STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY, ) FLORIDA, )

)

Petitioner, )

)

vs. ) CASE NO. 83-464

)

GEORGE W. BUTLER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on June 30, 1983, in Coral Gables, Florida.

APPEARANCES

For Petitioner: Madelyn P. Schere, Esquire

Dade County School Board

141 Northeast Second Avenue Miami, Florida 33132

For Respondent: Ellen L. Leesfield, Esquire

2929 Southwest Third Avenue, Fifth Floor Miami, Florida 33129

Petitioner suspended Respondent from his employment on February 2, 1983, and initiated dismissal proceedings against him for willful neglect of duty, immorality and misconduct in office. Respondent timely requested a formal hearing on the allegations contained in the Notice of Charges. Accordingly, the issues for determination are whether Respondent is guilty of the allegations contained within the Notice of Charges and, if so, what disciplinary action should be taken against him, if any.

Petitioner presented the testimony of Albert H. Howard, Basha Schlazer, Jane Morton, Desmond Patrick Gray, Jr. and, by way of deposition, Joseph E. Zaher. Additionally, Petitioner's Exhibits numbered 1 through 6 were admitted in evidence. The Respondent testified on his own behalf and presented the testimony of Roxcy Bolton, Basheba Wright, Rodrick Silva, Cheryl Darlene Jackson and, by way of deposition, Ralph Moore. Additionally, Respondent's Exhibit numbered 1 was admitted in evidence.

Both parties submitted posthearing proposed findings of fact in the form of a proposed recommended order. To the extent that any proposed findings 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.

FINDINGS OF FACT

1. Respondent has taught in the State of Florida for 33 years. The last

   26 of those years have been with the Dade County school system. His most recent assignment was at Coral Gables Senior High School as a Cooperative Education teacher.

   
   

2. Part of the duties of a Cooperative Education teacher is to work two weeks each summer doing preplanning activities prior to the opening of the fall term. The two weeks are to be used for job development, developing training plans, getting training agreements signed by employers, visiting parents of students that will be in the program in, the fall, recruiting, and reviewing student files. One week is required to occur just prior to the opening of school in the fall. The second week can be taken at any time during the summer after summer school starts on July 5.

   
   

3. During the summers of 1978, 1979, 1980 and 1981, Respondent had a summer job with the City of Miami as director of the lunch program in the City's parks. In that job, he supervised four monitors employed by the lunch program, who visited the parks and reported back to Respondent. Respondent also visited the parks to ensure that the lunch program operated efficiently, and he was responsible for much of the paperwork involved in the program, including tally reports.

   
   

4. During each of the summers in question, the lunch program for the City of Miami ran for eight weeks. Although the Recreation Department of The City of Miami requires that its administrative offices be open during the normal working hours of 8:00 a.m. until 5:00 p.m., the same schedule was not required of persons working in the lunch program. The monitors working in the lunch program were part-time employees for the reason that the caterer commenced delivering lunches to the various parks at approximately 10:30 a.m. The anticipated schedule was that lunches would be served to the children involved in the program between noon and, hopefully, 1:00 p.m. but by 2:00 p.m. at the latest. Although there were more parks involved in the program than monitors, each park had its own supervisors overseeing operation within the park. If a problem arose regarding delivery of the lunches or during the serving of the lunches and neither Respondent nor any of the monitors were on site, the park's employees could temporarily resolve the problem and call the office at the City of Miami to advise of the need for any further assistance.

   
   

5. During most of his eight-week employment with the City of Miami, Respondent worked normal hours involved in a 40-hour work week. However, during the summers of 1978, 1979, 1980 and 1981, two weeks of the City's lunch program involved the same two weeks when Respondent was employed by the School Board for his preplanning activities. The two-week periods (actually ten working days) when Respondent was on the payrolls of both the School Board of Dade County and the City of Miami were as follows: August 7-18, 1978; August 6-17, 1979; July 28-August 8, 1980; and August 10-21, 1981.

   
   

6. Respondent was hired each of the summers involved by Basha Schlazer, the Recreation Program Supervisor for the City of Miami. Prior to Respondent's acceptance of the summer job each year, he advised Schlazer that he had a two- week preplanning period which would overlap the City's employment, during which time he would be a full-time employee of the School Board and he would have to work at Coral Gables Senior High School before he could undertake his duties at the City of Miami. Schlazer told Respondent not to worry about it, since his

   duties with the City could be worked around his duties with the School Board. Because his employment at the City of Miami would not interfere with his work hours at Coral Gables Senior High School during those two weeks inn question each year, Respondent accepted the position with the City of Miami. Schlazer was Respondent's immediate supervisor during his employment with the City of Miami.

