vs. ) CASE NO. 90-7847
PAUL N. FJELL, )
Respondent. )
Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer from the Division of Administrative Hearings, on April 2, 1991, in Miami, Florida.
For Petitioner: James C. Bovell, Esquire
Du Fresne and Bradley, P.A. 2929 Southwest 3rd Avenue Suite One
The issue presented is whether Respondent is guilty of the allegations contained in the Notice of Specific Charges filed against him, and, if so, what disciplinary action should be taken against him, if any.
At its regularly scheduled meeting of December 5, 1990, Petitioner took action to suspend Respondent and to terminate his employment as a teacher.
Respondent timely requested a formal hearing on the allegations against him, and this matter was subsequently transferred to the Division of Administrative Hearings for the conduct of that formal proceeding.
Petitioner presented the testimony of Craig J. DePriest; Terrell Underwood; Ben McCardel; Edward Henderson; Eugene McAllister; Sheridan Mills; Joyce Annunziata; John C. Eustace, M.D.; William R. Perry, Jr.; and Desmond Patrick Gray, Jr. The Respondent testified on his own behalf. Additionally, Petitioner's Exhibits numbered 1-14 and 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 specific ruling on each proposed finding of fact can be found in the Appendix to this Recommended Order.
Respondent Paul N. Fjell is a 45-year-old graduate of Eastern Illinois University. In 1970, he was employed as a teacher by Petitioner, the School Board of Dade County, Florida. He subsequently was placed on continuing contract and continued in his capacity as a teacher for Petitioner until December 5, 1990, when he was suspended from his employment and this termination proceeding was commenced.
Respondent has a long history of alcohol abuse. Since 1984, Petitioner has encouraged Respondent to avail himself of the services offered by Petitioner's Employee Assistance Program (hereinafter "EAP"). Respondent has been referred on a number of occasions to the EAP by his supervisors since his alcohol problem appeared to be a fitness-related problem.
On April 25, 1986, Respondent was admitted to the Addiction Treatment Program at Mount Sinai Medical Center, where he remained hospitalized for 28 days. His admitting diagnosis was poly-drug dependency and alcoholism. Respondent had been referred to that program by Petitioner's EAP.
During the 1988-1989 school year Respondent again came to the attention of the Office of Professional Standards when he was removed from his position at Horace Mann Middle School because of absences and a resulting referral to EAP.
Respondent was next assigned to two Cope Centers (North and South). He was assigned to work one-half day at each Center as a Work Experience Coordinator. Respondent's duties were to teach a class of young, pregnant students, locate part-time jobs for them, and monitor them at their places of employment.
A Work Experience Coordinator occupies a highly visible position since the Coordinator must visit businesses and other organizations in the community in order to locate jobs for students. After approximately two months, Respondent was removed from his position at both Centers because of his non- performance and because of complaints from students, staff, faculty, and a School Board member that Respondent had the odor of alcohol on his breath at work.
Respondent was next assigned to the Office of Vocational, Adult, Community, and Career Education (hereinafter "OVACCE"). The offices of OVACCE are located in the School Board Administration Building; consequently, Respondent had little contact with students or the public. While he was assigned there, Respondent was repeatedly absent, did not produce any work that could be used, and his supervisor detected an alcohol odor about Respondent. As a result, prior to the end of the 1989-1990 school year, Respondent was removed from OVACCE and relocated to the Dorsey Skill Center for a few months to complete the school year.
In August, 1990, Respondent was arrested and charged with driving under the influence, leaving the scene of an accident, and violation of driving restrictions. On August 15, 1990, a conference-for-the-record was held in Petitioner's Office of Professional Standards (hereinafter "OPS"). At that
time, Respondent's arrest record and employment history were reviewed, and he was given specific directives as to the procedures he must thereafter follow regarding absences. Respondent was then placed on alternate assignment pending court disposition of his DUI arrest.
Respondent was temporarily placed in the Physical Education Department at the School Board Administration Building at the end of August, 1990. His duties were essentially clerical in nature: stuffing envelopes, collating documents, distributing mail, and re-arranging the mail boxes. Within five weeks, his supervisor requested that OPS remove Respondent from that work assignment. His supervisor complained that Respondent reported late for work, left early, took long breaks, and was frequently absent. He also complained that other workers in the area were becoming demoralized because Respondent did not carry his share of the work. On one occasion Respondent's supervisor thought he smelled alcohol on Respondent's breath. Several times during this period Respondent was observed taking his shoes and socks off and elevating his feet to relieve swollen joints. Even after being instructed to not remove his shoes and socks and elevate his feet while at work, Respondent did so again and was observed by the Deputy Superintendent.
