STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHARLES F. BLALOCK, JR., ) SUPERINTENDENT, SUWANEE ) COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 91-6046

)

JAMES SEAY, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Live Oak, Florida, before Robert T. Benton, II, Hearing Officer of the Division of Administrative Hearings, on August 6, 1992. The Division of Administrative Hearings received the hearing transcript on September 10, 1992. The parties filed proposed recommended orders and elaborated on their positions in a series of posthearing letters, the last of which reached the Division of Administrative Hearings on October 21, 1992.

APPEARANCES

J. Victor Africano, Esquire For Petitioner: Post Office Box 1450

Live Oak, Florida 32060

Linsey Moore, Esquire For Respondent: 50 East 2nd Street

Jacksonville, Florida 32206 STATEMENT OF THE ISSUE

Whether petitioner should discharge respondent from his teaching job on account of gross negligence and willful neglect of duty for the reasons alleged in the petition for discharge and notice of charges and attachments incorporated therein?

PRELIMINARY STATEMENT

By petition for discharge dated August 22, 1991, petitioner incorporated by reference allegations that respondent's principal had, on March 11, 1991, "shared with him again that his assignment was in the Alternative/Discipline program [but that respondent] said that [the principal] could not make him go down to the classroom . . . [and] did not go to his classroom to perform his job responsibilities"; and that, on March 12, 1991, his principal asked him twice "to return to his classroom . . . [but] Mr. Seay refused again to go to his classroom and perform his teaching duties." The petition for discharge also alleged that petitioner directed respondent to submit to psychiatric and medical examinations, but that respondent failed to do so.

FINDINGS OF FACT

1. Respondent James Seay, who had worked as a teacher in Suwannee County for many years, was out sick first with a stomach virus and then with recurring head pain for the entire school week of March 4-8, 1991. He visited physicians on March 5, 7 and 8, and took three prescribed medicines.

   
   

2. Mr. Seay telephoned the morning of March 4, 1992, and told Sonja Suber, a secretary who was "the designated person at the school," (T.48) responsible for obtaining substitute teachers and maintaining sick leave records, that he was ill and would not be in that day. The parties agree that respondent was on sick leave through March 8, 1991.

   
   

3. On the evening of March 4, 1991, he telephoned Nancy Roberts, director of elementary education for the Suwanee County School District and principal of Douglass Center. When Mr.Seay told her he would not be in the following day, she cancelled an observation she had scheduled for his benefit.

   
   

4. The next day or the day after Sonya Suber telephoned respondent to relay Ms. Roberts' advice that a meeting scheduled for March 11, 1991, had been cancelled. On Saturday, March 9, 1991, Mr. Seay telephoned Ms. Suber and said "that he would be coming Monday to the school but he would not report to the classroom." T. 29. He had earlier expressed to Ms. Roberts discomfort "with the students that were assigned" (T. 46) to him.

   
   

5. On Monday, March 11, 1991, at 7:53 o'clock in the morning, he appeared as promised and signed in at Suwanee County School District's Douglass Center. After greeting Sonya Suber, he went to the teachers' lounge. He did not give any indication that he was unwell or make any request for leave.

   
   

6. Ms. Roberts saw Mr. Seay reading a newspaper in the lounge. She asked him to accompany her to her office, where she "let him know that he was a teacher assigned to the Alternative Program at the Douglass Center and what his responsibilities were . . . working with the students there." T.50.

   
   

7. Respondent handed Ms. Roberts one of his attorney's cards, and told her "that there was nothing [she] could do to make him go in that classroom and that he was not going to that classroom," (T.50) and asked her "to stop harassing him." Id. After Mr. Seay's return to the teachers' lounge, Ms. Roberts gave an account of events to Mr. Charles F. Blalock, Jr., petitioner here. Petitioner's Exhibit No. 2.

   
   

8. The following morning Mr. Seay signed in at the Douglass Center at ten before eight, Petitioner's Exhibit No. 1, but he again went to the teachers' lounge rather than to his assigned classroom. Again he told nobody he was ill, and asked nobody for sick leave.

