STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF PINELLAS COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 91-2285

)

WILSON McKENZIE, JR., )

)

Respondent. )

)

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on June 20, 1991, in Clearwater, Florida.

APPEARANCES

For Petitioner: M. Teresa Harris, Esquire

Post Office Box 4688 Clearwater, Florida 34618-4688

For Respondent: Wilson McKenzie, Jr., pro se

1830 Seminole Boulevard South St. Petersburg, Florida 33705

STATEMENT OF THE ISSUES

The issue is whether respondent should be dismissed from his position as a physical education teacher aide for the reasons cited in petitioner's letter of March 12, 1991.

PRELIMINARY STATEMENT

By letter dated March 12, 1991, petitioner, School Board of Pinellas County (Board), charged that respondent, Wilson McKenzie, Jr., was deficient in his performance as a physical education teacher aide in the areas of relationships with students and following directives from his superiors. The letter further stated that those deficiencies constituted grounds for termination of employees under "Article 9, Section I of the PEPSA Agreement concerning probationary employees" and that it intended to terminate McKenzie as an employee effective March 28, 1991.

Respondent disputed the above allegations and requested a formal hearing pursuant to Subsection 120.57(1), Florida Statutes (1989). The matter was referred by petitioner to the Division of Administrative Hearings on April 13, 1991, with a request that a hearing officer be assigned to conduct a formal hearing. By notice of hearing dated May 13, 1991, a final hearing was scheduled

on June 20, 1991, in Clearwater, Florida. On June 17, 1991, the case was transferred from Hearing Officer Veronica E. Donnelly to the undersigned.

At final hearing petitioner presented the testimony of John Burwell, principal of Melrose Elementary School (MES), Barbara Hiers, former MES assistant principal, George K. Jones, director of physical education and drivers' education for the county school system, Betsy Bolen, a physical education teacher at St. Petersburg Challenge (SPC), Kathleen Woolums, an SPC teacher, Sandra C. Leanes, SPC program coordinator and assistant principal, James M. Barker, Board supervisor of personnel services, and K. D., P. T., M. R., A. W., R. F., L. D., L. R., T. T., Q. T., M. S. and M. K., all former

students at SPC. It also offered petitioner's exhibits 1-28. All exhibits were received in evidence. Respondent testified in his own behalf and presented the testimony of Henry Mitchell. Also, he offered respondent's exhibits 1-25. All exhibits were received in evidence.

There is no transcript of hearing. Proposed findings of fact and conclusions of law were filed by petitioner on July 5, 1991. A ruling on each proposed findings has been made in the Appendix attached to this Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of fact are determined:

1. Background

   
   

   1. At all times relevant hereto, respondent, Wilson McKenzie, Jr., was employed as a physical education teacher aide at St. Petersburg Challenge (SPC) in St. Petersburg, Florida. The school is a part of the public school system operated by petitioner, School Board of Pinellas County (Board).

      
      

   2. Respondent's employment with the Board began on August 16, 1990, when he was assigned as a full time physical education teacher aide at Melrose Elementary School (MES). In early September McKenzie was reassigned to work at MES during the morning hours only and then during the afternoon hours at SPC, a drop-out prevention school for disadvantaged fourth and fifth graders.

      
      

   3. Pursuant to a collective bargaining agreement between the Pinellas Educational Support Personnel Association and the Board, respondent served in a probationary status during his first six months of employment. Under the same agreement, he was continued in that status for an additional ninety days after his first evaluation. According to Article 9, Section 1 of the agreement, a probationary employee may be terminated "for any reason", and the Board's termination letter of March 12, 1991, relied upon that provision of the agreement as its authority for terminating McKenzie. Pending the outcome of this proceeding, McKenzie has remained in a suspended without pay status since March 28, 1991.

      
      

2. The Board's Reasons for Termination

   
   

   1. Respondent's performance at MES during the morning hours was apparently satisfactory since petitioner, in its charging letter of March 12, 1991, chose not to rely upon any performance deficiencies at MES as a basis for termination. 1/

   2. As the first ground for terminating respondent, petitioner alleged that respondent was deficient in the "area of relationships with students". To support this charge, petitioner presented the testimony of ten students, all fifth graders at SPC during school year 1990-91 and who came in contact with respondent. While some of the students gave conflicting versions of what transpired, and thus their complaints were questionable, it is found that, contrary to school policy and orders from his supervising teacher, respondent yelled at and argued with students during physical education class in an effort to enforce class discipline. In addition, he placed his hand on students' shoulders or backs and would pinch them despite their requests that he not do so, and twice called students insulting names (e.g., bitch) in the presence of other students. It was further established that on several occasions respondent went to the home of a student to discuss school problems instead of inviting the parent to come to the school. He also had difficulty in maintaining classroom discipline. Several of the students testified that respondent made them uncomfortable by "staring" at them during class or lunch period. Finally, respondent was observed by several students looking up the dress of a female student who sat on the floor with her legs spread apart. In fairness to respondent, however, it should be noted that in some instances the students were acting in an unruly fashion or were violating cafeteria rules by talking loudly and "trading" food, thus prompting respondent to yell at them. Even so, it is fair to say that respondent had numerous difficulties in his relationships with students and most of the students who testified disliked respondent and appeared to be afraid of him.

      
      

   3. In addition to the above ground, petitioner has cited respondent's failure to follow "directives from superiors" as a second reason for terminating his employment. This charge stems primarily from respondent's sponsorship of a dance program for students that he conducted after school hours. Respondent's group was known as the Very Important Kids Association and was made up of young, disadvantaged children from the south side of St. Petersburg. Respondent was told early on by various superiors, including the SPC principal, assistant principal and physical education teacher, that group activities should not be arranged during school hours, the group should not meet on school property and respondent should refrain from asking students to join his group during school hours. Despite having at least three formal conferences with SPC administrators concerning this matter, and receiving written memoranda with specific instructions, respondent continued to violate these instructions by asking students during school hours to join his group. By doing so, respondent failed to follow "directives from superiors" as alleged in the charging document.