Respondent was next placed in Petitioner's Security Investigative Unit (hereinafter "SIU"), where he performed clerical chores. On November 2, 1990, Respondent reported to his work location in an impaired state. This was discovered when other employees at the work site noted that Respondent was talking to himself, his clothing was disheveled, his speech was slurred, he had bloodshot eyes which he was trying to conceal by wearing dark glasses, he kept repeating himself, the content of his speech was nonsensical, and he had a strong odor of alcohol on his breath. Later that morning, a blood specimen was drawn from Respondent, which upon analysis showed an ethanol content of at least
50 milligrams per deciliter.
During October, 1990, it had been determined that further psychological evaluation of Respondent was medically indicated, and he was directed by OPS to submit to further evaluation. An appointment was scheduled for him by OPS. Respondent, however, rescheduled that appointment several times and never did submit for further evaluation.
Respondent disregarded directives given to him by OPS on August 15, 1990, regarding absence and leave procedures. Between November 5 and 14, 1990, Respondent was absent from work and failed to contact OPS regarding his absences in accordance with the directives previously given to him. Respondent understood that he was to contact OPS. The reason that Respondent did not contact OPS when he failed to report to work between November 5 and 14 was as a result of his drinking and not as a result of any lack of understanding of the directives which he had been given.
Petitioner's EAP has had 140 contacts directly with Respondent or with his medical providers in an attempt to assist Respondent in dealing with his fitness-related alcoholism. Respondent is generally non-compliant with the recommendations made to him by professionals for dealing with his alcohol problem. Recommendations for long-term residential treatment have been ignored. Although Respondent has voluntarily admitted himself for treatment in hospital mental health units, his stays there are short and do not appear to be assisting him in dealing with his long-term alcohol problem. Although Respondent is currently attending daily AA meetings, his attendance may be related as much to his pending traffic charges and this termination proceeding as to any commitment on his part to finally resolve his alcohol problem.
When Respondent was a patient at Mount Sinai, once he was detoxified, he exhibited no personality disorder or psychiatric condition. His problem was alcoholism and poly-drug dependency; his behavior was secondary to that problem. Based upon protocols established by the American Society of Addiction Medicine, a physician cannot, with certainty, diagnose a mental condition while the patient is still under the influence of alcohol or other mind-altering drugs.
Although Respondent has been receiving treatment from a psychiatrist on an irregular basis over the last few years, that physician's opinion that Respondent suffers from a manic depressive disorder requiring the administration of anti-depressant medication is rejected. That physician has not had the benefit of seeing Respondent on a regular basis. It is uncertain whether that physician has had the benefit of treating Respondent in a detoxified state since approximately 1985. Although it is believed that Respondent has been in a detoxified state during certain time periods since 1985, there is no assurance that the recovery program Respondent has created for himself is working.
Respondent received acceptable annual evaluations for the 1988-1989 and 1989-1990 school years and was recommended for reemployment at the conclusion of each of those school years. Each year's annual evaluation was based upon one classroom observation only. Although fitness-related issues such as active alcoholism appear to be included within Category VII, Professional Responsibilities, on Petitioner's annual evaluation form, principals completing annual evaluations of teachers are prohibited from considering fitness-related issues. By union contract, only the Office of Professional Standards can deal with issues relating to a teacher's fitness for duty.
Over the years, Respondent's drinking problem has become known to more and more students, staff, medical professionals, and members of the community. His failure to ultimately resolve his alcohol problem has achieved some degree of notoriety.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes (1990).
Section 231.36(4)(c), Florida Statutes, provides that a member of the instructional staff who is under continuing contract may be suspended or dismissed provided that the charges against that person must be based on, inter alia, immorality, incompetency, gross insubordination, and drunkenness. The definitions for those charges are found in Rule 6B-4.009, Florida Administrative Code.
Count I of the Notice of Specific Charges alleges that Respondent is guilty of incompetency. Rule 6B-4.009(1), Florida Administrative Code, provides that incompetency is the inability or lack of fitness to discharge the required duty as a result of inefficiency or incapacity. Petitioner has met its burden of proving that Respondent is guilty of incompetency due to his inability or lack of fitness to discharge his duties as a result of incapacity. Rule 6B- 4.009(1)(b) defines incapacity as being, inter alia, a lack of emotional stability or a lack of adequate physical ability. Respondent's inability to resolve his alcoholism, his repeated episodes of drinking, and his absences from work as a result thereof reveal a lack of emotional stability and a lack of adequate physical ability to discharge his required duties. By the beginning of
the 1990-1991 school year, Respondent had even become incapable of performing clerical duties assigned to him in various alternate assignments given to him while Petitioner awaited the outcome of Respondent's August, 1990, arrest.