   
   

9. Ms. Roberts twice asked him to go to his classroom. When she told him his failure to teach the class he had been assigned "could be construed as insubordination on his part," (T.53) he asked her to clarify what she meant by insubordination and, with her permission, made a tape recording of her answer. Petitioner's Exhibit No. 3. He refused to go to his classroom.

   
   

10. On Wednesday, March 13, 1991, Mr. Blalock wrote a letter to Mr. Seay advising him that he was suspended with pay, and that, as superintendent, he

    would recommend suspension without pay and ultimately dismissal at the next regular meeting of the School Board. Petitioner's Exhibit No. 4.

    
    

11. When Ms. Roberts telephoned Thursday morning with word that Mr. Seay was at Douglass Center, Mr. Blalock went himself to speak to Mr. Seay. Twice he personally directed Mr. Seay to go to his classroom and get to work. Confronted with Mr. Seay's silent refusal, Mr. Blalock handed him the letter of suspension, dated the day before.

    
    

12. When the School Board met, heard what had transpired, and listened to a presentation by Mr. Seay's lawyer, it decided that Mr. Seay should have a physical examination and be examined by a psychiatrist. At the school board meeting, nobody suggested that respondent was on sick leave at any time after March 8, 1991.

    
    

13. In keeping with the collectively bargained agreement between the School Board and teachers like Mr. Seay under continuing contract with the School Board, Petitioner's Exhibit No. 6, petitioner demanded that respondent go for medical and psychiatric examinations, by letter dated April 10, 1991. Petitioner's Exhibit No. 7.

    
    

14. A second, follow-up letter reiterating the demand, dated April 29, 1991, Petitioner's Exhibit No. 9, reached Mr. Seay by registered mail. As of the time of the hearing, Mr. Seay had not complied with the Board's demand that he submit to a physical examination and be examined by a psychiatrist.

    
    

    CONCLUSIONS OF LAW

    
    

15. Since the School Board referred respondent's hearing request to the Division of Administrative Hearings, in accordance with Section 120.57(1)(b)3., Florida Statutes (1990 Supp.), "the division has jurisdiction over the formal proceeding." Section 120.57(1)(b)3., Florida Statutes (1990 Supp.).

    
    

    Res Judicata Pleaded as Defense

    
    

16. In prehearing motions to dismiss and for summary judgment and again at the beginning of the final hearing, respondent contended that the question whether petitioner had good cause to discharge him had already been conclusively decided in his favor in unemployment compensation proceedings. Respondent maintains that the doctrines of res judicata or collateral estoppel preclude any finding in the present proceeding that the School Board has a lawful basis for terminating his employment.

    
    

17. That the doctrine of res judicata extends to successive final orders of the same administrative agency is clear. Thomson v. State Department of Environmental Regulation, 511 So.2d 989 (Fla. 1987). Indeed, the doctrine has been said to be "equally applicable to the decisions of administrative tribunals and courts." Flesche v. Interstate Warehouse, 411 So.2d 919, 926 (Fla. 1st DCA 1982). See Florida Export Tobacco Co. v. Department of Revenue, 510 So. 2d 936 (1st DCA) rev. den. 519 So.2d 986 (Fla. 1987). Here the parties are the same in both administrative proceedings, but different agencies have (or had) different, if related, questions to decide.

    
    

18. The Fifth District's decision in School Board of Seminole County v. Unemployment Appeals Commission, 522 So.2d 556 (Fla. 5th DCA 1988), lends support to respondent's thesis that the factual issues before the School Board and those decided by the Division of Unemployment Compensation can be viewed as

    identical for res judicata purposes. There the Fifth District reversed an award of unemployment compensation benefits to a teacher, because he had earlier been determined, in an administrative proceeding not unlike the present one, to have been guilty of misconduct held to preclude unemployment compensation.

    
    

19. The School Board of Seminole County panel noted that it was giving collateral effect not to the administrative adjudication per se, but to its own earlier judgment "upholding the school board's final administrative order." 522 So.2d at 556. Here, since no judicial appeal was taken of the unemployment compensation award to Mr. Seay, he is advocating giving collateral effect not to the judgment of a court, but to the final administrative adjudication in the unemployment compensation case. Under the case law, however, see State Department of Transportation v. Gary, 513 So.2d 1338 (Fla. 1st DCA 1987) and United States Fidelity & Guaranty Co. v. Odoms, 444 So.2d 78 (Fla. 1st DCA 1984), this distinction should not be determinative; and the court seemed to eschew reliance on this distinction in School Board of Seminole County v. Unemployment Appeals Commission, supra at 557.

