferson Street Post Office Box 209 Marianna, Florida 32446

Philip J. Padovano, Esquire Post Office Box 872 Tallahassee, Florida 32302

John E. Roberts, Esquire Post Office Box 854 Marianna, Florida 32446

Docket for Case No: 81-002056

Orders for Case No: 81-002056