vs. ) CASE NO.89-6375
Respondent. )
Pursuant to notice, the Division of Administrative Hearings by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on May 10, 1990, at Clearwater, Florida.
For Respondent: Robert F. McKee, Esquire
Whether Respondent is guilty of gross insubordination, misconduct in office and absent without leave as more fully alleged in letter dated November 7, 1989.
By letter dated November 7, 1989, Scott N. Rose, Superintendent of Schools, Pinellas County, Florida, advised Joseph Toumey, Respondent, that he would recommend to the School Board on November 22, 1989, that Toumey be dismissed from his position as teacher in the Pinellas County School System at the expiration of the 1989-1990 school year. As grounds therefor it is alleged that Respondent is guilty of gross insubordination in leaving school premises early after having been warned and disciplined previously regarding such conduct, and that he is guilty of misconduct in office by signing in a fellow teacher who was not on campus on October 13, 1989 and subsequently misrepresenting these facts to the staff and administrators.
At the hearing Petitioner called eleven (11) witnesses, Respondent called two (2) witness's, including himself, and twenty-six (26) exhibits were admitted into evidence. A proposed Recommended Order has been submitted by the Petitioner. All of those proposed findings are accepted except finding NO. 6, which is rejected as being inconsistent with the evidence Those other proposed
findings not included herein were deemed unnecessary to the conclusions reached. Proposed findings presented in Respondent's post-hearing brief are also accepted.
At all times relevant hereto Joseph A. Tourney held an Educator's Certificate from the Florida Department of Education (Ex. 1) and has been on continuing contract since 1972 with the Pinellas County School Board (Ex. 2). He has taught in the Florida School System for approximately 20 years with the last 14 years at Pinellas Park High School (PPHS) as a social studies teacher.
As early as 1970, while a teacher at Lakewood Senior High School, Respondent's negative attitude toward strict compliance with school policies was noted (Ex. 9). Much of this attitude was exhibited by arriving later than and departing prior to the time designated for teachers to be at the school (Ex. 10).
Following a review of Respondent's evaluations and conferences with him regarding his attitude respecting school policies and procedures to which Toumey did not agree, a recommendation was made by the Principal at Lakewood that Toumey be transferred (Ex. 12). Toumey was transferred to Largo High School.
No problems were reported regarding Toumey during his tenure at Largo. When Pinellas Park High School opened circa 1976 Toumey was transferred to that school. Hugh Kreiger was principal at Pinellas Park High School.
Krieger was a hands-on administrator who closely observed those under his supervision. The first time he observed Toumey depart school early he called him in and assigned Toumey permanent parking lot duty which required Toumey's presence at the parking lot until after the designated departure time. For the next five years no further problem was noted regarding Toumey's punctuality at school.
Krieger was replaced by Louis Williams and Toumey's attendance problems resumed. After repeated warnings about leaving school in the afternoon prior to the scheduled departure time for teachers (30 minutes after students are released) and a conference between Williams and Tourney, Williams requested a conference with Tourney and John Mixon, Director of Personnel Services for the school board.
This conference was held October 14, 1982 (Ex. 13). During this conference Respondents's early departures from school, his attitude toward school policies to which he disagreed, and his insensitivity to students was discussed and Tourney was advised that improvements in these matters was expected.
By memo dated February 28, 1983 (Ex. 15) Williams noted several occasions where Toumey had departed school early and Tourney was charged with one-half day's leave and given a written reprimand.
A subsequent documentation of Tourney leaving school early is contained in a memo dated November 7, 1986, from Williams to Tourney (Ex. 16).
On September 21, 1987, Nancy Blackwelder, Assistant Principal at PPHS, submitted a memorandum to Tourney memorializing a conference with him in which he was again reminded of his need to improve in classroom atmosphere conducive
to learning, judgment, and routine duties; and noting that if he failed to perform routine duties he would receive a written reprimand (Ex. 17).