   
   

7. During the two-week employment overlap period each summer, Respondent went to Coral Gables Senior High School at approximately 7:30 to 8:00 a.m. He worked there each day completing the activities previously planned for in the plans completed by him, as required of all teachers prior to their summer employment. He completed all of the activities listed in his daily plans and left Coral Gables Senior High-School at approximately 1:30 p.m. each day. He then went to his job at the City of Miami, arriving there at approximately 2:00 to 2:30 p.m. He then worked at the City of Miami until approximately 5:00 p.m. He took home with him the paperwork he did not complete at his job with the City and completed that paperwork during the evenings and on weekends. The hours during which Respondent worked at home were supplemented, at Schlazer's request, by Respondent working on other activities involving the City of Miami, such as working at talent shows, dog shows and a hula-hoop contest, all during the evening or weekend hours. Respondent was not compensated for these extra activities, but rather, at Schlazer's direction, he continued to simply fill out payroll sheets so they reflected that he continued to work eight hours a day during those two weeks in question each year. By devoting his own time to his duties at the City during the two weeks in question each year, Respondent continued to enjoy his reputation at the City as a good worker, and the park lunch program ran smoothly at all times under his direction. The only difference which occurred in The lunch program during the two weeks of overlap is that during that time the park employees and monitors were instructed not to call in if there were a problem until after 2:00 p.m., when Respondent came to work.

   
   

8. During each of The two weeks of each of the four summers in question, Respondent was never at the City of Miami in the mornings except on one occasion during the summer of 1981. On that day, Respondent worked at Coral Gables Senior High School until 11:00 a.m., when he was entitled to a break. During that break, he drove to the City of Miami to drop off a report that he had completed at home the night before. As he was leaving the City of Miami office to return to Coral Gables Senior High School, he received a telephone call from his department chairman at the school telling him that his principal wished to speak with him.

   
   

9. During the regular school year, Respondent is not expected to be at Coral Gables Senior High School throughout the normal teaching day because of the nature of his teaching position. Rather, he is expected to be off the campus canvassing to find prospective employers, visiting parents, following up on job leads and otherwise doing the normal activities expected of a teacher in the Cooperative Education program. Although the contract between the School Board and the teachers' union specifies that the contractual workday for teachers in senior high schools is 7 hours and 20 minutes long, commencing at 7:30 a.m. and ending at 2:40 p.m., That was not necessarily Respondent's workday normally, since his job took him off the school site. Respondent believed that the work hours required during The two-week preplanning period were more lenient, and no evidence was introduced that Respondent had ever been advised of the specific time frame contained within the union's contract with the School Board.

10. The School Board utilizes a form entitled "Voucher for In-County Travel Reimbursement and Monthly Visitation Report for Vocational Cooperative Teachers." Although Cooperative Education teachers are required to provide such forms for travel reimbursement regarding mileage and have been so advised during various monthly inservice meetings, some of those teachers do not fill out those forms for reimbursement, since they choose to claim those items on their personal income tax returns. Respondent is one of those teachers. If a teacher chooses not to fill out such a form, no monitoring is done by the School Board since there is no specific rule which would be violated by the failure to fill out such a form. It simply means that the School Board will not have to reimburse its employees for travel expenses.

    
    

11. In his 33 years of teaching in the State of Florida, 26 years of which have been for the School Board of Dade County, Respondent has never been suspended or disciplined.

    
    

12. No evidence was presented to show that Respondent's work with the City of Miami interfered with his School Board job.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto. Section 120.57(1), Florida Statutes (1981).

    
    

14. The Notice of Charges filed herein alleges that Respondent has violated the provisions of Section 231.36(6), Florida Statutes, and is guilty of immorality, misconduct in office and willful neglect of duty in that during the four summers in question Respondent was a full-time employee of both the School Board of Dade County and of the City of Miami, in that Respondent engaged in dual employments at the same time in violation of contract provisions between the teachers' union and the School Board, and that Respondent's employment with the City of Miami was not approved by the Superintendent of Schools of Dade County. Petitioner has failed to prove that Respondent is guilty of immorality, misconduct in office, or willful neglect of duty. Although Respondent stipulated that there were four periods of time in which he was employed by the City of Miami in addition to being a full-time employee of the School Board of Dade County for his two-week preplanning activities, the evidence demonstrates that Respondent fulfilled his full-time employment duties with the School Board prior to engaging in any activities on behalf of his temporary second employer, The City of Miami. Although Respondent was employed by two employers on the same dates, he was not employed by two employers for the same hours. Although The evidence is clear that during each of the two-week periods in question Respondent worked at Coral Gables Senior High School somewhat less than the required 7 hours and 20 minutes per day, no evidence was offered to indicate that Respondent had ever been advised that he was required to work there 7 hours and 20 minutes per day. Likewise, Petitioner has failed to prove Respondent violated the contract between the teachers' union and the School Board, both by Petitioner's failure to introduce that contract in evidence and by Petitioner's failure to prove that Respondent was aware of any contract provision between his union and the School Board. Lastly, Petitioner has failed to prove any violation of any statutory provision by Respondent in failing to obtain the approval of the Superintendent of Schools of Dade County of his employment with the City of Miami for the reason That no evidence was even offered to show such a requirement that the Superintendent of Schools approve, in writing or otherwise, of how a teacher spends his free time when he is not engaged in his employment with the School Board of Dade County. As to Petitioner's attempt to

