vs. ) CASE NO. 81-3190
Respondent. )
Pursuant to notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on July 2, 1982, in Miami, Florida.
For Petitioner: Jesse J. McCrary, Jr., Esquire Miami, Florida
For Respondent: Robert F. McKee, Esquire
By letter dated December 7, 1981, the Superintendent of Schools of the Dade County Public Schools advised Respondent that he was recommending to the School Board of Dade County, Florida, that the School Board suspend Respondent and initiate dismissal proceedings for gross insubordination, incompetency and willful neglect of duty. The School Board of Dade County approved the Superintendent's recommendation, and Respondent timely requested a formal hearing on those charges. Accordingly, the issues for determination are whether Respondent is guilty of the allegations in the formal Notice of Charges and, if so, what disciplinary action should be taken against him, if any.
Petitioner presented the testimony of Desmond Patrick Gray, Jr., Edmond Lee Burck, John D. White and, by way of deposition, the testimony of Norman Lindeblad, Ruby Howard and Judy D. Cobb. Additionally, Petitioner's Exhibits numbered 1 through 7 were admitted in evidence.
Respondent Lonny Ohlfest testified on his own behalf. Additionally, Respondent's Exhibits numbered 1 through 5 were admitted in evidence.
Both parties requested and were granted leave to file post-hearing findings of fact in the form of a proposed recommended order. Neither party has done so. However, Respondent has filed a post-hearing Brief. To the extent that that Brief contains proposed findings of fact, and to the extent that any proposed findings of fact have not been adopted in this Recommended Order, they have been rejected as not having been supported by the evidence, as having been irrelevant to the issues under consideration herein, or as constituting unsupported argument of counsel or conclusions of law.
At all times material hereto, Respondent was employed by the School Board of Dade County as a classroom teacher.
During the 1980-1981 school year, Respondent was assigned to Southwood Junior High School as a science teacher. During that school year, Dr. E. L. Burck was the principal at Southwood.
In August, 1980, Respondent applied for a part-time position teaching photography during the evenings at Robert Morgan Vocational Technical Institute. When Dr. John D. White, the vice principal at Robert Morgan, hired Respondent, he explained to Respondent that it would be necessary for Respondent to qualify for a teaching certificate in the area of photography. Respondent told White that he believed he was certifiable based upon his work experience and indicated to White that he would pursue the necessary steps to obtain his certification. At the time that White hired Respondent to teach part-time during the fall 1950 semester, White knew that Respondent was employed full-time at Southwood.
During the fall 1980 semester, the administrators at Robert Morgan determined they wished a full-time program at Robert Morgan and decided that if enough students would be generated, they would need a full-time photography teacher in January, 1981. The possibility of a full-time position was discussed with Respondent. Respondent decided that if he could obtain a full-time position at Robert Morgan in January, he would pursue obtaining certification; however, if he could not obtain a full-time position, he would not pursue obtaining certification since it was difficult to teach full-time at Southwood in addition to part-time at Robert Morgan.
During December, 1980, while enrollment was underway at Robert Morgan and it appeared probable that a full-time photography position would become available, Respondent spoke with Dr. Burck at Southwood regarding the possibility of transferring to Robert Morgan on a full-time basis beginning January 5, 1981, the first day of classes following the Christmas, 1980, vacation. Burck explained to Respondent the procedures relating to such a transfer of assignment and further explained that he needed to have definite information as soon as a final decision had been made so that he could initiate procedures for obtaining a teacher to replace Respondent.
Just prior to Christmas vacation, Dr. White (as the potential "receiving principal") and Dr. Burck (as the potential "sending principal") discussed the possibility of the full-time photography class and the possibility of Respondent's transfer to Robert Morgan to teach that class. White explained that he did not yet know if the full-time class would materialize but that he would give Burck two weeks' notice in order that Burck could find a replacement teacher. Burck conveyed to Respondent the content of this conversation and advised Respondent that until such time as the class materialized and Respondent was replaced at Southwood, Respondent was still a staff member at Southwood and Burck expected to see him on January 5, 1981.