On October 8, 1987, a conference was held between Tourney; Nancy Zambito, who replaced Dr. Mixon as Director of Personnel Services; the principal of PPHS, M. Heminger; and a union representative. The summary of this conference is contained in a memo from Zambito to Tourney dated October 3, 1987, (Ex. 18). In this conference Tourney's inappropriate behavior in class involving his participation in a program adopted by the school, Patriot Educational Partners (PEP), was discussed, Tourney was again reminded of the need to support school board policies and programs in his contact with students, and Tourney agreed to improve.
In November 1987 Tourney and the School Board entered into a Stipulation and Agreement (Ex. 19). In this Agreement Tourney acknowledged that he had been given less than satisfactory evaluations for the school years 1970-71, 1982-83, 1983-84, and 1986-87, that he had received numerous counseling sessions to discuss his failure to adhere to established school procedures and his negative comments to students. He also acknowledged that during the 1987-88 school year while assigned as advisor to a group of students with whom he is supposed to meet for five minutes each morning, he has frequently been late; that he referred to this program in the presence of students in negative and profane terms; and on one occasion he threw financial aid papers in the trash can and told students they could get them from there if they wanted them. For these infractions Tourney agreed to a suspension without pay for five days. He also acknowledged that further infractions may lead to a recommendation for his dismissal.
In his testimony at this hearing Tourney averred that most of the students who were given financial aid applications threw them on the floor from which they had to be picked up and placed in the trash baskets, and that he was merely shorting the process by throwing these applications in the trash can rather than pass them out to the students who would throw them on the floor.
On May 9, 1989, Respondent was issued a letter of reprimand (Ex. 20), by Principal Heminger for inappropriate conduct in his class during a visit to the class by members of the committee conducting a ten-year evaluation of the PPHS for accreditation during the period of April 25-28, 1989. In this reprimand he was also found to have arrived late at the final meeting of the Visiting Committee and to have returned from lunch with the odor of alcohol on his breath.
On September 12, 1989, a conference was held between John Reynolds, Assistant Principal at PPHS and Tourney to discuss Tourney's 1988-89 evaluation. This conference is memorialized in memorandum dated September 19, 1989, (Ex. 21). The areas in which improvement is expected in the evaluations are attitude, judgment and routine duties.
October 13, 1989, was an in-service day for teachers. This is a normal school day which only teachers attend. It was one of several similar days during the school year that teachers hold meetings, catch up on the grading of papers and perform tasks other than conducting classes for their students.
It is a day all teachers are expected to be present at school.
At PPHS in-service days have always been more informal than regular school days and in the past teachers have departed early once their tasks were completed. Prior to 1988 there had been no sign-in sheet for teachers at PPHS
but such a procedure was instituted and in effect for the in-service day of October 13, 1989.
Respondent appeared at school on October 13, 1989, as required but slightly late. Around 9:00 a.m. he received a telephone call from his good friend and fellow teacher in the social studies department, David Smith, who told respondent that he, Smith, had just awakened after not having slept well during the night, and Smith requested Respondent to sign him in and he would arrive shortly. Respondent did so.
After making the call, Smith went back to bed and when he again awoke it was afternoon and he realized he was suffering from flu-like symptoms and was too sick to go to school.
Several people were aware that Smith did not report to school on October 13, 1989 and reported same to the authorities. When confronted with the accusation both Tourney and Smith denied that Tourney had signed Smith in and that Smith was not at school that day. When he finally acknowledged his absence from school on October 13, 1989, Smith was suspended for three days without pay.
The October 13, 1989, incident was the culmination of a long history of Respondent's failure to comply with school policies and directives, to "trash" school programs to which he did not agree, and to be in the forefront of rebellion against such programs and policies which led to the proposed action of the school board to dismiss Respondent from his continuing contract as a teacher in the Pinellas County school system at the expiration of the 1989-90 school year.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and subject matter of these proceedings.