    
    

    First District Precedent

    
    

20. Before the Fifth District's decision in the School Board of Seminole County case, the District Court of Appeal, First District (in whose jurisdiction Suwannee County lies) decided, in Marion County School Board v. Clark, 378 So.2d 831 (Fla. 1st DCA 1979), that a teacher found guilty of misconduct in a final school board order could nevertheless recover unemployment compensation, on the theory that she had not been guilty of misconduct. Rejecting the view that such inconsistent results should be countenanced, the Fifth District panel expressly agreed with the concurring, not the majority, opinion in the Clark case.

    
    

21. The Clark majority was unwilling to give collateral effect to the School Board's final order. Accord, Newberry v. Florida Department of Law Enforcement, No. 90-2088 (Fla. 3rd DCA; Sept. 17, 1991), 16 FLW D2442; Walley v. Florida Game and Fresh Water Fish Commission, 501 So.2d 671 (Fla. 1st DCA 1987); Todd v. Carroll, 347 So.2d 618, 619 (Fla. 4th DCA 1977). But see Hicks v. Putnam County School Board, 510 So.2d 1171 (Fla. 1st DCA 1987) (dicta). Writing separately, Judge Ervin suggested that the issue need not have been reached, and stated his view "that if the issue had been appropriately raised, the Board's order would have had binding effect." 378 So.2d at 835.

    
    

    Distinction Unavailing

    
    

22. Mr. Seay contends for the preclusive effect of the unemployment compensation award, not a school board's final order, while the teacher in the Clark case successfully argued against giving the school board's order preclusive effect in her unemployment compensation case. The Clark majority raised the possibility that a school board employer might not be completely neutral. But the unemployment compensation decision in the present case has not been shown to be any more reliable than the school board's decision in Clark.

    
    

23. Since Mr. Seay's unemployment compensation case was decided on the basis of telephone calls and afterwards by default (when the school board failed to respond timely to notice of its right to an administrative appeal, because of internal clerical problems), see Deposition of Marilyn Sapp, the evidence adduced in the present case and summarized in the findings of fact may be the only competent evidence ever adduced in any forum on the circumstances surrounding Mr. Seay's discharge.

    Precedent Controls

    
    

24. The Clark decision is the most pertinent precedent within the First District of which the hearing officer is aware. The result in the Clark case apparently reflects the view that "the doctrines of res judicata or estoppel by judgment are not applicable under the facts of the case where two separate and distinct governmental units independently considered similar factual allegation[s] but for different purposes." Todd v. Carroll, 347 So.2d 618, 619 (Fla. 4th DCA 1977).

    
    

25. This principle applies in the present case, even though the collateral effect of the unemployment compensation order, not the school board's order, is at issue. See Newberry v. Florida Department of Law Enforcement, No. 90-2088 (Fla. 3rd DCA; Sept. 17, 1991), 16 FLW D2442. Similarly, in Neidhart v. Pioneer Federal Savings & Loan Assn, 498 So.2d 594 (Fla. 2d DCA 1986), the court declined to give res judicata effect to an unemployment compensation award, in a civil suit testing the legality of an employee's discharge. Cf. City of Tampa v. Lewis, 488 So.2d 860 (Fla. 2d DCA 1986).

    
    

26. On these grounds, respondent's second motion to dismiss and, by implication, respondent's motion for summary judgment were denied at hearing, with leave to renew posthearing. In respondent's proposed recommended order, respondent has asserted that the motion for summary judgment was never ruled on. Whether never acted on or renewed, the motion for summary judgment (technically inappropriate in a formal administrative proceeding) is (again) denied.

    
    

    Statutory Criteria

    
    

27. A teacher who, like respondent, is under continuing contract may be "dismissed at any time during the school year; however, the charges against him must be based on . . . misconduct in office, incompetency, gross insubordination [or] willful neglect of duty . . . ." Section 232.36(4), Florida Statutes (1991).

