STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 86-4804

)

MAGDA CENAL, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a public hearing in the above-styled case on June 2, 1987, in Miami, Florida.

APPEARANCES

For Petitioner: Johnny Brown, Esquire

1450 Northeast Second Avenue, Suite 301

Miami, Florida 33132

For Respondent: William DuFresne, Esquire

2929 Southwest Third Avenue, Suite C Miami, Florida 33129

PRELIMINARY STATEMENT

At issue in this proceeding is whether Respondent, a teacher, should be dismissed from her employment with Petitioner, School Board of Dade County. The gravamen of Petitioner's charge is that Respondent's excessive absenteeism for the school years 1975-76 through 1985-86 demonstrates incompetency, gross insubordination, and willful neglect of duty. Respondent contends that, pursuant to her contract of employment, she has a right to job protection when on approved leave, and that all absences were duly approved.

At hearing, Petitioner called as witnesses: Robert Gabriel, Arthur Miles, William Renuart, Gloria Fisher, Patrick Gray, and James Monroe. Petitioner's exhibits 1-39 were received into evidence. Respondent testified on her own behalf, and her exhibit 1 was received into evidence.

The transcript of hearing was filed July 6, 1987, and the parties were granted leave until July 16, 1987, to file proposed findings of fact. The parties' proposed findings have been addressed in the appendix to this recommended order.

FINDINGS OF FACT

1. Respondent, Magda R. Cenal (Cenal) has been employed by Petitioner, School Board of Dade County (School Board) as a music teacher for primary grades

   since 1972. On November 19, 1986, the School Board suspended Cenal from her position, and sought her dismissal for excessive absenteeism for the school years 1975-76 through 1985-86. Cenal contests the School Board's action, and contends that she has a right to job protection under her contract of employment when on approved leave and that all her absences were duly approved.

   
   

2. The proof is uncontroverted that during the school years 1975-76 through 1985-86 Cenal was absent from her employment for protracted periods of time, and that such absences impaired her effectiveness in the school system and deprived her pupils of a minimum educational experience. The proof is also uncontroverted that Cenal was repeatedly directed to improve her attendance, but failed to do so. Resolution of this case is, however, dependent on whether Cenal's absences were consistent with the terms of her contract of employment (approved). If consistent, she is entitled to employment protection, and the impact of her absences is not relevant.

   
   

3. Article XIV of the contract between the School Board and the United Teachers of Dade, prescribes the leaves of absence available to teachers employed by the School Board, as well as the accrual and use of sick leave. If an employee's absence is in accordance with the provisions of this contract it is deemed approved, and their employment rights are protected.

   
   

4. In the instant case Cenal avers that all her absences were approved. The School Board concedes that at no time was Cenal absent without approved leave and, notably, did not contest the propriety of a single absence.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

   
   

6. The School Board seeks Cenal's dismissal predicated on its assertion that she violated the provisions of Sections 231.44 and 231.36(4)(c), Florida Statutes. Section 231.44 provides:

   
   

   Any district school board employee who is willfully absent from duty without leave shall forfeit compensation for the time of such absence, and his employment shall be subject to termination by the school board.

   
   

   Pertinent to this case; section 231.36(4)(c) provides:

   
   

   Any member of the district administrative or supervisory staff and any member of the

   instructional staff, including any principal, who is under continuing contract may be suspended or dismissed at any time during the school year; however, the charges against him must be based on ... misconduct in office, incompetence, gross insubordination, willful neglect of duty...

   
   

7. In the instant case, since each of Cenal's absences were approved, she is clearly not in violation of the provisions of Section 231.44, Florida Statutes. Similarly, since her absences were consistent with the terms of her contract, it cannot be reasonably concluded that the taking of such approved

leaves, or the impact her absences may have had on her pupils, constituted misconduct in office, incompetence, gross insubordination or willful neglect of duty.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Magda R. Cenal, be reinstated with back pay,

and all other benefits to which she is rightfully entitled.

DONE and ENTERED this 25th day of August, 1987, in Tallahassee, Florida.

WILLIAM J. KENDRICK

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 25th day of August, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4804

Petitioner's proposed findings of fact are addressed as follows:

1. Addressed in paragraph 1.

2. Not necessary to result reached. 3-6. Addressed in paragraph 2-4.

7-10. To the extent relevant, addressed in paragraph 2. Mr. Renuart's evaluation of Respondent during the 1978-79 school year and his recommendation that she be dismissed was not acted upon by the School Board. Other than her absence record, there is no competent proof that she suffered any deficiencies noted by Mr. Renuart in subsequent years.

11-17. Addressed in paragraphs 2-4.

18-19. Addressed in paragraph 2.

20-22. Not necessary to result reached. 23-24. Addressed in paragraph 2.

25. Not supported by competent proof. 26-32. Addressed in paragraph 2.

33. Not necessary to result reached.

34-37. To the extent relevant, addressed in paragraph 2.

1. Addressed in paragraph 2.

2. Addressed in paragraph 4.

3. Addressed in paragraph 2.

4. Not necessary to result reached. Also see paragraphs 1-4 of recommended order.

Respondent's proposed findings of fact are addressed as follows:

1. To the extent relevant, addressed in paragraph 1.

2. Respondent's absenteeism is addressed in paragraph 2. The interrogatories filed in this case are not, however, probative since they were not introduced into evidence.

3. Addressed in paragraph 2.

4. Addressed in paragraph 4.

5. Addressed in paragraph 3.

6. Addressed in paragraph 2. Also see the address to petitioner's proposed findings of fact 7-10.

COPIES FURNISHED:

Johnny Brown, Esquire

1450 Northeast Second Avenue Suite 301

Miami, Florida 33132

William DuFresne, Esquire 2929 Southwest Third Avenue Suite C

Miami, Florida 33129

Honorable Betty Castor Commissioner of Education The Capitol

Tallahassee, Florida 32399

Dr. Leonard Britton Superintendent of Schools Dade County School Board 1450 Northeast Second Avenue Suite 301

Miami, Florida 33132

Docket for Case No: 86-004804

Orders for Case No: 86-004804