Although Petitioner argues that Respondent is also incompetent as a result of inefficiency, that is, a failure to communicate and relate to children in a classroom to such an extent that pupils are deprived of minimum educational experience, Petitioner offered no proof that Respondent was unable to communicate with or relate to children in the classroom. Petitioner's evidence focused on Respondent's episodes of alcohol abuse and not on any performance in the classroom. Although Petitioner argues that Respondent's failure to obtain part-time employment for pregnant students somehow deprived the students of a minimum educational experience, that argument, though novel, is without merit and without proof.
Count II of the Notice of Specific Charges alleges that Respondent is guilty of drunkenness. Rule 6B-4.009(5)(a), Florida Administrative Code, defines drunkenness as that "...condition which exists when an individual publicly is under the influence of alcoholic beverages or drugs to such an extent that his or her normal faculties are impaired...." Petitioner has met its burden of proof as to Count II. On November 2, 1990, Respondent reported to work under the influence of alcoholic beverages to such an extent that his normal faculties were impaired. His clothing was disheveled, and his speech was slurred. Respondent kept repeating himself, and the content of his speech was nonsensical.
Count III of the Notice of Specific Charges alleges that Respondent is guilty of gross insubordination. Rule 6B-4.009(4), Florida Administrative Code, defines gross insubordination as a constant or continuing intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority. In August, 1990, Respondent was directed by Dr. Joyce Annunziata of the Office of Professional Standards, both verbally and in writing, regarding the procedures to be followed when Respondent would be absent. Specifically, her office was to be notified. On November 2, 1990, after his blood was drawn for the purpose of testing for alcohol, Respondent was sent home for the rest of that day. He thereafter did not contact anyone and failed to report to work from November 5 through November 14. Although Respondent argues that he was told on November 2 to go home and wait until he heard something, Respondent also admits that he was well aware of the requirement that he contact Dr. Annunziata's office, that he understood that was a directive which had been issued to him, and that he just did not think about it.
Similarly, in October of 1990, Respondent was ordered by Dr. Annunziata to undergo further psychological evaluation. An appointment was scheduled for him to do so. Respondent cancelled that appointment and rescheduled it several times, with the end result that he failed to submit to further psychological evaluation. The orders of Dr. Annunziata were reasonable in nature, were direct, and were given by and with proper authority. Respondent simply refused to obey them. Petitioner has met its burden of proving Respondent guilty of gross insubordination.
Count IV of the Notice of Specific Charges alleges that Respondent is guilty of immorality. Rule 6B-4.009(2), Florida Administrative Code, provides as follows:
Immorality is defined as conduct that is inconsistent with the standards of public conscience and good morals. It is conduct sufficiently notorious to bring the individual concerned or the education professional into public disgrace or disrespect and impair the individual's service in the community.
Respondent was rejected from various worksites for absences, unacceptable work performance, and numerous consistent reports of the odor of alcohol attending Respondent. The awareness of these problems by an increasing number of students, teachers, staff, administrators, and even a School Board member provides sufficient proof that Respondent's conduct was sufficiently notorious to bring himself and the profession into public disgrace or disrespect.
Respondent became incapable of performing clerical tasks, resulting from Respondent's failure to resolve his alcohol abuse problem. Such conduct is inconsistent with the standards of public conscience and good morals. Lastly, Respondent's service in the community has been impaired in that he has necessitated his own removal from school sites where he would be likely to interact with students, and he has, therefore, impaired his ability to serve in the community.
Count V of the Notice of Specific Charges alleged that Respondent is guilty of moral turpitude. That Count was dismissed by Petitioner in its proposed recommended order filed in this cause.
Count VI charges Respondent with violation of School Board rules. Rule 6Gx13-4-1.05 is the Drug-Free Work Place Policy of the Dade County Public Schools. That policy requires, in part, that school employees refrain from coming to work impaired. Respondent violated that rule on November 2, 1990.
Rule 6Gx13-4A-1.21, also known as the School Board's Employee Conduct Rule, requires employees to conduct themselves in a manner which reflects credit upon themselves and the school system. Respondent's repeated use of alcohol and non-performance at different work locations, even when assigned low-skilled tasks, discredited himself and the school system, in violation of that Employee Conduct Rule. However, violation of School Board rules is not one of the grounds enumerated in Section 231.36(4)(c), Florida Statutes, for which a member of the instructional staff may be suspended or dismissed.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Respondent's
employment as a teacher for the School Board of Dade County, Florida.
DONE AND ENTERED in Tallahassee, Leon County, Florida, this 24th day of May, 1991.
LINDA M. RIGOT
Filed with the Clerk of the Division of Administrative Hearings this 24th day of May, 1991.
transmitting transcript, together with Petitioner's exhibits numbered 1-14 and Respondent's exhibits numbered 1-4.
Octavio J. Visiedo, Superintendent Dade County School Board
William Du Fresne, Esquire Du Fresne and Bradley, P.A. 2929 Southwest Third Avenue Suite One
James C. Bovell, Esquire
All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