Respondent did not report for work at Southwood on Monday, January 5, 1981, and failed to advise anyone at Southwood that he did not intend to return to teach his classes. Burck and another employee of Southwood attempted to locate Respondent.
On January 6, 1981, White ascertained that there was sufficient enrollment for the full-time photography teacher's position at Robert Morgan.
He instructed an employee at Robert Morgan to process the necessary paperwork to hire Respondent full-time. It was discovered that Respondent did not have, nor had he applied for, his vocational certificate covering the field of photography. Since White had told Respondent in August, 1980, to obtain certification and Respondent had apparently done nothing to do so, White gave to Respondent a deadline of Friday, January 9, 1981, to obtain verification of his ability to secure the proper teaching certificate.
Also on January 6, 1981, White and Burck discussed Respondent's employment. White advised Burck that Respondent was teaching part-time at Robert Morgan and that there appeared to be a problem with Respondent's certification. Burck then talked with Respondent, and Respondent told Burck that he was teaching at Robert Morgan as a full-time instructor and that the certification problem would be resolved shortly. Burck told Respondent he needed an immediate resolution because Respondent's students at Southwood were without a regular teacher. Burck reminded Respondent that Respondent's assignment was at Southwood and that no transfer had been officially requested or granted. Burck contacted Dr. Thomas Peeler, South Area Director, and requested Dr. Peeler's assistance in resolving Respondent's status.
On January 7, 1981, Dr. Peeler contacted White at Robert Morgan and advised White that Respondent was not reporting to work at Southwood. White had assumed that Respondent was reporting to his assigned school. Peeler instructed White to advise Respondent that he was to report to work at Southwood the following day. On January 7, White told Respondent to report to Southwood the following day.
On January 8, White again advised Respondent that he was to report to work at Southwood.
On January 9, White released Respondent from his part-time teaching assignment at Robert Morgan since Respondent had not achieved either obtaining the required certification or obtaining verification that he was in fact certifiable.
Also on January 9, Burck contacted Respondent and advised Respondent that he had not been transferred and was still assigned to Southwood.
On Monday, January 12, 1981, Dr. Peeler, the South Area Director, ordered Respondent to report to his teaching position at Southwood on Tuesday, January 13. Later that same day, Dr. Burck ordered Respondent to return to work on the 13th. Respondent told Dr. Burck that he would not return to work.
On January 13, Dr. Peeler wrote Respondent, ordering him again to immediately report to his teaching assignment at Southwood. Peeler advised Respondent that his failure to report could result in suspension.
In view of Respondent's continued refusal to obey orders, and in view of Respondent's advice to Burck the evening of January 12 that he would not report to Southwood to fulfill his teaching duties, a replacement teacher was located to fill Respondent's position as a science teacher at Southwood.
Between January 5, 1981, and January 30, 1981, Respondent did not report to his assigned teaching position despite repeated orders from his superiors, Respondent knew that his place of employment had not been changed, and Respondent was absent from his teaching duties without leave.
On January 30, 1981, a conference was held among Mr. Eldridge Williams, the Executive Director of the Office of Personnel for the Dade County Public Schools, Dr. Thomas Peeler, the South Area Director, and Respondent to discuss Respondent's repeated failure to report to work and Respondent's employment status. At that meeting, Respondent offered to return to work at Southwood on February 2, 1981; however, his position had been filled. Insofar as payroll status, Respondent was classified as absent without leave.
No alternate position was available for placement of Respondent through the remainder of the 1980-1981 school year.
On March 9, 1981, Patrick Gray, the Assistant Superintendent in the Office of Personnel, wrote Respondent regarding the south area supervisor's recommendation that Respondent be suspended or dismissed from employment.
Gray's letter ordered Respondent to immediately return to Southwood or to resign or to retire in order that his employment status could be resolved. At the time he wrote that letter, Gray was not aware that Respondent's position at Southwood had been filled.
