STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 87-5596

)

JASPER ROBINSON, )

)

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 3, 1988, in Miami, Florida.

Petitioner School Board of Dade County was represented by Johnny Brown, Esquire, Miami, Florida; and Respondent Jasper Robinson was represented by Lorraine C. Hoffman, Esquire, Miami, Florida.

At its regular meeting of December 9, 1987, Petitioner School Board of Dade County suspended Respondent Jasper Robinson from his teaching responsibilities and initiated proceedings to terminate his employment. Respondent timely requested a formal hearing on his suspension and dismissal. After this cause was referred to the Division of Administrative Hearings, Petitioner filed its Specific Notice of Charges. Petitioner subsequently filed an Amended Specific Notice of Charges without first filing a motion for leave to do so. However, Respondent filed an Answer to Amended Specific Notice of Charges, thereby stipulating to the amendment. Accordingly, the issues for determination herein are whether Respondent is guilty of the allegations contained within the Amended Specific Notice of Charges, and, if so, what action should be taken against him, if any.

Petitioner presented the testimony of Richard Woodward; James L. Chandler; Robert B. Rosbaugh; James E. Monroe; and Desmond Patrick Gray, Jr.

Additionally, Petitioner's Exhibits numbered 1-8 and 10-16 were admitted in evidence.

Respondent presented no testimony. However, Respondent's Exhibits numbered 1-4 were admitted in evidence.

Both parties submitted post-hearing proposed findings of fact in the form of proposed recommended orders. A ruling on each proposed finding of fact can be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times material hereto, Respondent was employed by Petitioner as a physical education teacher at Homestead Junior High School pursuant to a continuing contract.

2. On May 17, 1984, Assistant Principal Woodward sent a memorandum to Respondent regarding Respondent's late notification for absence from duty two days prior. That memorandum read, in pertinent part:

   
   

   I feel that it is essential that I again remind you of the problems caused by your late notification of the need for a substitute. Subs are difficult to get in the morning after the high schools have begun their day. Last year Mr. Rosbaugh covered a portion of your 1st period class at least 15 times. This year you have been out 10 1/2 days in addition to the entire month of December (12 days) and 9 days in January due to injury. You also have arrived late to homeroom on a number of occasions. Please direct your attention to these professional matters.

   
   

3. During the 1986-87 school year Respondent was absent approximately 30 days. In addition, Respondent's department head reported him for being tardy 13-15 times although Respondent was tardy on even more occasions.

   
   

4. During the 1987-88 school year between the commencement of school in August and December 9 when Respondent was suspended from employment he was absent from school approximately 60 days, 53 of which were leave without pay. He was also tardy approximately 15 times.

   
   

5. Because Respondent failed to notify the school when he expected to be tardy and because he repeatedly failed to notify the school when he would be absent, school personnel did not have time to obtain the services of a substitute teacher. Therefore, other teachers had to cover Respondent's physical education classes in addition to covering their own, thereby lessening the safety of the students in those physical education classes. At all times, Respondent's students were left running unsupervised in the hallways, thereby impacting other classes and other students' safety.

   
   

6. Respondent's department head discussed the problem with Respondent on numerous occasions during both the 1986-87 and the 1987-88 school years. He gave Respondent verbal directives to be prompt for all his classes since Respondent would be tardy not only for the first period class but would also disappear between periods and be tardy at the beginning of other periods.

   
   

7. School personnel had no telephone number for contacting Respondent. During the 1986-87 school year Respondent's department head went to Respondent's home on four or five different occasions to see if Respondent was coming to work since the school day had already begun and Respondent was absent. He also went to Respondent's home for the same purpose two or three times during the 1987-88 school year. Each time he went to Respondent's home, he found him asleep.

   
   

8. During the 1986-87 and 1987-88 school years Assistant Principal Woodward had meetings with Respondent on approximately 30 occasions to discuss Respondent's chronic lateness in reporting to work. He also went to Respondent's home after the school day had begun to find out if Respondent would

   be coming to school that day six or seven times during 1986-87 and two or three times during 1987-88. On one such occasion--March 12, 1987--he went to Respondent's home and awakened Respondent at 10:30 a.m.

   
   

9. Assistant Principal Woodward directed Respondent on numerous occasions to observe the school's required procedures for notifying the school of Respondent's absences or tardiness.

   
   

10. Each time Respondent was awakened at his home by school personnel, he was very apologetic, promised to do better, and stated that he fully understood the required procedures and the impact on his classes. Each time, he explained that he had overslept and that he had personal problems.