show some kind of wrongful conduct in Respondent's failure to request reimbursement from the School Board for his travel expenses, no charges regarding such conduct were filed against Respondent, probably for the reason that there is no statute or rule which requires an employee to request reimbursement from his employer for travel expenses with failure to do so requiring some type of disciplinary action.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing the Notice of Charges

filed against Respondent and reinstating him to his former position with full back pay.

DONE and RECOMMENDED this 4th day of October, 1983, in Tallahassee, Leon County, Florida.

LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 4th day of October, 1983.

COPIES FURNISHED:

Madelyn P. Schere, Esquire Dade County School Board

141 Northeast Second Avenue Miami, Florida 33132

Ellen L. Leesfield, Esquire 2929 SW Third Avenue,

Fifth Floor

Miami, Florida 33129

Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1410 NE Second Avenue Miami, Florida 33132

================================================================= AGENCY FINAL ORDER

================================================================= THE SCHOOL BOARD OF DADE COUNTY, FLORIDA

SCHOOL BOARD OF DADE COUNTY,

Petitioner,

vs. CASE NO. 83-464

GEORGE Y. BUTLER,

Respondent.

/

FINAL ORDER

OF THE SCHOOL BOARD OF DADE COUNTY, FLORIDA

THIS CAUSE coming on to be heard before The School Board of Dade County, Florida, at its regular meeting of November 2, 1983, and the Board having heard arguments on the Exceptions filed by the Petitioner herein and having read the record in this case and being fully advised in the premises, it therefore

ORDERED as follows:

1. The findings of fact made by the Hearing Officer, Linda M. Rigot, in her recommended order signed October 4, 1983, are hereby accepted and made a part hereof with the following exceptions:

   
   

   The Hearing Officer's finding that George W. Butler left Coral Gables Senior High School daily at approximately 1:30 P.M. each day is not supported by competent substantial evidence. Paragraph 7 of the recommended order is amended to reflect the fact that Respondent worked at Coral Gables Senior High School until after 12:00 o'clock or 1:00 o'clock P.M. each day during the summer planning sessions of 1979, 1980, and 1981. On each of those days, Respondent knowingly worked less than the 7-hour 20-minute workday. He worked from four to six hours each day.

   
   

   These modified findings of fact are substantiated by competent evidence found in the transcript on pages 170, and 177-178.

   
   

2. The School Board rejects the conclusions of law of the Hearing Officer except as indicated hereinbelow:

   
   

   1. The School Board accepts the finding in paragraph 1 of the Hearing Officer's conclusions of law.

      
      

   2. The School Board accepts and adopts the findings in paragraph 2 of the Hearing Officer's conclusions of law, except for the finding that "Petitioner has failed to prove that Respondent is guilty of . . . misconduct in office and the finding that " . . . Respondent worked at Coral Gables Senior High School somewhat less than the required seven hours and 20 minutes per day . . . " The

School Board finds that while there was no evidence that Respondent was previously advised of the 7-hour 20-minute workday, he was aware of what his workday was comprised. Respondent worked from four to six hours per day during at least 30 days of the days in issue. This is from one hour and 20 minutes to two hours and 20 minutes less than the required workday. This action constitutes misconduct in office, pursuant to Section 6B-4.09(3), Florida Administrative Code.

WHEREFORE, The School Board of Dade County, Florida, rejects the recommendation of the Hearing Officer in this case and orders that:

1. Respondent be suspended without pay for 30 days effective February 2, 1983.

   
   

2. That Respondent be reinstated with back pay, effective March 17, 1983.

DONE AND ORDERED this 2nd day of November, 1983.

THE SCHOOL BOARD OF DADE COUNTY, FLORIDA

BY:

Chairman

Docket for Case No: 83-000464

Orders for Case No: 83-000464