      
      

3. Respondent's Case

1. Respondent, who is 27 years old, maintained at hearing that he was "set up" on these charges by unnamed individuals and that he gave his best effort at doing a good job. McKenzie pointed out that he had no problems at MES and that all problems were encountered at SPC. He stated he is sincerely interested in helping underprivileged children and offered a number of letters from third parties to corroborate this contention. Through cross-examination, respondent established that several complaints offered by the testifying students were caused by their own misbehavior and respondent's subsequent efforts to discipline them.

   CONCLUSIONS OF LAW

   
   

2. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties hereto pursuant to Subsection 120.57(1), Florida Statutes (1989).

   
   

3. This case arises in an unusual posture since respondent is not a teacher. Rather, he was a noninstructional employee who was on probationary status at the time of his termination. The union contract relied upon by petitioner as a basis for termination is a collective bargaining agreement that spells out the terms and conditions of employment for support personnel as required by Chapter 447, Florida Statutes, and describes the procedures under which an employee may file a grievance in the event disciplinary action is taken against that employee. Both are matters that fall within the purview of the Public Employees Relation Board rather than the Division of Administrative Hearings. Under the terms of the union contract, respondent could be terminated "for any reason" whatsoever. Using the "for any reason" standard, the Board has clearly established a "reason" for termination of the employee. At the same time, however, it is recognized that respondent was a "paid teacher aide" within the meaning of Section 231.141, Florida Statutes, and, irrespective of his probationary status, is entitled to the "same rights accorded noninstructional employees of the board".

   
   

4. In its proposed order, 2/ the Board has cited Subsection 230.23(5)(f), Florida Statutes (1989), as the relevant statutory authority for terminating McKenzie. That subsection provides as follows:

   
   

   (5) (The Board shall have the power to) designate positions to be filled, prescribe qualifications for those positions, and provide for the appointment, compensation, promotion,

   suspension, and dismissal of employees as follows, subject to the requirements of chapter 231:

   (f) Suspend, dismiss, or return to annual contract members of the instructional staff and other school employees; however, no administrative assistant, supervisor, principal, teacher, or other member of the instructional staff may be discharged, removed, or returned to annual contract except as provided in chapter 231. (Emphasis added)

   
   

   Thus, under the terms of the foregoing statute, a school board need not comply with the provisions of chapter 231 when it takes disciplinary action against a noninstructional employee. It is noteworthy that chapter 231 provides a wide array of grounds for which employees (other than noninstructional) may be disciplined, including gross insubordination, misconduct in office, drunkenness, immorality and the like, and also provides that such categories of employees be given a section 120.57 hearing in the event they wish to contest the school board's action. A review of chapter 230, including subsection 230.23(5)(f) upon which petitioner relies, does not reveal any specific grounds for disciplining a noninstructional employee nor does it specifically offer such an employee the right to a section 120.57 hearing. Whether such grounds and point of entry are prescribed by local Board rule is not of record, and the union contract received in evidence does not recite specific grounds nor refer to a section 120.57 hearing in the event a noninstructional union employee is disciplined. Even so, the Board has cited two grounds or deficiencies as a basis for its action, "relationships with students" and "following directives from superiors", and

   arguably the Board's action affects the substantial interests of the employee. Thus, notwithstanding the Board's apparent lack of a specific rule of conduct governing support personnel and the manner in which an appeal (as opposed to the filing of a grievance) can be taken, respondent was given adequate notice of the charges and a forum in which to adjudicate this dispute. All due process requirements have accordingly been satisfied. Jacker v. School Board of Dade County, 426 So.2d 1149, 1151 (Fla. 3d DCA 1983).

   
   

5. By a preponderance of the evidence, petitioner has demonstrated that respondent's relationship with students was deficient and that he failed to follow the directives of his superiors on a number of occasions. This being so, it is concluded that the allegations in the charging document have been sustained.

   
   

6. Subsection 230.23(5)(f), Florida Statutes (1989) authorizes a school board to suspend and dismiss a noninstructional employee. Given the circumstances herein, the penalty proposed by the superintendent appears to be appropriate.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of the allegations in the

charging document and that he be terminated from his position as a teacher aide.

DONE and ENTERED this 12th day of July, 1991, in Tallahassee, Florida.

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 12th day of July, 1991.

ENDNOTES

1/ Therefore, the undersigned has disregarded as being irrelevant all evidence presented at hearing concerning deficiencies at MES.

2/ Since the charging document (letter) made no reference to any authority for terminating respondent except the union contract, the undersigned requested that the parties address this issue in their proposed orders.

Petitioner:

APPENDIX

Case No. 91-2285

The substance of petitioner's proposed findings have been adopted in the findings set forth in this Recommended Order.

Copies Furnished:

M. Teresa Harris, Esquire Post Office Box 4688

Clearwater, Florida 34618-4688

Mr. Wilson McKenzie, Jr. 1830 Seminole Boulevard South

St. Petersburg, Florida 33705

Hon. Betty Castor Commissioner of Education The Capitol

Tallahassee, Florida 32399-0400

Dr. J. Howard Hinesley, Superintendent Pinellas County School Board

P. O. Box 4688

Clearwater, Florida 34618-4688

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to the 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 consult with the agency that will issue the final order in this case concerning their 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.

Docket for Case No: 91-002285

Orders for Case No: 91-002285