    
    

11. Although Respondent promised improvement, no improvement occurred.

    
    

12. On a number of occasions Assistant Principal Woodward recommended that Respondent contact the employee assistance program due to Respondent's stated problems with oversleeping and Respondent's repeated advice that he had personal problems and since Woodward noticed that Respondent was losing weight and evidencing some differences in personality. However, Respondent refused to contact the employee assistance program.

    
    

13. Principal Chandler had numerous conferences with Respondent both years formally and informally regarding his absences and tardiness. He offered Respondent transportation to school even though Respondent lived only a few blocks away. Respondent declined his offer of transportation. Principal Chandler visited Respondent at Respondent's mother's home at Respondent's request three times during 1987-88. He also had a meeting with Respondent and some of Respondent's associates with whom he was experiencing problems with paternity charges.

    
    

14. Based upon Respondent's continued failure to comply with reporting procedures, and based upon Respondent's repeated excuse that he overslept and/or had personal problems, and based upon Respondent's statements made to him during one of the meetings at Respondent's mother's home, Chandler requested Respondent to undergo a fitness examination which Respondent refused.

    
    

15. Based upon Respondent's refusal to undergo a fitness examination and Respondent's refusal to comply with the directives to be punctual and to comply with reporting requirements, Chandler contacted the Office of Professional Standards of the Dade County Public Schools. An official conference for the record was scheduled for November 3, 1987, and Respondent failed to appear.

    
    

16. A second conference for the record was scheduled for November 18, 1987, and Respondent attended that conference.

    
    

17. Respondent was requested to sign the notice acknowledging that he had been notified of the conference he was attending, and he refused to acknowledge receipt of that notice Respondent was ordered to undergo a fitness determination, and he refused to comply.

    
    

18. On November 18, Respondent was assigned to his home, thereby terminating his assignment to Homestead Junior High School. On November 23, he was assigned to the Area Office but he refused to report to the Area Office. On December 1, 1987 he was temporarily assigned to Arvida Junior High School. However, he indicated he had transportation problems and could not report there. On December 2, he again indicated that he had transportation problems and again

    would not report there that day. On December 3, he again indicated that he had transportation problems and that he could not accept the assignment on that day or any other day.

    
    

19. Respondent's absences exceeded the amount of accumulated leave and sick leave during both 1986-87 and 1987-88.

    
    

20. Respondent never indicated to any of his superiors that he was unable to comply with the directives to improve his attendance and correct his tardiness.

    
    

21. Respondent never indicated that he was sick; rather, he continuously maintained that his problem was simply a matter of oversleeping resulting from his personal problems. Accordingly, the extended sick leave provisions in the union contract between the teachers in Dade County and Petitioner do not apply to Respondent. Even if they did, there are no provisions in that contract which permit a teacher to continually be tardy for that teacher's first period class and to disappear between classes and report for the next class 10 or 15 minutes late as was Respondent's pattern of behavior.

    
    

22. Petitioner has exhausted all available resources in its attempt to assist Respondent, and there is no expectation of improvement on Respondent's part.

    
    

23. Respondent's effectiveness as a teacher has been impaired by his failure to be in regular and punctual attendance for his assigned duties.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

25. Section 231.36(4)(c), Florida Statutes, provides that a teacher who is under continuing contract may be suspended or dismissed provided that the charges against that teacher be based upon, inter alia, misconduct in office, incompetency, gross insubordination and willful neglect of duty. Section 6B- 4.009, Florida Administrative Code, contains the criteria for suspension and dismissal of instructional personnel and defines those terms used in section 231.36(4)(b), Florida Statutes.

    
    

26. Rule 6B-4.009(1), Florida Administrative Code, defines incompetency as "inability or lack of fitness to discharge the required duty as a result of inefficiency or incapacity." That section further defines inefficiency to include a repeated failure to perform duties prescribed by law and defines incapacity to include lack of emotional stability and lack of adequate physical ability. Petitioner has proven Respondent to be guilty of incompetency. As early as May of 1984 and continuously during the 1986-87 and 1987-88 school years until his suspension on December 9, 1987, Respondent was excessively absent from his teaching duties, was chronically tardy for his teaching duties, and continuously failed to report in advance that he would be either absent or tardy. Although repeatedly counseled regarding those deficiencies and although repeatedly directed both verbally and in writing to correct those deficiencies, Respondent refused to correct those deficiencies. In an effort to determine if there were some medical reason for Respondent's pattern of oversleeping, Petitioner directed Respondent to undergo a fitness examination but Respondent refused to do so. Respondent does meet the definition of incompetency.