    
    

28. Implementing the statute, Rule 6B-4.009(4), Florida Administrative Code, defines gross insubordination or willful neglect of duty "as a constant or continuing intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority."

    
    

29. The School Board proved that respondent intentionally and explicitly refused to teach the class to which he was assigned on March 11, 1991, and again on March 12, 1991. In addition, respondent's failure to submit to a medical or psychiatric examination after repeated, formal demands permits an inference that the refusal to submit was intentional. Petitioner established grounds for respondent's dismissal.

RECOMMENDATION

It is, therefore, RECOMMENDED:

That petitioner terminate respondent's employment.

DONE and ENTERED this 3rd day of December, 1992, at Tallahassee, Florida.

ROBERT T. BENTON, II, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 3rd day of December, 1992.

APPENDIX FOR NO. 91-6046

Petitioner's proposed findings of fact Nos. 1-11 and 13-20 have been adopted, in substance, insofar as material.

Petitioner's proposed finding of fact No. 12 pertains to immaterial matters.

With respect to petitioner's proposed finding of fact No. 21, respondent apparently also took the position that he had been on sick leave in the unemployment compensation case.

Petitioner's proposed findings of fact Nos. 22 and 23 pertain to subordinate matters.

Respondent's proposed findings of fact Nos. 1-3, 5-8 and 19 have been adopted in substance, insofar as material.

Respondent's proposed findings of fact Nos. 4, 9-12, 21 and 24 pertain to subordinate matters.

Respondent's proposed findings of fact Nos. 13 and 15 are immaterial since respondent never requested sick leave.

Respondent's proposed findings of fact Nos. 14, 16, 17 and 18 have been rejected as unsupported by the weight of the evidence.

With respect to respondent's proposed finding of fact No. 20, Ms. Roberts' testimony in that regard is unrebutted.

With respect to respondent's proposed finding of fact No. 22, there is no disagreement.

Respondent's proposed finding of fact No. 23 pertains to an immaterial matter.

COPIES FURNISHED:

Honorable Betty Castor Commissioner of Education The Capitol

Tallahassee, FL 32399-0400

Charles Blalock, Superintendent Suwanee County School Board

224 W. Parshley Street Live Oak, FL 32060

J. Victor Africano, Esquire Post Office Box 1450

Live Oak, FL 32060

Linsey Moore, Esquire

50 East 2nd Street Jacksonville, FL 32206

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

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 consult with 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.

================================================================= DISTRICT COURT OPINION

=================================================================

IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA

JAMES SEAY, NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND

Appellant, DISPOSITION THEREOF IF FILED

v.

CASE NO. 93-616

CHARLES F. BLALOCK, JR., DOAH NO. 91-6046

District School Superintendent, Suwannee County, Florida,

Appellee.

/ Opinion filed November 8, 1994.

An appeal from the Division of Administrative Hearings. Robert T. Benton, II, Hearings Officer.

Linsey Moore, Ft. Lauderdale, for Appellant.

J. Victor Africano, Live Oak, for Appellee.

PER CURIAM.

AFFIRMED.

JOANOS, LAWRENCE and DAVIS, JJ., CONCUR.

MANDATE

From

DISTRICT OF COURT OF APPEAL OF FLORIDA FIRST DISTRICT

To the Honorable, the Judges of the Robert T. Benton, Hearing Officer Division of Administrative Hearings

WHEREAS, in that certain cause filed in this Court styled:

CHARLES F. BLALOCK, JR.,

as District School Superintendent,

Suwannee County, Florida Case No. 93-616

Your Case No. 91-6046

vs.

JAMES SEAY

The attached opinion was rendered on November 8, 1994.

YOU ARE HEREBY COMMANDED that further proceedings be had in accordance with said opinion, the rules of this Court and the laws of the State of Florida.

WITNESS the Honorable E. EARL ZEHMER

Chief Judge of the District Court of Appeal of Florida, First District and the Seal of said court at Tallahassee, the Capitol, on this 28th day of November, 1994.

Clerk, District Court of Appeal of Florida,

First District

Docket for Case No: 91-006046

Orders for Case No: 91-006046