In response to his letter of March 9, Gray received a letter from Respondent dated March 16, 1981, requesting another conference. A second conference between Respondent and Eldridge Williams was scheduled for April 2, but Respondent refused to meet with only Williams. Accordingly, a conference was scheduled for April 17, 1981, with Patrick Gray, Eldridge Williams, Dr. Peeler and Respondent. As a result of that conference, Respondent submitted a leave request dated April 22, 1981, requesting leave for the period of April 27, 1981, through the end of the school year in June, 1981. This request for leave was approved by Gray on August 7, 1981, retroactive for the period requested.
A formal letter of reprimand dated October 13, 1981, was issued to Respondent as a result of his insubordination in refusing to report as ordered to Southwood Junior High School.
During the 1981-1982 school year, Respondent was assigned to Redland Junior High School as a science teacher.
Utilizing proper procedures, Respondent was absent on September 16, September 28, October 6, October 22, October 23, October 26, October 27, October 28, October 29, October 30, November 2, November 3, November 4 and November 5, 1981. On September 28 and October 6, Respondent utilized personal leave. On the other 12 days, he utilized sick leave.
On November 5, 1981, Respondent advised Judy Cobb, Assistant Principal at Redland Junior High School, that he was looking for another job. Cobb advised Norman Lindeblad, Principal of Redland Junior High School, of this conversation with Respondent.
On Friday, November 6, 1981, Respondent advised Lindeblad that he would not be returning to his teaching assignment at Redland Junior High School. Respondent told Lindeblad to fill Respondent's teaching position, and Lindeblad
advised Respondent that he could not do so without receiving such directive in writing. Lindeblad advised Respondent that he expected Respondent to report to his teaching position on Tuesday, November 10, 1981, absent some other resolution of the problem such as approved personal leave or resignation.
Late in the evening on November 9, 1981, Respondent telephoned Lindeblad at home and advised Lindeblad that he would not report on Tuesday, November 10, 1981, to teach his classes.
On Tuesday, November 10, 1981, Respondent once again advised Lindeblad that he would not return to his teaching position at Redland. Respondent scheduled an appointment with Lindeblad on November 11 to finally resolve his status, and Lindeblad advised Respondent that unless verification of illness was provided, Lindeblad would commence recording Respondent's leave as leave without pay beginning on Friday, November 6, 1981.
On November 11, 1981, Respondent appeared at Redland Junior High School and gave to Lindeblad a memorandum authorizing Lindeblad to replace Respondent in his science teaching position as of Wednesday, November 11, 1981.
On November 16, 1981, the personnel office received an application for leave without pay from Respondent, which application was dated November 11, 1981, and which application requested leave effective November 11, 1981, due to Respondent's ill health. The portion of the application for leave requiring the signature and recommendation of the principal was not completed. Although the application required a statement from a physician justifying the request if the request were based upon ill health, Respondent provided only a short letter signed by a therapist possessing a degree in education stating that Respondent felt stress and frustration. No information regarding any physical symptoms, diagnosis or prognosis was volunteered.
Since proper procedures require the principal's recommendation for extended leave, Lindeblad was asked to provide his recommendation to the personnel office. On November 18, 1981, Lindeblad sent a memorandum to the Office of Personnel stating that he did not recommend approval of leave for Respondent since no statement from a physician had been provided to verify Respondent's alleged ill health and because Lindeblad felt that the Respondent had begun unauthorized leave before he even requested leave.
On November 19, 1981, Patrick Gray advised Respondent that Respondent's request for leave was not approved. Respondent was further advised that since he refused to carry out his teaching assignments for the second year in a row and since Respondent was simply attempting to obtain a teaching position in an area for which he was not certified and could not be certified, then Respondent's options were limited to either resignation or suffering suspension and dismissal proceedings.
Respondent did not resign, and dismissal proceedings were initiated.