27. Rule 6B-4.009(3), Florida Administrative Code, defines misconduct in office as a violation of the Code of Ethics of the Education Professional (Rule 6B-1.001) and the Principles of Professional Conduct for the Education Profession in Florida (Rule 6B-1.006) which is so serious as to impair the individual's effectiveness in the school system. While Petitioner has proven that Respondent's behavior of refusing to report to work on time or at all is so serious as to impair his effectiveness in the school system, the Amended Specific Notice of Charges fails to allege, and Petitioner has failed to prove, any specific violation of the Code of Ethics of the Education Profession and the Principles of Professional Conduct for the Education Profession in Florida. Accordingly, Petitioner has failed to prove Respondent guilty of misconduct in office.

    
    

28. Rule 6B-4.009(4) defines gross insubordination/willful neglect of duties as "a constant or continuing intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority." Petitioner has clearly proven that Respondent has constantly and continuously refused to report for work on time, report for each of his classes on time, follow reporting requirements for absences and tardiness, submit to a fitness examination, report to the Area Office when assigned to do so, and report to Arvida Junior High School when assigned to report there.

    
    

29. Respondent's thrust during the final hearing in this cause was that Respondent was ill and certain union contract provisions would have entitled him to additional leave; therefore, his absences were not excessive. Respondent's argument is without merit. First of all, Respondent never took the position that he was ill but rather only consistently took the position that he overslept due to personal problems. Second, the union contract provision relied upon applies only to sick employees and requires the School Board's approval. There is no evidence that Respondent was sick--a loss of weight is frequently intentional and does not prove illness. Further, no evidence was offered that School Board approval for extended sick leave was ever sought by Respondent. Third, even if the sick leave provisions of the contract applied in this instance, no evidence was offered to show that Respondent's continued tardiness in reporting for the workday and in reporting to subsequent classes during the workday was caused by any illness. Even the School Board's attempt to give Respondent the benefit of the doubt that his problems might be related to a medical condition was rejected by Respondent when he refused to undergo a medical examination. He cannot now be heard to allege some medical condition existed when he has refused to provide any proof of such a medical condition. Fourth, Respondent's refusal to undergo the fitness determination followed by his refusal to report to the Area Office followed by his refusal to report to his new assignment at Arvida Junior High School are each alone sufficient grounds for the suspension and termination of his employment for incompetency and for gross insubordination or willful neglect of duties as defined by Rules 6B-4.009(1) and (4), Florida Administrative Code.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is,

RECOMMENDED that a Final Order be entered dismissing Respondent from his employment with the School Board of Dade County and denying him any claims for back pay and benefits.

DONE and RECOMMENDED this 9th day of August, 1988, at Tallahassee, Florida.

LINDA M. RIGOT, 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 9th day of August, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-5596

1. Petitioner's proposed findings of fact numbered 1 has been adopted in this Recommended Order.

2. Petitioner's proposed findings of fact numbered 2-16 have been rejected as not complying with Rule 22I-006.31(3), Florida Administrative Code, and also as not constituting findings of fact but rather as constituting recitation of the testimony.

3. Respondent's proposed findings of fact numbered 1 and 2 have been adopted in this Recommended Order.

4. Respondent's proposed finding of fact numbered 3 has been rejected as not being supported by the weight of the evidence in this cause.

5. Respondent's proposed findings of fact numbered 4 and 5 have been rejected as being subordinate to the issues under consideration herein.

6. Respondent's proposed findings of fact numbered 8 and 17-19 have been rejected as being irrelevant to the issues under consideration herein.

7. Respondent's proposed findings of fact numbered 12, 14, and 15 have been rejected as being contrary to the weight of the evidence in this cause.

8. Respondent's proposed findings of fact numbered 6, 7, 9-11, 13, 16, and

20 have been rejected as not constituting findings of fact but rather as constituting either recitation of the testimony or argument of counsel.

COPIES FURNISHED:

Joseph A. Fernandez, Superintendent Dade County Public Schools

1450 Northeast Second Avenue Miami, Florida 33132

Johnny Brown, Esquire

Dade County Public Schools 1450 Northeast Second Avenue Miami, Florida 33132

Lorraine C. Hoffman, Esquire 2929 Southwest Third Avenue Suite One

Miami, Florida 33129

Docket for Case No: 87-005596

Orders for Case No: 87-005596