Section 231.36, Florida1 Statutes (1989), provides that a member of the district instructional staff, who is on continuing contract may be suspended or dismissed; however, the charges against him must be based on immorality, misconduct in office, incompetency, insubordination, willful neglect of duty, or conviction of a crime involving moral turpitude. The charges preferred against Tourney in these proceedings involve misconduct in office, gross insubordination and absence without leave for part of October 13, 1989.
It is noted that absence without leave is not a specific grounds for dismissal under Section 231.36, Florida Statutes; however, unauthorized absence is equatable, to or a form of, misconduct in office.
Pinellas County School Board policy 6Gx52-6.045 requires all instructional personnel to become familiar with statutes, rules and policies regarding the teaching profession; and policy 6Gx52-6.19 provides:
Each teacher shall be on duty not less than 7-1/2 hours per day except Fridays and the day before a holiday when teachers shall be on duty not less than 7 hours.
Teachers shall not leave school during duty hours for any reason without permission of the principal except during lunch period provided regular classes are not interfered
with and provided further that the office is notified.
Respondent violated those policies each time he left school early without permission.
Rule 6B-4.009, Florida Administrative Code, defines misconduct in office as the violation of the Code of Ethics of the Education Profession as adopted in Rule 6B-1.001, Florida Administrative Code and the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule 6B- 1.006, Florida Administrative Code, which is so serious as to impair the individuals effectiveness in the school system; and gross insubordination as a constant and continuing intentional refusal to obey a direct order, reasonable in nature and given by and with proper authority.
The Code of Ethics in Rule 6B-1.001, Florida Administrative Code involve concepts that teachers strive to exercise the best professional judgment and integrity and to sustain the highest degree of professional conduct.
Principals of Professional Conduct for the Educational Profession as enumerated in Rule 6B-1.006, Florida Administrative Code, involve an obligation not to intentionally expose a student to unnecessary embarrassment or disparagement; not to intentionally distort or misrepresent facts concerning an educational matter in direct or indirect public expression; and to maintain honesty in all professional dealings.
By continuing to leave school early after repeatedly having been told to remain at school until the designated departure time, Respondent exercised poor professional judgment. This also was an intentional refusal to obey a direct lawful order and constitutes gross insubordination.
By placing Smith's initials on the sign-in sheet on October 13, 1989, Respondent committed a fraudulent and dishonest act. In attempting to cover up this infraction Respondent engaged in further deceitful and dishonest practices. Both acts constitute misconduct in office.
It is noted that, except for the wrongful sign-in for Smith, Respondent's delicts are generally minor ones, none of which, standing alone, would constitute grounds for dismissal. However, these incidents do not stand alone. They represent a continuing pattern of disobedience of orders to remain in school until the authorized time for departure, and constitute a pattern of non-support, even disparagernent, of school policies with which Respondent was not in agreement. The attempts by his superiors to induce Respondent to correct these defects in conduct and attitude have ratcheted up from verbal warnings, written reprirnands, loss of pay and suspension; yet the problems persist. Under these circumstances little recourse is left to the School Board but to terminate Respondent as an employee of the School Board.
From the foregoing it is concluded that Respondent is guilty of misconduct in office, gross insubordination and absence without proper authority and that earlier disciplinary efforts have failed to deter Respondent from continuing this type conduct.
It is recommended that Joseph Tourney be dismissed from his position as a continuing contract teacher in the Pinellas County School System at the conclusion of the 1989-90 school year.
DONE and ENTERED this 5th day of July, 1990, in Tallahassee, Leon County, Florida.
K. N. AYERS Hearing Officer
Filed with the Clerk of the Division of Administrative Hearings this 5th day of July, 1990.
Dr. Scott N. Rose, Superintendent Pinellas County School Board
Robert F. McKee, Esquire Post Office Box 75638 Tampa, FL 33675-0638