Respondent was absent in accordance with proper procedures for the 14 days ending on November 5, 1981, as set forth in Paragraph numbered 24.
Commencing on November 6, 1981, Respondent was absent without leave.
Although Respondent eventually obtained verification of his work experience for the addition of photography to his teaching certificate, as of October 1, 1981, Respondent was still not certifiable for the reason that he still needed three full years of teaching experience and 14 semester hours of credit in vocational education courses. By the time of the final hearing in this cause, Respondent had still not obtained a teaching certificate enabling him to teach photography.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto. Section 120.57(1), Florida Statutes (1981).
The formal Notice of Charges filed by Petitioner against Respondent allege that Respondent is guilty of violating Section 231.36(6), Florida Statutes, by the commission of gross insubordination, incompetency and willful neglect of duty. The Notice of Charges further allege that Respondent is guilty of violating Section 231.44, Florida Statutes, by being absent without leave. Those statutory sections read as follow:
231.36(6) Any member of the . . . .
instructional staff . . . may be suspended or dismissed at any time during the school year; provided that the charges against
him must be based on incompetency,
gross insubordination, willful neglect of duty . . .
231.44 Any member of the instructional staff of any district who is willfully absent from duty without leave shall for- feit compensation for the time of such absence, and his contract shall be sub- ject to cancellation by the school board.
Petitioner has sustained its burden of proving Respondent guilty of all violations charged.
During the 1980-1981 school year, Respondent was employed to teach science classes at Southwood Junior High School. He did so for half of the school year. When he failed to return to his assigned teaching position on January 5, 1981, and when he refused to return to work in his assigned position as ordered by Principal Burck, Principal White and Area Supervisor Peeler, Respondent became guilty of insubordination (previously determined by Petitioner), of incompetency, and of willful neglect of duty. Respondent was absent without leave from January 5, 1981, until January 30, 1981, when he offered to return to work at Southwood. In mitigation of his conduct, Respondent proffers his desire to teach a different subject, one in which he is not certified. Respondent had been advised of his need to be certified to teach photography at Robert Morgan, and he chose to ignore that requirement. Respondent's failure to obtain certification to teach photography is no defense to his failure to appear at his assigned position. When Respondent refused to fulfill his legal and moral obligations to teach the students in his classes during the 1980-1981 school year, Petitioner issued a written reprimand to Respondent.
Respondent entered into another agreement with Petitioner to teach during the 1981-1982 school year at Redland Junior High School. As soon as classes began, Respondent commenced using up accumulated sick leave and personal leave. It is apparent that Respondent had no intention to fulfill his duties to teach science classes at Redland Junior High School. He told Assistant Principal Cobb and Principal Lindeblad that he did not intend to return to Redland. Respondent was told to make a decision to resolve his employment status and was advised as to the proper procedures. Respondent refused to follow the proper procedures and, in effect, placed himself on leave.
Respondent became absent without leave on November 6, 1981, and on that date became guilty of willful neglect of duty and incompetency. Once again, he refused to return to work as ordered on November 10, 1981, and on that date his continued refusal to obey orders of his immediate superiors became gross insubordination. Respondent refuses to work for Petitioner, and Petitioner has, accordingly, proven by competent and substantial evidence that Respondent is guilty of violating Sections 231.36(6) and 231.44, Florida Statutes, and should be dismissed from employment by Petitioner. Likewise, any claim for back pay by Respondent should be denied.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of
leave; dismissing Respondent from employment by the School Board of Dade County; and denying Respondent's claim for back pay.
DONE and RECOMMENDED this 21st day of January, 1983, in Tallahassee, Leon County, Florida.
LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building
Filed with the Clerk of the Division of Administrative Hearings this 21st day of January, 1983.
Jesse J. McCrary, Jr., Esquire 3000 Executive Building,
Robert F. McKee, Esquire
Leonard Britton Superintendent of Schools Dade County Public Schools Lindsay Hopkins Building 1410 NE Second Avenue Miami, Florida 33132
